Burnett v. Ocean Properties, Ltd.

987 F.3d 57

• Court: Court of Appeals for the First Circuit
• Decided: February 2, 2021
• Docket: 19-2086P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

Nos. 19-2086, 19-2087

RYAN D. BURNETT,

Plaintiff, Appellee,

v.

OCEAN PROPERTIES, LTD.; AMERIPORT, LLC,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Howard, Chief Judge, Lynch and Thompson, Circuit Judges.

Timothy J. Bryant, Jonathan G. Mermin, and Preti Flaherty Beliveau & Pachios LLP, were on brief for appellant Ocean Properties, Ltd. Elizabeth A. Germani, Robert P. Hayes, and Germani Martemucci & Hill were on brief for appellant AmeriPort, LLC. Laura H. White, Danielle M. Quinlan, and White & Quinlan, LLC, were on brief for appellee. Melissa A. Hewey, Amy K. Olfene, Michael L. Buescher, and Drummond Woodsum were on brief for HospitalityMaine, amicus curiae. Kristin L. Aiello was on brief for Disability Rights Maine, amicus curiae. February 2, 2021 THOMPSON, Circuit Judge. Appellee Ryan D. Burnett, who

relies on a wheelchair for mobility, sued Appellants AmeriPort,

LLC, and Ocean Properties, Ltd., for failing to accommodate his

disability at work, as required under the Americans with

Disabilities Act ("ADA"), 42 U.S.C. § 12101, and Maine Human Rights

Act ("MHRA"), Me. Stat. tit. 5, § 4571 (1971). He prevailed and

a jury awarded Burnett compensatory and punitive damages for his

troubles. Over Appellants' protestations, the district court

upheld the verdicts and entered judgment in Burnett's favor but

remitted the punitive damages award. Appellants are here

challenging the verdicts, amended judgment, and order denying

their post-trial motions. After careful consideration, we affirm.

BACKGROUND1

The Parties

Ryan D. Burnett ("Burnett") was injured in a dirt bike

accident and rendered paraplegic over twenty-three years ago.

Starting in 2009, Burnett worked as an associate at a call center

in South Portland, Maine, taking room reservations for forty-five

hotels and resorts in the United States and Canada, all marketed

under the umbrella term, "Ocean Properties Hotels, Resorts &

Affiliates." Under 101 employees worked in the reservations

1 We narrate the facts in the light most favorable to the jury's verdict and as relevant to this appeal. See, e.g., Bielunas v. F/V Misty Dawn, Inc., 621 F.3d 72, 74 (1st Cir. 2010). - 3 - department at the call center, whereas over 500 employees worked

for the hotels and resorts under the Ocean Properties Hotels,

Resorts & Affiliates umbrella. AmeriPort, LLC ("AmeriPort"), was

Burnett's employer, and it held itself out publicly as "Ocean

Properties Reservations," consistent with the umbrella moniker.

Ocean Properties, Ltd. ("Ocean Properties"), was an entity that,

as we discuss below, was interrelated to AmeriPort.

Burnett's Request For An Accommodation

The call center was located in a golf clubhouse whose

public entrance sported heavy, wooden doors that pulled outward

and then automatically closed. Just beyond the entrance was a

slight, downward slope that caused Burnett's wheelchair to roll

backwards as the doors closed on him. As a result, Burnett needed

to exert greater force as he struggled to enter.

On August 28, 2014, Burnett sent a message to Nick

Robertshaw ("Robertshaw"), the acting office manager, requesting

push-button, automatic doors at the public entrance, explaining

that the "[d]oors are heavy and hard to hold open while I push

myself [through] [without] them closing on me." Robertshaw did

not respond to Burnett, but instead forwarded the message to his

own supervisor, Lori Darsaoui ("Darsaoui"), and Darsaoui's

supervisor that same day.

On September 10, 2014, Darsaoui e-mailed Mark Mooney

("Mooney"), who constructed the clubhouse and was responsible for

- 4 - ensuring the building was up to code, asking "if the set of large

wooden doors used to enter the lobby of the clubhouse are ADA

compliant." Hearing no response, Darsaoui e-mailed Mooney again

on September 30, 2014: "I wanted to follow up with you and see if

you had found out if the doors here are ADA compliant[.] Please

let me know as soon as you can." Mooney responded that same day

with, "As constructed when the building was built, Yes." Darsaoui

did not follow up on Mooney's e-mail and Burnett did not receive

a response to his request.

One morning in October 2014, Burnett, while entering the

clubhouse, injured his wrist (causing tingling in his hand) as he

pulled open the heavy door and tried to quickly push himself

inside. Burnett reported the incident to another supervisor who

filed an incident report on his behalf, but again no one followed

up with Burnett on his request for push-button, automatic doors.

In June 2015, Burnett filed a disability discrimination

complaint with the Maine Human Rights Commission ("MHRC"). In a

meeting with Burnett to discuss his MHRC complaint, Darsaoui told

him she was not familiar with ADA compliance and, for whatever

reason, no specific mention was made of Burnett's request for push-

button, automatic doors. So even the filing of a complaint yielded

Burnett no relief. On February 26, 2016, Burnett gave notice of

his resignation, at which time the condition of the doors remained

the same.

- 5 - The Trial

A three-day jury trial was held concerning the only

trial-worthy issue which survived pre-trial dispositive motions to

Burnett's suit: whether Appellants violated the ADA and MHRA by

failing to accommodate Burnett concerning the heavy wooden doors.2

Burnett was the primary witness and he testified in support of his

claim that Appellants never responded to his request for push-

button, automatic doors, not "even as to why they could or could

not or if they were or were not compliant." Burnett recalled

feeling "tired, frustrated, [and] angry" that he never heard a

response to his request; he believed Appellants did not wish to

accommodate him. Another witness was Darsaoui, who was called by

both Burnett and Appellants. The third and final witness was

Burnett's girlfriend, who testified further about Burnett's

emotional distress which sometimes caused conflict in their

relationship. The jury heard testimony as narrated above in our

background discussion. Additionally, Appellants stipulated that

replacing the doors was not an undue hardship and that Burnett had

a disability, was qualified to do his job, and worked for

2The additional claims Burnett originally brought, but were tossed out, were failure to accommodate him regarding other incidents, disparate treatment, retaliation in violation of the ADA and MHRA, and violation of the Maine Whistleblower Protection Act. Burnett did not appeal those rulings. - 6 - AmeriPort; the parties disputed whether Burnett also worked for

Ocean Properties.3

Appellants also sought to call Mooney to testify that he

tested the doors in December 2013 or January 2014 and found the

doors ADA-compliant. However, Appellants conceded they did not

disclose this information to Burnett until after the jury was

selected and six days before trial; Appellants had previously

disclosed only that the doors were tested when the building was

constructed (as revealed in Mooney's e-mail to Darsaoui, which was

timely provided to Burnett in discovery). Burnett claimed he was

surprised and prejudiced by the late disclosure because he would

have designated an expert and tested the doors himself. Siding

with Burnett, the district court prohibited Appellants from

inquiring about Mooney's 2013/2014 testing of the doors as a

sanction for Appellants' failure to disclose or supplement during

discovery. See Fed. R. Civ. P. 26(a), (e), 37(c). Although the

ruling did not prevent Appellants from otherwise calling Mooney as

a witness, Appellants opted not to do so.

Appellants moved for judgment as a matter of law at the

close of Burnett's case in chief and again at the close of

Appellants' case in chief, raising three total issues, which were

that Burnett failed to show: (1) his requested accommodation was

3 At trial, Appellants were represented by the same counsel. - 7 - reasonable since he could perform the essential functions of his

job; (2) Appellants acted with malice or reckless indifference

towards him to support an award for punitive damages; and (3) Ocean

Properties was his single or joint employer. See Fed. R. Civ. P.

50(a). The district court denied the motion on each ground. Then,

during closing arguments, Burnett's counsel made two challenged

comments, of which the first was objected to and the other was

not: counsel (1) suggested that the jury "imagine" what life was

like for Burnett having a disability in order to award him damages

and then (2) suggested a ballpark damages figure.

