MORIN v. HANNAFORD BROS CO LLC

Filing 54

ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT re 38 Motion for Summary Judgment By JUDGE GEORGE Z. SINGAL. (lrc)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JAI MORIN,
Plaintiff,
v.
HANNAFORD BROS. CO., LLC,

Defendant.

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) Docket no. 1:17-CV-50-GZS
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ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant’s Motion for Summary Judgment (ECF No. 38). After
carefully considering the record and the parties’ briefing, the Court GRANTS IN PART and
DENIES IN PART the Motion, for the reasons outlined below.

I. LEGAL STANDARD
Generally, a party is entitled to summary judgment if, on the record before the Court, it
appears “that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[T]he mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986). An issue is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. at 248. A “material fact” is
one that has “the potential to affect the outcome of the suit under the applicable law.”
Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir. 1993).

The party moving for summary judgment must demonstrate an absence of evidence to
support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In
determining whether this burden is met, the Court must view the record in the light most favorable
to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. See
Santoni v. Potter, 369 F.3d 594, 598 (1st Cir. 2004).
Once the moving party has made this preliminary showing, the nonmoving party must
“produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy
issue.” Triangle Trading Co., Inc. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (quotation
marks and internal ellipsis omitted); see also Fed. R. Civ. P. 56(e). “Mere allegations, or conjecture
unsupported in the record, are insufficient.” Barros-Villahermosa v. United States, 642 F.3d 56,
58 (1st Cir. 2011) (quoting Rivera-Marcano v. Normeat Royal Dane Quality A/S, 998 F.2d 34, 37
(1st Cir. 1993)); see also Wilson v. Moulison N. Corp., 639 F.3d 1, 6 (1st Cir. 2011) (“A properly
supported summary judgment motion cannot be defeated by conclusory allegations, improbable
inferences, periphrastic circumlocutions, or rank speculation.”). “As to any essential factual
element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to
come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment
for the moving party.” In re Ralar Distribs., Inc., 4 F.3d 62, 67 (1st Cir. 1993). “However,
summary judgment is improper when the record is sufficiently open-ended to permit a rational
factfinder to resolve a material factual dispute in favor of either side.” Morales-Melecio v. United
States (Dep’t of Health and Human Servs.), 890 F.3d 361, 368 (1st Cir. 2018) (quotation marks
omitted).

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II. FACTUAL BACKGROUND
Plaintiff Jai Morin has worked for Hannaford since March of 1997 and has been employed
as the Assistant Meat Manager at Store No. 8229 in Waterville, Maine (the “Elm Plaza store”)
since 2013. Several years before the events directly at issue in this matter, Morin was diagnosed
with chronic Lyme disease, a condition Morin asserts is his disability. Morin takes medication to
treat the disease but still experiences symptoms including fatigue, dizziness, and pain. On days
when he experiences symptoms, he may experience severe fatigue and pain that worsens later in
the day. When these symptoms escalate, they make him more prone to suffer a work-related injury
and less able to perform his job duties. There are some days when Morin does not experience
severe fatigue or pain if he works past mid-afternoon. However, working late on those days can
trigger a flare-up of his symptoms in the ensuing days; Morin’s doctor refers to this as a “crash.”
(Dubocq Dep. (ECF No. 41-1), PageID # 1023.) Morin was approved for the use of Family and
Medical Leave Act (“FMLA”) leave in 2013 based on his Lyme disease but ultimately did not use
the leave at that time. Morin had previously used FMLA leave in 2007 for another health condition
and returned to work without any issues.
Approximately nine employees work in the meat department at the Elm Plaza store,
including managers, meat cutters, and clerks or associates who perform basic cleaning and
preparation tasks. In addition to the Assistant Meat Manager, the Meat Department Manager and
the Service Leader manage employees in the department. The Assistant Meat Manager position
description1 lists the following under “Essential Job Functions”:
1. Role model outstanding, friendly customer service and use skills and
knowledge to offer solutions that meet or exceed customers’ expectations.
2. Direct work flow of meat cutters and meat clerks.
Although the official position description in the record names the position as “Assistant Meat Market Sales Manager”
(see, e.g., ECF No. 29-3, PageID # 377), the Court follows the parties’ lead in referring to it as the Assistant Meat
Manager position.
1

3

3.
4.
5.
6.

Ensure product produced meets company standards.
Oversee the cutting room, cooler organization, and rotation of all products.
Process administrative paperwork and maintain accurate department records.
Order and maintain inventory control in order to maximize sales and limit
shrink issues.
7. Use good judgment in the delegation, assignment, and follow up required for
efficient performance of the department.
8. Maintain effectiveness of department’s staffing, scheduling, and financial
results.
9. Perform meat cutter functions.
10. Wash, rinse, and sanitize equipment as outlined by company practices.
11. Supervise performance of all duties and responsibilities of meat associates.
12. Must be able to meet the physical requirements of the position, with or without
accommodations.
(ECF No. 29-3, PageID # 377.) This list of essential job functions does not include a work
schedule or otherwise directly reference work hours. The entire time Morin has served as Assistant
Meat Manager at the Elm Plaza store, the listed essential job functions have been the same. Morin
believes that role modeling, training, and developing associates are the most important leadership
traits of a manager. As part of his managerial duties, when someone calls in sick and Morin is in
charge, he assesses the needs of the department to determine whether to call another associate in
to work or to redistribute work among present staff.
Hannaford’s Retail Leadership Schedule, which was in place prior to the events at issue in
this matter, states that its purpose is to ensure that “Store and Department leaders are scheduled
appropriately to cover all business needs.” (ECF No. 32, PageID # 555.) To that end, the policy
provides in relevant part that assistant managers are expected to work one late shift (until at least
7 p.m.) each week and that assistant managers should be scheduled to work during peak business
hours daily.

The policy further states that the result of the scheduling guidelines will be

“[c]onsistent conditions . . . creating a maximization of sales.” (Id., PageID # 556.)
Prior to his retirement in September 2015, the meat department at the Elm Plaza store was
managed by Dan Knowlton, who did not follow applicable scheduling policies, including the

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Retail Leadership Schedule. In April 2015, Assistant Store Manager Penny Davis2 coached
Knowlton to follow the scheduling policy for himself and Morin and that his failure to do so would
result in discipline. Davis also coached Knowlton’s successor, Travis Hustus, on similar issues.
Morin recalls having discussions with Davis about the expectation that managers work one night
per week until 7 p.m. However, from the time that he became Assistant Meat Manager to
September or October 2015, Morin was regularly scheduled to finish work at 1:30 or 2:30 p.m. on
most days. Morin was rarely scheduled to work past 3:30 p.m. prior to October 2015. In fact,
during the time period between the weeks of January 4, 2014, and September 26, 2015, Morin was
scheduled to work past 3:30 p.m. on only 14 days and until 7 p.m. on only five days. From 2013
to 2015, Morin received positive performance evaluations and four bonuses for his performance
as Assistant Meat Manager.
One metric for measuring how well the meat department functions is maintaining good
levels of inventory and avoiding “shrink,” which describes when the department has to throw out
inventory because it was not purchased. The Elm Plaza store meat department was one of the best
in its regional district of Hannaford stores in maintaining good levels of inventory while Knowlton
was Department Manager. In general, according to the key metrics Hannaford uses to evaluate
financial performance, the meat department performed better financially during the December
2013 –December 2014 and September 2014 – September 2015 timeframes than it did during the
August 2016 – August 2017 timeframe.
After Knowlton’s retirement in September 2015, Hustus became Meat Department
Manager. Morin began to be scheduled to work later in the day than he had previously been
scheduled, specifically, some days until 4 p.m. and other days until 7 p.m. On December 20, 2015,

2

The record reflects that Penny Davis was known as Penny Lord during some portion of the period at issue in this
case.

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Morin spoke to Virginia Moryan, the Associate Relations Manager in the Elm Plaza store, about
his new schedule. Morin told her that he needed to work earlier shifts because of his medical
condition. Moryan told him that he would probably need something in writing from his doctor to
justify a change to his schedule and subsequently provided Morin with a form for his doctor to
complete.
On or about December 31, 2015, Morin provided Moryan with the form as completed by
his doctor, Richard Dubocq. On the form, Dr. Dubocq indicated that Morin has a disability that
renders him unable to function well at the end of the work day. To accommodate the disability,
Dr. Dubocq asked Hannaford to schedule Morin so that he finishes work by 2:30 p.m. every day.
At the time, Morin regularly worked a full-time schedule of eight hours per day, five days per
week, with a half hour for lunch. Therefore, to end his work day by 2:30 p.m. and maintain a fulltime schedule, Morin would need to begin working at 6 a.m. or earlier, when some employees in
the meat department begin working.
Linda Shute, the Associate Relations Specialist for the area in which the store was located,
talked with store management about Morin’s request, the essential functions of the job, scheduling
expectations, and whether Morin’s unavailability after 2:30 p.m. would create a hardship for the
store. Store management believed that Morin’s request was not a reasonable accommodation.
Shute also discussed the request with Hannaford’s legal office and the director of operations for
the region. After gathering all the information and discussing the matter in a collaborative manner,
Shute told store management that they should inform Morin that it is not a reasonable
accommodation for him to leave by 2:30 p.m. every day because it would place an undue burden
on the department.

