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Morin v. Hannaford Bros. Co., LLC

United States District Court, D. Maine

June 7, 2018

JAI MORIN, Plaintiff,


          George Z. Singal United States District Judge

         Before 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.


         Generally, 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).

         The 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).

         Once 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).


         Plaintiff 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 issues.

         Approximately 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[1] lists the following under “Essential Job Functions”:

1. Role model outstanding, friendly customer service and use skills and knowledge to offer solutions that meet or exceed customers' expectations.
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 department records.
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 department.
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 company practices.
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.

         Hannaford's 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.)

         Prior 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[2] 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 Manager.

         One 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.

         After 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.

         On or 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.

         Linda 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.

         On 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.

         On 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.

         In a 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.)

         On 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.

         On 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.

         On 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 reduced schedule.

         On 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.

         On 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 ...

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