BURNETT v. OCEAN PROPERTIES LTD

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

RYAN D. BURNETT, )

)

Plaintiff, )

)

v. ) No. 2:16-cv-00359-JAW

)

OCEAN PROPERTIES, LTD. )

and AMERIPORT, LLC, )

)

Defendants. )

ORDER ON OCEAN PROPERTIES’ POST-TRIAL MOTIONS

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

1 Counsel for Ocean Properties erroneously identifies Arroyo-Perez as a First Circuit case in its

brief. It is not. See infra n4.

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

2 The Court addressed this argument in its order on AmeriPort’s renewed motion for judgment

as a matter of law and adopts its conclusion by reference here. See Order Denying AmeriPort’s Motion

for Judgment as a Matter of Law (ECF No. 241).

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

3 The 50(a) motion regarding punitive damages and failure to show a reasonable accommodation

request was brought jointly by Ocean Properties along with AmeriPort.

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).

4 In its motion, Ocean Properties asserts that the Arroyo-Perez order is a decision of the First

Circuit. Def.’s Rule 50(b) Mot. at 8 (“The importance of the presence of common ownership facts is

exemplified in the First Circuit’s decision in Arroyo-Perez v. Demir Group International, 762 F. Supp.

2d 374 (1st Cir. 2011)”). It is not. The author of Arroyo-Perez is Magistrate Judge Arenas of the

District of Puerto Rico. 762 F. Supp. 2d at 375. The proper citation is Arroyo-Perez v. Demir Group

International, 762 F. Supp. 2d 374 (D.P.R. 2011).

The distinction is significant because this Court is bound by the decisions of the First Circuit

Court of Appeals, but not the decisions of the United States District Court of Puerto Rico. Despite the

miscitation, the Court assessed with respect Judge Arenas’ decision as his considered judgment. In

addition, Judge Arenas cited the four-factor test set forth in Romano, which is a First Circuit case. Id.

762 F. Supp. 2d at 385 (citing Romano, 233 F.3d at 665).

“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

5 Ocean Properties recited these facts in Arroyo-Perez but did not provide a citation. It would

have been helpful if counsel had cited the Arroyo-Perez case and provided a pin cite for the page setting

forth these facts, instead of leaving it to the Court to find the reference.

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-to-

day 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 minimum-employee

threshold, Def.’s Rule 50(b) Mot. at 4, the First Circuit has clarified that “payroll

records are not dispositive . . .. ” Escribano-Reyes, 817 F.3d at 388 (citing De

Jesús, 474 F.3d at 22).

In Escribano-Reyes, the First Circuit found that the plaintiffs failed to prove

on summary judgment the employee-employer relationship, after considering a list of

twenty-seven employee names with general job titles and rough estimates of the time

periods during which some of them allegedly worked for the employer, which was

based on the plaintiffs’ personal knowledge. Id. The First Circuit concluded that

“[w]ithout more concrete, specific evidence, a reasonable trier of fact simply could not

find that the individuals on Escribano’s list . . . were in an employment relationship

with HEPA.” Id. at 390. Cf. Ost v. W. Suburban Travelers Limousine, Inc., 88 F.3d

435, 439–40 (7th Cir. 1996) (finding that an affidavit from an employee that her

employer had twenty-four employees was “too vague a submission to carry her

burden” to prove that her employer was covered by Title VII)). The First Circuit also

held that “[t]he evidence Escribano submitted was . . . insufficient to satisfy the

temporal requirement in the definition of ‘employer,’ namely that HEPA had fifteen

. . . ‘or more employees were each working day in each of 20 or more calendar weeks

in the current or preceding calendar year.’” Id. (citing 42 U.S.C. § 12111(5)(A); see

also 29 U.S.C. § 630(b)).

In Aly, the First Circuit considered whether the record evidence of the

minimum number of employees was sufficient to uphold a jury’s verdict. 711 F.3d at

45. In that case, it was undisputed that the employer “employed fourteen employees

full-time for a period of at least twenty weeks during the relevant period.” Id. at 45-

46. Additionally, “[t]he evidence of payroll and timecards submitted into the record

show that most of the 61 part-time or seasonal workers were employed during the

seven-week summer camp.” The Aly Court concluded that “[a] reasonable jury could

find, based on this evidence, that any one or combination of the sixty-one employees”

could fill the eight-week gap between the fifteenth employee, who worked for twelve

weeks, and the twenty-week threshold. Id. at 46.

Mr. Burnett contends that “there was ample evidence at trial from which the

jury could determine that [Ocean Properties] had more than fifteen employees,

thereby satisfying the numerosity requirements of the ADA and the MHRA.” Pl.’s

Opp’n to Rule 50(b) Mot. at 3. In support, Mr. Burnett cites Ms. Darsaoui’s testimony

that Ocean Properties is one of the largest privately held hotel companies in North

America, as well as her statement that “if all the employees who worked at the

various [Ocean Properties] hotels and affiliates were added together, there would be

over 500 employees.” Id. at 4 (citing Trial Tr. Vol. II 223:20-22). Mr. Burnett also

argues that because AmeriPort is “one of many [Ocean Properties] affiliates,” and

AmeriPort has 75 to 100 employees on average, Ocean Properties must have more

than fifteen employees. Id. Mr. Burnett also testified that he understood his

employer to be Ocean Properties, which is supported by evidence of a hiring

statement, which states, “I, Ryan Burnett, recognize and accept as a term of hire a

90-day probationary period with Ocean Properties.” Pl.’s Tr. Ex. 1. This is the most

specific evidence in the trial record that goes to meet the minimum-employees

threshold, but as Mr. Burnett is only one employee, it falls short.

Given that much more specific evidence than this was deemed insufficient in

Escribano, the Court cannot find that Mr. Burnett showed Ocean Properties was

independently an entity covered by the ADA. Mr. Burnett did not name a single

employee of Ocean Properties, did not demonstrate an employer-employee

relationship for any individuals, and did not establish the number of employees

Ocean Properties had during 2014, the year that the discrimination allegedly took

place. Based on the trial record, the Court finds that the evidence that Ocean

Properties met the minimum-employee requirement was not sufficient for a

reasonable jury to find that Ocean Properties was an entity covered by the ADA.

This does not end the matter, however. Where, as here, the plaintiff cannot

demonstrate that the direct employer satisfies the minimum-employee threshold,

some courts have aggregated the employees of the actual employer and a related

entity to meet the threshold through various theories of liability, including joint

employer and integrated enterprise. See Romano, 233 F.3d at 655; Armbruster v.

Quinn, 711 F.2d 1332, 1336 (6th Cir. 1983), abrogated by Arbaugh v. Y&H Corp., 546

U.S. 500 (2006); Astrowsky v. First Portland Mortg. Corp., 887 F. Supp. 332, 336 (D.

Me. 1995); Auslander v. Collier & Tiku Assocs., 94 Civ. 11228 (MEL), 1995 WL

381666, at *2 (D. Mass. June 9, 1995). Although whether multiple employers may be

aggregated to meet the minimum-employee threshold required by § 12111(5)(A) has

not been reached by the First Circuit, the analogous Title VII cases cited above

support the Court’s conclusion that aggregation is appropriate here.