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On January 6, 2016, Davis and Moryan met with Morin to discuss his request to modify
his schedule. At this meeting, Morin explained that he wanted to continue to work a full-time
schedule but not work past 2:30 p.m. Davis explained to Morin that Hannaford was denying his
accommodation request at least in part because there was a “standard” schedule for his position
that required him to work until 7 p.m. once per week and she did not want to “set precedent” by
deviating from the standard schedule. (Pl.’s Am. Add’l Statement of Material Facts (ECF No. 46)
¶ 39; Def.’s Reply to Pl.’s Am. Add’l Statement of Material Facts (ECF No. 49) ¶ 39.) Davis
offered several part-time positions that would allow Morin to stop working at 2:30 p.m. but which
would have resulted in a reduction in pay and benefits. Morin responded that he had been working
a schedule for the past five years that was basically the schedule he was now requesting, and that
he did not understand why Hannaford would not let him work the requested schedule given his
medical need. Finally, Davis told Morin that he could call Shute if he had any questions.
On January 9, 2016, Morin spoke again with Moryan about Hannaford’s denial of his
schedule request and reiterated that he did not understand why Hannaford was denying him this
schedule when it was basically the schedule he had been working. On January 13, 2016, Morin
submitted a note to Moryan asking Hannaford to reconsider its decision. In the note, Morin stated,
among other things, that he found it difficult to manage his Lyme disease symptoms while working
the schedule that Hannaford was requiring.
In a letter dated January 15, 2016, from Store Manager Rob Meader to Dr. Dubocq, Meader
wrote that he understood Morin was requesting the accommodation of staying in his current
position and finishing work by 2:30 p.m. every day, but that Hannaford could only meet this
accommodation in a different position. Meader further wrote that Hannaford could permit Morin
to work 9 a.m. to 7 p.m. on a consistent basis in his current position and asked Dr. Dubocq if that

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schedule would allow Morin to manage his symptoms. On January 21, 2016, Dr. Dubocq
responded in a letter to Meader that he was not asking for Morin to be assigned to a different
position but rather was requesting that Morin remain in his current position with a modified
schedule. Dr. Dubocq further wrote, “Morin cannot work between the hours of 9 am-7 pm on a
consistent basis at this time. A schedule that allows him to leave work by 2:30 pm would allow
meeting his needs.” (ECF No. 32, PageID # 562.)
On January 28, 2016, after conferring with Shute, Moryan spoke to Dr. Dubocq on the
phone. Dr. Dubocq told Moryan, among other things, that Morin’s health is good in the morning
but in the late afternoon he “runs out of gas” and may “crash/retro-grade.” (ECF No. 33, PageID
# 650.) Dr. Dubocq further told Moryan that Morin would be fine if he could stop working every
day between 2:30 and 3:30 p.m. Moryan subsequently emailed Shute with a summary of her
January 28 conversation with Dr. Dubocq.
On February 4, 2016, Davis and Moryan met again with Morin to discuss his requested
schedule and Davis again told Morin that Hannaford was denying his request. Davis gave Morin
the choice of keeping his current schedule, resigning from Hannaford, or taking a part-time
position at another store. The part-time position of up to twenty-eight hours per week would not
have guaranteed Morin any hours, would have paid less than his current position, and offered fewer
employee benefits. Davis initially told Morin that she needed his response by February 6, 2016,
but Morin was later allowed to take two weeks of vacation to consider his options.
On February 17, 2016, Morin gave a note to Moryan stating, in relevant part, the following:
I am requesting reduced schedule FMLA leave from my Assistant Meat Manager
position for the next 8 months beginning immediately. I am in need of the reduced
schedule FMLA leave because of my fatigue related disability. My current
schedule asks for me to work til 4:30 pm one or two days per week and until 7 pm
one day per week. This new schedule makes my symptoms worse. My doctor had

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told me to work a schedule that ends by 2:30 pm. I will work with my doctor to
discuss if the reduced schedule is still necessary during the next 8 months.
I still believe that you are able to provide me with a schedule adjustment as a
reasonable accommodation for my disability. I don’t believe that [a] request for
shifts that end by 2:30 pm is unreasonable or unworkable or places an undue
hardship on Hannaford. The only alternatives you offered me were to resign,
transfer to a part time job with no guaranteed hours or benefits, or getting my doctor
to remove his recommendation for my schedule restriction. I am very disappointed
that my request was denied.
Please place me back on the schedule in my current role as Assistant Meat Manager
and provide me the necessary forms to request reduced schedule FMLA.
(ECF No. 32, PageID # 568.) On the same day she received it, Moryan faxed Morin’s note to
Shute. Shute understood that Morin was asking for reduced schedule leave under the FMLA that
would allow him to finish work at 2:30 p.m. Shute told Moryan that she would contact the legal
department about Morin’s FMLA request and instructed Moryan to do nothing until she heard
back from Shute. Shute had previously received FMLA training, knew that intermittent leave
differs from reduced schedule leave, and understood that reduced schedule leave means that the
employee works a consistently reduced schedule.
On February 19, 2016, Shute informed Davis and Moryan that a request for intermittent
FMLA leave for Morin should be entered in Hannaford’s system. Hannaford assigned Morin’s
FMLA request to Lisa Cote, who was a Supervisor in the Leave of Absence Administration at
Delhaize America (Hannaford’s parent company). Cote had received FMLA training and also
knew the difference between intermittent and reduced schedule leave.

Specifically, Cote

understood that intermittent leave occurs at a certain frequency and for a certain duration, while
reduced schedule leave provides for a consistent reduction in an employee’s work schedule.
On February 22, 2016, Hannaford sent Morin FMLA information and forms, including a
form titled “Certification of Health Care Provider for Employee’s Serious Health Condition

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(Family and Medical Leave Act),” which the parties refer to as the “FMLA medical certification
form.” Hannaford subsequently received the completed form from Dr. Dubocq, dated March 17,
2016, in which he stated, in relevant part, that Morin suffers from severe fatigue and pain that
“consistently escalate by mid-afternoon” and that “[w]hen this happens, he is more prone to
work-related injury, as well as inability to perform his job duties.” (ECF No. 32-1, PageID # 608.)
Dr. Dubocq further stated that Morin “needs to be completing his daily shift by 2:30 pm” and that
this would ensure that his “symptoms are averted, and he is thus able to perform all of his job
duties.” (Id., PageID # 608.) The FMLA medical certification form asked if Morin’s medical
condition would “cause episodic flare-ups periodically preventing the employee from performing
[his] job functions.” (Id., PageID # 609.) The form also asked for an estimate of the frequency
and duration of any such flare-ups. A “flare-up” as that term was understood by Dr. Dubocq when
he completed the form involves symptoms so severe that Morin has a hard time even getting out
of bed; that is, Dr. Dubocq understood a “flare-up” to mean symptoms so severe that Morin cannot
perform any work at all. Dr. Dubocq indicated on the form that he estimated Morin could
experience one flare-up per week and that a flare-up would render Morin unable to work for an
entire day.
On March 23, 2016, after she received information from Hannaford’s legal department
about a business Morin ran in his spare time, Cote sent Dr. Dubocq a letter enclosing information
about the business and asking Dr. Dubocq if that information changed his medical opinion.3 In
the letter, Cote stated that she understood Morin to be claiming that he could not work past 2:30

Specifically, Cote enclosed “a copy of a Facebook account for [Morin]’s personal meat cutting business” and asked
Dr. Dubocq to note that the business’s listed “hours of operation are from 3:00 pm-9:30 pm and that [Morin] offers to
take in customers in the middle of the night.” (ECF No. 32-1, PageID # 611.) Cote came to understand from Dr.
Dubocq’s response that Plaintiff’s personal business is seasonal. (See Cote Dep. (ECF No. 28-6), PageID #s 306-07.)
3

