Depaolo v. GHM Portland Mar LLC

          RECOMMENDED DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          John H. Rich III United States Magistrate Judge

         Defendant GHM Portland MAR, LLC, d/b/a Portland Marriott at Sable Oaks (“GHM”), moves for summary judgment as to all of plaintiff and former employee Cary DePaolo's claims against it. See Defendant's Memorandum of Law in Support of Motion for Summary Judgment (“Motion”) (ECF No. 55) at 1; Complaint and Jury Trial Demand (“Complaint”) (ECF No. 1) ¶¶ 26-34 (asserting claims for discrimination, retaliation, and creation of a hostile work environment in violation of the Maine Human Rights Act (“MHRA”), 5 M.R.S.A. § 4551 et seq., the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Maine Whistleblowers' Protection Act (“MWPA”), 26 M.R.S.A. § 831 et seq. (Count I), and interference with and retaliation for leave taken pursuant to the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. (Count II)).

         DePaolo concedes GHM's entitlement to summary judgment as to his disability claims in Count I predicated on a “failure to accommodate” and his claim for FMLA retaliation in Count II, but otherwise contests its motion. See Plaintiff's Memorandum in Opposition to Summary Judgment (“Opposition”) (ECF No. 61) at 3-19.^[1] For the reasons that follow, I recommend that the court grant the motion in part, as to the conceded claims, and otherwise deny it.

         I. Applicable Legal Standards

         A. Federal Rule of Civil Procedure 56

         Summary judgment is appropriate “if the movant shows 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); Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014). “A dispute is genuine if ‘the evidence about the fact is such that a reasonable jury could resolve the point in favor of the non-moving party.” Johnson v. Univ. of P.R., 714 F.3d 48, 52 (1st Cir. 2013) (quoting Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir. 2008)). “A fact is material if it has the potential of determining the outcome of the litigation.” Id. (quoting Maymi v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir. 2008)).

         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. Johnson, 714 F.3d at 52. Once the moving party has made a preliminary showing that no genuine issue of material fact exists, the nonmovant must “produce specific facts, in suitable evidentiary form, to establish the presence of a trial worthy issue.” Brooks v. AIG Sun America Life Assur. Co., 480 F.3d 579, 586 (1st Cir. 2007) (quoting Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir. 2006) (emphasis omitted)); Fed.R.Civ.P. 56(c). “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 trial worthy issue warrants summary judgment to the moving party.” In re Spigel, 260 F.3d 27, 31 (1st Cir. 2001) (citation and internal punctuation omitted).

         B. Local Rule 56

         The evidence that the court may consider in deciding whether genuine issues of material fact exist for purposes of summary judgment is circumscribed by the local rules of this district. See Loc. R. 56. The moving party must first file a statement of material facts that it claims are not in dispute. See Loc. R. 56(b). Each fact must be set forth in a numbered paragraph and supported by a specific record citation. See id. The nonmoving party must then submit a responsive “separate, short, and concise” statement of material facts in which it must “admit, deny or qualify the facts by reference to each numbered paragraph of the moving party's statement of material facts[.]” Loc. R. 56(c). The nonmovant likewise must support each denial or qualification with an appropriate record citation. See id. The nonmoving party may also submit its own additional statement of material facts that it contends are not in dispute, each supported by a specific record citation. See id. The movant then must respond to the nonmoving party's statement of additional facts, if any, by way of a reply statement of material facts in which it must “admit, deny or qualify such additional facts by reference to the numbered paragraphs” of the nonmovant's statement. See Loc. R. 56(d). Again, each denial or qualification must be supported by an appropriate record citation. See id.

         Local Rule 56 directs that “[f]acts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted.” Loc. R. 56(f). In addition, “[t]he court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment” and has “no independent duty to search or consider any part of the record not specifically referenced in the parties' separate statement of fact.” Id.; see also, e.g., Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010); Fed.R.Civ.P. 56(e)(2) (“If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion[.]”).

