Tobin v. Liberty Mutual Ins.

United States Court of Appeals
For the First Circuit

No. 04-2391

KEVIN W. TOBIN,

Plaintiff, Appellant,

v.

LIBERTY MUTUAL INSURANCE COMPANY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Torruella, Lipez, and Howard,
Circuit Judges.

Frank J. Frisoli, with whom Frisoli & Frisoli, was on brief,
for appellant.
Alan D. Rose, with whom Richard E. Bowman and Rose &
Associates, were on brief, for appellee.

December 23, 2005
 TORRUELLA, Circuit Judge. Plaintiff-appellant Kevin W.

Tobin appeals the award of summary judgment to his former employer,

Liberty Mutual Insurance Company ("Liberty Mutual"), on his state

and federal claims of disability discrimination and failure to

accommodate, pursuant to the Americans with Disabilities Act

("ADA"), 42 U.S.C. § 12101, et seq. (2000), and the Massachusetts

anti-discrimination statute, Mass. Gen. Laws ch. 151B ("Chapter

151B"). Because we believe that summary judgment was improperly

granted on Tobin's "failure to accommodate" claim, we vacate the

district court's judgment on that claim. We affirm, however, the

remainder of the district court's decision.

I.

Tobin was hired by Liberty Mutual on September 17, 1964

for an administrative position. In May 1968, he was promoted to

sales representative, a position he held until his termination in

January 2001. As a sales representative, Tobin was responsible for

selling insurance, including automobile, home, and life insurance.

He was also expected to assist in customer service and retain

business.

Since 1976, Tobin has been under the regular care of a

psychiatrist, mainly for treatment of bipolar disorder. This

condition limited Tobin's focus and concentration, impaired his

ability to prioritize and complete tasks, required that he have

more time to finish his work, and affected his organizational

-2-
skills. It was only in December 1997, however, that Tobin revealed

his condition to officials at the company.

A. Tobin's Performance

Although Tobin had accumulated a large book of business

over the years and the annual premiums generated from this book of

business earned "significant profits," Tobin's yearly new business

sales were considered deficient beginning in 1992. For example,

for the twelve-month period ending September 1993, Tobin had sold

only 270 new policies -- a significant shortfall given that the

quota for new policy sales was set at 339. In his Sales

Representative Appraisal for that year, on a scale from 1-6, with

1 being the highest, Tobin received a 6 in the "Sales Rating"

category. His overall evaluation was a 5. In 1994-1996 and 1998,

Tobin's appraisals reflect similar negative ratings and comments

for sales, prospecting, performance, and overall performance, and

positive ratings and comments for quality, loss ratio, and

retention.1

In April 1996, Tobin's supervisor, Mike Robin, gave Tobin

a written warning stating that failure to meet the sales

requirements for a thirty-day period would lead to a sixty-day

probation followed by possible termination. Although Tobin did not

meet the requirements for the thirty-day period, Liberty Mutual

waived the probation because Tobin's wife was ill. On November 21,

1
No appraisal was produced for 1997.

-3-
1997, Robin placed Tobin on a nine-week warning period, emphasizing

that new business sales were critical, as were participation in

sales initiatives and refraining from "inappropriate and

insubordinate behavior in the office," including the use of profane

language. Robin made clear that Tobin would face probation unless

he brought his performance up to an acceptable level by

demonstrating increased sales results and participating in sales

initiatives.

Tobin then took two short-term disability leaves of

absence. The first lasted from December 1997 until June 1998, and

the second from September 1998 until January 1999. In both

instances, Tobin's doctor, Dr. William Kantar, indicated that he

had diagnosed Tobin as bipolar and that Tobin was significantly

restricted as to interpersonal relations, as well as to

occupational and social activities. Each time Tobin returned to

work, Tobin's new supervisor, Manina Schwitters, gave Tobin a

reduced work schedule for his first four weeks after he returned

from leave. Each time, upon resumption of his full-time duties,

Tobin's warning period was reinstated.