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p.m. Dr. Dubocq responded by fax on April 7, 2016. In his response, Dr. Dubocq reiterated that
Morin “cannot safely work @ Hannaford on a consistent basis past 2:30 pm”; explained that
“regarding his business operating after 2:30 pm, he employs 5 staff to do the work, so he has the
ability not to work at all on ‘bad days’”; and stated that the information provided by Cote did not
change his opinion regarding the hours that Morin could work at Hannaford. (ECF No. 32-1,
PageID #s 612-13.) In Cote’s view, Dr. Dubocq’s response addressed her concerns about Morin’s
side business.
On May 4, 2016, Cote sent Morin a letter stating that his “intermittent leave” request was
approved.4 Cote’s letter stated, in relevant part:
Your intermittent leave . . . for your Serious Health Condition is approved for you
to be out of work from time to time, from March 19, 2016 through March 19, 2017.
Here’s what this means to you[.]
For your intermittent leave . . . you can take time off 1 time(s) per WEEK and each time
off can last 8 HOUR(s).
(ECF No. 32-1, PageID # 615.) Cote claims that Hannaford never informed her that Morin
requested reduced schedule leave and that she did not understand Dr. Dubocq’s FMLA medical
certification form to be requesting reduced schedule leave. Hannaford in fact never provided Cote
with Morin’s February 17, 2016 note in which he requested “reduced schedule FMLA leave.”
On May 6, 2016, Morin was called in to a meeting with Meader and Shute. They presented
him with a document titled “Record of Conversation,” which Morin refused to sign. The “Record
of Conversation” stated, in relevant part, that: (1) Morin had applied for intermittent FMLA leave;
(2) intermittent leave of one time per week for up to eight hours had been approved; (3) Morin

4

On March 31, 2016, Hannaford sent Morin a letter denying his FMLA request based on a purported failure to provide
a medical certification. (ECF No. 32-1, PageID # 614.) Morin was subsequently informed that this denial was in
error, and the parties do not contend that this erroneous denial has any bearing on the issues currently before this
Court.

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“can use Intermittent FMLA when [he is] having a bad day”; (4) Morin would be expected to work
his scheduled shift if he was not “having a bad day”; and (5) Morin’s typical schedule was going
to include “working one evening until 7:00 p.m., working until 4:30 one shift and until 3:00 the
other rema[in]ing shifts.” (ECF No. 33-2, PageID # 671.)
On August 29, 2016, Morin gave a note to Moryan stating, in relevant part, his view that
Hannaford had treated his FMLA request as a request for intermittent leave when he had actually
requested reduced schedule leave, and that his doctor had requested that Hannaford schedule
Morin for shifts that end by 2:30 p.m. Morin stated that when he had worked past 2:30 p.m., he
had needed co-workers to cut meat for him because he was too dizzy to do so himself. He also
stated his belief that he was not allowed to leave work early more than one day per week, and that
Hannaford had violated his rights under the FMLA. He again requested a schedule with shifts
ending by 2:30 p.m. every day as a reasonable accommodation for his disability or reduced
schedule leave so that he did not have to work past 2:30 p.m. on any day. Finally, Morin requested
in his note that Moryan respond in writing by September 5, 2016. Moryan faxed Morin’s note to
Shute, but Hannaford did not respond to Morin’s note in writing, and Morin’s note was never given
to Cote.5 Morin did not provide Hannaford with any further medical documentation at this point.
On November 27, 2016, Morin emailed Moryan about his schedule, stating that working
late shifts continued to be hard for him; that he was having to work when he was “run-down and
dizzy”; and that he was worried working late was going to cause him to get hurt worse than just a
“sore back or injured pinky toe.” (ECF No. 41-8, PageID # 1071.) Morin also reiterated his
request for a schedule adjustment, but Hannaford did not adjust his schedule. On February 7,

5

Moryan claims that she advised Morin to call the leave office directly because his leave request was out of her hands
in that it was being handled by the leave office. (Moryan Dep. (ECF No. 29-2), PageID # 366.)

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2017, Morin filed a Complaint in this Court based on his contention that Hannaford had violated
federal and state law in its handling of his schedule requests. (Compl. (ECF No. 1), PageID
#s 20-21.)
At some point in 2017, Hannaford provided Morin with another FMLA medical
certification form that Morin gave to Dr. Dubocq. On or about May 16, 2017, Dr. Dubocq
submitted the completed form to Hannaford, which stated, in relevant part:
[Morin’s] main problem when it comes to his medical condition interfering with
his work is that his fatigue and pain escalate through the course of the morning and
peak by mid-afternoon. When this occurs he becomes less efficient and attentive.
This in turn makes him more prone to work related injury (by cutting self on butcher
knives!) and reduced ability to adequately perform his job duties. By allowing
patient to leave work every day at 2:30 pm, these symptoms would be avoided
resulting in improved safety and better job performance! (Along with better health
of patient!)
(ECF No. 32-1, PageID # 622.)6 Dr. Dubocq also stated that Morin “needs to finish work daily by
2:30 p.m. NO EXCEPTIONS!!” (Id., PageID # 623.) However, in the section of the form
inquiring about the frequency of flare-ups, Dr. Dubocq again indicated that flare-ups may occur
once a week for up to eight hours.7
In response to the 2017 FMLA medical certification, Cote sent Morin a letter using
identical language from the prior 2016 FMLA authorization. That is, the letter states that Morin
“can take time off 1 time(s) per WEEK and each time off can last 8 HOUR(S).” (ECF No. 321, PageID # 625.) This authorization covers the period from April 2017 through April 2018.

The Court notes that although this note is nearly illegible, the parties do not dispute the content. (See Pl.’s Am.
Add’l Statement of Material Facts (ECF No. 46) ¶ 100; Def.’s Reply to Pl.’s Am. Add’l Statement of Material Facts
(ECF No. 49) ¶ 100.)
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The FMLA medical certification forms also suggest that Morin needs to take time off work with some frequency to
see his doctor. (See ECF No. 32-1, PageID # 623.) However, the parties do not appear to address this aspect of
Morin’s medical need.

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Hannaford never asked Morin to get a second medical opinion regarding his need for reduced
schedule leave under the FMLA.
Based on Hannaford’s tracking of his FMLA leave, Morin did not exhaust the twelve weeks
of FMLA leave for which an employee is eligible between 2016 and 2017. Morin has remained
the Assistant Meat Manager at the Elm Plaza store and received raises in 2016 and 2017.8

III. DISCUSSION
Plaintiff has brought claims pursuant to the Maine Human Rights Act (“MHRA”),
5 M.R.S.A. §§ 4551-4634; the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C.
§§ 12101-12213; the Maine Whistleblowers’ Protection Act (“WPA”), 26 M.R.S.A. §§ 831-840;
the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. §§ 2601-2654; and the Maine
Family Medical Leave Requirements (“MFMLR”), 26 M.R.S.A. §§ 843-848. Defendant has
moved for summary judgment as to all claims.

A. ADA and MHRA Failure to Accommodate and Discrimination Claims
Plaintiff has brought claims for failure to accommodate under the MHRA and the ADA
(Counts II & V), and unlawful discrimination under the MHRA and the ADA (Counts I & IV).9

The Court has concluded that the material facts related to Morin’s retaliation claims are genuinely disputed and
therefore reserves its discussion of those facts to Section III.B.
8

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Because analysis under the ADA and the MHRA is the same for purposes of the issues raised by Plaintiff, the Court
focuses its analysis on the ADA, construes the MHRA in a manner consistent with the ADA, and does not distinguish
between the two statutes unless specifically noted. See Pouliot v. Town of Fairfield, 184 F. Supp. 2d 38, 51 (D. Me.
2002) (stating that the Court “will analyze the substance of Plaintiff’s claims under ADA caselaw only; if Plaintiff
succeeds in stating a claim under the ADA, he also states a claim under the disability discrimination provisions of the
MHRA”); see also Fitzpatrick v. Town of Falmouth, 879 A.2d 21, 29 (Me. 2005) (“Because of the similarity between
the MHRA and the [ADA], we utilize federal cases interpreting the ADA when we interpret comparable provisions in
the MHRA.”).

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i.

Failure to Accommodate

Plaintiff contends that Defendant violated the ADA and the MHRA by failing to
accommodate his request to work a modified schedule. Under the ADA, an employer must make
“reasonable accommodations to the known physical . . . limitations of an otherwise qualified
individual with a disability who is an . . . employee.” 42 U.S.C. § 12112(b)(5)(A). “Reasonable
accommodations are modifications or adjustments to the work environment, or to the manner in
which the position’s duties are customarily performed, that enable a qualified individual with a
disability to perform the essential functions of that position.” Murray v. Warren Pumps, LLC, 821
F.3d 77, 84 (1st Cir. 2016) (citing 29 C.F.R. § 1630.2(o)).
“An employer is obligated to provide a reasonable accommodation (as long as it is not
unduly burdensome) where a protected employee has requested an accommodation or the
employer otherwise knew that one was needed.”

