United States Court Of Appeals
United States Court of AppealsFor the First CircuitNos. 19-2086, 19-2087RYAN D. BURNETT,Plaintiff, Appellee,v.OCEAN PROPERTIES, LTD.; AMERIPORT, LLC,Defendants, Appellants.APPEALS FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MAINE[Hon. John A. Woodcock, Jr., U.S. District Judge]BeforeHoward, Chief Judge,Lynch and Thompson, Circuit Judges.Timothy J. Bryant, Jonathan G. Mermin, and Preti FlahertyBeliveau & Pachios LLP, were on brief for appellant OceanProperties, Ltd.Elizabeth A. Germani, Robert P. Hayes, and Germani Martemucci& Hill were on brief for appellant AmeriPort, LLC.Laura H. White, Danielle M. Quinlan, and White & Quinlan,LLC, were on brief for appellee.Melissa A. Hewey, Amy K. Olfene, Michael L. Buescher, andDrummond Woodsum were on brief for HospitalityMaine, amicuscuriae.Kristin L. Aiello was on brief for Disability Rights Maine,amicus curiae.
February 2, 2021
THOMPSON, Circuit Judge.Appellee Ryan D. Burnett, whorelies on a wheelchair for mobility, sued Appellants AmeriPort,LLC, and Ocean Properties, Ltd., for failing to accommodate hDisabilities Act ("ADA"), 42 U.S.C. § 12101, and Maine Human RightsAct ("MHRA"), Me. Stat. tit. 5, § 4571 (1971).He prevailed anda jury awarded Burnett compensatory and punitive damages for histroubles.Over Appellants' protestations, the district courtupheld the verdicts and entered judgment in Burnett's favor rechallenging the verdicts, amended judgment, and order denyingtheir post-trial motions.After careful consideration, we affirm.BACKGROUND1The PartiesRyan D. Burnett ("Burnett") was injured in a dirt bikeaccident and rendered paraplegic over twenty-three years ago.Starting in 2009, Burnett worked as an associate at a call centerin South Portland, Maine, taking room reservations for forty-fivehotels and resorts in the United States and Canada, all marketedunder the umbrella term, "Ocean Properties Hotels, Resorts &Affiliates."Under 101 employees worked in the reservationsWe narrate the facts in the light most favorable to thejury's verdict and as relevant to this appeal. See, e.g., Bielunasv. F/V Misty Dawn, Inc., 621 F.3d 72, 74 (1st Cir. 2010).1- 3 -
department at the call center, whereas over 500 employees workedfor the hotels and resorts under the Ocean Properties Hotels,Resorts & Affiliates umbrella.AmeriPort, LLC ("AmeriPort"), wasBurnett's employer, and it held itself out publicly as "OceanProperties Reservations," consistent with the umbrella moniker.Ocean Properties, Ltd. ("Ocean Properties"), was an entity that,as we discuss below, was interrelated to AmeriPort.Burnett's Request For An AccommodationThe call center was located in a golf clubhouse whosepublic entrance sported heavy, wooden doors that pulled outwardand then automatically closed.Just beyond the entrance was aslight, downward slope that caused Burnett's wheelchair to rollbackwards as the doors closed on him.As a result, Burnett neededto exert greater force as he struggled to enter.On August 28, 2014, Burnett sent a message to NickRobertshaw ("Robertshaw"), the acting office manager, requestingpush-button, automatic doors at the public entrance, explainingthat the "[d]oors are heavy and hard to hold open while I pushmyself [through] [without] them closing on me."Robertshaw didnot respond to Burnett, but instead forwarded the message to oui'ssupervisor that same day.On September 10, 2014, Darsaoui e-mailed Mark Mooney("Mooney"), who constructed the clubhouse and was responsible for- 4 -
ensuring the building was up to code, asking "if the set of largewooden doors used to enter the lobby of the clubhouse are ADAcompliant."Hearing no response, Darsaoui e-mailed Mooney againon September 30, 2014:"I wanted to follow up with you and see ifyou had found out if the doors here are ADA compliant[.]let me know as soon as you can."PleaseMooney responded that same daywith, "As constructed when the building was built, Yes."Darsaouidid not follow up on Mooney's e-mail and Burnett did not receivea response to his request.One morning in October 2014, Burnett, while entering theclubhouse, injured his wrist (causing tingling in his hand) as hepulled open the heavy door and tried to quickly push himselfinside.Burnett reported the incident to another supervisor whofiled an incident report on his behalf, but again no one followedup with Burnett on his request for push-button, automatic doors.In June 2015, Burnett filed a disability discriminationcomplaint with the Maine Human Rights Commission ("MHRC").In ameeting with Burnett to discuss his MHRC complaint, Darsaoui toldhim she was not familiar with ADA compliance and, for whateverreason, no specific mention was made of Burnett's request for pushbutton, automatic doors. So even the filing of a complaint yieldedBurnett no relief.On February 26, 2016, Burnett gave notice ofhis resignation, at which time the condition of the doors remainedthe same.- 5 -
