United States District Court, D. Maine
ORDER ON DEFENDANT'S MOTION FOR SUMMARY
E. WALKER U.S. DISTRICT JUDGE.
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. 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).
reasons discussed herein, Defendant's motion is
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.
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.
approximately 2014 until his resignation, Bailey reported
directly to Roger Hundal, a DGS regional manager based in
Atlanta. 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 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.
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. PSMF ¶ 21.
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. DSMF ¶¶ 16-17.
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.
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.
29, 2015, Bailey submitted documentation to DGS reflecting
his pneumonia diagnosis along with a request for medical
leave. 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.
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. 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.
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).
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.
StudentCity.com, 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
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.
Americans with Disabilities Act Claim
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
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 ...