KNIGHT v. O'REILLY AUTO ENTERPRISES LLC

Filing 62

ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND JUDGMENT ON THE PLEADINGS - granting in part and denying in part 31 Motion for Judgment on the Pleadings; granting in part and denying in part 31 Motion for Summary Judgment. By JUDGE NANCY TORRESEN. (mnw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
WENDY KNIGHT,
Plaintiff,
v.
O’REILLY AUTO ENTERPRISES,
LLC, d/b/a O’REILLY AUTO PARTS,
Defendant.

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) Docket No. 2:17-cv-300-NT
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ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND
JUDGMENT ON THE PLEADINGS
Before me is Defendant O’Reilly Auto Enterprises’ (“O’Reilly’s”) motion for
summary judgment pursuant to Federal Rule of Civil Procedure 56 and for judgment
on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Def.’s Mot. (ECF
No. 31). For the reasons set out below, the Defendant’s motion is GRANTED in part
and DENIED in part.
BACKGROUND1
O’Reilly is in the business of selling auto parts to commercial installers, such
as automobile repair shops. Consolidated Statement of Material Facts (“CSMF”) ¶ 5
(ECF No. 59). Nicholas Thomas is a Regional Manager at O’Reilly for the region that
includes Maine. CSMF ¶ 1. Jesse Hebert, who reports to Thomas, is a District

This background is drawn from undisputed facts from the parties’ consolidated statement of
material facts. I also take the Plaintiff’s version of disputed facts provided that they have record
support and are otherwise admissible. The parties each make multiple requests to strike based on
evidentiary objections. To the extent that I use a fact to which either party has made an objection, the
objection is overruled.
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Manager responsible for ten stores in Southern Maine. CSMF ¶ 3. In about 2016, Don
Liedke assumed the position of Store Manager at O’Reilly’s Portland store. CSMF
¶ 63.
Plaintiff Wendy Knight was hired to work as a delivery specialist at O’Reilly’s
Portland store in May of 2014. CSMF ¶ 14. Knight’s job responsibilities included
driving a truck to make deliveries to O’Reilly customers and stocking store shelves
when there were no deliveries to be made. CSMF ¶¶ 6, 20. For over two years, Knight
worked weekdays from 9:00 am to 2:00 pm during the school year, which allowed her
to care for her two children who have disabilities. CSMF ¶¶ 16-18. Knight also
worked eight hour shifts on some holidays, weekends, and during the summer. CSMF
¶ 16. Knight met performance expectations at all times during her employment with
O’Reilly. CSMF ¶ 101.
At some point before May of 2016, Knight started complaining to Liedke that
the women at O’Reilly’s Portland store were expected to work harder then the men.
The essence of her complaint was that the women who worked as delivery specialists
were required to shelve parts while their colleagues who were men were allowed to
remain idle waiting for their next delivery assignment. CSMF ¶¶ 64-66. On April 29,
2016, Knight called an O’Reilly corporate hotline for employees to express her
complaint that she was discriminated against at work because she was a woman.
CSMF ¶¶ 68-69. As a result of that call, District Manager Hebert met with Knight to
discuss her concerns. CSMF ¶ 70. Knight reiterated her concerns to Hebert, and in a
follow-up statement Knight wrote:

