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Burnett v. Ocean Properties Ltd.

United States District Court, D. Maine

September 30, 2019

RYAN D. BURNETT, Plaintiff,
v.
OCEAN PROPERTIES, LTD. and AMERIPORT, LLC, Defendant.

          ORDER DENYING AMERIPORT LLC'S POST-TRIAL MOTIONS

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.

         Faced with an adverse verdict in this action for failure to accommodate in violation of the Maine Human Rights Act, 5 M.R.S. §§ 4551 et seq., and the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., a defendant filed several post-trial motions to vacate, or in the alternative, reduce the jury's verdict. The Court denies the motions.

         I. BACKGROUND

         On November 1, 2018, at the close of a three-day trial, a jury returned a verdict for Plaintiff Ryan Burnett and awarded $150, 000 in compensatory damages and $500, 000 in punitive damages. Jury Verdict at 1 (ECF No. 179) (Verdict); Jury Punitive Damages Verdict at 1 (ECF No. 180). As part of its verdict on compensatory damages, the jury made the following findings of fact: (1) that Ocean Properties was an employer or joint employer of Mr. Burnett; (2), that Ocean Properties and AmeriPort were integrated employers of Mr. Burnett; and (3) that Mr. Burnett's employer had more than 500 employees when he worked there. Verdict at 1-2. Judgment was entered on behalf of Mr. Burnett on November 13, 2018. J. (ECF No. 188).

         On December 11, 2018, AmeriPort, LLC (AmeriPort) filed a renewed motion for judgment as a matter of law, a motion for a new trial, and a motion for remittitur. Def. Ameriport, LLC's Mot. for J. as a Matter of Law (ECF No. 196) (Def.'s Rule 50(b) Mot.); Def., Ameriport LLC's Mot. for New Trial (ECF No. 197) (Def.'s Mot. for New Trial); Def., Ameriport, LLC's Mot. for Remittitur (ECF No. 198) (Def.'s Mot. for Remittitur). On February 5, 2019, Mr. Burnett responded in opposition to each of AmeriPort's motions. Pl.'s Opp'n to Def. Ameriport's Mot. for J. as a Matter of Law (ECF No. 213) (Pl.'s Opp'n to Rule 50(b) Mot.); Pl.'s Opp'n to Def. Ocean Properties, LTD.'s Mot. for New Trial (ECF No. 214) (Pl.'s Opp'n to Mot. for New Trial); Pl.'s Opp'n to Def. Ameriport's Mot. for Remittitur (ECF No. 211) (Pl.'s Opp'n to Mot. for Remittitur). On March 1, 2019, AmeriPort replied. Def., Ameriport, LLC's Reply to Mot. for J. as a Matter of Law (ECF No. 219) (Def.'s Reply Rule 50(b) Mot.); Def., Ameriport, LLC's Reply in Support of the Mot. for New Trial (ECF No. 220) (Def.'s Reply Mot. for New Trial); Def., Ameriport, LLC's Reply in Support of the Mot. for Remittitur (ECF No. 221) (Def.'s Reply Mot. for Remittitur).

         II. MOTION FOR JUDGMENT AS A MATTER OF LAW

         A. Positions of the Parties

         1. AmeriPort's Motion

         AmeriPort LLC (AmeriPort) moves for judgment as a matter of law pursuant to Federal Rules of Civil Procedure 50 and 59 and District of Maine Local Rule 7. Def's Rule 50(b) Mot. at 1. AmeriPort advances three arguments in support of its position.[1] First, it contends that Mr. Burnett's administrative charge is defective and does not put Ocean Properties on notice of the conduct raised in Mr. Burnett's Complaint. Id. at 2 (citing First Am. Compl. (ECF No. 7); Pl.'s Tr. Ex. 63, EEOC Complaint of Discrimination (EEOC Charge)). According to AmeriPort, because Mr. Burnett failed to exhaust his administrative remedies before filing suit for damages under the ADA and the MHRA, compensatory and punitive damages are not available. Id. Second, AmeriPort argues that the trial record established that Mr. Burnett was “able to perform the essential functions of his job without accommodation . . . [and] his claim must fail as a matter of law because he never established that automatic or push-button doors were necessary for him to perform the essential functions of his job.” Id. at 9-10. Third, AmeriPort contends that Mr. Burnett “failed to establish that the Defendants acted with malice or reckless indifference, ” therefore, the Court erred in instructing the jury on punitive damages, and the jury's punitive damages verdict should be overturned. Id. at 11.

