United States District Court, D. Maine
RYAN D. BURNETT, Plaintiff,
OCEAN PROPERTIES, LTD. and AMERIPORT, LLC, Defendants.
ORDER ON OCEAN PROPERTIES' POST-TRIAL
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
employer, after receiving an unfavorable jury verdict in an
action under the ADA and the MHRA, filed various post-trial
motions, including a motion for judgment as a matter of law,
a motion for a new trial, and a motion for remittitur on
damages. The Court denies the motions.
November 1, 2018, after 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)
(Punitive Damages Verdict). 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 for that employer. Verdict at 1-2.
The jury also made the following findings with regard to
punitive damages: (1) that Mr. Burnett has proven, by a
preponderance of the evidence, that the Defendants knew their
actions violated the ADA or acted in reckless disregard to
that risk; (2) that Mr. Burnett has proven, by clear and
convincing evidence, that the Defendants either intentionally
or with reckless indifference violated the Maine Human Rights
Act. Punitive Damages Verdict at 1. The jury awarded
Mr. Burnett $200, 000 in punitive damages pursuant to the ADA
and $300, 000 pursuant to the MHRA. Id. at 1-2.
Judgment entered on behalf of Mr. Burnett on November 13,
2018. J. (ECF No. 188).
December 11, 2018, Defendant Ocean Properties Limited (Ocean
Properties) filed a motion for judgment as a matter of law,
motion for a new trial, motion for remittitur, and motion for
oral argument. Def. Ocean Properties, LTD.'s Mot. for
J. as a Matter of Law (ECF No. 200) (Def.'s Rule
50(b) Mot.); Defs., Ocean Properties, LTD.'s
Mot. for New Trial by Ocean Properties Ltd. (ECF No.
201) (Def.'s Mot. for New Trial); Defs.,
Ocean Properties, Ltd.'s Mot. for Remittitur (ECF
No. 202) (Def.'s Mot. for Remittitur); Mot.
for Oral Arg. On Post-Trial Mots. (ECF No. 203).
Burnett responded in opposition to the instant motions on
February 5, 2019. Pl.'s Opp'n to Def. OPL's
Mot. for J. as a Matter of Law (ECF No. 212)
(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. 209) (Pl.'s
Opp'n to Mot. for New Trial); Pl.'s
Opp'n to Def. OPL's Mot. for Remittitur (ECF No.
210). Ocean Properties replied on March 1, 2019. Ocean
Properties, LTD's Reply to Pl.'s Opp'n to Mot.
for J. as a Matter of Law (ECF No. 222) (Def.'s
Reply Rule 50(b) Mot.); Def.'s Reply to
Pl.'s Opp'n to Def. Ocean Properties,
LTD's Mot. for New Trial (ECF No. 223)
(Def.'s Reply Mot. for New Trial);
Def.'s Reply to Pl.'s Opp'n to Def. Ocean
Properties, LTD's Mot. for Remittitur (ECF No. 224)
(Def.'s Reply Mot. for Remittitur).
MOTION FOR JUDGMENT AS A MATTER OF LAW
Positions of the Parties
Ocean Properties' Motion
Properties moves for judgment as a matter of law pursuant to
Federal Rules of Civil Procedure 50 and 59. Ocean Properties
first contends that no proof was brought at trial to show
that Ocean Properties has fifteen or more employees;
therefore, Mr. Burnett failed to establish that Ocean
Properties is a covered entity pursuant to the ADA, and he is
precluded from recovering damages under the MHRA.
Def.'s Rule 50(b) Mot. at 2. According to Ocean
Properties, the First Circuit requires that a party prove the
numerosity requirement of federal employment discrimination
laws by offering evidence of payroll records at trial,
id. at 4 (citing Aly v. Monhegan Council, Boy
Scouts of America, 711 F.3d 34, 45 (1st Cir. 2013)), but
Mr. Burnett failed to do so. Id. Ocean Properties
maintains that “Plaintiff relies upon conjecture rather
than credible evidence concerning the number of employees
that could be attributed to OPL.” Id. at 5.
Mr. Burnett's alleged failure to prove Ocean Properties
has fifteen or more employees also precludes his recovery
under a theory of integrated/single employer, according to
Ocean Properties. Id. at 7. Ocean Properties further
contends that it “cannot be both an
‘integrated/single employer' with AmeriPort and a
‘joint employer . . .., '” which it says
resulted from the Court's failing to correctly instruct
the jury that one theory of liability should be selected.
according to Ocean Properties, no evidence was presented at
trial that proves it acted as an integrated single employer
with AmeriPort. Ocean Properties outlines First Circuit
caselaw, which considers four factors in determining whether
an integrated single employer relationship exists between two
entities: (1) interrelation of operations; (2) common
management; (3) centralized control over labor relations; and
(4) common ownership. Id. (citing Romano v. U
Haul Int'l, 233 F.3d 655, 665 (1st. Cir. 2000)).