The TrialA three-day jury trial was held concerning the onlytrial-worthy issue which survived pre-trial dispositive motions toBurnett's suit:whether Appellants violated the ADA and MHRA byfailing to accommodate Burnett concerning the heavy wooden doors.2Burnett was the primary witness and he testified in support of hisclaim that Appellants never responded to his request for pushbutton, automatic doors, not "even as to why they could or couldnot or if they were or were not compliant."Burnett recalledfeeling "tired, frustrated, [and] angry" that he never heard aresponse to his request; he believed Appellants did not wish toaccommodate him.Another witness was Darsaoui, who was called byboth Burnett and lationship.whowhichThe third and final witness nflictintheirThe jury heard testimony as narrated above in ourbackground discussion.Additionally, Appellants stipulated thatreplacing the doors was not an undue hardship and that Burnett The additional claims Burnett originally brought, but weretossed out, were failure to accommodate him regarding otherincidents, disparate treatment, retaliation in violation of theADA and MHRA, and violation of the Maine Whistleblower ProtectionAct. Burnett did not appeal those rulings.2- 6 -
AmeriPort; the parties disputed whether Burnett also worked forOcean Properties.3Appellants also sought to call Mooney to testify that hetested the doors in December 2013 or January 2014 and found thedoors ADA-compliant.However, Appellants conceded they did notdisclose this information to Burnett until after the jury wasselected and six days before trial; Appellants had previouslydisclosed only that the doors were tested when the building wasconstructed (as revealed in Mooney's e-mail to Darsaoui, which wastimely provided to Burnett in discovery).Burnett claimed he wassurprised and prejudiced by the late disclosure because he wouldhave designated an expert and tested the doors ngAppellantsfrominquiring about Mooney's 2013/2014 testing of the doors as asanction for Appellants' failure to disclose or supplement duringdiscovery.See Fed. R. Civ. P. 26(a), (e), 37(c).Although theruling did not prevent Appellants from otherwise calling Mooney asa witness, Appellants opted not to do so.Appellants moved for judgment as a matter of law at theclose of Burnett's case in chief and again at the close ofAppellants' case in chief, raising three total issues, which werethat Burnett failed to show:3(1) his requested accommodation wasAt trial, Appellants were represented by the same counsel.- 7 -
reasonable since he could perform the essential functions of hisjob; (2) Appellants acted with malice or reckless indifferencetowards him to support an award for punitive damages; and (3) OceanProperties was his single or joint employer.See Fed. R. Civ. P.50(a). The district court denied the motion on each ground.Then,during closing arguments, Burnett's counsel made two challengedcomments, of which the first was objected to and the other wasnot:counsel (1) suggested that the jury "imagine" what life waslike for Burnett having a disability in order to award him damagesand then (2) suggested a ballpark damages figure.The agreed-upon special verdict form:(1) Has Ryan Burnett proven it is more likelythannotthatOceanPropertiesand/orAmeriPort failed to reasonably accommodate hisdisability?(2) What damages, if any, has Mr. Burnettproven more likely than not that he sustainedas a result of Ocean Properties and/orAmeriPort's failure to reasonably accommodatehis disability?(3) Was Ocean Properties an employer or jointemployer of Mr. Burnett?(4) Were Ocean Properties and AmeriPortintegrated employers of Ryan Burnett?(5) How many employees do you find RyanBurnett's employer had when he worked for theemployer?In a chambers conference during deliberations, the district judgeread to counsel a note from the jury that asked whether "both- 8 -
questions 3 and 4 could be answered yes."The district judge saidhe believed both questions could be answered affirmatively andcounsel for Burnett and Appellants agreed. After informing counselthat he would respond to the jury's note with "yes, both questions3 and 4 could be answered yes," the district judge asked if therewere any objections, and counsel for Burnett and Appellants repliedthat there was no objection.The jury returned a verdict that answered questions 1,3, and 4 affirmatively, found Burnett's employer had more than 500employees(question5),andawardedcompensatory damages (question 2).Burnett 150,000inNo challenges to the verdictwere raised.Having found Appellants liable, the jury deliberated asecond time to determine whether to award punitive damages.Thejury returned a second verdict that found that Burnett provedAppellants acted intentionally or with reckless indifference andawarded him 500,000 in total punitive damages ( 200,000 under theADA and 300,000 under the MHRA).Post-Trial udgment as a matter of law raising the same grounds as before.They also moved for a new trial challenging the consistency of thefirst verdict regarding the employment relationship, the rulingexcluding Mooney from testifying about the 2013/2014 testing of- 9 -