         As evidence of its first argument, AmeriPort states, “Plaintiff's trial was about a single failure to accommodate, that [Ocean Properties] and AmeriPort purportedly ignored, an August 28, 2014 request for an accommodation for heavy wooden doors- this was never included in the Charge.” Id. at 2 (emphasis supplied). AmeriPort contends that this argument “has been raised and is ripe” because AmeriPort and Ocean Properties raised Mr. Burnett's failure to exhaust administrative remedies in its Partial Motion to Dismiss, its Answer and Affirmative Defenses, and its Final Pretrial Memoranda. Id. (citing Mot. to Dismiss for Lack of Jurisdiction at 4 (ECF No. 19); Answer to Am. Compl. at 12 (ECF No. 20); Final Pretrial Mem. at 1 (ECF No. 84)). According to AmeriPort, “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Id. at 4 (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002); Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, 639 (2007)). AmeriPort states that the administrative claim serves the important purpose of giving notice to the EEOC and the employer of the alleged violation, which allows the employer to take corrective action.” Id. at 5 (citing Thornton v. United Parcel Serv., Inc., 587 F.3d 27, 31 (1st Cir. 2009); Powers v. Grinnel Corp., 915 F.2d 34 (1st Cir. 1990)).

         Second, AmeriPort contends that judgment as a matter of law should be granted in its favor because Mr. Burnett's request for push-button door access was not necessary for him to perform the essential functions of his job, and therefore was not a “reasonable accommodation.” Id. at 7. It cites this Court as stating in its prior order on the Defendants' motion for summary judgment that when an employer has already taken “plainly reasonable” measures to accommodate an employee's disability, summary judgment should be granted in the Defendant's favor. Id. (citing Mot. for Summary J. at 63 (ECF No. 81) (Mot. for Summary J.)). AmeriPort also states that the plaintiff bears the burden of showing that the requested accommodation would effectively enable him to perform his job. Id. (citing Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259 (1st Cir. 2001); Corujo Martinez v. Triple-S, Inc., 519 F.Supp.2d 201, 216 (D.P.R. 2007)). The Defendant claims that “the record evidence established that Mr. Burnett was able to perform the essential functions of his job without accommodation.” Id. at 9 (citing Trial Tr. Vol. I at 85, 107 (ECF No. 190) (Trial Tr. I); Trial Tr. Vol II at 284-85 (ECF No. 191) (Trial Tr. II)).

         Finally, AmeriPort argues that Mr. Burnett failed to satisfy his burden of providing malice or reckless indifference by a showing of clear and convincing evidence as required to prove punitive damages. Id. at 10 (citing 42 U.S.C. § 1981a(b)(1); 5 M.R.S. § 4613(2)(B)(8)(c); Batchelder v. Realty Res. Hosp., LLC, 2007 ME 17, ¶ 20, 914 A.2d 1116, 1123). AmeriPort notes that courts have exercised caution in allowing punitive damages and have set limits on their availability. Id. at 11 (citing Kolstad v. Am. Dental Assoc., 527 U.S. 526, 535-36 (1999); Kinnon v. Kwong Wah Rest., 83 F.3d 498, 508 (1st Cir. 1996) (citing Lee v. S. Home Sites Corp., 429 F.2d 290, 294 (5th Cir. 1970)); Aladdin Mfg. Co. v. Mantle Lamp Co., 116 F.2d 708, 717 (1st Cir. 1941) (alteration in ordering)). AmeriPort also cites Marcano-Rivera v. Pueblo Intern., Inc. 232 F.3d 245, 249 (1st Cir. 2000), in which the First Circuit affirmed the district court's decision not to instruct the jury on punitive damages where the plaintiff “had failed to generate any facts that would demonstrate that the defendant was aware that its actions were in violation of federal law.” Def.'s Rule 50(b) Mot. at 12-13 (citing Marcano-Rivera, 232 F.3d at 254). Here, AmeriPort states that “Plaintiff presented no evidence that AmeriPort or Ocean Properties, Ltd., knew that their failure to provide Plaintiff with automatic or push-button doors was a violation of federal law.” Id. at 14.

