DeCaro v. Hasbro, Inc.

United States Court of Appeals
For the First Circuit

No. 09-1054

EMILIO DECARO,

Plaintiff, Appellant,

v.

HASBRO, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Boudin, Selya and Dyk,* Circuit Judges.

Tani E. Sapirstein, with whom Sapirstein & Sapirstein, P.C.
was on brief, for appellant.
Neil Jacobs, with whom Harry T. Daniels, Shari G. Kleiner,
Tina Marisam, and Wilmer Cutler Pickering Hale and Dorr, LLP were
on brief, for appellee.

September 2, 2009

*
Of the Federal Circuit, sitting by designation.
 SELYA, Circuit Judge. This appeal involves two claims of

instructional error and a belated claim of error concerning the

procedure to be followed by a trial court under the 2003 amendments

to Federal Rule of Civil Procedure 51. Concluding, as we do, that

no substantive or procedural error tainted the challenged jury

instructions, we affirm.

I. BACKGROUND

We rehearse here only those facts necessary to place this

appeal in context.

Plaintiff-appellant Emilio DeCaro worked for defendant-

appellee Hasbro, Inc., at its plant in Longmeadow, Massachusetts,

for over two decades, most recently as a "first pressman." In that

capacity, the plaintiff operated large-scale printing presses used

to embellish thousands of sheets of cardboard and paper hourly.

In 2001, the plaintiff informed Hasbro that his doctors

had diagnosed him as afflicted with multiple sclerosis.

Notwithstanding this diagnosis, he valiantly continued to work. By

2005, however, his condition had deteriorated and he began a

regimen of chemotherapy. He left work and, in July of that year,

applied for Social Security Disability Insurance (SSDI) benefits.

The plaintiff's SSDI application has particular

pertinence here. In it, he made a series of factual averments

touching upon his physical condition, some in his own hand and

others in the form of answers provided orally to a government

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scrivener who typed his responses into the application. These

averments (the accuracy of which was disputed at trial) included

claims that the plaintiff was unable to work and descriptions of

his particular physical impairments.

The plaintiff attempted to return to work on November 29,

2005. A company nurse dashed his hopes; after observing the

plaintiff's physical appearance, she forbade him from resuming his

position without a doctor's note. On November 30, the plaintiff's

physician wrote a letter opining that the plaintiff should eschew

employment until the following February.

On February 2, 2006, the plaintiff again tried to reclaim

his job. The company demurred, citing the lack of a

contemporaneous medical clearance. This sort of pas de deux

occurred at least twice more during the next four months; the short

of it is that Hasbro did not allow the plaintiff to return to work.

Disappointed by Hasbro's unwillingness to restore him to

its work force, the plaintiff brought suit against the company in

a Massachusetts state court. In his complaint, filed on June 9,

2006, he asserted a gallimaufry of discrimination and breach of

contract claims, all arising under state law. This asseverational

array included claimed violations of Massachusetts's principal

anti-discrimination statute (Massachusetts General Laws ch. 151B).

Hasbro removed the case to the United States District

Court for the District of Massachusetts on the basis of diversity

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of citizenship and the existence of a controversy in the requisite

amount. See 28 U.S.C. §§ 1332(a)(1), 1441. Following a period of

pretrial discovery, the district court granted summary judgment in

Hasbro's favor on the breach of contract claim.1 An eight-day jury

trial ensued on the state-law discrimination claims.

As the trial wound down, the district court convened a

charge conference, see Fed. R. Civ. P. 51(b), to discuss how the

jury was to be instructed. A court reporter attended the charge

conference and memorialized what transpired. The court commented

upon the parties' proposed instructions and indicated generally

which instructions it would give and which it would eschew.

Among other things, Hasbro proposed an instruction

concerning both the effect of the statements contained in the

plaintiff's application for SSDI benefits and his receipt of those

benefits. Its proposed instruction read in relevant part:

On his application for those benefits Mr.
DeCaro represented that he was disabled and
unable to work. Mr. DeCaro is bound by his
statements on his application for disability
and you must presume the truth.

The court noted that it would give an SSDI instruction, but not one

that was stated "with as much intensity" as Hasbro's suggested

instruction. Instead, the court planned to "say that the jury is

entitled to take into consideration the statements made by Mr.

1
That ruling is not challenged on appeal and, thus, we do not
dwell on it.

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DeCaro in his application for [SSDI] benefits" and may find that

those statements "are evidence that in fact he viewed himself as

unable to perform the essential functions of his job."