         II. Factual Background

         The parties' statements of material facts, credited to the extent that they are either admitted or supported by record citations in accordance with Local Rule 56 and viewed in the light most favorable to DePaolo as the nonmovant, reveal the following.^[2]

         DePaolo was hired by GHM on April 16, 1999, to work as part of its hotel maintenance staff at the Portland Marriott hotel. [Consolidated] Statement of Material Facts (“SMF”) (ECF No. 62) ¶ 1. He initially reported to “Chief Engineer” Will Amedy, who in turn reported to General Manager Edward Palmer. Id. When Amedy was promoted and transferred from the hotel, Palmer promoted DePaolo to the Chief of Maintenance position. Id. ¶ 2.^[3]

         Jennifer Winston, formerly Jennifer Czachor, was DePaolo's Human Resources (“HR”) representative. Id. ¶ 3. If DePaolo had an issue that he could not address with Palmer, he could report it directly to Winston. Id. ¶ 4. Winston began working at the Marriott at Sable Oaks in 2001. Id. ¶ 114. She started working in reservations, transferred to payroll and accounts payable approximately a year later, and eventually moved into HR. Id. She received no specific training for her position and became responsible for fielding complaints from employees sometime in the last five years. Id.

         As Chief of Maintenance, DePaolo was charged with oversight of the maintenance department and was required to remain on-call at all times in case there was an emergency at the hotel. Id. ¶ 6. He worked five days a week, from Monday through Friday, but on occasion would be called in to work on the weekend. Id. ¶¶ 5, 7.

         DePaolo admitted that his personality sometimes caused issues in the workplace and that complaints had been filed against him by subordinates. Id. ¶ 12. He stated that he would unconsciously raise his voice and that his subordinates and co-workers would perceive that as yelling. Id. ¶ 13. He said that this sometimes “put[] people off.” Id. DePaolo could also be sarcastic and make jokes to his subordinates, which he believes may have contributed to the complaints from co-workers. Id. ¶ 14.

         On or about April 12, 2011, DePaolo received a corrective action and was instructed by Palmer and Winston to treat his co-workers and colleagues more respectfully. Id. ¶ 15. DePaolo wrote that he felt the corrective action was “one-sided” and “sexist, ” although he did not elaborate on what he meant by that “because of incriminating [him]self.” Id. On May 8, 2011, he received a performance evaluation stating that he “must show less outward frustration toward underperforming associates both in his department and others” and that “[t]here is a respectful way to critique their perfor[mance].” Id. ¶ 16. DePaolo recalled discussing this conduct with his supervisors at the time of his evaluation. Id.

         In or about October 2013, DePaolo was diagnosed with non-Hodgkin's lymphoma. Id. ¶ 25. He did not inform anyone at GHM of his diagnosis right away. Id. When he informed Winston that he would require treatment for his condition in January 2014, she offered him FMLA leave to undergo chemotherapy. Id. ¶ 26. On or about January 8, 2014, DePaolo completed a formal request for intermittent FMLA leave to receive chemotherapy treatment. Id. ¶ 27. The following day, his request for leave was granted. Id. ¶ 28.

         DePaolo testified that he did not tell anyone about his cancer diagnosis and, with few exceptions, did not recall any specific conversations with Palmer about his diagnosis. Id. ¶ 29.^[4]He testified that it became obvious that he was undergoing chemotherapy, and he believed that he would have had a discussion with Palmer at some point about his condition. Id. ¶ 30. DePaolo's condition required that he receive chemotherapy one day every three weeks. Id. ¶ 31. He received six chemotherapy treatments in total. Id. Because his treatments were on Thursdays, DePaolo would sometimes take Friday off when he didn't feel well. Id. ¶ 32. During his chemotherapy treatments, DePaolo never requested any days off that were denied by GHM. Id. ¶ 33.

         DePaolo alleges that his problems with Palmer began when he started chemotherapy treatment and that he did not have any performance issues before then. Id. He testified that, as a result of his chemotherapy treatment, he had issues with his memory as well as difficulties with his balance and lifting heavy objects. Id. ¶ 34. DePaolo told Palmer that he could not climb ladders or perform heavy lifting during and after his chemotherapy treatment. Id. ¶ 116; Deposition of Cary A. DePaolo (“DePaolo Dep.”) (ECF No. 53), Page ID # 222 at 75. DePaolo alleges that his memory issues interfered with his work, but he could not recall any particular instances when Palmer approached him about an issue or task that he had forgotten. SMF ¶ 35.^[5] DePaolo alleged in his complaint that Palmer called him “cancer-brain” or “chemo-brain” on several occasions. Id. ¶ 46. During deposition, DePaolo said that he had never heard the term “cancer brain.” Id.