         2. Ryan Burnett's Opposition

         In response, Mr. Burnett argues that AmeriPort is “severely limited in the arguments it can advance at this stage” because “a post-trial motion for judgment can be granted only on grounds advanced in the pre-verdict motion.” Pl.'s Opp'n to Rule 50(b) Mot. at 1-2 (quoting Robles-Vazquez v. Tirado Garcia, 110 F.3d 204, 206 (1st Cir. 1997)). According to Mr. Burnett, AmeriPort made no motion for judgment as a matter of law prior to the verdict in this case, and Ocean Properties only moved for judgment as a matter of law on whether Mr. Burnett had established Ocean Properties and AmeriPort to be integrated or joint employers. Id. at 2 (citing Trial Tr. II 269:16-21). Mr. Burnett avers that if the Court were to proceed on the merits of AmeriPort's arguments, the burden for successfully challenging a jury's verdict is that the Defendant “must prove that ‘as a matter of law, the facts and inferences are such that no reasonable fact finder could have reached a verdict against the movant.'” Id. at 2 (citing Palmquist v. Shinseki, 808 F.Supp.2d 322, 338-339 (D. Me. 2011) (quoting Webber v. Int'l Paper Co., 326 F.Supp.2d 160, 165 (D. Me. 2004))). Furthermore, Mr. Burnett states that in ruling on a post-trial motion for judgment as a matter of law, the Court must view the evidence in the light most favorable to the non-movant, “drawing all reasonable inferences in its favor.” Id. (quoting McMillan v. Mass. Soc'y for the Prevention of Cruelty to Animals, 140 F.3d 288, 299 (1st Cir. 1998)).

         In answer to AmeriPort's contention that Mr. Burnett's administrative charge did not specifically list Ocean Properties and is therefore defective, Mr. Burnett argues that there is a clear identity of interests between Ocean Properties and AmeriPort, which allows the action to proceed. Id. at 3 (citing Russell v. Enter. Rent-A-Car Co. of R.I., 160 F.Supp.2d 239, 254 (D.R.I. 2001)). Mr. Burnett also contends that the theory of constructive notice applies “when the original and added parties are so closely related in business or other activities that it is fair to presume the added parties learned of the institution of the action shortly after it was commenced.” Id. (quoting Hernandez Jimenez v. Calero Toledo, 604 F.2d 99, 102-103 (1st Cir. 1979)). Here, Mr. Burnett argues, the parties are sufficiently related because the same attorney represented both AmeriPort and Ocean Properties at trial, and “Mr. Burnett received contradictory documentation about who his employer was.” Id. at 4.

         In response to AmeriPort's related contention that Mr. Burnett did not include his request for push-button doors in the Complaint, Mr. Burnett contends that pursuant to the scope of investigation doctrine, his allegation is encompassed in the charge “because it reasonably could have been discovered in the Commission's investigation.” Id. at 5 (citing Davis v. Lucent Technologies, Inc., 251 F.3d 227, 233 (1st Cir. 2001); Thornton v. United Parcel Service, Inc., 587 F.3d 27, 31-32 (1st Cir. 2009)). Mr. Burnett notes that the administrative charge referenced the issue of the doors not being handicap accessible. Id. (citing EEOC Charge).

         Mr. Burnett distinguishes the cases AmeriPort cited in support of its contention that Mr. Burnett's request for automatic doors was not reasonable. Id. at 6. According to Mr. Burnett,

There is a marked difference between the questionable conflict-avoidance mechanism requested by the employee in Reed [, 102 F.Supp.2d at 35], which did not actually concern the essential functions of the plaintiff's job, and the request for a recording device in Pollack despite a lack of apparent benefit, and Burnett's reasonable request to have a door to his workplace that he could effectively enter.

Id. at 7-8.

         Finally, Mr. Burnett opposes AmeriPort's contention that he failed to meet his burden of showing that AmeriPort “acted ‘with malice or reckless indifference to the plaintiff's federally protected rights' to warrant an award of punitive damages.” Id. at 8 (citing Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 41 (1st Cir. 2003) (quoting Kolstad, 527 U.S. at 535)). Mr. Burnett cites the record evidence demonstrating that AmeriPort employee Lori Darsaoui failed to respond to Mr. Burnett's request, failed to investigate the possibility of installing automatic doors, and did not recall discussing the issue with Mr. Burnett, even when Mr. Burnett subsequently injured his wrist trying to get through the door. Id. at 9-11 (citing Trial Tr. II 305:10-19; id. 231:4-12; id. 231:15-232:8; Trial Tr. I. 71:19-72:12; id. 76:1-5).