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I am not asked to do tasks at work. I am told to do them. When there
are 4-5 other capable drivers standing around and watching me work
and then Don comes around and tells me to get this done it is
disrespectful and unfair. I have seen this happen with other female
employees as well. Whether it’s Don’s intention or not to discriminate
this is how it feels and appears.
CSMF ¶ 72.
At some point in April, Knight called the Occupational Safety and Health
Administration (“OSHA”) to complain about merchandise being left in hallways,
creating dangerous conditions at the store for workers. CSMF ¶ 79. On May 3, 2016,
Knight tripped over a rolled-up mat obscured by merchandise and injured her wrist.
CSMF ¶ 83. On May 4, 2016, Knight reported this injury to OSHA. CSMF ¶ 84. OSHA
contacted Liedke about Knight’s complaint, although it is unclear whether OSHA
ever identified Knight as the complainant. CSMF ¶ 85; see Knight Supp. Ex. 2 at 1
(ECF No. 35-2).
Approximately a week or two after Knight’s injury and report, Liedke
published a weekly schedule with Knight scheduled to work only 15 hours. CSMF
¶ 108; Knight Dep. 57-58 (ECF No. 30-5). Knight confronted Liedke about the change.
Knight Dep. 58. Liedke, without explaining why the change had been made, returned
Knight to her normal hours. Knight Dep. 58. Around this time, Knight observed a
change in Liedke’s demeanor toward her: “His attitude was very different. He was
more angry when I came to him and short-tempered, spoke very quick, short.” CSMF
¶ 110.
Nicholas Thomas, who assumed the position of Regional Manager in 2015 after
having worked for O’Reilly for six years, began to focus on ways to improve efficiency,
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profitability, and productivity. CSMF ¶¶ 21-23. In mid-2015, Thomas began telling
his regional managers that delivery specialists should work full-day shifts in order to
maximize productivity and profitability. CSMF ¶¶ 26, 28. Thomas thought it made
sense to hire full-shift drivers. ¶ 33. Thomas began to put more focus on this idea in
2016, but some stores continued to allow delivery specialists to regularly work shifts
shorter than eight hours. CSMF ¶¶ 44-45, 106. To date, Thomas continues to express
his preference that stores move in the direction of only employing delivery specialists
who can work full-shifts, but he has not held district managers accountable for not
complying with his preference. CSMF ¶ 39. Thomas further stated that there are no
grounds to terminate an employee for not working eight-hour shifts. CSMF ¶ 54.
In mid-August of 2016, Thomas and Hebert conducted a mid-year review with
Liedke. CSMF ¶ 86. A day or two later, on August 19, 2016, Liedke met with Knight
and informed her that Thomas had made the decision that she would need to start
working eight-hour shifts per “company policy.” CSMF ¶¶ 92, 111. Knight called
O’Reilly’s human resources department after the meeting to determine if there was
such a policy. CSMF ¶ 94. Human resources personnel did not know if there was a
policy but informed Knight that Thomas would contact her. CSMF ¶ 94. Thomas did
not contact Knight, but he instructed Hebert to follow up with her. CSMF ¶ 95. On
August 23, 2016, Hebert met with Knight to discuss her work schedule. CSMF ¶¶ 96,
116. Knight told Hebert that she could not work eight-hour shifts because she had to
care for her children. CSMF ¶¶ 97, 116. Knight claims that Hebert grew agitated
during the meeting and told her repeatedly that if she could not work eight-hour

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shifts then he had no hours for her. CSMF ¶¶ 116-119. Hebert told Knight that he
and Liedke had been “trying to get rid of [her] for months.” CSMF ¶ 117.
Although the record does not make clear whether this was Knight’s last day,
the parties do not dispute that she left O’Reilly after this conversation. The Defendant
concedes, for purposes of summary judgment, that the Plaintiff suffered an adverse
employment action. See Def.’s Mot. 9-10.
On August 9, 2017, the Plaintiff filed a Complaint asserting three counts: sex
discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. § 2000e et seq., and the Maine Human Rights Act (“MHRA”), 5 M.R.S.
§ 4451 et. seq.; associational disability discrimination in violation of the Americans
with Disabilities Act (“ADA”), 42 U.S.C. § 12112 et seq., and the MHRA; and
retaliation for engaging in protected conduct under Title VII, the ADA, the MHRA,
and the Maine Whistleblower’s Protection Act (“MWPA”), 26 M.R.S. § 831 et seq. The
Defendant moved for summary judgment or judgment on the pleadings on all counts.
LEGAL STANDARD
“A motion for judgment on the pleadings is treated like a Rule 12(b)(6) motion
to dismiss.” Portugues–Santana v. Rekomdiv Int’l Inc., 725 F.3d 17, 25 (1st Cir. 2013).
Under a Rule 12(b)(6) motion to dismiss a claim the pleading “ ‘must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ ”
Gianfrancesco v. Town of Wrentham, 712 F.3d 634, 638-39 (1st Cir. 2013) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

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Summary judgment is appropriate when there is no genuine dispute of
material fact and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). A dispute is genuine where a reasonable jury could resolve the point
in favor of either party. Oahn Nguyen Chung v. StudentCity.com, Inc., 854 F.3d 97,
101 (1st Cir. 2017). A fact is material where it could influence the outcome of the
litigation. Id. On a motion for summary judgment, courts must construe the record in
the light most favorable to the non-movant and resolve all reasonable inferences in
the non-movant’s favor. Burns v. Johnson, 829 F.3d 1, 8 (1st Cir. 2016).
DISCUSSION
The Defendant argues that judgment should enter in its favor because (i) the
Plaintiff cannot establish a prima facie case of disparate treatment on account of her
sex and the Plaintiff cannot show that O’Reilly’s legitimate, neutral business reason
was a pretext for unlawful sex discrimination; (ii) the Plaintiff does not state a claim
for associational disability discrimination because she fails to allege unlawful bias on
the part of any of the decisionmakers; and (iii) the Plaintiff cannot show that any
decisionmakers acted with retaliatory animus. I address each count in turn.
I.