When Tobin returned to work the second time, in January

1999, Liberty Mutual hired a nurse, Cathy Harding, to assist him in

resuming his position as a sales representative. After working

reduced hours for four weeks, Tobin resumed his full-time duties on

February 1, 1999. Tobin's supervisor extended the two weeks

-4-
remaining from the November 1997 warning period to run for four

weeks, from February 1 to February 26. Tobin failed to sell

twenty-four new policies during the four-week warning period to

avoid beginning a four-week probation period. However, during a

meeting with several supervisors, Tobin produced several additional

policies, which were accepted in order to meet the quota set for

the warning period.

In a letter dated March 8, 1999, Schwitters indicated

that she would monitor Tobin's sales results in four-week

increments for the rest of the year beginning on March 1. At the

end of the first increment, Schwitters notified Tobin he was being

placed on probation for failing to meet the minimum sales

requirements. The quota for the period had been twenty-four, and

Tobin sold only ten. Tobin then successfully completed the five-

week probationary period by selling the required thirty policies.

Tobin's sales performance, however, deteriorated over the next

several months, and he was again placed on probation on

November 27, 2000. Tobin failed to sell the required thirty

policies during this second probationary period and was terminated

on January 10, 2001.

B. Mass Marketing Accounts

Mass Marketing accounts ("MM accounts") are group

insurance discount programs offered to businesses and associations

throughout the United States. The employees or association members

-5-
who purchase insurance policies through MM accounts receive

benefits such as discounted policy premiums, automatic deduction of

premium payments from paychecks, and a waiver of finance and

service charges. MM accounts provide sales representatives with

access to employees of participating employers in workplace

settings and thereby afford sales representatives exposure to a

large volume of potential clients. These MM accounts are desirable

to the sales representatives because they provide a good source for

potential sales.

Tobin says he repeatedly requested to be assigned MM

accounts and to be provided with adequate sales support. He

maintains that Liberty Mutual's failure to assign him MM accounts

was both a denial of a reasonable accommodation and discriminatory

pursuant to state and federal law. Tobin argues that but for the

failure of Liberty Mutual to assign him MM accounts and to provide

adequate sales support, he would have been able to meet the sales

quotas set for him.

The parties dispute whether assigning Tobin a MM account

would have violated Liberty Mutual's policy for assigning such

accounts. Liberty Mutual contends that the MM accounts were

distributed on the basis of merit -- given to those sales

representatives who most actively took initiative to land new MM

accounts -- as well as according to workload. Tobin, however,

contends that on at least one occasion Schwitters violated this

-6-
policy by assigning an MM account to Herb Schneiderman, a sales

representative with a substandard sales performance, and that Tobin

could have likewise been assigned such accounts despite his below-

quota sales. Liberty Mutual responds that Schwitter's assignments

were not inconsistent because, unlike Tobin, Schneiderman at least

took some initiative to open new MM accounts. Liberty Mutual

further argues that, in any event, there is no evidence that Tobin

would have been able to handle adequately such an account were it

assigned to him or that he would have been able to meet the quotas,

even with MM accounts.

Tobin now appeals the district court's grant of summary

judgment for Liberty Mutual, arguing that the district court erred

because (1) Liberty Mutual's explanation for Tobin's termination

was pretextual, (2) there was a nexus between his disability and

the requested accommodation of assignment of MM accounts, and (3)

Liberty Mutual failed to engage in an "interactive process" to help

accommodate Tobin's disability.

II.

We review the district court's grant of summary judgment

de novo, see, e.g., Guzmán-Rosario v. United Parcel Service, Inc.,

397 F.3d 6, 9 (1st Cir. 2005), and construe the record in the light

most favorable to Tobin. See United Parcel Service, Inc. v.

Flores-Galarza, 318 F.3d 323, 330 (1st Cir. 2003). Summary

judgment is appropriate where there is no genuine issue of material

-7-
fact, and the moving party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(c).