As explained above, sufficient evidence exists on this record to support a

reasonable jury finding a joint employer or integrated enterprise relationship

between Ocean Properties and AmeriPort. Mr. Burnett established at trial that

AmeriPort has between seventy-five and 100 employees. Under either a joint

employer theory or an integrated enterprise theory, the jurisdictional threshold of

fifteen or more employees has been met as to Ocean Properties through the principle

of aggregation. The Court, therefore, declines to disrupt the jury’s verdict as to Ocean

Properties on the grounds that Mr. Burnett failed to establish the minimum-

employee element required for him to succeed in his ADA claim.

d. Jury Instructions and Verdict Form

Ocean Properties argues that it is entitled to judgment as a matter of law

because the Court erred in its jury instructions and verdict form by failing to state

that the jury could assign liability to Ocean Properties as a joint employer or an

integrated enterprise, but not both. Def.’s Rule 50(b) Mot. at 6. It further contends

that this error is not harmless, because the determination of Ocean Properties’

employer status impacts the numerosity requirement and punitive damages liability.

Id. The Court disagrees.

Under Federal Rule of Civil Procedure 51, the court must give the parties an

opportunity to object to its proposed jury instructions before closing arguments and

the instructions are delivered. Rosa-Rivera v. Dorado Health, Inc., 787 F.3d 614, 618

(1st Cir. 2015) (citing FED. R. CIV. P. 51(b)(2)). The rule also requires that:

For an objection to be timely (except in circumstances not relevant here),

it must be made at this point. Failure to do so means the objection is

forfeited and reviewed for plain error only, the idea being that the trial

judge should be afforded the opportunity to cure the alleged error and

litigants stopped from ensuring a new trial in the event of an adverse

verdict by covertly relying on the error.

787 F.3d 614, 618 (1st Cir. 2015) (citations and internal quotations omitted). The

First Circuit has advised that “the requirements of Rule 51 ‘are not to be taken

lightly’ and ‘there is a high price to be paid for noncompliance.’” Booker v. Mass. Dep’t

of Pub. Health, 612 F.3d 34, 41 (1st Cir. 2010) (quoting DeCaro v. Hasbro, Inc., 580

F.3d 55, 60 (1st Cir. 2009)).

The Defendants did not object to the court’s proposed jury instructions during

the charge conference nor did they object to the instructions after they were presented

to the jury. Although there was discussion during the charge conference regarding

the definitions of joint employer and integrated enterprise that would be included in

the instructions, the Defendants never argued that an instruction limiting the jury

to assign liability under one or the other theory should be given.

Furthermore, the Defendants specifically agreed that Ocean Properties and

AmeriPort could be found both joint employers and an integrated enterprise in

response to the jury’s question on the subject. The Court held a conference of counsel

after receiving the following question from the jury during its deliberations: “[i]s it

possible that both questions three and four [on the verdict form] could be answered

yes?” Trial Tr. III 375:7-10. Question three of the verdict form stated: “[w]as Ocean

Properties an employer or joint employer of Mr. Burnett?” Verdict at 1. Question

four stated: “[w]ere Ocean Properties and AmeriPort integrated employers of Ryan

Burnett?” Id. at 2. The following discussion ensued:

THE COURT: I don’t think there’s anything that prohibits them

from answering both questions yes; do you agree?

MS. DESKINS: I have no disagreement, no.

THE COURT: So, what I’ll do is just simply answer – I’ll say in

response to your question, the answer is yes, both

questions 3 and 4 could be considered yes and leave

it at that. Is there any objection to that?

MS. WHITE: No, Your Honor.

THE COURT: Any objection?

MS. DESKINS: No.

Trial Tr. III 375:16-376-1.

Not only did the Defendants fail to object when the issue was specifically

raised, they agreed with the proposition that the jury could find liability on both

theories. “The failure to object to the instructions at the time, and in the manner,

designated by Rule 51 is treated as a procedural default, with the result that

the jury instructions, even if erroneous, become the law of that particular case.”

Toscano v. Chandris, S.A., 934 F.2d 383, 385 (1st Cir. 1991). The issue, therefore, is

subject only to plain error review, a standard reserved for “egregious circumstances”

where “the alleged error seriously affected the fairness or integrity of the trial.” Id.

(citations omitted).

The Court recognizes that the verdict does not delineate whether the jury

assigned liability to Ocean Properties as employer, as joint employer or as an

integrated employer based on its answer to question three. In light of this ambiguity,

the Court cannot know whether the jury found Ocean Properties liable as Mr.

Burnett’s employer, participating in an integrated enterprise with AmeriPort, or

whether the jury found Ocean Properties liable under both the joint employer and

integrated enterprise theories. There is, therefore, a possibility that the two answers

are legally incongruent, but the Court will not second-guess the jury’s findings in

assigning liability in order to overturn a verdict that is entitled to substantial

deference. As discussed above, the evidence presented at trial is sufficient to support

either theory of liability; therefore, no harmful error resulted from the Court’s failure

to instruct the jury that the theories of liability presented were mutually exclusive.

Given the sufficiency of the evidence as to each theory, and due to the

Defendants’ waiver on the issue at multiple points at trial, the Court will not disrupt

the jury’s verdict on the contention that it erred in failing to instruct the jury that the

theories of liability presented were mutually exclusive. Pursuant to Rule 51(d)(1)(b),

the Defendants forfeited their objection by not raising it during trial, and they

subsequently waived the argument by failing to raise it in their 50(a) motion. “It

strains credulity well past the breaking point to argue that the defendant’s self-

created plight can fit within so exclusive a classification” as the plain error standard.

Toscano, 934 F.2d at 385. The Court denies Ocean Properties’ Rule 50(b) motion.

III. MOTION FOR NEW TRIAL

Ocean Properties also moves for a new trial based on the alleged inconsistency

of the verdict discussed above. Def.’s Mot. for New Trial at 1-2.

A. Positions of the Parties

1. Ocean Properties’ Motion

Ocean Properties reiterates one of its Rule 50(b) arguments, that “[t]he [j]ury’s

verdict was inconsistent with the jury instructions and internally inconsistent

because it found that OPL was both a joint employer with AmeriPort and an

integrated employed with AmeriPort,” advancing it this time on the grounds of Rule

59(a). Id. at 1. According to Ocean Properties, “[t]he mutual exclusivity between

‘joint employer’ and ‘integrated employer’ and the different implications of each have

been universally recognized.” Id. at 3 (citing Bouey v. Orange Cty. Serv. Unit, 673

Fed. Appx. 952, 954 (11th Cir. 2016); Browning-Ferris Indus. of Pa., 691 F.2d 1117,

1121-23 (3d Cir. 1982)). Ocean Properties contends that the inconsistent factual

conclusions reached by the jury are harmful error, because of the implications of joint

employer status on the numerosity requirement under the ADA as well as on liability

for punitive damages. Id. at 3-4.6

6 Quoting Dunn v. United States, 284 U.S. 390, 387 (1932), Ocean Properties contended in its

memorandum that the Supreme Court has held that “no judgment is proper on inconsistent verdicts.”

2. Ryan Burnett’s Response

In his opposition, Mr. Burnett contends that Ocean Properties waived any

inconsistency in the verdict form by failing to object to the court’s instruction on the

verdict form, by agreeing to the Court’s proposed response to a jury question on the

exact issue, and by failing to timely object to any alleged inconsistency after the

verdict was read. Pl.’s Opp’n to Mot. for New Trial at 1-3.