Sex Discrimination
Title VII makes it unlawful for an employer “to discharge any individual, or

otherwise to discriminate against any individual . . . because of such individual’s . . .
sex.” 42 U.S.C. § 2000e-2(a)(1).2 The Plaintiff alleges that she was discriminated

I analyze the Plaintiff’s sex discrimination claims together, because Maine courts look to Title
VII caselaw when considering MHRA claims. Cole v. Maine Office of Info. Tech., No. 1:17-CV-000712

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against because of her sex, plus her status as a caretaker. Compl. ¶ 28. The First
Circuit has recognized that “the assumption that a woman will perform her job less
well due to her presumed family obligations is a form of sex-stereotyping and that
adverse job actions on that basis constitute sex discrimination.” Chadwick v.
Wellpoint, Inc., 561 F.3d 38, 44 (1st Cir. 2009). “[S]ex-plus claims are a flavor of
gender discrimination claims where an employer classifies employees on the basis of
sex plus another characteristic.” Franchina v. City of Providence, 881 F.3d 32, 52 (1st
Cir. 2018) (quotation marks omitted). “[A]t the advent of sex-plus claims, courts
recognized that ‘[t]he effect of [Title VII] is not to be diluted because discrimination
adversely affects only a portion of the protected class.’ ” Id. at 53 (quoting Sprogis v.
United Air Lines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971)). “The inquiry in a Title
VII disparate treatment case is whether the defendant intentionally discriminated
against the plaintiff on the basis of a protected attribute.” Cumpiano v. Banco
Santander P.R., 902 F.2d 148, 153 (1st Cir. 1990). A plaintiff may rely on either direct
evidence of unlawful animus, or she may establish discriminatory intent through the
burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). Cumpiano, 902 F.2d at 153.
At the first step of the McDonnell Douglas framework, the Plaintiff must
“establish, by a preponderance of the evidence, a prima facie case of discrimination.”
Caraballo-Caraballo v. Corr. Admin., 892 F.3d 53, 57 (1st Cir. 2018). To establish a

JAW, 2018 WL 4608478, at *27 (D. Me. Sept. 25, 2018) (citing Morrison v. Carleton Woolen Mills, Inc.,
108 F.3d 429, 436 n.3 (1st Cir. 1997)).

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prima facie case: “(1) the plaintiff must be a member of a protected class; (2) she must
be qualified for her job; (3) she must suffer an adverse employment action at the
hands of her employer; and (4) there must be some evidence of a causal connection
between her membership in a protected class and the adverse employment action,
e.g., in the case of a firing, that the position was filled by someone with similar
qualifications.” Bhatti v. Trustees of Bos. Univ., 659 F.3d 64, 70 (1st Cir. 2011). At
step two of the McDonnell Douglas framework, the Defendant must articulate a
legitimate, nondiscriminatory reason for firing the Plaintiff. Caraballo–Caraballo,
892 F.3d at 62. At step three, the burden shifts back to the Plaintiff to show by a
preponderance of the evidence that the Defendant’s stated business reason was
pretext for unlawful discrimination. Johnson v. Univ. of P. R., 714 F.3d 48, 54 (1st
Cir. 2013).
The parties have narrowed the issues. The Defendant concedes for purposes of
summary judgment that the Plaintiff has made an adequate showing on the first
three elements of her prima facie case. See Def.’s Mot. 9-10, & n.3. The Plaintiff
concedes, also for purposes of summary judgment, that the Defendant has articulated
a legitimate, nondiscriminatory reason for its action by identifying the efficiency
gains from having full-time delivery specialists in the Portland store. See Pl.’s Opp’n
16-17 (ECF No. 40). The remaining issues are whether the Plaintiff has established
a causal connection between her membership in a protected class and the adverse
employment action sufficient to make out a prima facie case and whether the Plaintiff

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has developed enough evidence to show that the Defendant’s stated reason for the
adverse action was a pretext for sex-based discrimination.
The Plaintiff’s burden to establish the causation element of her prima facie
case is not a difficult one. Caraballo–Caraballo, 892 F.3d at 57. The fourth element
may be satisfied by showing that “the employer had a continued need for someone to
perform the same work after [the Plaintiff] left.” Cumpiano, 902 F.2d at 155. Here,
Hebert essentially told the Plaintiff that if she was unable to work full-day shifts, she
would lose her shifts to an employee who could work eight hours. CSMF ¶ 98. This
continued need for a delivery specialist is enough for a prima facie showing of
causation. See Cumpiano, 902 F.2d at 155 (plaintiff could satisfy the “fourth prong”
of her prima facie case simply by showing that a replacement was sought).
I turn then to the third stage of the McDonnell Douglas framework where the
Plaintiff must establish by a preponderance of the evidence that the Defendant’s real
reason for its adverse action was unlawful sex-based animus. The Plaintiff can
establish pretext by showing “inconsistencies . . . in the employer’s proffered
legitimate reasons such that a factfinder could infer that the employer did not act for
the asserted non-discriminatory reasons.” Santiago–Ramos v. Centennial P.R.
Wireless Corp., 217 F.3d 46, 56 (1st Cir. 2000) (quotation marks omitted). The
Defendant asserts that the adverse action resulted from the Plaintiff’s inability to
work full-time shifts in contravention of company policy. Viewing the evidence in the
light most favorable to the Plaintiff, however, a reasonable factfinder could conclude
that the “full-time” rule was not a “company policy”—at least not one that would