The Verdicts

The jury retired to deliberate with the following

agreed-upon special verdict form:

(1) Has Ryan Burnett proven it is more likely than not that Ocean Properties and/or AmeriPort failed to reasonably accommodate his disability? (2) What damages, if any, has Mr. Burnett proven more likely than not that he sustained as a result of Ocean Properties and/or AmeriPort's failure to reasonably accommodate his disability? (3) Was Ocean Properties an employer or joint employer of Mr. Burnett? (4) Were Ocean Properties and AmeriPort integrated employers of Ryan Burnett? (5) How many employees do you find Ryan Burnett's employer had when he worked for the employer?

In a chambers conference during deliberations, the district judge

read to counsel a note from the jury that asked whether "both

- 8 - questions 3 and 4 could be answered yes." The district judge said

he believed both questions could be answered affirmatively and

counsel for Burnett and Appellants agreed. After informing counsel

that he would respond to the jury's note with "yes, both questions

3 and 4 could be answered yes," the district judge asked if there

were any objections, and counsel for Burnett and Appellants replied

that there was no objection.

The jury returned a verdict that answered questions 1,

3, and 4 affirmatively, found Burnett's employer had more than 500

employees (question 5), and awarded Burnett $150,000 in

compensatory damages (question 2). No challenges to the verdict

were raised.

Having found Appellants liable, the jury deliberated a

second time to determine whether to award punitive damages. The

jury returned a second verdict that found that Burnett proved

Appellants acted intentionally or with reckless indifference and

awarded him $500,000 in total punitive damages ($200,000 under the

ADA and $300,000 under the MHRA).

Post-Trial Motions

After trial, Appellants renewed their motion for

judgment as a matter of law raising the same grounds as before.

They also moved for a new trial challenging the consistency of the

first verdict regarding the employment relationship, the ruling

excluding Mooney from testifying about the 2013/2014 testing of

- 9 - the doors, and Burnett's counsel's closing arguments. Lastly,

they moved to remit the total award to $50,000, the statutory limit

recoverable from an employer with fewer than 101 employees, based

on their claim that there was no evidence AmeriPort had over 100

employees and that Ocean Properties had any employees.4 See 42

U.S.C. § 1981a(b)(3)(A); Me. Stat. tit. 5, § 4613(2)(B)(8)(e)(i)

(2012).

The district court denied each motion. It did amend the

judgment to accept the parties' stipulation reducing the total

award from $650,000 to $500,000 and then remitted the punitive

damages award from $500,000 to $350,000 (specifically, $125,000

under the ADA and $225,000 under the MHRA). It declined to remit

further because Ocean Properties didn't prove it had fewer than

500 employees, making the maximum statutory limits (of $300,000

under the ADA and $500,000 under the MHRA) for employers with over

500 employees applicable instead. See 42 U.S.C. § 1981a(b)(3)(D);

Me. Stat. tit. 5, § 4613(2)(B)(8)(e)(iv) (2012). This appeal

followed.

4Appellants also argued below that the punitive damages award was duplicative (because Burnett was awarded punitive damages under the ADA and MHRA) and excessive, that the compensatory damages award was excessive because there was little evidence of emotional distress, and, alternatively, that the total award should be reduced to a de minimis figure of $10,000. Since Appellants abandoned these arguments on appeal, we do not address them. - 10 - OUR TAKE Before us, Appellants assert that the district court's

denial of their motions was wrong and warrants vacatur of the

verdicts and judgment in their favor, or a new trial, or, if all

else fails, remittitur.5 We take each motion in turn, detailing

additional facts as needed.

Judgment As A Matter Of Law Appellants repeat here the same arguments they made

below in their post-trial motions for judgment as a matter of law,

which essentially are that Burnett failed to prove his case under

the ADA and MHRA. Because the ADA and its Maine equivalent, the

MHRA, have similar language, we discuss the statutes together.

See generally Patten v. Wal-Mart Stores E., Inc., No. 00-213-PH,

2001 WL 631258, at *6 (D. Me. June 7, 2001) (noting that the

language of the ADA and MHRA "is sufficiently similar to allow

case law interpreting the federal statute to be applied to parallel

claims under the state statute").

5 Some arguments were briefed only by Ocean Properties, and others, only by AmeriPort, but Appellants tell us that they adopt one another's arguments. "In a case involving more than one appellant or appellee, . . . any number of appellants or appellees may join in a brief, and any party may adopt by reference a part of another's brief." Fed. R. App. P. 28(i). The adopted arguments must be "readily transferrable from the proponent's case to the adopter's case," however. United States v. David, 940 F.2d 722, 737 (1st Cir. 1991). Burnett didn't object to Appellants' adoption of each other's arguments and, therefore, we will treat Appellants' arguments as adequately adopted and explained relative to their respective claims on appeal. - 11 - Standard of Review

We review de novo a district court's denial of a motion

for judgment as a matter of law. Suero-Algarín v. CMT Hosp. Hima

San Pablo Caguas, 957 F.3d 30, 37 (1st Cir. 2020). "Although we

review the record as a whole, we construe facts in the light most

favorable to the jury verdict, draw any inferences in favor of the

non-movant [Burnett], and abstain from evaluating the credibility

of the witnesses or the weight of the evidence." Id. We must

affirm "unless the evidence . . . could lead a reasonable person

to only one conclusion, namely, that [Appellants were] entitled to

judgment." Id. (first alteration in original) (quoting Full

Spectrum Software, Inc. v. Forte Automation Sys., Inc., 858 F.3d

666, 671 (1st Cir. 2017)).6

Discussion

1. Employment Relationship

As mentioned, Appellants stipulated at trial that

Burnett worked for Appellant, AmeriPort, but the battle below and

before us is whether he also worked for Ocean Properties. On that

front, Appellants argue that contrary to Burnett's assertions,

6 At the outset, we note that Appellants' arguments mostly fail to account for our standard of review. Additionally, Appellants point the finger at Burnett for not following up on his request for push-button, automatic doors despite seeing Darsaoui regularly at work, but the burden is on the employer to respond to the request for an accommodation. See generally 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. § 1630.2(o)(4); see also Me. Stat. tit. 5, § 4553(2)(E) (2019). - 12 - there was insufficient evidence at trial that Ocean Properties and

AmeriPort were so interrelated to both be liable as Burnett's

single integrated employer.

Therefore, before addressing Appellants' liability

challenges, we first decide who might properly be on the hook.

Appellants can be considered Burnett's single integrated employer

if they are "two nominally separate companies" that are "so

interrelated that they constitute a single employer subject to

liability." See Torres-Negrón v. Merck & Co., Inc., 488 F.3d 34,

40-41 (1st Cir. 2007) (applying single employer test to determine

liability under Title VII and the ADA). We consider the following

four factors7 to determine whether two or more entities count as a

single employer under the ADA in the "widely recognized"

integrated-enterprise test: (i) "centralized control over labor

relations"; (ii) "interrelation between operations"; (iii) "common

management"; and (iv) "common ownership."8 Id. at 42 & n.8 (citing

7 These factors were first developed to determine whether interrelated companies should be treated as one entity under the National Labor Relations Act, 29 U.S.C. § 164. Romano v. U-Haul Int'l, 233 F.3d 655, 662 (1st Cir. 2000).

8 Although we have identified various tests to determine whether a single employer exists in Title VII discrimination claims, see Romano, 233 F.3d at 665, we have yet to decide which test is applicable to determine whether an employer is liable under the single-employer theory in an ADA claim. We will apply the integrated-enterprise test the parties applied in their briefs. See Torres-Negrón, 488 F.3d at 42 n.8 (1st Cir. 2007) (applying the integrated-enterprise test in an ADA claim). Other circuits have applied this same test in ADA claims. See, e.g., Tipton v. - 13 - Romano v. U-Haul Int'l, 233 F.3d 655, 662 (1st Cir. 2000)). Not

all four factors are necessary to establish a single employer

relationship. Id. at 42. "Rather, the test should be applied

flexibly, placing special emphasis on the control of employment

decisions." Id. (citing Romano, 233 F.3d at 666 (where we stated

that "[w]e choose to follow the more flexible approach . . . which

focuses on employment decisions, but only to the extent that the

parent exerts an amount of participation [that] is sufficient and

necessary to the total employment process, even absent total

control or ultimate authority over hiring decisions") (internal

quotation marks omitted))). We evaluate these four factors one by

one.