         Mr. Burnett further points out that the Court denied AmeriPort's request not to instruct the jury on punitive damages, explaining on the record that “it seems to me that the evidence here of an employee . . . repeatedly struggling to get in the front door, asking for an accommodation and never having a response may be evidence of reckless indifference to the rights of the employee.” Id. at 10 (citing Trial Tr. I 315:3-17).

         3. AmeriPort's Reply

         In reply, AmeriPort reiterates its argument that it raised the alleged deficiencies in Mr. Burnett's charge in pre-verdict motions. Reply to Resp. to Mot. for J. as a Matter of Law at 1 (ECF No. 19) (Def.'s Reply Rule 50(b) Mot.). As such, according to AmeriPort, “[t]he issue has been raised, and the Court should consider the motion as deferred under Rule 50(a), which allows it to be renewed at this juncture.” Id. at 1-2.

         AmeriPort also repeats its contention that Mr. Burnett's specific request for automatic doors was not included in the Plaintiff's charge and refutes Mr. Burnett's argument that the scope of the investigation doctrine applies, because of “the level of specificity as to the other allegations.” Id. at 2. Furthermore, according to AmeriPort, if Mr. Burnett's request for automatic doors fell within the scope of the investigation, it is time barred. Id. at 2-3. On whether Mr. Burnett met his burden of proving malice or reckless indifference to support an award of punitive damages, AmeriPort argues that he did not meet the clear and convincing evidence standard. Id. at 5 n. 2 (citing Batchelder, 2007 ME 17, ¶ 20, 914 A.2d 1124). AmeriPort repeats its contention that Mr. Burnett “presented no evidence that AmeriPort knew that its failure to accommodate Plaintiff's request for push-button doors was a violation of federal law.” Id. at 5.

         4. Oral Argument

         During oral argument, AmeriPort took the position that because the doors at issue were ADA compliant, it was not required to respond to Mr. Burnett's request for accommodation. The company contends that Mr. Burnett's request was inherently unreasonable if the doors were compliant with the ADA. The Court requested that the parties provide controlling supplemental authority on the issue. Def. AmeriPort's Statement of Case Authorities (ECF No. 236). In its filing, AmeriPort referred the Court to the following cases: Kvorjak v. State of Maine, 259 F.3d 48, *52-*54 (1st Cir. 2001); Charette v. St. John Valley Soil & Water Conservation Dist., 332 F.Supp.3d 316, *361-362 (D. Me. 2018); Kezer v. CMMC, 2012 ME 54, ¶¶ 26-27; McBride v. BIC Consumer Products Mfg. Co., Inc. 583 F.3d 92, 99-101 (2nd Cir. 2009); Rehling v. City of Chicago, 207 F.3d 1009, 1016-1016 (7th Cir. 2000). Id. at 1-2.

         Mr. Burnett's response to this argument is two-fold. First, he contended that no evidence was presented at trial to prove that the doors were, in fact, ADA compliant. Second, he argued that the provisions of the ADA and relevant case law do not support AmeriPort's claim that proving ADA compliance eliminates the company's obligation to engage in the interactive process and provide reasonable accommodations to a disabled employee in order to enable them to perform the essential functions of his or her employment. In support, Mr. Burnett filed a statement of supplemental authorities, which includes Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 264 (1st Cir. 1999); Sanchez-Rodriguez v. AT&T Mobility PR, Inc., 673 F.3d 1, 12 (1st Cir. 2012); and Tobin v. Liberty Mutual Ins. Co., 553 F.3d 121, 136 (1st Cir. 2009). Statement of Case Authorities by Ryan Burnett at 1-2 (ECF No. 235).

         B. DISCUSSION

         1. Legal Standard: Judgment as a Matter of Law

         Federal Rule of Civil Procedure 50(a) governs the procedure for a judgment as a matter of law. Generally, once a party has been fully heard on an issue at trial,

and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may: (A) resolve the issue against the party; and (B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.

Fed. R. Civ. P. 50(a).

