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Bailey v. Dal Global Services LLC

United States District Court, D. Maine

July 29, 2019




         George Bailey alleges his former employer, Defendant DAL Global Services, LLC, engaged in actions that violated provisions of the Maine Human Rights Act (“MHRA”), 5 M.R.S.A. §§ 4551-4634; the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101-12217; and the Maine Family Medical Leave Requirements (“MFMLR”), 26 M.R.S.A. §§ 843-848.[1] Compl. (ECF No. 1). Defendant moves for summary judgment on all claims, asserting that “no genuine issues of material fact exist as to [Bailey's] allegations of discrimination and retaliation as a result of any real or perceived disability and/or use of protected leave.” Mot. Summ. J. (ECF No. 37).

         For the reasons discussed herein, Defendant's motion is GRANTED.


         The summary judgment facts are drawn from the parties' statements of material facts submitted in accordance with Local Rule 56. The Court will adopt a statement of fact if it is admitted by the opposing party and is material to the dispute. If a statement is denied or qualified by the opposing party, or if an evidentiary objection is raised concerning the record evidence cited in support of a statement, the Court will review those portions of the summary judgment record cited by the parties, and will accept, for summary judgment purposes, the factual assertion that is most favorable to the party opposing the entry of summary judgment, provided that the record material cited in support of the assertion is of evidentiary quality and is capable of supporting the party's assertion, either directly or through reasonable inference. D. Me. Loc. R. 56; Boudreau v. Lussier, 901 F.3d 65, 69 (1st Cir. 2018).

         DAL Global Services (“DGS”) hired Bailey in October 2012 and during the period relevant to this complaint, Bailey was employed as DGS's Station Manager at the Bangor International Airport. Def.'s Statement of Material Facts (“DSMF”) ¶ 1 (ECF No. 38, #126). In this role, Bailey was responsible for overseeing all DGS activities within the Bangor International Airport and was expected to “be able to work various hours, nights, weekends, and holidays” in addition to being “[s]ubject to ‘on call' responses.” DSMF ¶¶ 9, 10. Bailey reports he was expected to be accessible to DGS employees at any time. DSMF ¶ 11.

         From approximately 2014 until his resignation, Bailey reported directly to Roger Hundal, a DGS regional manager based in Atlanta.[2] DSMF ¶¶ 5, 7. During his tenure as Station Manager, Bailey had minimal in-person interaction with Mr. Hundal and instead communicated via telephone calls, emails, and/or text messages. DSMF ¶ 7. The record indicates there was conflict between Bailey and Hundal. Bailey reports that on one occasion, Hundal referred to Bailey's alleged hearing impairments[3] in a derogatory manner during a private phone conversation when he said: “I don't care if you are deaf, hear me now.” DSMF ¶¶ 46, 52; Pl.'s Statement of Material Facts (“PSMF”) ¶ 16 (ECF No. 40, #286). This was an isolated incident and no DGS employee ever commented on or spoke negatively about Bailey's alleged hearing loss again. DSMF ¶ 52.

         In January or February 2015, Bailey filed a complaint with DGS Human Resources about Hundal's management style. DSMF ¶¶ 6, 7; PSMF ¶ 20. In this complaint, Bailey reported that Mr. Hundal frequently threatened to terminate him if he did not fulfill his responsibilities as Station Manager. DSMF ¶ 6. Bailey reports that Mr. Hundal's behavior was only temporarily affected by this HR complaint and that he reverted to making threats of termination after approximately two or three weeks.[4] PSMF ¶ 21.

         In early July 2015, a routine audit conducted by an airline serviced by DGS at Bangor International Airport revealed that DGS had failed to meet the airline's standards for safety and preparation for new service. DSMF ¶¶ 14, 15. Despite the failed audit, the record establishes Mr. Hundal and DGS did not initiate DGS's termination protocol against Bailey.[5] DSMF ¶¶ 16-17.

         On July 16, 2015, Bailey was seen in the Emergency Room at St. Joseph's Hospital and was diagnosed with pneumonia. DSMF ¶ 18. Bailey promptly notified Mr. Hundal that he was being treated at St. Joseph Hospital, but, at that time, did not request any paid time off or leave pursuant to the Maine Family Medical Leave Requirements. DSMF ¶ 19. Bailey does not recall notifying Mr. Hundal regarding his specific diagnosis on this date. DSMF ¶ 20.

         Once he contracted pneumonia, Bailey did not report to the Bangor International Airport. However, from July 16, 2015 until July 29, 2015, he continued to take work-related phone calls, responded to emails, and even reached out to a DGS supervisor to obtain a copy of the failed audit report. DSMF ¶¶ 21, 23. DGS paid Bailey throughout this period. DSMF ¶ 24.

