United States District Court, D. Maine
ORDER ON DEFENDANT'S MOTION FOR SUMMARY
Z. Singal United States District Judge
the Court is Defendant's Motion for Summary Judgment (ECF
No. 38). After carefully considering the record and the
parties' briefing, the Court GRANTS IN PART and DENIES IN
PART the Motion, for the reasons outlined below.
a party is entitled to summary judgment if, on the record
before the Court, it appears “that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a).
“[T]he mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the
requirement is that there be no genuine issue of
material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). An issue is
“genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Id. at 248. A “material
fact” is one that has “the potential to affect
the outcome of the suit under the applicable law.”
Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701,
703 (1st Cir. 1993).
party moving for summary judgment must demonstrate an absence
of evidence to support the nonmoving party's case.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
In determining whether this burden is met, the Court must
view the record in the light most favorable to the nonmoving
party and give that party the benefit of all reasonable
inferences in its favor. See Santoni v. Potter, 369
F.3d 594, 598 (1st Cir. 2004).
the moving party has made this preliminary showing, the
nonmoving party must “produce specific facts, in
suitable evidentiary form, to establish the presence of a
trialworthy issue.” Triangle Trading Co., Inc. v.
Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999)
(quotation marks and internal ellipsis omitted); see
also Fed.R.Civ.P. 56(e). “Mere allegations, or
conjecture unsupported in the record, are
insufficient.” Barros-Villahermosa v. United
States, 642 F.3d 56, 58 (1st Cir. 2011) (quoting
Rivera-Marcano v. Normeat Royal Dane Quality A/S,
998 F.2d 34, 37 (1st Cir. 1993)); see also Wilson v.
Moulison N. Corp., 639 F.3d 1, 6 (1st Cir. 2011)
(“A properly supported summary judgment motion cannot
be defeated by conclusory allegations, improbable inferences,
periphrastic circumlocutions, or rank speculation.”).
“As to any essential factual element of its claim on
which the nonmovant would bear the burden of proof at trial,
its failure to come forward with sufficient evidence to
generate a trialworthy issue warrants summary judgment for
the moving party.” In re Ralar Distribs.,
Inc., 4 F.3d 62, 67 (1st Cir. 1993). “However,
summary judgment is improper when the record is sufficiently
open-ended to permit a rational factfinder to resolve a
material factual dispute in favor of either side.”
Morales-Melecio v. United States (Dep't of Health and
Human Servs.), 890 F.3d 361, 368 (1st Cir. 2018)
(quotation marks omitted).
Jai Morin has worked for Hannaford since March of 1997 and
has been employed as the Assistant Meat Manager at Store No.
8229 in Waterville, Maine (the “Elm Plaza store”)
since 2013. Several years before the events directly at issue
in this matter, Morin was diagnosed with chronic Lyme
disease, a condition Morin asserts is his disability. Morin
takes medication to treat the disease but still experiences
symptoms including fatigue, dizziness, and pain. On days when
he experiences symptoms, he may experience severe fatigue and
pain that worsens later in the day. When these symptoms
escalate, they make him more prone to suffer a work-related
injury and less able to perform his job duties. There are
some days when Morin does not experience severe fatigue or
pain if he works past mid-afternoon. However, working late on
those days can trigger a flare-up of his symptoms in the
ensuing days; Morin's doctor refers to this as a
“crash.” (Dubocq Dep. (ECF No. 41-1), PageID #
1023.) Morin was approved for the use of Family and Medical
Leave Act (“FMLA”) leave in 2013 based on his
Lyme disease but ultimately did not use the leave at that
time. Morin had previously used FMLA leave in 2007 for
another health condition and returned to work without any
nine employees work in the meat department at the Elm Plaza
store, including managers, meat cutters, and clerks or
associates who perform basic cleaning and preparation tasks.