         “It is well-established that arguments not made in a motion for judgment as a matter of law under Rule 50(a) cannot then be advanced in a renewed motion for judgment as a matter of law under Rule 50(b).” Costa-Urena v. Segarra, 590 F.3d 18, 26 n.4 (1st Cir. 2009) (citing Correa v. Hosp. San Francisco, 69 F.3d 1184, 1196 (1st Cir. 1995) (“As the name implies, a renewed motion for judgment as a matter of law under Fed.R.Civ.P. 50(b) is bounded by the movant's earlier Rule 50(a) motion.”); James W. Moore, 5A Moore's Federal Practice 50.08 (2d ed. 1994) (“[A]ny argument omitted from the [Rule 50(a)] motion made at the close of evidence is waived as a ground for judgment under Rule 50(b).”). As noted by the Court of Appeals for the First Circuit, “[t]he 2006 Amendments to the Federal Rules of Civil Procedure were intended to solidify this requirement.” Jones ex rel. U.S. v. Mass. Gen. Hosp., 780 F.3d 479, 487-88 (1st Cir. 2015) (citing Fed.R.Civ.P. 50 advisory committee's note, 2006 amendments (“Because the Rule 50(b) motion is only a renewal of the preverdict motion, it can be granted only on grounds advanced in the preverdict motion.” (Emphasis added))).

         The standard of review for motions for judgment as a matter of law requires the Court “to view the evidence ‘in the light most favorable to the nonmoving party, drawing all reasonable inferences in its favor.'” McMillan, 140 F.3d at 299 (quoting Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429, 436 (1st Cir. 1997)). A jury verdict should not be set aside as a matter of law “unless there was only one conclusion the jury could have reached.” Id. (citing Conway v. Electro Switch Corp., 825 F.2d 593, 598 (1st Cir. 1987)). Specifically, the Court's review “is weighted toward preservation of the jury verdict;” the Court will uphold the jury verdict “unless the evidence was so strongly and overwhelmingly inconsistent with the verdict . . . that no reasonable jury could have returned [it].” Rodowicz v. Mass. Mut. Life Ins. Co., 279 F.3d 36, 41-42 (1st Cir. 2002) (internal quotations omitted). In making its determination, the court “may not make credibility determinations or weigh the evidence, ” as these are functions of the jury. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 150-51 (2000) (citations omitted).

         2. Analysis

         a. AmeriPort's 50(a) Motion

         As a threshold issue, the parties dispute whether AmeriPort made a motion for judgment as a matter of law pursuant to Rule 50(a).[2] The record reflects that following the close of evidence, after the jury was excused, the Defendants jointly moved for a directed verdict on two of the three arguments AmeriPort now brings in its instant 50(b) motion. Trial Tr. II 313:9-316:8. The Defendants first argued that no evidence of reckless disregard or malice was introduced at trial to support a jury instruction on punitive damages. Id. 313:15-23. The Court found that evidence was brought that could support a reasonable jury's finding of reckless disregard or malice and denied the motion to bar a punitive damages instruction. Id. 315:9-316:2. Second, Defendants argued that Mr. Burnett's request for automatic doors was not a reasonable accommodation because the evidence showed he was able to perform the essential functions of his job without it. Id. 316:3-8. The Court denied the motion after concluding that whether the accommodation was reasonable was a mixed matter of law and fact that should properly be considered by the jury. Id. 318:8-11.

         AmeriPort failed to argue in its 50(a) motion, however, that Mr. Burnett was barred from obtaining a damages award because he did not specifically state his complaint regarding automatic doors in his administrative charge. This limitation, as set forth in Rule 50(b) and as established in the body of relevant case law, is unequivocal. “The movant cannot use . . . a [renewed] motion [for judgment as a matter of law] as a vehicle to introduce a legal theory not distinctly articulated in its close-of-evidence motion for a directed verdict.” Correa, 69 F.3d at 1196. AmeriPort contends that its argument is purely legal in nature and does not rely on the evidence in the record; therefore, it is “ripe for this Court's adjudication at this time.” Def.'s Rule 50(b) Mot. at 3. It also notes that it raised the issue in pre-trial motions, so it should not be barred for failing to allege it in a 50(a) motion.[3] Id. AmeriPort cites no caselaw in support of its contention that raising an issue in a pre-trial motion is construed by the courts as complying with Rule 50(b) or that an exception to the Rule 50 requirements exists in such circumstances.