Switching to a different subject, the plaintiff noted

conflicting characterizations of the evidence about what Hasbro

knew anent his disability and whether and when he had requested

some sort of accommodation to permit him to work notwithstanding

that disability. Accordingly, he proposed an instruction relating

to an employer's duty under Massachusetts law to provide a

reasonable accommodation, even in the absence of any request that

it do so. The court stated that it had read the relevant case law,

see, e.g., Leach v. Comm'r of Mass. Rehab. Comm'n, 827 N.E.2d 745,

749 (Mass. App. Ct. 2005), and had concluded that Massachusetts law

does not impose such an affirmative duty on the employer in the

circumstances at hand.

The attorneys for the parties delivered their summations

the next day. Immediately thereafter, the court charged the jury

and simultaneously gave a written copy of the charge to each party.

With respect to the receipt of SSDI benefits and the

statements made in the plaintiff's application for those benefits,

the court instructed:

Defendant has pointed to the fact that,
while plaintiff was out on voluntary medical
leave, plaintiff applied for, and has been
continuously receiving, social security
disability benefits since November 2005.
Plaintiff's application for those benefits

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included representations about the physical
requirements of the first pressman position
and statements about his physical limitations
at the time of his application.

You should examine the statements made
by plaintiff in the application for social
security disability benefits and consider
whether these statements constitute admissions
by him that he was in fact unable to perform
the essential functions of his job, with or
without a reasonable accommodation, at the
time he completed his social security
disability application. A plaintiff is not
permitted to say one thing in applying for
disability benefits and another thing,
entirely the opposite, in seeking damages for
discrimination.

In making this examination you should
consider all the facts and circumstances
surrounding the submission of the application.
To the extent that you find that statements
made in plaintiff's application for social
security disability benefits were made by
plaintiff, you may decide that they reflected
the truth when made, and you may consider them
as evidence related to Mr. DeCaro's ability to
perform the essential functions of the first
pressman position, with or without
accommodation, on the dates he attempted to
return to work.

At the same time, keep in mind that the
standard for determining eligibility for
social security disability benefits is
different from the standard you must apply in
determining whether plaintiff was able, with
or without reasonable accommodation, to
perform the essential functions of his job.
The fact that Mr. DeCaro received social
security disability benefits is not in itself
necessarily fatal to a claim that he was able
to perform the essential functions of his job.
However, the receipt of benefits and the
statements made by plaintiff in applying for
them are items of evidence you may consider in
making this determination.

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 With respect to the initiation of a reasonable

accommodation, the court instructed:

When a plaintiff in a disability
discrimination case contends that he was
entitled to a reasonable accommodation in
order to perform the essential functions of
his job, he must present evidence to persuade
the jury that he actually initiated a request
for the accommodation and engaged in an
interactive process with the employer to work
out the possible accommodation. As part of
this process the employer may request medical
records and make inquires of the employee
about his medical condition. If you find on
the facts of this case that plaintiff never
requested a specific accommodation, then you
cannot find that defendant violated
plaintiff's rights by failing to offer him
one.

After completing its charge but before allowing the jury

to retire, the court brought counsel to sidebar. There — out of

the jury's earshot — it inquired about objections. See Fed. R.

Civ. P. 51(b)(2). The plaintiff's attorney objected to the SSDI

instruction on two grounds, asserting that the instruction (i)

"simply overstates the law in Massachusetts" and (ii) should have

told the jurors that the receipt of SSDI benefits was "not fatal at

all" to the claims being tried. The lawyer also objected to the

accommodation instruction insofar as it obligated the plaintiff, as

a condition precedent to recovery, to request a specific

accommodation. The district court overruled these objections and

sent the jury to the jury room to deliberate.

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 To assist the jurors in their task, the court gave them

a written copy of its charge. It also prepared a special verdict

form. See Fed. R. Civ. P. 49(a). The form, a replica of which is

attached hereto as Appendix A, posed a series of questions.

Neither party interposed any objection to either the use or the

wording of the special verdict form. The parties thus waived the

right to object to these matters on appeal. See Clausen v. Sea-3,

Inc., 21 F.3d 1181, 1196 (1st Cir. 1994); La Amiga del Pueblo, Inc.

v. Robles, 937 F.2d 689, 692 (1st Cir. 1991).

