USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-2209

RICHARD JACQUES,

Plaintiff - Appellant,

v.

CLEAN-UP GROUP, INC.,

Defendant - Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Eugene W. Beaulieu, U.S. Magistrate Judge]

_____________________

____________________

Before

Torruella, Chief Judge,

___________

Cyr and Boudin, Circuit Judges.

______________

_____________________

Eric M. Mehnert, with whom Hawkes & Mehnert was on brief for
_______________
________________
appellant.

John S. Bobrowiecki, Jr., with whom Farris, Susi, Heselton &

________________________
________________________
Ladd, P.A. was on brief for appellee.
__________

____________________

September 19, 1996

____________________

TORRUELLA, Chief Judge.

TORRUELLA, Chief Judge.
_______________________

Appellant

Richard

Jacques

("Jacques"),

person

with

epilepsy,

brought

suit

against

Appellee Clean-Up Group, Inc. ("the Group") seeking damages under

the

Americans with Disabilities Act ("the ADA" or "the Act"), 42

U.S.C.

12101 et seq.
______

The jury returned a verdict in favor the

Group and,

subsequently,

motion for

judgment as a matter of law pursuant to Federal Rules

of Civil

the

district

court

denied

Jacques'

Procedure 50 and upheld the jury verdict.

Before us is

Jacques' appeal of the decision and judgment below.

Jacques also

appeals from an evidentiary ruling.

I.
I.

Jacques argues

support the jury

should

BACKGROUND
BACKGROUND

that there is

verdict and that

have granted his

We affirm.

insufficient evidence to

the district court

motion for judgment as

therefore

a matter of law

pursuant to Fed. R.

denial

Civ. P. 50(a) & (b).

We

review the court's

of the Rule 50 motion de novo, examining

_______

the light most

favorable to

the nonmovant, the

the evidence in

Group.

Golden
______

Rule Ins. Co. v. Atallah, 45 F.3d 512, 516 (1st Cir. 1995). "[W]e
_____________
_______

may not consider the

credibility of witnesses, resolve conflicts

in testimony, or evaluate the weight of the evidence."

v. Adams,
_____

denial

829 F.2d 196,

of the

motion

200 (1st Cir.

is

warranted

1987).

"only

Reversal

if

the

inferences 'point so strongly and overwhelmingly in

against

Atallah,
_______

45

F.3d

at

and

favor of the

jury could not have reached

party."

of the

facts

movant' that a reasonable

that

Wagenmann
_________

a verdict

516

(quoting

Acevedo-D az v. Aponte, 1 F.3d 62, 66 (1st Cir. 1993)).

____________
______

Thus, we

-2-

present the facts in the light most favorable to the Group as the

jury could have found them.

Clean-Up Group,

Inc., a Maine corporation,

is a small

cleaning company, located approximately two-and-a-half miles from

Jacques' residence.

purpose cleaning

Jacques was employed by the Group as an all-

person between

November 6, 1993,

and February

1994.

Because of

his epilepsy,

operate a motor vehicle in Maine.

Jacques

is not

permitted to

Throughout his employment, the

Group had regularly assigned Jacques to more than forty hours per

week

at

various

job

sites

conscientious and good

worker.

assignments by walking, riding

the

Group's

vans, which

working as a crew, and

site.

The

considered

Jacques reported

Jacques

February

was

laid off

assigned

24, the

to

were

routinely

be

in vans

were

used when

driven to

Group had never provided

from

the Group

was dissolved.

Group offered

when

Jacques a

to his various

his bicycle, or riding in

its employees under other circumstances. On

Jacques was

him

one of

employees,

equipment had to be transported to

Employees riding

Group's office.

and

a job

and from

the

transportation to

February

the crew

few

19,

1994,

to

which

days later,

on

full-time assignment

cleaning the

Kennebec Ice Arena

three miles from Jacques'

the

only one

of

his crew

Although he had never

past,

(the "Arena"), which

home.

to

Of those laid off,

be offered

requested a ride to

another

was about

Jacques was

assignment.

an assignment in

the

because he could not drive and the Arena was approximately

three miles

from his

home, Jacques asked

-3-

the Group's

manager,

Chris Buck ("Buck"), whether he would be catching a ride from the

Group's headquarters or whether

on its way to the job site.

to arrange for

response

his own

a company van would pick

Buck replied that Jacques would have

transportation to the

Arena.

Jacques'

was that he would inquire into bus routes and schedules

and would telephone Buck right back.