         DePaolo said that, on one occasion, he and Palmer were together when a delivery truck showed up carrying a heavy refrigeration unit that needed to be offloaded. Id. ¶ 36. According to DePaolo, Palmer said, “there's your refrigeration unit.” Id. DePaolo then told Palmer that he could not unload the refrigeration unit due to the side effects of his chemotherapy. Id. ¶ 37. He suggested to Palmer that “Jesse, ” a younger associate who was also present, unload the unit. Id. Jesse then unloaded the unit. Id.^[6] DePaolo was unsure whether Jesse did this of his own accord or at Palmer's suggestion. Id. ¶ 38. Palmer did not require DePaolo to unload the refrigeration unit. Id. ¶ 39.

         DePaolo and Palmer were in an altercation sometime in or about October 2014. Id. ¶ 47. DePaolo testified that, during this incident, he and Palmer were standing the entire time. Id.; DePaolo Dep., Page ID # 225 at 87. He stated that Palmer came nose-to-nose with him and was “in [DePaolo's] face spewing, spit all over [DePaolo], and asking [DePaolo] to punch him.” Id. DePaolo felt threatened by Palmer. Id.; DePaolo Dep., Page ID # 225 at 86-87. Both men were unsure of the events that preceded the altercation. SMF ¶ 48. DePaolo recalled that Palmer never mentioned anything related to his disability during the altercation. Id. ¶ 49.

         DePaolo admitted that he wanted to “punch [Palmer] out” on several occasions and that he has a violent history. Id. ¶ 50.^[7] DePaolo admitted that he did not find Palmer threatening, generally, but testified that he felt “threatened” by him during the “nose-to-nose” exchange and described feeling “degraded, frustrated” and “red in the face, hurt, disappointed, scared, [and] protective.” Id. ¶ 51; DePaolo Dep., Page ID # 225 at 86-87.

         DePaolo testified that he informed Palmer of the term “chemo brain” after DePaolo had a performance issue relating to his memory. SMF ¶ 55. He used the term “chemo brain” on that one occasion to explain his problems to Palmer. Id.; DePaolo Dep., Page ID ## 236-37, at 133-34. It was not meant as a joke and “wasn't to make light of the situation.” Id. DePaolo testified that, on one occasion, Palmer called him “a chemo brain and he was disappointed in [him]” and that Palmer called him a “chemo brain” in front of associates, which he did not like. SMF ¶ 56; DePaolo Dep., Page ID # 232 at 114.

         DePaolo testified that, on one occasion, Palmer was furious with him after Winston called Palmer, rather than DePaolo, to handle a phone system issue. SMF ¶ 59; DePaolo Dep., Page ID # 235 at 127. DePaolo stated that when he and Palmer went into the phone room, Palmer “yelled and screamed” at him, even though DePaolo did not “have a clue what was going on.” Id. DePaolo testified that he was “shocked” and “speechless” at Palmer's behavior, just wanted to get out of the phone room, and asked to have Winston present because Palmer was yelling and screaming at him for reasons he did not understand. SMF ¶ 61; DePaolo Dep., Page ID # 235 at 127-28. DePaolo testified that, while Palmer got “pretty heated[, ]” he did not make any comments that offended DePaolo. SMF ¶ 61. DePaolo could not recall when this incident occurred. Id. Palmer did not discipline DePaolo in connection with the phone incident. Id. ¶ 60.

         On another occasion, DePaolo and a lead housekeeper got into an altercation, and Palmer had to intervene. Id. ¶ 62. DePaolo admitted that Palmer only became involved when it was reported that DePaolo was upstairs yelling at the lead housekeeper. Id. The lead housekeeper complained that DePaolo was entering the rooms before her housekeepers could collect their tips, and there had been prior reports of stolen tips. Id. ¶ 63. DePaolo did not receive any disciplinary action or a dock in pay as a result of the housekeeping incident. Id. ¶ 64. DePaolo could not recall what Palmer said to him in connection with that incident, although he knew Palmer did not make any comments related to his disability at that time. Id. ¶ 65. DePaolo admitted that Palmer was “probably just doing his job” when investigating that incident. Id. ¶ 66. DePaolo could not recall when the incident with the housekeeper occurred. Id. ¶ 67. Winston's notes dated October 7, 2013, indicate that it occurred before DePaolo informed Palmer of his lymphoma diagnosis. Id.

