United States District Court, D. Maine
RYAN D. BURNETT, Plaintiff,
OCEAN PROPERTIES, LTD. and AMERIPORT, LLC, Defendant.
ORDER ON MOTION FOR SUMMARY JUDGMENT
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
disabled employee brings suit against his employer alleging
violations of the Americans with Disabilities Act (ADA), 42
U.S.C. §§ 12101 et seq., the Maine
Whistleblower Protection Act, 26 M.R.S. §§ 831
et seq., and the Maine Human Rights Act, 5 M.R.S.
§§ 4571 et seq. The Defendants move for
summary judgment on all claims. The employee has not
established a prima facie case of retaliation or
discrimination by disparate treatment because he did not
suffer an adverse employment action as a result of his
disability. The employer is entitled to summary judgment on
those claims. The employer, however, is not entitled to
summary judgment on one subset of the employee's claim
that it failed to reasonably accommodate his disability.
1, 2016, Ryan D. Burnett filed a complaint against Ocean
Properties Ltd. (Ocean Properties) and AmeriPort LLC
(AmeriPort) (collectively Defendants, AmeriPort),
he filed an amended complaint on September 26, 2016.
Compl. (ECF No. 1); First. Am. Compl. (ECF
No. 7) (Am. Compl.). On November 25, 2016, the
Defendants filed a partial motion to dismiss and a motion to
strike certain allegations in the Amended Complaint.
Defs.' Partial Mot. to Dismiss Pl.'s Am. Compl.
and Mot. to Strike Impertinent Allegations (ECF No. 19).
On April 11, 2017, the Court denied the motion to dismiss and
the motion to strike. Order on Mot. to Dismiss (ECF
November 13, 2017, AmeriPort filed a motion for summary
judgment and a statement of facts. Defs.' Mem. of Law
in Support of Mot. for Summ. J. (ECF No. 68);
Defs.' Statement of Material Facts (ECF No. 69)
(DSMF). They amended their motion on November 21, 2017.
Defs.' Am. Mem. of Law in Support of Mot. for Summ.
J. (ECF No. 71) (Defs.' Mot.).
December 29, 2017, Mr. Burnett filed responses to
AmeriPort's motion and the Defendants' statement of
facts. Pl.'s Opp'n to Summ. J. (ECF No. 75)
(Pl.'s Opp'n); Pl.'s Opposing and
Additional Statement of Material Facts at 1-22 (ECF No.
76) (PRDSMF). Mr. Burnett also filed additional statements of
fact. Pl.'s Additional Statement of Material
Facts at 22-33 (ECF No. 76) (PSAMF).
January 23, 2018, AmeriPort replied to Mr. Burnett's
response and Mr. Burnett's additional statements of fact.
Defs.' Reply in Support of Mot. for Summ. J.
(ECF No. 79) (Defs.' Reply); Defs.'
Reply to Pl.'s Additional Statement of Facts in Opp'n
to Defs.' Mot. for Summ. J. (ECF No. 80) (DRPSAMF).
STATEMENT OF FACTS
Properties is a duly authorized Maine business corporation
that operates numerous hotels nationwide, including the Sable
Oaks Marriott in South Portland. Am. Compl.
¶ 4. Ocean Properties has employed more than
500 employees nationwide in each of twenty or more calendar
weeks in the current and preceding calendar years. Am.
Compl. ¶ 16. Ocean Properties is one of the largest
and most dynamic privately held hotel management and
development companies in North America, with an award-winning
portfolio of over 100 hotels and 17, 000 guestrooms. PSAMF
¶ 47; DRPSAMF ¶ 47.
Properties calls the Sable Oaks Marriott
“AmeriPort”. Am. Compl. ¶ 5.
AmeriPort is a former New Hampshire Limited Liability Company
no longer authorized to do business in either Maine or New
Hampshire. Am. Compl. ¶ 11. AmeriPort, LLC has
been administratively dissolved and has not filed an annual
report since 2011. Am. Compl. ¶ 12.
Burnett resides in the town of Eliot, Maine. Am.
Compl. ¶ 3. Mr. Burnett worked in Ocean
Properties' Portland reservation center, located at
various times in several locations in the Sable Oaks
properties in South Portland. Am. Compl. ¶¶
6-7. Mr. Burnett is paralyzed from the T-9 level of his spine
and below. DSMF ¶ 5; PRDSMF ¶ 5. Mr. Burnett has
used a wheelchair for his entire adult life and uses a truck
with a specially designed chair lift for transportation. DSMF
¶ 5; PRDSMF ¶ 5. Mr. Burnett cannot park in a
regular spot because his truck has a wheelchair lift on the
driver's side that assists him with loading and unloading
his chair. PSAMF ¶ 6; DRPSAMF ¶ 6. This takes up
nearly another whole parking spot on his driver's side,
and if a car parked beside him unaware of this issue, Mr.
Burnett would not be able to get back into his vehicle. PSAMF
¶ 6; DRPSAMF ¶ 6. Due to his paralysis, Mr. Burnett
has no control over his bowel movements. DSMF ¶ 6;
PRDSMF ¶ 6.
16, 2009, Ocean Properties hired Mr. Burnett to work as a
Reservations Agent at a call center. DSMF ¶ 1; PRDSMF
¶ 1. The call center was initially located in the
basement of the Holiday Inn & Suites near the Sable Oaks
Marriot. DSMF ¶ 1; PRDSMF ¶ 1; PSAMF
¶ 1; DRPSAMF ¶ 1. As a Reservations Agent, Mr.
Burnett was responsible for taking calls for reservations at
various hotels across the country. DSMF ¶ 3; PRDSMF
¶ 3. Mr. Burnett's disability was apparent at the
time AmeriPort hired him. DSMF ¶ 6; PRDSMF ¶ 6.
Burnett reported directly to several supervisors during his
time as a Reservations Agent. DSMF ¶ 3; PRDSMF ¶ 3.
Until the last eight months of his employment, Mr.
Burnett's supervisor was Lori Darsaoui. DSMF ¶ 3;
PRDSMF ¶ 3. Ms. Darsaoui is the payroll administrator
for AmeriPort, Sable Golf, LLC, and GHM Portland Holiday Inn,
LLC. PSAMF ¶ 8; DRPSAMF ¶ 8.
Darsaoui's supervisor was Vice President of Revenue
Management, Joyce Dawson. DSMF ¶ 4; PRDSMF ¶ 4. Ms.
