Burnett v. Ocean Properties, Ltd.

United States Court of Appeals
For the First Circuit
Nos. 19-2086, 19-2087
RYAN D. BURNETT,
Plaintiff, Appellee,
v.
OCEAN PROPERTIES, LTD.; AMERIPORT, LLC,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Howard, Chief Judge,
Lynch and Thompson, Circuit Judges.
Timothy J. Bryant, Jonathan G. Mermin, and Preti Flaherty
Beliveau & Pachios LLP, were on brief for appellant Ocean
Properties, 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, and
Drummond Woodsum were on brief for HospitalityMaine, amicus
curiae.
Kristin L. Aiello was on brief for Disability Rights Maine,
amicus curiae.
February 2, 2021
THOMPSON, Circuit Judge. Appellee Ryan D. Burnett, who
relies on a wheelchair for mobility, sued Appellants AmeriPort,
LLC, and Ocean Properties, Ltd., for failing to accommodate his
disability at work, as required under the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12101, and Maine Human Rights
Act ("MHRA"), Me. Stat. tit. 5, § 4571 (1971). He prevailed and
a jury awarded Burnett compensatory and punitive damages for his
troubles. Over Appellants' protestations, the district court
upheld the verdicts and entered judgment in Burnett's favor but
remitted the punitive damages award. Appellants are here
challenging the verdicts, amended judgment, and order denying
their post-trial motions. After careful consideration, we affirm.
BACKGROUND1
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
1 We narrate the facts in the light most favorable to the
jury's verdict and as relevant to this appeal. See, e.g., Bielunas
v. F/V Misty Dawn, Inc., 621 F.3d 72, 74 (1st Cir. 2010).
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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
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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 push-
button, 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.
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The Trial
A three-day jury trial was held concerning the only
trial-worthy issue which survived pre-trial dispositive motions to
Burnett's suit: whether Appellants violated the ADA and MHRA by
failing to accommodate Burnett concerning the heavy wooden doors.2
Burnett was the primary witness and he testified in support of his
claim that Appellants never responded to his request for push-
button, automatic doors, not "even as to why they could or could
not or if they were or were not compliant." Burnett recalled
feeling "tired, frustrated, [and] angry" that he never heard a
response to his request; he believed Appellants did not wish to
accommodate him. Another witness was Darsaoui, who was called by
both Burnett and Appellants. The third and final witness was
Burnett's girlfriend, who testified further about Burnett's
emotional distress which sometimes caused conflict in their
relationship. The jury heard testimony as narrated above in our
background discussion. Additionally, Appellants stipulated that
replacing the doors was not an undue hardship and that Burnett had
a disability, was qualified to do his job, and worked for
2The additional claims Burnett originally brought, but were
tossed out, were failure to accommodate him regarding other
incidents, disparate treatment, retaliation in violation of the
ADA and MHRA, and violation of the Maine Whistleblower Protection
Act. Burnett did not appeal those rulings.
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AmeriPort; the parties disputed whether Burnett also worked for
Ocean Properties.3
Appellants also sought to call Mooney to testify that he
tested the doors in December 2013 or January 2014 and found the
doors ADA-compliant. However, Appellants conceded they did not
disclose this information to Burnett until after the jury was
selected and six days before trial; Appellants had previously
disclosed only that the doors were tested when the building was
constructed (as revealed in Mooney's e-mail to Darsaoui, which was
timely provided to Burnett in discovery). Burnett claimed he was
surprised and prejudiced by the late disclosure because he would
have designated an expert and tested the doors himself. Siding
with Burnett, the district court prohibited Appellants from
inquiring about Mooney's 2013/2014 testing of the doors as a
sanction for Appellants' failure to disclose or supplement during
discovery. See Fed. R. Civ. P. 26(a), (e), 37(c). Although the
ruling did not prevent Appellants from otherwise calling Mooney as
a witness, Appellants opted not to do so.
Appellants moved for judgment as a matter of law at the
close of Burnett's case in chief and again at the close of
Appellants' case in chief, raising three total issues, which were
that Burnett failed to show: (1) his requested accommodation was
3 At trial, Appellants were represented by the same counsel.
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reasonable since he could perform the essential functions of his
job; (2) Appellants acted with malice or reckless indifference
towards him to support an award for punitive damages; and (3) Ocean
Properties 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 challenged
comments, of which the first was objected to and the other was
not: counsel (1) suggested that the jury "imagine" what life was
like for Burnett having a disability in order to award him damages
and then (2) suggested a ballpark damages figure.
The Verdicts
The jury retired to deliberate with the following
agreed-upon special verdict form:
(1) Has Ryan Burnett proven it is more likely
than not that Ocean Properties and/or
AmeriPort failed to reasonably accommodate his
disability?
(2) What damages, if any, has Mr. Burnett
proven more likely than not that he sustained
as a result of Ocean Properties and/or
AmeriPort's failure to reasonably accommodate
his disability?
(3) Was Ocean Properties an employer or joint
employer of Mr. Burnett?
(4) Were Ocean Properties and AmeriPort
integrated employers of Ryan Burnett?
(5) How many employees do you find Ryan
Burnett's employer had when he worked for the
employer?
In a chambers conference during deliberations, the district judge
read to counsel a note from the jury that asked whether "both
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questions 3 and 4 could be answered yes." The district judge said
he believed both questions could be answered affirmatively and
counsel for Burnett and Appellants agreed. After informing counsel
that he would respond to the jury's note with "yes, both questions
3 and 4 could be answered yes," the district judge asked if there
were any objections, and counsel for Burnett and Appellants replied
that there was no objection.
The jury returned a verdict that answered questions 1,
3, and 4 affirmatively, found Burnett's employer had more than 500
employees (question 5), and awarded Burnett $150,000 in
compensatory damages (question 2). No challenges to the verdict
were raised.
Having found Appellants liable, the jury deliberated a
second time to determine whether to award punitive damages. The
jury returned a second verdict that found that Burnett proved
Appellants acted intentionally or with reckless indifference and
awarded him $500,000 in total punitive damages ($200,000 under the
ADA and $300,000 under the MHRA).
Post-Trial Motions
After trial, Appellants renewed their motion for
judgment as a matter of law raising the same grounds as before.
They also moved for a new trial challenging the consistency of the
first verdict regarding the employment relationship, the ruling
excluding Mooney from testifying about the 2013/2014 testing of
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the doors, and Burnett's counsel's closing arguments. Lastly,
they moved to remit the total award to $50,000, the statutory limit
recoverable from an employer with fewer than 101 employees, based
on their claim that there was no evidence AmeriPort had over 100
employees and that Ocean Properties had any employees.4 See 42
U.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 the
judgment to accept the parties' stipulation reducing the total
award from $650,000 to $500,000 and then remitted the punitive
damages award from $500,000 to $350,000 (specifically, $125,000
under the ADA and $225,000 under the MHRA). It declined to remit
further because Ocean Properties didn't prove it had fewer than
500 employees, making the maximum statutory limits (of $300,000
under the ADA and $500,000 under the MHRA) for employers with over
500 employees applicable instead. See 42 U.S.C. § 1981a(b)(3)(D);
Me. Stat. tit. 5, § 4613(2)(B)(8)(e)(iv) (2012). This appeal
followed.
4Appellants also argued below that the punitive damages award
was duplicative (because Burnett was awarded punitive damages
under the ADA and MHRA) and excessive, that the compensatory
damages award was excessive because there was little evidence of
emotional distress, and, alternatively, that the total award
should be reduced to a de minimis figure of $10,000. Since
Appellants abandoned these arguments on appeal, we do not address
them.