Ocean Properties contends that “the lack of common
ownership, alone, is sufficient to doom the Jury's
finding that OPL and AmeriPort are a single/integrated
employer.” Id. at 9 (citing Arroyo-Perez
v. Demir Group Int'l, 762 F.Supp.2d 374 (D.P.R.
2011)). Ocean Properties notes that “a
series of emails and other documents . . . that reference
OPL, ” offered into evidence by Mr. Burnett, “are
insufficient to establish OPL as an integrated/single
employer.” Id. at 10 (citing Nesbit v.
Gears Unltd., Inc., 347 F.3d 72, 88 (3d Cir. 2003)).
According to Ocean Properties, “there was no evidence
that OPL had anything to do with AmeriPort's day-to-day
labor decisions, ” as required to show centralized
control. Id. at 11.
Properties also argues the evidence presented by Mr. Burnett
is legally insufficient to establish the interrelation of
operations. Id. It contends that in Englehardt
v. S.P. Richards Company, 472 F.3d 1 (1st Cir. 2006),
the First Circuit held that there was no integrated/single
employer relationship despite “evidence that
plaintiff's actual employer SPR adopted its parent
GPC's personnel policies, corporate conduct and security
policies, handbooks, benefit plans, brochures, and
registration forms, and that these forms as well as paycheck
stubs and letterhead used by SPA contained GPC's name and
logo, ” because no evidence was presented that GPC was
involved in SPR's labor relations decisions. Id.
at 12 (citing Englehardt, 472 F.3d at 7).
Properties contends that the Court erred in denying Ocean
Properties' Rule 50(a) motion because it
“improperly limited its consideration of
Englehardt to the similarity of the forms in the
cases . . ..” Id. at 13. It concedes that
“perhaps this form could arguably be cited for the
proposition that OPL was a ‘joint employer,' but
adds no support whatsoever to Plaintiff's claim that OPL
was an integrated/single employer.” Id. at
13-14. Ocean Properties also avers that the pay stubs
referencing Ocean AP, Inc., the employee handbook called
Ocean Properties Reservations Center Training Manual, and the
shared marketing materials of “Ocean Properties Hotels
Resorts and Affiliates” do not satisfy the integrated
employer requirements, because they do not show shared daily
labor decisions. Id. at 14-16.
Properties also argues that Mr. Burnett failed to establish
AmeriPort and Ocean Properties were joint employers, which
requires proof that “one employer while contracting in
good faith, with an otherwise independent company, has
retained for itself sufficient control of the terms and
conditions of employment of the employees who are employed by
the other employer.” Id. at 18 (citing
Rivas v. Federacion de Associciones Pecurias de.
P.R., 929 F.2d 814, 820 n.17 (1st Cir. 1991)). According
to Ocean Properties, there was no evidence presented of its
involvement with AmeriPort's employees. Id.
Moreover, Ocean Properties states that Mr. Burnett failed to
show that Ocean Properties, as a joint employer, had fifteen
employees separate from AmeriPort. Id. at 19 (citing
Robinson v. SABIS Educ. Sys., Inc., 1999 U.S. Dist.
LEXIS 9065, at *22 (N.D. Ill. 1999); Serrano v. 900 5th
Ave Corp., 4 F.Supp.2d 351, 318 (S.D.N.Y. 1998);
Burdi v. Uniglobe Cihak Travel, Inc., 932 F.Supp.
1044, 1048 (N.D. Ill. 1996)).
Ocean Properties echoes two arguments made by AmeriPort in
its parallel motion for judgment as a matter of law: (1) that
Mr. Burnett's claim fails because he did not name Ocean
Properties in his administrative charge,  and (2) that Mr.
Burnett failed to meet his burden to show liability for
punitive damages. Id. at 19-20. Furthermore, Ocean
Properties contends that if found liable under a joint
employer theory, it cannot be responsible for punitive
damages because a finding that two entities are joint
employers does not impact the entities' liability to the
employee for each other's actions, and there is no
evidence to show any Ocean Properties' employees were
associated with Mr. Burnett's requests for accommodation.
Id. at 20.