Dawson is the person at the top of the organizational chart
for the entity referred to as AmeriPort. PSAMF ¶ 7;
DRPSAMF ¶ 7. Ms. Dawson also works for another entity
called “PCFSI” with the title Vice President of
Revenue Management. PSAMF ¶ 7; DRPSAMF ¶ 7. Ms.
Dawson's supervisor is Tom Varley, who works for one of
Defendants' affiliates. PSAMF ¶ 9; DRPSAMF ¶
The Locked Rear Entrance at the Holiday Inn
Mr. Burnett's place of employment in 2009 was inside a
hotel, he expected that it would be wheelchair accessible at
all times, without the need for him to request an
accommodation. PSAMF ¶ 2; DRPSAMF ¶ 2. The
first day Mr. Burnett went to work in the reservation call
center, the door near the handicapped accessible ramp in the
back of the building was locked. PSAMF ¶ 3; DRPSAMF
¶ 3. Mr. Burnett had to wheel his chair across the lawn,
approximately fifty feet, over uneven ground, not an easy
task for someone in a wheelchair. PSAMF ¶ 4; DRPSAMF
¶ 4. Mr. Burnett would have accessed the employee
entrance for the reservation agents working in the basement
of the Holiday Inn via the sidewalk instead of wheeling
across the lawn, but he could not because there was a
six-inch curb to get up over. PSAMF ¶ 5; DRPSAMF ¶
Darsaoui informed Mr. Burnett that he could use the
handicapped accessible ramp at the rear entrance of the hotel
if he chose to do so. DSMF ¶ 53; PRDSMF ¶ 53.
AmeriPort provided Mr. Burnett a keycard to access the rear
door, though he alleges that sometimes the keycard did not
function properly. DSMF ¶ 53; PRDSMF ¶ 53. When
his keycard did not work properly, Mr. Burnett would resolve
the situation by tugging at the door until “it would
pop.” DSMF ¶ 54; PRDSMF ¶ 54. Mr. Burnett
stated that he could have used the front entrance to enter
the building rather than “pop” the door, but only
if the single handicapped parking spot near the front of the
building was available. DSMF ¶ 55; PRDSMF ¶ 55.
the head of maintenance, Walter Reiter III, discovered the
door needed to be replaced due to Mr. Burnett's tugging,
he told Mr. Burnett “the next time we have to replace
the door, it is coming out of your salary.” DSMF ¶
54; PRDSMF ¶ 54. Mr. Burnett had not yet made any
complaints of discrimination, he had never talked with Mr.
Reiter before the incident, and he had never requested
anything of Mr. Reiter previously, and he only knew Mr.
Reiter in passing. DSMF ¶ 56; PRDSMF ¶
Mr. Burnett informed Ms. Dawson of the incident, an
accommodation was made to forego the keycard access and leave
the door unlocked after 6 a.m. for Mr. Burnett's access.
DSMF ¶ 58; PRDSMF ¶ 58. According to Mr. Burnett,
this was the accommodation that he wanted from AmeriPort, as
he had asked for the door to be unlocked before that
point. DSMF ¶ 58; PRDSMF ¶ 58.
Darsaoui described Mr. Reiter's behavior toward Mr.
Burnett as “inappropriate and unprofessional.”
PSAMF ¶ 29; DRPSAMF ¶ 29. Ms. Darsaoui does not
recall whether Mr. Reiter received corrective action but said
that if he had, it would be in his personnel
file. PSAMF ¶ 29; DRPSAMF ¶ 29.
Although Mr. Burnett was not sure who spoke to the head of
maintenance about the incident, Mr. Reiter later came and
apologized to Mr. Burnett for the manner in which he handled
having to replace the door. DSMF ¶ 59; PRDSMF ¶ 59.
The Blocked Ramp at the Holiday Inn
occasion in 2012, a handicapped guest had parked in the
handicap loading/unloading zone while Mr. Burnett was trying
to leave work, which blocked Mr. Burnett from using the
access ramp and forced him to use another exit point to get
to his vehicle. DSMF ¶ 40; PRDSMF ¶ 40. After
he reported the issue to Ms. Darsaoui, Mr. Burnett was
dissatisfied that Ms. Darsaoui did not have the guest's
car towed or ticketed. DSMF ¶ 41; PRDSMF ¶ 41.
occasion, Ms. Darsaoui believed a guest with a handicapped
sticker was parked in a handicapped spot in the back of the
building, and she told Mr. Burnett, “I couldn't
prevent someone who was a guest at the hotel and had a
handicapped accessible designation on their vehicle from
parking there. I can't control that.” PSAMF ¶
30; DRPSAMF ¶ 30. Ms. Darsaoui did not see the
guest's vehicle that was blocking the ramp; she instead
relied on the general manager who told her that “the
guest was legitimately in the parking spot.” PSAMF
¶ 31; DRPSAMF ¶ 31. However, the issue was not that
a guest was parked in a handicapped parking space, it was
that the guest had parked in a loading/unloading zone and
completely blocked the handicapped ramp to the back-door
entrance, so that Mr. Burnett could not access the
ramp. PSAMF ¶ 32; DRPSAMF ¶ 32.
was the only occasion during Mr. Burnett's seven years
with AmeriPort where he reported that the loading/unloading
zone was blocked and the only occasion where a guest
completely blocked the access ramp. DSMF ¶ 41; PRDSMF
¶ 41. Mr. Burnett testified that access to the ramp was
partially obstructed on other occasions, but he was able to
get around the obstruction and did not report those
incidents.PRDSMF ¶ 41. Prior to the time that
the guest blocked the handicapped ramp, it was up to Mr.
Burnett to come to his supervisor to report accessibility
issues.PSAMF ¶ 34; DRPSAMF ¶ 34.
The Snowstorm Incident
December 30, 2012, there was a snowstorm, and by the time Mr.
Burnett reported to work at the Holiday Inn location the
following morning, on December 31, 2012, the rear access ramp
had not been completely shoveled. DSMF ¶ 43; PRDSMF
¶ 43. The front entrance to the hotel was shoveled, but
the handicap parking spots at the front of the building were
full. DSMF ¶¶ 43, 45; PRDSMF
¶¶ 43, 45. Mr. Burnett did not attempt to park and
enter through the front entrance of the building and instead
went home. DSMF ¶ 44; PRDSMF ¶ 44.
same day, on December 31, 2012, Mr. Burnett reported to Ms.