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OUR TAKE
Before us, Appellants assert that the district court's
denial of their motions was wrong and warrants vacatur of the
verdicts and judgment in their favor, or a new trial, or, if all
else fails, remittitur.5 We take each motion in turn, detailing
additional facts as needed.
Judgment As A Matter Of Law
Appellants repeat here the same arguments they made
below in their post-trial motions for judgment as a matter of law,
which essentially are that Burnett failed to prove his case under
the ADA and MHRA. Because the ADA and its Maine equivalent, the
MHRA, 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 the
language of the ADA and MHRA "is sufficiently similar to allow
case law interpreting the federal statute to be applied to parallel
claims under the state statute").
5 Some arguments were briefed only by Ocean Properties, and
others, only by AmeriPort, but Appellants tell us that they adopt
one another's arguments. "In a case involving more than one
appellant or appellee, . . . any number of appellants or appellees
may join in a brief, and any party may adopt by reference a part
of another's brief." Fed. R. App. P. 28(i). The adopted arguments
must be "readily transferrable from the proponent's case to the
adopter's case," however. United States v. David, 940 F.2d 722,
737 (1st Cir. 1991). Burnett didn't object to Appellants' adoption
of each other's arguments and, therefore, we will treat Appellants'
arguments as adequately adopted and explained relative to their
respective claims on appeal.
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Standard of Review
We review de novo a district court's denial of a motion
for judgment as a matter of law. Suero-Algarín v. CMT Hosp. Hima
San Pablo Caguas, 957 F.3d 30, 37 (1st Cir. 2020). "Although we
review the record as a whole, we construe facts in the light most
favorable to the jury verdict, draw any inferences in favor of the
non-movant [Burnett], and abstain from evaluating the credibility
of the witnesses or the weight of the evidence." Id. We must
affirm "unless the evidence . . . could lead a reasonable person
to only one conclusion, namely, that [Appellants were] entitled to
judgment." Id. (first alteration in original) (quoting Full
Spectrum Software, Inc. v. Forte Automation Sys., Inc., 858 F.3d
666, 671 (1st Cir. 2017)).6
Discussion
1. Employment Relationship
As mentioned, Appellants stipulated at trial that
Burnett worked for Appellant, AmeriPort, but the battle below and
before us is whether he also worked for Ocean Properties. On that
front, Appellants argue that contrary to Burnett's assertions,
6 At the outset, we note that Appellants' arguments mostly
fail to account for our standard of review. Additionally,
Appellants point the finger at Burnett for not following up on his
request for push-button, automatic doors despite seeing Darsaoui
regularly at work, but the burden is on the employer to respond to
the 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).
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there was insufficient evidence at trial that Ocean Properties and
AmeriPort were so interrelated to both be liable as Burnett's
single integrated employer.
Therefore, before addressing Appellants' liability
challenges, we first decide who might properly be on the hook.
Appellants can be considered Burnett's single integrated employer
if they are "two nominally separate companies" that are "so
interrelated that they constitute a single employer subject to
liability." See Torres-Negrón v. Merck & Co., Inc., 488 F.3d 34,
40-41 (1st Cir. 2007) (applying single employer test to determine
liability under Title VII and the ADA). We consider the following
four factors7 to determine whether two or more entities count as a
single employer under the ADA in the "widely recognized"
integrated-enterprise test: (i) "centralized control over labor
relations"; (ii) "interrelation between operations"; (iii) "common
management"; and (iv) "common ownership."8 Id. at 42 & n.8 (citing
7 These factors were first developed to determine whether
interrelated companies should be treated as one entity under the
National Labor Relations Act, 29 U.S.C. § 164. Romano v. U-Haul
Int'l, 233 F.3d 655, 662 (1st Cir. 2000).
8 Although we have identified various tests to determine
whether a single employer exists in Title VII discrimination
claims, see Romano, 233 F.3d at 665, we have yet to decide which
test is applicable to determine whether an employer is liable under
the single-employer theory in an ADA claim. We will apply the
integrated-enterprise test the parties applied in their briefs.
See Torres-Negrón, 488 F.3d at 42 n.8 (1st Cir. 2007) (applying
the integrated-enterprise test in an ADA claim). Other circuits
have applied this same test in ADA claims. See, e.g., Tipton v.
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Romano v. U-Haul Int'l, 233 F.3d 655, 662 (1st Cir. 2000)). Not
all four factors are necessary to establish a single employer
relationship. Id. at 42. "Rather, the test should be applied
flexibly, placing special emphasis on the control of employment
decisions." Id. (citing Romano, 233 F.3d at 666 (where we stated
that "[w]e choose to follow the more flexible approach . . . which
focuses on employment decisions, but only to the extent that the
parent exerts an amount of participation [that] is sufficient and
necessary to the total employment process, even absent total
control or ultimate authority over hiring decisions") (internal
quotation marks omitted))). We evaluate these four factors one by
one.
There is ample evidence of centralized control over
labor relations, which examines control of employment decisions.
Romano, 233 F.3d at 666. Burnett believed he worked for Ocean
Properties. He signed a probationary form indicating his
acceptance "as a term of hire a 90-day probationary period with
Ocean Properties" and a hiring statement indicating he was "an
employee of Ocean Properties, Ltd., or affiliated companies." He
was issued a list of employment policies that displayed "Ocean
Northrup 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.3d
1213, 1220 (10th Cir. 2002); Parker v. Columbia Pictures Indus.,
204 F.3d 326, 341 (2d Cir. 2000); Swallows v. Barnes & Noble Book
Stores, Inc., 128 F.3d 990, 993-96 (6th Cir. 1997).
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Properties Reservations Center Training Manual" on the bottom,
left-hand corner and a certificate from "Ocean Properties, Ltd."
for completing mandatory harassment training. Although Darsaoui
testified that Burnett was hired to work for AmeriPort and that
his probationary form was filled out incorrectly, we view the
evidence in the light most favorable to the verdict and draw
reasonable inferences in favor of Burnett. See Suero-Algarín, 957
F.3d at 37. Notwithstanding the evidence suggesting Burnett was
hired and trained by Ocean Properties, other evidence shows his
performance evaluation was conducted by AmeriPort and his
supervision was managed by Darsaoui, AmeriPort's payroll
administrator who was also in charge of human resources,
scheduling, discipline, hiring, and firing at the clubhouse. But
Darsaoui also hired reservation agents to work for Ocean Properties
at the clubhouse.
As for employment compensation, there is evidence that
Burnett received wages and benefits from both AmeriPort and Ocean
Properties. He discussed "benefits" and "time off" with Darsaoui,
he was on AmeriPort's payroll ledger, and his W-2 indicated his
employer was AmeriPort, yet his paystubs listed his employer as
"AmeriPort, LLC d/b/a [doing business as] Ocean PR Trust."
Further, Burnett received a paycheck and stub from "OPL Central
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Reservations"9 and participated in a 401(k) plan through Ocean
Properties. We find this compilation of facts is evidence of
centralized control of labor relations. Compare Torres-Negrón,
488 F.3d at 43 (finding evidence of centralized control of labor
relations where one entity paid plaintiff, provided her benefits,
and had the power to terminate her, while the other entity
exercised almost exclusive control over her day-to-day employment
and had substantial influence over the decision to terminate her),
with Engelhardt v. S.P. Richards Co., Inc., 472 F.3d 1, 7 (1st
Cir. 2006) (finding no evidence of centralized control of labor
relations in wrongful termination claim under the Family and
Medical Leave Act where one entity "made its own, independent
decisions with respect to labor relations" and did not defer to
the other entity "in making hiring, firing, assignment,
scheduling, or compensation decisions"). Accordingly, the first
factor evinces a single integrated employer relationship.