Upon gathering the relevant

information,

Jacques telephoned

could take a

bus and arrive at the Arena

a.m. and 10:30 a.m.

that time

start

him up

of 8:00

completed prior to,

he would find

informed him

that he

sometime between 10:00

In reply, Buck informed him that starting at

was unacceptable.

time

Buck and

a.m.

The Arena

as

certain public

at least, 9:30 a.m.

someone else

assignment required

for the Arena

areas

had

to be

Buck told Jacques that

assignment.

Another

employee, who the evidence

shows did not have a

disability, was

subsequently assigned to that assignment.

Jacques

failure to

assigned

Woolen

was

perform

not

dismissed

the Arena

from the

assignment

Group

for

and continued

his

to

be

to work

seven hours a

week on Sundays

at the Carlton

Mills (the

"Mills"), an

assignment which

generally was

considered one of the dirtiest.

Jacques had previously worked at

the Mills.

that it was often an

assignment

to

The

Group

The record suggests

employees

did

in order

provided Jacques with transportation

earn

overtime.

to the Mills in one

company vans in which two other employees also traveled.

reported to the Mills assignment from

March

Group

of the

Jacques

February 27, 1994, through

27, 1994, at which point Jacques discontinued reporting to

-4-

that

assignment.

Jacques has

then.

Shortly after

direct

employment

not worked

for the

Group since

February 25, 1994, Jacques began soliciting

from

some

of

the

Group's

customers.

In

connection with his job search, Jacques sent a letter dated March

3,

1994, to

one

of the

Group's customers,

in

which he

made

disparaging statements about the Group (the "March 3 letter").

Jacques

subsequently brought

this civil

action under

the ADA,

regard

alleging that

to

his

assignment by

his

right of

failing to

disability.1

partial

the Group discriminated

return

layoff,

find a "reasonable

After the

summary

from

court denied

judgment,2

the

against him

in

rehire and

job

accommodation" for

Jacques' motion

issues

of

for

intentional

discrimination

and punitive damages were tried to a jury on July

11,

the close of the

1995.

At

for judgment as a

which motion was

verdict

Group's evidence, Jacques moved

matter of law pursuant to Fed. R.

denied.

finding that

On July 17, 1995, the

the Group

did not

Civ. P. 50,

jury returned a

illegally discriminate

against Jacques on the basis of his disability and, consequently,

did not reach

the issues of

____________________

compensatory and punitive

damages.

Jacques does

termination or
that

the

not allege that he was

layoff.

Group did

fulfill the

Indeed,

not only

not terminate

Arena assignment

discriminated against in

Jacques

and that

is it

uncontroverted

for his

failure to

Jacques continued to

be

assigned to the weekly Mills assignment, but the evidence clearly

shows that Jacques stopped reporting to the

Mills assignment and

the Group on his own volition.

The district court denied summary judgment on the grounds that

there

was

"a

material

employment, and there [was]

suffered some

other adverse

dispute

about

whether

[Jacques']

insufficient evidence that [Jacques]

employment action."

Decision, May 23, 1995 (Docket No. 23).

-5-

Memorandum of

Appellant moved again for judgment as a matter of law pursuant to

Fed. R. Civ. P.

50.

After reviewing

briefs from both

the district court issued its memorandum and decision

2,

parties,

on October

1995, in which it denied Jacques' motion and entered judgment

in accordance with the jury verdict.

II.
II.

APPLICABLE LAW
APPLICABLE LAW

The ADA is a federal civil

provide

clear

elimination

disabilities."

context,

person

more

of

and

comprehensive national

discrimination

42

the ADA

U.S.C.

prohibits a

engaged in an industry

employees')

from

rights statute, enacted "to

against

12101(b)(1).

mandate

individuals

"In the

'covered entity'

(defined as

against

the

with

employment

affecting commerce who

'discriminat[ing]

for

'a

has 15 or

qualified

individual

with a disability

individual in

regard to job application

advancement, or

job

Cir.

