Before turning to the blog entry of the day, I should point out that OSHA last week, January 29, 2021, issued a guidance entitled, “Protecting Workers: Guidance on Mitigating and Preventing the Spread of Covid-19 in the Workplace.” It can be found here184185197198198204. Lots of good information in the guidance. Keep in mind, that Covid-19 guidances are constantly evolving. For example, some people in medicine and public health are now saying to double mask (something sure to increase the frustration of deaf and hard of hearing individuals). That said, lots of good information in the OSHA guidance. I particularly like how they recognize that the deaf and hard of hearing don’t have it easy and that employers should have clear masks available to deal with the situation where people need to be understanding what is on the face or lips in order to understand what is being said. Also, the Wall Street Journal recently had an article talking about what the NFL has found out about Covid-19 transmission having played through their season. That information is not always consistent with CDC guidances, and CDC guidances taken as a whole can be very confusing to sort out. So, a business of any resources or an employer may want to consider having an infectious disease/public health person on retainer to help you sort this out.

Turning to the case of the day, Burnett v. Ocean Properties, Limited, a published decision decided by the First Circuit on February 2, 2021 that can be found here185186198199199205, the case asks the question of just what is an integrated employer. It then discusses whether a punitive damages award should be affirmed where the employer refused to engage in an interactive process despite being put on notice that an employee with a disability needed accommodations. As usual, the blog entry is divided into categories and they are: facts; integrated employer; reasonable accommodation; new trial; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts

The Parties Ryan D. Burnett (“Burnett”) was injured in a dirt bike accident and rendered paraplegic over twenty-three years ago. Starting in 2009, Burnett worked as an associate at a call center in South Portland, Maine, taking room reservations for forty-five hotels and resorts in the United States and Canada, all marketed under the umbrella term, “Ocean Properties Hotels, Resorts & Affiliates.” Under 101 employees worked in the reservations 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 Burnett’s employer, and it held itself out publicly as “Ocean Properties 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 Accommodation The call center was located in a golf clubhouse whose public entrance sported heavy, wooden doors that pulled outward and then automatically closed. Just beyond the entrance was a slight, downward slope that caused Burnett’s wheelchair to roll backwards as the doors closed on him. As a result, Burnett needed to exert greater force as he struggled to enter. On August 28, 2014, Burnett sent a message to Nick Robertshaw (“Robertshaw”), the acting office manager, requesting push-button, automatic doors at the public entrance, explaining that the “[d]oors are heavy and hard to hold open while I push myself [through] [without] them closing on me.” Robertshaw did not respond to Burnett, but instead forwarded the message to his own supervisor, Lori Darsaoui (“Darsaoui”), and Darsaoui’s supervisor that same day. On September 10, 2014, Darsaoui e-mailed Mark Mooney (“Mooney”), who constructed the clubhouse and was responsible for ensuring the building was up to code, asking “if the set of large wooden doors used to enter the lobby of the clubhouse are ADA compliant.” Hearing no response, Darsaoui e-mailed Mooney again on September 30, 2014: “I wanted to follow up with you and see if you had found out if the doors here are ADA compliant[.] Please let me know as soon as you can.” Mooney responded that same day with, “As constructed when the building was built, Yes.” Darsaoui did not follow up on Mooney’s e-mail and Burnett did not receive a response to his request. One morning in October 2014, Burnett, while entering the clubhouse, injured his wrist (causing tingling in his hand) as he pulled open the heavy door and tried to quickly push himself inside. Burnett reported the incident to another supervisor who filed an incident report on his behalf, but again no one followed up with Burnett on his request for push-button, automatic doors. In June 2015, Burnett filed a disability discrimination complaint with the Maine Human Rights Commission (“MHRC”). In a meeting with Burnett to discuss his MHRC complaint, Darsaoui told him she was not familiar with ADA compliance and, for whatever reason, no specific mention was made of Burnett’s request for pushbutton, automatic doors. So even the filing of a complaint yielded Burnett no relief. On February 26, 2016, Burnett gave notice of his resignation, at which time the condition of the doors remained the same.