         Although circuits vary in the rigidity with which they define a 50(a) motion for purposes of appellate review, the First Circuit has consistently held that moving for judgment as a matter of law under Rule 50(a) is “a prerequisite for later consideration of the legal sufficiency of the evidence.” Jusino v. Zayas, 875 F.2d 986, 991 (1st Cir. 1989); see also Keisling v. SER-Jobs for Progress, Inc., 19 F.3d 755, 758 (1st Cir. 1994); Correa, 69 F.3d at 1196. The First Circuit has also held that raising an argument in a motion for summary judgment does not substitute for the required 50(a) motion. Jones, 780 F.3d at 488 (“After trial, a party may not invoke any sufficiency challenges included only in a motion for summary judgment”). The Court concludes that because AmeriPort failed to assert its argument regarding the sufficiency of the administrative charge during trial, it is precluded from making the argument in the form of a renewed motion under Federal Rule of Civil Procedure 50(b).

         b. Merits

         Even setting aside procedural errors that limit the availability of judgment under Rule 50(b), AmeriPort fails to meet the stringent standard that must be met to overturn a jury verdict. To obtain a judgment as a matter of law, AmeriPort must demonstrate that the facts introduced at trial, including all reasonably available inferences, “are such that no reasonable factfinder could have reached a verdict against [it].” Webber, 326 F.Supp.2d at 165 (citing Santos v. Sunrise Med., Inc., 351 F.3d 587, 590 (1st Cir. 2003)). AmeriPort does not clear this high hurdle with respect to its three arguments, and the court will not disturb the jury's verdict.

         i. Defective Administrative Charge

         AmeriPort contends that the administrative charge Mr. Burnett filed against the Defendants is defective for two reasons: first, because “the Charge fails to name OPL and therefore does not give OPL any notice that it-a legally distinct entity- needed to engage in an interactive process . . ., ” and second, because Mr. Burnett did not include a request for an accommodation for heavy wooden doors specifically in the charge. Def.'s Rule 50(b) Mot. at 2. AmeriPort states that it raised the first argument in its motion to dismiss and the second argument in a motion in limine and in its pre-trial memorandum. Defs.' Mot. in Limine at 2; Pretrial Mem. at 1. Neither argument was raised at trial, however.

         With respect to AmeriPort's contention that the Court should consider whether Mr. Burnett failed to exhaust his administrative remedies by failing to list OPL in his administrative charge, AmeriPort first avers that its argument is ripe for review because it is purely legal in nature, and does not require a review of the trial record.[4]Def.'s Rule 50(b) Mot. at 3. This argument is flawed. First, the Court denied the Defendants' motion to dismiss on the basis that “a more detailed factual record is necessary to determine if the two entities share an identity of interest.” Order on Mot. to Dismiss at 1 (ECF No. 37). Second, the Defendants never argued at trial that the administrative charge was defective.[5]

         AmeriPort also contends that the EEOC charge is defective because Mr. Burnett's request for an accommodation for heavy wooden doors was not included in the Charge, and “damages are not recoverable in a civil action when a complainant has failed to properly notify the employer administratively.” Def.'s Mot. at 2. As with its first argument, AmeriPort does not identify any evidence in the trial record that shows it raised the issue regarding Mr. Burnett's claim that it failed to respond to his request for push-button doors in his EEOC charge.

         The Rule 50 motion is available only “if a party has been fully heard on an issue during a jury trial.” Fed.R.Civ.P. 50(a)(1); Williamson v. Horizon Lines LLC, No. CV-06-119-B-W, 2008 WL 2222052, at *1 (D. Me. Feb. 11, 2008) (citing Summers v. Delta Air Lines, Inc., 508 F.3d 923, 928-29 (9th Cir. 2007); Jaasma v. Shell Oil Co., 412 F.3d 503, 506 n.4 (3d Cir. 2005) (stating that the trial court acted prematurely in granting a Rule 50(a) motion before the commencement of trial); Echeverria v. Chevron USA Inc., 391 F.3d 607 (5th Cir. 2004) (concluding that a Rule 50 motion should not be acted upon until the non-movant has presented all its evidence)).