In addition to the Assistant Meat Manager, the Meat
Department Manager and the Service Leader manage employees in
the department. The Assistant Meat Manager position
description lists the following under “Essential
1. Role model outstanding, friendly customer service and use
skills and knowledge to offer solutions that meet or exceed
2. Direct work flow of meat cutters and meat clerks.
3. Ensure product produced meets company standards.
4. Oversee the cutting room, cooler organization, and
rotation of all products.
5. Process administrative paperwork and maintain accurate
6. Order and maintain inventory control in order to maximize
sales and limit shrink issues.
7. Use good judgment in the delegation, assignment, and
follow up required for efficient performance of the
8. Maintain effectiveness of department's staffing,
scheduling, and financial results.
9. Perform meat cutter functions.
10. Wash, rinse, and sanitize equipment as outlined by
11. Supervise performance of all duties and responsibilities
of meat associates.
12. Must be able to meet the physical requirements of the
position, with or without accommodations.
(ECF No. 29-3, PageID # 377.) This list of essential job
functions does not include a work schedule or otherwise
directly reference work hours. The entire time Morin has
served as Assistant Meat Manager at the Elm Plaza store, the
listed essential job functions have been the same. Morin
believes that role modeling, training, and developing
associates are the most important leadership traits of a
manager. As part of his managerial duties, when someone calls
in sick and Morin is in charge, he assesses the needs of the
department to determine whether to call another associate in
to work or to redistribute work among present staff.
Retail Leadership Schedule, which was in place prior to the
events at issue in this matter, states that its purpose is to
ensure that “Store and Department leaders are scheduled
appropriately to cover all business needs.” (ECF No.
32, PageID # 555.) To that end, the policy provides in
relevant part that assistant managers are expected to work
one late shift (until at least 7 p.m.) each week and that
assistant managers should be scheduled to work during peak
business hours daily. The policy further states that the
result of the scheduling guidelines will be
“[c]onsistent conditions . . . creating a maximization
of sales.” (Id., PageID # 556.)
to his retirement in September 2015, the meat department at
the Elm Plaza store was managed by Dan Knowlton, who did not
follow applicable scheduling policies, including the Retail
Leadership Schedule. In April 2015, Assistant Store Manager
Penny Davis coached Knowlton to follow the scheduling
policy for himself and Morin and that his failure to do so
would result in discipline. Davis also coached Knowlton's
successor, Travis Hustus, on similar issues. Morin recalls
having discussions with Davis about the expectation that
managers work one night per week until 7 p.m. However, from
the time that he became Assistant Meat Manager to September
or October 2015, Morin was regularly scheduled to finish work
at 1:30 or 2:30 p.m. on most days. Morin was rarely scheduled
to work past 3:30 p.m. prior to October 2015. In fact, during
the time period between the weeks of January 4, 2014, and
September 26, 2015, Morin was scheduled to work past 3:30
p.m. on only 14 days and until 7 p.m. on only five days. From
2013 to 2015, Morin received positive performance evaluations
and four bonuses for his performance as Assistant Meat
metric for measuring how well the meat department functions
is maintaining good levels of inventory and avoiding
“shrink, ” which describes when the department
has to throw out inventory because it was not purchased. The
Elm Plaza store meat department was one of the best in its
regional district of Hannaford stores in maintaining good
levels of inventory while Knowlton was Department Manager. In
general, according to the key metrics Hannaford uses to
evaluate financial performance, the meat department performed
better financially during the December 2013 -December 2014
and September 2014 - September 2015 timeframes than it did
during the August 2016 - August 2017 timeframe.
Knowlton's retirement in September 2015, Hustus became
Meat Department Manager. Morin began to be scheduled to work
later in the day than he had previously been scheduled,
specifically, some days until 4 p.m. and other days until 7
p.m. On December 20, 2015, Morin spoke to Virginia Moryan,
the Associate Relations Manager in the Elm Plaza store, about
his new schedule. Morin told her that he needed to work
earlier shifts because of his medical condition. Moryan told
him that he would probably need something in writing from his
doctor to justify a change to his schedule and subsequently
provided Morin with a form for his doctor to complete.
about December 31, 2015, Morin provided Moryan with the form
as completed by his doctor, Richard Dubocq. On the form, Dr.