According to Mr. Burnett, Ocean Properties has not met the standard for a new

trial pursuant to Federal Rule of Civil Procedure 59. Id. at 3. Mr. Burnett notes the

First Circuit’s “‘substantial reluctance’ to ordering a new trial based on inconsistent

civil jury verdicts,” id. (quoting McIsaac v. Didriksen Fishing Corp., 809 F.2d 129,

133 (1st Cir. 1987) (citing Merchant v. Ruhle, 740 F.2d 86, 91 (1st Cir. 1984)), as well

as its view that “[a] special verdict will be upheld ‘if there is a view of the case which

makes the jury’s answers consistent.’” Id. (quoting McIsaac, 809 F.2d at 133).

Addressing the merits of Ocean Properties’ arguments, Mr. Burnett disputes

its position that the integrated enterprise test and the joint employer test are

“diametrically opposed,” as the factors for each test are “highly similar.” Id. at 4. Mr.

Burnett cites caselaw in which the court found that under either an integrated

enterprise or joint employer theory, the result was the same. Id. at 4-5 (quoting

Hamilton v. Partners Healthcare Sys., Inc., 209 F. Supp. 3d 379, 390 (D. Mass. 2016)

Def.’s Mot. for New Trial at 4-5. However, as the Court pointed out at the oral argument, the citation,

though Ocean Properties presented it as the majority ruling of the Supreme Court, was actually from

the dissent by Mr. Justice Butler. As the Court discusses, the majority rule is flatly to the contrary.

Dunn, 284 U.S. at 393 (“Consistency in the verdict is not necessary”). Following oral argument, on

July 26, 2019, Ocean Properties moved to formally withdraw portions of its post-trial brief, including

its miscitation of Dunn. Unopposed Mot. to Formally Withdraw Portions of the Post-Trial Br. (ECF

No. 237). The Court granted the motion the day it was filed. Order (ECF No. 239).

(citing Anderson v. Theriault Tree Harvesting, Inc., 2010 WL 323530 (D. Me. Jan. 20,

2010))). Because of this, Mr. Burnett disputes that the verdict was inconsistent, as

Ocean Properties avers. Id. at 5.

3. Ocean Properties’ Reply

In reply, Ocean Properties contends that it did not fail to object to the Court’s

proposed response to the jury question, but instead it agreed with the Court’s

“preference to allow [the jury] to proceed” because the Court implied that “it planned

to work with the parties to figure out how to process that issue” if incompatible

findings were reached. Def.’s Reply Mot. for New Trial at 1-2. According to Ocean

Properties, the Court did not address the issue when the incompatible result was

reached, because “the Court’s priority was to move the jury into the punitive damages

phase of their deliberations as quickly as possible.” Id. at 2. Because the Court failed

to act on the expectation it had conveyed to the parties, Ocean Properties contends

that its failure to object should be excused. Id. Ocean Properties reiterates its

position that the jury’s determination that Ocean Properties was both a joint

employer and an integrated employer is inconsistent and cannot be reconciled. Id. at

3.

B. Discussion

1. Legal Standard: Motion for a New Trial

Federal Rule of Civil Procedure 59(a) permits a party to move for a new trial,

“after a jury trial, for any reason for which a new trial has heretofore been granted in

an action at law in federal court.” FED. R. CIV. P. 59(a)(1). When assessing a motion

for a new trial, a trial judge has limited discretion:

A trial judge may not grant a motion for a new trial merely because he

or she might have reached a conclusion contrary to that of the jurors,

rather, the trial judge may set aside a jury's verdict only if he or she

believes that the outcome is against the clear weight of the evidence

such that upholding the verdict will result in a miscarriage of justice.

Conway v. Electro Switch Corp., 825 F.2d 593, 598–99 (1st Cir. 1987).

2. Analysis

The Court retraces familiar ground with the Defendant’s motion for a new

trial. Ocean Properties hopes for a different result, noting that “[a] Rule 59 motion

for a new trial is governed by a more lenient standard than a motion for judgment as

a matter of law.” Def.’s Reply Mot. for New Trial at 1. The Court, having addressed

the issue of the alleged inconsistency in the jury’s findings above, applies the Rule

59(a) standard.

Addressing inconsistent verdicts, the United States Supreme Court in Dunn

stated definitively, “[c]onsistency in the verdict is not necessary.” Id., 284 U.S. at

393. Similarly, the Supreme Court held in Atlantic & Gulf Stevedores, Inc. v.

Ellerman Lines, Limited:

Where there is a view of the case that makes the jury's answers to

special interrogatories consistent, they must be resolved that way. For

a search for one possible view of the case which will make the jury's

finding inconsistent results in a collision with the Seventh Amendment.

369 U.S. 355, 364 (1962) (citations omitted). The First Circuit maintains the same

view. See McIsaac, 809 F.2d at 133 (“We note, initially, our ‘substantial reluctance

to consider inconsistency in civil jury verdicts a basis for new trials’”) (quoting

Merchant, 740 F.2d at 91).

As discussed in the Court’s analysis of the Ocean Properties’ 50(b) motion, the

Court does not find the jury’s verdict necessarily inconsistent for several reasons.

First, Ocean Properties mischaracterizes the verdict form. Ocean Properties

contends that the verdict was “internally inconsistent because it found that [Ocean

Properties] was both a joint employer with AmeriPort and an integrated employer

with AmeriPort.” Def.’s Mot. for New Trial at 1. In fact, question three of the verdict

form states: “[w]as Ocean Properties an employer or joint employer of Mr. Burnett?”

Verdict at 1. In response, the jury checked “yes.” Id. Question four states: “[w]ere

Ocean Properties and AmeriPort integrated employers of Ryan Burnett?” Id. at 2.

The jury checked “yes.” Id. In the Court’s view, therefore, it is not clear based on

the special interrogatories, agreed to by the parties, whether the jury found Ocean

Properties to be an employer, a joint employer, an integrated employer, or all three.

The jury might have found Ocean Properties to be both an integrated employer

and a joint employer of Mr. Burnett. Ocean Properties argues that given the different

tests for the two employer theories of liability, this finding would be legally

inconsistent. The Court acknowledges that the two theories are distinct, but it also

agrees with Mr. Burnett that the tests for joint employer and integrated employer

are “highly similar.” Pl.’s Opp’n to Mot. for New Trial at 4. As concluded supra,

sufficient evidence exists in the record to support a jury’s finding of liability under

either theory.

But the jury may have instead determined that Ocean Properties was both an

employer and an integrated employer of Mr. Burnett. Because the integrated

employer test is used to determine whether “separate entities will be deemed to be

parts of a single employer,” Engelhardt, 472 F.3d at 4, the Court does not view a

determination by the jury that Ocean Properties was both Mr. Burnett’s employer

and his integrated employer as legally inconsistent. In any event, the Supreme Court

has specifically warned against “search[ing] for one possible view of the case which

will make the jury’s finding inconsistent.” Atl. & Gulf Stevedores, Inc., 369 U.S. at

364. Here, there are views of the case that makes the jury’s answers to the special

interrogatories consistent. Furthermore, the jury’s verdict is supported by the

evidence, and no miscarriage of justice will result from upholding it.

The Court denies Ocean Properties’ request for a new trial.