Darsaoui that he had an issue accessing the building to get
to work following the snowstorm in which the walkways and
ramps were not cleared. PSAMF ¶ 36; DRPSAMF ¶ 36.
Mr. Burnett told Ms. Darsaoui that “honestly this is
not the first time” he had encountered issues with
“access to the building.” PSAMF ¶
37; DRPSAMF ¶ 37. Mr. Burnett offered that Ms. Darsaoui
could contact his vocational rehab counselor at the
Department of Labor for more information. PSAMF ¶ 38;
DRPSAMF ¶ 38.
January 2, 2013, Mr. Burnett submitted a “missed
punch” form to Ms. Darsaoui requesting that he be
compensated for the December 31, 2012 shift he did not work.
DSMF ¶ 46; PRDSMF ¶ 46. Ms. Darsaoui responded to
Mr. Burnett by telling him that he is permitted to park under
the canopy at the main entrance of the hotel and enter
through the main lobby. DSMF ¶ 47; PRDSMF ¶ 47.
This was the first time anyone mentioned to Mr. Burnett that
he was permitted to park underneath the canopy. PSAMF ¶
33; DRPSAMF ¶ 33. Ms. Darsaoui also reminded Mr. Burnett
that he was free to park in any of the hotel's
handicapped parking spots in the front or rear of the hotel
if needed. DSMF ¶ 47; PRDSMF ¶ 47.
Mr. Burnett complained that he could not access the building
on or about December 31, 2012, Ms. Darsaoui believed that he
had arrived to work, saw that the back of the building was
not cleared of snow, left work without trying to access the
building in the front, and then asked to be paid for the day.
PSAMF ¶ 39; DRPSAMF ¶ 39. Ms. Darsaoui does not
know whether Mr. Burnett tried to access the front of the
building after the snowstorm on December 31, 2012, and she
did not find out before concluding that “he didn't
work, which is why he was not paid for the
day.”PSAMF ¶ 40; DRPSAMF ¶ 40. Ms.
Darsaoui believes that if a snowstorm makes it difficult for
an employee like Mr. Burnett to travel and access the
workplace, “it would be the employee's
responsibility” to call and “discuss with us if
there were individual situations that needed an
accommodation.” PSAMF ¶ 41; DRPSAMF ¶ 41.
though Ms. Darsaoui knows that Mr. Burnett cannot physically
walk and, therefore, must wheel his chair through snow when
there is a significant storm in order to get to and from
work, Ms. Darsaoui would need more information to know
whether this would be a reason to excuse him from being
absent from work due to snow. PSAMF ¶ 42; DRPSAMF ¶
42. Some of the questions Ms. Darsaoui would want answered
about whether absence due to a snowstorm is
disability-related include: “where the issue was, if it
was at the home, if it was at the workplace, what the issue
was.” PSAMF ¶ 43; DRPSAMF ¶ 43. However,
although Ms. Darsaoui called Mr. Burnett and left voicemails
after he did not arrive for his shift, she never had a
conversation about the reason Mr. Burnett needed to miss work
due to a snowstorm. PSAMF ¶ 44; DRPSAMF ¶ 45.
Dawson said that in the event of snowstorms presenting access
challenges, she would work hard to make sure that snow would
be removed so that an employee like Mr. Burnett would be able
to access the building and be able to work, and that she
“can't understand a situation where we wouldn't
be able to get the snow removed so someone could enter a
building.” PSAMF ¶ 35; DRPSAMF ¶ 35. This
was the only incident in Mr. Burnett's nearly seven years
with AmeriPort that he could not access the building due to
snow. DSMF ¶ 48; PRDSMF ¶ 48.
Moving Mr. Burnett's Truck for a Kitchen
months later, in the spring of 2013, a maintenance employee
and a morning cook told Mr. Burnett that there was a
scheduled kitchen delivery and he needed to move his truck
from under the hotel's front entrance canopy or it would
be towed. DSMF ¶ 50; PRDSMF ¶ 50. The
employees indicated that the directive came from General
Manager Jason Bartlett, although Mr. Bartlett was not with
the employees when they told Mr. Burnett to move his truck,
nor did Mr. Burnett speak with Mr. Bartlett about it
afterward. DSMF ¶ 50; PRDSMF ¶ 50.
AmeriPort management personnel witnessed this incident, but
Mr. Burnett did tell a shift supervisor about it before
leaving work that day. DSMF ¶ 51; PRDSMF ¶ 51.
The Bathroom at the Golf Club Location
December 2013, AmeriPort moved from the Holiday Inn at 303
Sable Oaks Drive to 505 Country Club Drive in South Portland,
Maine. DSMF ¶ 61; PRDSMF ¶ 61. In November 2013,
before the move, some AmeriPort employees went to the new
location for a training session, and Mr. Burnett notified
another employee, who in turn notified Ms. Darsaoui, that the
restroom was not wheelchair accessible.PRDSMF ¶
62. After the move, Mr. Burnett emailed Ms. Darsaoui on
Christmas Eve, December 24, 2013, indicating that the new
building's bathrooms were not wheelchair
accessible. DSMF ¶ 62; PRDSMF ¶ 62. The
same day, Ms. Darsaoui forwarded his email to Ms. Dawson, and
by December 26, 2013, AmeriPort representatives were working
to address the issues, including the ordering of additional
handicap parking signs. DSMF ¶ 62; PRDSMF ¶ 62.
placed Mr. Burnett on leave until it was able to make the
changes to the restroom that Mr. Burnett
needed. DSMF ¶ 63; PRDSMF ¶ 63. Ms.
Darsaoui called him and left a voicemail saying that she
wanted to discuss the accessibility issues to “make
sure [AmeriPort] got it done right.” DSMF ¶ 63;
PRDSMF ¶ 63. Prior to his return to work, Mr. Burnett
was contacted and asked to inspect the bathroom with
contractor Mark Mooney. DSMF ¶ 63; PRDSMF ¶ 63. Mr.
Burnett told Mooney that “this will be fine for what I
need it for.” DSMF ¶ 63; PRDSMF ¶ 64.