There is ample evidence of centralized control over

labor relations, which examines control of employment decisions.

Romano, 233 F.3d at 666. Burnett believed he worked for Ocean

Properties. He signed a probationary form indicating his

acceptance "as a term of hire a 90-day probationary period with

Ocean Properties" and a hiring statement indicating he was "an

employee of Ocean Properties, Ltd., or affiliated companies." He

was issued a list of employment policies that displayed "Ocean

Northrup Grumman Corp., 242 F. App'x 187, 190 (5th Cir. 2007); Bristol v. Bd. of Cnty. Comm'rs of Cnty. of Clear Creek, 312 F.3d 1213, 1220 (10th Cir. 2002); Parker v. Columbia Pictures Indus., 204 F.3d 326, 341 (2d Cir. 2000); Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d 990, 993-96 (6th Cir. 1997). - 14 - Properties Reservations Center Training Manual" on the bottom,

left-hand corner and a certificate from "Ocean Properties, Ltd."

for completing mandatory harassment training. Although Darsaoui

testified that Burnett was hired to work for AmeriPort and that

his probationary form was filled out incorrectly, we view the

evidence in the light most favorable to the verdict and draw

reasonable inferences in favor of Burnett. See Suero-Algarín, 957

F.3d at 37. Notwithstanding the evidence suggesting Burnett was

hired and trained by Ocean Properties, other evidence shows his

performance evaluation was conducted by AmeriPort and his

supervision was managed by Darsaoui, AmeriPort's payroll

administrator who was also in charge of human resources,

scheduling, discipline, hiring, and firing at the clubhouse. But

Darsaoui also hired reservation agents to work for Ocean Properties

at the clubhouse.

As for employment compensation, there is evidence that

Burnett received wages and benefits from both AmeriPort and Ocean

Properties. He discussed "benefits" and "time off" with Darsaoui,

he was on AmeriPort's payroll ledger, and his W-2 indicated his

employer was AmeriPort, yet his paystubs listed his employer as

"AmeriPort, LLC d/b/a [doing business as] Ocean PR Trust."

Further, Burnett received a paycheck and stub from "OPL Central

- 15 - Reservations"9 and participated in a 401(k) plan through Ocean

Properties. We find this compilation of facts is evidence of

centralized control of labor relations. Compare Torres-Negrón,

488 F.3d at 43 (finding evidence of centralized control of labor

relations where one entity paid plaintiff, provided her benefits,

and had the power to terminate her, while the other entity

exercised almost exclusive control over her day-to-day employment

and had substantial influence over the decision to terminate her),

with Engelhardt v. S.P. Richards Co., Inc., 472 F.3d 1, 7 (1st

Cir. 2006) (finding no evidence of centralized control of labor

relations in wrongful termination claim under the Family and

Medical Leave Act where one entity "made its own, independent

decisions with respect to labor relations" and did not defer to

the other entity "in making hiring, firing, assignment,

scheduling, or compensation decisions"). Accordingly, the first

factor evinces a single integrated employer relationship.

The second factor -- the interrelation between

operations -- evaluates whether Appellants "shared employees,

services, records, office space, and equipment, commingled

finances, and handling by the parent of subsidiary tasks such as

payroll, books, and tax returns." Romano, 233 F.3d at 667 & n.7.

Additional considerations under the interrelation of operations

9We note that Darsaoui testified this was "not a paycheck stub, but it is a check and a check stub." - 16 - factor may include whether one entity "exerts considerable

influence" over the other entity's "advertising and other

decisions," as well as whether the former entity is directly

involved in the latter entity's daily sales, marketing, and

advertising decisions. Id. at 666-67.

There is significant evidence of interrelation between

operations at Ocean Properties and AmeriPort. First, as discussed,

there is evidence of shared personnel -- namely, Darsaoui. Second,

Appellants shared use of e-mail addresses. Despite being AmeriPort

employees, Darsaoui and Burnett had Ocean Properties e-mail

addresses. Third, Appellants shared documents and logos. Darsaoui

admitted that AmeriPort used Ocean Properties's employee handbook

and department policies. Moreover, an Ocean Properties

advertisement Darsaoui co-authored and Burnett's training

certificate signed by Darsaoui displayed the Ocean Properties

logo, the same logo Burnett had seen used "multiple times around

the office for different certificates or poster boards." To

Burnett's knowledge, AmeriPort did not have a separate logo. The

fact that Darsaoui contributed to the advertisement also evinces

that AmeriPort was involved in Ocean Properties's advertising

decisions. Fourth, Appellants shared office space. Darsaoui's

office was in the clubhouse overlooking the call center where

Burnett and the Ocean Properties reservation agents she hired would

work. Fifth, Appellants shared a corporate office, Portsmouth

- 17 - Corporate Financial Services ("PCFSI"), in Portsmouth, New

Hampshire. The payroll information Darsaoui processed for

AmeriPort was submitted to PCFSI, where a copy of Burnett's

probationary hire form was kept. Moreover, Burnett's Ocean

Properties hiring statement listed PCFSI for all legal and

corporate matters. There was evidence that AmeriPort and "OPL

Central Reservations" had the same corporate office address.

Overall, this is strong evidence of interrelation between

operations. See, e.g., Knowlton v. Teltrust Phones, Inc., 189

F.3d 1177, 1184 n.7 (10th Cir. 1999) ("Interrelation of operations

is clear because the three entities shared a building, phone

system, reception area, office equipment, accounting department,

personnel manager, personnel handbook, and payroll accounts.").

Further, Appellants performed substantially the same function and

had the same purpose -- booking reservations and providing guest

services for the same hotels and resorts. See Torres-Negrón, 488

F.3d at 42 (finding that two subsidiaries of the same parent

company "perform[ed] substantially the same function" for purposes

of the interrelation between operations factor).

Thus, the second factor -- review of the interrelation

between the operations of AmeriPort and Ocean Properties -- also

evinces a single integrated employer relationship. But see

Engelhardt, 472 F.3d at 6-7 (finding no evidence of interrelation

between operations where two entities had separate headquarters,

- 18 - human resources, records, and record-keeping departments, separate

worksites with distinct functions, and separate business

purposes).

Darsaoui doing work for both AmeriPort and Ocean

Properties is also evidence of the third factor -- common

management -- which examines "whether the same individuals manage

or supervise the different entities or whether the entities have

common officers and boards of directors." Davis v. Ricketts, 765

F.3d 823, 828 (8th Cir. 2014) (citation omitted) (applying the

integrated-enterprise test in a Title VII claim). But see

Engelhardt, 472 F.3d at 6 (finding no evidence of common management

where there was no common manager between two entities and no

manager of one entity answered to an employee of the other entity).

Although there is little to no evidence of the fourth

factor -- common ownership -- which looks at "whether one company

owns the majority or all shares of the other and if the entities

share common officers or directors," Davis, 765 F.3d at 828-29

(citation omitted), recall, as we discussed previously, that

satisfying all four factors of the test is not necessary for

Appellants to be viewed as a single integrated employer. See

Torres-Negrón, 488 F.3d at 42. And, given the significant evidence

submitted at trial as to the other factors which support the jury's

finding, Appellants' challenge here fails.