In due course, the jury concluded its deliberations. The

first question on the special verdict form has four sub-parts, and

the jurors answered all four sub-parts in the negative. These

answers memorialized their conclusion that, on the dates in

question, the plaintiff was not qualified to perform the essential

functions of the first pressman position with or without an

accommodation. Because those answers were dispositive, the jury —

in accordance with directions contained in the special verdict form

— found in favor of Hasbro and refrained from answering any other

questions set out in the form.

This timely appeal ensued. We have jurisdiction under 28

U.S.C. § 1291.

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II. ANALYSIS

We divide our analysis into two segments. The first

deals with the objections made at sidebar. The second deals with

a newly emergent claim of procedural error.

A. The Sidebar Objections.

The plaintiff's briefs assign error to the overruling of

his objections to the SSDI and accommodation instructions. The

defendant counters, as a threshold matter, that the plaintiff's

claims of instructional error have been waived. In its view, the

plaintiff failed to comply at sidebar with either Rule 51(c)(1),

which requires that an objection "stat[e] distinctly the matter

objected to and the grounds for the objection," or Rule

51(d)(1)(B), which requires that an objection to a failure to

instruct be accompanied by a statement of the desired instruction.

The strictures of Rule 51 are not to be taken lightly.

Baron v. Suffolk County Sheriff's Dep't, 402 F.3d 225, 235 (1st

Cir. 2005). Accordingly, there is a high price to be paid for

noncompliance. A substantial failure to comply with those

requirements normally results in forfeiture of the objection to

which the failure relates. Surprenant v. Rivas, 424 F.3d 5, 15

(1st Cir. 2005). Forfeited objections are reviewed only for plain

error. Toscano v. Chandris, S.A., 934 F.2d 383, 385 (1st Cir.

1991); Fed. R. Civ. P. 51(d)(2).

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 We begin with the plaintiff's objections to the SSDI

instruction. The objections, quoted above, are not models of

clarity and, although such objections have to be evaluated in light

of the colloquy that transpired at the charge conference the day

before, see Gray v. Genlyte Group, Inc., 289 F.3d 128, 133-34 & n.1

(1st Cir. 2002); Wilson v. Mar. Overseas Corp., 150 F.3d 1, 7 (1st

Cir. 1998), saying that something "simply overstates the law" or

that the jury should be admonished that receipt of SSDI benefits is

"not fatal at all" does not go very far toward preserving

particular legal points. This is especially so where, as here, the

judge did not say that receipt of the SSDI benefits was fatal. The

purpose of a sidebar objection is to inform the judge exactly what

he got wrong and what he should do to remedy the incipient harm.

In this case, the problem is compounded. The plaintiff

offers an array of grounds on appeal, and the extent to which each

ground might have been apparent from the pretrial discussion

varies.

In the end, however, the degree to which the SSDI

objections are or are not preserved does not alter the outcome of

the appeal. Consequently, we will assume for argument's sake that

the objections to the SSDI instruction were preserved.

No such reservation is required for the plaintiff's

asseveration that the jury should have been instructed on an

employer's duty to initiate consideration of a reasonable

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accommodation. That objection presented a fairly clear choice

between giving such an instruction or withholding it, and the

objection echoed an instruction proposed by plaintiff's counsel and

discussed in some detail at the charge conference. That the

objection itself was terse did not, in the idiosyncratic

circumstances of this case, deprive it of force. After all, the

root purpose of Rule 51 is to ensure that the district court is

given actual notice of the nature and grounds of a party's claim

that the court's instructions are deficient; style points are not

awarded for the form of an objection. See Wilson, 150 F.3d at 7.

We turn, then, to the merits of the objections, starting

with a few words about the standard of review.

Preserved claims of instructional error are reviewed

under a split standard. We review de novo questions as to whether

jury instructions capture the essence of the applicable law, while

reviewing for abuse of discretion questions as to whether the

court's choice of phraseology in crafting its jury instructions is

unfairly prejudicial. See United States v. Nascimento, 491 F.3d

25, 33-34 (1st Cir. 2007); Elliott v. S.D. Warren Co., 134 F.3d 1,

7 (1st Cir. 1998).

1. The SSDI Instruction. The plaintiff challenges the

SSDI instruction as inconsistent with the Supreme Court's decision

in Cleveland v. Policy Management Systems Corp., 526 U.S. 795

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(1999).2 He argues that the effect of the instruction was to

establish a forbidden presumption that the receipt of SSDI benefits

precludes a finding that an employee is able to perform the

essential functions of his job, with or without an accommodation.

