United States District Court, D. Maine
RYAN D. BURNETT, Plaintiff,
OCEAN PROPERTIES, LTD. and AMERIPORT, LLC, Defendant.
ORDER DENYING AMERIPORT LLC'S POST-TRIAL
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
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.
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).
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
MOTION FOR JUDGMENT AS A MATTER OF LAW
Positions of the Parties
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. 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.
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
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
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
Ryan Burnett's Opposition
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)).
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.
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
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.
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.
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).
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).
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.
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.
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.
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).
Legal Standard: Judgment as a Matter of Law
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).
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
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).
AmeriPort's 50(a) Motion
threshold issue, the parties dispute whether AmeriPort made a
motion for judgment as a matter of law pursuant to Rule
50(a). 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.
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. 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.
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).
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.
Defective Administrative Charge
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
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.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.
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.
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
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
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.
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.
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. 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
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.
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.
ADA Accessibility and the Interactive Process
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.
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.
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.
§ 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)).
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.
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 ...