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support the termination of an employee who was otherwise meeting expectations. The
human resources personnel were unaware of any such company policy, and nobody
was able to provide Knight with a written version of the policy. Thomas himself stated
that an inability to work full-time shifts would not alone be a basis to terminate an
employee. He also indicated that managers were not held accountable if they retained
employees who worked less than full-time shifts, and many managers continued to
retain part-time delivery specialists.
In addition to inconsistencies in the proffered legitimate reason, the Plaintiff
offers comparator evidence. “ ‘Reasonableness is the touchstone’ when considering
comparators in a disparate treatment case; that is, ‘while the plaintiff’s case and the
comparison cases that [s]he advances need not be perfect replicas, they must closely
resemble one another in respect to relevant facts and circumstances.’ ” Ray v. Ropes
& Gray LLP, 799 F.3d 99, 114 (1st Cir. 2015) (quoting Conward v. Cambridge Sch.
Comm., 171 F.3d 12, 20 (1st Cir. 1999)).
The Plaintiff claims that 120 different employees were permitted to work a
total of 9,517 shifts of less than eight hours between August 17, 2016 and November
17, 2017. Pl.’s Opp’n 18. In support of that claim, the Plaintiff provides hundreds of
pages of schedules, but she does not tease out the information necessary to determine
whether those other workers are fair comparators.3 Nor does the Plaintiff show that
the employees who were allowed to work shorter shifts were men or women without

For instance, someone who works an occasional seven-hour shift to attend to a medical
appointment is not a fair comparator to the Plaintiff.
3

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children. The Plaintiff also incorrectly places the burden to show comparators on the
Defendant. See Pl.’s Opp’n 19. It is neither the Defendant nor the Court’s burden to
parse the data looking for comparator evidence. For the purposes of this motion, the
Plaintiff has failed to present such evidence in her briefing.
The Defendant, however, concedes that there are “some delivery specialists in
O’Reilly’s Maine stores, other than the Portland store, [who] continue to work shifts
shorter than eight hours, and in that respect have been ‘treated more favorably’ than
Wendy Knight.” See Def.’s Mot. 10. And the Defendant has produced evidence from
which it is readily determined that at least three of those other delivery specialists
were men. See Ex. H (ECF No. 30-8) (one man at the Arundel store); Ex. I (ECF No.
30-9) (two men at the Windham store). The Defendant argues, however, that these
comparators were not similarly situated to the Plaintiff because the Portland store
was bigger, busier, and had different business needs than the other Maine stores.
Def.’s Mot at 10-11. In my view, the Defendant has “inappropriately circumscribed
the universe of [delivery specialists] from which comparison cases could be drawn.”
See Ray, 799 F.3d at 114. The comparators in the Windham and Arundel stores have
the exact same job as the Plaintiff. Although the Defendant makes much of the
different business needs of the stores, I am unconvinced,

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because every store

presumably has the goal of optimizing the use of its delivery fleet.

The Defendant attempts to contrast the busy Portland store from the Arundel store on the
grounds that the “drivers at the Arundel store inevitably have idle time, which the manager fills by
assigning non-driving tasks.” See, e.g., CSMF ¶ 59. But the Defendant concedes that delivery
specialists in the Portland store were not “on the road” for their entire shifts. CSMF ¶ 99. The
Defendant also acknowledges that when Knight was not busy making deliveries, she was expected to
stock shelves. CSMF ¶ 20.
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Finally, there is the evidence that when Hebert insisted on full-time shifts from
the Plaintiff in their August 2016 meeting, he told her that he and Liedke had been
“trying to get rid of [her] for months.” CSMF ¶ 117.5 Although Hebert did not connect
this statement to the Plaintiff’s complaints of sex discrimination, the statement is
relevant to whether the full-shift requirement was legitimate or pretextual.
When the issue is “whether the employer’s stated nondiscriminatory reason is
a pretext for discrimination, courts must be particularly cautious about granting the
employer’s motion for summary judgment.” Billings v. Town of Grafton, 515 F.3d 39,
56 (1st Cir. 2008) (quotation marks omitted). Given the fact that, at most, many
managers viewed the eight-hour shift rule as a hiring preference rather than a
company policy requiring termination of an employee who otherwise met
expectations, given that there were male delivery specialists at the Arundel and
Windham stores who continued to work shorter shifts,6 given that Liedke treated
women and men differently in assigning non-driving tasks, and given Hebert’s
statement to the Plaintiff in their final meeting, the record contains sufficient
evidence of pretext and unlawful animus to clear the third step of the McDonnell
Douglas framework. Accordingly, summary judgment is denied on Count One.