In order to put this claim of error into perspective, it

is useful to step back and examine Cleveland. There, a district

court granted summary judgment in favor of an employer in a suit

brought under the Americans with Disabilities Act (ADA), 42 U.S.C.

§ 12101 et seq. The district court reasoned that the plaintiff's

application for and receipt of SSDI benefits estopped her as a

matter of law from claiming that she was capable of performing the

essential functions of her job. The Fifth Circuit affirmed but

softened the reasoning; it held that the receipt of SSDI benefits

creates a rebuttable presumption that the employee cannot perform

the essential functions of her job. Cleveland v. Policy Mgmt. Sys.

Corp., 120 F.3d 513, 518 (5th Cir. 1997). Because the plaintiff

had failed to proffer evidence sufficient to overcome that

presumption, her appeal failed. Id.

The Supreme Court saw the matter differently. The

Justices reversed, finding the SSDI scheme and the ADA scheme

separate and distinct. 526 U.S. at 801-05. Consequently, receipt

of benefits under the former scheme does not create any presumption

2
The reasoning of the Cleveland Court has been adopted by the
Supreme Judicial Court of Massachusetts. See Russell v. Cooley
Dickinson Hosp., Inc., 772 N.E.2d 1054, 1062 (Mass. 2002).

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(conclusive or rebuttable) with respect to a parallel ADA claim.

Id. at 805. Withal, the Court was careful to note that an employee

may not simply ignore seeming contradictions between statements

made in an application for SSDI benefits and elements of an ADA

claim. Id. at 807. Rather, the employee must explain such seeming

contradictions. Id.

Seen in this light, we believe that the district court's

SSDI instruction comports with the thrust of the Cleveland Court's

holding. Pertinently, the court told the jury that the mere "fact

that Mr. DeCaro received [SSDI] benefits is not in itself

necessarily fatal to his claim." The court further told the jury

to "consider" whether the statements made by the plaintiff in

applying for SSDI benefits constituted "admissions" as to his

inability to perform the essential functions of his job. In

resolving that point, the jurors were urged to "consider all the

facts and circumstances." Finally, the court warned the jury to

"keep in mind that the standard for determining eligibility for

[SSDI] benefits is different from the standard you must apply in

determining whether plaintiff was able, with or without reasonable

accommodation, to perform the essential functions of his job."

These are correct statements of the law, consistent both with

Cleveland and with Massachusetts law. See Russell v. Cooley

Dickinson Hosp., Inc., 772 N.E.2d 1054, 1062 (Mass. 2002).

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 Relatedly, the plaintiff argues that the court erred in

failing either to use the phrase "not fatal at all" or to emphasize

that a change in conditions from one date to another could

constitute an acceptable means of harmonizing seemingly

contradictory statements. The first of these points is flatly

incorrect: instructing the jury that the plaintiff's statements and

the consequent receipt of benefits were "not fatal at all" would

have usurped the jury's province.3 The point of the Cleveland

decision is that such statements may or may not be inimical to an

employment discrimination claim. Everything depends on

interpretation: how the jurors view the statements and the receipt

of benefits in the context of the overall situation.

The second part of this objection deals with matters of

emphasis and choice of phraseology. While it might have been

appropriate for the district court to make an express reference to

the effect of a "change in conditions," that reference was not

required. In instructing a jury, a trial court is not obliged

either to embellish legally correct statements or to cover every

factual permutation.4 Febres v. Challenger Carib. Corp., 214 F.3d

3
While the court's use of the phrase "not in itself
necessarily fatal" may have been an awkward locution, that wording
is reminiscent of similar language in both Cleveland, 526 U.S. at
797 (using the phrase "does not necessarily estop"), and Russell,
772 N.E.2d at 1062 (similar).
4
Let us be perfectly clear: we do not suggest that the
instruction given by the district court would necessarily be
sufficient in all circumstances. Consequently, we do not foreclose

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57, 62-63 (1st Cir. 2000); see United States v. DeStefano, 59 F.3d

1, 2-3 (1st Cir. 1995).

By the same token, we believe that the court's admonition

that "[a] plaintiff is not permitted to say one thing in applying

for disability benefits and another thing, entirely the opposite,

in seeking damages for discrimination," was within the realm of its

discretion. That admonition leaves ample room for an explanation

as to why two seemingly contradictory statements are not in fact

inconsistent.