Ryan Burnett's Opposition
Burnett opposes the motion, noting that the jury verdict is
“entitled to significant deference.”
Pl.'s Opp'n to Rule 50(b) Mot. at 1. He also
argues that Ocean Properties has waived several of its
arguments at this juncture because it failed to bring them in
its Rule 50(a) motion at trial. Id. at 2. These
arguments include (1) Ocean Properties' challenge on the
basis that Mr. Burnett failed to prove the numerosity
requirement; (2) its contention that Mr. Burnett is not
entitled to damages because he did not include Ocean
Properties in his administrative charge; and (3), that Mr.
Burnett failed to show reckless disregard or malice on the
part of Ocean Properties to sustain an award of punitive
damages. Id. According to Mr. Burnett, “[i]n
the pre-verdict motion for judgment as a matter of law, the
grounds raised were only that the Plaintiff had not
established integrated or joint employer.” Id.
(citing Trial Tr. II 269:16-21 (ECF No. 191)
(Trial Tr. II)). Mr. Burnett also notes that Ocean
Properties never objected to the jury instructions on the
issues it now raises. Id.
the merits of Ocean Properties' contentions, Mr. Burnett
avers that the evidence at trial overwhelmingly supports the
conclusion that Ocean Properties had more than fifteen
employees, and likely more than five hundred. Id. at
1. Mr. Burnett states that Lori Darsaoui testified that Ocean
Properties is one of the largest privately held hotel
companies in North America. Id. at 4 (citing
Trial Tr. I 128:23-25 (ECF No. 190) (Trial Tr.
I)). Furthermore, “Ms. Darsaoui admitted that she
assumed that if all of the employees who worked at the
various OPL hotels and affiliates were added together, there
would be over 500 employees.” Id. (citing
Trial Tr. I 128:23-25). This, along with the fact
that “it would be impossible for one of the largest
hotel companies in North America, with numerous properties
under its brand, to operate with no employees whatsoever,
” supports the jury's finding that Ocean Properties
has over fifteen employees, according to Mr. Burnett.
Id. Mr. Burnett also contends that Ms. Darsaoui
testified that OPL was larger in size than AmeriPort, which
she stated had between seventy-five and one hundred employees
depending on the season. Id. (citing Trial Tr.
response to Ocean Properties' contention that it was not
an integrated enterprise or joint employer with AmeriPort,
Mr. Burnett argues that the evidence supports either finding.
Id. at 5. Mr. Burnett also notes-in response to
Ocean Properties' argument that the Court erred in
failing to instruct the jury that Ocean Properties cannot be
both a joint employer and in integrated enterprise with
AmeriPort-that Ocean Properties never objected to the
instruction, and never objected to the Court's exact
answer to the jury's question on the issue. Id.
at 6 (citing Trial Tr. III 335; 368-69; 375 (ECF No.
192) (Trial Tr. III). Mr. Burnett argues that Ocean
Properties has waived its present argument.
Burnett also contends that the evidence at trial is
sufficient to show Ocean Properties is a joint employer of
AmeriPort, because Ocean Properties had sufficient control
over Mr. Burnett during his employment. Id. at 7
(citing Acosta v. Harbor Holdings & Operations,
Inc., 674 F.Supp.2d 351, 371 (D. P. R. 2009)). He cites
Rivera-Vega v. Conagra Inc., 70 F.3d 153, 163 (1st
Cir. 1995), as setting forth the factors to be considered
when determining whether a “joint employer
relationship” existed between two companies.
Id. Here, Mr. Burnett argues, the Ocean Properties
employee handbook, Ocean Properties-provided employee
benefits, and hiring statement naming “Ocean Properties
Hotels, Resorts, and Affiliates” all show that the two
entities “‘share or co-determine those matters
governing essential terms and conditions or
employment.'” Id. at 7-8 (quoting
Holyoke Visiting Nurses Ass'n v. NLRB, 11 F.3d
302, 307 (1st Cir. 1993)).
to Mr. Burnett, the record demonstrates that an integrated
enterprise relationship existed between Ocean Properties and
AmeriPort. Id. at 5. Mr. Burnett says that the
evidence the jury could have found to support common
ownership includes that:
The AmeriPort call center took reservations for 45 different
properties, all marketed under the OPL umbrella. Trial
Tr. I 125:14-21. Plaintiff testified that he understood
his employer to be Ocean Properties. Id. 42:17-22.
He was given an OPL employee handbook, Pl. Tr. Ex.