The Defendant denies this fact, but he does not support the denial with any record citation as
required by Local Rule 56(c). Even if the denial had been properly supported, it would have only
created a disputed fact, and I am bound to view the facts in the light most favorable to the Plaintiff.
5

The Defendant points to the departure of the one other delivery specialist at the Portland store
who worked less than full-shifts shortly after the Plaintiff left as evidence that the policy was not
applied as pretext. The Defendant has presented very little evidence about the circumstances around
the employee’s departure and I am not able to conclude that this employee’s departure undercuts the
Plaintiff’s evidence of pretext.
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II.

Disability Discrimination
In Count II, the Plaintiff claims that the Defendant unlawfully discriminated

against her in violation of the ADA because of her association with her children with
disabilities.7 The ADA contains an associational discrimination provision, which
makes it unlawful to “deny[] equal jobs or benefits to [an employee] because of the
known disability of an individual with whom the [employee] is known to have a
relationship or association.” 42 U.S.C. § 12112(b)(4).
The ADA’s associational discrimination provision is “intended to protect
qualified individuals from adverse job actions based on unfounded stereotypes and
assumptions arising from the employees’ relationships with particular disabled
persons.” Oliveras–Sifre v. P.R. Dep’t of Health, 214 F.3d 23, 26 (1st Cir. 2000)
(quotation marks omitted).
The EEOC also has concluded that this was the intended scope of the
provision, as indicated through the three examples of forbidden
association discrimination set out in its Interpretive Guidance on this
provision of the ADA: “(1) refusal to hire where the employer makes an
unfounded assumption that the employee will miss work in order to care
for a disabled relative; (2) discharging an employee who does volunteer
work with AIDS victims, due to fear that the employee may contract the
disease; and (3) denying health benefits to a disabled dependent of an
employee but not to other dependents, even where the provision of
benefits to the disabled dependent would result in increased health
insurance costs for the employer.”

As reflected in its motion, the Defendant originally thought that the Plaintiff advanced a
failure to accommodate theory of ADA discrimination. The Defendant used its Reply to argue that the
Complaint also failed to state a plausible disparate treatment claim for associational disability. The
Plaintiff asks me to find that the Defendant has waived its challenge to the ADA disparate treatment
theory. After reviewing the pleadings and the transcript of the parties’ Local Rule 56(h) conference, I
exercise my discretion to consider the Defendant’s argument. See Echevarría v. AstraZeneca Pharm.
LP, 856 F.3d 119, 133 n.18 (1st Cir. 2017). The Plaintiff has been allowed to file a sur-reply to address
the Defendant’s arguments, and I have considered that brief as well. (ECF Nos. 57, 59.)
7

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Id. (quoting Den Hartog v. Wasatch Acad., 129 F.3d 1076, 1081-85 (10th Cir. 1997)).
An employer is not required to provide a non-disabled employee with a
reasonable accommodation under the ADA’s associational discrimination provision.
Den Hartog, 129 F.3d at 1084 (citing legislative history and EEOC interpretive
guidance). The Plaintiff does not argue otherwise. Pl.’s Opp’n. at 4.
The elements of associational disability discrimination are similar to other
types of discrimination. An employee must show that:
(1) [s]he was qualified for the job at the time of the adverse employment
action; (2) that [s]he was subjected to adverse employment action; (3)
that h[er] employer knew, at the time of the adverse employment action,
that [s]he had a relative or associate with a disability; and (4) that the
adverse employment action occurred under circumstances raising a
reasonable inference that the disability of the relative or associate was
a determining factor in the employer’s decision.
Leavitt v. SW & B Const. Co., LLC, 766 F. Supp. 2d 263, 280 (D. Me. 2011).
The Defendant argues that it is entitled to judgment on the pleadings because
[t]here is no allegation that Nick Thomas, Jesse Hebert or anyone else
at O’Reilly was motivated to take adverse action against Knight because
of her children’s disabilities – for example, that the company thought it
would be better off without parents of disabled children, on the theory
that those parents are less attentive to their jobs than others, or that
the children’s disabilities would cost O’Reilly money.
Def.’s Reply 3 (ECF No. 53).8 The Plaintiff responds that she has both stated a claim
(as required under Rule 12) and made out a prima facie case of associational

The Defendant also argues that the Plaintiff failed to exhaust the disparate treatment claim.
Def.’s Reply 3-4 (ECF No. 53). I find that the Plaintiff exhausted her disparate treatment claim,
because she wrote in her administrative charge that she “was subject to unlawful disability
discrimination based on [her] association with [her] children with disabilities.” Charge of
Discrimination 2 (ECF No. 42-1). While the charge could have used the phrase “disparate treatment,”
the charge captures the essence of her current claim. At the least, her claim has sufficient relation to
her administrative charge to constitute “collateral and alternative bases or acts that would have been
8