1996)

other

Katz
____

(quoting

covered

and privileges

v. City Metal Co, Inc., 87

___________________

42

U.S.C.

regulations3 adopted under the

employee compensation,

terms, conditions,

entity

to

ADA

see
___

Grenier v.
_______

(1st Cir. 1995).

provide that it

discriminate

of

F.3d 26, 30 (1st

12112(a));

Cyanamid Plastics, Inc., 70 F.3d 667, 671

________________________

for

disability of such

procedures, the hiring,

discharge of employees,

training, and

employment.'"

because of the

on

the

The

is unlawful

basis

of

____________________

"Such

enforcing
reason

administrative
agency,

of their

interpretations

'while not
authority,

and informed judgment to which

resort

for guidance.'"

of

controlling
do constitute a

the

upon

Act

by

the courts

the

by

body of experience

courts and litigants may properly

Grenier, 70 F.3d at 672 (quoting Meritor

_______

_______

Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)).

______________
______

-6-

"disability," see 42 U.S.C.

___

12102(2) (defining term), against a

"qualified

12111(8)

return

individual

with

disability,"

see
___

42

U.S.C.

(defining term), in regard to, inter alia, the right of

__________

from layoff,

29

C.F.R. Ch.

XIV

1630.4(b),

and

job

assignments, 29 C.F.R. Ch. XIV

The ADA further

1630.4(d).

provides that the

term "discriminate"

includes:

not

making reasonable

the known physical or

accommodations to
mental limitations

of an otherwise qualified individual with

a

disability

who

is

an

applicant

employee, unless such covered

demonstrate that

or

entity can

the accommodation would

impose an undue hardship on the operation

of

the business

of such

covered entity

. . . .

42

U.S.C.

12112(5)(A).

Reasonable accommodations

inter alia,
__________

"job restructuring [and] part-time

schedules."

42 U.S.C.

or modified work

12111(9); see 29 C.F.R. App.

___

(defining reasonable accommodation).

it

may be

1630.2(o)

Furthermore, in order

[t]o determine the appropriate reasonable

accommodation,

include,

necessary for

the

covered

entity

to

informal,

interactive

qualified

individuals with

initiate

process with

an
the

a disability

in need of the accommodation.

29 C.F.R.

1630.2(o)(3).

To establish a claim of disability discrimination under

the ADA, a plaintiff

must prove three things by

a preponderance

of the evidence:

First,

that

he

[or

within

the meaning of

that

with

or

accommodation he

she]

was disabled

the Act.

without
[or

she] was

perform the essential functions

-7-

Second,

reasonable
able

to

of [the]

job.

And,

third,

discharged him

that

[or her] in

the

employer

whole or

in

part because of his [or her] disability.

Katz, 87 F.3d
____

or

at 30.

A plaintiff may

her case "by using

the prima facie

___________

also indirectly prove his

case and burden shifting

methods that originated in McDonnell Douglas Corp.

_______________________

U.S. 792 (1973)."

Id.
___

n.2 (citations omitted);

Principal Financial Group, Inc.,

_________________________________

350705

at *6

(5th Cir.

McDonnell Douglas
_________________

___

F.3d ___,

1996) (citations

analysis, a

v. Green, 411
_____

see Taylor
___ ______

___,

omitted).

plaintiff must

v.

1996 WL

Under the

first prove

by a

preponderance of the evidence that he or she (i) has a disability

within the meaning of

essential

functions

the Act; (ii) is qualified to

of

the

job, with

or

without

perform the

reasonable

accommodations; (iii) was subject to an adverse employment action

by a

company subject to

disabled person

the Act;

(iv) was replaced

or was treated less

by a

non-

favorably than non-disabled

employees; and (v) suffered damages as a result.

See Taylor, ___

___ ______

F.3d at ___, 1996 WL 350705 at *6.

III.
III.

Below, the

PROCEEDINGS BELOW
PROCEEDINGS BELOW

Group stipulated

to the following:

(i) at

the time of Jacques' separation from the Group, it was subject to

the ADA; (ii)

Jacques is

ADA; and (iii)

the Group

"disabled" within the

was aware of

meaning of

the

Jacques' disability

and

inability

to

drive

discrimination.

car

at

the

As the district court

time

of

the

alleged

correctly found, Jacques

was clearly qualified, indeed over-qualified given his education,

for

the position

of a

general purpose

cleaner.

However, the

-8-

Group argued

he could

that Jacques was not

not fulfill, with or

"otherwise qualified" because

without reasonable accommodation,

the "essential function"4 of

and

that his

suggested accommodations

later starting time

The jury,

arriving at the Arena by

8:00 a.m.

-- transportation

-- would pose an undue burden

and a

on the Group.

thus, was charged with determining whether Jacques was

otherwise qualified to perform the essential function of the job,

with

or

without

illegally

discriminated

disability;

Because

reasonable accommodation;

the

and,

jury

if so,

against

if he

resolved

the

him

on

suffered

merits

whether

the

basis

damages as

against

the

Group

of

his

a result.

