Behnke v. City of Portland

STATE OF MAINE SUPERIOR COURT

CUMBERLAND, ss CIVIL ACTION

DOCKET NO. CV-21-12

ALISSA BEHNKE,

Plaintiff, ORDER ON DEFENDANT'S

MOTION FOR SUMMARY JUDGMENT

V.

CITY OF PORTLAND,

Defendant.

Before the Court is Defendant City of Portland's Motion for Summary Judgment on

Plaintiffs complaint. Plaintiff Alissa Behnke filed this action for disability discrimination

against the City of Portland alleging that she was terminated due to her disability. The City

counters that Behnke was terminated for excessive absences.

Background

First, the Affidavit of Alissa Behnke is unswom and therefore is inadmissible hearsay.

Therefore the court will not consider assertions based only on the Behnke Affidavit as

adequately supported, unless admitted by Defendant.

The summary judgment record reflects the following facts, which are undisputed unless

otherwise noted:

Plaintiff has insomnia, chronic migraines, and fibromyalgia. Opp. S.M.F. ("OSMF") ,r,r

13, 15. In March 2019, Alissa Behnke was hired to work as a Recreation Assistant at the Bauon

Center, a nursing, rehabilitation, and long-term care facility operated by the City of Portland.

Supp.' g S.M.F. ("SMF") ,r,r 1-2, 5. If a Recreation Assistant is late for work or misses work,

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planned activities cannot go forward. ,r 4. 1 The position required establishing, coordinating, and

implementing individual and group activities for long-term care residents. ,r 3. As part of the

hiring process, Behnke filled out a form addressing disability and did not disclose any of her

medical conditions which she alleges are disabilities; she also filled out a voluntary disclosure

form that described disabilities under the ADA standard, and she indicated, "I do not have a

disability." ,r,r 6, 8. 2 Behnke also acknowledged by form that she received the City's disability

policy. ,r 7. Her pre-employment physical indicated she was able to perform all tasks associated

with her position. ,r 9. Behnke was initially hired as a probationary employee, and after six

months her employment would have been governed by a union contract canying several

protections against discipline. ,r 11. Her supervisor was Sarah Nute. ,r 16.

Behnke missed three days in her first month of work and four days in the second month.

,r 13. She attributed the first month's absences to an allergic reaction, which was not confirmed,

and the second month's absences to pneumonia. ,r 14. In her first two months, she was late to

work five times. ,r 15. 3 Nute met with Doug Gardner, interim administrator, and Tom Caiazzo,

deputy human resources director, regarding Behnke's absences. ,r 16. The group decided to

address Behnke about the issue and that she may be terminated if she had another absence. ,r 17. 4

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Although Plaintiff denies this statement, her only citation is to her defective affidavit. Therefore the court deems

the fact admitted.

2

Behnke qualifies both of these facts, stating that the particular forms did not list the medical conditions that

Behnke has.

3 Plaintiff objects to this fact on the grounds that tardiness is not an issue in the case because Defendant asserts the

termination was due to attendance rather than tardiness. The City argues that punctuality is an element of attendance.

The court agrees that punctuality and tardiness are both relevant to the allegations here. Because Behnke did not

deny or qualify the fact, or offer citations to dispute it, the court fmds it admitted.

4 Behnke denies SMF ,, 16-17, but the City objects to those denials. The denial of SMF, 16 is supported by a

citation to OSMF n 42-65. The court understands this to incorporate the supporting citations for those paragraphs of

the Opposing Statement of Material Facts. The court agrees with the City that these citations are not adequate to

support Behnke's denial of SMF , 16. In addition, the court agrees with the City that the denial of SMF, 17 does

not actually contradict the fact asserted. Therefore, it considers these two facts admitted.

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Nute verbally counselled Behnke that her attendance issues were unacceptable. 118. 5 In May

2019, Nute made a report about Behnke that stated, "Alissa struggles with physical games. She

has stated it hurts her, that she 'cannot bend down' and has not implemented any physical

activities for the residents." OSMF 1 51. Behnke had also complained about the physical part of

her job over five times. 1 52.

From July to August, Behnke was late to work four additional times and called out on

August 21, 2019 due to a migraine. SMF 1 21. 6 In an August 21 email to Doug Gardner, Nute

wrote that Behnke "has not excelled working in this department and often complains about the

physical part of the job." OSMF 1 84. That same day, Nute emailed Tom Caiazzo reminding

him of their prior conversation regarding Behnke's absences and asking if they were "still on the

same page with termination." 185.

