FLANDERS v. ATHENAHEALTH INC

Filing 49

REPORT AND RECOMMENDED DECISION re 25 MOTION for Summary Judgment filed by ATHENAHEALTH INC. Objections to R&R due by 10/30/2020. By MAGISTRATE JUDGE JOHN C. NIVISON. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ADAM FLANDERS,
Plaintiff
v.
ATHENAHEALTH, INC.,
Defendant

)
)
)
)
)
)
)
)
)

1:19-cv-00283-GZS

RECOMMENDED DECISION ON DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
Plaintiff asserts claims against Defendant, his former employer, for discrimination
and breach of contract. Defendant has moved for motion for summary judgment on all
claims. (Motion, ECF No. 25.)
Following a review of the summary judgment record and after consideration of the
parties’ arguments, I recommend the Court grant Defendant’s motion.
SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment if the movant shows 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). “After the moving party has presented evidence in support
of its motion for summary judgment, ‘the burden shifts to the nonmoving party, with
respect to each issue on which he has the burden of proof, to demonstrate that a trier of fact
reasonably could find in his favor.’” Woodward v. Emulex Corp., 714 F.3d 632, 637 (1st
Cir. 2013) (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 158 (1st Cir. 1998)).
A court reviews the factual record in the light most favorable to the non-moving

party, resolving evidentiary conflicts and drawing reasonable inferences in the nonmovant’s favor. Perry v. Roy, 782 F.3d 73, 77 (1st Cir. 2015). If a court’s review of the
record reveals evidence sufficient to support findings in favor of the non-moving party on
one or more of his claims, a trial-worthy controversy exists and summary judgment must
be denied as to any supported claim. Id. (“The district court’s role is limited to assessing
whether there exists evidence such that a reasonable jury could return a verdict for the
nonmoving party.” (internal quotation marks omitted)). Unsupported claims are properly
dismissed. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
FACTUAL BACKGROUND
Prior to joining Defendant as a Client Services Analyst in Defendant’s Belfast,
Maine, Customer Service Center (CSC), a call center, in September 2014, Plaintiff was
diagnosed with depression, anxiety, and seasonal affective disorder. (DSMF ¶ 1.)1
Defendant contends that Plaintiff did not disclose his medical conditions to it at the time
of his hire. (Id.)
At the start of Plaintiff’s employment, he and a representative of Defendant signed
an Employment Agreement that, among other terms, specified that Plaintiff was an “atwill” employee. (DSMF ¶ 71.) The Employment Agreement further provided that its terms

Reference to the parties’ statements of fact is as follows: Joint Stipulation of Facts (JSF, ECF No. 24-1),
Defendant’s statement of material facts (DSMF, ECF No. 26); and Plaintiff’s opposing statement of facts
(POSMF, ECF No. 36). In its reply statement of material facts (ECF No. 40), Defendant objects to
Plaintiff’s responses to some of Defendant’s statements, and requests that the responses be stricken. I have
assessed the materiality of the parties’ respective denials and qualifications, as well as any other alleged
deficiencies in the factual assertions, and the result of that assessment is reflected in the recitation of the
facts and the analysis of the motion for summary judgment.
1

2

could be amended only through a subsequent written agreement signed by both parties.
(Id.)
In late August 2015, Plaintiff suffered a severe depressive episode and was briefly
hospitalized.

(JSF ¶ 14.)

In a September 9, 2015, email to Defendant’s benefits

department, Plaintiff explained that he recently needed to miss several days of work due to
medical issues relating to his depression. (JSF ¶ 15.) Defendant responded the following
day and suggested that Plaintiff file for an intermittent leave of absence with Matrix
Absence Management (“Matrix”), Defendant’s third-party leave administrator. (Id.)
Plaintiff applied to have his absences approved as medical leave, and Matrix approved
Plaintiff’s leave of absence from August 27, 2015 through September 8, 2015. (JSF ¶ 16.)2
While employed with Defendant, Plaintiff received an overall rating of “meets
expectations” on his performance reviews in each year of his employment (2014, 2015 and
2016). (DSFM ¶ 2.) Plaintiff alleges, however, that his manager repeatedly complained of
his tardiness in arriving to work and in returning from breaks. (POSMF ¶ 2.)
At some point before September 2015, Plaintiff asked to work part-time (i.e., work
four days each week for a total of 32 hours); Defendant granted his request. (DSMF ¶ 3.)
When he made the request, he said it was because he felt “overwhelmed” by the call volume
of the CSC; Plaintiff does not recall whether he linked his request to a medical diagnosis
or whether a medical provider recommended he work reduced hours. (DSMF ¶ 4.)
Plaintiff began working on the Technical Innovation and Support (TIES) team in
Defendant had access to Plaintiff’s leave of absence claim through Matrix. (Defendant’s Reply Statement
of Material Facts ¶ 79.) Defendant maintains that Matrix at no time provided any information or
documentation to Defendant describing or reflecting Plaintiff’s medical condition. (Id.)
2