Dubocq indicated that Morin has a disability that renders him
unable to function well at the end of the work day. To
accommodate the disability, Dr. Dubocq asked Hannaford to
schedule Morin so that he finishes work by 2:30 p.m. every
day. At the time, Morin regularly worked a full-time schedule
of eight hours per day, five days per week, with a half hour
for lunch. Therefore, to end his work day by 2:30 p.m. and
maintain a fulltime schedule, Morin would need to begin
working at 6 a.m. or earlier, when some employees in the meat
department begin working.
Shute, the Associate Relations Specialist for the area in
which the store was located, talked with store management
about Morin's request, the essential functions of the
job, scheduling expectations, and whether Morin's
unavailability after 2:30 p.m. would create a hardship for
the store. Store management believed that Morin's request
was not a reasonable accommodation. Shute also discussed the
request with Hannaford's legal office and the director of
operations for the region. After gathering all the
information and discussing the matter in a collaborative
manner, Shute told store management that they should inform
Morin that it is not a reasonable accommodation for him to
leave by 2:30 p.m. every day because it would place an undue
burden on the department.
January 6, 2016, Davis and Moryan met with Morin to discuss
his request to modify his schedule. At this meeting, Morin
explained that he wanted to continue to work a full-time
schedule but not work past 2:30 p.m. Davis explained to Morin
that Hannaford was denying his accommodation request at least
in part because there was a “standard” schedule
for his position that required him to work until 7 p.m. once
per week and she did not want to “set precedent”
by deviating from the standard schedule. (Pl.'s Am.
Add'l Statement of Material Facts (ECF No. 46) ¶ 39;
Def.'s Reply to Pl.'s Am. Add'l Statement of
Material Facts (ECF No. 49) ¶ 39.) Davis offered several
part-time positions that would allow Morin to stop working at
2:30 p.m. but which would have resulted in a reduction in pay
and benefits. Morin responded that he had been working a
schedule for the past five years that was basically the
schedule he was now requesting, and that he did not
understand why Hannaford would not let him work the requested
schedule given his medical need. Finally, Davis told Morin
that he could call Shute if he had any questions.
January 9, 2016, Morin spoke again with Moryan about
Hannaford's denial of his schedule request and reiterated
that he did not understand why Hannaford was denying him this
schedule when it was basically the schedule he had been
working. On January 13, 2016, Morin submitted a note to
Moryan asking Hannaford to reconsider its decision. In the
note, Morin stated, among other things, that he found it
difficult to manage his Lyme disease symptoms while working
the schedule that Hannaford was requiring.
letter dated January 15, 2016, from Store Manager Rob Meader
to Dr. Dubocq, Meader wrote that he understood Morin was
requesting the accommodation of staying in his current
position and finishing work by 2:30 p.m. every day, but that
Hannaford could only meet this accommodation in a different
position. Meader further wrote that Hannaford could permit
Morin to work 9 a.m. to 7 p.m. on a consistent basis in his
current position and asked Dr. Dubocq if that schedule would
allow Morin to manage his symptoms. On January 21, 2016, Dr.
Dubocq responded in a letter to Meader that he was not asking
for Morin to be assigned to a different position but rather
was requesting that Morin remain in his current position with
a modified schedule. Dr. Dubocq further wrote, “Morin
cannot work between the hours of 9 am-7 pm on a
consistent basis at this time. A schedule that allows him to
leave work by 2:30 pm would allow meeting his needs.”
(ECF No. 32, PageID # 562.)
January 28, 2016, after conferring with Shute, Moryan spoke
to Dr. Dubocq on the phone. Dr. Dubocq told Moryan, among
other things, that Morin's health is good in the morning
but in the late afternoon he “runs out of gas”
and may “crash/retro-grade.” (ECF No. 33, PageID
# 650.) Dr. Dubocq further told Moryan that Morin would be
fine if he could stop working every day between 2:30 and 3:30
p.m. Moryan subsequently emailed Shute with a summary of her
January 28 conversation with Dr. Dubocq.