Jacques,

the

question of damages was never addressed.

Based on

the evidence,

that a reasonable jury could find:

the

(i)

district court

concluded

that the completion time

of the Arena assignment was an essential element of the position,

see 29 C.F.R. App.

___

1630.2(n); (ii) that there was no reasonable

accommodation to Jacques' disability that would not pose an undue

hardship to

the Group,5 see 42 U.S.C.

___

for these reasons,

the jury could

1211(10); and (iii) that

reasonably find that

Jacques

____________________

The EEOC regulations define the term "essential functions" as

"the

fundamental

individual with

job

duties

a disability

of the

holds" and

marginal functions of the position."

Among other

"does not

29 C.F.R.

reasons, a job function may

because the position exists

See 29 C.F.R.
___

employment

position

the

include the

1630.2(n)(1).

be considered essential

to perform that particular function.

1630.2(n)(2); Larkins v. Ciba Vision Corp., 858

_______
__________________

F. Supp. 1572, 1580 (N.D.Ga. 1994).

According to the Group, the Mills assignment was

to be a reasonable accommodation for Jacques.

-9-

not intended

was not otherwise qualified to perform the essential function

the Arena assignment, with or without reasonable accommodation.

of

-10-

IV.
IV.

Turning to

DISCUSSION
DISCUSSION

the appeal

before us,

we note

first that

Jacques conceded during oral

of

the

Arena

Consequently,

Jacques'

assignment

in light

of

was

qualified, with

the

8:00

the Group's

concession, resolution

whether the jury properly

the

argument that an essential function

a.m.

start

stipulations below

of this

appeal hinges

found that Jacques was

essential function

and

only on

not "otherwise

or without reasonable accommodation"

Arena assignment's

time.

to perform

of arriving

by 8:00

a.m.

After reviewing de novo the

_______

evidence in the light most

favorable to the Group as the nonmovant, Atallah, 45 F.3d at 516,

_______

we agree with

the district

court that a

reach the conclusions it set forth in its

reasonable jury

decision.

could

Indeed, the

jury reasonably could have found that Jacques' disability was not

a motivating factor in the Group's decision to find a replacement

for

the Arena assignment.

from

the laid-off crew to

Not

only was Jacques the only person

have been offered

the opportunity to

return from layoff, but at the time Jacques was offered the Arena

assignment

Jacques'

the

Group (including

disability

record shows that,

was

both "hired"

and his

inability

had

to

full knowledge

drive; indeed,

of

the

with respect to the Arena assignment, Jacques

and "fired"

Tyndall, 31 F.3d at
_______

of

Buck)

nondiscrimination

by

the same

person, Buck.

See
___

214 (noting that there is a strong inference

where the

hirer

person).

-11-

and firer

are

the same

Furthermore,

the record strongly suggests that Jacques

could have

fulfilled the essential

Arena

8:00

by

accommodation.

make his

a.m.

Jacques

own way to the

from his home, however,

to go

without
_______

the

function of arriving

need

testified that he

for

at the

reasonable

was quite willing

to

Group's office some two

and half miles

he never explained why he

was unwilling

the approximate extra half a mile to

the Arena.

The jury

reasonably

given

could have

the

been swayed

uncontroverted

previously requested

by this

evidence

that

unexplained refusal

Jacques

transportation and had always

had

never

made his way

to the Group's office.

Or,

in the

alternative,

the jury

reasonably could

have found that providing Jacques with transportation constituted

an undue

burden

effect that:

(i) all of

crews and were

Group

for the

there was

was

on

testimony to

the

the Group's vans were assigned to other

unavailable to transport

employee

transportation

Group as

available

daily

to

basis;

Jacques; (ii) no

provide

and

(iii)

other

Jacques

it

would

with

be

economically detrimental for the Group to hire another individual

to drive

Jacques in light of its

profit margin.

the jury

reasonably could have found

Further still,

that accommodating Jacques

by permitting him

to start

after 10:00 a.m.,

shift with another employee, or

would be unreasonable as

function

of arriving

at

by splitting

by reassignment to another

it would eliminate the job's

8:00 a.m.

See, e.g.,
___ ____

his

crew

essential

Treadwell
_________

v.

