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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, Defendants.

          ORDER ON OCEAN PROPERTIES' POST-TRIAL MOTIONS

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

         An 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.

         I. BACKGROUND

         On 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).

         On 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).

         Mr. 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).

         II. MOTION FOR JUDGMENT AS A MATTER OF LAW

         A. Positions of the Parties

         1. Ocean Properties' Motion

         Ocean 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. Id.

         Furthermore, 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)[1]). 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.

         Ocean 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).

         Ocean 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.

         Ocean 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)).

         Finally, 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, [2] 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.

         2. Ryan Burnett's Opposition

         Mr. 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.

         Addressing 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. II 224:7-13).

         In 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.

         Mr. 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)).

         According 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.

         Mr. 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.

         In 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.

         Finally, 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).

         3. Ocean Properties' Reply

         Ocean 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)).

         Ocean 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.

         Finally, 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.

         B. DISCUSSION

         1. Legal Standard: Judgment as a Matter of Law

         The 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).

         “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”)); 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.

         In 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 omitted).

         2. Analysis

         As a 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.

         In 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.

         Ocean 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, [3] 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.

         As 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. Id.

         Although 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.

         a. Integrated Enterprise

         Ocean 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.

         In 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).

         The 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.

         A 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.

         Furthermore, 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.

         Some of 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.

         The 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.

         In Arroyo-Perez, as noted by Ocean Properties, employees of one entity “directed and managed the affairs” of the other entity.[4] 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.[5] 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.

         The 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.

         Contrary 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.

         b. Joint Employer

         “The 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 omitted).

         The 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 (1964).

         The 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 Mr. Burnett.

         c. Minimum-Employee Threshold

         Ocean 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.

         Under 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.

         The 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.

         To 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 ...


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