3, which is highly probative of interrelated business
operations and control of labor relations. He signed a 90-day
probationary hire form that stated that he
“recognize[s] and accept[s] as a term of hire a 90-day
probationary period with Ocean Properties.”
Id.; Pl. Tr. Ex. 1.
Id. at 10. Mr. Burnett states that this evidence
shows Ocean Properties “directed the operations of its
reservation call centers.” Id. at 11. He also
contends that Portsmouth Corporate Financial Services, Inc.,
(PCFSI), the entity that employs Joyce Dawson, Ms.
Darsaoui's supervisor, and human resources employee
Cedric Rothkegel, and is the office referenced in the
Employee Hiring Statement signed by Mr. Burnett and the
office where Ms. Darsaoui submits AmeriPort payroll, has been
demonstrated at trial to be “solidly connected”
to AmeriPort. Id. at 11-13.
Burnett says that Ocean Properties' cannot now contend
that the Court erred in failing to include in its jury
instructions that the jury could only assign liability to
Ocean Properties as a joint employer or integrated enterprise
with AmeriPort but that it could not find both, as Ocean
Properties failed to object to the jury instructions on this
ground. Id. at 14. In the absence of objection, the
Court can only consider a plain error in jury instructions if
it “affects substantial rights.” Id.
(citing Fed.R.Civ.P. 51(d)). Mr. Burnett argues that the
outcome would not have been different if the Court had
instructed them that they could find either joint employer or
an integrated enterprise, but not both, because there was
“substantial evidence of connection between the two
companies.” Id. at 15.
response to Ocean Properties' argument that the
administrative charge was defective, entitling it to judgment
as a matter of law, Mr. Burnett reiterates his position that
the “identity of interests” doctrine applies with
respect to the named defendant, AmeriPort, and the unnamed
defendant, Ocean Properties. Id. at 16.
Mr. Burnett disputes that he failed to provide evidence of
reckless indifference with respect to Ocean Properties to
justify a punitive damages award. He contends that Ocean
Properties failed to object to the jury instructions given
during the punitive damages, and has therefore waived its
present argument that, if found to be a joint employer with
AmeriPort, it cannot be held liable for AmeriPort's
actions with respect to punitive damages. Id. at 17
(citing Romano, 233 F.3d at 663).
Ocean Properties' Reply
Properties replies that Mr. Burnett still “fails to
point to specific evidence” to counter its contentions,
“instead cling[ing] to . . . conclusory assertions,
speculation, and disconnected reference points.”
Def.'s Reply Rule 50(b) Mot. at 1. It further
contends that “the requirement to move for judgment as
a matter of law before the case is submitted to the
jury” does not require strict adherence, because
“many courts take a ‘functional approach'
rather than imposing a ‘formal requirement' of an
explicit motion at a certain point in trial.”
Id. at 2 (citing Fed.R.Civ.P. 50, Advisory Comm.
Note to 2006 Amendment; Simon v. Navon, 71 F.3d 9,
14 (1st Cir. 1995); C. Wright & A. Miller, Federal
Practice & Procedure, § 2537, at 576-80 (2008)).
Properties again contends that the evidence offered by Mr.
Burnett shows that he “may have been employed by an
affiliated entity, but he failed to establish anything
more.” Id. at 3. Ocean Properties points to
the fact that Ms. Darsaoui testified “she had no
‘legal knowledge' if ‘Ocean Properties Hotels
Resorts and Affiliates was a legal entity.'”
Id. at 4 (citing Trial Tr. I 125-126). As
such, Ocean Properties contends, the Court must enter
judgment as a matter of law because Mr. Burnett failed to
prove Ocean Properties and AmeriPort were integrated
employers or that Ocean Properties meets the numerosity
requirement under the ADA.
Ocean Properties reiterates its contention that under the
theory of joint employer liability, it has demonstrated no
reckless disregard or malicious conduct to allow a punitive
damages verdict to stand against it. Id. at 6-7.
Legal Standard: Judgment as a Matter of Law
procedure governing judgment as a matter of law is set forth
in Federal Rule of Civil Procedure 50. 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”)); 5A James W.
Moore et al., 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)”). Furthermore,
“[t]he movant cannot use such a motion 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. Failure to raise an
argument in a Rule 50(a) motion at the close of evidence
“is waived as a ground for judgment under Rule
50(b).” 5A Moore's Federal Practice § 50.08.
reviewing a motion for judgment as a matter of law, the Court
must “view the evidence ‘in the light most
favorable to the nonmoving party, drawing all reasonable
inferences in its favor.'” McMillan v. Mass.