AmeriPort also installed several new handicapped parking
spaces. DSMF ¶ 63; PRDSMF ¶ 63.
The Wooden Doors and Handicapped Parking Spaces at the
Golf Club Location
December 24, 2013 email, Mr. Burnett also indicated that
there was an insufficient number of handicapped parking
spaces at the new location. DSMF ¶ 62; PRDSMF ¶ 62.
Mr. Burnett said that there were at least three employees who
needed to use handicapped spaces and only one handicapped
parking space available.PSAMF ¶ 48; DRPSAMF ¶ 48.
Ms. Dawson does not know how many handicapped spots were
available in the old building. PSAMF ¶ 48; DRPSAMF
December 24, 2013 email, Mr. Burnett also noted that the
wooden doors at the front lobby of AmeriPort's new
location were not automatic. DSMF ¶ 64; PRDSMF ¶
65. Mr. Burnett sometimes had difficulty opening these doors
if he had his “lunch pail, morning coffee, smoothie or
whatever” in one hand. DSMF ¶ 64; PRDSMF ¶
65. Even without an object in hand, it was sometimes still a
struggle for Mr. Burnett to use the doors. PRDSMF ¶ 65.
Mr. Burnett was unaware of whether these doors met the
push/pull requirements of the ADA. DSMF ¶ 65; PRDSMF
Dawson forwarded Mr. Burnett's email about the men's
restroom, the heavy wood doors, and the lack of handicapped
parking spaces to Tom Varley, who asked Ms. Dawson to
“get with Ed”-an employee of the Marriott-to
“order handicapped parking signs.” PSAMF ¶
49; DRPSAMF ¶ 49. Tom Varley gets paid by Hotel
Providers, and his salary is charged back to PCFSI in order
to shield his salary. PSAMF ¶ 50; DRPSAMF ¶ 50. In
the email responding to Mr. Burnett's accessibility
complaints, Tom Varley said he would “get with [B]illy
we will need to address it all.” PSAMF ¶ 51;
DRPSAMF ¶ 51. Mr. Varley copied Cedric Rothkegel on this
email, the manager of the HR department at PCFSI. PSAMF
¶ 52; DRPSAMF ¶ 52.
August 28, 2014, Mr. Burnett sent a message to Nick
Robertshaw requesting “that we need to put push button
automatic doors in for the entry of [the] building, ”
because the doors were heavy, and “hard to hold
open” when Mr. Burnett would push himself through
“without them closing” on him. PSAMF ¶ 53;
DRPSAMF ¶ 53. At the time of the August 28, 2014
message, Mr. Robertshaw would have been one of Mr.
Burnett's direct reservation supervisors he reported to
on a day to day basis. PSAMF ¶ 54; DRPSAMF ¶ 54.
Ms. Dawson has no specific recollection of anyone saying to
her that they followed up with Mr. Burnett about the heavy
doors. PSAMF ¶ 55; DRPSAMF ¶ 55.
Darsaoui asked a contractor who works for Defendants, Mark
Mooney, whether the doors were ADA compliant. PSAMF ¶
56; DRPSAMF ¶ 56. Mr. Mooney did not respond to Ms.
Darsaoui's inquiry about this issue for twenty days.
PSAMF ¶ 57; DRPSAMF ¶ 57. On September 10, 2014,
Ms. Darsaoui followed up with contractor Mark Mooney to
determine whether the set of large wooden doors to enter the
lobby of the hotel's clubhouse were compliant with the
ADA, and Mooney responded, “as constructed when the
building was built, yes.” DSMF ¶ 66; PRDSMF
¶ 67; PSAMF ¶ 58; DRPSAMF ¶ 58. Ms. Darsaoui
does not know what steps were taken to make the doors ADA
compliant, or whether a study was conducted to test the
push/pull weight of the doors. PSAMF ¶ 59; DRPSAMF
¶ 59. Ms. Darsaoui does not recall having a conversation
with Mr. Burnett responding to his complaint about the heavy
wood doors. PSAMF ¶¶ 59, 62; DRPSAMF
¶¶ 59, 62; Mr. Burnett hurt himself trying to open
the heavy wood doors that he had complained about and had
asked to have replaced. PSAMF ¶ 60; DRPSAMF ¶ 60.
doors were installed after Mr. Burnett's
resignation. DSMF ¶ 67; DRPSMF ¶ 68.
Questioning about Time Spent in the Bathroom
Amended Complaint, Mr. Burnett alleged that he was
“humiliated” after his then-manager was critical
for his taking too long to use the bathroom during a shift.
DSMF ¶ 68; PRDSMF ¶ 69. This discussion took place
in one of Mr. Burnett's supervisor's office at the
start of his annual performance review. DSMF ¶ 69;
PRDSMF ¶ 70. Mr. Burnett's supervisor asked whether
it took him longer than most to use the restroom. DSMF ¶
69; PRDSMF ¶ 70. When he responded “yes, ”
the manager said that she would not ask him any further
questions due to medical privacy laws, but she may need a
doctor's note to verify his statement. DSMF ¶
69; PRDSMF ¶ 70.
supervisor continued Mr. Burnett's annual performance
review and, according to Mr. Burnett, there was nothing
discriminatory or concerning about the rest of the
review. DSMF ¶ 70; PRDSMF ¶ 71. In
fact, Mr. Burnett received the highest score of his AmeriPort
career in his 2014 performance review. DSMF ¶ 70; PRDSMF
¶ 71. The subject of time spent in the bathroom was
never brought up again. DSMF ¶ 69; PRDSMF ¶ 70.
The Unexpected Elevator Malfunction
about February 20, 2015, AmeriPort's elevator at its new
location was improperly locked and was inaccessible to anyone
using it. DSMF ¶ 72; PRDSMF ¶ 73. Mr. Burnett
reported to work that morning and was informed by his morning
supervisor that the elevator was out of service. DSMF ¶
72; PRDSMF ¶ 73. Mr. Burnett was sent home because the
elevator needed to be repaired. DSMF ¶ 72; PRDSMF
¶ 73. Later that day, Ms. Darsaoui called Mr. Burnett
stating that the elevator had been fixed and that he would be
compensated for the four hours the elevator was out service,
due to the inconvenience of having to come into work and then
being sent home. DSMF ¶ 73; PRDSMF ¶ 74. Mr.