Murray, 821 F.3d at 84.

A reasonable

accommodation “is one which would enable [the employee] to perform the essential functions of
her job [and] . . . at least on the face of things . . . is feasible for the employer under the
circumstances.” Mulloy v. Acushnet Co., 460 F.3d 141, 148 (1st Cir. 2006) (quotation marks
omitted); see also Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259 (1st Cir. 2001) (“In order to
prove ‘reasonable accommodation,’ a plaintiff needs to show not only that the proposed
accommodation would enable her to perform the essential functions of her job, but also that, at
least on the face of things, it is feasible for the employer under the circumstances.”) (footnote
omitted).

Therefore, an employer violates the ADA if it fails to provide a reasonable

accommodation unless the employer “can demonstrate that the accommodation would impose an
undue hardship on the operation of the business.” 42 U.S.C. § 12112(b)(5)(A). Reasonable
accommodations “may include job restructuring [and] part-time or modified work schedules.

15

However, the ADA does not require an employer to reallocate job duties in order to change the
essential function of a job.” Soto-Ocasio v. Fed. Express Corp., 150 F.3d 14, 20 (1st Cir. 1998)
(citation and quotation marks omitted).
To succeed on a failure to accommodate claim under the ADA, then, “a plaintiff must show
that: (1) he is a [disabled] person within the meaning of the Act; (2) he is nonetheless qualified to
perform the essential functions of the job (with or without reasonable accommodation); and (3)
the employer knew of the disability but declined to reasonably accommodate it upon request.”
Sepúlveda-Vargas v. Caribbean Restaurants, LLC, 888 F.3d 549, 553 (1st Cir. 2018). “[W]hile
the employer bears the burden of showing that a fought-over job function is essential, the employee
bears the burden of showing that she could perform that function, even if only with some
reasonable accommodation for her disability.” Lang v. Wal-Mart Stores E., L.P., 813 F.3d 447,
454 (1st Cir. 2016) (citations omitted).
Plaintiff requested a modified full-time schedule that would allow him to end work by 2:30
p.m. every day as a reasonable accommodation (hereinafter, “Plaintiff’s requested schedule”).
Defendant contends that in order to perform his job Plaintiff must work until 7 p.m. one day per
week and until around 4 or 5 p.m. on at least two additional days per week when the Meat
Department Manager is off (hereinafter, for ease of reference only, the “standard schedule”). (See
Def.’s Statement of Material Facts (ECF No. 39) ¶¶ 15, 28.) This Court, then, must consider
whether adherence to the standard schedule is an essential job function of the Assistant Meat
Manager position.10 See Laurin v. Providence Hosp., 150 F.3d 52, 56 (1st Cir. 1998) (“It is well
To determine whether Defendant is entitled to summary judgment on Plaintiff’s failure to accommodate claims, it
is necessary to identify what essential job functions are at issue. See Richardson v. Friendly Ice Cream Corp., 594
F.3d 69, 75 (1st Cir. 2010) (“To determine whether [an employee is] able to perform the essential functions of her
position, it is necessary to identify those functions. Precision is critical, as the level of generality at which the essential
functions are defined can be outcome determinative.”). The Court recognizes that analysis of Plaintiff’s failure to
accommodate claims could proceed in one of two ways. On the one hand, the Court could consider various
uncontested essential job functions of the Assistant Meat Manager position, such as role modeling customer service,
10

16

settled that an employer need not accommodate a disability by foregoing an ‘essential function’ of
the employment position.”).
The First Circuit has concisely outlined how a court assesses what is an “essential
function”:
An essential function is one that is fundamental to a position. The term does not
include marginal tasks, but may encompass individual or idiosyncratic
characteristics of the job. Unsurprisingly, we have explained that the complex
question of what constitutes an essential job function involves fact-sensitive
considerations and must be determined on a case-by-case basis. In making this
case-by-case determination, the ADA instructs us to give consideration to the
employer’s judgment as to what functions of a job are essential, and if an employer
has prepared a written description before advertising or interviewing applicants for
the job, this description shall be considered evidence of the essential functions of
the job. And the Equal Employment Opportunity Commission’s . . . implementing
regulations of the Act further tell us that beyond the employer’s judgment, things
to be considered include (but are not limited to) factors like “[t]he consequences of
not requiring the incumbent to perform the function[,]” “[t]he work experience of
past incumbents in the job[,]” and “[t]he current work experience of incumbents in
similar jobs.” 29 C.F.R. §1630.2(n)(3). Such considerations are not meant to enable
courts to second-guess legitimate business judgments, but, rather, to ensure that an
employer’s asserted requirements are solidly anchored in the realities of the
workplace, not constructed out of whole cloth.

employee supervision, and directing work flow (see Def.’s Statement of Material Facts (ECF No. 39) ¶¶ 10-11; Pl.’s
Am. Opp’n to Def.’s Statement of Material Facts (ECF No. 46) ¶¶ 10-11), as the relevant essential job functions and
consider whether allowing Plaintiff to finish work by 2:30 p.m. every day is a reasonable accommodation in light of
those essential functions. On the other hand, the Court could consider whether adherence to the “standard schedule”
is the relevant essential job function.
On this record, the Court determines that it is appropriate to treat adherence to the standard schedule as the relevant
essential job function for purposes of deciding Defendant’s Motion. This approach cuts more efficiently to the heart
of the dispute; if adherence to the standard schedule is an essential job function, it follows that Plaintiff is not qualified
to perform the essential functions of his job with the modified schedule he seeks. Furthermore, this approach is
consistent with the First Circuit’s approach in schedule modification cases. See Sepúlveda-Vargas v. Caribbean
Restaurants, LLC, 888 F.3d 549, 553-54 (1st Cir. 2018) (analyzing whether the ability to work rotating shifts as
opposed to a fixed schedule is an essential function of a fast food assistant manager position). Regardless, the Court’s
ultimate conclusion on the failure to accommodate claims would not be different if the Court took the approach of
assessing whether Plaintiff’s requested schedule is a reasonable accommodation that allows him to perform essential
job functions such as role modeling customer service, employee supervision, and directing work flow. See infra note
13.

17

Sepúlveda-Vargas, 888 F.3d at 553 (citations and quotation marks omitted); see also Ward v.
Mass. Health Research Inst., Inc., 209 F.3d 29, 34 (1st Cir. 2000) (stating that “individual or
idiosyncratic characteristics” of a job constituting an essential job function may include
“scheduling flexibility”) (quotation marks omitted).
An employer’s view of what is an essential job function is entitled to “substantial weight
. . . in the absence of evidence of discriminatory animus.” Ward, 209 F.3d at 34. However, the
employer’s view is ultimately “only one factor in the analysis” and is not dispositive. Id. In
considering the job functions an employer contends are essential, a court “should take care to
ensure that such functions are essential in fact.” Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d
11, 27 (1st Cir. 2002) (emphasis added). That is, a court must ensure that “an employer’s asserted
requirements are solidly anchored in the realities of the workplace.” Sepúlveda-Vargas, 888 F.3d
at 553 (quotation marks omitted).
After carefully reviewing the record, considering the relevant factors, and drawing all
reasonable inferences in Plaintiff’s favor, the Court concludes that there is a genuine issue of
material fact as to whether adhering to the standard schedule is an essential job function of the
Assistant Meat Manager position. The Court acknowledges there is some undisputed evidence
supporting Defendant’s position. Defendant has consistently stated its view that working a
schedule consistent with the Retail Leadership Schedule is an essential job function and has
communicated this to people other than Plaintiff, including the Meat Department Managers
Knowlton and Hustus. In other words, it does not appear that Defendant’s application of the Retail
Leadership Schedule to Plaintiff is pretextual or motivated by animus. However, the record reveals
genuine factual disputes as to whether requiring the Assistant Meat Manager’s adherence to the