the doors, and Burnett's counsel's closing arguments.Lastly,they moved to remit the total award to 50,000, the statutory limitrecoverable from an employer with fewer than 101 employees, basedon their claim that there was no evidence AmeriPort had over 100employees and that Ocean Properties had any employees.4See 42U.S.C. § 1981a(b)(3)(A); Me. Stat. tit. 5, § 4613(2)(B)(8)(e)(i)(2012).The district court denied each motion.It did amend thejudgment to accept the parties' stipulation reducing the totalaward from 650,000 to 500,000 and then remitted the punitivedamages award from 500,000 to 350,000 (specifically, 125,000under the ADA and 225,000 under the MHRA).It declined to remitfurther because Ocean Properties didn't prove it had fewer than500 employees, making the maximum statutory limits (of 300,000under the ADA and 500,000 under the MHRA) for employers with over500 employees applicable instead.See 42 U.S.C. § 1981a(b)(3)(D);Me. Stat. tit. 5, § 4613(2)(B)(8)(e)(iv) (2012).This appealfollowed.Appellants also argued below that the punitive damages awardwas duplicative (because Burnett was awarded punitive damagesunder the ADA and MHRA) and excessive, that the compensatorydamages award was excessive because there was little evidence ofemotional distress, and, alternatively, that the total awardshould be reduced to a de minimis figure of 10,000.SinceAppellants abandoned these arguments on appeal, we do not addressthem.4- 10 -
OUR TAKEBefore us, Appellants assert that the district court'sdenial of their motions was wrong and warrants vacatur of theverdicts and judgment in their favor, or a new trial, or, if allelse fails, remittitur.5We take each motion in turn, detailingadditional facts as needed.Judgment As A Matter Of LawAppellants repeat here the same arguments they madebelow in their post-trial motions for judgment as a matter of law,which essentially are that Burnett failed to prove his case underthe ADA and MHRA.Because the ADA and its Maine equivalent, theMHRA, have similar language, we discuss the statutes together.See generally Patten v. Wal-Mart Stores E., Inc., No. 00-213-PH,2001 WL 631258, at *6 (D. Me. June 7, 2001) (noting that thelanguage of the ADA and MHRA "is sufficiently similar to allowcase law interpreting the federal statute to be applied to parallelclaims under the state statute").Some arguments were briefed only by Ocean Properties, andothers, only by AmeriPort, but Appellants tell us that they adoptone another's arguments."In a case involving more than oneappellant or appellee, . . . any number of appellants or appelleesmay join in a brief, and any party may adopt by reference a partof another's brief." Fed. R. App. P. 28(i). The adopted argumentsmust be "readily transferrable from the proponent's case to theadopter's case," however. United States v. David, 940 F.2d 722,737 (1st Cir. 1991). Burnett didn't object to Appellants' adoptionof each other's arguments and, therefore, we will treat Appellants'arguments as adequately adopted and explained relative to theirrespective claims on appeal.5- 11 -
Standard of ReviewWe review de novo a district court's denial of a motionfor judgment as a matter of law.Suero-Algarín v. CMT Hosp. HimaSan Pablo Caguas, 957 F.3d 30, 37 (1st Cir. 2020)."Although wereview the record as a whole, we construe facts in the light mostfavorable to the jury verdict, draw any inferences in favor of thenon-movant [Burnett], and abstain from evaluating the credibilityof the witnesses or the weight of the evidence."Id.We mustaffirm "unless the evidence . . . could lead a reasonable personto only one conclusion, namely, that [Appellants were] entitled tojudgment."Id. (first alteration in original) (quoting FullSpectrum Software, Inc. v. Forte Automation Sys., Inc., 858 F.3d666, 671 (1st Cir. 2017)).6Discussion1.AsEmployment hatBurnett worked for Appellant, AmeriPort, but the battle below andbefore us is whether he also worked for Ocean Properties.On thatfront, Appellants argue that contrary to Burnett's assertions,At the outset, we note that Appellants' arguments mostlyfail to account for our standard of review.Additionally,Appellants point the finger at Burnett for not following up on hisrequest for push-button, automatic doors despite seeing Darsaouiregularly at work, but the burden is on the employer to respond tothe request for an accommodation.See generally 42 U.S.C.§ 12112(b)(5)(A); 29 C.F.R. § 1630.2(o)(4); see also Me. Stat.tit. 5, § 4553(2)(E) (2019).6- 12 -