The second factor -- the interrelation between
operations -- evaluates whether Appellants "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." Romano, 233 F.3d at 667 & n.7.
Additional considerations under the interrelation of operations
9We note that Darsaoui testified this was "not a paycheck
stub, but it is a check and a check stub."
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factor may 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. Id. at 666-67.
There is significant evidence of interrelation between
operations at Ocean Properties and AmeriPort. First, as discussed,
there is evidence of shared personnel -- namely, Darsaoui. Second,
Appellants shared use of e-mail addresses. Despite being AmeriPort
employees, Darsaoui and Burnett had Ocean Properties e-mail
addresses. Third, Appellants shared documents and logos. Darsaoui
admitted that AmeriPort used Ocean Properties's employee handbook
and department policies. Moreover, an Ocean Properties
advertisement Darsaoui co-authored and Burnett's training
certificate signed by Darsaoui displayed the Ocean Properties
logo, the same logo Burnett had seen used "multiple times around
the office for different certificates or poster boards." To
Burnett's knowledge, AmeriPort did not have a separate logo. The
fact that Darsaoui contributed to the advertisement also evinces
that AmeriPort was involved in Ocean Properties's advertising
decisions. Fourth, Appellants shared office space. Darsaoui's
office was in the clubhouse overlooking the call center where
Burnett and the Ocean Properties reservation agents she hired would
work. Fifth, Appellants shared a corporate office, Portsmouth
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Corporate Financial Services ("PCFSI"), in Portsmouth, New
Hampshire. The payroll information Darsaoui processed for
AmeriPort was submitted to PCFSI, where a copy of Burnett's
probationary hire form was kept. Moreover, Burnett's Ocean
Properties hiring statement listed PCFSI for all legal and
corporate matters. There was evidence that AmeriPort and "OPL
Central Reservations" had the same corporate office address.
Overall, this is strong evidence of interrelation between
operations. See, e.g., Knowlton v. Teltrust Phones, Inc., 189
F.3d 1177, 1184 n.7 (10th Cir. 1999) ("Interrelation of operations
is clear because the three entities shared a building, phone
system, reception area, office equipment, accounting department,
personnel manager, personnel handbook, and payroll accounts.").
Further, Appellants performed substantially the same function and
had the same purpose -- booking reservations and providing guest
services for the same hotels and resorts. See Torres-Negrón, 488
F.3d at 42 (finding that two subsidiaries of the same parent
company "perform[ed] substantially the same function" for purposes
of the interrelation between operations factor).
Thus, the second factor -- review of the interrelation
between the operations of AmeriPort and Ocean Properties -- also
evinces a single integrated employer relationship. But see
Engelhardt, 472 F.3d at 6-7 (finding no evidence of interrelation
between operations where two entities had separate headquarters,
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human resources, records, and record-keeping departments, separate
worksites with distinct functions, and separate business
purposes).
Darsaoui doing work for both AmeriPort and Ocean
Properties is also evidence of the third factor -- common
management -- which examines "whether the same individuals manage
or supervise the different entities or whether the entities have
common officers and boards of directors." Davis v. Ricketts, 765
F.3d 823, 828 (8th Cir. 2014) (citation omitted) (applying the
integrated-enterprise test in a Title VII claim). But see
Engelhardt, 472 F.3d at 6 (finding no evidence of common management
where there was no common manager between two entities and no
manager of one entity answered to an employee of the other entity).
Although there is little to no evidence of the fourth
factor -- common ownership -- which looks at "whether one company
owns the majority or all shares of the other and if the entities
share common officers or directors," Davis, 765 F.3d at 828-29
(citation omitted), recall, as we discussed previously, that
satisfying all four factors of the test is not necessary for
Appellants to be viewed as a single integrated employer. See
Torres-Negrón, 488 F.3d at 42. And, given the significant evidence
submitted at trial as to the other factors which support the jury's
finding, Appellants' challenge here fails.
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Appellants also argue that there was insufficient
evidence at trial that AmeriPort and Ocean Properties were
Burnett's joint employers. However, having found there was
sufficient evidence that Appellants were Burnett's single
integrated employer, we have no reason to consider whether
Appellants were also Burnett's joint employers.10 See, e.g.,
Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 229 n.4
(5th Cir. 2015) (finding "no occasion to consider" single employer
status after holding that two entities were joint employers). The
single and joint employer theories are alternative theories of an
employment relationship. See Engelhardt, 472 F.3d at 4 n.2 (noting
that whether a single or joint employer relationship exists depends
on "whether the plaintiff seeks to impose liability on [his] legal
employer or another entity"); Rivas v. Federacion de Asociaciones
Pecuarias de P.R., 929 F.2d 814, 820 n.17 (1st Cir. 1991) ("[T]he
'joint employer' concept recognizes that the business entities
involved are in fact separate but that they share or co-determine
10 Separately, Ocean Properties argues that if we conclude
that Appellants were Burnett's joint employers but not his single
integrated employer, Ocean Properties is entitled to judgment as
a matter of law regarding punitive damages because there is no
evidence that Ocean Properties (as opposed to AmeriPort) acted
with malice or reckless indifference towards Burnett. Ocean
Properties first raised this claim in its Rule 50(b) motion and
therefore the district court considered the claim waived. We do
not address this argument because we conclude that Appellants were
Burnett's single integrated employer.
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those conditions of employment." (quoting N.L.R.B. v. Browning-
Ferris Indus. of Pa., Inc., 691 F.2d 1117, 1123 (3d Cir. 1982))).
2. Reasonable Accommodation
Appellants contend that since the evidence showed
Burnett was actually performing the duties of an associate --
indeed excelling at his job -- he did not need an accommodation
and his requested accommodation was unreasonable. Burnett, who
Appellants stipulated has a disability, has the right to a
reasonable accommodation that would enable him to perform his job,
unless Appellants can show that such accommodation would impose an
undue hardship.11 See 42 U.S.C. § 12112(b)(5); Me. Stat. tit. 5,
§ 4553(2)(E). To perform his job, Burnett must be able to perform
the "essential function" or "fundamental job dut[y]" of the
associate position. See Ward v. Mass. Health Research Inst., Inc.,
209 F.3d 29, 34 (1st Cir. 2000) (alteration in original) (quoting
Laurin v. Providence Hosp., 150 F.3d 52, 56-57 (1st Cir. 1998));
see also 42 U.S.C. § 12111(8); Me. Stat. tit. 5, § 4553(8-D).
An "essential function" can encompass more than the "technical
skills and experience" the position requires. Ward, 209 F.3d at
11An accommodation poses an "undue hardship" if it requires
significant difficulty, financial or otherwise. See 29 C.F.R. §
1630.2(p)(1); Me. Rev. Stat. Ann. tit. 5, § 4553(9-B). Because
Appellants stipulated that replacing the doors was not an undue
hardship and do not argue otherwise on appeal, we do not discuss
whether Appellants would have met their statutory burden of proving
undue hardship.
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34 (quoting Laurin, 150 F.3d at 57, 59 n.6); see also Grenier v.
Cyanamid Plastics, Inc., 70 F.3d 667, 674 (1st Cir. 1995) (citing
cases illustrating "essential functions" beyond the "job-related
functions").12
There was sufficient evidence that Burnett needed an
accommodation and that his requested accommodation was reasonable.