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discrimination (as required under Rule 56). Because the Defendant seems to be
raising only a request for judgment on the pleadings on Count II, I consider only that
argument.
In employment discrimination cases, “plaintiffs need not plead facts in the
complaint that establish a prima facie case . . . nor must they ‘allege every fact
necessary to win at trial.’ ” Garayalde–Rijos v. Municipality of Carolina, 747 F.3d 15,
24 (1st Cir. 2014) (quoting Rodríguez–Vives v. P.R. Firefighters Corps of P.R., 743
F.3d 278 (1st Cir. 2014)). Instead, taken as a whole, “the allegations of the complaint
[must] make the claim . . . at least plausible.” Ocasio–Hernández v. Fortuño–Burset,
640 F.3d 1, 14-15 (1st Cir. 2011).
Stripped of conclusory legal allegations, the Complaint alleges that:
•

The Plaintiff told O’Reilly that she could not work 8 hour shifts
because of her children’s special needs. Compl. ¶ 23.

•

The Plaintiff was “qualified to perform the essential functions of
her job . . . with the reasonable accommodations that Defendant
had previously approved and implemented.” Compl. ¶ 31.

•

By “forcing Plaintiff to choose between her job and caring for her
disabled children, Plaintiff was constructively discharged and
thus subject to adverse employment action.” Compl. ¶ 32.

•

“Defendant knew at the time of the adverse employment action,
that Plaintiff had a relative or associate with a disability.” Compl.
¶ 33.

•

“Based on her children’s needs, Plaintiff requested and was
granted a reasonable accommodation, to wit: consistent part-time
hours.” Compl. ¶ 35.

uncovered in a reasonable investigation” of the Plaintiff’s charge. See Thornton v. United Parcel Serv.,
Inc., 587 F.3d 27, 32 (1st Cir. 2009).

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•

“As set forth above, Defendant discriminated against Plaintiff
based on her association with her disabled children. Among other
unlawful acts and omissions, Defendant improperly cut Plaintiff’s
hours and subsequently imposed unreasonable working terms
and conditions that Defendant knew Plaintiff could not meet;
terminated without justification Plaintiff’s ongoing reasonable
accommodations; made false or misleading statements to Plaintiff
concerning ‘company policy’; and relied without basis or
justification on such ‘company policy’ to constructively discharge
Plaintiff and/or compel her resignation.” Compl ¶ 36.

The Plaintiff’s theory behind Count II is that O’Reilly “us[ed] her children’s
disabilities as leverage” to force her to resign. See Pl.’s Opp’n 5. But because O’Reilly
was under no obligation to reasonably accommodate the Plaintiff, its action in
changing her hours knowing that she would resign is simply not a violation of the
ADA. “The ADA does not require an employer to restructure an employee’s work
schedule to enable the employee to care for a relative with a disability.” Tyndall v.
Nat’l Education Ctrs., Inc. of Cal., 31 F.3d 209, 214 (4th Cir. 1994) (addressing
associational disability claim). I therefore set aside the allegations pertaining to
O’Reilly cutting hours, imposing unreasonable terms and conditions that the
Defendant knew the Plaintiff could not meet, and terminating the Plaintiff’s
“reasonable accommodations.”
What is left are the Complaint’s allegations that the Defendant made false or
misleading statements to the Plaintiff concerning “company policy” and relied
without basis or justification on “company policy” to compel her resignation. While
these allegations effectively plead that the reasons O’Reilly gave for its decision to
compel the Plaintiff’s resignation were pretextual, they do nothing to support the

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Plaintiff’s contention that the real reason for the adverse action was unlawful
disability-based animus against the Plaintiff and/or her sons with disabilities.9
An associational disability claim must be based on an unfounded stereotype or
assumption about the Plaintiff or her children with disabilities. This Complaint does
not allege any such unfounded stereotype or assumption or provide any factual
support for such a claim. O’Reilly made no “unfair assumption” that Knight would
miss work to care for her children. The Plaintiff herself directly informed the
Defendant that she could only work a specific schedule. See Tyndall, 31 F.3d at 214
(employer did not make an unfounded assumption that plaintiff would have to miss
work to care for son where plaintiff stated “that she would in fact have to miss
additional work in order to be with her son”).
Stripped of its conclusory language and studied in the light of the Plaintiff’s
concession that the ADA imposes no duty to provide reasonable accommodation to a
non-disabled employee based on her association with individuals with disabilities,
the Plaintiff has not plausibly pleaded a claim of associational discrimination.10
The Plaintiff alleges that the Defendant knew about her children early in her employment, see
CSMF ¶¶ 9, 35, so there is also no temporal connection to suggest unlawful bias. See Erdman v.
Nationwide Ins. Co., 582 F.3d 500, 511 (3d Cir. 2009) (“[T]he record is devoid of evidence indicating
that [the defendant’s] decision to fire [the plaintiff] was motivated by [the plaintiff’s daughter’s]
disability. Indeed, [the defendant] was aware of [the plaintiff’s daughter’s] disability for many years
before [the plaintiff] was fired.”).
9