there was insufficient evidence at trial that Ocean Properties andAmeriPort were so interrelated to both be liable as Burnett'ssingle integrated ilitychallenges, we first decide who might properly be on the hook.Appellants can be considered Burnett's single integrated employerif they are "two nominally separate companies" that are "sointerrelated that they constitute a single employer subject toliability."See Torres-Negrón v. Merck & Co., Inc., 488 F.3d 34,40-41 (1st Cir. 2007) (applying single employer test to determineliability under Title VII and the ADA).We consider the followingfour factors7 to determine whether two or more entities count as asingleemployerundertheintegrated-enterprise test:ADAinthe"widelyrecognized"(i) "centralized control over laborrelations"; (ii) "interrelation between operations"; (iii) "commonmanagement"; and (iv) "common ownership."8Id. at 42 & n.8 (citingThese factors were first developed to determine whetherinterrelated companies should be treated as one entity under theNational Labor Relations Act, 29 U.S.C. § 164. Romano v. U-HaulInt'l, 233 F.3d 655, 662 (1st Cir. 2000).7Although we have identified various tests to determinewhether a single employer exists in Title VII discriminationclaims, see Romano, 233 F.3d at 665, we have yet to decide whichtest is applicable to determine whether an employer is liable underthe single-employer theory in an ADA claim.We will apply theintegrated-enterprise test the parties applied in their briefs.See Torres-Negrón, 488 F.3d at 42 n.8 (1st Cir. 2007) (applyingthe integrated-enterprise test in an ADA claim). Other circuitshave applied this same test in ADA claims. See, e.g., Tipton v.8- 13 -
Romano v. U-Haul Int'l, 233 F.3d 655, 662 (1st Cir. 2000)).Notall four factors are necessary to establish a single employerrelationship.Id. at 42."Rather, the test should be appliedflexibly, placing special emphasis on the control of employmentdecisions."Id. (citing Romano, 233 F.3d at 666 (where we statedthat "[w]e choose to follow the more flexible approach . . . whichfocuses on employment decisions, but only to the extent that theparent exerts an amount of participation [that] is sufficient andnecessary to the total employment process, even absent totalcontrol or ultimate authority over hiring decisions") (internalquotation marks omitted))).We evaluate these four factors one byone.There is ample evidence of centralized control overlabor relations, which examines control of employment decisions.Romano, 233 F.3d at 666.Properties.HesignedBurnett believed he worked for Oceanaprobationaryformindicatinghisacceptance "as a term of hire a 90-day probationary period withOcean Properties" and a hiring statement indicating he was "anemployee of Ocean Properties, Ltd., or affiliated companies."Hewas issued a list of employment policies that displayed "OceanNorthrup Grumman Corp., 242 F. App'x 187, 190 (5th Cir. 2007);Bristol v. Bd. of Cnty. Comm'rs of Cnty. of Clear Creek, 312 F.3d1213, 1220 (10th Cir. 2002); Parker v. Columbia Pictures Indus.,204 F.3d 326, 341 (2d Cir. 2000); Swallows v. Barnes & Noble BookStores, Inc., 128 F.3d 990, 993-96 (6th Cir. 1997).- 14 -
Properties Reservations Center Training Manual" on the bottom,left-hand corner and a certificate from "Ocean Properties, Ltd."for completing mandatory harassment training.Although Darsaouitestified that Burnett was hired to work for AmeriPort and thathis probationary form was filled out incorrectly, we view theevidence in the light most favorable to the verdict and drawreasonable inferences in favor of Burnett.F.3d at 37.See Suero-Algarín, 957Notwithstanding the evidence suggesting Burnett washired and trained by Ocean Properties, other evidence shows ,scheduling, discipline, hiring, and firing at the clubhouse.ButDarsaoui also hired reservation agents to work for Ocean Propertiesat the clubhouse.As for employment compensation, there is evidence thatBurnett received wages and benefits from both AmeriPort and OceanProperties.He discussed "benefits" and "time off" with Darsaoui,he was on AmeriPort's payroll ledger, and his W-2 indicated hisemployer was AmeriPort, yet his paystubs listed his employer ."Further, Burnett received a paycheck and stub from "OPL Central- 15 -
Reservations"9 and participated in a 401(k) plan through OceanProperties.We find this compilation of facts is evidence ofcentralized control of labor relations.Compare Torres-Negrón,488 F.3d at 43 (finding evidence of centralized control of laborrelations where one entity paid plaintiff, provided her rentityexercised almos
F/V Misty Dawn, Inc., 621 F.3d 72, 74 (1st Cir. 2010). - 4 - department at the call center, whereas over 500 employees worked for the hotels and resorts under the Ocean Properties Hotels, Resorts & Affiliates umbrella. AmeriPort, LLC ("AmeriPort"), was
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