Burnett testified that, daily, he experienced difficulty entering
the clubhouse and once injured his wrist when doing so. The fact
that Burnett was able to enter the clubhouse (at the risk of bodily
injury) despite this difficulty and to perform the duties of an
associate once inside does not necessarily mean he did not require
an accommodation or that his requested accommodation was
unreasonable, as Appellants claim. A "'reasonable accommodation'
may include . . . making existing facilities used by employees
readily accessible to and usable by individuals with
disabilities." 42 U.S.C. § 12111(9)(A); see also Me. Stat. tit.
5, § 4553(9-A)(A). Moreover, the Supreme Court clarified in U.S.
12 Generally, an employer is required to engage in an
interactive process with the employee with a disability to identify
a reasonable accommodation. See generally Kezer v. Cent. Me.
Med. Ctr., 40 A.3d 955, 963-64 (Me. 2012) (citing Me. Stat. tit.
5, § 4613(2)(B)(8)(b)); 29 C.F.R. § 1630.2(o)(3). Burnett argues
that Appellants failed to engage in such a process with him.
However, as Appellants correctly note in their reply, the jury did
not make any findings related to the interactive process, nor do
Appellants raise any challenges to the interactive process in their
opening briefs. Therefore, we do not address whether Appellants
were required to participate in the interactive process and if
they did so.
- 22 -
Airways, Inc. v. Barnett that "[t]he [ADA] requires preferences in
the form of 'reasonable accommodations' that are needed for those
with disabilities to obtain the same workplace opportunities that
those without disabilities automatically enjoy." 535 U.S. 391,
397 (2002). Viewing the evidence in the light most favorable to
the verdict, see Suero-Algarín, 957 F.3d at 37, the evidence
presented shows that the existing doors were not "readily
accessible to and usable by" Burnett and that an accommodation was
necessary for Burnett to reach a level playing field as an employee
without a disability.13 Based on this evidence, a reasonable jury
could conclude that Appellants did in fact fail to reasonably
accommodate Burnett's disability.
3. Malice/Reckless Indifference
Appellants claim Burnett shouldn't have been awarded
punitive damages because there was insufficient evidence that they
acted with malice or reckless indifference towards him. Burnett
is entitled to punitive damages if he can show Appellants "engaged
in a discriminatory practice . . . with malice or with reckless
13 Citing Ward, 209 F.3d at 33, Appellants claim that to
determine whether a reasonable accommodation is necessary, the
first step is whether the employee can perform the essential
functions of the job and, if he cannot, then the second step is
whether any reasonable accommodation will enable him to perform
the essential functions. Appellants' reliance on Ward is
misplaced. We applied this two-step test in Ward to determine
whether the plaintiff was a "qualified individual" within the
meaning of the ADA, id. at 33-34, not whether he needed a
reasonable accommodation.
- 23 -
indifference to [his] . . . rights." 42 U.S.C. § 1981a(b)(1); see
also Me. Stat. tit. 5, § 4613(2)(B)(8)(c). "[M]alice 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." McDonough v. City of Quincy, 452 F.3d
8, 24 (1st Cir. 2006); see also Kolstad v. Am. Dental Ass'n, 527
U.S. 526, 536 (1999) ("[A]n employer must at least discriminate in
the face of a perceived risk that its actions will violate federal
law to be liable in punitive damages."); Kopenga v. Davric Me.
Corp., 727 A.2d 906, 910 (Me. 1999) (noting that the MHRA's
"language is borrowed directly from federal law"). Burnett must
prove his entitlement to punitive damages by a preponderance of
the evidence under the ADA, see generally Jacques v. Clean-Up Grp.,
Inc., 96 F.3d 506, 511 (1st Cir. 1996) (noting that a plaintiff
must prove by a preponderance of the evidence the prima facie
elements of disability discrimination under the ADA), and by the
higher clear-and-convincing-evidence standard under the MHRA,
Haverly-Johndro v. Bath & Body Works, LLC, No. 1:13-CV-00108-JDL,
2014 WL 2944007, at *7 (D. Me. June 30, 2014) (citing Batchelder
v. Realty Res. Hosp., LLC, 914 A.2d 1116, 1124 (Me. 2007)).
Appellants bear the burden of proving they acted in good faith to
comply with the law. See generally Rodriguez-Torres v. Caribbean
Forms Mfr., Inc., 399 F.3d 52, 64 (1st Cir. 2005) (citing Romano,
233 F.3d at 670).
- 24 -
There is sufficient evidence that Appellants acted with
reckless indifference towards Burnett's rights. Appellants failed
to follow up with Burnett three times regarding his accommodation
request: (1) after Burnett sent Robertshaw a request for an
accommodation in August 2014; (2) after Burnett reported his wrist
injury in October 2014; and (3) after Burnett filed an MHRC
complaint in June 2015 and met with Darsaoui thereafter to discuss
it. The last two incidents served as reminders to Appellants of
Burnett's pending request. And as a result of Appellants' failure
to respond to his request, Burnett experienced difficulty with the
doors every day for months until he resigned. Based on this
evidence, a reasonable jury could conclude that Appellants acted
"in the face of a perceived risk that its actions will violate
federal law." Kolstad, 527 U.S. at 536. See generally Arrieta-
Colon v. Wal-Mart P.R., Inc., 434 F.3d 75, 89-90 (1st Cir. 2006)
(holding that award of punitive damages was warranted in ADA claim
based on hostile work environment where evidence showed that former
employee reported harassment by his co-workers to several
supervisors, all of whom failed to take any action, showing
reckless indifference to employee's rights); Marrero v. Goya of
P.R., Inc., 304 F.3d 7, 29-30 (1st Cir. 2002) (concluding that
evidence that supervisors failed to act on employee's reports of
sexual harassment and that employer failed to take action until
after employee filed EEOC complaint supported jury's finding of
- 25 -
reckless indifference); Bubar v. NorDx, No. 2:16-cv-00201-JHR, 2018
WL 715329, at *9 (D. Me. Feb. 4, 2018), appeal dismissed, No. 18-
1201, 2018 WL 4215609 (1st Cir. Sept. 4, 2018) (declining to strike
jury's punitive damages award under Maine law given evidence of
employer's repeated failure to respond to employee's complaints of
harassment and rejecting employer's good-faith compliance defense
absent evidence it implemented its written anti-discrimination
policies).
Appellants rely on testimony by Burnett (as he believed)
and Darsaoui that Darsaoui did not act with malice or reckless
indifference, but other evidence points to the contrary. The
record shows that Appellants never responded to Burnett's request
for an accommodation. Although Darsaoui testified that her "normal
practice" was to follow up with an employee "verbally" and recalled
"discussions going on regarding the doors," she admitted she could
not "recall having a specific conversation" with Burnett about his
request.14 When viewing the evidence in the light most favorable
to the verdict and drawing inferences in Burnett's favor, see
Suero-Algarín, 957 F.3d at 37, a reasonable jury could conclude
that Appellants did in fact fail to follow up with Burnett on his
request, thereby acting with reckless indifference.
14We note that Darsaoui's testimony about her "normal
practice" contradicts her testimony and Burnett's testimony that
during their meeting to discuss the MHRC complaint, Darsaoui
acknowledged she had no specific knowledge of ADA compliance.
- 26 -
Appellants insist that they acted in good faith. As
evidence of their "good faith efforts" to comply with the law,
Appellants point to their anti-discrimination policy, Darsaoui's
admission that she was aware of her obligation to address every
request for an accommodation, her "consult[ation] with others to
determine the extent to which the company should investigate the
requested accommodation," her communication with Mooney regarding
whether the doors were ADA-compliant, and her understanding, based
on Mooney's response, that the doors were in fact ADA-compliant.