IV. MOTION FOR REMITTITUR

Finally, in an alternative pleading, Ocean Properties requests the Court reduce

or set aside the jury’s verdict. Def.’s Mot. for Remittitur at 1.

A. Positions of the Parties

1. Ocean Properties’ Motion

Ocean Properties argues that the damages award should be reduced on several

bases. First, it contends that because Mr. Burnett did not bring sufficient evidence

to show the number of individuals employed by Ocean Properties’ and the evidence

shows AmeriPort has fewer than 100 employees, the statutory cap on punitive

damages is $50,000. Id. Next, Ocean Properties argues that “Plaintiff cannot obtain

duplicative recoveries of punitive damages under both the ADA and the MHRA.” Id.

at 1-2. The company finally asks the Court to “reduce the compensatory and punitive

damages to a de minimis figure . . .,” because the evidence at trial is insufficient, and

because the jury’s awards were “grossly excessive” and “shocking to the conscience.”

Id. at 2.

According to Ocean Properties, the compensatory damages award is “grossly

disproportionate to any injury established by the evidence” and therefore

“unconscionable as a matter of law.” Id. at 5 (quoting Koster v. Trans World Airlines,

Inc., 181 F.3d 24, 34 (1st Cir. 1999)). Ocean Properties cites several cases from other

circuits in which the plaintiff’s own testimony was determined to be insufficient to

support significant awards of compensatory damages for emotional distress. Id.

(citing Thomas v. Tex. Dep’t of Criminal Justice, 297 F.3d 361, 363, 370-72 (5th Cir.

2002); Giles v. GE, 245 F.3d 474, 489 (5th Cir. 2001); Annis v. Cty. of Westchester, 136

F.3d 239, 249 (2d Cir. 1998)). Ocean Properties says that the evidence at trial shows

“an isolated incident of frustration from not having a person respond to an email

communication[, which] hardly justifies an award of $150,000.” Id. at 6. Mr. Burnett,

Ocean Properties argues, “failed to prove that his employer’s failure to provide him

with a reasonable accommodation damaged him in any meaningful way . . ..” Id. at

7.

With regard to the punitive damages award, Ocean Properties contends that

the award of $500,000 is “so excessive as to violate due process.” Id. (citing Sony

BMG Music Entm’t v. Tenebaum, No. Civ. 07-11446-RWZ, 2012 WL 3639053, at *11-

14 (D. Mass. Aug. 23, 2012)). According to Ocean Properties, the trial record showed

AmeriPort believed the doors were ADA compliant, that automatic doors were not

necessary for Mr. Burnett to perform the essential functions of his job, and that Mr.

Burnett himself testified that it was his belief that Ms. Darsaoui did not treat him

maliciously. Id. at 8.

In addition, Ocean Properties contends that the punitive damages award

constitutes a double recovery, and “the Court should reduce the Plaintiff’s punitive

damages award to the higher of two (2) awards.” Id. at 2-3. Ocean Properties cites

caselaw from other circuits in support of its contention that “[i]f a federal claim and

a state claim arise from the same operative facts, and seek identical relief, an award

of damages under both theories will constitute double recovery.” Id. at 3 (citing

Mason v. Okla. Tpk. Auth., 115 F.3d 1442, 1459 (10th Cir. 1997); U.S. Indus., Inc. v.

Touche Ross & Co., 854 F.2d 1223, 1259 (10th Cir. 1988); Moses v. K-Mart Corp., 905

F. Supp. 1054, 1058 (S.D. Fla. 1995)).

Finally, Ocean Properties reiterates the argument it set forth in its motion for

judgment as a matter of law and its motion for a new trial that it cannot be held

accountable for the actions of AmeriPort with respect to punitive damages under a

joint employer theory of liability. Id. at 8.

2. Mr. Burnett’s Response

Mr. Burnett opposes Ocean Properties’ motion for remittitur, first noting the

First Circuit’s hesitance to reverse a jury’s verdict for excessiveness. Pl.’s Opp’n to

Mot. for Remittitur at 2 (Marcano-Rivera v. Turabo Med. Ctr. P’ship, 415 F.3d 162,

171 (1st Cir. 2004); citing Nydam v. Lennerton, 948 F.2d 808, 811 (1st Cir. 1991);

Rooney v. Sprague Energy Corp., 581 F. Supp. 2d 94 (D. Me 2008)). Mr. Burnett notes

“the difficulty of converting ‘intangible, non-economic losses into money damages.’”

Id. (quoting Rooney, 581 F. Supp. 2d at 108).

Mr. Burnett disputes Ocean Properties’ contention that the compensatory

damages award for emotional distress is not supported by record evidence because it

is based only on Mr. Burnett’s testimony, citing First Circuit caselaw. Id. at 2-3

(citing Rodriguez-Torres v. Caribbean Forms Mfr., Inc., 399 F.3d 52, 63–64 (1st

Cir. 2005); Koster, 181 F.3d at 35; Michaud v. Steckino, 390 A.2d 524, 536 (Me. 1978)).

Mr. Burnett notes that he testified to the fact that the Defendants’ failure to respond

to his request for an accommodation of automatic doors “made his difficult life even

harder.” Id. at 4. He also states that the record reflects he was injured as a result of

struggling with the door. Id. He stated at trial that the lack of response made him

feel “[s]ad, you know, frustrated, really down, self-esteem issues, you know, just that

why should I try, you know, if they don’t want to accommodate me or help me to help

them.” Id. (citing Trial Tr. I 82:18-21). His fiancée presented similar testimony at

trial. Id.

In response to Ocean Properties’ contention that the award of punitive

damages should be remitted, Mr. Burnett notes that “[a] punitive damage award is

entitled to deference.” Id. at 5 (citing Acevedo-Garcia v. Monroig, 351 F.3d 547, 566

(1st Cir. 2003); Romano, 233 F.3d at 672). He states that relative to the compensatory

damages award of $150,000, a $500,000 punitive damages award is not

disproportional, especially when it will be automatically capped at $500,000 due to

the statutory caps of the MHRA and the ADA. Id. at 5-6. Mr. Burnett contends that

Ocean Properties did not object to the Court’s determination that the award under

each statute would be added together, contrary to what it stated in its motion. Id. at

8.

Mr. Burnett disputes Ocean Properties’ contention that the jury’s awards

under both the ADA and the MHRA are a double recovery, arguing that “the Plaintiff

simply recovered under two different statutes.” Id. Mr. Burnett cites caselaw from

other districts in which courts rejected the argument and awarded damages under

both a state statute and a federal statute, or two federal statutes. Id. at 8-9 (citing

Mathis v. Hous. Auth. of Umatilla Cty., 242 F. Supp. 2d 9 777, 790 (D. Or. 2002); Fox

v. Pittsburg State Univ., 257 F. Supp. 3d 1112, 1146 (D. Kan. 2017)). Mr. Burnett

argues that the evidentiary burdens differ and the purposes supporting the ADA and

the MHRA differ slightly, supporting “the conclusion that the statutes are intended

to work in tandem, not limiting each other.” Id. at 9.