Soc. for Prevention of Cruelty to Animals, 140 F.3d at
288, 299 (1st Cir. 1998) (quoting Morrison v. Carleton
Woolen Mills, Inc., 108 F.3d 429, 436 (1st Cir. 1997)).
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
threshold issue, the Court considers whether Ocean Properties
waived the arguments presented in its renewed motion by
failing to raise them in its 50(a) motion at trial. Ocean
Properties argues in its reply brief that “strict
adherence to Rule 50 is not required, ” citing
Lynch v. City of Boston, 180 F.3d 1, 13 n.9 (1st
Cir. 1999), and Simon, 71 F.3d at 14. While it is
true that courts have at times accepted Rule 50(a) motions
that present arguments with varying degrees of specificity
and completeness, the First Circuit has never wavered in its
interpretation of the Federal Rule of Civil Procedure
requirement that parties bring an argument in a 50(a) motion
in order to later present the same argument in a renewed
50(b) motion. See Jones ex rel. U.S. v. Mass. Gen.
Hosp., 780 F.3d 479, 487-88 (1st Cir. 2015);
Segarra, 590 F.3d at 26 n.4; Correa, 69
F.3d at 1196.
Lynch, which Ocean Properties cites as support for
its position that several of its arguments should be
considered despite failing to raise them in a Rule 50(a)
motion, the First Circuit stated:
To be sure, [the movant] could have made the argument more
precisely in her Rule 50(a) motion, but “[t]he rule
does not require technical precision in stating the grounds
of the motion. It does require that they be stated with
sufficient certainty to apprise the court and opposing
counsel of the movant's position with respect to the
motion.” 9A C. Wright & A. Miller, Federal
Practice and Procedure, § 2533, at 310-11 (1995).
180 F.3d at 13.
Properties raised four arguments in the form of Rule 50(a)
motions: (1), that Mr. Burnett did not establish that Ocean
Properties met the requirements for integrated employer,
Trial Tr. II 270:16-21; (2) that Mr. Burnett also
failed to prove that Ocean Properties met the requirements
for joint employer, id.; (3) that the record did not
contain sufficient evidence to support a punitive damages
instruction,  id. 312:23-313:23; and (4) that
judgment as a matter of law should be granted in its favor
because Mr. Burnett failed to show the accommodation he
requested was reasonable, id. 316:3-24.
noted by Mr. Burnett in his opposition brief, Ocean
Properties never argued in a Rule 50(a) motion that he failed
to prove Ocean Properties had fifteen or more employees, the
so-called “numerosity requirement” of the ADA.
Pl.'s Opp'n to Rule 50(b) Mot. at 2. It also
never argued that the administrative charge was defective
because it failed to name Ocean Properties. Finally, Ocean
Properties did not argue that it could not be held liable for
punitive damages based on AmeriPort's conduct.
the arguments brought on a Rule 50(a) motion need not be
stated with “technical precision, ” the rule
requires that the movant's arguments “be stated
with sufficient certainty to apprise the court and opposing
counsel of the movant's position with respect to the
motion.” Lynch, 180 F.3d at 13. “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.” Correa, 69 F.3d at
1196. In Lynch, the arguments were raised by the
movant artlessly or without specificity, but the First
Circuit concluded that they were raised “with
sufficient certainty to apprise the court and opposing
counsel of the movant's position with respect to the
motion.” Lynch, 180 F.3d at 13. Here, they
were not raised at all. As such, pursuant to established
caselaw and Federal Rule of Civil Procedure 50, the Court
finds these arguments are waived and are not available in
support of Ocean Properties' renewed motion.
Properties renews its Rule 50(a) argument that Mr. Burnett
failed to establish an integrated employer relationship
between AmeriPort and Ocean Properties; therefore, no
reasonable jury can assign liability to Ocean Properties.
Def.'s Rule 50(b) Mot. at 1.
Romano, the First Circuit recognized the integrated
enterprise test as what “currently appears to be the
standard adopted, or at least applied, by a majority of
circuits that have reached the issue in Title VII
cases” of whether the minimum-employee threshold has
been met to impose liability. 233 F.3d at 665-66. In
Moreno v. John Crane, Inc., the district court
applied the First Circuit's recognition and adoption of
the test in Title VII cases to an action under the ADA. 963
F.Supp. 72, 75 (D.P.R. 1997) (citing Mas Marques v. Dig.
Equip. Corp., 637 F.2d 24 (1st Cir. 1980). Four factors
are considered under the integrated enterprise test to
determine “whether two or more entities are a single
employer” are “(1) common management; (2)
interrelation between operations; (3) centralized control
over labor relations; and (4) common ownership.”