The plaintiff makes a last-ditch argument to the SSDI

instruction. Citing Rosebud Sioux Tribe v. A & P Steel, Inc., 733

F.2d 509 (8th Cir. 1984), he suggests that a party can successfully

appeal a legally correct jury instruction that places undue

emphasis on an aspect of the law that favors the other party. See

id. at 519. In the abstract, that may well be a correct statement

of a legal principle — but the principle has no application here.

A trial judge has broad discretion in deciding how best

to communicate complicated legal rules to a lay jury. See, e.g.,

Febres, 214 F.3d at 62-63. That discretion was not exceeded — or

even severely tested — in this case. Both the length of the SSDI

instruction and its points of emphasis were warranted by the

subtlety of the issue.

the possibility that, in a future case, a different or more
detailed instruction might be required, depending on the facts and
the issues.

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 To say more about the SSDI instruction would be

supererogatory. That instruction is legally correct and, in the

final analysis, its phrasing is within the encincture of the

district court's discretion. See United States v. McGill, 953 F.2d

10, 12 (1st Cir. 1992) ("So long as the charge sufficiently conveys

the [party's] theory, it need not parrot the exact language that

the [party] prefers.").

2. The Accommodation Instruction. The plaintiff's other

claim of instructional error need not detain us. He complains of

the jury instructions regarding an employer's duty to offer a

reasonable accommodation to an employee who suffers from a

disability. Specifically, he asserts that, under certain

circumstances, an employer may be obliged to initiate a discussion

about the feasability of such an accommodation. See Leach, 827

N.E.2d at 749. This case, he says, called for such an instruction.

This claim of error is moot. Under the circumstances, an

employer's duty to accommodate does not arise unless (at a bare

minimum) the employee is able to perform the essential functions of

his job with an accommodation. See Cleveland, 526 U.S. at 805-06;

Russell, 772 N.E.2d at 1062.

Here, the jury ended its deliberations once it determined

that the plaintiff was not able to perform the essential functions

of the first pressman position, with or without an accommodation,

on any of the four dates in question. See App'x A. The special

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verdict form directed the jurors that "[i]f you have answered 'No'

as to all four dates, stop. . . . You will have completed your

deliberations." Id. That became the law of the case. See

Clausen, 21 F.3d at 1196. Therefore, the jury never had occasion

to reach the logically subsequent question of the employer's duty

to accommodate. It follows inexorably that any error regarding the

court's instructions on that issue — and we do not suggest that any

error occurred here — was harmless. Consequently, we have no need

to address the issue. See Faigin v. Kelly, 184 F.3d 67, 87 (1st

Cir. 1999).

B. The Procedural Objection.

There is one more bridge to cross. At oral argument, the

plaintiff launched an offensive in the form of a complaint that the

district court failed to follow the procedure delineated in Federal

Rule of Civil Procedure 51. This late-blooming claim of procedural

error posits a mistake of law that, under ordinary circumstances,

would engender de novo review. Here, however, the circumstances

are out of the ordinary: the argument is doubly defeated.

In the first place, the plaintiff did not

contemporaneously object when the district court implemented the

challenged procedure (that is, when it charged the jury without

having first presented the parties with the full text of the

charge). Thus, the claim of error is not properly before us. See

United States v. Slade, 980 F.2d 27, 30 (1st Cir. 1992) ("It is a

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bedrock rule that when a party has not presented an argument to the

district court, she may not unveil it in the court of appeals.").

In the second place, the plaintiff did not proffer this claim of

error in his opening brief on appeal. It is common ground that

contentions not advanced in an appellant's opening brief are deemed

waived. See Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st Cir.

1990).

Even were this contention properly preserved, it would be

futile. The plaintiff points out that a recent amendment to Rule

51 requires the court to "inform the parties of its proposed

instructions and proposed action on the requests before instructing

the jury and before final jury arguments," Fed. R. Civ. P.

51(b)(1). The plaintiff argues that this language in effect

directs a trial court to provide counsel with a verbatim copy of

its intended jury instructions at the charge conference. He then

notes that the court below first informed him of the exact language

of the SSDI instruction when he listened, along with the jury and

opposing counsel, to the charge being delivered in open court.

This omission, he declares, violated Rule 51(b)(1).

This is an overly crabbed reading of the rule. Rule 51,

in its current form, reflects amendments made in 2003.5 These

revisions were designed to "capture many of the interpretations

5
To be sure, Rule 51 was further amended in 2007, but the
2007 revisions were of a purely stylistic nature. Fed. R. Civ. P.
51 advisory committee's note (2007 amendments).