         On July 29, 2015, Bailey submitted documentation to DGS reflecting his pneumonia diagnosis along with a request for medical leave.[6] DSMF ¶ 25. This documentation indicated his condition was “temporary and not chronic in nature, ” started on July 16, 2015, and was expected to persist through August 16, 2015. DSMF ¶ 26. Following receipt of his request and supporting documentation, DGS retroactively granted medical leave under the Maine Family Medical Leave Requirements for two months, stretching from July 16, 2015 until September 16, 2015. DSMF ¶ 27; PSMF ¶ 13. Bailey did not experience any issues during the leave approval pro c e s s . D S M F ¶ 2 9 . O n c e h e received notice of approval, Bailey turned off his work cell phone after notifying Mr. Hundal he would be doing so. DSMF ¶¶ 31-32. Between July 29, 2015 and September 8, 2015, Bailey did not communicate with anyone from DGS even though DGS employees continued to email Bailey and leave voicemails on Bailey's work cellphone. DSMF ¶¶ 33-35, 39. In his absence, DGS employees from the Portland station and the Bangor station filled in on Bailey's behalf. DSMF ¶ 36.

         On September 8, 2015, while still on leave, Bailey emailed a letter of resignation to Mr. Hundal and a DGS Human Resources supervisor. DSMF ¶ 41. This letter indicated he was “prepared to work out his two-week notice” and reflected a termination date of September 22, 2015.[7] DSMF ¶ 41. Due to Bailey's security access at the Bangor International Airport and DGS policies requiring an employee to complete a fitness for duty and drug screening prior to returning from medical leave, DGS declined to have Bailey return to work for the work week following the termination of Bailey's medical leave and prior to his proposed separation date. DSMF ¶ 44. Instead, DGS paid Bailey at his normal rate for this period. DSMF ¶ 44. On or around September 17, 2015, Bailey turned in his badge, work cell phone, and identification. DSMF ¶ 45.

         Following his separation from DGS, Bailey filed for unemployment benefits. DSMF ¶ 56. On October 8, 2015, DGS sent Bailey a letter regarding his option to elect COBRA continuation coverage and this form indicated that his end of employment was “involuntary.” PSMF ¶ 7. Similarly, a Maine Department of Labor document which had been filled out by a third-party, Equifax, and submitted on October 23, 2015, indicated that Bailey had been discharged from DGS. DSMF ¶ 57. The information upon which Equifax relied was supplied by DGS. PSMF ¶ 6. In April 2016, Bailey also filed a complaint with the Maine Human Rights Commission (which was dually filed with the EEOC and FEPA). PSMF ¶ 8. Bailey reports this complaint was “closed out . . . with a finding of no reasonable grounds” and the Maine Human Rights Commission issued a dismissal. Pl.'s Resp., 4 (ECF No. 39, #252).


         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). As cautioned by the Supreme Court, “the 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). A material fact is one that has the potential to determine the outcome of the litigation. Id. at 248; Oahn Nguyen Chung v., Inc., 854 F.3d 97, 101 (1st Cir. 2017). To raise a genuine issue of material fact, the party opposing the summary judgment motion must demonstrate that the record contains evidence that would permit the finder of fact to resolve the material issues in his favor. See Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (“Unless the party opposing a motion for summary judgment can identify a genuine issue as to a material fact, the motion may end the case.”).

         Plaintiff brings claims loosely alleging discrimination, retaliation, interference with protected leave, and failure to accommodate pursuant to the Maine Human Rights Act (“MHRA”), 5 M.R.S.A. §§ 4551-4634; the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101-12213; and the Maine Family Medical Leave Requirements (“MFMLR”), 26 M.R.S.A. §§ 843-848. DGS challenges each of Bailey's claims while also raising the issue of whether Bailey has waived his ADA claim by failing to exhaust administrative remedies prior to filing this suit. I will consider each allegation in turn.

         I. Americans with Disabilities Act Claim

         As a procedural matter, DGS asserts that Bailey waived his claim under the ADA by filing suit in this Court before he received a right-to-sue letter from the EEOC. Mot. Summ. J., 24-26. Bailey argues he received confirmation of the dual filing of his administrative charge with the Maine Human Rights Commission and the EEOC, but that the EEOC failed to issue a right-to-sue letter when the Maine Human Rights Commission closed out his claim. Pl.'s Resp., 17. Then, to add more complexity to the equation, in its reply to Bailey's response, DGS asserts Bailey provided them with a copy of a right-to-sue letter from the EEOC on April 1, 2019. Def.'s Reply, 6 (ECF No. 41, #449). This letter, DGS alleges, is dated February 1, 2017. Id. DGS's argument then follows that Bailey failed to comply with the terms of the right-to-sue letter when he filed his lawsuit on December 19, 2017 - a date far outside the 90-day window stated in the right-to-sue letter. Id. at 6-7. It is important to note, however, that the summary judgment record is devoid of any evidence (beyond the parties' allegations) of a right-to-sue letter or record reflecting the dismissal of Bailey's claims by the Maine Human Rights Commission.

         Claims brought under the ADA are subject to the procedural requirements outlined in Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9. See 42 U.S.C. § 12117(a) (applying Title VII procedural requirements to ADA claims). As explained by the First Circuit:

One of these [procedural] requirements contemplates that, upon a claimant's exhaustion of administrative remedies, the EEOC will inform the claimant that she has 90 days within which to bring a civil action. [42 U.S.C.] § 2000e-5(f)(1). This notification is commonly termed a right-to-sue notice. See Id. If the claimant does not bring suit within the prescribed 90-day period, the action is ...

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