Torres-Negron v. Merck & Co., Inc., 488 F.3d 34,
42 (1st Cir. 2007) (citing Romano, 223 F.3d at 662).
However, “[a]ll four factors . . . are not necessary
for single-employer status. Rather, the test should be
applied flexibly, placing special emphasis on the control of
employment decisions.” Id. (citing
Romano, 223 F.3d at 666).
First Circuit has consistently held that “centralized
control of labor relations [is] the ‘primary
consideration in evaluating employer status.'”
Torres-Negron, 488 F.3d at 42 (citing
Romano 233 F.3d at 666). This case is similar to
Torres-Negron in that “there is a significant
amount of evidence weighing in favor of a single-employer
finding.” Id. at 43. Mr. Burnett testified
that he understood his employer to be Ocean Properties,
Trial Tr. I 42:20-22; he signed a probationary
hiring form stating his employer was “Ocean Properties,
” id. at 42:17-22; and he was given an Ocean
Properties employee handbook, Pl.'s Tr. Ex. 3.
Pl.'s Opp'n to Rule 50(b) Mot. at 10.
Although Ms. Darsaoui claims the form was created in error,
viewing all evidence in the light most favorable to Mr.
Burnett, the hiring statement is strong evidence of
centralized control of labor relations.
hiring advertisement published by Ocean Properties, Ltd.,
stated “join our call center team! Ocean Properties,
Ltd., is one of the largest privately held hotel management
and development companies in North America.”
Pl.'s Tr. Ex. 65. On the advertisement, Ms.
Darsaoui's contact information is listed, along with her
“@oceanprop.com” email address. Id.
Although Ms. Darsaoui stated that she was an employee of
AmeriPort, not Ocean Properties, the advertisement shows a
link between the two entities.
although Ms. Darsaoui testified that her supervisor, Ms.
Dawson, was an employee of Portsmouth Corporate Financial
Services, Incorporated (PCFSI), a jury could reasonably infer
based on Ms. Darsaoui's testimony and exhibits entered at
trial that PCFSI is a corporate office associated with Ocean
Properties. The hiring statement signed by Mr. Burnett,
acknowledging him as an “an employee of Ocean
Properties Ltd. or Affiliated Companies, ” directs
“all legal services, legal papers, contracts, leases,
or written agreements” to PCFSI, at the address of the
corporate office where it was established that Ms.
Dawson's supervisor, Tom Varley, works, along with human
resources employee, Cedric Rothkegel. Trial Tr. I
124:23-125:1; id. 130:8-16. Employees at the PCFSI
corporate office gave Ms. Darsaoui's guidance on her
human resources questions, further demonstrating shared
control of labor relations. Id.
the evidence cited above could be construed by the jury as
evidence of interrelation between operations, as well.
According to the First Circuit in Romano,
“[e]xamples include: shared employees, services,
records, office space, and equipment, commingled finances,
and handling by the parent of subsidiary tasks such as
payroll, books, and tax returns.” 233 F.3d at 667.
Here, employees who worked at AmeriPort were supervised by
employees of PCFSI, which as noted, a jury could infer is
connected to Ocean Properties. Moreover, as testified by Ms.
Darsaoui, after she conducted payroll, she routinely sent it
to the payroll administrator at PCFSI to process the payroll
and send it to another entity to issue paychecks. Trial
Tr. II 240:12-18.
parties dispute whether evidence of common ownership was
brought at trial; they also dispute the importance of this
factor in the single-enterprise test. See Pl.'s
Opp'n to Rule 50(b) Mot. at 9; Def.'s Rule
50(b) Mot. at 8. According to Ocean Properties,
“[t]here was not a scintilla of evidence presented to
the Jury as to who owned AmeriPort or who owned OPL.”
Def.'s Rule 50(b) Mot. at 8. The Court agrees
that the record lacks overwhelming evidence of common
ownership or financial control between the entities; however,
that is not to say that the record lacks sufficient evidence
to support a reasonable jury concluding that common ownership
existed. In fact, the evidence the district court cited as
establishing common ownership in Arroyo-Perez is
similarly demonstrated here. 762 F.Supp.2d at 385-88.