3

2015, where his initial supervisor was Justin Richards, and his team lead was Joseph
Dunphy. (DSMF ¶ 5.) Dunphy was the most senior member of the TIES team, reporting to
Richards. Dunphy directed the workflow of the TIES team and acted as an informational
resource for the team members. (DSMF ¶ 6.) Plaintiff contends that Dunphy acted like an
assistant manager, reaching out to other teams and determining work schedules and
discussing Plaintiff’s career development; Defendant maintains that Dunphy did not have
the authority to hire, fire, demote, promote, transfer, or discipline any employees, and did
not play any role in evaluating an employee’s performance. (DSMF ¶ 7; POSMF ¶ 7.)
Throughout 2016, Plaintiff discussed with Dunphy his desire to move to another
team that did not involve call work. (DSMF ¶ 8.) Plaintiff explained that he found it
“overwhelming” and “stressful” to handle customer calls, and that he preferred to move to
another team where he could focus more on technical work, which he felt would reduce his
stress level. (DSMF ¶ 9.)
Dunphy was not surprised by Plaintiff’s requests to move to another team, as reports
of stress in relation to call work are common. (DSMF ¶ 10.) Plaintiff did not explain that
his stress was related to a medical condition. (DSMF ¶ 11.)3 During 2016, Plaintiff and
Dunphy also discussed the possibility of Plaintiff obtaining a position in another of
Defendant’s offices. (DSMF ¶ 12.) Plaintiff and Dunphy discussed the possibility of a
position in Defendant’s office in Chennai, India, but there were no specific opportunities
available in that office for a United States-based employee. (DSMF ¶ 13.)

3

In his deposition, Plaintiff testified that he discussed his seasonal affective disorder with Dunphy in the
context of moving his desk nearer to a window. (Plaintiff’s Dep. 55:6-56:10, ECF No. 27.)
4

Plaintiff also expressed interest in a temporary assignment on a small, start-up team
based in Manila, the Philippines, to train a group of employees of a Manila-based vendor
on customer support calls. (DSMF ¶ 14.) Plaintiff would have required additional training
for the position. (Id.) Plaintiff believes he spoke briefly with Kelly Dionne, the hiring
manager for the Manila position, and Dunphy also spoke with Dionne to discuss Plaintiff’s
interest in the position. (DSMF ¶ 15.) Near the end of May 2016, Dunphy told Plaintiff
that Dionne reported that Plaintiff was not a good fit for the Manila position at the moment
because he did not have all of the content-area expertise and training needed for the
assignment, that Plaintiff should attempt to gain additional experience and training in other
product areas, and that Plaintiff should make himself more well-known outside of the TIES
team and within the core of the CSC. (DSMF ¶ 16.) Plaintiff asserts that the training he
required for the Manila position was not available to him. (POSMF ¶ 16.)
Plaintiff alleges that Dunphy also told him of Dionne’s impression that Plaintiff’s
personality was not outgoing and extroverted enough and that his voice was too monotone
and quiet. (DSMF ¶ 17.) Dionne had no knowledge of Plaintiff’s medical conditions and
did not know that Plaintiff had a medical condition. (DSMF ¶ 18.)
Plaintiff was also interested in a position in Defendant’s San Francisco office, but
he could not identify any vacant positions in that office in 2016 or 2017 for which he was
qualified. (DSMF ¶ 19.) At various points in 2016 and early 2017, Plaintiff also inquired
about the possibility of obtaining a remote position allowing him to work from California
or from his home in Maine, but he did not find a remote position for which he was qualified.
(DSMF ¶ 20.)
5

Defendant maintains that Dunphy never made any promises to Plaintiff regarding a
transfer. (DSMF ¶ 22.) Plaintiff contends that Dunphy made assurances that by performing
additional work, taking on a full-time schedule, and shadowing for other teams, Plaintiff
would get a position with another team. (POSMF ¶ 22.)
Plaintiff continued to perform well on the TIES team, although his tardiness
remained an issue, and his evident lack of enthusiasm was noted by his manager. (DSMF
¶ 23; POSMF ¶ 23.) In late 2016, Jessica Patrick became Plaintiff’s manager and direct
supervisor. (DSMF ¶ 24.) Shortly thereafter, Patrick discovered that he had been
incorrectly coded as a full-time employee in Defendant’s payroll system and therefore had
been erroneously accruing paid time off (PTO) and holiday pay on a full-time basis.
(DSMF ¶ 25.) On November 28, 2016, Patrick informed Plaintiff of the issue, and told
him that to correct the error, Plaintiff could retain his current part-time work schedule, in
which case his PTO and holiday pay would be correspondingly reduced, or he could
increase his work schedule to full-time, in which case his PTO and holiday pay would
remain the same. (DSMF ¶ 26.) Patrick told Plaintiff that the decision to remain part-time
or transition to full-time was “totally in [his] court.” (DSMF ¶ 27.) Patrick asked Plaintiff
directly whether there was a reason he required a part-time schedule, and Patrick did not
tell Patrick that he required part-time work as a result of a medical condition. (DSMF ¶
29.)
Patrick and Plaintiff discussed whether Plaintiff could obtain project work from
other teams to fill his schedule for the extra 8 hours of work rather than taking additional
customer calls. (DSMF ¶ 30.) In a subsequent discussion with Dunphy, Plaintiff said he
6