A showing of good faith to comply with the law, however, requires
more than "lip service." Arrieta-Colon, 434 F.3d at 89-90(rejecting employer's claim that "any evidence of a good-faith
effort could shield it from liability" and instead "requir[ing] a
finding of a good-faith effort to comply with the law").
These examples are unavailing. First, Burnett's
employee handbook included an equal employment opportunity
statement15 and an open-door policy.16 Burnett followed the open-
The statement read, in part: "It is the policy and practice
15
of this Hotel to provide equal employment opportunities to all
Associates of the Hotel without regard to race, color, age,
religion, sex, creed, ancestry, sexual orientation, national
origin, familial status, disability, or any other legally
protected status."
The policy directed associates to "bring . . . to the
16
attention of either your supervisor, the general manager or to a
member of our corporate staff" questions or suggestions about
improving job performance, "guest services," or "the overall
operation of the hotel."
- 27 -
door policy by contacting (acting office manager) Robertshaw to
request an accommodation, but to no avail from Robertshaw or any
corporate superiors. As such, a written policy, without more, "is
insufficient to insulate an employer from punitive damages
liability." Romano, 233 F.3d at 670 (rejecting employer's good-
faith defense absent evidence that employees were periodically
trained on anti-discrimination policies, that supervisors were
trained to prevent discrimination, or that anti-discrimination
policies were successfully followed). Second, Darsaoui's
admission of her obligation to take seriously a request for an
accommodation could lead a reasonable jury to conclude that
Appellants knew their failure to respond to Burnett's request was
a violation of the law. See Rodriguez-Torres, 399 F.3d at 64-65(concluding that supervisor's testimony that he was aware of signs
posted throughout the facility regarding discrimination laws and
employees' rights could lead a reasonable jury to conclude he
understood that firing an employee on the basis of gender violated
federal law); see also E.E.O.C. v. Fed. Express Corp., 513 F.3d
360, 375-76 (4th Cir. 2008) (holding that evidence that senior
employees knew of disabled employee's requested accommodation and
were put on notice of his filing of a disability discrimination
charge with the EEOC, yet didn't take any steps to ensure his
supervisor consulted the company's human resources manual on the
ADA and its reasonable accommodations requirement or was
- 28 -
adequately prepared to implement the company's ADA compliance
policy, was sufficient to support jury's finding that the employer
failed to engage in good-faith efforts to implement its ADA-
compliance policy requiring reasonable accommodations for disabled
employees, thus justifying a punitive damages award). Finally,
after confirming with Mooney that the doors were ADA-compliant
"when the building was built," Darsaoui 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. In sum, there was adequate evidence
that Appellants acted with reckless indifference to support the
award for punitive damages.17
In conclusion, all three of Appellants' judgment-as-a-
matter-of-law claims must fail.
17 Appellants distinguish this case from two cases that are
inapposite. See Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121,
148-49 (1st Cir. 2009) (finding no evidence of reckless
indifference where employer deemed employee's requested
accommodations unreasonable but "consideration was given --
whether or not correctly, but consideration was given -- by the
[employer] to the relevant factors"); Marcano-Rivera v. Pueblo
Int'l, Inc., 232 F.3d 245, 254 (1st Cir. 2000) ("[Employee and her
husband] have not identified any facts that would support an award
of punitive damages . . . [and] [t]he record is replete . . . with
evidence that [the employer] instituted policies prohibiting any
type of discrimination, trained its personnel to ensure equal
treatment of employees with disabilities, and took good faith
efforts to comply with the ADA.").
- 29 -
New Trial
On appeal, Appellants repeat three of the four claims of
error they raised below and, to refresh, these are: (1) the first
verdict regarding the employment relationship was inconsistent;
(2) they were prejudiced by the district court's ruling excluding
Mooney from testifying about the 2013/2014 testing of the doors;
and (3) they were prejudiced by two improper comments made by
Burnett's counsel during closing arguments. Burnett tells us the
district court's rulings were correct. We discuss each alleged
claim of error in turn.
Standard of Review
A district court may grant a new trial "only if the
verdict is against the law, against the weight of the credible
evidence, or tantamount to a miscarriage of justice." Sánchez v.
Foley, 972 F.3d 1, 16 (1st Cir. 2020) (internal quotation marks
and citation omitted); see also Fed. R. Civ. P. 59(a). We review
the denial of such a motion for abuse of discretion. See Rodríguez
v. Señor Frog's de la Isla, Inc., 642 F.3d 28, 37 (1st Cir. 2011).
In contrast, we review unpreserved claims for plain error, meaning
Appellants must show "(1) error which (2) is so clear that a trial
judge should act even without an objection and which (3) affects
the [appellants'] substantial rights." Bielunas, 621 F.3d at 78.
The third prong requires a "reasonable probability that, but for
the alleged error, the verdict would have been different."
- 30 -
Teixeira v. Town of Coventry ex rel. Przybyla, 882 F.3d 13, 19
(1st Cir. 2018). We apply the plain error doctrine "stringently"
in civil cases and "will reverse only if the error [also (4)]
'seriously affected the fairness, integrity or public reputation
of the judicial proceedings.'" Gaydar v. Sociedad Instituto
Gineco-Quirurgico y Planificacion, 345 F.3d 15, 22-23 (1st Cir.
2003) (quoting Smith v. Kmart Corp., 177 F.3d 19, 26 (1st Cir.
1999)).
Discussion
1. Inconsistent Verdict
Appellants' first claim of error is that the verdict
that Ocean Properties and AmeriPort were Burnett's single
integrated employer and joint employers was inconsistent because
Ocean Properties could only be liable under a single-integrated-
employer theory or joint-employer theory, but not both.18 "This
Circuit follows the iron-clad rule that a party 'waives [the issue
A quick pause to note that the district court found that
18
Appellants' reading of the verdict mischaracterized the special
verdict form. The court stated:
In fact, question three of the verdict form states:
"[w]as Ocean Properties an employer or joint employer of
Mr. Burnett?" In response, the jury checked "yes."
Question four states: "[w]ere Ocean Properties and
AmeriPort integrated employers of Ryan Burnett?" The
jury checked "yes." 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.
- 31 -
of] inconsistency if it fails to object after the verdict is read
and before the jury is dismissed.'" Wennik v. Polygram Grp.
Distrib., Inc., 304 F.3d 123, 130 (1st Cir. 2002) (alteration in
original) (quoting Toucet v. Mar. Overseas Corp., 991 F.2d 5, 8
(1st Cir. 1993)). "This is because the 'only efficient time to
cure the problem is after the jury announces its results and before
it is excused, and it is the responsibility of counsel to make
timely objection.'" Toucet, 991 F.2d at 8 (quoting Austin v.
Lincoln Equip. Assocs., 888 F.2d 934, 939 (1st Cir. 1989)).
When the jury returned with affirmative answers to
questions 3 and 4 on the special verdict form, Appellants had "both
an opportunity and an obligation" to raise their claim that the
verdict was allegedly inconsistent yet failed to do so. See
Trainor v. HEI Hosp., LLC, 699 F.3d 19, 33–34 (1st Cir. 2012)
(deeming inconsistent verdict claim waived where party failed to
object when jury returned verdict); Torres-Arroyo v. Rullán, 436
F.3d 1, 6 (1st Cir. 2006) (deeming inconsistent verdict claim
waived where party failed to object after jury announced verdict
but before jury was discharged). Ocean Properties does not dispute
that it did not raise this argument before the jury was discharged.