On August 22, the City terminated Plaintiff. SMF 122. 7 At that point, she had missed

over 71 hours of work over the five months she was employed and had been late twelve times. 1

23. 8 She had never requested an accommodation for her disabilities. 127. After her tennination,

Behnke filed a complaint with the Maine Human Rights Commission, which issued a right to sue

letter. 124.

The parties dispute whether the City was on notice ofBehnke's disabilities and the cause

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Although Plaintiff denies this statement, her citation to her defective affidavit is disregarded. The other record

citation is to the Affidavit of her counsel, Guy Loranger, which states that the City did not produce any documents

to show that this conversation occurred. The court fmds that the Loranger Affidavit is not sufficient to support a

denial of SMF ~ 18. Therefore the court deems that fact admitted.

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Behnke makes the same objection as noted above on SMF ~ 15, supra note 3. The court overrnles the objection.

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In response to SMF ~ 22 "the City terminated Behnke due to her attendance issues on August 22," Behnke states

"Defendant terminated Behnke because of her disabilities." The record citation is to her OSMF ~~ 42-95, which the

court understands to incorporate the record citations supporting those OSMF paragraphs. These include, in part,

citations to the Nute Deposition and supporting exhibits that refer to Nute's statements about Behnke's limited

physical mobility and pain. Therefore the court ovenules the City's objection based on foundation for Behnke's

denial ofSMF ~ 22. Paragraph 22 is only admitted to the extent it portrays the date and fact of termination, which is

not in dispute.

8 Behnke makes the same objection as above on SMF ~ 15, supra note 3. The court overrules the objection.

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of the termination - whether it was due to disability or attendance. Behnke claims that she

informed her supervisor Sarah Nute about her disabilities in early May, by stating that she had

insomnia, which was at that time untreated, and that the lack of proper rest irritated her chronic

migraines and fibromyalgia. OSMF ,r,r 48, 50. Behnke also claims that she kept Nute updated

about her conditions. OSMF ,r 49. The City claims that Behnke's only communication

conceming the disabilities was a conversation with Nute in which Behnke stated that she was

having medical issues caused by a temporary lack of medication due to switching physicians.

SMF 'if 28.

Legal Standard

A motion for summary judgment shall be granted if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits referred to in the Rule

56(h) statements show that there is no genuine issue as to any material fact and that any party is

entitled to a judgment as a matter of law. M.R. Civ. P. 56(c). The court may not decide any

issue of fact on a summary judgment motion. Cottle Enters., Inc. v. Town ofFarmington, 1997

ME 78, ,r 11, 693 A.2d 330. A factual dispute is material if it may affect the outcome of the

litigation. Stewart-Dore v. Webber Hosp. Ass 'n, 2011 ME 26, ,r 8, 13 A.3d 773.

The facts must be considered in the light most favorable to the non-moving party, and the

court will resolve disputes against the moving party. Mahar v. Stone Wood Transp., 2003 ME 63,

,r 8, 823 A.2d 540. "A defendant who is the moving party has 'the initial burden to establish that

there is no genuine dispute of fact and that the undisputed facts would entitle [the defendant] to

judgment as a matter oflaw' at trial." Oceanic Inn, Inc. v. Sloan's Cove, LLC, 2016 ME 34, ,r

26, 133 A.3d 1021 (quoting Jennings v. Maclean, 2015 ME 42, ,r 5, 114 A.3d 66). The

nonmoving plaintiff then must show a dispute of material fact and make out a prima facie case

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for its claim. Id

Discussion

Pursuant to the Maine Human Rights Act ("MHRA"), 5 M.R.S. § 4572, it is unlawful for

any employer to discriminate against a qualified employee on the basis of a disability.

Discrimination is disallowed "in regard to ... [theJ discharge of employees." 5 M.R.S. §

4572(2). The parties do not dispute that Behnke does have disabilities as contemplated by the

MHRA or that Behnke was terminated.

In cases in which a claimant has no direct evidence of discrimination, the claimant must

produce sufficient evidence to make out a prima facie case, which raises a presumption of

unlawful discrimination.