Mr. Burnett notes, in response to Ocean Properties’ argument that punitive

damages should be capped at $50,000 because of failure to prove evidence of any

employees, that the burden to establish the applicability of the statutory caps under

a Title VII claim is on the defendant employer, who must affirmatively move to

impose the cap and to present relevant evidence. Id. at 12. Because Ocean Properties

“sought to minimize and obscure” the number of employees Ocean Properties had

during trial, it cannot now argue the affirmative defense of the statutory caps of the

ADA and the MHRA. Id.

3. Ocean Properties’ Reply

In reply, Ocean Properties reiterates the arguments it advanced in its motion

for remittitur. Def.’s Reply Mot. for Remittitur at 1-2. Ocean Properties says that the

case can be distinguished from Rooney v. Sprague Energy, which Mr. Burnett relies

on in support of the reasonableness of the compensatory damages verdict, because

here, there is no evidence that Mr. Burnett experienced “reputational harm or loss of

social standing,” whereas in Rooney, “ample evidentiary support” showed that Mr.

Rooney did. Id. at 2 (citing Rooney, 581 F. Supp. 2d at 107-08).

According to Ocean Properties, Mr. Burnett’s argument “that awards made

under different statutes do not amount to a double recovery” is incorrect, because “a

recovery is duplicative when a jury awards the same remedy under two separate

statutes, which serve the same purpose and address the same injury.” Id. at 4. Ocean

Properties argues that the cases cited by Mr. Burnett refuting Ocean Properties’

duplicative recovery theory are distinguishable. Id. In Mathis, unlike this case,

Ocean Properties says, “the plaintiff sought to recover two separate remedies, related

to two separate injuries, under two different statutes.” Id. at 5 (citing Mathis, 2423

F. Supp. 2d at 789). Ocean Properties also argues that Fox is distinguishable because

there are fundamental differences between Title IX and Title VII, under both of which

the plaintiff brought claims. Id. (citing Fox, 257 F. Supp. 3d at 1147).

B. Discussion

1. Legal Standard: Remittitur

A party challenging an award of compensatory damages “must establish that

the award is so grossly disproportionate to any injury established by the evidence as

to be unconscionable as a matter of law.” Rooney, 581 F. Supp. 2d at 107

(quoting McDonough v. City of Quincy, 452 F.3d 8, 22 (1st Cir. 2006)). The First

Circuit has cautioned:

We do not reverse a jury verdict for excessiveness except on “the

strongest of showings.” The jury's award is not to be disturbed unless it

is entirely disproportionate to the injury sustained. We have expressed

the extent of distortion that warrants intervention by requiring such

awards to be so large as to “shock the judicial conscience,” “so gross or

inordinately large as to be contrary to right reason,” so exaggerated as

to indicate “bias, passion, prejudice, corruption, or other improper

motive,” or as “clearly exceed[ing] that amount any reasonable man

could feel the claimant entitled to.”

Nydam v. Lennerton, 948 F.2d 808, 811 (1st Cir. 1991) (quoting Caldarera v. E.

Airlines, Inc., 705 F.2d 778, 784 (5th Cir. 1983) (emphasis in original)). The First

Circuit in Azimi v. Jordan’s Meats, Inc. acknowledged that “translating legal damage

into money damages—especially in cases which involve few significant items of

measurable economic loss—is a matter peculiarly within a jury's ken; [f]or just this

reason, [w]e rarely will override the jury's judgment on the appropriate amount of

damages to be awarded.” 456 F.3d 228, 236 (1st Cir. 2006) (alterations in original)

(quotations omitted). When reviewing a jury's award of damages, a district court is

expected to consider “local community standards and . . . the witnesses' demeanor at

the trial.” Brown v. Freedman Baking Co., 810 F.2d 6, 11 (1st Cir. 1987).

Similarly, to successfully challenge a punitive damages award, a party must

demonstrate that it is “‘certain’ that the amount in question exceeds that necessary

to punish and deter the alleged misconduct.” Romano, 233 F.3d at 672 (quoting Quint

v. A.E. Staley Mfg. Co., 172 F.3d 1, 14 n.11 (1st Cir. 1999)). The Supreme Court

provided three guideposts used to determine whether a defendant received “fair

notice that the conduct in question was prohibited and what the potential penalty for

engaging in the conduct could be,” thus entering “the zone of arbitrariness that

violates the Due Process Clause of the Fourteenth Amendment.” Id. (citing BMW of

N. Am., Inc. v. Gore, 517 U.S. 559, 568 (1996)). The guideposts are: “(1) the degree of

reprehensibility of a defendant's conduct; (2) the ratio between punitive and actual

and potential damages; and, (3) a comparison of the punitive damages figure and

other civil and criminal penalties imposed for comparable conduct.” Id. at 673 (citing

BMW, 517 U.S. at 574). The Court further stated that the “level of reprehensibility

of appellants' alleged misconduct is ‘perhaps the most important indicium.’” Id. at

672 (citing BMW, 517 U.S. at 575).

2. Discussion

The jury found the defendants liable and awarded Mr. Burnett $150,000 in

compensatory damages and $500,000 in punitive damages. While the compensatory

damages were not apportioned between the federal and state statutes, the jury

apportioned $200,000 of the punitive damages pursuant to the ADA and $300,000

pursuant to the MHRA. Verdict at 1; Punitive Damages Verdict at 1-2. Ocean

Properties moves to remit both the compensatory and punitive damages awarded by

the jury on several bases. Def.’s Mot. for Remittitur at 1.

In its response to Ocean Properties’ motion for remittitur, Mr. Burnett states

that “the 650,000 total award will automatically be capped at $500,000 pursuant to

the applicable state and federal statutes.” Pl.’s Opp’n to Mot. for Remittitur at 5-6.

Mr. Burnett does not elaborate on the basis for his position. Id. In its reply, Ocean

Properties states, “[i]n his Opposition to AmeriPort’s Rule 50 Motion, even Plaintiff

conceded that a reduction of $150,000 is appropriate, see Pl.’s Opp’n to Mot. for

Remittitur at 11, which reduction should be applied to OPL and further increased

consistent with the arguments set forth within.” Def.’s Reply Mot. for Remittitur at 2

n.1.

The Court considers Mr. Burnett’s concession, and Ocean Properties’ reply, as

a stipulation by the parties agreeing to a reduced award of $500,000.7 Accordingly,

the Court finds the total award to be $500,000, with $150,000 in compensatory

damages and $350,000 in punitive damages. The Court further concludes that the

punitive damages award pursuant to the ADA must be reduced by $75,000, to the

7 The Court is not entirely clear about the basis for Mr. Burnett’s concession that he must

“automatically remit” the award from $650,000 to $500,000. Pl.’s Opp’n to Mot. for Remittitur at 6.

Ocean Properties did not make this claim in its remittitur motion. Def.’s Mot. for Remittitur at 1-9.

In his opposition, Mr. Burnett simply states that the “$650,000 total award will be automatically

capped at $500,000.00 pursuant to applicable state and federal statutes.” Pl.’s Opp’n to Mot. for

Remittitur at 6. But he provides no citations. Ocean Properties’ reply on the issue is not illuminating.