Therefore, Ocean Properties has waived its right to challenge the
alleged inconsistency of the verdict. See Uphoff Figueroa v.
Alejandro, 597 F.3d 423, 435 n.15 (1st Cir. 2010) (deeming
- 32 -
inconsistent verdict claim waived where appellant "does not
dispute that he did not object before the jury was discharged").
Indeed, Ocean Properties engaged in a second waiver when
it did not object to the district judge's proposed response to the
jurors' note regarding jury interrogatory questions 3 and 4. See
Toucet, 991 F.2d at 9 (noting that appellant had "ample opportunity
to 'portend possible verdict inconsistency'" and "should have been
alerted by the use of the special verdict form alone" (quoting
Austin, 888 F.2d at 939)). If Ocean Properties thought there was
any inconsistency, it should have spoken up then.19
2. Mooney's Testimony
Appellants' second claim of error is the district
court's ruling excluding Mooney from testifying about the
2013/2014 testing of the doors because Mooney had already been
listed as a trial witness in discovery and his testimony was
essential to Appellants' defense that they reasonably accommodated
19Even if we were to bypass waiver and review for plain error,
Ocean Properties still would not prevail. See Int'l Floor Crafts,
Inc. v. Dziemit, 420 F. App'x 6, 14 (1st Cir. 2011) (finding
inconsistent verdict argument waived for failure to timely object
and, at most, reviewing only for plain error). Ocean Properties
cannot show any error seriously affected the fairness, integrity,
or public reputation of the trial when the record shows it fully
participated in discussions concerning the verdict form, see supra
note 18 (noting the parties agreed to the special interrogatories),
and, after the first verdict was reached, the jury had not yet
been discharged, which means Ocean Properties was afforded ample
opportunity to challenge the verdict. Beyond jury deliberations,
the record shows the trial was conducted fairly and the district
judge was impartial.
- 33 -
Burnett because the doors were ADA-compliant. "If a party fails
to provide information or identify a witness as required by Rule
26(a) or (e), the party is not allowed to use that information or
witness to supply evidence . . . at a trial, unless the
failure . . . is harmless."20 Fed. R. Civ. P. 37(c)(1). When
reviewing a district court's decision to exclude evidence as a
Rule 37 sanction, we consider various factors, through an abuse of
discretion lens, see Lawes v. CSA Architects and Eng'rs LLP, 963
F.3d 72, 90 (1st Cir. 2020), including "the sanctioned party's
justification for the late disclosure; the opponent-party's
ability to overcome its adverse effects (i.e., harmlessness); the
history of the litigation; the late disclosure's impact on the
district court's docket; and the sanctioned party's need for the
precluded evidence." Harriman v. Hancock Cnty., 627 F.3d 22, 30
(1st Cir. 2010) (citing Esposito v. Home Depot U.S.A., Inc., 590
20 Rule 26(a)(1)(A) states, pertinently: "[A] party must,
without awaiting a discovery request, provide to the other parties
. . . the name and, if known, the address and telephone number of
each individual likely to have discoverable information--along
with the subjects of that information--that the disclosing party
may use to support its claims or defenses."
Rule 26(e)(1) states: "A party who has made a disclosure
under Rule 26(a)--or who has responded to an interrogatory, request
for production or request for admission--must supplement or
correct its disclosure or response . . . in a timely manner if the
party learns that in some material respect the disclosure or
response is incomplete or incorrect, and if the additional or
corrective information has not otherwise been made known to the
other parties during the discovery process or in writing."
- 34 -
F.3d 72, 76 (1st Cir. 2009)) (applying the Esposito factors to
non-expert, Rule 26(a) disclosure requirements).
At the outset, Appellants' initial disclosures didn't
include all discoverable information Mooney had, as required by
Rule 26(a). Appellants had disclosed that the doors were tested
and deemed ADA-compliant when the building was built (recall that
this was Mooney's response to Darsaoui's e-mail, and that e-mail
was timely disclosed to Burnett). However, Appellants waited until
the eve of trial to disclose that Mooney tested the doors in
2013/2014; in fact, Appellants conceded below that they should
have disclosed this information sooner. As such, the Esposito
factors mainly cut against Appellants. According to Appellants,
the excluded testimony was instrumental to their defense to
establish that they "reasonably accommodated Burnett's disability
by supplying him with handicapped accessible doors," but
"[r]eversals based on a sanctioned party's need for precluded
evidence are rare, and seldom based on that factor alone."
Harriman, 627 F.3d at 32 (noting that reversal was warranted in
one case where "the parties agreed that preclusion was tantamount
to dismissal").
Citing Federal Rule of Civil Procedure 26(e), Appellants
argue that Burnett was not harmed by the late disclosure because
Mooney was listed as a trial witness by both parties and Burnett
already knew the doors were tested. But, again, Appellants had
- 35 -
only disclosed to Burnett that the doors were tested and found
compliant at the time the building was built, not once again in
2013/2014.
Appellants now minimize their discovery violation as a
"shortcoming . . . attributable solely to [Burnett's] decision not
to depose Mooney or further pursue during discovery information
related to Mooney's work." This attempt to blame Burnett is
unsuccessful because the Federal Rules required Appellants to
timely disclose the information and Appellants' failure to do so
prevented Burnett from fully preparing his case (i.e., designating
an expert and testing the doors). See Esposito, 590 F.3d at 78
(noting that "the rules require formal disclosure for a reason:
without it, parties . . . may be hindered in their ability to
prepare effectively for trial"). Moreover, because Appellants had
not disclosed Mooney's recent testing of the doors, Burnett could
not have been reasonably expected to depose Mooney or pursue
discovery concerning Mooney's work. Appellants further claim they
were prejudiced because they had informed the jury during opening
statements that Mooney was going to testify about the 2013/2014
testing of the doors, but it was Appellants' voluntary opening
statement revealing surprising information which prompted
Burnett's objection and which triggered the district court's
discretionary ruling. Having placed themselves in this
foreseeable position, Appellants cannot now complain of the
- 36 -
consequences. Lastly, Appellants were at liberty to still call
Mooney as a witness as long as they did not question him about his
2013/2014 testing of the doors.
In sum, the district court's decision to exclude the
testimony was not an abuse of discretion, particularly when this
was the "baseline" sanction and the district court did not impose
additional sanctions. Santiago-Díaz v. Laboratorio Clínico Y De
Referencia Del Este, 456 F.3d 272, 276 (1st Cir. 2006).
3. Closing Arguments
The third claim of error alleged by Appellants, as best
we can discern, is that the district court failed to grant a new
trial based on two comments made by Burnett's counsel during
closing arguments. According to Appellants, the verdict was so
contrary to the weight of the evidence, there is little doubt the
comments poisoned the jury. We discuss each challenged comment in
order.
a. Golden Rule
The first challenged comment is:
For that period of two years, he dreaded it
not just the days he would go, but can you
imagine -- I mean sometimes we all dread going
to work, you know, after a weekend or
something, but for him it was that much worse
because it just was a reminder every workday
that he’s disabled, people are looking at me,
I feel ashamed, ignored and like I don’t
- 37 -
matter, and that’s exactly why we’re asking
you to award damages . . . .21
As mentioned, Appellants preserved this challenge at trial by
interrupting counsel to lodge a "Golden Rule" (defined
momentarily) objection, which the district court overruled.