A. Disability Discrimination Claim

In evaluating Tobin's disability discrimination claim

under the ADA and Chapter 151B, we use the burden-shifting

framework outlined by the Supreme Court in McDonnell-Douglas Corp.

v. Green, 411 U.S. 792 (1973).2 See Higgins v. New Balance

Athletic Shoe, Inc., 194 F.3d 252, 264 (1st Cir. 1999) (approving

use of McDonnell-Douglas framework in connection with ADA claims of

disability discrimination). Under this approach, Tobin must first

establish a prima facie case by establishing that (1) he suffers

from a disability or handicap, as defined by the ADA and Chapter

151B, that (2) he was nevertheless able to perform the essential

functions of his job, either with or without reasonable

accommodation, and that (3) Liberty Mutual took an adverse

employment action against him because of, in whole or in part, his

2
The district court noted that "state and federal disability law
are in accord, at least for present purposes." Tobin v. Liberty
Mutual Ins. Co., No. Civ.A.01-11979-DPW, 2004 WL 1922133 at *6 n.9
(D. Mass. Aug. 30, 2004). We note, however, that the standards
under the ADA and Chapter 151B occasionally differ in ways that are
relevant to this case. See, e.g., Dahill v. Police Dep't of
Boston, 748 N.E.2d 956 (Mass. 2001) (rejecting, for the purposes of
Chapter 151B, the federal rule that mitigating or corrective
devices must be considered in determining whether an individual is
disabled). Here, we do not emphasize these differences, as the
parties before the district court already stipulated that "state
and federal disability law are in accord" for the purposes of this
case. For this reason, throughout the remainder of this opinion,
we frame our discussion primarily in terms of the ADA and federal
case law, as the district court did.

-8-
protected disability. See McDonnell-Douglas, 411 U.S. at 802;

Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir. 2002); Benoit

v. Technical Mfg. Corp., 331 F.3d 166, 175 (1st Cir. 2003). If

Tobin is able to do this, the burden then shifts to Liberty Mutual

to articulate a legitimate, non-discriminatory reason for its

employment decision and to produce credible evidence to show that

the reason advanced was the real reason. McDonnell-Douglas, 411

U.S. at 802. Finally, if Liberty Mutual offers such a reason, the

burden shifts back to Tobin, and he must proffer evidence to

establish that Liberty Mutual's non-discriminatory justification is

mere pretext, cloaking discriminatory animus. Id. at 804. The

ultimate burden of proving unlawful discrimination rests at all

times with Tobin. Reeves v. Sanderson Plumbing Prod., Inc., 530

U.S. 133, 143 (2000).3

3
An alternative framework involves "mixed-motive" analysis, as
established by the Supreme Court in Price Waterhouse v. Hopkins,
490 U.S. 228 (1989). Mixed-motive analysis is appropriate where
evidence exists that an employer considered both a proscribed
factor (for example, race or disability) and one or more legitimate
factors (for example, competence) in making an adverse employment
decision. Price Waterhouse, 490 U.S. at 241-242; Fernándes v.
Costa Bros. Masonry, Inc., 199 F.3d 572, 580 (1st Cir. 1999). We
believe that in this instance "mixed-motive" analysis is
inapplicable. This is because Tobin raises the issue of the use of
"mixed-motive" analysis for the first time on appeal. Contrary to
Tobin's claim that he made "implicit reference" to a mixed-motive
argument in the district court, Tobin never argued below that his
claims should be analyzed under a mixed-motive framework. As the
district court stated, "neither party here disputes that the
pretext model [as opposed to a mixed-motive model] is the proper
mode of analysis for this case." Tobin, 2004 WL 1922133 at *6
n.10. Theories not raised in the district court cannot be raised
for the first time on appeal. See Rocafort v. IBM Corp., 334 F.3d
115, 121 (1st Cir. 2003) (stating that "'a litigant's failure to

-9-
 Here, it is undisputed that Tobin has established a prima

facie case and that Liberty Mutual has advanced a legitimate, non-

discriminatory reason for its employment decision. The issue in

dispute here is whether Liberty Mutual's asserted reason was

pretextual -- i.e., that the reason was advanced merely to disguise

Liberty Mutual's real reason for terminating Tobin's employment,

his disability. "In assessing pretext, the court must look at the

total package of proof offered by the plaintiff." Benoit, 331 F.3d

at 174.

Tobin argues that Liberty Mutual's proffered reason is

indeed a pretext and that he was fired because of his disability.