would like to move to a full-time schedule; Dunphy stated he would try to find project
work to fill the additional time so that Plaintiff’s phone work would be limited to 32 hours
each week. (DSMF ¶ 31.) Patrick agreed to the plan. (Id.)
At Patrick’s direction, on November 30, 2016, Dunphy sent an email to Plaintiff
and Patrick summarizing the discussions. The email stated in part:
We agreed to the following:
Effective immediately Adam Flanders will now have a 40hr a week schedule.
For the month of December, every Friday . . . Adam will take 8hrs of PTO
for a total of 40hrs of PTO up until the end of the year. Following the end of
December Adam will then work a schedule of 32hrs worth of phone time on
the TIES team . . . and 8hrs of project time a week.
.
.
.
Scheduling for project time will likely be done in one day blocks, or two half
day blocks, but it is subject to vary by days and hours depending on needs
for phone coverage and subject to vary week-by-week as we review coverage
needs.
(DSMF ¶ 32 (emphasis in original).)
Plaintiff understood this email to constitute a new employment contract with
Defendant or a modification of his existing contract. (DSMF ¶ 33; POSMF ¶ 33.) Patrick
and Dunphy understood that Plaintiff remained an at-will employee, and that the
arrangement summarized in the November 30 email to require Plaintiff to work 32 hours
of phone time each week in order to be assigned the full 8 hours of project time, and that
his project time would be reduced if he did not work 32 hours of phone time. (DSMF ¶¶
34-35.) Patrick and Dunphy also understood the arrangement for Plaintiff to receive 8
hours of project work each week to be contingent on Defendant’s general business needs,
including the need for additional phone coverage for customer calls and the actual
7

availability of project work. (DSMF ¶ 36.) Plaintiff did not share Dunphy’s and Patrick’s
understanding that he would not receive a full 8 hours of project work during weeks when
he worked fewer than 32 hours of phone time. (DSMF ¶ 37.)
In early 2017, Plaintiff was regularly assigned project work in addition to his phone
duties, but he contends that he did not consistently receive 8 hours of project time each
week. (DSMF ¶ 38.) For example, on January 27, 2017, Plaintiff reported that he believed
he should be assigned additional project work that week because he had been assigned only
4.5 hours the previous week. (DSMF ¶ 39.) Dunphy told Plaintiff to be assigned 8 hours
of project time, he needed to work 32 hours of phone time, and that he had worked from
home two days the previous week, which reduced his phone time. (DSMF ¶ 40.)
On December 28, 2016, while Plaintiff was still working 32 hours per week, he filed
a letter of resignation in Defendant’s human resources information system (called
Workday), stating in part:
I have wanted to leave Maine for some time now. I have struggled with
depression that often becomes severe in the winter months due to the added
impact of Seasonal Affective Disorder. I have had to miss work at
athenahealth, including taking a temporary medical leave and short-term
disability in Fall 2015, due to my depression. I don’t believe I can do my
best work in Maine and at this time there are no options available for me with
athenahealth in Manila or San Francisco.
I have discussed my decision with Joseph Dunphy and Christian Mahon, and
Jessica Patrick has been informed. I have family in Southern California who
have offered me help in moving. I think I will have a happier, healthier life
there. I intend that my last day will be January 13, 2016 [sic]. I will continue
to explore remote positions with athenahealth as they become available.
(DSMF ¶ 41.)
The primary reasons for Plaintiff’s resignation were that Dunphy had recently
8

informed him that moving to the Product Knowledge team as part of the transition of the
CCP Device Tech team—one of the team transfer options they had previously discussed—
would not be an option, and because Plaintiff’s seasonal depression had begun to worsen.
(DSMF ¶ 42.) Plaintiff also decided to resign because he had not received a promotion,
which he alleges would have been a transfer to a non-call position, one of the
accommodations he requested, because he did not feel challenged by his work, and because
he did not believe his level of work and pay was commensurate with his education and
experience. (DSMF ¶ 43; POSMF ¶ 43.)
After submitting his resignation, Plaintiff spoke with Dunphy, who tried to convince
him to stay. (DSMF ¶ 44.) Dunphy emphasized that Plaintiff would not be eligible to
receive his 2016 bonus unless he remained employed until mid-February when bonuses
were paid. (DSMF ¶ 44.) The same evening Plaintiff filed his resignation in the Workday
system, he withdrew it; he told Dunphy and his supervisor, Christian Mahon, the following
day that he planned to revisit a possible remote position or job transfer, or he would resign
in mid-February. (DSMF ¶¶ 44, 45; POSMF ¶ 44.)
On December 29, 2016, Plaintiff emailed human resources business partner Deb
Bartol to explain that he had withdrawn his resignation. (DSMF ¶ 46.) Bartol asked
Plaintiff to clarify his plans and offered to meet if he preferred.4 (DSMF ¶ 47.) Plaintiff

On December 29, Bartol emailed Stephen Taylor, Defendant’s CSC Senior Manager, regarding the
possibility of a position for Plaintiff in Manila. (Plaintiff’s Decl., Ex. F, ECF No. 37-6.) Taylor responded
that they “have talked about that before but his personality wouldn’t mesh well with the team over there.”
(Id.) Kelly Dionne, who was responsible for managing Defendant’s Manila start-up team, states that
Plaintiff did not have the requisite training for this position. (Dionne Decl. ¶¶ 4, 6-7, ECF No. 31.) Plaintiff
testified that he agreed that he needed to gain additional training for the position, as well. (Plaintiff’s Dep.,
4

