Kezer v. Cent. Maine Med. Ctr.

• Decision Date: 05 April 2012
• Docket Number: No. Pen–11–187.,Pen–11–187.
• Citation: 26 A.D. Cases 25,2012 ME 54,40 A.3d 955
• Parties: Edward KEZER v. CENTRAL MAINE MEDICAL CENTER.
• Court: Maine Supreme Court

2012 ME 54

26 A.D. Cases 25

40 A.3d 955

Edward KEZER

v.CENTRAL MAINE MEDICAL CENTER.

No. Pen–11–187.

Supreme Judicial Court of Maine.

Argued: Jan. 11, 2012.Decided: April 5, 2012.

Arthur J. Greif, Esq. (orally), and Julie D. Farr, Esq., Gilbert & Greif, P.A., Bangor, for appellant Edward A. Kezer.

Michael R. Poulin, Esq. (orally), Skelton, Taintor & Abbott, Auburn, on the briefs, for appellee Central Maine Medical Center.

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.

MEAD, J.

[¶ 1] Edward Kezer appeals from the judgment entered in the Superior Court (Penobscot County, Murphy, J.) following a jury trial at which the jury found that Central Maine Medical Center (CMMC) had taken adverse employment action against Kezer in violation of the Maine Human Rights Act (MHRA), but had not failed to provide him with reasonable accommodations for his hearing impairment or his shoulder injury. Kezer argues that (1) the court erred in instructing the jury on the statute of limitations; (2) the court should have instructed the jury that the MHRA requires an employer to engage in a good faith consultation with a disabled employee to identify reasonable accommodations for the employee's disability; and (3) the court abused its discretion by awarding attorney fees less than the amount Kezer requested. We affirm the judgment.

I. BACKGROUND

A. Factual Background

[¶ 2] We view the evidence admitted at trial in the light most favorable to the jury's verdict. Jacob v. Kippax, 2011 ME 1, ¶ 2, 10 A.3d 1159.

[¶ 3] CMMC hired Edward Kezer in 2004 to work as a nurse at the single-stay unit (SSU) caring for cardiovascular surgery patients. CMMC was aware that Kezer has functional hearing loss: he was born with no hearing in his left ear and has trouble hearing certain sounds in his right ear. As a nurse at the SSU, Kezer was required to respond to various patient alarms.

[¶ 4] Around January 2005, some of Kezer's coworkers expressed concerns to Anne Fereday, CMMC's director of cardiovascular services, that Kezer was having trouble responding to his patients' alarms. Fereday met with Kezer in mid-January 2005 to discuss the issue. Kezer assured her that he did not have trouble hearing his alarms. During a second meeting in early February 2005 with Fereday and other CMMC employees, Kezer stated that his hearing was a “non-issue” and he was able to respond to his own alarms.

[¶ 5] Later, on August 16, 2005, Kezer injured his left shoulder while working at CMMC. Kezer was placed on work restrictions that limited him, among other things, to lifting and carrying no more than thirty pounds. On September 26, 2005, Kezer's shoulder injury was reevaluated and his doctor recommended that Kezer not push, pull, or lift more than ten pounds. Kezer's coworkers were made aware of his work restrictions and told him to let them know if he needed assistance lifting or moving patients.

[¶ 6] On October 24, 2005, after CMMC suggested that Kezer alter his work schedule to avoid reinjuring his shoulder, Kezer sent the employee health department a letter stating that his physician had cleared him to “return to regular duty” and that his “left shoulder ha[d] healed.” Attached to the letter was a form that his doctor had signed that stated Kezer “may work to tolerance.” As a result, Kezer's schedule remained unaltered.

[¶ 7] A few months later, in early January 2006, SSU manager Lori Whitaker drafted a performance improvement plan for Kezer after receiving negative reports about Kezer's job performance. The plan addressed numerous alleged deficiencies in Kezer's job performance and recommended corrective actions CMMC could take, including termination of Kezer's employment. Kezer met with Whitaker around January 9, 2006, to discuss the plan; he disagreed that there was any deficiency in his job performance. Shortly thereafter, Whitaker called Kezer and offered him a position working as a research assistant for a Dr. Burgess at CMMC. Less than twenty-four hours later, however, the offer was withdrawn without explanation. On January 10, 2006, Kezer left CMMC on medical leave due to pain in his left shoulder and work related stress.