February 4, 2016, Davis and Moryan met again with Morin to
discuss his requested schedule and Davis again told Morin
that Hannaford was denying his request. Davis gave Morin the
choice of keeping his current schedule, resigning from
Hannaford, or taking a part-time position at another store.
The part-time position of up to twenty-eight hours per week
would not have guaranteed Morin any hours, would have paid
less than his current position, and offered fewer employee
benefits. Davis initially told Morin that she needed his
response by February 6, 2016, but Morin was later allowed to
take two weeks of vacation to consider his options.
February 17, 2016, Morin gave a note to Moryan stating, in
relevant part, the following:
I am requesting reduced schedule FMLA leave from my Assistant
Meat Manager position for the next 8 months beginning
immediately. I am in need of the reduced schedule FMLA leave
because of my fatigue related disability. My current schedule
asks for me to work til 4:30 pm one or two days per week and
until 7 pm one day per week. This new schedule makes my
symptoms worse. My doctor had told me to work a schedule that
ends by 2:30 pm. I will work with my doctor to discuss if the
reduced schedule is still necessary during the next 8 months.
I still believe that you are able to provide me with a
schedule adjustment as a reasonable accommodation for my
disability. I don't believe that [a] request for shifts
that end by 2:30 pm is unreasonable or unworkable or places
an undue hardship on Hannaford. The only alternatives you
offered me were to resign, transfer to a part time job with
no guaranteed hours or benefits, or getting my doctor to
remove his recommendation for my schedule restriction. I am
very disappointed that my request was denied.
Please place me back on the schedule in my current role as
Assistant Meat Manager and provide me the necessary forms to
request reduced schedule FMLA.
(ECF No. 32, PageID # 568.) On the same day she received it,
Moryan faxed Morin's note to Shute. Shute understood that
Morin was asking for reduced schedule leave under the FMLA
that would allow him to finish work at 2:30 p.m. Shute told
Moryan that she would contact the legal department about
Morin's FMLA request and instructed Moryan to do nothing
until she heard back from Shute. Shute had previously
received FMLA training, knew that intermittent leave differs
from reduced schedule leave, and understood that reduced
schedule leave means that the employee works a consistently
February 19, 2016, Shute informed Davis and Moryan that a
request for intermittent FMLA leave for Morin should be
entered in Hannaford's system. Hannaford assigned
Morin's FMLA request to Lisa Cote, who was a Supervisor
in the Leave of Absence Administration at Delhaize America
(Hannaford's parent company). Cote had received FMLA
training and also knew the difference between intermittent
and reduced schedule leave. Specifically, Cote understood
that intermittent leave occurs at a certain frequency and for
a certain duration, while reduced schedule leave provides for
a consistent reduction in an employee's work schedule.
February 22, 2016, Hannaford sent Morin FMLA information and
forms, including a form titled “Certification of Health
Care Provider for Employee's Serious Health Condition
(Family and Medical Leave Act), ” which the parties
refer to as the “FMLA medical certification
form.” Hannaford subsequently received the completed
form from Dr. Dubocq, dated March 17, 2016, in which he
stated, in relevant part, that Morin suffers from severe
fatigue and pain that “consistently escalate by
mid-afternoon” and that “[w]hen this happens, he
is more prone to work-related injury, as well as inability to
perform his job duties.” (ECF No. 32-1, PageID # 608.)
Dr. Dubocq further stated that Morin “needs to be
completing his daily shift by 2:30 pm” and that this
would ensure that his “symptoms are averted, and he is
thus able to perform all of his job duties.”
(Id., PageID # 608.) The FMLA medical certification
form asked if Morin's medical condition would
“cause episodic flare-ups periodically preventing the
employee from performing [his] job functions.”
(Id., PageID # 609.) The form also asked for an
estimate of the frequency and duration of any such flare-ups.
A “flare-up” as that term was understood by Dr.
Dubocq when he completed the form involves symptoms so ...