         Here, the Defendants never argued at trial that Mr. Burnett's administrative charge was defective; therefore, the Court cannot analyze whether “a reasonable jury would . . . have a legally sufficient evidentiary basis to find for the party on that issue.” Fed.R.Civ.P. 50(a)(1). A Rule 50(b) motion cannot be used as a means for a party to re-litigate the Court's determination of an issue raised in pre-trial motions when the issue has not been raised subsequently at trial. Moreover, the fact that AmeriPort raised a defense in pre-trial motions but not at trial, and brought no Rule 50(a) motion at the close of evidence, “did nothing to put the district court or defendants on notice that [the Plaintiff] would argue that, as a matter of law, the defendants had failed to put forth sufficient admissible evidence such that no jury could return a verdict in defendants' favor.” Jones, 780 F.3d at 489 (internal citation omitted). The Court rejects AmeriPort's request for judgment as a matter of law on the issue.

         ii. Reasonable Accommodation

         AmeriPort contends that a judgment as a matter of law should be granted in its favor because Mr. Burnett failed to prove that push-button doors were a reasonable accommodation, as they are not necessary for him to perform the essential functions of his job. Def.'s Mot. at 6. AmeriPort contends that “record evidence demonstrated that Mr. Burnett was not only able to perform the duties of his position, but exceeded his employer's expectations without the requested accommodation.” Id. at 10.

         The ADA and Maine Human Rights Act require employers to assist an otherwise qualified employee who has a disability by providing reasonable accommodations that would enable him to perform his job. 42 U.S.C. § 12112(b)(5)(A); 5 M.R.S. § 4572. “In order to prove ‘reasonable accommodation,' a plaintiff needs to show not only that the proposed accommodation would enable her to perform the essential functions of her job, but also that, at least on the face of things, it is feasible for the employer under the circumstances.” Reed, 244 F.3d at 259. Whether an employer failed to grant a reasonable accommodation is a question of fact to be determined by the jury. Valle-Arce v. Puerto Rico Ports Auth., 651 F.3d 190, 201 (1st Cir. 2011).

         Here, sufficient evidence was presented at trial for a reasonable jury to conclude that Mr. Burnett's request for automatic doors was a reasonable accommodation, as it would enable him to enter the building without difficulty and perform the essential functions of his job.[6] For example, Plaintiff's Exhibit 58 is an email from Mr. Burnett to acting office manager Nick Robertshaw, in which Mr. Burnett states, “Nick, I am request[ing] that we need to put push button automatic doors in for the entry of building. Doors are heavy and hard to hold open while I push myself [through] without them closing on me.” Pl.'s Tr. Ex. 58 at 1. Mr. Burnett also testified at trial:

MS. WHITE: Tell us a little bit more about - we keep talking about the heavy wooden doors, but what exactly was the issue with the doors once you started working at the end of 2013 at the new reservation call center?
MR. BURNETT: They were heavy pull out doors that had the piston on the top so they automatically close, and with the downward slope to enter the building, the doors would be closing on me as I would enter and I would have to kind of fight the door off as I push myself through.
MS. WHITE: And when you say the slope, why was that a problem?
MR. BURNETT: It's just a negative slope to make me roll backwards. I have to put more force in going forward and fighting the door and the slope to go backwards.

Trial Tr. I 73:25-74:11. Mr. Burnett also testified that he injured his wrist trying to access the building, as recorded in an incident report. Pl.'s Tr. Ex. 60 at 1 (“Ryan twisted wrist opening the front door, while trying to wheel himself through the door.”).

MS. WHITE: Showing you now Plaintiff's Exhibit 60; can you tell us what this is, Mr. Burnett?
MR. BURNETT: One morning in entering work, I pulled on the door to open up and quickly tried to push myself through and when I did, my wrist popped, snapped, made my hand kind of tingly. It was nothing that lasted. I had a conversation with my immediate supervisor entering the building after I got upstairs and she filed this incident report for me.
MS. WHITE: Did anything else come of that? Did you go to the doctor, did you meet -
MR. BURNETT: Nothing long-lasting. It was just a momentarily of pulling on the heavy door.

Trial Tr. I 75:11-75:22.