- 19 - Appellants also argue that there was insufficient

evidence at trial that AmeriPort and Ocean Properties were

Burnett's joint employers. However, having found there was

sufficient evidence that Appellants were Burnett's single

integrated employer, we have no reason to consider whether

Appellants were also Burnett's joint employers.10 See, e.g.,

Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 229 n.4

(5th Cir. 2015) (finding "no occasion to consider" single employer

status after holding that two entities were joint employers). The

single and joint employer theories are alternative theories of an

employment relationship. See Engelhardt, 472 F.3d at 4 n.2 (noting

that whether a single or joint employer relationship exists depends

on "whether the plaintiff seeks to impose liability on [his] legal

employer or another entity"); Rivas v. Federacion de Asociaciones

Pecuarias de P.R., 929 F.2d 814, 820 n.17 (1st Cir. 1991) ("[T]he

'joint employer' concept recognizes that the business entities

involved are in fact separate but that they share or co-determine

10 Separately, Ocean Properties argues that if we conclude that Appellants were Burnett's joint employers but not his single integrated employer, Ocean Properties is entitled to judgment as a matter of law regarding punitive damages because there is no evidence that Ocean Properties (as opposed to AmeriPort) acted with malice or reckless indifference towards Burnett. Ocean Properties first raised this claim in its Rule 50(b) motion and therefore the district court considered the claim waived. We do not address this argument because we conclude that Appellants were Burnett's single integrated employer. - 20 - those conditions of employment." (quoting N.L.R.B. v. Browning-

Ferris Indus. of Pa., Inc., 691 F.2d 1117, 1123 (3d Cir. 1982))).

2. Reasonable Accommodation

Appellants contend that since the evidence showed

Burnett was actually performing the duties of an associate --

indeed excelling at his job -- he did not need an accommodation

and his requested accommodation was unreasonable. Burnett, who

Appellants stipulated has a disability, has the right to a

reasonable accommodation that would enable him to perform his job,

unless Appellants can show that such accommodation would impose an

undue hardship.11 See 42 U.S.C. § 12112(b)(5); Me. Stat. tit. 5,

§ 4553(2)(E). To perform his job, Burnett must be able to perform

the "essential function" or "fundamental job dut[y]" of the

associate position. See Ward v. Mass. Health Research Inst., Inc.,

209 F.3d 29, 34 (1st Cir. 2000) (alteration in original) (quoting

Laurin v. Providence Hosp., 150 F.3d 52, 56-57 (1st Cir. 1998));

see also 42 U.S.C. § 12111(8); Me. Stat. tit. 5, § 4553(8-D).

An "essential function" can encompass more than the "technical

skills and experience" the position requires. Ward, 209 F.3d at

11An accommodation poses an "undue hardship" if it requires significant difficulty, financial or otherwise. See 29 C.F.R. § 1630.2(p)(1); Me. Rev. Stat. Ann. tit. 5, § 4553(9-B). Because Appellants stipulated that replacing the doors was not an undue hardship and do not argue otherwise on appeal, we do not discuss whether Appellants would have met their statutory burden of proving undue hardship.

- 21 - 34 (quoting Laurin, 150 F.3d at 57, 59 n.6); see also Grenier v.

Cyanamid Plastics, Inc., 70 F.3d 667, 674 (1st Cir. 1995) (citing

cases illustrating "essential functions" beyond the "job-related

functions").12

There was sufficient evidence that Burnett needed an

accommodation and that his requested accommodation was reasonable.

Burnett testified that, daily, he experienced difficulty entering

the clubhouse and once injured his wrist when doing so. The fact

that Burnett was able to enter the clubhouse (at the risk of bodily

injury) despite this difficulty and to perform the duties of an

associate once inside does not necessarily mean he did not require

an accommodation or that his requested accommodation was

unreasonable, as Appellants claim. A "'reasonable accommodation'

may include . . . making existing facilities used by employees

readily accessible to and usable by individuals with

disabilities." 42 U.S.C. § 12111(9)(A); see also Me. Stat. tit.

5, § 4553(9-A)(A). Moreover, the Supreme Court clarified in U.S.

12 Generally, an employer is required to engage in an interactive process with the employee with a disability to identify a reasonable accommodation. See generally Kezer v. Cent. Me. Med. Ctr., 40 A.3d 955, 963-64 (Me. 2012) (citing Me. Stat. tit. 5, § 4613(2)(B)(8)(b)); 29 C.F.R. § 1630.2(o)(3). Burnett argues that Appellants failed to engage in such a process with him. However, as Appellants correctly note in their reply, the jury did not make any findings related to the interactive process, nor do Appellants raise any challenges to the interactive process in their opening briefs. Therefore, we do not address whether Appellants were required to participate in the interactive process and if they did so. - 22 - Airways, Inc. v. Barnett that "[t]he [ADA] requires preferences in

the form of 'reasonable accommodations' that are needed for those

with disabilities to obtain the same workplace opportunities that

those without disabilities automatically enjoy." 535 U.S. 391,

397 (2002). Viewing the evidence in the light most favorable to

the verdict, see Suero-Algarín, 957 F.3d at 37, the evidence

presented shows that the existing doors were not "readily

accessible to and usable by" Burnett and that an accommodation was

necessary for Burnett to reach a level playing field as an employee

without a disability.13 Based on this evidence, a reasonable jury

could conclude that Appellants did in fact fail to reasonably

accommodate Burnett's disability.

3. Malice/Reckless Indifference

Appellants claim Burnett shouldn't have been awarded

punitive damages because there was insufficient evidence that they

acted with malice or reckless indifference towards him. Burnett

is entitled to punitive damages if he can show Appellants "engaged

in a discriminatory practice . . . with malice or with reckless

13 Citing Ward, 209 F.3d at 33, Appellants claim that to determine whether a reasonable accommodation is necessary, the first step is whether the employee can perform the essential functions of the job and, if he cannot, then the second step is whether any reasonable accommodation will enable him to perform the essential functions. Appellants' reliance on Ward is misplaced. We applied this two-step test in Ward to determine whether the plaintiff was a "qualified individual" within the meaning of the ADA, id. at 33-34, not whether he needed a reasonable accommodation. - 23 - indifference to [his] . . . rights." 42 U.S.C. § 1981a(b)(1); see

also Me. Stat. tit. 5, § 4613(2)(B)(8)(c). "[M]alice and reckless

indifference concern, not the employer's awareness that it is

discriminating, but the employer's knowledge that it is acting in

violation of federal law." McDonough v. City of Quincy, 452 F.3d

8, 24 (1st Cir. 2006); see also Kolstad v. Am. Dental Ass'n, 527

U.S. 526, 536 (1999) ("[A]n employer must at least discriminate in

the face of a perceived risk that its actions will violate federal

law to be liable in punitive damages."); Kopenga v. Davric Me.

Corp., 727 A.2d 906, 910 (Me. 1999) (noting that the MHRA's

"language is borrowed directly from federal law"). Burnett must

prove his entitlement to punitive damages by a preponderance of

the evidence under the ADA, see generally Jacques v. Clean-Up Grp.,

Inc., 96 F.3d 506, 511 (1st Cir. 1996) (noting that a plaintiff

must prove by a preponderance of the evidence the prima facie

elements of disability discrimination under the ADA), and by the

higher clear-and-convincing-evidence standard under the MHRA,

Haverly-Johndro v. Bath & Body Works, LLC, No. 1:13-CV-00108-JDL,

2014 WL 2944007, at *7 (D. Me. June 30, 2014) (citing Batchelder

v. Realty Res. Hosp., LLC, 914 A.2d 1116, 1124 (Me. 2007)).