Def.’s Reply Mot. for Remittitur at 2 n.1. Like Mr. Burnett, Ocean Properties cites no authority and it

cites page 11 of a Mr. Burnett’s six-page opposition memorandum. Id. at 2 n.1; compare Pl.’s Opp’n to

Def. AmeriPort’s Mot. for Remittitur at 1-6 (ECF No. 211). The Court assumes that counsel, who are

experts in this field, stipulated for good and sufficient reason and the Court accepts the reduced award.

amount of $125,000, and the punitive damages award pursuant to the MHRA also

must be reduced by $75,000, to the amount of $225,000.

a. Statutory Caps

Ocean Properties contends that the total damages award must be reduced to

$50,000 pursuant to the applicable statutory caps, because Mr. Burnett failed to

prove it has any employees, while AmeriPort admits to employing Mr. Burnett and

having approximately 70 employees. Id. at 2 (citing 42 U.S.C. § 1981a(b)(3)(A); 5

M.R.S. § 4613(2)(B)(8)(e)(i)).

“The Maine Human Rights Act sets a statutory cap on the sum of compensatory

and punitive damages awarded to a successful plaintiff.” Webber v. Int’l Paper Co.,

307 F. Supp. 2d 119, 129 (D. Me. 2004) (citing 5 M.R.S.A. § 4613(2)(B)(8)). For a

respondent with more than fourteen and fewer than 101 employees, the statutory

maximum is $50,000. See § 4613(2)(B)(8)(e)(i). For a respondent with more than 500

employees, the statutory maximum under the MHRA is $500,000. See §

4613(2)(B)(8)(iv). The ADA has a corresponding statutory cap on the sum of

compensatory and punitive damages of $50,000 for an employer with more than

fourteen and fewer than 101 employees, and $300,000 for an employer with 500 or

more employees. See 42 U.S.C. § 1981a(b)(3)(A),(D).

The First Circuit addressed the burden of proof for statutory caps under 42

U.S.C. §1981a(b)(3) in a Title VII employment discrimination action in Hernandez-

Miranda v. Empresas Diaz Masso, Inc., 651 F.3d 167 (2011), holding:

The applicability of the caps is not an element of the Title VII claim.

Instead, the defendant employer must affirmatively move to impose the

cap and to present relevant evidence. Cf. Schaffer ex rel. Schaffer v.

Weast, 546 U.S. 49, 57 (2005) (burden of persuasion may appropriately

be placed on defendant to prove affirmative defenses or exemptions); see

also Mashpee Tribe v. New Seabury Corp., 592 F.2d 575, 589 (1st Cir.

1979) (“[N]ormally the party asserting the affirmative of a proposition

should bear the burden of proving that proposition.”). Moreover, the

“ordinary rule, based on considerations of fairness, does not place the

burden upon a litigant of establishing facts peculiarly within the

knowledge of his adversary.” Schaffer, 546 U.S. at 60 (quoting United

States v. N.Y., N.H. & H.R. Co., 355 U.S. 253, 256 n.5 (1957)) (internal

quotation marks omitted). It is clear that employers are in the best

position to establish how many employees they have at a given time.

Id. at 176.

In light of the First Circuit’s guidance, Ocean Properties’ argument fails. As

noted by Mr. Burnett, Ocean Properties did not present the number of employees it

had in 2014, the year the discrimination was alleged, at trial or in its subsequent

motion for remittitur. Pl.’s Opp’n to Mot. for Remittitur at 12. Instead, the

defendants “repeatedly sought to minimize and obscure that information.” Id. Ocean

Properties, therefore, failed to meet its burden regarding the applicability of the caps.

Because Ocean Properties has not shown that it has fewer than 500 employees,8 the

maximum statutory thresholds pursuant to § 1981a(b)(3)(d) and 5 M.R.S. § 4631

apply.

Given that the jury awarded Mr. Burnett $150,000 in compensatory damages

without apportioning the award between the ADA and MHRA claims, the Court must

also address whether the award exceeds the statutory maximum for the federal claim.

If, for example, the entire compensatory award of $150,000 were apportioned to Mr.

8 In Hernandez-Miranda, the Court similarly ruled, “because [the defendant employer] has not

shown that it has less than 200 employees during the years of discrimination, . . . the statutory cap

in § 1981a(b)(3)(c) applies.” 651 F.3d at 170.

Burnett’s ADA claim, his total award under the ADA would be $350,000, or $50,000

more than the statutory maximum. Because the MHRA allows for a higher statutory

maximum of $500,000, the same issue does not arise assuming the entire $150,000

in compensatory damages were apportioned to the state claim.

The issue was discussed in detail in Rodriguez-Torres:

Several appeals courts have addressed the problem of allocating

damages where the jury provides one damage award for parallel state

and federal discrimination claims but the award exceeds the applicable

federal cap. All have approved the method employed by the district court

here, namely, considering the unspecified award as fungible between the

state and federal claims and allocating the award so as to maximize the

plaintiff's recovery while adhering to the Title VII cap.

399 F.3d at 66 (citing Hall v. Consol. Freightways Corp., 337 F.3d 669, 678–79 (6th

Cir. 2003); Gagliardo v. Connaught Labs., Inc., 311 F.3d 565, 570–71 (3d Cir.

2002); Passantino v. Johnson & Johnson, 212 F.3d 493, 509–10 (9th Cir.

2000); Martini v. Fed. Nat'l Mortgage Ass'n, 178 F.3d 1336, 1349–50 (D.C. Cir.

1999); Kimzey v. Wal–Mart Stores, Inc., 107 F.3d 568, 576 (8th Cir. 1997)).

The First Circuit explained the reasoning behind this methodology. First,

when the jury makes an unapportioned award, there is no reason to believe that the

jury wished to apply the damages to the federal over the state claim, which “is

consistent with the district court’s general obligation to preserve lawful jury awards

to the extent possible.” Id. (citing Gagliardo, 311 F.3d at 571; Passantino, 212 F.3d

at 510). Second, the method “respects ‘the local jurisdiction’s prerogative to provide

greater remedies for employment discrimination than those Congress has afforded

under Title VII.’” Id. (quoting Martini, 178 F.3d at 1349–50; see also 42 U.S.C. §

2000e–7 (“Nothing in [Title VII] shall be deemed to exempt or relieve any person from

any liability, duty, penalty, or punishment provided by any present or future law of

any State.”)).

Applying this method to the award at issue here, the Court considers the

compensatory damages award to be “fungible between the state and federal claims,”

Rodriguez-Torres, 399 F.3d at 66, and allocates the award equally between them,

apportioning $75,000 in compensatory damages pursuant to the ADA and $75,000 in

compensatory damages pursuant to the MHRA. This maximizes Mr. Burnett’s

recovery while also adhering to the caps under the state and federal statutes.

b. Double Damages

Ocean Properties contends that Mr. Burnett cannot obtain what it deems a

“double recovery” of punitive damages under the ADA and the MRHA, and asks that

the Court reduce the $500,000 total punitive damages award to the higher of the two

awards, or $300,000 under the MHRA. Def.’s Mot. for Remittitur at 2-3. According

to Ocean Properties, the federal and state claims arise from the same facts and seek

the same recovery, therefore, the jury’s finding of liability on both counts constitutes

unjust double recovery. Id. at 3 (citing U.S. Indus., Inc. v. Touche Ross & Co., 854

F.2d 1223, 1226 (10th Cir. 1988), overruled by Dullmaier v. Xanaterra Parks &

Resorts, 883 F.3d 1278 (10th Cir. 2018)).