Appellants now argue that this comment violated the
Golden Rule and was so prejudicial that it amounted to reversible
error. The "Golden Rule" prohibits attorneys from suggesting that
jurors place themselves in the shoes of the plaintiff. See
Granfield v. CSX Transp., Inc., 597 F.3d 474, 491 (1st Cir. 2010).
Drawing from the maxim to "do unto others as you would have them
do unto you," the Golden Rule prohibits jurors from treating
plaintiffs the way jurors would want to be treated. This practice
"has been 'universally condemned because it encourages the jury to
depart from neutrality and to decide the case on the basis of
personal interest and bias rather than on evidence.'" Id. (quoting
Forrestal v. Magendantz, 848 F.2d 303, 309 (1st Cir. 1988)).
Though prohibited, Golden Rule arguments are not per se reversible
error. See id. at 491. We consider "the totality of the
circumstances, which '[f]irst and foremost [recognizes] the
deference due the district court's judgment,'" id. at 490-91
21Appellants do not quote the objected-to language in their
brief but instead cite page 553 of the Appendix, which contains
this language. This is also the same language Appellants
challenged in their post-trial motion for a new trial.
- 38 -
(alterations in original) (quoting Forrestal, 848 F.2d at 309), to
assess the effect of counsel's comment. Other factors we consider
in our totality-of-the-circumstances analysis include: "(1) the
nature of the comment[]; (2) [its] frequency; (3) [its] possible
relevance to the real issues before the jury; (4) the manner in
which the parties and the court treated the comment[]; (5) the
strength of the case; and (6) the verdict itself." Id. at 490.
As a reminder, we review for abuse of discretion. See Rodríguez,
642 F.3d at 37.
We agree with Appellants that counsel's comment was an
inappropriate violation of the Golden Rule. "There can be little
doubt that suggesting to the jury that it put itself in the shoes
of a plaintiff to determine damages is improper argument."
Forrestal, 848 F.2d at 309 (directing jurors to place themselves
in the shoes of plaintiff or his parents and ask themselves "if
[plaintiff] were my child, what amount of money would I accept for
my child to have [plaintiff's] injuries and afflictions" violated
the Golden Rule); see also Granfield, 597 F.3d at 491 (asking
jurors to walk in plaintiff's shoes "for just a couple of hours
while you're thinking about his case" violated the Golden Rule).
Nevertheless, the totality of the circumstances does not
warrant reversal. Although the nature of the comment spoke to a
relevant trial issue, i.e., Burnett's pain and suffering damage
claim, we note that the improper comment was brief, and counsel
- 39 -
did not again violate the Golden Rule after Appellants' objection.
See Granfield, 597 F.3d at 490-91. Additionally, the district
court's standard instructions that arguments by counsel are not
evidence mitigated any prejudicial effect. See id. at 491. We
have noted that these standard instructions can "dispel any
prejudice from improper remarks." United States v. Ayala-García,
574 F.3d 5, 21 (1st Cir. 2009); see also Granfield, 597 F.3d at
491 (holding that the district court's instructions "adequately
dealt with" counsel's closing arguments that violated the Golden
Rule). Lastly, we consider the strength of the case and the
verdict itself. See Granfield, 597 F.3d at 490. Since Burnett
was the primary witness, the jury, having returned a verdict in
his favor, must have found him credible. As the district judge
noted, the jury "really, really liked Mr. Burnett . . . . He was
self-effacing. He was not trying to gild the [lily]." Therefore,
we can't say that counsel's comment swayed the verdict. See
Forrestal, 848 F.3d at 310 ("[S]ince the jury here obviously
believed [plaintiff's expert witness], this was not a close case.
[The expert's] testimony practically compelled a verdict in favor
of plaintiff."). To sum up, counsel's comment was improper, but
when viewed from the totality of the circumstances vantage, it did
not warrant reversal; therefore, the district court did not abuse
its discretion.
- 40 -
b. Suggested Damages
The second challenged comment is:
Maybe it was just someone overlooked
something, but how it felt to Ryan is why we're
here and the number that you put on that,
there's nothing specific that I can tell you,
which I do recognize makes your job difficult,
but what I can say is that we think it's
significant. Do we think it's, you know,
20,000, 50,000? I don't know. I think it's
more significant, but it's for you to decide
exactly what number you would put on this
period of time in his life, this [sic] two
years, little over two years that he suffered
this way every day unnecessarily, again
because there's a law that says you can't do
this and they broke that law. (Emphasis
added.)
Appellants concede they did not preserve this challenge at trial.
Instead, here's what happened below: The district court
spontaneously raised the issue of suggested damages at sidebar at
the conclusion of closing arguments. It admonished Burnett's
counsel and offered to give a curative instruction, which
Appellants turned down to avoid, as they put it, "calling attention
to it." Appellants, who had failed to make a contemporaneous
objection to counsel's comment, moved for a mistrial but instead
of requesting a ruling, they asked the district court to reserve
ruling until the jury reached a verdict. Appellants decided that
if the jury returned a verdict of $20,000 or $50,000 in
compensatory damages, they would argue the jury was unduly
influenced by counsel's comment. Before the jury retired to
- 41 -
deliberate, the district court instructed them that their verdict
must be based on the evidence and the law, which echoed its earlier
standard final instructions that arguments by attorneys are not
evidence, as well as its preliminary instructions that closing
arguments are not evidence. When the jury returned a verdict for
$150,000, Appellants renewed their motion for a mistrial, which
was denied.
On appeal, Appellants argue that this comment amounted
to plain error.22 Unlike in many state courts and in other federal
circuits, attorneys in the First Circuit are not permitted to
suggest to the jury how much to award in damages.23 Therefore,
it's clear that Appellants have demonstrated that Burnett plainly
erred. See Bielunas, 621 F.3d at 78. This case turns on whether
Appellants can satisfy the third and fourth prongs, which, as a
22Appellants try to excuse their failure to contemporaneously
object by saying: "(1) the issue was raised immediately after
closing arguments; (2) the trial court recognized that raising the
objection during closing argument only would have underscored the
effect of the erroneous comments; and (3) [Appellants] moved for
a mistrial before the jury began deliberations." However,
Appellants don't explain why they couldn't have asked to approach
the bench, something they had been allowed to do throughout the
trial, and make an objection without the jury hearing it.
Accordingly, our review is for plain error. See United States v.
Zarauskas, 814 F.3d 509, 517 (1st Cir. 2016) (citing United States
v. Sepulveda, 15 F.3d 1161, 1187 (1st Cir. 1993)) (reviewing for
plain error where no contemporaneous objections were made to
challenged comments in closing arguments).
23See Rodríguez, 642 F.3d at 37 & n.3; Bielunas, 621 F.3d at
78-79 (collecting cases and noting the First Circuit is quite out
of step in this regard).
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reminder, are (3) whether the error affects Appellants'
substantial rights (this requires a reasonable probability that,
if it wasn't for the alleged error, the verdict would have been
different), and (4) whether it seriously affected the fairness,
integrity, or public reputation of the trial. See id.