Appellants bear the burden of proving they acted in good faith to

comply with the law. See generally Rodriguez-Torres v. Caribbean

Forms Mfr., Inc., 399 F.3d 52, 64 (1st Cir. 2005) (citing Romano,

233 F.3d at 670).

- 24 - There is sufficient evidence that Appellants acted with

reckless indifference towards Burnett's rights. Appellants failed

to follow up with Burnett three times regarding his accommodation

request: (1) after Burnett sent Robertshaw a request for an

accommodation in August 2014; (2) after Burnett reported his wrist

injury in October 2014; and (3) after Burnett filed an MHRC

complaint in June 2015 and met with Darsaoui thereafter to discuss

it. The last two incidents served as reminders to Appellants of

Burnett's pending request. And as a result of Appellants' failure

to respond to his request, Burnett experienced difficulty with the

doors every day for months until he resigned. Based on this

evidence, a reasonable jury could conclude that Appellants acted

"in the face of a perceived risk that its actions will violate

federal law." Kolstad, 527 U.S. at 536. See generally Arrieta-

Colon v. Wal-Mart P.R., Inc., 434 F.3d 75, 89-90 (1st Cir. 2006)

(holding that award of punitive damages was warranted in ADA claim

based on hostile work environment where evidence showed that former

employee reported harassment by his co-workers to several

supervisors, all of whom failed to take any action, showing

reckless indifference to employee's rights); Marrero v. Goya of

P.R., Inc., 304 F.3d 7, 29-30 (1st Cir. 2002) (concluding that

evidence that supervisors failed to act on employee's reports of

sexual harassment and that employer failed to take action until

after employee filed EEOC complaint supported jury's finding of

- 25 - reckless indifference); Bubar v. NorDx, No. 2:16-cv-00201-JHR, 2018

WL 715329, at *9 (D. Me. Feb. 4, 2018), appeal dismissed, No. 18-

1201, 2018 WL 4215609 (1st Cir. Sept. 4, 2018) (declining to strike

jury's punitive damages award under Maine law given evidence of

employer's repeated failure to respond to employee's complaints of

harassment and rejecting employer's good-faith compliance defense

absent evidence it implemented its written anti-discrimination

policies).

Appellants rely on testimony by Burnett (as he believed)

and Darsaoui that Darsaoui did not act with malice or reckless

indifference, but other evidence points to the contrary. The

record shows that Appellants never responded to Burnett's request

for an accommodation. Although Darsaoui testified that her "normal

practice" was to follow up with an employee "verbally" and recalled

"discussions going on regarding the doors," she admitted she could

not "recall having a specific conversation" with Burnett about his

request.14 When viewing the evidence in the light most favorable

to the verdict and drawing inferences in Burnett's favor, see

Suero-Algarín, 957 F.3d at 37, a reasonable jury could conclude

that Appellants did in fact fail to follow up with Burnett on his

request, thereby acting with reckless indifference.

14We note that Darsaoui's testimony about her "normal practice" contradicts her testimony and Burnett's testimony that during their meeting to discuss the MHRC complaint, Darsaoui acknowledged she had no specific knowledge of ADA compliance. - 26 - Appellants insist that they acted in good faith. As

evidence of their "good faith efforts" to comply with the law,

Appellants point to their anti-discrimination policy, Darsaoui's

admission that she was aware of her obligation to address every

request for an accommodation, her "consult[ation] with others to

determine the extent to which the company should investigate the

requested accommodation," her communication with Mooney regarding

whether the doors were ADA-compliant, and her understanding, based

on Mooney's response, that the doors were in fact ADA-compliant.

A showing of good faith to comply with the law, however, requires

more than "lip service." Arrieta-Colon, 434 F.3d at 89-90

(rejecting employer's claim that "any evidence of a good-faith

effort could shield it from liability" and instead "requir[ing] a

finding of a good-faith effort to comply with the law").

These examples are unavailing. First, Burnett's

employee handbook included an equal employment opportunity

statement15 and an open-door policy.16 Burnett followed the open-

The statement read, in part: "It is the policy and practice 15

of this Hotel to provide equal employment opportunities to all Associates of the Hotel without regard to race, color, age, religion, sex, creed, ancestry, sexual orientation, national origin, familial status, disability, or any other legally protected status."

The policy directed associates to "bring . . . to the 16

attention of either your supervisor, the general manager or to a member of our corporate staff" questions or suggestions about improving job performance, "guest services," or "the overall operation of the hotel." - 27 - door policy by contacting (acting office manager) Robertshaw to

request an accommodation, but to no avail from Robertshaw or any

corporate superiors. As such, a written policy, without more, "is

insufficient to insulate an employer from punitive damages

liability." Romano, 233 F.3d at 670 (rejecting employer's good-

faith defense absent evidence that employees were periodically

trained on anti-discrimination policies, that supervisors were

trained to prevent discrimination, or that anti-discrimination

policies were successfully followed). Second, Darsaoui's

admission of her obligation to take seriously a request for an

accommodation could lead a reasonable jury to conclude that

Appellants knew their failure to respond to Burnett's request was

a violation of the law. See Rodriguez-Torres, 399 F.3d at 64-65

(concluding that supervisor's testimony that he was aware of signs

posted throughout the facility regarding discrimination laws and

employees' rights could lead a reasonable jury to conclude he

understood that firing an employee on the basis of gender violated

federal law); see also E.E.O.C. v. Fed. Express Corp., 513 F.3d

360, 375-76 (4th Cir. 2008) (holding that evidence that senior

employees knew of disabled employee's requested accommodation and

were put on notice of his filing of a disability discrimination

charge with the EEOC, yet didn't take any steps to ensure his

supervisor consulted the company's human resources manual on the

ADA and its reasonable accommodations requirement or was

- 28 - adequately prepared to implement the company's ADA compliance

policy, was sufficient to support jury's finding that the employer

failed to engage in good-faith efforts to implement its ADA-

compliance policy requiring reasonable accommodations for disabled

employees, thus justifying a punitive damages award). Finally,

after confirming with Mooney that the doors were ADA-compliant

"when the building was built," Darsaoui did not inquire further

into the date the building was built and whether the doors remained

compliant at the time of Burnett's request. Ultimately, Burnett's

pleas simply went unanswered. In sum, there was adequate evidence

that Appellants acted with reckless indifference to support the

award for punitive damages.17

In conclusion, all three of Appellants' judgment-as-a-

matter-of-law claims must fail.

17 Appellants distinguish this case from two cases that are inapposite. See Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 148-49 (1st Cir. 2009) (finding no evidence of reckless indifference where employer deemed employee's requested accommodations unreasonable but "consideration was given -- whether or not correctly, but consideration was given -- by the [employer] to the relevant factors"); Marcano-Rivera v. Pueblo Int'l, Inc., 232 F.3d 245, 254 (1st Cir. 2000) ("[Employee and her husband] have not identified any facts that would support an award of punitive damages . . . [and] [t]he record is replete . . . with evidence that [the employer] instituted policies prohibiting any type of discrimination, trained its personnel to ensure equal treatment of employees with disabilities, and took good faith efforts to comply with the ADA."). - 29 - New Trial

On appeal, Appellants repeat three of the four claims of

error they raised below and, to refresh, these are: (1) the first

verdict regarding the employment relationship was inconsistent;

(2) they were prejudiced by the district court's ruling excluding

Mooney from testifying about the 2013/2014 testing of the doors;

and (3) they were prejudiced by two improper comments made by

Burnett's counsel during closing arguments. Burnett tells us the

district court's rulings were correct. We discuss each alleged

claim of error in turn.

Standard of Review

A district court may grant a new trial "only if the

verdict is against the law, against the weight of the credible

evidence, or tantamount to a miscarriage of justice." Sánchez v.

Foley, 972 F.3d 1, 16 (1st Cir. 2020) (internal quotation marks

and citation omitted); see also Fed. R. Civ. P. 59(a). We review

the denial of such a motion for abuse of discretion. See Rodríguez

v. Señor Frog's de la Isla, Inc., 642 F.3d 28, 37 (1st Cir. 2011).

In contrast, we review unpreserved claims for plain error, meaning

Appellants must show "(1) error which (2) is so clear that a trial

judge should act even without an objection and which (3) affects

the [appellants'] substantial rights." Bielunas, 621 F.3d at 78.

The third prong requires a "reasonable probability that, but for

the alleged error, the verdict would have been different."

- 30 - Teixeira v. Town of Coventry ex rel. Przybyla, 882 F.3d 13, 19

(1st Cir. 2018). We apply the plain error doctrine "stringently"

in civil cases and "will reverse only if the error [also (4)]

'seriously affected the fairness, integrity or public reputation

of the judicial proceedings.'" Gaydar v. Sociedad Instituto

Gineco-Quirurgico y Planificacion, 345 F.3d 15, 22-23 (1st Cir.

2003) (quoting Smith v. Kmart Corp., 177 F.3d 19, 26 (1st Cir.

1999)).