At trial, appellant stipulated that replacing the doors with not an undue hardship and that Burnett has a disability, was qualified to do his job, and worked for him Ameriport but disputed whether he also worked for Ocean Properties. The jury also asked the judge whether they could find that Ocean Properties was a joint employer and simultaneously fine weather Ocean Properties and him e-report where an integrated employer of Burnett. The judge gave the okay to that. In closing argument, Burnett’s attorney mentioned the golden rule and also threw out dollar amounts for the jury to consider. The jury winds up awarding Burnett $150,000 in compensatory damages. They then went ahead and deliberated with respect to punitive damages whereby they awarded the plaintiff $500,000 in total punitive damages (200,000 under the ADA and 300,000 under the Maine Human Rights Act).

The District Court denied the defendant’s motion for new trial but did issue a remittitur reducing the total award from $650,000-$500,000 and reducing the punitive damages award from $500,000-$350,000 ($125,000 under the ADA and $225,000 under the Maine Human Rights Act. The defendants, Ameriport and Ocean Properties then appealed.

II

Integrated Employer

1. An integrated employer is where you have two nominally separate companies so interrelated that they constitute a single employer subject to liability.
2. The court borrows a test from the NLRB as to when two related companies should be treated as one entity. That test involves looking at four factors: 1) centralized control over labor relations; 2) interrelation between operations; 3) common management; and 4) common ownership.
3. Not all four factors are necessary to establish a singular employer relationship, rather the test is a flexible one placing special emphasis on the control of employment decisions.
4. With respect to centralized control over labor relations: 1) Burnett believed he worked for Ocean Properties; 2) he signed a probationary form indicating his acceptance as a 90 day probationary period with Ocean Properties and a hiring statement indicating he was an employee of Ocean Properties or affiliated companies; 3) the list of employment policies he was given displayed Ocean Properties Reservations Center Training Manual on the bottom left-hand corner and he received a certificate from Ocean Properties Limited for completing mandatory harassment training; 4) his immediate supervisor hired reservation agents for Ocean Properties as well as Ameriport; 5) Burnett received wages and benefit from both companies; 6). his paystub contained the names of both companies on it; 7) the 401(k) plan was through Ocean Properties.
5. When evaluating the interrelationship between operations, you look at whether you had shared employees, services, records, office space, and equipment, commingled finances, and handling by the parent of subsidiary taxes, such as payroll, books, and tax returns. Additional considerations include whether one entity exerts considerable influence over the other entity’s advertising and other decisions, as well as whether the former entity is directly involved in the latter entity’s daily sales, marketing, and advertising decisions.
6. Plenty of evidence indicating an interrelationship was produced, including: 1) his immediate supervisor was responsible for hiring individuals at both companies; 2) Burnett and his immediate supervisor both had Ocean Properties email addresses; 3) both companies shared documents and logos; 4) Burnett’s immediate supervisor contributed to the advertisement of the other company; 5) both companies shared office space and a corporate office; and 6) payroll information was processed for one company by the other.
7. With respect to the third factor, a individual doing work for both companies is evidence of that. That is, you had one individual playing a large role in the managing or supervising both entities.
8. With respect to the fourth factor, little evidence exists either way, but it doesn’t matter because the other three factors are so overwhelming with respect to evidence of there being an integrated employer.

II

Reasonable Accommodation

1. Sufficient evidence existed that Burnett needed an accommodation and that his requested accommodation was reasonable.
2. Burnett testified that he daily experienced difficulty entering the clubhouse and injured his wrist once when doing so.
3. The fact that Burnett was able to enter the clubhouse at the risk of bodily injury and was able to perform the duties of an associate once inside does not necessarily mean that he did not require an accommodation or that his requested accommodation was unreasonable.