Arroyo-Perez, as noted by Ocean Properties,
employees of one entity “directed and managed the
affairs” of the other entity. Id. at 8 (citation
omitted). “The Court noted that evidence that documents
bearing DGI Canada's name and emails on the
Plaintiff's employer had been sent, unlike here, by a
person expressly found to be and identifying himself as a DGI
Canada employee.” Id. Here, although Ms. Darsaoui
did not admit to being employed by Ocean Properties, she had
an Ocean Properties email address, and a reasonable jury
could find that Ms. Dawson was an employee of a corporate
office connected with Ocean Properties. Ms. Darsaoui, who
testified to running AmeriPort, testified that Ms. Dawson was
her direct supervisor. Trial Tr. II 240:17.
Furthermore, the fact that Mr. Burnett signed an Ocean
Properties hiring statement is additional evidence of common
ownership. Pl.'s Tr. Ex. 2.
Court also does not agree with Ocean Properties'
interpretation of Arroyo-Perez that “common
ownership [is] a very important, if not indispensable fact
toward establishing integrated employer.”
Def.'s Rule 50(b) Mot. at 8. In
Arroyo-Perez, the district court listed four factors
for the “integrated-enterprise test”: “(1)
interrelation of operations; (2) common management; (3)
centralized control of labor operations; and (4) common
ownership.” 762 F.Supp.2d at 385 (citing Hisbrunner
v. Martinez Ramirez, 438 F.Supp.2d 10, 14 (D.P.R. 2006)
(citing Molina Viera v. Yacoub, 425 F.Supp.2d 202,
204 (D.P.R. 2006) (citing Romano v. U-Haul
Int'l, 233 F.3d 655, 666 (1st Cir. 2000)). In
Arroyo-Perez, the district court found that
“[t]he plaintiff submits sufficient evidence of the
commonality of ownership, operation, and management between
DGI Canada and DGI Florida to be counted as one company for
the Title VII numerosity requirement, ” but the
district court did not indicate that it weighed one factor
more than the others in reaching this conclusion.
Id. at 386.
to Ocean Properties' position, the First Circuit has held
that centralized control of labor relations should be the
“primary consideration in evaluating employer
status.” Torres-Negron, 488 F.3d at 42 (citing
Romano 233 F.3d at 666) (emphasis added). In
Romano, the First Circuit wrote that “[o]f the
circuits that have applied the integrated-enterprise test,
there is near unanimity that control of labor operations i.e.
control of employment decisions, is the most important of the
four factors.” Romano, 233 F.3d at 666. Here,
there is evidence of centralized control of labor relations,
as well as the other factors in the integrated enterprise
test, that, taken as a whole, is sufficient to support the
jury's determination that Ocean Properties and AmeriPort
were an integrated enterprise.
joint employer doctrine seeks to hold an entity liable to an
employee of another entity if the evidence shows that it
sufficiently had power over the employee in question.”
Acosta, 674 F.Supp.2d at 371. To determine whether
two employers fall under the doctrine, it must be determined
whether both control “the labor relations of a given
group of workers.” Rivas, 929 F.2d at 820
(citation and internal quotation marks omitted). “The
joint employer concept recognizes that the business entities
involved are in fact separate but that they share or
co-determine those conditions of employment.”
Id. at 820 n.17. (emphasis in original) (citations
First Circuit has “favorably acknowledged a host of
factors used by other courts used in determining the
existence of joint employer status.”
Rivera-Vega, 70 F.3d at 163 (citing
Holyoke, 11 F.3d at 306; Rivas, 929 F.2d at
820-21). These include:
Supervision of the employees' day-to-day activities;
authority to hire, fire, or discipline employees; authority
to promulgate work rules, conditions of employment, and work
assignments; participation in the collective bargaining
process; ultimate power over changes in employer
compensation, benefits and overtime; and authority over the
number of employees.
Id. (citing W.W. Grainger, Inc. v. NLRB,
860 F.2d 244, 247 (7th Cir. 1988); Clinton's
Ditch Coop. Co. v. NLRB, 778 F.2d 132, 138-39 (2d
Cir. 1985), cert. denied, 479 U.S. 814 (1986);
Ref-Chem Co. v. NLRB, 418 F.2d 127, 129 (5th Cir.
1969)). Whether the respondents retained sufficient control
over employees to be considered a joint employer is a factual
issue. Boire v. Greyhound Corp., 376 U.S. 473, 481
Court concludes there is enough evidence in the record to
support a reasonable jury's finding that Ocean Properties
acted as joint employer alongside AmeriPort. Although Mr.
