United States District Court, D. Maine
ORDER ON DEFENDANT, LINCARE, INC.'S MOTION FOR
E. WALKER U.S. DISTRICT JUDGE.
Jeffrey Joseph, filed this action against Defendants Lincare,
Inc., Family Practice On The River d/b/a Kennebunk Walk-In
Clinic, Inc., and Patrick Butcher, claiming Defendants
intentionally discriminated against him on the basis of his
race. Mr. Joseph brings claims for damages suffered as a
result of the alleged discrimination under federal and state
pending is Defendant Lincare, Inc.'s Motion for Summary
Judgment (ECF No. 46). Defendant seeks judgment as a matter
of law on Plaintiff's discrimination claims because it
argues it did not treat Plaintiff differently because of his
race. For the reasons discussed below, Defendant's motion
summary judgment facts are drawn from the parties'
stipulations, if any, and from their statements of material
facts submitted in accordance with Local Rule 56. The Court
will adopt a statement of fact if it is admitted by the
opposing party and is material to the dispute. If a statement
is denied or qualified by the opposing party, or if an
evidentiary objection is raised concerning the record
evidence cited in support of a statement, the Court will
review those portions of the summary judgment record cited by
the parties, and will accept, for summary judgment purposes,
the factual assertion that is most favorable to the party
opposing the entry of summary judgment, provided that the
record material cited in support of the assertion is of
evidentiary quality and is capable of supporting the
party's assertion, either directly or through reasonable
inference. D. Me. Loc. R. 56; Boudreau v. Lussier,
901 F.3d 65, 69 (1st Cir. 2018).
case arises out of an employment dispute between the
Plaintiff, Jeffrey Joseph and his former employer, Lincare,
Inc., surrounding Lincare's decision to fire Mr. Joseph
on March 27, 2017. Mr. Joseph alleges that in so doing
Lincare deprived him of his rights to equal racial treatment
under federal and state law.
is a Florida-based corporation that supplies respiratory
therapy products and services to patients in the home.
Defendant Lincare's Statement of Material Facts
(“DSMF”) DSMF ¶ 2. Lincare works with
physicians and medical offices throughout Maine and across
the country-called referral sources-to identify and service
patients who will benefit from Lincare's products and
services. DSMF ¶ 2. Mr. Joseph worked for Lincare as a
sales representative at the company's Falmouth, Maine
location from January 18, 2017 until his termination on March
27, 2017. DSMF ¶ 7. Mr. Joseph's duties included
selling medical equipment, building relationships with
referral sources, resolving complaints, and obtaining
documentation from clients. DSMF ¶ 8.
March 23, 2017, Mr. Joseph made a sales call to Defendant
Family Practice on the River d/b/a “Kennebunk Walk in
Clinic” (“KWIC” or “the
Clinic”). Lincare had asked Mr. Joseph to go to the
Clinic to pick up a “certificate of medical
necessity” for one of its patients, and to get a
signature from the Clinic for insurance purposes. DSMF ¶
10. When he arrived, Mr. Joseph first sought the certificate
of medical necessity at the Clinic's front desk. DSMF
¶ 12. Shortly thereafter, Defendant Patrick Butcher, the
Clinic's manager, entered the room and informed Mr.
Joseph that the Clinic's doctor did not want to speak
with him, and that the Clinic had no interest in working with
Lincare. DSMF ¶¶ 11, 13. Mr. Joseph asked if he
could set up a meeting with the doctor, but Mr. Butcher
insisted that they were no longer interested in using Lincare
and the doctor did not want to meet. DSMF ¶¶ 14-15.