First, the Court reiterates that Federal Rules of Procedure 49(a) and 51 require

that a party state its objections after the charge but before the jury retires. “In this

Circuit, “[s]ilence after instructions, including instructions on the form of the verdict

to be returned by the jury, typically constitutes a waiver of any objections.” Marcano-

Rivera v. Pueblo Int’l, Inc., 232 F.3d 245, 253 n.4 (1st Cir. 2000) (quoting Putnam Res.

v. Pateman, 958 F.2d 448, 456 (1st Cir. 1992)). Not only did Ocean Properties fail to

object to the form of the verdict for punitive damages, but it assented to the Court’s

determination that the award under each statute would be added together when the

jury expressly asked the question of the Court. Trial Tr. III 406:22-408:11.

Furthermore, Ocean Properties made no objection to the punitive damages

instructions and requested no additional instructions. Id. 405:20-23.

The jury’s question to the Court during its deliberations in the punitive

damages phase of the trial stated, “When considering punitive damages, should the

amounts awarded to each violation, ADA and MHRA, be considered independent of

each other or in the aggregate?” Id. 406:17-19. The following discussion ensued:

THE COURT: My proposal, we can do it one way or the other, but

I think it makes sense to tell them the following. If

you award punitive damages under both statutes,

your punitive damages verdict would be the total of

both the ADA and MHRA claims, so that that’s clear.

Otherwise, we won’t know whether they intended to

deduct one from the other and here, it’s

straightforward that they award whatever under

the ADA and they award a separate amount under

the MHRA that we’re going to total. What do you

think?

MS. WHITE: That makes sense to me.

THE COURT: What do you think?

MS. DESKINS: I didn’t have the form in front of me when I read the

question, so my recollection was that we asked, like

we did in question two, what amount, if any, do you

award as punitive damages under the ADA and then

we put an amount and I thought – my recollection

was we asked the same question, but for the MHRA

so that they could put in a separate amount, so why

would we ask them to add that since they will

answer the questions individually?

THE COURT: What they’re curious about, I think, is – let’s say

they award $100 on the ADA claim and then they

award $100 on the MHRA claim; is the verdict $100

or $200? So, what I’m telling them is it’s $200 so

that they can decide, if they’re answering both

questions, they can know clearly what the award is

going to be.

MS. DESKINS: I see. Right, they’re not –

THE COURT: Are you with me?

MS. DESKINS: Yes, sir, that they would be added together.

THE COURT: Right. So, then they’ll know, and we’ll know, if they

decided 100, that it’s 200 and not – they didn’t intend

to have it be 100. All right?

MS. DESKINS: It would be added together, right?

THE COURT: They will be added together. They will know that by

this response.

MS. DESKINS: That they’re giving double damages, not single

damages.

THE COURT: The fact – where they’re giving damages under each

statute.

MS. DESKINS: Yes.

Id. 406:22-408:11. The record reflects that defense counsel made no objection to the

Court’s response to the jury, which clarified that the punitive damages award would

be the total of the ADA and MHRA awards.9 Id. In the absence of any objection by

defense counsel to the punitive damages verdict form, the jury instructions on

punitive damages, the Court’s answer to the jury’s question on the precise issue, and

to the punitive damages verdict itself, the Court finds that Ocean Properties waived

the argument in its instant motion.

Even considering the merits of the Defendant’s argument, the Court is not

convinced by the Defendant’s argument as to the punitive damages award. Ocean

Properties offers no caselaw in support of its argument, and the First Circuit has not

directly addressed the issue. The District of Columbia Circuit, faced with a similar

challenge to a punitive damages award, rejected the applicability of the double

recovery rule:

Punitive damages, unlike compensatory damages, are not aimed at

making a plaintiff whole; thus the rule against double recovery is

inapplicable when the damages awarded are punitive. Cf. Kassman v.

American University, 546 F.2d 1029, 1033 (D.C. Cir. 1976) (“[A] cardinal

principle of law is that in the absence of punitive damages a plaintiff can

recover no more than the loss actually suffered.” (quoting Snowden v.

D.C. Transit Sys., Inc., 454 F.2d 1047, 1048) (D.C. Cir. 1971)). Compare

Mason v. Okla. Turnpike Authority, 115 F.3d 1442, 1460 (10th Cir. 1997)

(“[M]ultiple punitive damage awards on overlapping theories of recovery

may not be duplicative at all, but may instead represent the jury's

proper effort to punish and deter all the improper conduct underlying

the verdict.”), with Dopp v. HTP Corp., 947 F.2d 506, 517 (1st Cir. 1991)

9 In its motion for remittitur, Ocean Properties asserted that it had objected to the Court’s

response to a jury question about whether the ADA and MHRA punitive damage awards were

independent of each other or in the aggregate. Def.’s Mot. for Remittitur at 5 (“Not until jury

deliberations when the jury asked a question did the Court indicate it would advise the jury that it

could add together the punitive damages under the ADA and MHRA, to which Defendants’ legal

counsel objected”) (emphasis supplied). During oral argument, the Court closely questioned Ocean

Properties’ counsel because the transcript of the chambers conference did not support his assertion.

On July 26, 2019, counsel for Ocean Properties wrote the Court moving to withdraw the portion of his

memorandum that asserted defense counsel had objected, and the Court granted the motion the same

day. Mot. to Formally Withdraw Portions of the Post-Trial Br. at 2 (ECF No. 237); Order (ECF No.

238). The upshot is that Ocean Properties did not object to the Court’s response to the jury’s inquiry.

(“[T]he law abhors duplicative recoveries. That is to say, a plaintiff who

is injured by reason of a defendant's behavior is, for the most part,

entitled to be made whole—not to be enriched.”).

Medina v. D.C., 643 F.3d 323, 329 (D.C. Cir. 2011).

In light of the question posed by the jury regarding the aggregation of the

award under the applicable state and federal statutes, the Court finds it highly likely

that the jury sought to “punish and deter all the improper conduct underlying the

verdict” by allocating the award across the two statutes, which would not be

considered a duplicative verdict. Mason, 115 F.3d at 1460.

The Court rejects Ocean Properties’ contention that the punitive damages

should be reduced to the MHRA award of $300,000.

c. Supported by the Evidence

Finally, Ocean Properties contends that both the punitive and compensatory

damages awards are not supported by the record evidence, and are disproportionate

to the harm evidenced at trial. Def.’s Mot. for Remittitur at 5.

i. Compensatory Damages Award

The jury awarded Mr. Burnett $150,000 in compensatory damages. Verdict at

1. At trial, Mr. Burnett and his fiancée, Jaclyn Goodwin, testified about the harm

the Defendants’ actions caused Mr. Burnett. Mr. Burnett testified extensively about

the difficulty he faces in his day-to-day activities and the additional effort required

for him to get to work as a T-9 complete paraplegic. Trial Tr. I. 56:1-60:5. When

asked why he filed a complaint of discrimination with the Maine Human Rights

Commission, the Plaintiff testified:

MR. BURNETT: I was tired, frustrated, angry that I never heard a

response from my request even as to why they could

or could not or if they were or were not compliant

with the handicapped doors.

MS. WHITE: How did that make you feel?

MR. BURNETT: Sad, you know, frustrated, really down, self-esteem

issues, you know, just that why should I try, you

know, if they don’t want to accommodate me or help

me to help them.

Trial Tr. I. 82:13-21.