Alexander, 707 F.2d 473, 478 (11th Cir. 1983) (affirming district
_________

-12-

court conclusion

"doubling

Larkins
_______

1994)

up"

that, in

light of agency's

employees

would

v. CIBA Vision Corp.,

_________________

(holding

eliminate the

that the

essential

impose

limited resources,

an

"undue

858 F. Supp.

ADA does

not

functions of

hardship");

1572, 1583 (N.D.Ga.

require an

a job

employer to

to accommodate

an

employee).

This

faults the

motion.

does not

district court's

He

discriminated

argues

1630.2(o)(3),

him,

in

denial of

as

he did

him

as

against

with

our inquiry,

here,

uncontroverted failure

process"

end

to

within

order

to

accommodation could have been

the

his Fed.

below,

matter

engage in

however, as

of

R. Civ.

that

law

determine

of

whether

P. 50

the

Group

through

an "informal,

meaning

Jacques

its

interactive

29

C.F.R.

reasonable

made so that Jacques could

get to

the Arena by 8:00 a.m.6

accommodations

Group,

and

The reasonableness of Jacques' suggested

the question

of

any undue

Jacques contends, are not even

burden

for the

reached in this case.

As

Jacques admitted in

oral argument, the fundamental

basis of his

claim

Group's failure

or

is that

the

to

look for,

suggest,

alternative accommodations constitutes a violation even where, as

here, there

is no proof

that any

informal interactive

process

would have actually borne any fruit.

____________________

For

well

record support, Jacques points to his

as that of

demonstrate
reasonable

Buck and

the Group's

that the Group made

accommodation

or

determining whether one existed.

trial testimony as

President, all

absolutely no effort
otherwise

assist

of which

to find a

Jacques

in

-13-

For

legal

1630.2(o)(3).

Jacques'

during

In

and

response

brief provides

oral

argument

interpreting analogous

1973,

support,

29 U.S.C.

no

Jacques

to the

case law

Jacques

relies

on

29

C.F.R.

Group's observation

to support

pointed

provisions in the

us

to

that

his argument,

three

cases

Rehabilitation Act

of

791 et seq.,7 and California's Fair Employment

_______

Housing Act ("FEHA").

These cases, he contends, support his

assertion

that it is an

reasonable

employer's duty to

accommodations to

United States, 998

_____________

suggest and provide

the employee.

F.2d 735, 739-41

See
___

Buckingham v.
__________

(9th Cir. 1993)

(upholding

denial of summary judgment for employer on the grounds that there

is

no

per se
_______

Rehabilitation

rule

Act

against

and

sufficient information"

employee

to

perform

Systems, Inc., 841 F.

_____________

judgment

employee

that

transfers

employers have

duty

under

to

the

"gather

when accommodation is required to enable

essential

function);

Sargent
_______

Supp. 956 (N.D.Ca. 1994)

v.

Litton
______

(denying summary

under FEHA where genuine issue of material fact existed

regarding employer's

efforts

to accommodate

and

existence

of

undue hardship); Butler v. Dept. of the Navy, 595 F. Supp. 1063,

______
__________________

1068 (D.Md.

make

1984) (noting that

reasonable

government's duty to

accommodations

cannot

be

propose or

triggered

by

mere

existence of handicapped employee where there is no evidence that

employee

was

not

reasonably

accommodated

and

finding

that

____________________

"Unless expressly

stated otherwise, the standards

the ADA are not intended to be lesser than the

under

the Rehabilitation Act of 1973."

(1995).

-14-

applied in

standards applied

29 C.F.R.

1630.1, App.

employee

failed to show how reasons for dismissal were caused by

failure to reasonably accommodate).

For record support,

elicited

area

by the Group's

organizations

individuals.

demonstrates

was

better

his complete

situated

accommodations.

surprising given

aware

that

provide

testimony,

examination that those

Their

transportation

Jacques

unawareness

to

argues,

until

asked

disabled

not

on

services existed but also that

to

ascertain

alternative

failure to do so,

subject

to

the

ADA, was

only

cross-

the Group

reasonable

he points out,

the undisputed testimony that

it was

testimony

after-the-fact investigation into three

that

This

Jacques points to trial

is not

the Group, while

unaware

of

ADA

provisions regarding reasonable accommodations.

The Group counters with two

argues

that

29

C.F.R.

affirmative obligation

the

points.

1630.2(o)(3)

upon the

term "may," not "shall."