To establish a prima facie case of disability discrimination pursuant to the

MHRA, the plaintiff has the burden of establishing the following: first, she suffers

from a disability; second, she is otherwise qualified, with or without reasonable

accommodations, and is able to perform the essential functions of the job; and

third, she was adversely treated by the employer based in whole or in part on her

disability.

Doyle v. Dep't ofHum. Servs., 2003 ME 61, ,r 14,824 A.2d 48; see also Carnicella v. Mercy

Hosp., 2017 ME 161, 'if 16, 168 A.3d 768. The defendant may rebut the presumption of

discrimination by producing evidence of non-discriminatory, legitimate motivations for

termination. If the defendant does so, the plaintiff must produce evidence sufficient to show that

the employer's stated reason is a pretext for a discriminatory reason. Me. Hum. Rts. Comm 'n v.

City ofAuburn, 408 A.2d 1253, 1261 (Me. 1979) (adopting McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1972)).

The City argues that Behnke was te1minated because of ongoing attendance problems

during her probationary period. It argues that Behnke's pattern of absences and late anivals

showed that she was not qualified for the job and that her substantial record of absences and

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tardiness is undisputed. Further, it indicates that the record does not link the absences to

Behnke's disabilities, that the City did not have notice ofBehnke's disabilities, and that

insufficient attendance is a legitimate, non-discriminatory basis for terminating Behnke' s

employment.

1. Behnke's Prima Facie Case

The patties do not dispute that Behnke suffers from several medical conditions or that

those conditions are disabilities under the law. The court will therefore address only the

remaining issues.

a. Behnke 's Qualification

The analysis of whether an individual is qualified to perfonn a certain job "is generally

broken into two steps: (1) whether the employee could perform the essential functions of the job;

[and] (2) if not, whether any reasonable accommodation by the employer would enable him to

perform those functions." Carnicella, 2017 ME 161, ,r 19, 168 A.3d 768 (quoting Ward v. Mass.

Health Rsch. Inst., Inc., 209 F.3d 29, 33 (1st Cir. 2000).

Behnke points to her previous work experience and the pre-employment medical

assessment that concluded she could perform the essential job functions. She also mentions that

Nute had marked that Behnke fulfills or exceeds requirements in 12 of 13 categories in Behnke's

job evaluation. Behnke also indicates that the City had no policy on what constituted excessive

absences.

The parties agree that a medical provider found that Behnke could perform the essential

functions of her job. The City asserts that it was only later, once Behnke's attendance issues were

apparent, that it realized she was not qualified. See Rios-Jimenez v. Sec'y of Veterans Afls., 520

F.3d 31, 42 (1st Cir. 2008) (citing Waggoner v. Olin Corp., 169 F.3d 481,485 (7th Cir. 1999)

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("At the risk of stating the obvious, attendance is an essential function of any job.")); see also 5

M.R.S. § 4537-A(3) (The MHRA "does not prohibit an employer from discharging ... an

individual ... if the employer establishes that the individual, because of the physical or mental

disability, is unable to perform job duties .... "). 9

In Rios-Jimenez, a First Circuit case cited by the City, the claimant had missed a greater

amount of work than is at issue here, 10 and a significant portion of that missed time was

unexplained. 520 F.3d at 35. The absences clearly compromised the work- the Court found the

plaintiff unqualified and indicated that the plaintiff, who was tasked with working on a diabetes

study, "was unable to manage her workload, with the result being that the diabetes study was in a

state of chaos that risked the study's future." Id. at 42.

The City also cites Benson v. Walmart Stores E., L.P., for the proposition that attendance

is an essential function of a position. 14 F.4th 13, 27 (1st Cir. 2021 ). In Benson, the First Circuit

held that "regular attendance 'is an essential function of any job."' Id. (quoting Colon-Fontanez

v. Municipality ofSan Juan, 660 F.3d 17, 33 (1st Cir. 2011)). In that case, the plaintiff, a greeter

at Walmart, had been late, had left early, or had been absent from work twelve times over a

three-month period. The Court ultimately did not make a conclusion as to whether she would

have been qualified without a reasonable accommodation because it decided that the plaintiff had

made out a prima facie case that she would be qualified with the reasonable accommodation she

had proposed. Id. at 27-8.

The cases do not discuss exactly what constitutes "regular" attendance. Rios-Jimenez

contained more extreme facts regarding work missed and cited impacts on the position's

9

"Because the MHRA generally tracks federal anti-discrimination statutes, it is appropriate to look to federal

precedent for guidance in interpreting the MHRA." Doyle, 2003 ME 61, ,r 14 n.7, 824 A.2d 48 (alteration and

quotation marks omitted).