Out of an apparent abundance of caution, the Plaintiff responded to the Defendant’s motion
for judgment on the pleadings on Count II as both a Rule 12 motion and a Rule 56 motion. To establish
that she met her Rule 56 burden of showing a prima facie case of associational disability
discrimination, the Plaintiff marshalled the facts demonstrating causation. Specifically, she pointed
to record evidence that O’Reilly knew that she was not able to work full-shifts, that O’Reilly told her
that eight-hour shifts were “company policy,” and that O’Reilly continued to employ delivery
specialists to work shifts of less than eight-hours. Pl.’s Opp’n at 9. These facts do not change my
analysis. Even if I were to allow the Plaintiff to amend Count II to include these allegations, she would
still fail to state a claim of associational discrimination under the ADA.
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Accordingly, I conclude that the Defendant is entitled to judgment on the pleadings
on Count II.
III.

Retaliation
The Plaintiff alleges that the Defendant unlawfully retaliated against her for

engaging in conduct that is protected by the MHRA, Title VII, the ADA, and the
MWPA. The Defendant moves for summary judgment on all retaliation claims and
presents two arguments. First, the Defendant argues that the Plaintiff cannot
establish that she engaged in protected conduct under Title VII and the MHRA by
reporting sex discrimination. Second, the Defendant contends that all of the
Plaintiff’s retaliation claims fail because she cannot establish that any adverse action
was motivated by her protected conduct. I address each argument in turn.
A.

Reports of Sex Discrimination as Protected Conduct

The Plaintiff claims that the Defendant retaliated against her for reporting sex
discrimination, which is protected conduct under Title VII and the MHRA. Both
claims are evaluated under the McDonnell Douglas framework. See Bachelder v.
MjjM Enterprises, Inc., No. 2:17-CV-00454-JAW, 2019 WL 921443, at *14 (D. Me.
Feb. 25, 2019).11 To establish a prima facie case of retaliation, the Plaintiff must show
that “ ‘(1) she engaged in protected conduct under Title VII; (2) she suffered an
adverse employment action; and (3) the adverse action was causally connected to the

The Law Court has jettisoned the McDonnell Douglas framework for MWPA claims, see infra,
but has not done so for MHRA claims. Bachelder v. MjjM Enterprises, Inc., No. 2:17-CV-00454-JAW,
2019 WL 921443, at *14 (D. Me. Feb. 25, 2019).
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protected activity.’ ” Fantini v. Salem State Coll., 557 F.3d 22, 32 (1st Cir. 2009)
(quoting Marrero v. Goya of P. R., Inc., 304 F.3d 7, 22 (1st Cir. 2002)).
The Defendant argues that the Plaintiff is unable to establish that she engaged
in protected conduct. Def.’s Mot. 17-21. In order to establish that she engaged in
protected conduct, the Plaintiff need not prove that the conduct she opposed actually
violated Title VII, but only that “she had a good faith, reasonable belief that the
underlying challenged actions of the employer violated the law.” Fantini, 557 F.3d at
32 (alteration and quotation marks omitted). The Defendant contends that “[n]o
reasonable person in the Plaintiff’s position would have believed that she had been a
victim of actionable sex discrimination, because no reasonable person would have
believed that she suffered an adverse employment action when she was instructed to
do her job.” Def.’s Mot. 19. The Defendant argues that because stocking shelves was
part of the Plaintiff’s job, she could not reasonably have believed that she was the
victim of a legal wrong. Def.’s Mot. 21.
The Plaintiff describes a work environment where delivery specialists with
downtime were told to stock shelves if they were women, but if they were men they
were allowed to read newspapers, drink coffee, look at their phones, and chat. I have
no difficulty concluding that it is objectively reasonable for an employee in the
Plaintiff’s shoes to believe that a violation of Title VII occurs when a supervisor
regularly requires only women to work while men employed in the same position are
allowed to stand idly by. See Feingold v. New York, 366 F.3d 138, 152-53 (2d Cir.
2004) (adverse employment action requirement in Title VII disparate treatment

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claim established by showing employees of one race were “subjected to an excessive
workload,” compared to other employees); Davis v. Team Elec. Co., 520 F.3d 1080,
1090 (9th Cir. 2008) (female employee established adverse employment action
element by showing that she “was given a disproportionate amount of dangerous and
strenuous work” compared to employees who were men); Whited v. Tennessee, 781 F.
Supp. 2d 621, 627 (M.D. Tenn. 2011) (“heavier workloads that were disproportionate
to the workloads” of other employees constituted adverse employment action).
B.