         On October 7, 2014, Palmer called DePaolo to a meeting in his office. Id. ¶ 68. Winston was also present. Id. DePaolo had asked that Winston be present because Palmer had been yelling and screaming at him during the phone incident. SMF ¶ 68; DePaolo Dep., Page ID # 235, at 127-28. Palmer discussed the manner in which DePaolo responded to Palmer's orders over the radio and the tone used to speak with Palmer and hotel associates. SMF ¶ 68. Palmer told DePaolo that, if his attitude toward other associates was going to continue like this, DePaolo should put in his two weeks' notice. Id. ¶ 69. DePaolo said that he was not going to change and would put his resignation notice in writing. Id. Palmer told DePaolo to think about that decision before submitting his resignation. Id. DePaolo “kept very quiet” during the meeting except to say that he “didn't want to be treated like this anymore” and would submit his resignation in writing. Id.; Note of Jennifer L. [Winston] dated October 7, 2014 (“10/7/14 Winston Note”) (ECF No. 53-28).

         On October 7, 2014, DePaolo submitted his resignation letter, in which he stated that he felt that he was being singled out by Palmer and that things were “not equal for everyone (not just myself) at this property.” SMF ¶¶ 70-71. Palmer and Winston asked DePaolo if he would reconsider. Id. ¶ 72. DePaolo recanted his resignation and stayed with GHM until he took FMLA leave on January 31, 2015. Id.

         On Saturday, January 17, 2015, a sprinkler broke and flooded the sixth floor of the Portland Marriott. Id. ¶ 73. Palmer was called in to the property to handle the issue and was later informed that DePaolo had been called in but had not answered. Id. Palmer contacted DePaolo and another hotel associate, Laurie Hamman, by text message and asked them to report to the property in the morning to coordinate the cleanup effort. Id. Hamman responded the following morning and reported to work an hour later. Id. DePaolo did not respond. Id.

         Palmer returned to the property that Sunday morning and again attempted to contact DePaolo, but his call went straight to voicemail. Id. ¶ 75. Instead of returning Palmer's call, DePaolo contacted the property and said that he was ill and could not report to work. Id. On Monday, DePaolo contacted Palmer and said that he was sick and had lost his phone. Id. ¶ 76.

         On Tuesday, January 20, 2015, Palmer called DePaolo into a meeting with himself and Winston to discuss their inability to reach DePaolo during the emergency. SMF ¶ 77. During their meeting, Palmer mentioned that he was considering demoting DePaolo because he could not rely on him. Id. DePaolo asked Palmer why he kept pulling him into these meetings and why he was “trying to push him out.” Id., Note of Jennifer L. [Winston] dated January 21, 2015 (“1/21/15 Winston Note”) (ECF No. 53-16), Page ID # 393. He also complained that he was upset that “Ed stated in the last meeting that he didn't care if [DePaolo] had chemo brain.” Id.

         Winston and DePaolo subsequently had a conversation about DePaolo's trouble performing his job duties. SMF ¶ 78; DePaolo Dep., Page ID # 239, at 144. Winston informed DePaolo that he could take FMLA leave if he needed time off. SMF ¶ 81. DePaolo was told that, if he wanted to come back from FMLA leave, he could return only in a general maintenance position rather than as Chief of Maintenance. Id. ¶ 78; DePaolo Dep., Page ID # 239-40, at 145-46.^[8]

         DePaolo accepted Winston's leave offer and, on January 29, 2015, filed a formal request for FMLA leave. SMF ¶ 81. On January 30, 2015, he signed a personnel action notice accepting the maintenance technician position at a pay rate of $15 per hour. Id. ¶ 79. Generally, maintenance technicians were paid only between $10 and $13 per hour, but an exception was made by Winston and Palmer to pay DePaolo the elevated rate. Id. ¶ 80. Palmer ensured that, while DePaolo was on FMLA leave, he was paid his vacation pay at the original Chief of Maintenance rate of $18.42 per hour. Id. ¶ 82. DePaolo's FMLA leave was scheduled to take place from February 2, 2015, through April 25, 2014. Id. ¶ 84; Employer Response to Associate's Leave Request (ECF No. 53-8), Page ID # 294.

         On or about February 11, 2015, DePaolo spoke with his clinical psychologist, Katharine Mocciola, and told her that he may have signed the paperwork accepting the maintenance technician position “prematurely.” SMF ¶ 85. He told told Mocciola that he “just wanted the meeting to end.” Id.; Progress Notes (ECF No. 53-20), Page ID # 472. He also stated in that conversation that he was aware that his reduction in ...