10 The decision does not state the time period over which work was missed.

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purpose. On one hand, the First Circuit has concluded that failing to appear for work is failing to

perform an essential job function, id at 42, and the undisputed record shows that when a

Recreation Assistant is late or does not show up, activities for the residents do not go forward.

On the other hand, it is not clear how many absences are required over what period to constitute

failure of an essential function ofBehnke's former position. Surely at least a certain number is

excusable. The record shows Behnke improved her attendance after being informed of the issue.

The City argues that Caiazzo, Gardner, and Nute agreed that missing seven days in the first two

months, plus another day at some unspecified point, and being late five times would render

someone unqualified. However, the City did not have an applicable policy on attendance. On this

record, a reasonable fact finder could conclude that Behnke has made a prima facie case that she

was qualified without any reasonable accommodation.

b. Termination on the Basis ofDisability

Genuine disputes exist regarding the material facts sun-ounding why Behnke was

terminated. Behnke asserts that she gave Nute specific notice of her various disabilities, listing

the three of them by name but not calling them "disabilities." She claims that she explained that

the conditions affect her ability to perform some aspects of the job, including physical activity.

Although she acknowledges her record of attendance issues, she claims that the City's decision

to terminate her was based on the effects of her disabilities on her job performance. As support,

she points to the email from Nute to Gardner, which suggested termination after mentioning her

limited physical mobility . 11 The court finds there is a genuine dispute about whether the City did

know of her disabilities and that her argument satisfies her prima facie case on this point.

11 Behnke points out that another email from Nute does not mention the suggestion that Nute speak with Behnke

about her absences. She claims that this evidence shows Nute's discriminatory animus. Given the court's treatment

ofSMF ~ 18 as admitted, the court disregards this argument.

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2. The City's Legitimate, Non-Discriminatory Justification

The City argues that it terminated Behnke because of her faulty attendance record. It

claims that Behnke's absences and late a1Tivals rendered her unqualified for the position. It

asserts that it was not on notice that Behnke suffered from a disability and therefore it could not

have terminated her based on her disabilities. Behnke acknowledges the City has satisfied its

burden as to rebutting the presumption of discrimination.

3. Pretext

Behnke argues that triable issues of fact exist regarding whether the City's alleged

motivation is merely a pretext for discrimination. "Pretext may be established by demonstrating

'weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's

proffered legitimate reasons such that a factfinder could infer that the employer did not act for

the asserted non-discriminatory reasons."' Boyajian v. Starbucks Corp., 587 F. Supp. 2d 295,

304-05 (D. Me. 2008) (quoting Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46,

56 (I st Cir. 2000)). A plaintiff must not only attack an employer's justification, but "must

'elucidate specific facts which would enable a jury to find that the reason given is not only a

sham, but a sham intended to cover up the employer's real motive .... "' Melendez v.

Autogermana, Inc., 622 F.3d 46, 52 (1st Cir. 2010) (quoting Mesnick v. Gen. Elec. Co., 950 F.2d

816,824 (!st Cir. 1991)).

Behnke argues that the City's alleged reason for terminating her is a sham because she

had informed Nute that she had a disability, Nute mentioned the symptoms of her fibromyalgia

in her email to Gardner about termination, and Behnke's final absences were due to a migraine ­

a symptom of one of her disabilities.

Nute's email read, Alissa "left work early yesterday with a migraine and called out again

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today.... She has not excelled working in this department and often complains about the

physical part of the job." OSMF ,r 85. The court is persuaded that Nute's email is sufficient

evidence of a pretext to overcome summary judgment, and it cannot find that judgment as a

matter of law is watTanted in the City's favor. Therefore, the comi denies the City's motion.

Conclusion

The court finds that Plaintiff has made a prima facie showing of discrimination based on

disability and that genuine issues of material fact exist such that judgment as a matter of law is

not justified based on the undisputed record.

The entry is:

Defendant's Motion for Summary Judgment is DENIED.

The clerk may incorporate this order into the docket by reference pursuant to M.R. Civ. P. 79(a).

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Signed:- ~ ~- - - -

/ -· l- ~--­

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Thomas. R. McKean

Justice, Maine Superior Couti

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