Appellants have failed to show there is a reasonable
probability the jury would have returned a different damage award
if counsel had not suggested any ballpark figure. As a result,
Appellants have not shown prejudice. See id. at 79 ("[P]lain error
requires . . . [that] the mistake must also be prejudicial in a
sense that there is a reasonable probability (not just a
theoretical possibility) that it affected the result, and the
result must be unjust, too." (citing United States v. Marcus, 560
U.S. 258 (2010); United States v. Padilla, 415 F.3d 211, 225 (1st
Cir. 2005) (Boudin, C.J., concurring) (en banc))). Appellants
point out that the awarded damages "are precisely three times" or
"significantly more than" what counsel suggested. Though
mathematically correct, this point does not advance Appellants'
argument that counsel's remarks prejudiced the jury. We might
reach a different conclusion -- though we do not decide this -- if
the jury had returned an award closer to $20,000 or $50,000 -- a
point not lost on Appellants based on their wait-and-see strategy
below. See id. ("That the jury found Bielunas 15% comparatively
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negligent as opposed to the 5% his lawyer had argued for suggests
that the jury did not blindly adopt counsel's analysis.").
Even if Appellants had satisfied the third prong,
Appellants have failed to show the error also seriously affected
the fairness, integrity, or public reputation of the trial. At no
point during closing arguments themselves did Appellants object on
this basis, even when prompted by the district court at sidebar.
What's more, Appellants declined the district court's offer for a
curative instruction, even after Burnett's counsel acknowledged
her mistake, apologized, and suggested the jury be given a throw-
plaintiff's-counsel-under-the-bus-admonishment instruction. Against this
backdrop, we cannot find that counsel's comment so swayed the jury
as to unfairly prejudice Appellants, nor can we discern prejudice
based on the weight of the credible evidence before the jury
because, as already discussed, the evidence supported the verdict.
Moreover, the district court's standard instructions,
which were reiterated to the jury right before deliberations,
helped mitigate any prejudice to Appellants. See id. at 79-80.
We highlight that Burnett's counsel's comment pales in comparison
to counsel's comments in Bielunas. See id. at 77. There, counsel
suggested a total damages figure in opening statements, then
increased this total figure in closing arguments, and gave itemized
figures per year (of his client's life expectancy) and category
(past and future "pain and suffering," "mental anguish," and
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"disability and inconvenience"). Id. at 77, 78 n.4. Still, we
held that counsel's comments did not amount to plain error given
that the appellant did not object or request a curative instruction
and the district court informed the jury twice that arguments by
lawyers were not considered evidence. Id. at 79-80. Lastly, as
we discuss below, Appellants do not demonstrate the award was
unjust. Accordingly, Appellants failed to satisfy the fourth and
final prong, and therefore their claim does not pass the plain
error test.24
In conclusion, Appellants' new-trial claims also fail.
Remittitur
As a parting shot, Appellants reiterate their claim for
remittitur on appeal, which is that there was no evidence that
Ocean Properties had any employees or that AmeriPort had more than
100 employees, and therefore the district court was required to
reduce the total award to $50,000, consistent with the
corresponding statutory limit. See 42 U.S.C. § 1981a(b)(3)(A);
Me. Stat. tit. 5, § 4613(2)(B)(8)(e)(i). Appellants ask us to
24In a last-ditch effort, Appellants also seem to argue that
the comments made during closing were "in combination . . . so
prejudicial" as to warrant a new trial. Because Appellants make
no detailed analysis as to why the alleged error is cumulative, we
consider this argument waived. See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990) ("[W]e see no reason to abandon the
settled appellate rule that issues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation,
are deemed waived.").
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remand with instructions for the district court to reduce the total
award to $50,000.
Standard of Review
We review the denial of a motion for remittitur for abuse
of discretion. Sánchez, 972 F.3d at 17. Given the district
court's "greater familiarity with local community standards and
with the witnesses' demeanor at the trial,'" we afford its decision
"'broad discretion." Aponte-Rivera v. DHL Sols. (USA), Inc., 650
F.3d 803, 810 (1st Cir. 2011) (quoting Rodríguez-García v. Miranda-
Marín, 610 F.3d 756, 773 (1st Cir. 2010)). "Where the trial court
already has invoked its discretion in granting a remittitur, the
scope of review is even narrower than usual." Id. at 810-11(quoting Sanchez v. P.R. Oil Co., 37 F.3d 712, 724 (1st Cir.
1994)). Appellants "must show, therefore, that the reduced figure
remains so extravagant as to shock the appellate conscience." P.R.
Oil Co., 37 F.3d at 724 (citing Ruiz v. Gonzalez Caraballo, 929
F.2d 31, 35 (1st Cir. 1991)).
Discussion
Appellants have failed to show the reduced damages award
shocks the conscience. To the contrary, Appellants make no attempt
to argue that the total award was unconscionable; instead, they
argue that the award should be reduced because the evidence didn't
support the jury's finding that Burnett's employer had over 500
employees (question 5 on the special verdict form). Appellants
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repeat their argument that "at trial there was absolutely no
evidence of an employer-employee relationship between [Appellants]
and the alleged employees of those hotels, and no evidence of any
ownership interest over those hotels." To refresh, Appellants are
referring to the forty-five hotels and resorts marketed as "Ocean
Properties Hotels, Resorts & Affiliates." This argument is related
to Appellants' judgment-as-a-matter-of-law argument that there was
no interrelationship between Ocean Properties and AmeriPort
(which, as we already discussed, see supra pp. 12-21, was
contradicted by the evidence), though slightly different (here,
Appellants are challenging the interrelationship to the Ocean
Properties Hotels, Resorts & Affiliates consortium). However,
this argument is also contradicted by the record, which shows that
all forty-five hotels and resorts were marketed on the same
website, ophotels.com, and a number of them used the same Ocean
Properties employee handbook, and that Darsaoui (who, as
discussed, was an AmeriPort employee who also did work for Ocean
Properties) processed payroll for two additional entities in the
consortium, one of which was located in the same building as the
clubhouse. All of this evidence supports the jury's finding that
Burnett's employer had more than 500 employees. Accordingly, we
find no abuse of discretion.
But wait, Appellants point to a case they claim should
be dispositive here. In Escribano-Reyes v. Professional Hepa
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Certificate Corp., a summary judgment case, we stated that "[t]he
employment relationship is most readily demonstrated by [an]
individual's appearance on the employer's payroll," 817 F.3d 380,
388 (1st Cir. 2016) (second alteration in original) (quoting
Walters v. Metro. Educ. Enters., Inc., 519 U.S. 202, 206 (1997)),
and given this pronouncement, Appellants say the district court
should have applied the common law agency test to determine who
counts as an "employee" within the meaning of the ADA. But
Appellants overlook the remainder of our discussion because a
couple of sentences after the quoted passage, we clarified that
"[p]ayroll records are not dispositive" and "the ultimate
touchstone" is the existence of an "employment relationship[]."
Id. at 388-89 (citations omitted). In a footnote, Appellants also
claim that "[b]ecause Burnett failed to produce competent evidence
that OPL [Ocean Properties] employed anyone other than, allegedly,
him, Burnett's claim against that entity failed as a matter of
law." These arguments, which are iterations of Appellants'
judgment-as-a-matter-of-law arguments made below, are misplaced
and unsupported by the record.25
25 Ocean Properties argued in its Rule 50(b), post-trial
motion for judgment as a matter of law that 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." The
district court considered the argument waived because it was not
raised in the parties' Rule 50(a) motion. On the merits,
discussing Escribano and the common law agency test, the district
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In sum, Appellants' remittitur claim also fails.
CONCLUSION
We affirm in all respects, with costs to Burnett.
court found that Burnett failed to establish that Ocean Properties
met the fifteen-employee minimum. The district court's analysis
did not end there, however, as it then aggregated the number of
employees at AmeriPort and Ocean Properties based on evidence of
the interrelationship of the parties to conclude that "the
jurisdictional threshold of fifteen or more employees has been met
as to Ocean Properties through the principle of aggregation."
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