Motivated by Retaliatory Animus

Finally, I address the Defendant’s argument that the Plaintiff has failed to
establish that O’Reilly’s adverse employment action was motivated by retaliatory
animus. In her Complaint, the Plaintiff alleges retaliation for conduct protected by
the MHRA, Title VII, ADA, and MWPA.12 The Plaintiff specifically identifies her
protected conduct as: (1) in April and May of 2016, complaints about workplace safety
to O’Reilly and OSHA; (2) in May of 2016, complaints pertaining to sex-based
disparate treatment in the distribution of work to O’Reilly; (3) in May of 2016,
complaints about reducing her hours in response to her complaints about disparate
treatment to Liedke; (4) in August of 2016, complaints about O’Reilly’s attempts to

The MWPA “prohibits retaliation against an employee who makes a good-faith report of ‘a
condition or practice that would put at risk the health or safety of’ any person.” Theriault v. Genesis
HealthCare LLC, 890 F.3d 342, 349 (1st Cir. 2018) (quoting 26 M.R.S. § 833(1)(B)) (alteration and
quotation marks omitted). “To prevail on a [MWPA] claim, the plaintiff must demonstrate that ‘(1) she
engaged in activity protected by the [M]WPA; (2) she experienced an adverse employment action; and
(3) a causal connection existed between the protected activity and the adverse employment
action.’ ” Walsh v. Town of Millinocket, 28 A.3d 610, 616 (Me. 2011). Under the MWPA, unlike the
McDonnell Douglas framework, “a plaintiff must present evidence of causation up front, not wait for
the defendant to introduce evidence of its legitimate reason for terminating her.” Theriault, 890 F.3d
at 350 (citing Brady v. Cumberland Cty., 126 A.3d 1145, 1157 (Me. 2015)).
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require her to work full-shifts; and (5) continued complaints up to and including her
August 23, 2016, meeting with Hebert. Pl.’s Opp’n 10.13
The Defendant mounts two arguments. First, it argues that the people
responsible for the Plaintiff’s termination, Thomas and Hebert, did not even know
that the Plaintiff had made an OSHA complaint and therefore could not retaliate
against her because of it. Second, it argues that, even in the light most favorable to
the Plaintiff, there is no evidence of retaliatory motive.
Taking the facts in the light most favorable to the Plaintiff, Knight complained
of sexual discrimination to the company TIPS line and reiterated those complaints to
Hebert around April or May of 2016. She then made complaints to OSHA in the same
time frame. Liedke knew of the OSHA complaints and he significantly reduced the
Plaintiff’s scheduled hours without explanation within just two weeks of her
complaints. At this same time, Liedke’s demeanor towards the Plaintiff changed, and
he became short-tempered with her. During their August 23, 2016, meeting, when
Hebert informed the Plaintiff that she either needed to work full-time shifts or be
removed from the schedule, he became agitated and stated that “he and Liedke had

The Plaintiff does not identify any specific act in either her Complaint or in her opposition to
the Defendant’s motion that amounts to protected activity under the ADA. The Plaintiff mistakenly
claims that the “Defendant has not challenged the ‘ADA retaliation’ claim articulated in Count III, so
the Plaintiff is not obligated to present evidence of causation or pretext.” Pl.’s Opp’n 14 n.4. The
Defendant argued that it was “entitled to judgment on all the Plaintiff’s retaliation claims because the
record, construed most favorably to her, will not support an inference that any adverse employment
action was motivated, even in part, by her protected conduct.” Def.’s Mot. 21 (emphasis added).
Because the Plaintiff provides no basis upon which I can to translate her allegations of ADA retaliation
into “specific conduct protected by the ADA,” Oliveras–Sifre, 214 F.3d at 27, and because there is no
requirement under the ADA to provide a reasonable accommodation in the associational disability
discrimination context, I consider the Plaintiff’s ADA retaliation claim abandoned and thus waived.
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been trying to get rid of her for months.” CSMF ¶ 117. A reasonable jury could
understand this statement to mean that Hebert and Liedke had been seeking a cover
to terminate the Plaintiff ever since she began to complain. These facts raise an
inference that the adverse action taken against her was either motivated by her sexdiscrimination complaints, her workplace safety complaints, or both. Because I find
that there are trial-worthy issues, the Defendant’s motion for summary judgment on
Count III is denied.
CONCLUSION
For the reasons stated above, the Court GRANTS the Defendant’s motion for
judgment on the Plaintiff’s ADA count (Count II) and DENIES the remainder of the
Defendant’s motion.

SO ORDERED.
/s/ Nancy Torresen
United States District Judge
Dated this 21 day of March, 2019.

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