Tobin, however, has to clear two significant hurdles before he is

able to show pretext. First, he must refute the clear evidence put

forward by Liberty Mutual showing that it was poor insurance sales,

and not disability, that constituted the real reason for Tobin's

termination. Second, he must advance evidence of his own showing

that Liberty Mutual's asserted reason was a pretext hiding

discrimination. See Mesnick v. Gen. Elec. Co., 950 F.2d 816, 824

(1st Cir. 1991) (stating that "[i]t is not enough for a plaintiff

merely to impugn the veracity of the employer's justification; he

must elucidate specific facts which would enable a jury to find

explicitly raise an issue before the district court forecloses that
party from raising the issue for the first time on appeal'")
(quoting Boston Beer Co. Ltd. P'ship v. Sleser Bros. Brewing Co.,
Inc., 9 F.3d 175, 180 (1st Cir. 1993); United States v. Slade, 980
F.2d 27, 30 (1st Cir. 1992)).

-10-
that the reason given is not only a sham, but a sham intended to

cover up the employer's real motive" (internal quotations

omitted)).

Tobin, however, fails to clear either of these hurdles.

With regard to the evidence produced by Liberty Mutual, the company

provided a full and well-documented account of Tobin's

"longstanding performance deficiencies." As Liberty Mutual

recounts, Tobin failed to meet minimum quotas and standards; he did

not show up for meetings with supervisors; and his performance

reviews were poor. Tobin has done nothing to show that this cited

evidence is false.

Moreover, Tobin has produced no evidence of his own to

prove that Liberty Mutual's asserted reason was merely a pretext to

disguise discrimination. Although he does cite to several company

documents -- e-mails and a list enumerating the measures the

company took in order to assist Tobin -- in an attempt to show

discriminatory action on the part of the company, these documents

pre-date Tobin's December 1997 disclosure of his disability to

company officials. At the time of the drafting of these documents,

in September and October 1997, people at the company did not even

know that Tobin suffered from any sort of disability. As such,

these documents cannot serve to show any malice or discriminatory

animus by Liberty Mutual.

-11-
 Similarly, Tobin attempts to show that Liberty Mutual's

asserted reason was mere pretext by pointing to the fact that

several employees who were "similarly situated" to him were given

MM accounts -- an opportunity that was withheld from him. Tobin,

however, fails to provide specific evidence showing that these

other employees were indeed similarly situated to him. See Perkins

v. Brigham & Women's Hosp., 78 F.3d 747, 751 (1st Cir. 1996)

(stating that a "claim of disparate treatment based on comparative

evidence must rest on proof that the proposed analogue is similarly

situated in material respects"). In fact, there is significant

evidence in the record to show that Tobin and these employees were

not similarly situated. For example, one of the employees, Herb

Schneiderman, had improved his performance over time at the company

and was noted for his "good improvement in his outlook and

attitude." Tobin, in comparison, was constantly criticized for his

performance, his organization, and for his inability to follow the

directions of his managers. As we cannot conclude that there was

any evidence here that Tobin was a victim of disparate treatment,

we cannot find any evidence in the record to support Tobin's claim

that Liberty Mutual's decision to terminate his employment was not

based on the company's proferred grounds. For these reasons, we

hold that the district court was correct in granting summary

judgment on Tobin's disability discrimination claim.

-12-
B. Failure to Accommodate Claim

Tobin's second claim arises under both the ADA and

Chapter 151B. Under the ADA, employers are required to provide

reasonable accommodation to an otherwise qualified applicant or

employee with a disability, unless the employer can demonstrate

that the accommodation would impose an undue hardship on the

employer's business. 42 U.S.C. § 12112(b)(5)(A) (2000).4 Here,

Tobin sought two accommodations in particular from Liberty Mutual:

(1) assignment of MM accounts; and (2) additional service

representative assistance. The district court granted summary

judgment in favor of Liberty Mutual on this claim.

Looking primarily to Tobin's request for MM accounts, we

think that this grant of summary judgment was improper. To survive

summary judgment on his "reasonable accommodation" claim, Tobin had

to produce enough evidence for a reasonable jury to find that (1)

he was disabled within the meaning of the ADA, (2) he was able to

perform the essential functions of the job with or without a

reasonable accommodation, and (3) Liberty Mutual, despite knowing

4
Section 102(a) of the ADA states: "No covered entity shall
discriminate against a qualified individual with a disability
because of the disability of such individual in regard to . . .
terms, conditions, and privileges of employment . . . ." 42 U.S.C.
§ 12112(a) (2000). Discrimination includes "not making reasonable
accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability who is an
applicant or employee, unless such covered entity can demonstrate
that the accommodation would impose an undue hardship on the
operation of the business of such covered entity." 42 U.S.C.
§ 12112(b)(5)(A) (2000).