Burnett told Ms. Darsaoui that he was not coming back in to
work on the day that the elevator was down because “he
was back at home” by the time the elevator was fixed,
and “it was a very long distance.” PSAMF ¶
70; DRPSAMF ¶ 70.
days later, on February 24, 2015, Mr. Burnett sent a message
to Ms. Dawson via AmeriPort's instant messaging system.
DSMF ¶ 74; PRDSMF ¶ 75. Mr. Burnett stated that Ms.
Darsaoui informed him that he would be paid for four hours of
the scheduled seven hour shift, even though no actual work
was performed. DSMF ¶ 74; PRDSMF ¶ 75. However, Mr.
Burnett complained that he should have been paid the full six
and a half hours (seven hours less a half-hour lunch break)
that he would have been paid had the elevator been in
service. DSMF ¶ 75; PRDSMF ¶ 76.
February 24, 2015, Mr. Burnett sent a message to Ms. Dawson
explaining that the elevator was not working “last
Friday, ” when he was scheduled to work from 7 am to 2
pm. PSAMF ¶ 63; DRPSAMF ¶ 63. Mr. Burnett's
message to Ms. Dawson further explained that his supervisor,
Nick Robertshaw, was notified, and Mr. Robertshaw told Mr.
Burnett to “go home” because “there was
nothing he could do.” PSAMF ¶ 64; DRPSAMF ¶
64. Mr. Burnett filled out a “missed punch” for
the 7-hour shift that he missed. PSAMF ¶ 65; DRPSAMF
one week after the February 20, 2015 incident with
AmeriPort's elevator, Ms. Dawson held a meeting with Ms.
Darsaoui and Mr. Burnett to discuss his concerns with being
paid for the full seven-hour shift. DSMF ¶ 76; PRDSMF
¶ 77. During the meeting, Ms. Dawson explained to Mr.
Burnett that sometimes things were going to happen out of
AmeriPort's control, but if Mr. Burnett would work with
them, they could find solutions to overcome these
problems. DSMF ¶ 77; PRDSMF ¶ 78. Ms.
Dawson recalled telling him that, because he was able to come
back to work, “we were going to pay him for . . . the
inconvenience of when he couldn't come to work and he was
able to work the rest of his shift.” PSAMF ¶ 67;
DRPSAMF ¶ 67. Mr. Burnett explained to Ms. Dawson that
the situation was something beyond his control, and
“not the first time” he had lost hours due to
something out of his control. PSAMF ¶ 66; DRPSAMF ¶
66. Mr. Burnett therefore requested to be paid for
six-and-one-half hours (seven hours, minus a lunch break).
PSAMF ¶ 66; DRPSAMF ¶ 66. Ms. Dawson told Mr.
Burnett that she was going to request he be paid for four
hours, but not the seven he would have worked. PSAMF ¶
65; DRPSAMF ¶ 65.
Dawson's conversation with Mr. Burnett about not being
paid for his full shift due to the elevator malfunction was
very brief. PSAMF ¶ 73; DRPSAMF ¶ 73. In making the
decision to pay Mr. Burnett for less than the entire shift,
Ms. Dawson did not take into consideration where or how far
away he lived, and did not recall having a conversation with
Mr. Robertshaw or Ms. Darsaoui about the issue. PSAMF
¶¶ 68; DRPSAMF ¶¶ 68, 69. Although Mr.
Burnett complained that it was “not the first
time” things had happened that were out of his control,
Ms. Dawson did not undertake an investigation into that
complaint. PSAMF ¶ 73; DRPSAMF ¶ 73.
particular occasion, AmeriPort decided to pay Mr. Burnett for
the four hours that the elevator was out service due to
inconvenience of Mr. Burnett having to report to work, but
not for the full shift. DSMF ¶ 77; PRDSMF ¶ 78;
PSAMF ¶ 71; DRPSAMF ¶ 71. Ms. Dawson knew that Mr.
Burnett was displeased with the decision to not pay him for
the entire missed shift. PSAMF ¶ 72; DRPSAMF ¶ 72.
The Expected Elevator Repairs
around March of 2015, AmeriPort informed its employees that
its elevator would be out of service for a couple of weeks
due to a repair to begin on May 26, 2015. DSMF ¶ 79;
PRDSMF ¶ 80. One employee in addition to Mr. Burnett
required the elevator to work on the second floor. DSMF
¶ 79; PRDSMF ¶ 80. During the repair, Mr. Burnett
and the other employee were placed in a workspace on the
first floor.DSMF ¶ 79; PRDSMF ¶ 80. Mr.
Burnett was asked to do a walkthrough of the workspace to
determine if it met his needs. DSMF ¶ 80; PRDSMF ¶
81. Mr. Burnett noted that his desk was not accessible due to
its height. DSMF ¶ 80; PRDSMF ¶ 81. Mr. Burnett
reported the issue to Shift Leader Eric Meserve, who in turn
reported the issue to Ms. Darsaoui. DSMF ¶ 80; PRDSMF
¶ 81. Maintenance Specialist Dwayne Haskell was also
aware. DSMF ¶ 80; PRDSMF ¶ 81.
2, 2015, the elevator quit working, and the scheduled
elevator repair was suddenly moved up from May 26, 2015 to
May 5, 2015. DSMF ¶ 81; PRDSMF ¶ 82. Mr. Burnett
was scheduled to work on May 5, 2015, and when he reported to
the new workspace that day, there was an issue with the desk.
DSMF ¶ 81; PRDSMF ¶ 82. When Mr. Burnett noted the
issue, the desk was fixed the same day. DSMF ¶
81; PRDSMF ¶ 82. AmeriPort also staggered Mr.
Burnett's and his coworkers' schedules, at Mr.
Burnett's request, to provide more room in the temporary
workspace. DSMF ¶ 81; PRDSMF ¶ 82.
AmeriPort also informed the custodial employee to ensure that
the door to the pro shop was unlocked so that Mr. Burnett had
access to the handicapped accessible restroom there. DSMF
¶ 82; PRDSMF ¶ 83.
Burnett's was not satisfied with the situation because he
felt segregated, had to ask a supervisor to bring him water,
and the company “could have had a microwave available
or something of this sort” since the breakroom was on
an upper level. DSMF ¶ 83; PRDSMF ¶ 84.