         “A directed verdict is proper at the close of plaintiffs' case only when the plaintiffs' evidence, viewed in [the] light [most favorable to the nonmovant], would not permit a reasonable jury to find in favor of the plaintiffs on any permissible claim or theory.” Murray v. Ross-Dove Co., 5 F.3d 573, 576 (1st Cir. 1993). Here, the Court finds that a reasonable jury could find the evidence of the difficulty Mr. Burnett faced in accessing his workplace supports the conclusion that his request for an accommodation of automatic doors was reasonable. The Court, therefore, declines to disrupt the verdict on this basis.

         iii. ADA Accessibility and the Interactive Process

         AmeriPort contends that the doors themselves were compliant with ADA accessibility standards; therefore, the company was under no obligation under the ADA to engage with Mr. Burnett on his request for an accommodation with regard to the doors. As support, AmeriPort cites the following cases: Kvorjak, 259 F.3d at 52-54; Charette, 332 F.Supp.3d at 361-362; Kezer, 2012 ME 54, ¶¶ 26-27; McBride, 583 F.3d at 99-101; Rehling, 207 F.3d at 1016-1016. Def. AmeriPort's Statement of Case Authorities at 1-2.

         As an initial matter, the Court does not find that the evidence admitted at trial supports a finding that the doors at issue were in fact compliant with the ADA. Even if this conclusion were supported by the record evidence, the Court does not find that any of the cases cited by AmeriPort support its theory of the law, and the Court is not aware of any other caselaw that stands for this proposition. The First Circuit states in Kvorjak that a company's rejection of a “request for the accommodation without further discussion” “is not a failure to provide a reasonable accommodation that amounts to a violation of the ADA” when the facts support “a finding that the plaintiff could perform the duties of the job, with or without reasonable accommodation.” 259 F.3d at 52-53. Charette and cases from other Circuit Courts of Appeal support the same proposition. Whether the doors already met ADA accessibility standards is a separate question from whether a request for accommodation is reasonable under the law. The First Circuit stated unequivocally that under the ADA, “an employer who knows of a disability yet fails to make reasonable accommodations violates the statute.” Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 264 (1st Cir.1999). To prove a failure to accommodate claim, the plaintiff must show: (1) that he is disabled within the meaning of the ADA; (2) that he was able to perform the essential functions of the job with or without a reasonable accommodation, and (3) that the employer, despite knowing of the plaintiff's disability, did not reasonably accommodate it. Rocafort v. IBM Corp., 334 F.3d 115, 119 (1st Cir. 2003) (citations omitted). Whether an employer has a duty to engage in the interactive process, therefore, does not depend on whether it has met separate accessibility requirements under the ADA.

         vi. Punitive Damages

         Finally, AmeriPort contends that it is “entitled to judgment as a matter of law” because the Court erred in instructing the jury on punitive damages and because Mr. Burnett failed to establish by a standard of clear and convincing evidence that AmeriPort acted with malice or reckless indifference as is required to support a punitive damages award. Def.'s Rule 50(b) Mot. at 11.

         Under § 1981a(b)(1), “[a] complaining party may recover punitive damages under this section against a respondent . . . if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” In Kolstad, 527 U.S. at 534, the United States Supreme Court defined “the terms ‘malice' and ‘reckless indifference' as they relate to the standard for punitive damages under Title VII and the ADA.” Marcano-Rivera, 232 F.3d at 254 (citing Kolstad, 527 U.S. at 534). For punitive damages to be available, “an employer must at least discriminate in the face of a perceived risk that its actions will violate federal law . . ..” Kolstad, 527 U.S. at 536. Whether sufficient evidence exists to support punitive damages is a question of law. Marcano-Rivera, 232 F.3d at 254 (citing EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1244 (10th Cir. 1999)).

         Following the close of evidence, AmeriPort moved for judgment as a matter of law and requested that the Court abstain from instructing the jury on punitive damages. The Court denied the motion, stating:

It seems to me - and I'm not-I don't know what the jury is going to do with this case, but it seems to me that the evidence here of an employee struggling-repeatedly struggling to get in the front door, asking for an accommodation and never having a response may be evidence of reckless indifference to the rights of the employee.
Now, fortunately, I'm not required to make that evaluation, but there's sufficient evidence . . . on this record that not responding is indifference and not responding, simply forcing the employee to face the burden of trying to open the door in a wheelchair, heavy wooden door in a wheelchair, may be sufficient. I'm not saying it will, but it may be sufficient to reach -- to allow the jury to infer that the employer was indifferent to his rights, and that indifference was reckless.

Trial Tr. II 315:2-17.

         In its Rule 50(b) motion, AmeriPort renews its argument that Mr. Burnett failed to show, by clear and convincing evidence, that AmeriPort acted with malice or reckless indifference ...


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