18

standard schedule is in fact “solidly anchored in the realities of the workplace.” Sepúlveda-Vargas,
888 F.3d at 553 (quotation marks omitted).
Defendant’s rationales for adherence to the standard schedule are genuinely contested.
Specifically, a reasonable factfinder could conclude that adherence to the standard schedule is not
an essential job function based on the lack of any schedule requirements in the position description;
evidence that Plaintiff and the department were functioning well during the years that Plaintiff was
not adhering to the standard schedule;11 and the inability of Defendant’s managers to articulate
consistent reasons for applying the Retail Leadership Schedule to the Assistant Meat Manager
position or to consistently and plausibly connect Plaintiff’s prior failure to follow the standard
schedule with any perceived issues in the department (see Davis Dep. (ECF No. 28-4), PageID
#s 243-44, 253-55, 257-59, 261; Meader Dep. (ECF No. 28-3), PageID #s 207-11, 213-14, 21819, 221-23, 227-29; Hustus Dep. (ECF No. 28-5), PageID #s 282-84; Shute Dep. (ECF No. 28-2),
PageID #s 178-79, 181-88, 190). Further, to the extent Defendant suggests that it is an essential
job function of the position to work during “peak business hours,” what constitutes “peak business
hours” and how the concept relates to the Assistant Meat Manager position is also contested. (See
Def.’s Statement of Material Facts ¶¶ 12-13; Plaintiff’s Am. Opp’n to Def.’s Statement of Material
Facts ¶¶ 12-13.)
Finally, the extent to which Morin’s requested schedule would affect his ability to role
model customer service, supervise employees, direct work flow, or perform other undisputed
duties of his position is contested. In particular, a reasonable factfinder could conclude that
Plaintiff’s requested schedule would not affect his ability to perform other aspects of his job given

The Court does not consider Plaintiff’s prior schedule to be the type of “special arrangement” that should be
excluded from the essential job function analysis. See Phelps v. Optima Health, Inc., 251 F.3d 21, 25-26 (1st Cir.
2001).
11

19

the evidence (1) that Plaintiff met Defendant’s job-related expectations during the period that he
was substantially working his requested schedule; (2) that the meat department met Defendant’s
performance expectations during that period; and (3) that any concerns on the part of management
about the performance of the meat department during that period were not, in fact, connected to
Plaintiff’s schedule. Defendant’s concern about “setting precedent” by providing Plaintiff with a
modified schedule carries little weight in light of the fact that a reasonable accommodation is by
its very nature a change in the status quo.
Defendant’s arguments in support of summary judgment are off the mark. The axiom that
“attendance is an essential function of any job” is inapposite because it applies to an employee’s
efforts to maintain employment without being present in the workplace, rather than an employee’s
efforts to modify his work schedule.12 See Ríos-Jiménez v. Principi, 520 F.3d 31, 42 (1st Cir.
2008) (citing cases standing for the proposition that an employee who is completely absent from
the workplace cannot be said to be performing the essential functions of the job). This matter is
also distinguishable from those cases in which an employee sought to have his job duties
reallocated to co-workers. See Feliciano v. State of R.I., 160 F.3d 780, 785 (1st Cir. 1998) (“The
ADA does not require an employer to accommodate a disability by . . . reallocating essential
functions to make other workers’ jobs more onerous.”). A reasonable factfinder could conclude
that Plaintiff’s requested schedule does not rely on reallocation of his duties because there are other
employees, namely the Department Manager and, when the Department Manager is absent, the
Service Leader, who are already performing duplicative managerial duties. (See, e.g., Pl.’s Am.

12

Of course, Plaintiff literally could not perform any job function after 2:30 p.m. if he stopped working at that time.
However, the Court does not understand Defendant to be arguing this interpretation of the essential job function
analysis. Further, Defendant cannot convincingly argue that it is an essential function of the Assistant Meat Manager
position to be present whenever any customer or supervised employee is present in the Elm Plaza store given that the
store is open until 10 p.m., several hours later than Plaintiff’s latest shift under the standard schedule. (See Davis Dep.
(ECF No. 28-4), PageID # 247.)

20

Opp’n to Def.’s Statement of Material Facts ¶ 17.) A reasonable factfinder could similarly
conclude that Plaintiff is seeking to perform his same duties during different hours rather than
passing them off to his co-workers. The Court also is not swayed by Defendant’s citation to cases
in which courts have determined that adherence to a specific schedule was an essential job
function. (See Def.’s Mot. for Summ. J. (ECF No. 38), PageID #s 902-03.) The essential job
function inquiry is fact intensive and case specific; on the record before it, this Court can only
conclude that whether the standard schedule is an essential job function is genuinely disputed. See
Sepúlveda-Vargas, 888 F.3d at 553 (“[T]he complex question of what constitutes an essential job
function involves fact-sensitive considerations and must be determined on a case-by-case basis.”)
(quotation marks omitted).
The Court also notes that Sepúlveda-Vargas v. Caribbean Restaurants, LLC, which was
decided after briefing on Defendant’s Motion was completed, is distinguishable. In that case, the
First Circuit agreed with the district court that adherence to a specific type of schedule was an
essential job function for an assistant manager at a fast food business. Sepúlveda-Vargas, 888 F.3d
at 553-54. However, in reaching that conclusion, the Circuit emphasized (1) that the schedule
requirement was delineated in the job application and listing, and (2) that it was uncontested that
the employee’s adherence to a different schedule would burden his co-workers. Id. at 554. In this
case, the standard schedule is not in the position description or the official list of essential job
functions and it is contested whether Plaintiff’s requested schedule will burden his co-workers.
Further, it does not appear that the factors undermining Defendant’s contention that adherence to
the standard schedule is an essential job function, as outlined above, were present in
Sepúlveda-Vargas.

21

Finally, the Court is not convinced by Defendant’s contention that its provision of FMLA
leave constituted a reasonable accommodation. Putting aside the issues with the nature of the
FMLA leave, see infra Section III.C, the Court is skeptical that FMLA leave, on its own,
constitutes a reasonable accommodation in situations like that presented in this case.

The

regulations make clear that a disabled individual is separately entitled to both reasonable
accommodations and FMLA leave because the ADA and the FMLA provide distinct entitlements
with distinct eligibility factors. See 29 C.F.R. § 825.702(b). In this case, the distinction between
FMLA leave and ADA reasonable accommodation is patently clear.

Plaintiff sought an

accommodation that would allow him to work a modified, full-time schedule. After he was denied
this option, he requested FMLA leave that would entitle him to unpaid leave. Providing an
employee with unpaid leave is simply not equivalent to providing him with a modified, full-time
schedule as an accommodation.
As the Fifth Circuit recently explained,
[A] request for FMLA leave is not a request for a reasonable accommodation under
the ADA. The ADA and the FMLA have divergent aims, operate in different ways,
and offer disparate relief. FMLA leave is not a reasonable accommodation under
the ADA; rather it is a right enforceable under a separate statutory provision. . . .
An employee who requests FMLA leave asserts he has a serious health condition
that makes the employee unable to perform the functions of the position of such
employee. A request for a reasonable accommodation under the ADA is a claim
that the employee, with or without reasonable accommodation, can perform the
essential functions of the employment position that such individual holds or desires.
Thus, an employee seeking FMLA leave is by nature arguing that
he cannot perform the functions of the job, while an employee requesting a
reasonable accommodation communicates that he can perform the essential
functions of the job.
Acker v. Gen. Motors, L.L.C., 853 F.3d 784, 791-92 (5th Cir. 2017) (citations and quotation marks
omitted). The cases cited by Defendant are all readily distinguishable.

At best, these cases

endorse the proposition that unpaid leave provided as a reasonable accommodation may count

22

against an employee’s entitlement to FMLA leave or be considered both as FMLA leave and an
ADA reasonable accommodation for purposes of determining an employee’s rights under both
statutes. See Capps v. Mondelez Glob., LLC, 847 F.3d 144, 156-57 (3d Cir. 2017); Scruggs v.
Pulaski Cty., Ark., 817 F.3d 1087, 1093 (8th Cir. 2016); Murray v. AT&T Mobility LLC, 374 Fed.
App’x 667, 671 (7th Cir. 2010); Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 967
(10th Cir. 2002); see also 29 C.F.R. § 825.702(c)(2). These cases do not support the proposition
that an employee who requests and is entitled to a modified full-time work schedule under the
ADA can be reasonably accommodated by being provided unpaid leave to which he is otherwise
entitled under the FMLA. Regardless, even if Defendant is correct that its provision of FMLA
leave could constitute a reasonable accommodation within the meaning of the ADA, there remain
genuine issues of material fact surrounding the FMLA leave offered to Morin that preclude
summary judgment on this basis. See infra Section III.C.
For these reasons, Defendant’s Motion is DENIED as to Plaintiff’s failure to accommodate
claims under the MHRA and the ADA (Counts II & V).13
ii.