-13-
of his disability, did not reasonably accommodate it. Estades-

Negroni v. Associates Corp. of North America, 377 F.3d 58, 63 (1st

Cir. 2004) (internal quotation marks and citation omitted).

Tobin presented sufficient evidence on the first and

third prongs to survive summary judgment. See Tobin, 2004 WL

1922133 at *4, 10 (noting that "[t]o be sure, Tobin's disability is

grounds for accommodation under the ADA" and that Tobin had

requested but was refused an MM account as an accommodation for his

disability). It was the second prong of the test that the district

court based summary judgment on -- and a conclusion that allowing

Tobin access to MM accounts would have altered his job requirements

and hence the essential functions of his employment. The district

court wrote:

I find that summary judgment is warranted
because the assignment of mass marketing
accounts is not tied to Tobin's disability
. . . Tobin has introduced no evidence as to
how the assignment of mass marketing accounts
would have addressed the particular
deficiencies created by his particular
disability . . . [M]ore mass marketing
accounts would likely have led to increased
sales for any sales representative, whether
disabled or not . . . Assignment of mass
marketing accounts would, therefore, have been
functionally equivalent to altering job
performance requirements and quotas, which the
ADA does not require of employers.

Tobin, 2004 WL 1922133 at *10.5

5
In Calef v. Gillette Co., 322 F.3d 75 (1st Cir. 2003), we wrote
that "[a]n employer has no duty to modify an essential function of
a job. If the plaintiff . . . cannot perform an essential function

-14-
 Immediately prior to this excerpted passage, however, the

district court had concluded -- and we agree -- that there was a

triable issue of fact as to whether access to MM accounts would

have altered the nature of Tobin's job requirements and the

essential functions of his employment. See Tobin, 2004 WL 1922133

at *9 ("The evidence indicates that Schwitters used a number of

subjective factors in assigning mass marketing accounts that had

nothing to do with 'prospecting.' . . . Liberty Mutual has made no

showing that assigning Tobin a mass marketing account . . . would

have created an 'undue hardship.'").

We have noted that many of our cases on essential

function and reasonable accommodation have "turned on the

surprising failure of one party or the other to proffer any

significant evidence in favor of their position." Reed v. LePage

Bakeries, 244 F.3d 254, 260 (1st Cir. 2001). That is exactly the

situation here. Despite its burden to come forward with some

evidence on the essential function issue, see Ward v. Massachusetts

Health Research Inst., Inc., 209 F.3d 29, 35 (2000), Liberty Mutual

has failed to point to any evidence in the record that awarding

Tobin an MM account would change the essential function of his job.

Liberty Mutual asserts on appeal, as it did before the

district court, that accommodating Tobin with an MM account would

have forced the company "to ignore its own performance standards."

of the job, then he is not a qualified individual [under the ADA]
and there is no duty to accommodate." Id. at 86 n.8.

-15-
However, as the district court concluded, there was a disputed

issue of fact as to how MM accounts were assigned. Tobin pointed

to evidence demonstrating that supervisors at the company had used

a number of subjective factors in assigning MM accounts.6 Tobin

also offered evidence that he was the only sales representative in

the office who was expected to meet his sales quotas by prospecting

for sales outside of MM accounts. Given the outstanding material

issue of fact as to how MM accounts were assigned, and, ultimately,

as to the nature of Tobin's essential job requirements, we simply

do not see how the district court could have concluded on a summary

judgment standard that accommodating Tobin with an MM account would

have altered those job requirements.

We do not suggest that Liberty Mutual was required to

accommodate Tobin in a way that would have altered his job

functions. See Calef, 322 F.3d at 86 n.8. If this case goes to

trial, Liberty Mutual can attempt to prove that Tobin's failure to

make sales outside of MM accounts constituted a failure to fulfil

an essential function of the job. If the company does so, it will

prevail after all. Similarly, Liberty Mutual can attempt to prove

that Tobin could not have done his job even if he were given access

6
That Schneiderman was given an MM account even though he was
deficient in sales performance did not constitute evidence that
Tobin was a victim of pretext, because Tobin failed to refute
Liberty Mutual's evidence that the company's motives for
Schneiderman's treatment were non-discriminatory. On the other
hand, Schneiderman's treatment does undermine Liberty Mutual's
assertion that MM accounts were assigned according to sales
performance.