9

explained that he deferred his resignation because his move to California had been delayed
due to family circumstances, and because he wanted an opportunity to explore remote
positions that might allow him to remain with Defendant. (DSMF ¶ 48.) Plaintiff also
planned to work longer to save money for an upcoming family cruise in March, although
he did not disclose this to Bartol.5 (DSMF ¶ 49.)
Bartol responded by asking if Plaintiff had considered a transfer to Atlanta, which
also had a CSC similar to the Belfast location where he worked. (DSMF ¶ 50.) Plaintiff
responded that he was open to that possibility, and Bartol suggested that they meet in
person to talk about options. (Id.)
On January 19, 2017, Plaintiff met in person with Bartol to further discuss his plans.
(DSMF ¶ 51.) Plaintiff told Bartol that he had been thinking of leaving Maine for some
time and wanted to live with family in California. (Id.) He also told Bartol that he could
not work from home in his current position and that he had been unable to find any other
open positions for which he was qualified.6 (DSMF ¶ 52.) Bartol again raised the
possibility of a transfer to Atlanta, which would mean returning to work in a CSC. (DSMF
¶ 53.) Prior to the January 19 meeting, however, Plaintiff had already contacted state
officials in Georgia to inquire as to whether certain restrictions relating to his past criminal

69:10-17; 72:24-73:7.)
5

In discussing the possibility of a transfer to Atlanta through a series of emails with Bartol, Plaintiff
explained that winter was hard for him and that he had struggled with depression for most of his life, and
that he had tried to remedy it with counselling, medication, light therapy, and exercise. (Plaintiff’s Dep.,
Ex. 13, ECF No. 27-7.)
6

Plaintiff maintains that occasionally he had the option to work from home. (Plaintiff’s Decl. ¶ 9.)
10

record would prevent him from working at Defendant’s location in Atlanta, and he had
learned that he would not be legally permitted to work in that office. (DSMF ¶ 60.) Plaintiff
did not disclose this information to Bartol. (Id.)
Plaintiff did not tell Bartol that his medical conditions prevented him from doing
full-time call work, nor did he say anything to suggest that he experienced stress related to
call work. (DSMF ¶ 54.) Bartol asked whether Plaintiff needed any other assistance from
Defendant and explained that Defendant would “bend over backwards to help as much as
we can,” and Plaintiff responded that he could not think of anything. (DSMF ¶ 55.)
Bartol also told Plaintiff that if he needed a leave of absence, he should contact
Matrix Absence Management (Matrix), Defendant’s third-party leave administrator.
(DSMF ¶ 56.) Plaintiff does not recall following up with Bartol after their January 19
discussion. (DSMF ¶ 57.) Plaintiff hoped that Bartol would try to find him an
accommodation. (POSMF ¶ 57.) Plaintiff did not seek a leave of absence in early 2017 to
continue to search for a suitable transfer opportunity, because, Plaintiff asserts, he did not
know it was an option. (DSMF ¶ 58; POSMF ¶ 58.)
By January 2017, Plaintiff had committed in his mind to move to California, and he
believed he could not be accommodated in his current position. (DSMF ¶ 59.) Plaintiff
no longer considered working from home or working part time to be acceptable options.
(Id.) Plaintiff would have accepted reassignment to a position in a warmer climate and
“probably would have” accepted a transfer to a non-call team in Belfast. (Id.)7
During his exit interview, Plaintiff wrote that “I would have gone to Manila and I also discussed remote
opportunities with my manager (I can and am willing to do all the work I do now remotely from California,
7

11

On February 14, 2017, Defendant delivered to Plaintiff via direct deposit his 2016
bonus, and Plaintiff submitted his resignation the same day, with an effective date of March
3, 2017. (DSMF ¶ 61.) In the resignation letter, Plaintiff wrote that he wanted to leave
Maine to live with family in California and that he would continue to explore remote
positions with Defendant. (Id.; POSMF ¶ 61.)

At the time of Plaintiff’s March 3

resignation, there were ten vacant postings for a Client Services Analyst position in
Defendant’s Atlanta office. (DSMF ¶ 62.)
During certain meetings with Plaintiff in 2016, Dunphy allegedly made two
statements to Plaintiff related to Plaintiff’s sexual orientation. (DSMF ¶ 63.) When Plaintiff
and Dunphy discussed Plaintiff’s interest in a position in Chennai, India, Dunphy allegedly
suggested that Plaintiff wanted to go to India because of the sexual acts Indian men could
perform with their mustaches. (DSMF ¶ 64.) Dunphy also purportedly referenced this
joke in his notes regarding the position in India, writing, “Potential interest in [athenahealth
India] (minus the mustaches)?” (Plaintiff’s Dep., Ex. 5, ECF No. 27-3.) On another
occasion, Dunphy allegedly commented that Plaintiff’s interest in a transfer to the Manila
location was because Plaintiff wanted to have sex with Filipino men. (DSMF ¶ 65.)
Plaintiff did not tell Dunphy that he was offended by his comments and did not report
Dunphy’s comments to his supervisor or to human resources. (DSMF ¶ 68.)
Two of Plaintiff’s coworkers on the TIES team also allegedly made approximately
three jokes about his sexual orientation during his employment. (DSMF ¶ 67.) One of the