Discrimination

Turning briefly to Plaintiff’s discrimination claims, Plaintiff also contends that Defendant
discriminated against him within the meaning of the ADA and the MHRA by refusing to provide
him with his requested schedule. The “ADA’s definition of discrimination includes ‘not making
reasonable accommodations to the known physical . . . limitations of an otherwise qualified
individual with a disability . . . unless [the] covered entity can demonstrate that the accommodation

13

If the Court considered undisputed essential functions of the position such as supervising employees and directing
work flow to be the essential job functions at issue, the Court would still conclude that Defendant is not entitled to
summary judgment on the failure to accommodate claims. There are simply too many genuinely disputed factual
issues concerning the realities of the Assistant Meat Manager position and its constituent duties for the Court to
conclude on the record before it that Plaintiff’s requested schedule was not a facially reasonable accommodation or
that it would present an undue hardship for Defendant.

23

would impose an undue hardship on the operation of the [entity’s] business.’” Tobin v. Liberty
Mut. Ins. Co., 553 F.3d 121, 125 n.2 (1st Cir. 2009) (quoting 42 U.S.C. § 12112(b)(5)(A)); see
also Carnicella v. Mercy Hosp., 168 A.3d 768, 772-73 (Me. 2017) (stating that the failure to
provide a reasonable accommodation to a qualified individual is a form of discrimination under
the MHRA). Assuming that Plaintiff’s “discrimination” claims are conceptually distinct from the
failure to accommodate claims, the discrimination claims rely on the same material factual issues
as the failure to accommodate claims, namely, whether Plaintiff is qualified to perform his job
with the accommodation of his requested schedule. Thus, for the same reasons the Court denies
summary judgment on the failure to accommodate claims, the Court DENIES Defendant’s Motion
as to Plaintiff’s discrimination claims under the MHRA and the ADA (Counts I & IV).

B. ADA, MHRA, WPA, FMLA, and MFMLR Retaliation Claims
Plaintiff contends that he was unlawfully retaliated against for exercising his rights under
the ADA, the MHRA, the WPA, the FMLA, and the MFMLR.14 Specifically, he contends that
Defendant retaliated against him by “[1] not calling him to work extra shifts or cover for absent
employees and [2] forbidding him from starting work early,” that is, forbidding him from

Although Plaintiff did not bring specific FMLA or MFMLR “retaliation” claims, for purposes of this Order the
Court determines, favorably to Plaintiff, that such claims are encompassed in Counts VIII and IX, which state that
“Hannaford violated Morin’s prescriptive and proscriptive rights under the” FMLA and the MFMLR, respectively.
(Compl. (ECF No. 1), PageID # 21.) The Court applies the same analysis to the FMLA and the MFMLR claims and
does not otherwise differentiate between the two statutes. See Brunelle v. Cytec Plastics, Inc., 225 F. Supp. 2d 67, 76
(D. Me. 2002) (treating the “FMLA analysis as dispositive of the merits of the MFMLR claims”). On the other hand,
Plaintiff did bring a “WPA Unlawful Retaliation” claim, but the MHRA provides the right of action for persons
claiming that they have been retaliated against based on whistleblowing activity. See Costain v. Sunbury Primary
Care, P.A., 954 A.2d 1051, 1053 (Me. 2008).
14

24

“punching in” before the scheduled start of his shifts.15 (Pl.’s Resp. to Def.’s Mot. for Summ. J.
(ECF No. 42), PageID #s 1091-92.)
Regarding the allegations concerning shift coverage, Plaintiff specifically contends that,
despite requesting to be called in to cover shifts, on four to six occasions in 2016 he was not called
in to cover shifts when the meat department was short-staffed.16 (Morin Oct. Dep. (ECF No. 37),
PageID #s 854, 861.) Plaintiff appears to contend that on all these occasions he was not called in
by Hustus, but that on other occasions other employees in the meat department would call him in
when Hustus was not present.17 (Morin Oct. Dep., PageID # 861.)
Regarding the allegations concerning punching in early, Plaintiff states that “once I
received the FMLA [leave], all of a sudden they put a stop to us punching in early which was
actually encouraged before that.” (Morin Oct. Dep., PageID # 852.) He contends that store
management “stated that they put a stop to [punching in early] within the department. . . . But it
was, in fact, only me.” (Id.) He further contends that he was written up twice for punching in
early when others were not written up for doing the same. (Id.)
It is undisputed that Hustus spoke with Plaintiff on December 21, 2015, and had him sign
the Hannaford “Time Clock – Punch Accuracy” policy, which states, “[i]t is important that you

Plaintiff is no longer contending that Defendant retaliated against him in other ways. (Pl.’s Resp. to Def.’s Mot. for
Summ. J. (ECF No. 42), PageID # 1092.) The Court understands this to mean in part that Plaintiff is not contending
that Defendant retaliated against him by denying his request for a reasonable accommodation or by not providing the
FMLA leave he requested.
15

Plaintiff stated at his deposition that he was not called in to cover shifts “[p]robably four or five times.” (Morin
Oct. Dep. (ECF No. 37), PageID # 861.) However, he also appeared separately to recall an additional time that he
was not called in for a shift. (Id., PageID # 862.)
16

Plaintiff contends that he “got in trouble” when he was called in to cover shifts by employees other than Hustus.
(Morin Oct. Dep., PageID # 861.) This assertion is fatally underdeveloped, and, in any event, the Court doubts that
the alleged disciplinary action cryptically alluded to by Plaintiff at his deposition would constitute an adverse action
supporting a retaliation claim.
17

25

punch the time clock in and out as close to your assigned shift as possible.”18 (ECF No. 34-1,
PageID # 748.) This was the day after Plaintiff first spoke to Moryan about his desire to work
earlier shifts due to his medical condition. Hustus asserts that he would tell and has told anyone
who punches in early that they cannot do so, but that he is only aware of Plaintiff and Oscar Paradis,
a meat cutter, punching in early. (Hustus Dep., PageID #s 294-95.) Hustus also asserts that Dan
Breton, the Service Leader in the meat department, does not punch in early. (Id., PageID # 295.)
However, Breton has stated that he is not aware of the policy against punching in early; that he
punches in early; that he knows of others who punch in early; and that he has never been told by a
manager not to punch in early without manager approval. (Breton Dep. (ECF No. 29-1), PageID
# 347.)
Plaintiff’s retaliation claims all require him to establish (1) that he was engaged in protected
activity, i.e., availed himself of rights under the relevant statutes; (2) that he suffered a materially
adverse action or was adversely affected; and (3) that there was a causal connection between the
protected activity and the adverse action. See Sepúlveda-Vargas, 888 F.3d at 555 (ADA); Chase
v. U.S. Postal Serv., 843 F.3d 553, 558 (1st Cir. 2016) (FMLA); Fuhrmann v. Staples Office
Superstore E., Inc., 58 A.3d 1083, 1090 (Me. 2012) (MHRA and WPA). At least for purposes of
the federal law retaliation claims, a “materially adverse action” is one that “well might have
dissuaded a reasonable worker from making or supporting a charge of discrimination.” SepúlvedaVargas, 888 F.3d at 555 (quotation marks omitted). If a plaintiff has made out a prima facie case
of retaliation, a court applies the common McDonnell Douglas burden-shifting framework to
determine whether any non-retaliatory reason for the adverse action offered by the employer is

18

There is some dispute about the scope of the conversation on December 21, but this dispute is not relevant to the
Court’s analysis of the retaliation claims.

26

pretextual.19 See Richard v. Reg’l Sch. Unit 57, 296 F. Supp. 3d 274, 277 (D. Me. 2017), appeal
docketed, No. 17-2200 (1st Cir. Dec. 7, 2017) (collecting cases applying the McDonnell Douglas
burden-shifting analysis to retaliation claims under the ADA, the MHRA, and the WPA); Hodgens
v. Gen. Dynamics Corp., 144 F.3d 151, 160-61 (1st Cir. 1998) (stating that McDonnell Douglas
burden-shifting applies to FMLA retaliation claims).
Assuming favorably to Plaintiff that not being called in to cover shifts on four to six
occasions could constitute a “materially adverse action,” Plaintiff has failed to make out a prima
facie case of retaliation regarding the shift coverage allegations.20 He has offered bald assertions
that he was not asked to cover shifts, but has not identified the dates of the shifts, explained why
he would have been otherwise entitled to cover those shifts, or identified the employees, if any,
who were called in to cover the shifts instead of him. As the First Circuit recently reiterated,
“[w]here the plaintiff has the burden of proof, there must be evidence on which the [factfinder]
could reasonably find for the plaintiff. . . . [A] conglomeration of conclusory allegations,
improbable inferences, and unsupported speculation is insufficient to ward off summary
judgment.” Irobe v. U.S. Dep’t of Agric., 890 F.3d 371, 380-81 (1st Cir. 2018) (quotation marks
omitted). Although Plaintiff states a belief that he has been passed over for certain unspecified
shifts, “[a] court need not take at face value a party’s subjective beliefs, even if offered in the form
of testimony, if those subjective beliefs are conclusory, self-serving, and lack factual support in
the record.” Id. at 381 (emphasis added and quotation marks omitted). Because “judges cannot

19

To the extent the application of McDonnell Douglas burden-shifting to WPA retaliation claims is an open question,
the bottom-line is that a Court must still consider “whether the record, construed in the light most favorable to [the
non-moving party], suffice[s] to support an inference that the adverse employment action was motivated at least in
part by protected activity.” Theriault v. Genesis HealthCare LLC, 890 F.3d 342, 351 (1st Cir. 2018) (quotation marks
omitted). The Court’s analysis of the retaliation claims is ultimately consistent with this approach.
20

For purposes of the retaliation claims, the parties do not appear to contest that Plaintiff engaged in protected activity
under the ADA, the MHRA, the WPA, the FMLA, and the MFMLR.