-16-
to an MM account, or that Tobin was not actually disabled under the

ADA. But the evidence in Tobin's favor prevents us from granting

summary judgment on any of these grounds. We therefore vacate the

district court's grant of summary judgment on this claim and remand

the issue to the district court for further proceedings.

C. Failure to Engage in Interactive Process Claim7

Tobin's final claim is that Liberty Mutual failed to

engage in an "interactive process" with him to identify other

appropriate accommodations. The ADA's regulations state that "it

may be necessary for the covered entity [the employer] to initiate

an informal, interactive process with the qualified individual [the

employee] with a disability in need of the accommodation." 29

C.F.R. § 1630.2(o)(3) (2005).8 Thus, once the employer becomes

aware of the disability of an employee, he is expected to engage in

a meaningful dialogue with the employee to find the best means of

accommodating that disability. The district court determined that

7
We recognize that Tobin's "interactive process" claim is a
subsidiary theory of his "reasonable accommodation" argument.
Interactive process, after all, is the first step in a proper
response to a disabled employee's request for reasonable
accommodation. It is a means of ensuring that employers take steps
to understand and address their employees' disabilities.
Nevertheless, we treat Tobin's "interactive process" claim here
separately because the parties briefed the issue separately and
because we believe that it is possible for an employer to satisfy
its duty to engage in "interactive process" yet still fail to
provide "reasonable accommodation" to a disabled employee.
8
State law imposes a similar requirement to engage in an
"interactive process." See Russell v. Cooley Dickinson Hosp.,
Inc., 772 N.E.2d 1054, 1065 (Mass. 2002).

-17-
Tobin did not produce sufficient evidence to support his claim that

Liberty Mutual failed to engage in an "interactive process" with

him.

In Calero-Cerezo v. Dep't of Justice, we noted that

"[t]he scope of the employer's obligation in this [interactive]

process is not crystal clear." 355 F.3d 6, 23-24 (1st Cir. 2004).

Although an "employee's request for reasonable accommodation

requires a great deal of communication between the employee and

employer," Criado v. IBM Corp., 145 F.3d 437, 444 (1st Cir. 1998)

(internal quotation marks and citation omitted) -- something

especially true in cases such as this one, involving an employee

suffering from mental illness, see id. -- this does not mean that

the employer has the unreasonable burden of raising and discussing

every conceivable accommodation with the disabled employee. As the

ADA regulations themselves state, the "interactive process" is to

be "informal" and a means of uncovering "potential reasonable

accommodations" that could overcome the employee's disability. 29

C.F.R. § 1630.2(o)(3) (2005) (emphasis added).

The facts of this case illustrate well the need to

emphasize the employer's limited and carefully-defined role. This

is not an instance where the employer Liberty Mutual simply

rejected any request for accommodation without further discussion.

See García-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 648

n.13 (1st Cir. 2000); see also Jacques v. Clean-Up Group, Inc., 96

-18-
F.3d 506, 515 (1st Cir. 1996) ("There may well be situations in

which the employer's failure to engage in an informal interactive

process would constitute a failure to provide reasonable

accommodation that amounts to a violation of the ADA."). Here,

there was not only a great deal of discussion about Tobin's

difficulties, but significant action on the part of company

officials. Liberty Mutual provided Tobin with multiple

accommodations. The district court noted that "[t]he record is

filled with evidence of accommodations Liberty Mutual made for

Tobin, including the provision of a nurse, computer trainings, and

numerous meetings to help Tobin create the skills and plans to

increase his sales effectiveness." Tobin, 2004 WL 1922133 at *11.

It is hard to imagine that all these measures were simply

"inflicted upon" Tobin without any input on his part. We believe

that Liberty Mutual followed the ADA regulations and that the steps

taken by the company were sufficient to satisfy its obligation to

engage in an "interactive process." We therefore affirm the

district court's holding on Tobin's "interactive process" claim.