Burnett stated that he believed his employer to be Ocean
Properties, there was evidence to show Mr. Burnett was
employed by AmeriPort, including his W-2 form. Pl.'s
Tr. Ex. 14. A jury could also reasonably conclude that
Ocean Properties had the authority to promulgate work rules
for the reservation center, since Mr. Burnett was provided
with an Ocean Properties' Employee Handbook, he signed a
form acknowledging a probationary period of employment with
Ocean Properties, and his hiring statement referenced
“Ocean Properties and Affiliated Companies.”
Pl.'s Tr. Ex. 1; Pl.'s Tr. Ex. 2;
Pl.'s Tr. Ex. 4. Mr. Burnett also participated
in an employee benefits program administered by Ocean
Properties, not AmeriPort. Pl.'s Tr. Ex. 13.
Although Ms. Darsaoui testified that she ran the day-today
operations of the AmeriPort reservation center, her direct
supervisor, Joyce Dawson, also worked in the same building
and was on the payroll of PCFSI, a corporate office connected
with Ocean Properties. Trial Tr. II 230:6-21. A
reasonable jury could find that Ms. Dawson, in her
supervisory capacity, had authority over whether to hire,
fire, or discipline employees. The evidence that Ocean
Properties retained sufficient control over AmeriPort
employees is satisfactory to maintain the jury's verdict
that Ocean Properties and AmeriPort were joint employers of
Properties also avers that Mr. Burnett “failed to put
on any proof at trial that OPL had any employees; therefore,
he failed to show that Ocean Properties met the
fifteen-employee requirement for application of Title VII and
the ADA. Def.'s Rule 50(b) Mot. at 3. As
discussed supra, the court finds that Ocean Properties failed
to raise this argument in a Rule 50(a) motion, and it is
waived. Even if the Court were to reach its merits, however,
the argument would fail under the principle of aggregation.
42 U.S.C. § 12112, only a “covered entity”
is prohibited from discriminating against an employee.
Section 12111(2) includes an employer as a covered entity.
For purposes of the ADA, “employer” is defined as
“a person engaged in an industry affecting commerce who
has 15 or more employees for each working day in each of 20
or more calendar weeks in the current or preceding calendar
year, and any agent of such person . . ..” §
12111(5)(A). Courts must focus their inquiry on the calendar
year in which the alleged discrimination occurred or the
preceding calendar year in determining whether the employer
was a covered entity. De Jesús v. LTT Card Servs.,
Inc., 474 F.3d 16, 19 (1st Cir. 2007). The Supreme Court
has interpreted the employee numerosity requirement as an
element of the plaintiff's claim for relief, rather than
“an ingredient of subject-matter jurisdiction in
delineating diversity of citizenship jurisdiction under 28
U.S.C. § 1332.” Arbaugh v. Y&H Corp.,
546 U.S. 500, 515 (2006); see also De Jesús,
474 F.3d at 19.
First Circuit has not directly considered whether employers
can be aggregated to meet the fifteen-employee threshold
under § 12111(5)(A). However, the district court in
Rey-Cruz v. Forensic Science Institute explained
that “the ADA and Title VII are identical in many
respects . . . [and] the ADA's definition of employer
tracks that of Title VII, and similarly limits liability to
employers with 15 or more workers.” 794 F.Supp.2d 329,
334 (D.P.R. 2011) (comparing 42 U.S.C. § 2000e(b) with
§ 12111(5)(A)); Lopez v. Massachusetts, 588
F.3d 69, 84 (1st Cir. 2009) (“employer” under
Title I of the ADA has the same meaning as
“employer” under Title VII of the Civil Rights
Act); see also Walsh v. Nev. Dep't of Human
Res., 471 F.3d 1033, 1038 (9th Cir. 2006); De
Jesús, 474 F.3d at 21. The Court, therefore, will
consider relevant caselaw regarding the employee-numerosity
requirement under Title VII in its analysis.
prove the minimum-employee requirement, the plaintiff must
show that “an employer has employment relationships
with the requisite number of employees . . . In this circuit,
we have applied the common-law agency test to decide whether
an individual is an employee for the purposes of the
ADA.” Escribano-Reyes v. Prof'l Hepa
Certificate Corp., 817 F.3d 380, 389 (1st Cir. 2016)
(citations omitted). “Courts may rely on the
‘payroll method,' or calculating the number of
employees who are on the payroll for each day of a given week
regardless of whether they were actually present at work each
day, to determine whether an employer has reached Title
VII's threshold number.” Aly, 711 F.3d at
44-45 (citing Walters v. Metro. Educ. Enters., Inc.,519 U.S. 202, 207 (1997); De Jesús, 474 F.3d
at 21). Although Ocean Properties contends that the payroll
method should be used to prove the ...