without any special accommodations or pay raise) ….” (POSMF ¶ 59 (citing Plaintiff’s Dep., Ex. 15, ECF
No. 35-4.))
12

jokes was to the effect that “there was only one kind of meat [Plaintiff] ate,” and the other
two jokes were related to people being gay, but Plaintiff does not recall the details of the
jokes. (Id.)
During Plaintiff’s employment, Defendant had a written Anti-Discrimination Policy
which prohibited discrimination and harassment against employees based on any legally
protected status, including sexual orientation. (DSMF ¶ 69.) The Anti-Discrimination
Policy directed employees to report suspected violations of the policy to certain named
members of senior management, any of Defendant’s human resources business partners,
or any member of Defendant’s compliance team. (Id.) Plaintiff received and read a copy
of the Anti-Discrimination Policy when he was hired, and he understood that he could
report violations to human resources. (DSMF ¶ 70.)
Plaintiff asserts claims for disability discrimination, sexual orientation
discrimination, and breach of contract. (Complaint, ECF No. 1.)
DISCUSSION
A. Decision of the Unemployment Insurance Commission
Plaintiff argues that a decision of the Maine Department of Labor Unemployment
Insurance Commission (UIC) is conclusive as to the parties’ dispute. On March 4, 2017,
Plaintiff filed an unemployment claim. (Plaintiff’s Decl. ¶ 13, ECF No. 37.) The UIC
issued a decision favorable to Plaintiff on August 1, 2017, setting aside an earlier
unfavorable decision by an administrative hearing officer. (Plaintiff’s Decl. at 6, Ex. H,
ECF No. 37-8.) Defendant objects to Plaintiff’s efforts to use the findings in the UIC
decision as evidence to support his opposition to the summary judgment motion.
13

Defendant argues the UIC decision is inadmissible hearsay.
“[W]hen a state agency acting in a judicial capacity resolves disputed issues of fact
properly before it which the parties have had an adequate opportunity to litigate, federal
courts must give the agency’s factfinding the same preclusive effect to which it would be
entitled in the State’s Courts.” Univ. of Tenn. v. Elliot, 478 U.S. 788, 799 (1986) (citation
and internal punctuation omitted). As this Court has noted, under Maine law, “factual
findings included in a final adjudication in an administrative proceeding have the same
preclusive effect as those made in a court proceeding.” Archer v. Town of Houlton, No.
00-244-B-H, 2001 WL 1057708, at *5 (D. Me. Sept. 12, 2001) (citing Peterson v. Town of
Rangeley, 715 A.2d 930, 933 (Me. 1998)).
Where the parties to a subsequent action are the same but the causes of action are
different, Maine courts recognize that collateral estoppel potentially applies. Cianchette v.
Verrier, 155 Me. 74, 89, 151 A.2d 502 (1959). “In such a case, the prior judgment is only
conclusive upon the issues actually tried.” Sewall v. Taylor, 672 F. Supp. 542, 543 (D. Me.
1987) (citing Bray v. Spencer, 146 Me. 416, 82 A.2d 794 (1951)). Moreover, “the concept
of collateral estoppel cannot apply when the party against whom the earlier decision is
asserted did not have a full and fair opportunity to litigate that issue in the earlier case.”
Allen v. McCurry, 449 U.S. 90, 95 (1980) (citation and internal quotation marks omitted).
In Sewall, the plaintiff alleged that the defendants violated his First and Fourteenth
Amendment rights when he was discharged from his job at the Portland Water District.
672 F. Supp. at 543. The plaintiff had earlier filed a claim for unemployment compensation
based on a claim for wrongful discharge and the UIC affirmed a decision granting plaintiff
14

unemployment benefits. Id. The plaintiff moved in limine to estop the defendants from
relitigating certain factual issues determined by the UIC in its decision. The Court wrote,
the use of offensive collateral estoppel to preclude relitigation of the …
factual issues would be inappropriate in this case. As noted above, the legal
issues presented before this Court and those decided by the administrative
tribunal are not identical. Defendants’ potential liability in the state
administrative unemployment proceeding is far less than it is in a suit for
unlawful discharge brought pursuant to 42 U.S.C. § 1983. For both parties,
there is less incentive to exhaustively litigate in an unemployment
compensation hearing the factual issues that are subject to litigation in a
subsequent § 1983 action. It would be unfair to permit the use of collateral
estoppel under these circumstances. Nickens v. W.W. Grainger, Inc., 645 F.
Supp. [569,] 571 [(W.D. Mo. 1986)]. Maine courts have long recognized
that the use of collateral estoppel should be permitted on a case-by-case basis
and should not be sanctioned where it would be unfair to a party or where it
would not serve the ends of justice.
Id. at 545.
The analysis of the Court in Sewall is sound and applicable here. In this case, as in
Sewall, the parties in interest are the same, but the causes of action and issues are not. In
the UIC proceeding, Plaintiff sought unemployment insurance benefits. In this matter,
Plaintiff asserts claims of discrimination and breach of contract, which claims generate
issues and require evidence that were not relevant to the administrative proceeding. As in
Sewall, there was less incentive or need for the parties to litigate all the issues in that
proceeding. Indeed, Defendant did not appear at the UIC proceeding, and presented no
evidence to rebut Plaintiff’s evidence presented in that proceeding. (Plaintiff’s Decl., Ex.
H at 5.) To apply collateral estoppel in this case would be unfair to Defendant and would
not serve the ends of justice. See Id.; see also Archer, 2001 WL 1057708, at *6.