III.

For the reasons set forth above, we vacate the order of

the district court regarding Tobin's "failure to accommodate" claim

and remand that issue for further proceedings consistent with this

opinion. The judgment of the district court is affirmed as to

-19-
Tobin's "disability discrimination" and "interactive process"

claims.

Affirmed in part, and vacated and remanded in part. Each

party to bear its own costs on appeal.

"Concurrence follows."

-20-
 HOWARD, Circuit Judge, concurring in part and concurring

in the judgment. I agree with the lead opinion's resolution of

Tobin's discrimination and "interactive process" claims. I also

agree with the result reached on the reasonable accommodation

claim. I write separately, however, to address what I perceive to

be the district court's reason for granting Liberty Mutual

(Liberty) summary judgment on the reasonable accommodation claim.

The lead opinion rejects the district court's reasonable

accommodation ruling because there were disputed facts about the

method by which Liberty assigned employees to mass marketing

accounts. Ante at 15. Liberty presented evidence that such

assignments were merit based, while Tobin presented evidence that

Liberty used non-merit based factors to make these assignments.

See id. This disputed fact relates to Liberty's claim that it was

not required to alter its assigning criteria as a reasonable

accommodation under the Americans with Disabilities Act (ADA).

But, as I read the district court opinion, this is not the ground

on which summary judgment was granted. Tobin v. Liberty Mut. Ins.

Co., No. Civ. A-01-11979-DPW, 2004 WL 1922133, at *9 (D. Mass.

Aug. 30, 2004) (rejecting Liberty's summary judgment argument that

it was not required to change its criteria for assigning mass

marketing accounts because it used merit-based criteria).

The district court rejected Tobin's reasonable

accommodation claim on the basis that assigning him to a mass

-21-
marketing account would not have addressed the symptoms of his

bipolar condition (i.e, inability to organize). As the district

court explained:

Tobin has introduced no evidence as to how the
assignment of mass marketing accounts would
have addressed the particular deficiencies
created by his particular disability. Indeed
. . . more mass marketing accounts would
likely have led to increased sales for any
sales representative whether disabled or not.
To be sure, Tobin's disability is grounds for
accommodation under the ADA, it does not
however, entitle him to any and every change
in work conditions that would improve his
performance. Rather, the accommodation must
be for the disability, and Tobin has nowhere
shown that assignment of mass marketing
accounts were reasonable accommodations for
his particular disability.

Tobin, 2004 WL 1922133, at *10. I am not persuaded that the lead

opinion's reliance on disputed facts related to Liberty's criteria

for selecting agents for mass marketing accounts is sufficiently

responsive to this reasoning.

Nevertheless, I agree that the district court's ruling

was erroneous. The legal principle grounding the holding seems

sound. See Wood v. Crown Redi-Mix, Inc., 339 F.3d 682, 687 (8th

Cir. 2003 ("Where the reasonable accommodation requested is

unrelated to the limitation, we do not believe an ADA action may

lie."). The ADA's purpose is to provide a disabled employee with

a reasonable accommodation that will help the employee overcome the

limitation caused by his or her particular disability; it is not a

statute intended to provide benefits to an employee simply because

-22-
the employee happens to be disabled. See Felix v. N.Y. City

Transit Auth., 324 F.3d 102, 107 (2d Cir. 2003) ("The ADA mandates

reasonable accommodation of people with disabilities in order to

put them on an even playing field with the non-disabled; it does

not authorize a preference for disabled people generally.").

Tobin has, however, generated sufficient record evidence

to permit the conclusion that assigning him to a mass marketing

account would have assisted him in overcoming the particular

limitation caused by his bipolar disability. Tobin's supervisor

testified that Tobin's biggest problem "was identifying potential

new customers and going to see them" but that "he [did] a good job

at closing the sale." There was also evidence that, because mass

marketing accounts provide the assigned agent with a captive

audience of potential clients, closing skills are more important

than business generation skills for agents assigned to these

accounts. On this evidence, a reasonable jury could conclude that

assigning Tobin to a mass marketing account would have assisted him

in overcoming his disability-related problem of being

insufficiently organized to identify and pursue new clients. For

this reason, Tobin's reasonable accommodation claim should proceed.

-23-