He later testified, on cross-examination:

MS. DESKINS: [T]heir lack of communication to you, your inability

to know whether or not they were checking on or

confirming the ADA accessibility was a source of

stress for you; wasn’t it?

MR. BURNETT: Yes.

MS. DESKINS: It was a source of stress for you; wasn’t it?

MR. BURNETT: It was.

MS. DESKINS: On a frequent basis it was a source of stress for you,

correct?

MR. BURNETT: Correct.

Id. 106:4-12. Mr. Burnett also testified that he injured his wrist while struggling

with the door and the incline leading up to it, resulting in his supervisor filling out

an incident report. Id. 75:13-18. This injury took place after the defendants had

failed to respond to Mr. Burnett’s request for automatic doors. Id. 75:23-25.

Mr. Burnett’s fiancée, Ms. Goodwin, testified that while Mr. Burnett was going

through the process of having to struggle to get through the door to his workplace

every day, “[h]e seemed very depressed about going to work,” and that Mr. Burnett

talked with her about how he felt. Trial Tr. II at 258:18-23. Ms. Goodwin also

testified “that she was ‘frustrated’” because “a lot of his supervisors I didn’t feel were

doing enough to be more understanding” about the fact that the entry doors were

“very heavy and difficult to open,” and these struggles at times caused conflict in their

relationship. Pl.’s Opp’n to Mot. for Remittitur at 4 (citing Trial Tr. II 257:7-17).

The Court notes that Ocean Properties “is attacking the area of the verdict to

which the greatest deference is accorded: the translation of tangible, non-economic

losses into money damages.” Rooney, 581 F. Supp. 2d at 108 (citing Azimi, 456 F.3d

at 236). In examining the evidence presented at trial, Mr. Burnett presented as an

individual who tried extremely hard to be able to work and be independent despite

the significant obstacles he faced because of his disability. He made a request that

most would consider reasonable: to be able to get through the door to his place of

employment without a daily struggle, a struggle that drew attention to his disability.

He testified that the lack of response on the part of the Defendants made him feel

frustrated and angry, lowered his self-esteem, caused him stress and depression

about going to work. After receiving no response from the Defendants regarding his

requested accommodation, Mr. Burnett was injured while struggling with the door,

which led to his supervisor filling out an incident report, but still no action was taken

by the Defendants. Mr. Burnett’s testimony conveyed a sense of frustration and

betrayal resulting from being repeatedly ignored by the company that employed him.

Furthermore, Mr. Burnett’s injury was repeated every day for months, and was not

resolved until he found employment elsewhere and left his position at the call center.

The harm he experienced was, as he noted, compounded by the everyday challenges

he faced in getting to work and living as independent a life as possible with a

significant disability.

In light of the evidence presented at trial, the Court does not view the

compensatory damages award of $150,000 as “so grossly disproportionate to the

injury established . . . as to be unconscionable as a matter of law.” Id. at 109.

ii. Punitive Damages Award

Ocean Properties argues that the punitive damages award of $350,000 has “no

justifiable basis” and is “grossly excessive.” Def.’s Mot. for Remittitur at 7-8.

However, the caselaw it cites in support of its contention is on the unrelated issue of

statutory damages awards in copyright infringement cases, and does not discuss

punitive damages awarded by a jury. Id. at 7 (citing Sony BMG Music Entm’t, 2012

WL 3639053, at *5). Mr. Burnett, meanwhile, fails to respond to Ocean Properties’

argument in his opposition, but does, as discussed supra, contend that its position

that the award be reduced by $150,000 serves as an “automatic remittitur” in light of

any argument of excessiveness put forth by Ocean Properties. Pl.’s Opp’n to Mot. for

Remittitur at 5-6.

The cursory argument advanced by the Defendant has fallen short of the rather

steep climb he faces to successfully challenging a jury’s verdict as excessive. Given

the evidence presented, it is not “certain that the amount in question exceeds that

necessary to punish and deter the alleged misconduct . . ..” Romano, 233 F.3d at 672.

Furthermore, the fact that the punitive damages award falls within the statutory

maximums set forth under 5 M.R.S. § 4613(B)(8) and 42 U.S.C. § 1981a(b)(3)

“provides strong evidence that a defendant’s due process rights have not been violated

. . .” as the court “accords substantial deference to legislative judgments concerning

appropriate sanctions for the conduct at issue.” Id. (citations and internal quotations

omitted).

The Court examines the $350,000 verdict against the three guideposts set forth

by the Supreme Court in BMW. Mr. Burnett, who is paraplegic, requested an

accommodation to be able to access his workplace without struggling with a heavy

wooden door in an entrance on an incline. His request went unanswered, and he

continued to struggle with the same accessibility issue each day upon reporting to

work for months, until he found other employment and left his position with

AmeriPort. Even after he was injured while struggling with the door, prompting his

supervisor to fill out and file an incident report, Mr. Burnett’s request was ignored.

Viewing the evidence in the light most favorable to Mr. Burnett, here, like in Romano,

the lack of response on the part of the Defendants could be considered “a blatant

disregard of federally and state-mandated anti-discrimination laws.” 233 F.3d at 673.

This fact, coupled with the fact that “the harms inflicted upon [the plaintiff] were

more than ‘purely economic in nature,’” id. (citing BMW, 517 U.S. at 576), is enough

to support the jury’s award with respect to the first prong of the analysis.

Considering the second prong of the BMW analysis—proportionality—the

Court has upheld a broad range of ratios between compensatory and punitive

damages, and instead recommends a “general inquiry into reasonableness.” BMW,

517 U.S. at 582-83. “Most ratios will fall within an acceptable range, with only a 500

to 1 disparity being explicitly cited by the Court as “rais[ing] a suspicious judicial

eyebrow.” Romano, 233 F.3d at 673 (quoting BMW, 517 U.S. at 583). The First

Circuit in Romano upheld a disparity of 19:1 as a “constitutionally acceptable ratio.”

Id. Here, the ratio is just over 2:1, which the Court finds proportional to the damages

awarded by the jury for economic harm.

In light of the above analysis, the Court concludes that the punitive damages

award in this case is not constitutionally excessive,10 and upholds the jury’s punitive

damages award, reduced to $350,000 as agreed by the parties.

V. CONCLUSION

The Court hereby DENIES Ocean Properties’ Motion for Judgment as a Matter

of Law (ECF No. 200); Ocean Properties’ Motion for a New Trial (ECF No. 201); and

Ocean Properties’ Motion for Remittitur (ECF No. 202). Based on the applicable

statutory damage maximums, the Court AFFIRMS and AMENDS the judgment as

follows:

1) The Court AFFIRMS the compensatory damage award of $150,000;

2) The Court REDUCES the punitive damages award on the ADA claim from

$200,000 to $125,000 and REDUCES the punitive damages award on the

MHRA claim from $300,000 to $225,000; and

10 Here, like in Romano, “there are no civil or criminal penalties imposed for comparable

misconduct,” thus, the third prong of the BMW analysis does not apply. Romano, 233 F.3d at 673.

3) The Court directs the Clerk to issue an amended judgment in accordance

with this Order.

SO ORDERED.

/s/ John A. Woodcock, Jr.

JOHN A. WOODCOCK, JR.

UNITED STATES DISTRICT JUDGE

Dated this 30th day of September, 2019