27

allow conjecture to substitute for the evidence necessary to survive summary judgment,” Pina v.
Children’s Place, 740 F.3d 785, 802 (1st Cir. 2014), Defendant is entitled to summary judgment
on Plaintiff’s retaliation claims to the extent they arise from the shift coverage allegations.
Turning to the punching in early issue, the Court determines that Plaintiff’s claims of
retaliation under the ADA and the MHRA survive summary judgment. The Court readily
determines that Plaintiff has made out a prima facie case. At the time Plaintiff was counseled by
Hustus to adhere to the time clock policy, Plaintiff had already expressed a desire for a modified
schedule based on medical necessity to Hannaford management. Stopping Plaintiff from clocking
in early is a materially adverse action because it has the effect of reducing his pay and certainly
could discourage a reasonable employee from pursuing his ADA or MHRA rights.
See Blackie v. State of Me., 75 F.3d 716, 725-26 (1st Cir. 1996); Sepúlveda-Vargas, 888 F.3d at
555. Finally, the causal connection element of the prima facie case is satisfied by the fact that
Plaintiff was counseled by Hustus about punching in early a day after he spoke to Moryan about
the possibility of a job accommodation. See Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d
39, 49-50 (1st Cir. 2010).
In response to Plaintiff’s prima facie case, Defendant has offered a non-discriminatory
rationale for its actions, that it was enforcing a general, pre-existing policy. This Court thus must
consider whether there are triable issues of fact regarding whether this rationale is pretextual.
Although it is a close call, the Court determines that there are indeed triable issues of fact.
Specifically, although Hustus contends he was enforcing a general policy and that he spoke to any
employee who punched in early, Breton stated that he was never made aware of the policy, that he
would punch in early, and that other employees would punch in early as well. See Smith v. Allen
Health Sys., Inc., 302 F.3d 827, 835 (8th Cir. 2002) (“An employee can prove pretext by showing

28

the employer meted out more lenient treatment to similarly situated employees . . . who did not
engage in protected activity.”). There may be a non-discriminatory reason for this discrepancy,
and a factfinder could consider Hustus’ contention that he also spoke to Paradis about punching in
early, but sorting out these facts is not a task that can be accomplished on summary judgment.21
The Court determines, however, that Plaintiff has failed to make out a prima facie case of
retaliation based on his availment of rights under the FMLA/MFMLR or based on whistleblowing
activity. Plaintiff was counseled regarding the time clock policy before he first asserted his rights
under the FMLA in his note dated February 17, 2016. For purposes of an FMLA retaliation claim,
“an employer cannot be found to have retaliated against an employee for invoking his rights under
the FMLA or taking FMLA leave unless the decisionmaker knew or should have known that the
employee had invoked those rights.” Chase, 843 F.3d at 558. At the time Hustus spoke with
Plaintiff about the time clock policy, Plaintiff had only let store management know that he was
interested in working earlier shifts, not that he was interested in taking any type of medical leave.
Plaintiff also alleges that he was disciplined two times in 2016 for punching in early, but he has
not provided evidence that these incidents occurred after his first invocation of his FMLA rights
on February 17, 2016. Similarly, assuming most favorably to Plaintiff that the first instance of
whistleblowing activity within the purview of the WPA was Morin’s February 17, 2016 note,22

The Court notes Hustus’ deposition testimony when asked whether Breton punches in early that Breton “clocks in
the other way.” (Hustus Dep. (ECF No. 28-5), PageID # 295.) To the extent this ambiguous comment means that
Breton punches out after the end of his scheduled shift, this could support an inference that employees are not being
consistently held to Defendant’s “Time Clock – Punch Accuracy” policy.
21

The WPA describes several protected categories of whistleblowing activity, including, in relevant part, “report[ing]
. . . to the employer . . . what the employee has reasonable cause to believe is a violation of a law or rule” and
“report[ing] to the employer . . . what the employee has reasonable cause to believe is a condition or practice that
would put at risk the health or safety of that employee or any other individual.” 26 M.R.S.A. §§ 833(1)(A), (B). The
Court is not aware of any binding precedent that would treat Plaintiff’s initial requests for a modified schedule as
reports regarding a risk to “health or safety.”
22

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Plaintiff also has not provided evidence that any of the purportedly retaliatory events occurred
after that protected activity.
For these reasons, the Court GRANTS Defendant’s Motion as to Count VII (WPA
Unlawful Retaliation); GRANTS Defendant’s Motion as to Count VIII (FMLA) and Count IX
(MFMLR) to the extent they raise retaliation claims; and GRANTS Defendant’s Motion as to
Count III (MHRA Unlawful Retaliation) and Count VI (ADA Unlawful Retaliation) to the extent
those claims are premised on Defendant’s purported failure to ask Plaintiff to cover shifts. The
Court DENIES Defendant’s Motion as to Count III and Count VI to the extent those claims are
premised on Defendant’s purported efforts to prevent Plaintiff from punching in early.

C. FMLA and MFMLR Interference Claims
In relevant part, the FMLA entitles “an eligible employee . . . to a total of 12 workweeks
of leave during any 12-month period . . . [b]ecause of a serious health condition that makes the
employee unable to perform the functions of the position of such employee.” 23 29 U.S.C.
§ 2612(a)(1)(D). Leave for a serious health condition “may be taken intermittently or on a reduced
leave schedule when medically necessary.” Id. § 2612(b)(1). “Intermittent leave is FMLA leave
taken in separate blocks of time due to a single qualifying reason,” whereas “[a] reduced leave
schedule is a change in the employee’s schedule for a period of time, normally from full-time to
part-time.” 29 C.F.R. § 825.202(a). When a request for leave is based on the employee’s own
health condition, the employee may be required to submit a medical certification, or otherwise
provide medical information, that supports the medical necessity for leave and estimates its

For purposes of Plaintiff’s FMLA and MFMLR claims, the Court again “treat[s] the MFMLR claims as coextensive
with the FMLA claims,” and does not distinguish between the statutes unless explicitly noted. Brown v. Hartt Transp.
Sys., Inc., 725 F. Supp. 2d 210, 229 (D. Me. 2010). Neither party raises any issue with this approach.
23

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frequency and duration. See 29 U.S.C. § 2613(a)-(b); 29 C.F.R. § 825.306(a)(7). If the employer
doubts the validity of the medical need asserted, it may require the employee to obtain a second,
or even third, medical opinion. 29 C.F.R. § 825.307(b)-(c). If the employer considers the medical
certification to be incomplete or insufficient—that is, “vague, ambiguous, or non-responsive”—
the employer must provide notice to the employee of the deficiency and give the employee a certain
amount of time to correct it. Id. § 825.305(c).
In addition to defining an eligible employee’s rights to certain leave, the FMLA also
proscribes employers from interfering with an employee’s exercise of his rights under the FMLA.
29 U.S.C. § 2615(a)(1) (“It shall be unlawful for any employer to interfere with, restrain, or deny
the exercise of or the attempt to exercise, any right provided under this subchapter.”). To prevail
on an FMLA interference claim, the employee
must establish five things. First, the worker must establish that she fit the definition
of an “eligible employee.” Second, the worker must establish that she worked for
an employer covered by the Act. Third, the worker has to show that she qualified
for FMLA benefits for one of four statutory reasons. Fourth, the worker has to
prove that she gave her employer appropriate notice. Finally, the worker has to
establish that the employer denied her benefits to which the FMLA entitled her.
Wheeler v. Pioneer Developmental Servs., Inc., 349 F. Supp. 2d 158, 164 (D. Mass. 2004)
(citations omitted). In other words, the gravamen of an FMLA interference claim is that an
employer interfered with the employee’s use of leave to which the employee was otherwise entitled
under the FMLA. See Carrero-Ojeda v. Autoridad de Energía Eléctrica, 755 F.3d 711, 722 (1st
Cir. 2014) (“Unlike in a [FMLA] retaliation claim, no showing as to employer intent is required.
The key issue is simply whether the employer provided its employee the benefits to which she was
entitled per the FMLA.”) (citation and quotation marks omitted). Further, “[i]nterfering with the
exercise of FMLA rights ‘would include, for example, not only refusing to authorize FMLA leave,