Discussion 1. Inconsistent Verdict Appellants' first claim of error is that the verdict

that Ocean Properties and AmeriPort were Burnett's single

integrated employer and joint employers was inconsistent because

Ocean Properties could only be liable under a single-integrated-

employer theory or joint-employer theory, but not both.18 "This

Circuit follows the iron-clad rule that a party 'waives [the issue

A quick pause to note that the district court found that 18

Appellants' reading of the verdict mischaracterized the special verdict form. The court stated: In fact, question three of the verdict form states: "[w]as Ocean Properties an employer or joint employer of Mr. Burnett?" In response, the jury checked "yes." Question four states: "[w]ere Ocean Properties and AmeriPort integrated employers of Ryan Burnett?" The jury checked "yes." In the Court's view, therefore, it is not clear based on the special interrogatories, agreed to by the parties, whether the jury found Ocean Properties to be an employer, a joint employer, an integrated employer, or all three.

- 31 - of] inconsistency if it fails to object after the verdict is read

and before the jury is dismissed.'" Wennik v. Polygram Grp.

Distrib., Inc., 304 F.3d 123, 130 (1st Cir. 2002) (alteration in

original) (quoting Toucet v. Mar. Overseas Corp., 991 F.2d 5, 8

(1st Cir. 1993)). "This is because the 'only efficient time to

cure the problem is after the jury announces its results and before

it is excused, and it is the responsibility of counsel to make

timely objection.'" Toucet, 991 F.2d at 8 (quoting Austin v.

Lincoln Equip. Assocs., 888 F.2d 934, 939 (1st Cir. 1989)).

When the jury returned with affirmative answers to

questions 3 and 4 on the special verdict form, Appellants had "both

an opportunity and an obligation" to raise their claim that the

verdict was allegedly inconsistent yet failed to do so. See

Trainor v. HEI Hosp., LLC, 699 F.3d 19, 33–34 (1st Cir. 2012)

(deeming inconsistent verdict claim waived where party failed to

object when jury returned verdict); Torres-Arroyo v. Rullán, 436

F.3d 1, 6 (1st Cir. 2006) (deeming inconsistent verdict claim

waived where party failed to object after jury announced verdict

but before jury was discharged). Ocean Properties does not dispute

that it did not raise this argument before the jury was discharged.

Therefore, Ocean Properties has waived its right to challenge the

alleged inconsistency of the verdict. See Uphoff Figueroa v.

Alejandro, 597 F.3d 423, 435 n.15 (1st Cir. 2010) (deeming

- 32 - inconsistent verdict claim waived where appellant "does not

dispute that he did not object before the jury was discharged").

Indeed, Ocean Properties engaged in a second waiver when

it did not object to the district judge's proposed response to the

jurors' note regarding jury interrogatory questions 3 and 4. See

Toucet, 991 F.2d at 9 (noting that appellant had "ample opportunity

to 'portend possible verdict inconsistency'" and "should have been

alerted by the use of the special verdict form alone" (quoting

Austin, 888 F.2d at 939)). If Ocean Properties thought there was

any inconsistency, it should have spoken up then.19

2. Mooney's Testimony

Appellants' second claim of error is the district

court's ruling excluding Mooney from testifying about the

2013/2014 testing of the doors because Mooney had already been

listed as a trial witness in discovery and his testimony was

essential to Appellants' defense that they reasonably accommodated

19Even if we were to bypass waiver and review for plain error, Ocean Properties still would not prevail. See Int'l Floor Crafts, Inc. v. Dziemit, 420 F. App'x 6, 14 (1st Cir. 2011) (finding inconsistent verdict argument waived for failure to timely object and, at most, reviewing only for plain error). Ocean Properties cannot show any error seriously affected the fairness, integrity, or public reputation of the trial when the record shows it fully participated in discussions concerning the verdict form, see supra note 18 (noting the parties agreed to the special interrogatories), and, after the first verdict was reached, the jury had not yet been discharged, which means Ocean Properties was afforded ample opportunity to challenge the verdict. Beyond jury deliberations, the record shows the trial was conducted fairly and the district judge was impartial. - 33 - Burnett because the doors were ADA-compliant. "If a party fails

to provide information or identify a witness as required by Rule

26(a) or (e), the party is not allowed to use that information or

witness to supply evidence . . . at a trial, unless the

failure . . . is harmless."20 Fed. R. Civ. P. 37(c)(1). When

reviewing a district court's decision to exclude evidence as a

Rule 37 sanction, we consider various factors, through an abuse of

discretion lens, see Lawes v. CSA Architects and Eng'rs LLP, 963

F.3d 72, 90 (1st Cir. 2020), including "the sanctioned party's

justification for the late disclosure; the opponent-party's

ability to overcome its adverse effects (i.e., harmlessness); the

history of the litigation; the late disclosure's impact on the

district court's docket; and the sanctioned party's need for the

precluded evidence." Harriman v. Hancock Cnty., 627 F.3d 22, 30

(1st Cir. 2010) (citing Esposito v. Home Depot U.S.A., Inc., 590

20 Rule 26(a)(1)(A) states, pertinently: "[A] party must, without awaiting a discovery request, provide to the other parties . . . the name and, if known, the address and telephone number of each individual likely to have discoverable information--along with the subjects of that information--that the disclosing party may use to support its claims or defenses." Rule 26(e)(1) states: "A party who has made a disclosure under Rule 26(a)--or who has responded to an interrogatory, request for production or request for admission--must supplement or correct its disclosure or response . . . in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." - 34 - F.3d 72, 76 (1st Cir. 2009)) (applying the Esposito factors to

non-expert, Rule 26(a) disclosure requirements).

At the outset, Appellants' initial disclosures didn't

include all discoverable information Mooney had, as required by

Rule 26(a). Appellants had disclosed that the doors were tested

and deemed ADA-compliant when the building was built (recall that

this was Mooney's response to Darsaoui's e-mail, and that e-mail

was timely disclosed to Burnett). However, Appellants waited until

the eve of trial to disclose that Mooney tested the doors in

2013/2014; in fact, Appellants conceded below that they should

have disclosed this information sooner. As such, the Esposito

factors mainly cut against Appellants. According to Appellants,

the excluded testimony was instrumental to their defense to

establish that they "reasonably accommodated Burnett's disability

by supplying him with handicapped accessible doors," but

"[r]eversals based on a sanctioned party's need for precluded

evidence are rare, and seldom based on that factor alone."

Harriman, 627 F.3d at 32 (noting that reversal was warranted in

one case where "the parties agreed that preclusion was tantamount

to dismissal").

Citing Federal Rule of Civil Procedure 26(e), Appellants

argue that Burnett was not harmed by the late disclosure because

Mooney was listed as a trial witness by both parties and Burnett

already knew the doors were tested. But, again, Appellants had

- 35 - only disclosed to Burnett that the doors were tested and found

compliant at the time the building was built, not once again in

2013/2014.

Appellants now minimize their discovery violation as a

"shortcoming . . . attributable solely to [Burnett's] decision not

to depose Mooney or further pursue during discovery information

related to Mooney's work." This attempt to blame Burnett is

unsuccessful because the Federal Rules required Appellants to

timely disclose the information and Appellants' failure to do so

prevented Burnett from fully preparing his case (i.e., designating

an expert and testing the doors). See Esposito, 590 F.3d at 78

(noting that "the rules require formal disclosure for a reason:

without it, parties . . . may be hindered in their ability to

prepare effectively for trial"). Moreover, because Appellants had

not disclosed Mooney's recent testing of the doors, Burnett could

not have been reasonably expected to depose Mooney or pursue

discovery concerning Mooney's work. Appellants further claim they

were prejudiced because they had informed the jury during opening

statements that Mooney was going to testify about the 2013/2014

testing of the doors, but it was Appellants' voluntary opening

statement revealing surprising information which prompted

Burnett's objection and which triggered the district court's

discretionary ruling. Having placed themselves in this

foreseeable position, Appellants cannot now complain of the

- 36 - consequences. Lastly, Appellants were at liberty to still call

Mooney as a witness as long as they did not question him about his

2013/2014 testing of the doors.