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that have emerged in practice." Fed. R. Civ. P. 51 advisory

committee's note (2003 amendments). There is no indication,

however, that the drafters envisioned a change in practice as to

how the charge conference should be conducted; to the contrary, the

revised version of the rule contains language strongly resembling

that found in the earlier pre-amendment version. Compare Fed. R.

Civ. P. 51(b)(1) (2009) ("The court must inform the parties of its

proposed instructions . . . before instructing the jury and before

final jury arguments . . . ."), with Fed. R. Civ. P. 51 (2002)

("The court shall inform counsel of its proposed action upon the

requests [for instructions] prior to . . . arguments to the

jury.").

This family resemblance is critically important because,

under the earlier version, a number of courts of appeals had held

that the rule did not require the delivery of written jury

instructions to the parties before the court actually delivered the

charge. See, e.g., Jones v. S. Pac. R.R., 962 F.2d 447, 451 (5th

Cir. 1996); Emerick v. U.S. Suzuki Motor Corp., 750 F.2d 19, 22-23

(3d Cir. 1984); Beimert v. Burlington N., Inc., 726 F.2d 412, 414

(8th Cir. 1984); Puggioni v. Luckenbach S.S. Co., 286 F.2d 340, 344

(2d Cir. 1961). The relatively minor changes in the text of the

rule do not justify deviating from this uniform result.

The plaintiff argues that the drafters of the 2003

revisions intended to equate "proposed action" with "draft

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instructions." We disagree. The advisory committee's note states

flatly that "[i]t is enough that counsel know of the intended

instructions before making final arguments addressed to the issue."

Fed. R. Civ. P. 51 advisory committee's note (2003 amendments).

That is exactly what the lower court did here.

In any event, we previously have stated that the post-

2003 version of the rule, Fed. R. Civ. P. 51(b)(1), does not

require the trial judge to supply the parties with a written copy

of the instructions before charging the jury. Cipes v. Mikasa,

Inc., 439 F.3d 52, 55 n.1 (1st Cir. 2006). Sufficiently informing

the parties of the court's proposed instructions is all that the

rule requires; no particular convention need be employed. See id.;

see also Fed. R. Civ. P. 51 advisory committee's note (2003

amendments) ("It is enough that counsel know of the intended

instructions . . . ."). Indeed, some judges, acting within the

ambit of their discretion, prefer to instruct juries orally,

without ever preparing written instructions.

We conclude, without serious question, that a district

court is under no obligation to give the parties the full text of

its intended instructions at any time before the jury is charged.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we affirm the judgment of the district court.

Affirmed.

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 Appendix A

EMILIO DECARO, )
Plaintiff )
) C.A. 06-30107-MAP
v. )
)
HASBRO, INC., )
Defendant )

SPECIAL VERDICT FORM

We the jury unanimously respond to the following
questions.

1. Has Plaintiff proved by a preponderance of the
evidence that he was able to perform the essential functions of the
First Pressman position, with or without reasonable accommodation,
on one of more of the following dates:

November 29, 2005 __________ __________
Yes No
February 2, 2006 __________ __________
Yes No
May 15, 2006 __________ __________
Yes No
June 6, 2006 __________ __________
Yes No

Note: If you answered "No" as to all four dates, stop. The
foreperson should sign the verdict slip. You will have completed
your deliberations.

2. Has Plaintiff proved by a preponderance of the
evidence that discrimination by Defendant based on Plaintiff's
handicap was a determinative cause of Defendant's decision not to
permit Plaintiff to return to work, or not to offer Plaintiff a
reasonable, requested accommodation, on one or more of the
following dates:

November 29, 2005 __________ __________
Yes No
February 2, 2006 __________ __________
Yes No

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May 15, 2006 __________ __________
Yes No
June 6, 2006 __________ __________
Yes No

Note: If you answered "No" as to all four dates, stop. The
foreperson should sign the verdict slip. You will have completed
your deliberations. If you have answered "Yes" as to one or more
of the same dates in both Questions 1 and 2, then proceed to the
next question.

3. What is the amount of damages that will fairly and
reasonably compensate Plaintiff for his lost past wages and
emotional distress caused by Defendant's discriminatory conduct?

__________________________________________________ (in words)

$______________. _______ (in figures)

_____________________ __________________
Foreperson Date

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