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but discouraging an employee from using such leave.’” Hodgens, 144 F.3d at 160 n.4 (quoting 29
C.F.R. § 825.220(b)).
Defendant does not dispute Plaintiff’s general entitlement to FMLA leave or contend that
his request for reduced schedule leave would have exceeded his twelve weeks of leave under the
FMLA. Rather, Defendant appears to contend that it did not interfere with Plaintiff’s FMLA rights
because it provided him with FMLA leave. On this record, however, the Court determines that
there are triable issues of fact concerning whether Defendant interfered with Plaintiff’s exercise of
his rights under the FMLA by authorizing intermittent leave in the face of Plaintiff’s request for
reduced schedule leave.
At the outset, there is a crucial factual dispute concerning whether Plaintiff was in fact
restricted to taking FMLA leave one day per week and would face repercussions under Defendant’s
attendance policies if he took leave more frequently. Plaintiff testified that he understood from
the FMLA authorizations and from his conversations with management that he could only take
leave one day per week. (See, e.g., Morin Aug. Dep. (ECF No. 28-1), PageID #s 166-68; Morin
Oct. Dep., PageID # 848.) Further, Cote, who processed Plaintiff’s leave request, testified that she
understood the leave authorization to only allow Plaintiff to take FMLA leave one day per week.
(See, e.g., Cote Dep. (ECF. No. 28-6), PageID #s 307-08, 310-11.) However, Shute appears to
have testified that she told Plaintiff he could take FMLA leave as often as needed and advised store
management that Plaintiff was allowed to take FMLA leave more than one day per week. (Shute
Dep., PageID #s 195-96, 197-98.) If the factfinder determines that Plaintiff was in fact never told
that he could take FMLA leave as often as needed, a reasonable factfinder could certainly look at
the record and discern interference by Defendant with Plaintiff’s attempt to take FMLA leave to
which he was otherwise entitled. In this regard, the Court notes in particular the unexplained initial

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classification of Plaintiff’s explicit request for reduced schedule leave as a request for intermittent
leave; the failure to provide Cote with Plaintiff’s correspondence explicitly requesting reduced
schedule leave; Cote’s crabbed interpretation of Dr. Dubocq’s medical authorization form; Cote’s
questionable assertion that she could not have determined Plaintiff’s schedule in order to provide
authorization for reduced schedule leave (Cote Dep., PageID # 310); and the failure to work with
Plaintiff or Dr. Dubocq once it became evident that Plaintiff was not satisfied with the nature of
the FMLA leave authorization.
The Court’s conclusion that Plaintiff’s FMLA and MFMLR claims are not ripe for
summary judgment is grounded in the record rather than the arguments in Defendant’s briefs.
Defendant suggests in its briefs that Plaintiff was not entitled to anything beyond the intermittent
leave he was provided. However, Cote testified that she crafted the FMLA authorization based on
her understanding that Dr. Dubocq was requesting leave one day per week for Plaintiff’s “flareups.” (See, e.g., Cote Dep., PageID #s 307-08.) Neither Cote nor anyone else in Hannaford
management clearly testified that they decided to partially reject Plaintiff’s leave request based on
his failure to demonstrate medical necessity for reduced schedule leave. The Court also notes in
this regard that Defendant never asked Plaintiff for a second medical opinion or informed him that
it considered the medical certification forms he submitted to be ambiguous or incomplete.24

The Court is not swayed by Defendant’s argument that certain hortatory language in the FMLA regulations means
that an employer can deny medically necessary leave if it is unduly burdensome to the employer. See 29 C.F.R.
§ 825.302(f) (“The employee and employer shall attempt to work out a schedule for such leave that meets the
employee’s needs without unduly disrupting the employer’s operations, subject to the approval of the health care
provider.”). Elsewhere in its briefing, Defendant admits that “FMLA leave is more favorable to employees [than the
ADA] because they may take leave regardless of the hardship to the employer.” (Def.’s Mot. for Summ. J. (ECF No.
38), PageID # 895 n.5.) The Court also does not consider it necessary to address the question of whether the FMLA
allows for “prophylactic leave.” However, to the extent Plaintiff’s request could be construed as a request for such
leave, the Court notes that the FMLA regulations specifically contemplate the taking of leave to prevent the
manifestation or worsening of symptoms. See 29 C.F.R. § 825.115(f) (“[A]n employee with asthma may be unable
to report for work due to the onset of an asthma attack or because the employee’s health care provider has advised
the employee to stay home when the pollen count exceeds a certain level.”) (emphasis added).
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To the extent Defendant is asking the Court to make its own assessment of Plaintiff’s
medical necessity for leave, the Court discerns no basis in the record for determining that the
reduced schedule leave Plaintiff requested is not medically necessary. Further, contrary to
Defendant’s argument in its Reply, Plaintiff has consistently cited both the “flare-ups” and the
more frequent worsening of symptoms in the afternoon that arises from his Lyme disease.25 (See
Compl. ¶¶ 21, 29-30, 39, 42, 60-62, 140.) Finally, as Plaintiff notes, the case cited by Defendant
for the proposition that an employer can choose the type of FMLA leave it authorizes regardless
of the nature of the employee’s request is inapposite because that case involved an employee who
was unable to perform the essential functions of her job during the time that she wanted to come
in to work. See Scruggs, 817 F.3d at 1093-94.
For these reasons, the Court DENIES Defendant’s Motion to as Count VIII (FMLA) and
Count IX (MFMLR) to the extent they raise interference claims under those statutes.26

IV.

CONCLUSION

For these reasons, the Court DENIES Defendant’s Motion as to Plaintiff’s MHRA
discrimination claim (Count I); DENIES Defendant’s Motion as to Plaintiff’s MHRA failure to
accommodate claim (Count II); GRANTS Defendant’s Motion as to Plaintiff’s MHRA retaliation
claim (Count III) to the extent the claim is premised on Defendant’s purported failure to ask

Although Plaintiff has confirmed that he typically experiences “flare-ups” lasting up to a full day at most once per
week (Morin Aug. Dep. (ECF No. 28-1), PageID # 162), he has also consistently stated that his symptoms manifest
in the afternoon with greater frequency (see id., PageID #s 153-54).
25

26

Plaintiff also argues that Defendant violated the ADA and the MHRA by interfering with his rights to FMLA and
MFMLR leave. (See Pl.’s Resp. to Def.’s Mot. for Summ. J., PageID #s 1090-91.) The Court is skeptical of this
argument in part because it would transform every FMLA discrimination or interference claim into an ADA claim.
Further, the Court sees the ADA/MHRA and FMLA/MFMLR claims as legally distinct in this case. See supra Section
III.A.

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Plaintiff to cover shifts, but otherwise DENIES the Motion as to that Count; DENIES Defendant’s
Motion as to Plaintiff’s ADA discrimination claim (Count IV); DENIES Defendant’s Motion as
to Plaintiff’s ADA failure to accommodate claim (Count V); GRANTS Defendant’s Motion as to
Plaintiff’s ADA retaliation claim (Count VI) to the extent the claim is premised on Defendant’s
purported failure to ask Plaintiff to cover shifts, but otherwise DENIES the Motion as to that
Count; GRANTS Defendant’s Motion as to Plaintiff’s WPA retaliation claim (Count VII);
GRANTS Defendant’s Motion as to Plaintiff’s FMLA claim (Count VIII) to the extent the Count
is based on a retaliation theory, but DENIES the Motion to the extent the Count is based on an
interference theory; and GRANTS Defendant’s Motion as to Plaintiff’s MFMLR claim (Count IX)
to the extent the Count is based on a retaliation theory, but DENIES the Motion to the extent the
Count is based on an interference theory.
In short, this matter shall be set for a bench trial of the following claims: Counts I, II, IV,
V, as well as Counts III & VI to the extent these retaliation claims are premised on the Defendant’s
purported actions to stop Plaintiff from punching in early, and Counts VIII & IX to the extent these
claims are based on Defendant’s purported interference with Plaintiff’s rights under the relevant
statutes.
SO ORDERED.
/s/ George Z. Singal
United States District Judge
Dated this 7th day of June, 2018.

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