United States District Court, D. Maine
RECOMMENDED DECISION ON DEFENDANT'S MOTION FOR
H. Rich III United States Magistrate Judge
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.
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. For the reasons that follow, I recommend
that the court grant the motion in part, as to the conceded
claims, and otherwise deny it.
Applicable Legal Standards
Federal Rule of Civil Procedure 56
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.
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).
Local Rule 56
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.
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
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
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.
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.
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.
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.
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.
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.
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.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.
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. 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.”
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. 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.
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. ¶
admitted that he wanted to “punch [Palmer] out”
on several occasions and that he has a violent history.
Id. ¶ 50. 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.
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.
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.
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
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).
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.
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.
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.
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.”
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
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.
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 ...