However, Mr. Burnett never requested a
microwave. DSMF ¶ 83; PRDSMF ¶ 84.
AmeriPort created a makeshift break area for Mr. Burnett in
the pro shop, but because it was sometimes locked, he could
not always access it, and when it was locked, he did not ask
anyone to unlock it. DSMF ¶ 84; PRDSMF ¶ 85. When
asked during his deposition whether there was anything Mr.
Burnett requested while he was in the temporary workspace
that he had not received, Mr. Burnett responded,
“No.” DSMF ¶ 85; PRDSMF ¶ 86.
Attendance and Tardiness Issues
Requests for Time Off in Advance
an employee needed two or more consecutive shifts off from
work, AmeriPort's policy provided that the employee could
request in advance not to be put on the
schedule. DSMF ¶ 14; PRDSMF ¶ 14. Mr.
Burnett availed himself of this policy on several occasions
during his employment with AmeriPort. DSMF ¶ 14; PRDSMF
¶ 14. On at least two occasions in 2012 and 2013, Mr.
Burnett requested time off in advance specifically to address
issues relating to his disability. DSMF ¶ 14; PRDSMF
¶ 14. Both requests were approved without
issue. DSMF ¶ 14; PRDSMF ¶ 14.
Throughout his employment with AmeriPort, Mr. Burnett also
took time off for doctor's appointments. DSMF ¶ 14;
PRDSMF ¶ 14. AmeriPort approved all of Mr. Burnett's
requests, when the requests were in advance and were for
reasons related to his disability. DSMF ¶ 15; PRDSMF
¶ 15. Mr. Burnett was also never disciplined for taking
time off with advance notice due to his
disability. DSMF ¶ 16; PRDSMF ¶ 16. In or
around the beginning of 2014, AmeriPort switched to an
electronic system for time off requests. DSMF ¶ 17;
PRDSMF ¶ 17. Mr. Burnett availed himself of this system
several times for, among other things, medical issues related
to his disability. DSMF ¶ 17; PRDSMF ¶ 17. Mr.
Burnett testified that he never had any issues with
requesting time in advance off due to a medical condition or
his disability. DSMF ¶ 17; PRDSMF ¶ 17.
Tardiness Issues without Advance Notice
maintained a call out policy which required any employee
unable to come to work to call out for his or her shift at
least two hours prior to the start of the shift, absent an
emergency. DSMF ¶ 11; PRDSMF ¶ 11.
AmeriPort's call-out policy also provided that if the
employee had any questions or concerns, the employee should
contact his or her direct supervisor or Human Resources
Manager. DSMF ¶ 13; PRDSMF ¶ 13. Mr. Burnett admits
that being on time for his shift was an important part of his
job. DSMF ¶ 26; PRDSMF ¶ 26. The
Reservations Agent job description also provided that Mr.
Burnett was required to arrive to work on time. DSMF ¶
26; PRDSMF ¶ 26. AmeriPort enforces its attendance
policy for all employees, including its reservation
agents. DSMF ¶ 30; PRDSMF ¶ 30.
Burnett generally worked AmeriPort's opening shift from 7
a.m. to 3 p.m. DSMF ¶ 27; PRDSMF ¶ 27. If Mr.
Burnett was absent, there may not have been sufficient
capacity to receive a customer's reservation or inquiry,
as there were often only three to four individuals assigned
to the morning shifts. DSMF ¶ 28; PRDSMF ¶ 28. On
other occasions, there was only one other reservation agent
in the office when Mr. Burnett arrived to work. DSMF ¶
28; PRDSMF ¶ 28.
Burnett received several corrective actions during his
employment with AmeriPort for various issues, including
reporting late to work. DSMF ¶ 18; PRDSMF ¶ 18.
AmeriPort documented Mr. Burnett's full attendance record
in his corrective actions, including days he called out and
was excused. DSMF ¶ 23; PRDSMF ¶ 23; PSAMF
¶¶ 18-19; DRPSAMF ¶¶ 18-19. Specifically,
Mr. Burnett received corrective actions on: (1) August 13,
2009; (2) September 27, 2010; (3) November 30, 2010; (4)
March 25, 2012; (5) June 24, 2012; (6) August 6, 2012; (7)
August 13, 2014; (8) October 12, 2014; (9) March 17, 2015;
and (10) December 14, 2015. DSMF ¶ 18; PRDSMF ¶ 18.
The corrective actions Mr. Burnett received on September 27,
2010; March 25, 2012; June 24, 2012; August 13, 2014; and
March 17, 2015, all related to Mr. Burnett's tardiness
and absenteeism from work. DSMF ¶ 19; PRDSMF ¶ 19.
Each corrective action had a space for associate comments
where Mr. Burnett could have reported that his tardiness was
related to his disability, but Mr. Burnett never reported any
such comments. DSMF ¶ 31; PRDSMF ¶ 31.
corrective action Mr. Burnett received on September 27, 2010,
his full attendance record over the past 60 days was
documented, including the July 12, 2010, tardy that was
labeled “excused” and the July 17, 2010 tardy
labeled “(chair lift) excused.” DSMF ¶
25; PRDSMF ¶ 25. During a two-month period in 2010, Mr.
Burnett was late to or absent from his shift twenty-five
times. DSMF ¶ 20; PRDSMF ¶ 20. Most
employees do not like to be written up, especially for things
out of their control, such as a wheelchair lift issue in Mr.
Burnett's truck causing him to miss work. PSAMF ¶
16; DRPSAMF ¶ 16.
first corrective action dated September 27, 2010, AmeriPort
stated: “If Ryan needs to adjust his availability in
order to avoid be[ing] tardy he should consider this option
right away.” DSMF ¶ 21; PRDSMF ¶ 21. Mr.
Burnett never requested a different schedule; he preferred
the 7 a.m. shift. DSMF ¶ 22; PRDSMF ¶ 22; DSMF
¶ 36; PRDSMF ¶ 36.