First, the

does

employer as it

not

Group

impose

an

explicitly uses

Second, the Group points out that

the jury was instructed in accordance with Section 1630.2(o)(3)'s

language and that

the jury

presented that the Group's

did

not

constitute

accommodations.

in

from the

evidence

failure to suggest additional options

failure

to

provide

reasonable

Conceding at oral argument that the employer may

some situations

better

could have found

situated such

have specialized

that

accommodations in the first

it

would

knowledge or

be

required

be otherwise

to

instance, the Group argues

suggest

that the

jury could reasonably conclude that this was not such a case.

-15-

The

regulations' use

Congress, while

it could have imposed

upon employers in all cases,

as the

Seventh Circuit

employer or

of "may"

clearly suggests

an affirmative obligation

chose not to.

That said,

recently observed, "someone,

the employee, bears the

that

however,

either the

ultimate responsibility for

determining what specific actions must be taken by the employer,"

Beck v. University of Wis.,

____
__________________

75 F.3d 1130, 1135 (7th

and 29 C.F.R.

1630.2(o)(3) indicates that "[t]he

at

responsibility

least

some

accommodation

. .

[and

in

that]

determining

Cir. 1996),

employer has

the

the regulations

necessary

envision

an

interactive process that requires participation by both parties."

Id.
___

The Fifth

recently:

"Once

responsibility

shared

at

Circuit made

for

similar observation

the accommodation

fashioning

is properly

reasonable

between the employee and the employer."

___, 1996

WL

350705 at

*8

(stating that

initial request triggers employer's obligation

interactive process" and that employer

even more

requested, the

accommodation

is

Taylor, ___ F.3d

______

the

"employee's

to participate in

cannot be held liable for

failing

to

provide

accommodation.);

one

if

employee

fails

to

request

an

cf. White v. York Int'l Corp., 45 F.3d 357, 363

___ _____
________________

(10th Cir.

1995) (noting

that interactive process

only after

employer makes threshold determination

is triggered

that disabled

employee may be accommodated).8

____________________

Neither

Taylor was
______

party cited
decided after

any of

these ADA

cases.

oral argument, neither

Even though
party filed

supplemental letter pursuant to Fed. R. App. P. 28(j).

-16-

That

appeal

said, based

begins and

verdict:

we

upon

ends with

simply

our standard

of review,

the reasonableness

cannot conclude

of the

that reasonable

this

jury's

persons,

looking at the evidence in the light most favorable to the Group,

and according it all reasonable

for

F.2d

the Group.

120,

124

See
___

(1st

inferences could not have

Gallagher v. Wilton Enterprises, Inc., 962

_________
_________________________

Cir.

1992);

Publications, Inc., 756 F.2d 930, 934

__________________

words, we agree

from the

found

with the Group

Chedd,
Angier
_______________

(1st Cir. 1985).

that the jury

evidence presented that the Group's

v.

Omni
____

In other

could have

found

failure to suggest

additional

options

did

not

constitute a

failure

to

provide

reasonable accommodations.

The jury was correctly instructed that

it may be necessary

for the employer

initiate a discussion

with the

employee

about appropriate accommodations

Unlawful

discrimination occurs

employee's
respect

to .

. .

layoff, rehiring and

adversely

. . . .
when the

opportunities
right of

because

with

return from

job assignment

affected

to

of

are
his

disability or because the employer failed

to make a reasonable accommodation.

Tr.

Trans. Vol. IV

refusal to instruct

at 388-89.

Jacques

the jury that

objected to the court's

if it were

to find that

the

Group failed to give him a reasonable accommodation then it would

not need to

go any

further as this

failure itself

constituted

intentional discrimination but did not object on the grounds that

the instruction misstated the law.

or

otherwise

challenge

the

Nor does he make such a claim

district

court's

instruction

on

appeal.

-17-

Given its instructions and

the evidence presented, the

jury could have reasonably concluded that the Group's failure to

initiate an

interactive process or suggest

constitute a per se

alternatives did not

failure to provide reasonable accommodations

______

here.

an

The jury reasonably could have concluded that engaging in

interactive process

simply

was not
___

necessary

in order

to

determine the appropriate reasonable accommodation.

Not only was

there substantial

that Jacques

(an

intelligent

evidence from

and

which to conclude

well-educated individual

who

had

always

managed to make his own way to job sites in the past) was just as

well situated, if not better so, to investigate and suggest other

alternatives, but

the jury reasonably could

have concluded that

Jacques was simply unwilling to fulfill the essential function of

the

Arena

assignment:

explained why the extra

as

we

already noted,

Jacques

half mile precluded him from

never

getting to

the Arena assignment on his own or why he was otherwise unwilling

to travel that extra distance.