15

B. Disability Discrimination (Reasonable Accommodation)
Plaintiff’s disability discrimination claim is based on Defendant’s alleged failure to
accommodate, which claim arises under the Americans with Disabilities Act.

As

summarized by the First Circuit:
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. See 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. See
Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 89 (1st Cir. 2012). The
employee’s request for an accommodation, however, “must be sufficiently
direct and specific, and it must explain how the accommodation is linked to
the [employee’s] disability” in order to trigger the employer’s responsibility
to accommodate. Id.; see Ocean Spray Cranberries, Inc. v. Mass. Comm’n
Against Discrimination, 441 Mass. 632, 808 N.E.2d 257, 267–68, 270–71
(Mass. 2004).
Murray v. Warren Pumps, LLC, 821 F.3d 77, 84 (1st Cir. Apr. 2016).
Defendant argues that a factfinder could not reasonably conclude that Defendant
failed to offer a reasonable accommodation because (1) Plaintiff did not require a
reasonable accommodation; (2) Plaintiff never made a sufficiently specific request for
accommodation; (3) Plaintiff proposed unreasonable accommodations; (4) Plaintiff failed
to participate in the interactive process; and (5) Plaintiff rejected a suitable and reasonable
accommodation.
To request an accommodation for a disability, an employee must give the employer
notice of the need for a special accommodation using sufficiently direct and specific
language. Calero–Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 23 (1st Cir. 2004). That is,

16

“a request for accommodation must be reasonably specific” and “must comprise more than
a cryptic communication to be deciphered by the recipient.” Miceli v. JetBlue Airways
Corp., 914 F.3d 73, 83 (1st Cir. 2019). “In some cases, a request for a reasonable
accommodation may trigger a responsibility on the part of the employer to enter into an
interactive process with the employee to determine an appropriate accommodation.”
Calero-Cerezo, 355 F.3d at 23. As part of the interactive process,
the employer is “expected to engage in a meaningful dialogue with the
employee to find the best means of accommodating that disability. Although
the degree of interaction required varies in accordance to the circumstances
of each case, the process requires open communication by both parties, and
an employer will not be held liable if it makes reasonable efforts both to
communicate with the employee and provide accommodations based on the
information it possessed.
Enica v. Principi, 544 F.3d 328, 338-39 (1st Cir. 2008) (citations and quotation marks
omitted).
Plaintiff’s discussions with Dunphy about other job opportunities with Defendant
does not constitute a request to accommodate a disability. First, as explained below (see
Section C), Dunphy is not a supervisor or otherwise part of Defendant’s management.
Conversations with Dunphy, therefore, do not constitute a request of Defendant for an
accommodation. In addition, Plaintiff’s conversations with Dunphy regarding the stressful
nature of the call position do not qualify as a request for an accommodation for a disability.
At a minimum, Plaintiff did not link his desire for another position to a disability. See Reed
v. LePage Bakeries, Inc., 244 F.3d 254, 261 (1st Cir. 2001) (“At the least, the request must
explain how the accommodation requested is linked to some disability”).
To the extent that Plaintiff’s 2016 resignation letter or his subsequent discussions
17

with Dunphy could be construed as a request for an accommodation through a transfer to
another position/location, Defendant engaged in the required interactive process with
Plaintiff in an effort to accommodate Plaintiff. The record reflects that in 2016 and 2017,
Dunphy and others helped Plaintiff explore other possible positions with Defendant, but
Plaintiff did not find a suitable position for which he was qualified. Defendant was not
required to create a new job for Plaintiff. Audette v. Town of Plymouth, 858 F.3d 13, 21
(1st Cir. 2017).
Furthermore, after Plaintiff submitted his December 2016, resignation letter,
Dunphy continued his discussions with Plaintiff and convinced Plaintiff to rescind his
resignation and explore other opportunities with Defendant. Defendant, through Deb
Bartol, contacted Plaintiff and suggested that he transfer to Defendant’s Atlanta office,
where there were several vacant positions for which Plaintiff was qualified. (DSMF ¶¶ 50,
55, 62.) Such a transfer would address Plaintiff’s stated desire to live in a warmer, sunnier
climate and Plaintiff had previously indicated a willingness to relocate. (DSMF ¶ 50.)
While Plaintiff maintains that the Atlanta accommodation was not reasonable because he
concluded that legally, he was unable to work in the state of Georgia, Plaintiff never
informed Bartol of this fact. (DSMF ¶ 60.) Bartol also suggested a leave of absence.
(DSMF ¶ 56.) Although Plaintiff contends that he hoped that Bartol would try to find him
some other accommodation, he never followed up with her. (POSMF ¶ 57; DSMF ¶ 57.)
Plaintiff failed to discuss further with Bartol her suggestions, but instead submitted a letter