December 2014, Mr. Burnett received a positive performance
review, earning a 3.5 out of a possible 5 points in his
evaluation-the highest score Mr. Burnett had ever achieved
during his employment with AmeriPort. DSMF ¶ 34; PRDSMF
¶ 34. Under the section entitled “Developmental
Areas: What Specific Aspects of Performance Need Improvement,
” Mr. Burnett's then office manager, Laura
Chakirelis, wrote that “Ryan has a habit of being late
to work which is beginning to become a consistant (sic)
occurance (sic).” DSMF ¶ 34; PRDSMF ¶ 34. In
this performance review, AmeriPort again suggested that if he
could not arrive to work on time, Mr. Burnett should alter
his availability to better suit his personal schedule. DSMF
¶ 35; PRDSMF ¶ 35. Mr. Burnett testified that he
found nothing in this performance review to be
discriminatory. DSMF ¶ 35; PRDSMF ¶ 35.
Burnett testified that he often would tell his supervisors
that he was absent for “personal” reasons or
“medical” reasons, depending on his comfort level
with that supervisor. DSMF ¶ 38; PRDSMF ¶¶
38-39. Mr. Burnett claimed that on some days when he had
bladder or bowel function issues, he would not be able to
attend work for the day because the “personal issue
usually last[ed] 24 to 48 hours that I needed to deal with
and take care of myself and make sure I stay[ed]
clean.”DSMF ¶ 37; PRDSMF ¶ 37. Mr.
Burnett testified that when he had an issue related to his
disability, he would say it was “personal” or
“medical” and if he was sick, he would say he was
“sick.” Notice of Filing Attach 1
Dep. of Ryan D. Burnett (ECF No. 67) 118:24-120:9
(Burnett Dep.). Mr. Burnett testified that he did
not tell anybody that the word “personal” or
“medical” meant it was related to his
disability. Burnett Dep. 118:24-120:9; DSMF ¶
39; PRDSMF ¶ 39.
Darsaoui discussed with Ms. Dawson that disability-related
absences like when Mr. Burnett could not get to work because
his handicapped accessible truck broke down and a part had to
be replaced should not “count” as part of his
corrective action, but they did not discuss whether such
disability-related reasons for being absent should be
“on the corrective action form.” PSAMF ¶
17; DRPSAMF ¶ 17. Other than when she met with Mr.
Burnett to give him employee discipline, Ms. Darsaoui never
approached Mr. Burnett privately to ask him what was going on
with his attendance, and she was not the person he was
supposed to speak with when he called out for a particular
shift. PSAMF ¶ 21; DRPSAMF ¶ 21. Mr.
Burnett never expressed to Ms. Darsaoui that his tardiness
had anything to do with his disability.DSMF ¶
33; PRDSMF ¶ 33. Mr. Burnett never told Ms. Darsaoui nor
Ms. Dawson that he had no control over his bowel movements
during his employment. DSMF ¶ 6; PRDSMF ¶ 6.
of the reason Mr. Burnett provided to his shift supervisor
when he called out from work, Ms. Dawson would not be
notified of the reason for the callout, including when the
callouts were the basis for employee
discipline. PSAMF ¶ 23; DRPSAMF ¶ 23. Ms.
Dawson does not recall “anyone specifically coming to
[her] and saying Mr. Burnett is late all time.” PSAMF
¶ 24; DRPSAMF ¶ 24.
Burnett testified at his deposition that he could not
identify any specific dates on which he believes he was
unfairly or discriminatorily disciplined for
disability-related problems, and which dates in his
corrective actions were unrelated to his
disability. DSMF ¶ 24; PRDSMF ¶ 24. Mr.
Burnett testified that he does not know how AmeriPort was
supposed to address his attendance issues. DSMF ¶
29; PRDSMF ¶ 29. Mr. Burnett said he never told anyone
he felt he was being discriminated against when he received
the corrective actions. DSMF ¶ 32; PRDSMF ¶ 32.
Work for Another Department
around June 2015, Mr. Burnett went to work for the Foreign
Independent Travel (FIT) Department, where he predominantly
took online reservations booking for tour groups, rather than
predominantly answering phone calls. DSMF ¶ 7; PRDSMF
¶ 7. During this time, Mr. Burnett reported to FIT
manager Paul Levine. DSMF ¶ 7; PRDSMF ¶ 7.
Burnett did not have any concerns or corrective actions
during his months working in the FIT department, and his
manager addressed any issues he had.DSMF ¶ 8; PRDSMF
¶ 8. Mr. Burnett did not believe he was being
discriminated against during his time working for the FIT
department. DSMF ¶ 9; PRDSMF ¶ 9.
Mr. Burnett Files a Charge
29, 2015, Mr. Burnett filed a complaint (Charge) with the
Maine Human Rights Commission. Pl.'s Opp'n to
Defs.' Partial Mot. to Dismiss Am. Complaint and
Opp'n to Mot. to Strike Impertinent Allegations
Attach 2 Complaint of Discrimination (ECF No. 23);
DSMF ¶ 86; PRDSMF ¶ 87. Mr. Burnett's Charge
did not mention the rear door damage incident with the Mr.
Reiter, the blocked access ramp incident, the snowstorm
incident, the demand to move his truck incident, or the
question about his time requirements in the
bathroom. DSMF ¶¶ 42, 49, 52, 60, 71;
PRDSMF ¶¶ 42, 49, 52, 60, 72. After Mr. Burnett
filed his Charge, Ms. Dawson instructed Ms. Darsaoui to pay
Mr. Burnett for two and half days of missed time, but it is
not clear for which instances this was designed to
compensate. DSMF ¶ 78; PRDSMF ¶ 79; PSAMF
¶ 74; DRPSAMF ¶ 74.
asked at his deposition as to what acts of retaliation had
occurred after he filed his Charge on June 29, 2015, Mr.
Burnett stated “I don't believe there was anything
after this charge, as far as
retaliation.” DSMF ¶ 88; PRDSMF ¶ 89.
When asked whether he felt that he was treated differently as
a result of his complaints or requests for accommodation, Mr.
Burnett answered, “No, I never felt like they treated
me differently.” DSMF ¶ 89; PRDSMF ¶ 90.
When asked whether he ever felt that anyone retaliated
against him as a result of his complaints or requests for
accommodation, Mr. Burnett answered:
“No.” DSMF ¶ 90; PRDSMF ¶ 91. Mr.