[¶ 8] Kezer filed a discrimination complaint against CMMC with the Maine Human Rights Commission around February 7, 2006. CMMC received notice of the complaint on February 14, 2006. Two days later, Kezer's healthcare providers cleared him to return to work. On that same day, February 16, 2006, Kezer had a phone conversation with Clark Phinney, CMMC's employee health manager, in which Phinney told Kezer there were no available positions for him that could accommodate his work restrictions related to his left shoulder.¹ However, near the end of February 2006, Kezer returned to work at CMMC in a quality assurance position. Kezer learned from an employee in the quality assurance department that the position had been open for at least two years.

[¶ 9] On March 7, 2006, Kezer had surgery on his left shoulder. Kezer did not return to work at CMMC after his surgery, and on March 30, 2006, he resigned from CMMC.

B. Superior Court Proceedings

[¶ 10] Kezer filed a complaint against CMMC in the Superior Court on October 30, 2007, alleging employment discrimination based on numerous factual allegations. At trial, Kezer maintained that CMMC failed to accommodate his shoulder injury and his hearing impairment. He testified that his coworkers intentionally refused to provide him with support in responding to his alarms when he was unable to hear them or when he was busy with other patients. He also alleged that despite his physical limitations due to his shoulder injury, he was not given light-duty assignments and was assigned to heavy, debilitated patients, rather than to patients who required less physical care.

[¶ 11] Kezer testified that on numerous occasions he requested that he be provided with assistance in responding to his alarms and be given light-duty assignments. Specifically, he maintained that in the seventy days prior to leaving CMMC on medical leave on January 10, 2006, he made repeated requests for accommodations, none of which were granted.

[¶ 12] Later, Kezer argued that the jury should be instructed that each denial of a renewed request for a reasonable accommodation triggered a new statute of limitations period, consistent with his interpretation of Tobin v. Liberty Mutual Insurance Co., 553 F.3d 121 (1st Cir.2009). The court disagreed and instead structured the statute of limitations instruction on our decision in LePage v. Bath Iron Works Corp., 2006 ME 130, 909 A.2d 629. As a result, the jury received the following instruction on the statute of limitations issue:

Under Maine law a lawsuit must be brought no later than two years after the event of discrimination that is complained of. The defendant has the burden of proof in asserting a statute of limitations defense. The Court is asking you to consider the statute of limitations as an affirmative defense in this case because there are issues of fact concerning whether the defendant's alleged failures to accommodate both Mr. Kezer's shoulder and hearing conditions occurred within the applicable statutory period. In this case the lawsuit was filed on October 31, 2007,² and therefore, you must determine whether the alleged discriminatory events occurred before October 31, 2005. Under Maine law the plaintiff cannot recover for discriminatory events that occurred before that date.

In Maine and for purposes of this case an event occurs when an employee ... receives unambiguous and authoritative notice that the employer will not provide the requested accommodations. [CMMC] must prove by a preponderance of the evidence that Mr. Kezer had unambiguous and authoritative notice before October 31, 2005, that his requested accommodations for his hearing disability or his shoulder condition would not be provided. You must consider the statute of limitations issues claims as to the hearing conditions separately from this issue as it pertains to the shoulder condition. If you find that CMMC proved by a preponderance of the evidence that Mr. Kezer was provided such a notice for either or [both] of his failure to accommodate claims, one or both of the claims are barred [by the] statute of limitations.

[¶ 13] Kezer also requested that the jury be instructed that, pursuant to the MHRA, an employer must engage in an interactive process with a disabled employee in a good faith effort to identify and make reasonable accommodations for the employee's disability. The court declined to do so, reasoning that the interactive process requirement was based on federal law rather than the MHRA.

[¶ 14] Ultimately, three questions concerning CMMC's liability were submitted to the jury on the jury verdict form. On the first question, the jury found that CMMC had taken adverse employment action against Kezer in violation of the MHRA by either denying him the research position with Dr. Burgess in January 2006 or by refusing to return him to work in February 2006. The jury awarded Kezer $5000 in compensatory damages as a result of this finding. On question two, all nine jurors found that CMMC had not failed to accommodate Kezer's hearing disability. On question three, the jury found six to three that CMMC had not failed to accommodate Kezer's shoulder injury. Kezer did not object to the structure of questions two and three as presented to the jury and did not request or propose a verdict form that would have clarified whether CMMC prevailed on its statute of limitations defense or whether Kezer failed to sustain his burden of proof on his reasonable accommodation claims.

[¶ 15] Later, after a hearing on back pay and attorney fees, the court awarded Kezer $45,000 in attorney fees and $4399.77 in expenses. Although Kezer had requested $119,702.77 in attorney fees and expenses, the court concluded that in light of Kezer's limited degree of success in relation to the...