Cf. Taylor, ___ F.3d at ___, 1996

___ ______

WL 350705 at *8 (noting that employee failed to fulfill burden of

adducing summary judgment evidence

that he was limited

showing that he told employer

as a result of his

998 F.2d at 742 (noting on

disability); Buckingham,
__________

remand that employee may meet

burden

by showing, inter alia, that accommodation sought is necessary to

__________
_________

enable performance of essential function).9

____________________

We

recognize that, even when qualified employees

perform

job's

essential

relieved of

their duty

required to

allow equal

benefits

functions,

employers

to accommodate where

-18-

may

not

be

accommodations are

enjoyment of employment

or to pursue therapy or treatment.

are able to

privileges and

See Buckingham, 998

___ __________

Furthermore,

apart from

his

investigation

into

bus

routes, Jacques presented no evidence that he requested any other

accommodations, inquired whether

or

the Group had any

suggestions,

otherwise indicated that he was still interested in finding a

solution.

Cf. Taylor,
__ ______

(noting

that

shared

between

___ F.3d

responsibility

employer

uncontroverted

that the

accommodations

after

at ___,

for

and

fashioning

employee).

Group did

it

1996

rejected

not suggest

as

WL 350705

accommodation

While

it

* 8

is

is

any alternative

unreasonable

Jacques'

proposed

failed

accommodations, there

to consider Jacques'

is

no evidence

that the

Group

requested accommodations and "there

is nothing in the record from which we can discern any attempt by

the

at

the

[Group] to sweep the problem under

1136 (affirming summary

ADA

where

employee

interactive process to

Butler, 595
______

F. Supp. at

the rug."

judgment in favor

was

responsible

Beck, 75 F.3d
____

of employer under

for

breakdown

determine reasonable accommodation);

1967 (noting

that there

must be

in

cf.
__

some

sufficient connection between the loss of the protected interest,

the job, and the violation of the duty owed to the employee).

Indeed, just as the jury reasonably could conclude that

Jacques did not need reasonable accommodation in order to perform

the essential

functions, the

Group quite reasonably

could have

interpreted Jacques' unexplained refusal to travel the additional

____________________

F.2d

at 740-41.

This, however, does

not assist

Jacques as he

presented no evidence that he required accommodation in

enjoy equal

privileges

and benefits

or

to pursue

order to

therapy

or

treatment for his epilepsy.

-19-

half-a-mile as an

implicit refusal of

the Arena assignment

and

preference to

available.

wait for

As

a more

Macomber

testified, Jacques

[the] office every single

further.

fact,

That's the

convenient assignment

day, and the ice [A]rena

reason [why] I

trial testimony

"rode his

that

filed

bike to

was not much

offered him the

the Group

to become

job."

In

in opposition

to

Jacques' application to the Maine Department of Labor for partial

unemployment

suggests that

on the basis

this is

that he refused

precisely how

the Arena assignment

the Group

interpreted the

situation.

Of

course, we

are

painfully aware

that the

Group's

failure to engage in an informal interactive process with Jacques

regarding accommodation options

beyond those which

results

be

from

obligations

its

failure

under the

ADA.

to

properly

he requested

informed

Nevertheless, the Group

of

its

is spared

from

walking the plank given

circumscribed

evidence

review of

with

the

our "eye[s]

support only one

that we cannot

conclude under our

jury's verdict

-- evaluating

toward

determining

outcome," S nchez
_______

F.3d 712, 716 (1st Cir.

1994) --

whether it

v. Puerto Rico Oil Co.,

____________________

that no reasonable

the

can

37

jury could

have reached the verdict reached below.

The ADA

government

to

disabilities.

represents a

assure

There

employer's failure

would constitute

major commitment by

adequate

may

protection

well

to engage in an

a failure to

be

to

situations

Americans

in

which

with

the

informal interactive process

provide reasonable

-20-

the federal

accommodation

that amounts

to a

violation of the

reasonable accommodation

appraisal of

jury

verdict

instructions

turns heavily

the reasonableness of

in

this

ADA.

case

were not subject

was

But cases

involving

upon their facts

the parties' behavior.

not

irrational,

to objection,

and we

the

and an

The

jury

leave more

difficult cases to another day.