Mr. Butcher then told Mr. Joseph to leave the clinic. DSMF
leaving, Mr. Joseph called his manager, Dennis Lizotte, to
tell him about the sales call. DSMF ¶ 17. Mr. Joseph
recounted that he felt Mr. Butcher had disrespected him,
discriminated against him based on his color, that the Clinic
would not sign the certificate of medical necessity, and that
the interaction left Mr. Joseph so nervous and scared that he
wanted to file a complaint with the police department. DSMF
¶ 19, PSAMF ¶ 6. That same day, Mr. Joseph went to
the Kennebunk Police Department to fill out a police report
about the incident. DSMF ¶ 20.
talking with his supervisor, Mr. Joseph called the Clinic to
try to speak with Mr. Butcher again. DSMF ¶ 20. On the
call, Mr. Joseph described Mr. Butcher's behavior as
“disrespectful, ” and Mr. Butcher, in turn,
described feeling threatened when Mr. Joseph said “I
will be back, you don't know who I am.” DSMF
¶¶ 21-22. After a brief conversation, Mr. Butcher
hung up on Mr. Joseph. DSMF ¶ 23. Mr. Joseph called the
Clinic back multiple times that day, but did not speak with
Mr. Butcher again. Id.
Butcher then called Mr. Lizotte to complain about Mr.
Joseph's behavior. DSMF ¶ 26. Mr. Butcher described
Mr. Joseph by his physical appearance including height, race,
and accent because he did not know Mr. Joseph's name.
Id. Mr. Lizotte provided Mr. Joseph's name on
the call. DSMF ¶ 27. Mr. Butcher then described how Mr.
Joseph had bothered him and his staff during the sales call
and asked that Mr. Joseph be terminated immediately. DSMF
¶ 28. Mr. Lizotte rejected this demand; he explained
that he would not fire an employee over the phone and that he
needed to have a chance to talk to Mr. Joseph again after
things had settled down. DSMF ¶ 29.
Butcher sent a follow-up letter to Lincare's CEO, CFO,
President, and four Directors describing the March 23
incident with Mr. Joseph. DSMF ¶ 30. In his letter, Mr.
Butcher described Mr. Joseph as “about 6 feet 4 inches,
mid 30's African American with what seem [sic]
to be a Jamaican accent, ” recounted that Plaintiff
called him repeatedly, saying “[o]h I'll be
back-you don't know who I am, ” and that he was
contemplating filing a complaint for criminal trespass. DSMF
¶¶ 30-33, Plaintiff's Opposing Statement of
Material Facts (“POSMF”) ¶ 33. Mr. Butcher
gave a deadline of March 31, 2017 to respond to his letter,
and in the absence of a “mutually agreeable settlement,
” he threatened to take “legal action, contact
the media, etc.” POSMF ¶ 30.
days later, Mr. Lizotte's manager at Lincare, Tarrah
Filo-Loos, called the Clinic and apologized to Mr. Butcher
for what had happened on March 23. DSMF ¶¶ 34-35.
After receiving the apology, Mr. Butcher testified that he
felt satisfied the situation was resolved. DSMF ¶ 35. On
the following Monday, March 27, Ms. Filo-Loos called Mr.
Lizotte to discuss what had happened at the Clinic. DSMF
¶ 37. On this call, Ms. Filo-Loos asked why Mr. Lizotte
did not fire Mr. Joseph right away after the incident. DSMF
¶ 38. Mr. Lizotte responded that from what he had been
told, the encounter seemed out of character and he was not
worried about future problems with Mr. Joseph. DSMF ¶
this conversation, however, Mr. Lizotte learned about Mr.
Joseph's multiple calls to the Clinic on March 23rd, and
the two agreed to terminate Mr. Joseph's employment. DSMF
¶ 40. The record reflects Lincare had two
overlapping reasons to fire Mr. Joseph: because he “did
not know when it was time to leave an office, ” and
because he called the Clinic repeatedly in an unprofessional
manner. See DSMF ¶¶ 42-43, POSMF
¶¶ 42-43. Because Mr. Joseph was still within his
ninety-day trial period with Lincare, company policy did not
require progressive steps of discipline, and termination
could be immediate. DSMF ¶¶ 47, 49. In line with
this policy, Mr. Lizotte informed Mr. Joseph of the
termination that same day, and gave Mr. Joseph an opportunity
to describe his version of the March 23 incident at the
Clinic. DSMF ¶ 45. Mr. Joseph did not speak to anyone
higher up at Lincare about his termination, or to anyone in
the company's ...