18

of resignation soon after their conversation.8 Under the circumstances, Plaintiff’s assertion
that he expected Bartol to follow-up is unavailing. Freadman v. Metro. Prop. & Cas. Ins.
Co., 484 F.3d 91, 105 (1st Cir. 2007) (“We reject plaintiff’s proposition that employees
who make requests have no obligation to further clarify their needs once the employer
offers an accommodation the employee believes is insufficient”). In short, Plaintiff’s
failure to continue the dialogue precludes recovery on his accommodation claim. Enica,
544 F.3d at 340 (“[A]bsent any communications from [the plaintiff] regarding the
inadequacy of h[is] accommodations, no factfinder could hold the [defendant] responsible
for either a breakdown in the interactive process or failing to correct an inadequate
accommodation since it was not made aware that a deficiency existed.”).
C. Discrimination Based on Sexual Orientation
Plaintiff claims that during his employment with Defendant, he was subjected to
discrimination/harassment due to his sexual orientation. As the parties note in their Joint
Statement of Case Authorities (ECF No. 42), the Supreme Court recently held that sexual
orientation discrimination constitutes discrimination on the basis of sex and is actionable
under Title VII. Bostock v. Clayton Cty., Ga., -- U.S. --, 140 S. Ct. 1731, 20 L.Ed.2d 218
(2020).
Plaintiff appears to base his discrimination claim on a hostile work environment.
(Plaintiff’s Resp. at 16-17, ECF No. 35.) To establish a hostile work environment, a
plaintiff must show that his workplace was “permeated with discriminatory intimidation,
8

Plaintiff met with Bartol on January 19, 2017; Plaintiff submitted his letter of resignation on February 14,
2017, the same day he received his 2016 bonus.

19

ridicule, and insult that [was] sufficiently severe or pervasive to alter the conditions of ...
[his] employment and create an abusive working environment.” Colón-Fontánez v.
Municipality of San Juan, 660 F.3d 17, 43 (1st Cir. 2011) (alterations in original) (quoting
Quiles-Quiles v. Henderson, 439 F.3d 1, 7 (1st Cir. 2006)).
Plaintiff points to two comments made by Dunphy regarding Plaintiff’s sexual
orientation, and three jokes made by two other co-workers as the bases of his claim. (DSMF
¶¶ 63-67.) The severity of the allegedly hostile conduct, its frequency, and whether it
unreasonably interfered with the victim’s work performance are all relevant factors in
distinguishing between “the ordinary, if occasionally unpleasant, vicissitudes of the
workplace and actual harassment.” Noviello v. City of Boston, 398 F.3d 76, 92 (1st Cir.
2005). Courts agree “that ... ‘isolated incidents (unless extremely serious) will not amount
to discriminatory changes in the terms and conditions of employment’ to establish an
objectively hostile or abusive work environment.” Colón-Fontánez, 660 F.3d at 44
(internal quotations omitted) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998)). Defendant contends that while the statements might be offensive, the statements
do not support a hostile work environment claim.
The Court, however, does not have to make that assessment. To establish employer
liability for a non-supervisory co-employee, a plaintiff must demonstrate that the employer
knew or should have known of the alleged sexual harassment and failed to implement
prompt and appropriate action. Forrest v. Brinker Int’l Payroll Co., LP, 511 F.3d 225, 230
(1st Cir. 2007). Plaintiff evidently contends that because of Dunphy’s management status,
Defendant is liable for Dunphy’s conduct. Contrary to Plaintiff’s contention, the record
20

establishes that Dunphy was not a manager or supervisor. Dunphy did not have the
authority to hire, fire, demote, promote, transfer, or discipline employees, and had no role
in evaluating an employee’s performance. (DSMF ¶ 7)9 See Wilson v. Moulison North
Corp., 639 F.3d 1, 9 (1st Cir. 2011) (a supervisor has the authority to hire, fire, demote,
promote, transfer, or discipline). The fact that Dunphy was the team leader does not alter
the analysis. Id. at 10 (a title, such as foreman, “does not transmogrify a line employee into
a supervisor for Title VII purposes.”)
Because Plaintiff cannot rely on Dunphy’s alleged involvement in or knowledge of
the statements to establish Defendant’s liability, and because Plaintiff did not report the
alleged harassment to anyone in Defendant’s management (DSMF ¶ 68), Plaintiff cannot
prevail on his sexual orientation discrimination claim.
D. Breach of Contract/Promissory Estoppel
Plaintiff first alleges that Defendant breached an implied employment contract
when, after working part-time with full benefits for over a year, Defendant notified Plaintiff
that an error had occurred, and that accrual of his paid time off and holiday pay benefits
would be reduced to reflect his part-time status unless he resumed full-time work.
(Complaint ¶¶ 59-62.)
“An implied contract ‘refers to that class of obligations which arises from mutual
agreement and intent to promise, when the agreement and promise simply have not been
expressed in words.’” Campbell v. First American Title Ins. Co., 644 F. Supp. 2d 126, 136
Plaintiff asserts Dunphy “acted” like an assistant manager. (POSMF ¶ 6-7.) However, “an employee’s
subjective belief is insufficient to create a triable issue of material fact about a coworker’s status.” Wilson,
639 F.3d at 10.
9