III

Punitive Damages

1. Plaintiff can get punitive damages if he can show that the employer acted with malice or reckless indifference.
2. Malice and reckless indifference concern not the employer’s awareness that it is discriminating, but the employer’s knowledge that it is acting in violation of federal law.
3. Burnett has to prove punitive damages by a preponderance of the evidence.
4. Sufficient evidence existed that defendants acted with reckless indifference towards Burnett’s rights, including the failure to follow up with Burnett three different times regarding his accommodation requests: 1) after Burnett sent his employer and request for an accommodation in August 2014; 2) after Burnett reported his wrist injury in October 2014; and 3) after Burnett filed a complaint with the state of Maine Human Rights Commission in June 2015 and met with his employer to discuss the filing of that complaint. As a result of the defendant’s failure to respond to his request, Burnett experienced difficulty with the doors every day for months until he resigned.
5. Defendants never responded to Burnett’s request for an accommodation.
6. Defendant argued that they made a good faith attempt to comply with the law. However, good faith attempts require more than lip service.
7. While it is true that the employer had a written open door policy with respect to a person requesting an accommodation, such a policy without more is insufficient to insulate an employer from punitive damages liability.
8. Evidence exists that the integrated employer knew that a failure to respond to Burnett’s request was a violation of the law.
9. His immediate supervisor did confirm with another that the doors were apparently ADA compliant when the building was built. However, he did not inquire further into the date the building was built and whether the doors remained compliant at the time of Burnett’s request. Ultimately, Burnett’s pleas simply went unanswered.

IV

New Trial

1. While it is true that the verdict is inconsistent, the defendants never properly preserved that objection.
2. Defendant didn’t object when the jury inquired whether an inconsistent verdict (integrated employer as well as a joint employer) was possible.
3. Trial court was was within its discretion to exclude the testimony of a person that was offered on the eve of the trial and not during discovery when that testimony would have critically affected plaintiff’s case. In fact, such disclosure should have been made much earlier pursuant to federal rules.
4. The golden rule statement of plaintiff’s attorney at closing was improper but it didn’t prejudice the case. That is, the case would have ended the same way in light of the evidence. Same goes for the plaintiff’s attorney throwing out specific dollar figures during closing arguments. That was also improper but didn’t change anything. Further, with respect to the damages amount being thrown out in closing argument the plaintiff didn’t properly preserved that challenge at trial.

V

Thoughts/Takeaways

1. The discussion of an integrated employer, which I have not blogged on before, reminds me a lot of what we learned in law school when it comes to alter ego and piercing the corporate veil. If you have separate corporations, you would do well to observe corporate formalities so that the corporations are truly separate. Failure to do that, can run both corporations into trouble.
2. The integrated employer factors are holistic. That is, you look at the overall picture rather than how each of the factors add up with each other.
3. If an employee gives his or her employer enough information to indicate that reasonable accommodations are needed, the employer would do very well do not ignore those requests. Ignoring those requests is a bad idea and may even subject the employer, as here, to punitive damages.
4. The discussion of punitive damages resembles in some ways the discussion of what is deliberate indifference under title II/Rehabilitation Act, which we discussed here186187199200200206. You can get punitive damages under title I but not under title II, the Rehabilitation Act, or title III.
5. Good faith requires something more than just written policies.
6. Interesting that there wasn’t a separate personal injury cause of action alleging that the injury was the result of the doors being noncompliant with the ADA, which they probably were. We discussed that possibility here187188200201201207.
7. There is no grandfather clause with respect to the accessibility of physical facilities. You have to look at the applicable ADAAG guidelines in place at the moment in time the issue comes up.
8. Doing the job adequately or even well doesn’t forfeit a person with a disability right to reasonable accommodations.
9. Title I, II, and III of the ADA all have different statutory, regulatory, and interpretive rules from each other. Sometime, more than one title of the ADA at a time is involved simultaneously. For example, to Burnett, an employee, the heavy doors fell under title I. However, if the place that Burnett worked at is a place of public accommodation under 42 U.S.C. §12181(7), which it probably is, then to the individual non-employee seeking to access that place, the double doors would fall under title III (a completely different system than title I). While the result of having to move the double doors would probably be the same, how you get there would be completely different under title I then under title III. So, it can be really helpful to have access to an attorney knowledgeable about all of the titles of the ADA. I don’t know many attorneys besides myself that fit that criteria. In that case, you would want to find attorneys that have knowledge about the applicable title of the ADA involved. In other words, I have been involved in matters over the years where title I, title II, and title III are all involved simultaneously. This case involved the simultaneous operation of title I and title III. I have also been involved in matters where title I and title II were operating simultaneously. In short, simultaneous operations of multiple titles of the ADA is not as unusual as you might think.