V.
V.

EVIDENTIARY RULING
EVIDENTIARY RULING

Jacques also argues that

the district court abused its

discretion when it admitted

which Jacques made

into evidence the March 3

disparaging statements about

letter in

the Group.

If

this were a case about discrimination occurring upon termination,

Jacques

maintains, the

letter's

admission would

be justified;

however, because the discrimination occurred upon Jacques' return

from

layoff -- one

week before

the aggressive

and inflamatory

letter was written -- the probative value of the letter is highly

questionable.

Because of

the letter served

arouse

this, Jacques continues,

merely to

reflect upon his

and because

character and

to

the jury's hostility, it should have been excluded due to

its "extreme prejudicial nature."

As

Jacques

tendency, inadmissible

points

out,

and gravely

"[e]vidence

having

prejudicial for one

dual

purpose

but

not

objectionable

for another

if

separately

considered,

should be excluded from the jury where the feat of ignoring it in

the one aspect while

considering it in the

other is too

subtle

for the ordinary mind and the risk of confusion is so great as to

upset the

balance of

practical advantage."

Shepard v.
_______

United
______

-21-

States, 290 U.S.

______

96, 103 (1933).

Be that

as it may,

Jacques'

counsel

failed

not only

to object

on

any grounds

other than

relevance but also to request a limiting instruction.

As counsel

never moved beyond relevancy to argue unfair prejudice under Fed.

R. Evid.

only

403, we review Jacques'

for

plain

error

pursuant

claim of error under

to

Fed.

R.

Civ.

Rule 403

P.

103,10

recognizing while we do so that "Rule 403 is a liberal rule under

which relevant evidence generally is admitted."

McMahon, 938 F.2d 1501,

_______

Inc.,
____

664 F.2d

United States v.
_____________

1508 (1st Cir. 1991); Dente

_____

1, 5 (1st

Cir. 1981)

("A trial

v. Riddell,
________

judge has much

latitude in these matters.").

It

letter

on

was

clearly not

the basis

that its

plainly

erroneous

probative value

to admit

the

outweighed its

prejudicial effect.

flattering

While the letter does not frame Jacques in a

light, it

was certainly

not without relevance.

In

response to Jacques' relevancy objection, the Group replied below

that the

March 3 letter was

the Group

making

court

relevant as it tended

did not intentionally discriminate

its decision

agreed,

noting

to terminate

that

"if

against Jacques in

and failure

the

jury

to show that

to rehire.

finds

it

The

was

the

disability which was the cause of termination first, they have to

find that and

that's discriminatory. . .

. If there were

other

____________________

10

Fed. R. Civ. P. 103 provides,

in pertinent part:

"Error may

not be predicated upon a ruling which admits or excludes evidence

unless a
case

substantial right of the party is affected

. . . .

In

the ruling is one admitting evidence, a timely objection or

motion

to strike

appears

on the

ground

of objection, if the specific ground for the objection is

not apparent from the context."

record, stating

the specific

-22-

reasons, it's a factual finding for the jury."11

letter

was written

Jacques' return from

tended

to show

resourceful

credibility.

was

faced

after the

individual.

Even were we

with a

alleged discrimination

layoff, it

that Jacques

Even though the

was still relevant

was an

It

also

intelligent,

was

to assume that

"close call"

given the

probative

regarding

as it

also

educated and

as

to

his

the magistrate judge

letter's prejudicial

propensity, see Fed. R. Civ. P. 403, we nonetheless would find no

___

plain error.

Not only do we find that the probative value of the

letter is not "substantially outweighed" by any unfair prejudice,

but we

would strike the Rule 403 balance in favor of admission.

McMahon, 938 F.2d at 1508.

_______

VI.
VI.

For

affirmed.
affirmed
________

the

foregoing

CONCLUSION
CONCLUSION

reasons,

the

decision

below

is

____________________

11

Relying on McShain, Inc. v. Cessna Aircraft Co.,

______________
____________________

563 F.2d

632, 635 (3d Cir. 1977), Jacques also faults the district court's

articulation of factors used in balancing the probative value and

prejudicial effect
the

consideration

prejudice

and

of the evidence.
given

to

Id. ("The substantiality of

___

competing

probative value)

can

interests

best be

(potential

guaranteed

explicit articulation of the trial court's reasoning.").

by an

Because

Jacques failed to raise the issue of prejudicial effect below, we

also review this for plain error.

-23-

We find none.