In sum, the district court's decision to exclude the

testimony was not an abuse of discretion, particularly when this

was the "baseline" sanction and the district court did not impose

additional sanctions. Santiago-Díaz v. Laboratorio Clínico Y De

Referencia Del Este, 456 F.3d 272, 276 (1st Cir. 2006).

3. Closing Arguments The third claim of error alleged by Appellants, as best

we can discern, is that the district court failed to grant a new

trial based on two comments made by Burnett's counsel during

closing arguments. According to Appellants, the verdict was so

contrary to the weight of the evidence, there is little doubt the

comments poisoned the jury. We discuss each challenged comment in

order.

a. Golden Rule

The first challenged comment is: For that period of two years, he dreaded it not just the days he would go, but can you imagine -- I mean sometimes we all dread going to work, you know, after a weekend or something, but for him it was that much worse because it just was a reminder every workday that he’s disabled, people are looking at me, I feel ashamed, ignored and like I don’t

- 37 - matter, and that’s exactly why we’re asking you to award damages . . . .21

As mentioned, Appellants preserved this challenge at trial by

interrupting counsel to lodge a "Golden Rule" (defined

momentarily) objection, which the district court overruled.

Appellants now argue that this comment violated the

Golden Rule and was so prejudicial that it amounted to reversible

error. The "Golden Rule" prohibits attorneys from suggesting that

jurors place themselves in the shoes of the plaintiff. See

Granfield v. CSX Transp., Inc., 597 F.3d 474, 491 (1st Cir. 2010).

Drawing from the maxim to "do unto others as you would have them

do unto you," the Golden Rule prohibits jurors from treating

plaintiffs the way jurors would want to be treated. This practice

"has been 'universally condemned because it encourages the jury to

depart from neutrality and to decide the case on the basis of

personal interest and bias rather than on evidence.'" Id. (quoting

Forrestal v. Magendantz, 848 F.2d 303, 309 (1st Cir. 1988)).

Though prohibited, Golden Rule arguments are not per se reversible

error. See id. at 491. We consider "the totality of the

circumstances, which '[f]irst and foremost [recognizes] the

deference due the district court's judgment,'" id. at 490-91

21Appellants do not quote the objected-to language in their brief but instead cite page 553 of the Appendix, which contains this language. This is also the same language Appellants challenged in their post-trial motion for a new trial. - 38 - (alterations in original) (quoting Forrestal, 848 F.2d at 309), to

assess the effect of counsel's comment. Other factors we consider

in our totality-of-the-circumstances analysis include: "(1) the

nature of the comment[]; (2) [its] frequency; (3) [its] possible

relevance to the real issues before the jury; (4) the manner in

which the parties and the court treated the comment[]; (5) the

strength of the case; and (6) the verdict itself." Id. at 490.

As a reminder, we review for abuse of discretion. See Rodríguez,

642 F.3d at 37.

We agree with Appellants that counsel's comment was an

inappropriate violation of the Golden Rule. "There can be little

doubt that suggesting to the jury that it put itself in the shoes

of a plaintiff to determine damages is improper argument."

Forrestal, 848 F.2d at 309 (directing jurors to place themselves

in the shoes of plaintiff or his parents and ask themselves "if

[plaintiff] were my child, what amount of money would I accept for

my child to have [plaintiff's] injuries and afflictions" violated

the Golden Rule); see also Granfield, 597 F.3d at 491 (asking

jurors to walk in plaintiff's shoes "for just a couple of hours

while you're thinking about his case" violated the Golden Rule).

Nevertheless, the totality of the circumstances does not

warrant reversal. Although the nature of the comment spoke to a

relevant trial issue, i.e., Burnett's pain and suffering damage

claim, we note that the improper comment was brief, and counsel

- 39 - did not again violate the Golden Rule after Appellants' objection.

See Granfield, 597 F.3d at 490-91. Additionally, the district

court's standard instructions that arguments by counsel are not

evidence mitigated any prejudicial effect. See id. at 491. We

have noted that these standard instructions can "dispel any

prejudice from improper remarks." United States v. Ayala-García,

574 F.3d 5, 21 (1st Cir. 2009); see also Granfield, 597 F.3d at

491 (holding that the district court's instructions "adequately

dealt with" counsel's closing arguments that violated the Golden

Rule). Lastly, we consider the strength of the case and the

verdict itself. See Granfield, 597 F.3d at 490. Since Burnett

was the primary witness, the jury, having returned a verdict in

his favor, must have found him credible. As the district judge

noted, the jury "really, really liked Mr. Burnett . . . . He was

self-effacing. He was not trying to gild the [lily]." Therefore,

we can't say that counsel's comment swayed the verdict. See

Forrestal, 848 F.3d at 310 ("[S]ince the jury here obviously

believed [plaintiff's expert witness], this was not a close case.

[The expert's] testimony practically compelled a verdict in favor

of plaintiff."). To sum up, counsel's comment was improper, but

when viewed from the totality of the circumstances vantage, it did

not warrant reversal; therefore, the district court did not abuse

its discretion.

- 40 - b. Suggested Damages

The second challenged comment is:

Maybe it was just someone overlooked something, but how it felt to Ryan is why we're here and the number that you put on that, there's nothing specific that I can tell you, which I do recognize makes your job difficult, but what I can say is that we think it's significant. Do we think it's, you know, 20,000, 50,000? I don't know. I think it's more significant, but it's for you to decide exactly what number you would put on this period of time in his life, this [sic] two years, little over two years that he suffered this way every day unnecessarily, again because there's a law that says you can't do this and they broke that law. (Emphasis added.)

Appellants concede they did not preserve this challenge at trial.

Instead, here's what happened below: The district court

spontaneously raised the issue of suggested damages at sidebar at

the conclusion of closing arguments. It admonished Burnett's

counsel and offered to give a curative instruction, which

Appellants turned down to avoid, as they put it, "calling attention

to it." Appellants, who had failed to make a contemporaneous

objection to counsel's comment, moved for a mistrial but instead

of requesting a ruling, they asked the district court to reserve

ruling until the jury reached a verdict. Appellants decided that

if the jury returned a verdict of $20,000 or $50,000 in

compensatory damages, they would argue the jury was unduly

influenced by counsel's comment. Before the jury retired to

- 41 - deliberate, the district court instructed them that their verdict

must be based on the evidence and the law, which echoed its earlier

standard final instructions that arguments by attorneys are not

evidence, as well as its preliminary instructions that closing

arguments are not evidence. When the jury returned a verdict for

$150,000, Appellants renewed their motion for a mistrial, which

was denied.

On appeal, Appellants argue that this comment amounted

to plain error.22 Unlike in many state courts and in other federal

circuits, attorneys in the First Circuit are not permitted to

suggest to the jury how much to award in damages.23 Therefore,

it's clear that Appellants have demonstrated that Burnett plainly

erred. See Bielunas, 621 F.3d at 78. This case turns on whether

Appellants can satisfy the third and fourth prongs, which, as a

22Appellants try to excuse their failure to contemporaneously object by saying: "(1) the issue was raised immediately after closing arguments; (2) the trial court recognized that raising the objection during closing argument only would have underscored the effect of the erroneous comments; and (3) [Appellants] moved for a mistrial before the jury began deliberations." However, Appellants don't explain why they couldn't have asked to approach the bench, something they had been allowed to do throughout the trial, and make an objection without the jury hearing it. Accordingly, our review is for plain error. See United States v. Zarauskas, 814 F.3d 509, 517 (1st Cir. 2016) (citing United States v. Sepulveda, 15 F.3d 1161, 1187 (1st Cir. 1993)) (reviewing for plain error where no contemporaneous objections were made to challenged comments in closing arguments).

23See Rodríguez, 642 F.3d at 37 & n.3; Bielunas, 621 F.3d at 78-79 (collecting cases and noting the First Circuit is quite out of step in this regard). - 42 - reminder, are (3) whether the error affects Appellants'

substantial rights (this requires a reasonable probability that,

if it wasn't for the alleged error, the verdict would have been

different), and (4) whether it seriously affected the fairness,

integrity, or public reputation of the trial. See id.