21

(D. Me. July 2, 2019) (quoting Stanton v. Univ. of Maine Sys., 773 A.2d 1045, 1050 (Me.
2001)). “‘A contract exists if the parties mutually assent to be bound by all its material
terms, the assent is either expressly or impliedly manifested in the contract, and the contract
is sufficiently definite to enable the court to ascertain its exact meaning and fix exactly the
legal liabilities of each party.’” Id. (quoting Sullivan v. Porter, 681 A.2d 625, 631 (Me.
2004)). Neither the Employment Agreement nor any communications between the parties
could reasonably be construed to establish a contractual agreement, implied or express, by
which Plaintiff was entitled to full-time benefits for part-time work.
Plaintiff also argues that Defendant breached the terms of the parties’ November 30,
2016, agreement by requiring him to perform call work beyond the 32 hours of phone time
to which he agreed and by not assuring that he had 8 hours of project work each week.
(Complaint ¶¶ 63-64.) The email provides:
Effective immediately Adam Flanders will now have a 40hr a week schedule.
For the month of December, every Friday . . . Adam will take 8hrs of PTO
for a total of 40hrs of PTO up until the end of the year. Following the end of
December Adam will then work a schedule of 32hrs worth of phone time on
the TIES team . . . and 8hrs of project time a week.
.
.
.
Scheduling for project time will likely be done in one day blocks, or two half
day blocks, but it is subject to vary by days and hours depending on needs
for phone coverage and subject to vary week-by-week as we review coverage
needs.
(DSMF ¶ 32.) Defendant contends that the email writing is too vague and indefinite to be
enforceable. (Motion at 19, ECF No. 25.)
While there might be multiple ways to interpret the agreement, one reasonable
interpretation is that the parties agreed that Plaintiff would have 8 hours of project time
22

each week and the day or days of the week he would work on the project would depend on
the phone coverage needs. Defendant’s argument that the terms of the agreement are too
vague to be enforced is not persuasive.
At most, however, the November 30 email amended the parties’ Employment
Agreement, which provides that Plaintiff is an at-will employee. The November 30 email
did not alter Plaintiff’s at-will status.10 Defendant, therefore, had the unilateral ability to
end or alter the terms of Plaintiff’s employment. “ʻ[A] reservation to either party of an
unlimited right to determine the nature and extent of his performance renders his obligation
too indefinite for legal enforcement, making it, as it is termed, merely illusory.’” Snow v.
BE&K Constr. Co., 126 F. Supp. 2d 5, 14 (D. Me. 2001) (quoting RESTATEMENT (SECOND)
OF CONTRACTS §§ 2 cmt. e, 77 & cmt. a (1981) (emphasis in original).

Plaintiff thus cannot

proceed on his breach of contract claim.
Even if the November 30 email constituted an enforceable contract, Defendant
would still be entitled to summary judgment because he has not suffered an economic loss
as the result of the alleged breach. Plaintiff contends he was required to work more on a
task (i.e., the phone calls) that caused him stress. Plaintiff cannot recover emotional
distress damages on a breach of contract claim. McAfee v. Wright, 651 A.2d 371, 372 (Me.
1994). For the same reason, Plaintiff cannot recover on his promissory estoppel claim.
See, e.g., Anderson v. Suiters, 499 F.3d 1228, 1239 (10th Cir. 2007) (applying Oklahoma
law and concluding that the “proposed promissory estoppel claim fails because she only
The Employment Agreement provides “that the provisions of this Agreement shall apply regardless of
any change in Employee’s compensation, duties, responsibilities, role, reporting structure, or title during
the course of the Employment Period.” (Molly Montgomery Decl., Exh. B, ECF No. 29-2.)
10

23

alleges emotional distress damages”); Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d
847, 866 (5th Cir. 1999) (“Texas law generally does not allow mental anguish damages for
breach of contract. This principle extends to promissory estoppel claims since promissory
estoppel claims are contractual in nature”) (citation omitted); Wyatt v. BellSouth, Inc., 757
So. 2d 403, 408 (Ala. 2000) (“The doctrine of promissory estoppel should not be used as a
basis for awarding damages that would not, under general principles of contract law, be
recoverable in an action for breach of contract”); Deli v. Univ. of Minnesota, 578 N.W.2d
779, 783 (Minn. Ct. App. 1998) (“Because promissory estoppel is a contract-based claim,
to recover emotional distress damages, Deli was required to plead and prove the existence
of an independent tort”); Smith v. Bridgeport Futures Initiative, Inc., No. 326697, 1996
WL 493229, at *1–3 (Conn. Super. Ct. Aug. 16, 1996) (plaintiff could not recover damages
for emotional distress or for injury to career or reputation in action sounding in contract
and promissory estoppel absent a tort based on negligent or intentional infliction of
emotional distress).
CONCLUSION
Based on the foregoing analysis, I recommend the Court grant Defendant’s motion
for summary judgment.
NOTICE
A party may file objections to those specified portions of a magistrate
judge's report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. 636(b)(1)(B) for which de novo review by the district
court is sought, together with a supporting memorandum, within fourteen
(14) days of being served with a copy thereof. A responsive memorandum
shall be filed within fourteen (14) days after the filing of the objection.

24

Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the district court and to appeal the district court's order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 16th day of October, 2020.

25