Burnett testified that each of his requests for accommodation
during the course of his employment with AmeriPort were
ultimately fixed after some time, with the exception that he
felt the front entrance doors to the hotel were still too
heavy at the time of his resignation. DSMF
¶ 91; PRDSMF ¶ 92.
questioned at deposition as to how AmeriPort retaliated
against him, Mr. Burnett responded “by writing me up
continuously when I had a proven medical
condition.” DSMF ¶ 98; PRDSMF ¶ 99. When
asked if there was any other way he felt retaliated against,
Mr. Burnett responded, “By them not fully taking my
disability into consideration, to doing just enough to get
by.” DSMF ¶ 98; PRDSMF ¶ 99. When asked who
he felt had retaliated against him, Mr. Burnett responded,
“I can't pick a person. I wouldn't know who
would do it. There's too many people above me that I
reported to and it didn't get taken care of. That's
all I know.” DSMF ¶ 98; PRDSMF ¶ 99.
Mr. Burnett's Resignation
February 8, 2016, Mr. Burnett notified AmeriPort of his
resignation effective February 26, 2016. DSMF
¶ 10; PRDSMF ¶ 10. Since February 2016, Mr. Burnett
has performed clerical work for FCi Federal. DSMF
¶ 92; PRDSMF ¶ 93. At his deposition, Mr. Burnett
estimated that he has been late to work on fifteen or sixteen
occasions since beginning with FCi on February 9, 2016,
despite being closer to work. DSMF ¶ 96; PRDSMF ¶
97. At no time during Mr. Burnett's employment with
AmeriPort was he ever demoted, nor did Mr. Burnett ever
receive a reduction in pay. DSMF ¶ 97; PRDSMF ¶ 98.
Burnett applied for the FCi position in November of 2015
while still employed with AmeriPort, because, at least in
part, he had moved to a new home in or around January 2014
and his commute to AmeriPort was an hour long. DSMF
¶ 93; PRDSMF ¶¶ 93-94. Mr. Burnett testified
that he needed a job that was closer to his new home and more
convenient, and also stated that he wanted a more
career-oriented and higher paying position. DSMF
¶ 94; PRDSMF ¶ 95. Mr. Burnett testified that he
resigned, in part, because he received a job offer from FCi
Federal, and he would be unable to work both at AmeriPort and
FCi Federal. DSMF ¶ 95; PRDSMF ¶ 96. Mr.
Burnett also submitted an affidavit claiming, “The
reason I left my job was because I had been discriminated and
retaliated against by OPL, and I found an opportunity where I
would be treated better.” PRDSMF Attach 1 Affidavit
of Ryan Burnett ¶ 19 (ECF No. 76).
AmeriPort's Policies and Preparation for Accessibility
Properties maintains policies prohibiting and preventing
discrimination based on disability. DSMF ¶ 2; PRDSMF
Dawson does not recall anyone discussing that they should ask
Mr. Burnett for a doctor's note to determine what
limitations he had based on his obvious disability from being
in a wheelchair. PSAMF ¶ 25; DRPSAMF ¶ 25. Ms.
Dawson does not have any documents available to her in the
form of policies, procedures, or training materials that
discuss how to accommodate employees with
disabilities.PSAMF ¶ 26; DRPSAMF ¶ 26. Ms.
Dawson does not recall having any conversations with Ms.
Darsaoui about any policies or documents concerning
AmeriPort's obligations under the ADA. PSAMF
¶ 27; DRPSAMF ¶ 27. Ms. Dawson has never attended a
training on the ADA or reasonable accommodations, and
PCFSI's HR department does not provide instruction to the
revenue management department of AmeriPort on issues related
to the ADA. PSAMF ¶ 28; DRPSAMF ¶ 28.
Darasaoui never had a conversation with Mr. Burnett about
what kind of limitations he had related to his inability to
walk. PSAMF ¶ 45; DRPSAMF ¶ 45.
Ms. Darsaoui does not have any information about who from
AmeriPort was responsible for making the building ADA
compliant. PSAMF ¶ 46; DRPSAMF ¶ 46.
Ms. Darsaoui agrees that it may have been uncomfortable for
Mr. Burnett to raise accessibility issues with his employer
every time they arose. PSAMF ¶ 15; DRPSAMF ¶ 15.
THE PARTIES' POSITIONS
Disability Discrimination - Disparate Treatment
AmeriPort and Ocean Properties' Motion
asserts that Mr. Burnett cannot make out a prima facie case
because he never suffered an adverse employment action during
his seven years of employment. Defs.' Mot. at
22. AmeriPort claims Mr. Burnett was never demoted, never had
his pay reduced, and was never subject to an unfavorable
transfer. Id. AmeriPort argues that mere criticism,
counseling, or corrective actions do not constitute adverse
action. Id. at 22-23.
also insists that it did not constructively discharge Mr.
Burnett. Id. at 23. AmeriPort suggests that the
incidents Mr. Burnett cites do not rise to the level of
onerous or abusive, as required for constructive termination.
Id. AmeriPort cites Mr. Burnett's testimony that
he was attracted to the shorter commute and better pay of a
different job. Id. at 24.
also disputes whether Mr. Burnett has presented any evidence
on the fourth element of his prima facie case, that he was
treated less favorably than non-disabled employees.
Id. at 24-25.
Mr. Burnett's Response
Burnett begins by citing the ADA Amendments Act of 2008,
which sought to refocus the inquiry on whether discrimination
has occurred, not whether the individual meets the definition
of a disability. Pl.'s Opp'n at 9-10
(“This distinction between the original ADA and the
ADAAA is significant because the vast majority of precedent
cited by Defendants in favor of summary judgment predate the
2008 Amendments”). Mr. Burnett also points to the 2010
Standards for Accessible Design, implying that
AmeriPort's facilities did not bring their facilities up
to those standards and “Defendants' failure to do
so for Mr. Burnett raises a strong inference of
discriminatory animus.” Id. at 10-11.
AmeriPort and Ocean Properties' Reply
accuses Mr. Burnett of conflating accessibility standards for
the public under Title III of the ADA with requirements for
employees under Title I. Defs.' Reply at 12-13.
AmeriPort suggests that Mr. Burnett's theory that
“any potential violation of Title III necessarily
results in a Title I failure to accommodate . . . would lead
to an absurd result” because it “would provide
monetary relief to employees who merely raised technical
violations under Title III where injunctive relief is the
only remedy.” Id. at 13.
Disability Discrimination - Failure to Accommodate
AmeriPort and Ocean ...