Appellants have failed to show there is a reasonable

probability the jury would have returned a different damage award

if counsel had not suggested any ballpark figure. As a result,

Appellants have not shown prejudice. See id. at 79 ("[P]lain error

requires . . . [that] the mistake must also be prejudicial in a

sense that there is a reasonable probability (not just a

theoretical possibility) that it affected the result, and the

result must be unjust, too." (citing United States v. Marcus, 560

U.S. 258 (2010); United States v. Padilla, 415 F.3d 211, 225 (1st

Cir. 2005) (Boudin, C.J., concurring) (en banc))). Appellants

point out that the awarded damages "are precisely three times" or

"significantly more than" what counsel suggested. Though

mathematically correct, this point does not advance Appellants'

argument that counsel's remarks prejudiced the jury. We might

reach a different conclusion -- though we do not decide this -- if

the jury had returned an award closer to $20,000 or $50,000 -- a

point not lost on Appellants based on their wait-and-see strategy

below. See id. ("That the jury found Bielunas 15% comparatively

- 43 - negligent as opposed to the 5% his lawyer had argued for suggests

that the jury did not blindly adopt counsel's analysis.").

Even if Appellants had satisfied the third prong,

Appellants have failed to show the error also seriously affected

the fairness, integrity, or public reputation of the trial. At no

point during closing arguments themselves did Appellants object on

this basis, even when prompted by the district court at sidebar.

What's more, Appellants declined the district court's offer for a

curative instruction, even after Burnett's counsel acknowledged

her mistake, apologized, and suggested the jury be given a throw-

plaintiff's-counsel-under-the-bus-admonishment instruction. Against this

backdrop, we cannot find that counsel's comment so swayed the jury

as to unfairly prejudice Appellants, nor can we discern prejudice

based on the weight of the credible evidence before the jury

because, as already discussed, the evidence supported the verdict.

Moreover, the district court's standard instructions,

which were reiterated to the jury right before deliberations,

helped mitigate any prejudice to Appellants. See id. at 79-80.

We highlight that Burnett's counsel's comment pales in comparison

to counsel's comments in Bielunas. See id. at 77. There, counsel

suggested a total damages figure in opening statements, then

increased this total figure in closing arguments, and gave itemized

figures per year (of his client's life expectancy) and category

(past and future "pain and suffering," "mental anguish," and

- 44 - "disability and inconvenience"). Id. at 77, 78 n.4. Still, we

held that counsel's comments did not amount to plain error given

that the appellant did not object or request a curative instruction

and the district court informed the jury twice that arguments by

lawyers were not considered evidence. Id. at 79-80. Lastly, as

we discuss below, Appellants do not demonstrate the award was

unjust. Accordingly, Appellants failed to satisfy the fourth and

final prong, and therefore their claim does not pass the plain

error test.24

In conclusion, Appellants' new-trial claims also fail.

Remittitur

As a parting shot, Appellants reiterate their claim for

remittitur on appeal, which is that there was no evidence that

Ocean Properties had any employees or that AmeriPort had more than

100 employees, and therefore the district court was required to

reduce the total award to $50,000, consistent with the

corresponding statutory limit. See 42 U.S.C. § 1981a(b)(3)(A);

Me. Stat. tit. 5, § 4613(2)(B)(8)(e)(i). Appellants ask us to

24In a last-ditch effort, Appellants also seem to argue that the comments made during closing were "in combination . . . so prejudicial" as to warrant a new trial. Because Appellants make no detailed analysis as to why the alleged error is cumulative, we consider this argument waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[W]e see no reason to abandon the settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived."). - 45 - remand with instructions for the district court to reduce the total

award to $50,000.

We review the denial of a motion for remittitur for abuse

of discretion. Sánchez, 972 F.3d at 17. Given the district

court's "greater familiarity with local community standards and

with the witnesses' demeanor at the trial,'" we afford its decision

"'broad discretion." Aponte-Rivera v. DHL Sols. (USA), Inc., 650

F.3d 803, 810 (1st Cir. 2011) (quoting Rodríguez-García v. Miranda-

Marín, 610 F.3d 756, 773 (1st Cir. 2010)). "Where the trial court

already has invoked its discretion in granting a remittitur, the

scope of review is even narrower than usual." Id. at 810-11

(quoting Sanchez v. P.R. Oil Co., 37 F.3d 712, 724 (1st Cir.

1994)). Appellants "must show, therefore, that the reduced figure

remains so extravagant as to shock the appellate conscience." P.R.

Oil Co., 37 F.3d at 724 (citing Ruiz v. Gonzalez Caraballo, 929

F.2d 31, 35 (1st Cir. 1991)).

Appellants have failed to show the reduced damages award

shocks the conscience. To the contrary, Appellants make no attempt

to argue that the total award was unconscionable; instead, they

argue that the award should be reduced because the evidence didn't

support the jury's finding that Burnett's employer had over 500

employees (question 5 on the special verdict form). Appellants

- 46 - repeat their argument that "at trial there was absolutely no

evidence of an employer-employee relationship between [Appellants]

and the alleged employees of those hotels, and no evidence of any

ownership interest over those hotels." To refresh, Appellants are

referring to the forty-five hotels and resorts marketed as "Ocean

Properties Hotels, Resorts & Affiliates." This argument is related

to Appellants' judgment-as-a-matter-of-law argument that there was

no interrelationship between Ocean Properties and AmeriPort

(which, as we already discussed, see supra pp. 12-21, was

contradicted by the evidence), though slightly different (here,

Appellants are challenging the interrelationship to the Ocean

Properties Hotels, Resorts & Affiliates consortium). However,

this argument is also contradicted by the record, which shows that

all forty-five hotels and resorts were marketed on the same

website, ophotels.com, and a number of them used the same Ocean

Properties employee handbook, and that Darsaoui (who, as

discussed, was an AmeriPort employee who also did work for Ocean

Properties) processed payroll for two additional entities in the

consortium, one of which was located in the same building as the

clubhouse. All of this evidence supports the jury's finding that

Burnett's employer had more than 500 employees. Accordingly, we

find no abuse of discretion.

But wait, Appellants point to a case they claim should

be dispositive here. In Escribano-Reyes v. Professional Hepa

- 47 - Certificate Corp., a summary judgment case, we stated that "[t]he

employment relationship is most readily demonstrated by [an]

individual's appearance on the employer's payroll," 817 F.3d 380,

388 (1st Cir. 2016) (second alteration in original) (quoting

Walters v. Metro. Educ. Enters., Inc., 519 U.S. 202, 206 (1997)),

and given this pronouncement, Appellants say the district court

should have applied the common law agency test to determine who

counts as an "employee" within the meaning of the ADA. But

Appellants overlook the remainder of our discussion because a

couple of sentences after the quoted passage, we clarified that

"[p]ayroll records are not dispositive" and "the ultimate

touchstone" is the existence of an "employment relationship[]."

Id. at 388-89 (citations omitted). In a footnote, Appellants also

claim that "[b]ecause Burnett failed to produce competent evidence

that OPL [Ocean Properties] employed anyone other than, allegedly,

him, Burnett's claim against that entity failed as a matter of

law." These arguments, which are iterations of Appellants'

judgment-as-a-matter-of-law arguments made below, are misplaced

and unsupported by the record.25

25 Ocean Properties argued in its Rule 50(b), post-trial motion for judgment as a matter of law that Burnett "failed to put on any proof at trial that OPL had any employees; therefore, he failed to show that Ocean Properties met the fifteen-employee requirement for application of Title VII and the ADA." The district court considered the argument waived because it was not raised in the parties' Rule 50(a) motion. On the merits, discussing Escribano and the common law agency test, the district - 48 - In sum, Appellants' remittitur claim also fails.

CONCLUSION We affirm in all respects, with costs to Burnett.

court found that Burnett failed to establish that Ocean Properties met the fifteen-employee minimum. The district court's analysis did not end there, however, as it then aggregated the number of employees at AmeriPort and Ocean Properties based on evidence of the interrelationship of the parties to conclude that "the jurisdictional threshold of fifteen or more employees has been met as to Ocean Properties through the principle of aggregation." - 49 -