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. Appellant Richard Jacques TORRUELLA, Chief Judge. _______________________
("Jacques"), a 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, the district court denied Jacques'
motion for judgment as a matter of law pursuant to Federal Rules
of Civil 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. We affirm.
I. BACKGROUND I. BACKGROUND
Jacques argues that there is insufficient evidence to
support the jury verdict and that the district court therefore
should have granted his motion for judgment as a matter of law
pursuant to Fed. R. Civ. P. 50(a) & (b). We review the court's
denial of the Rule 50 motion de novo, examining the evidence in _______
the light most favorable to the nonmovant, the 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." Wagenmann _________
v. Adams, 829 F.2d 196, 200 (1st Cir. 1987). Reversal of the _____
denial of the motion is warranted "only if the facts and
inferences 'point so strongly and overwhelmingly in favor of the
movant' that a reasonable jury could not have reached a verdict
against that party." Atallah, 45 F.3d at 516 (quoting _______
Acevedo-D az v. Aponte, 1 F.3d 62, 66 (1st Cir. 1993)). Thus, we ____________ ______
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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. Jacques was employed by the Group as an all-
purpose cleaning person between November 6, 1993, and February
1994. Because of his epilepsy, Jacques is not permitted to
operate a motor vehicle in Maine. Throughout his employment, the
Group had regularly assigned Jacques to more than forty hours per
week at various job sites and considered him to be a
conscientious and good worker. Jacques reported to his various
assignments by walking, riding his bicycle, or riding in one of
the Group's vans, which were routinely used when employees,
working as a crew, and equipment had to be transported to a job
site. Employees riding in vans were driven to and from the
Group's office. The Group had never provided transportation to
its employees under other circumstances. On February 19, 1994,
Jacques was laid off from the Group when the crew to which
Jacques was assigned was dissolved. A few days later, on
February 24, the Group offered Jacques a full-time assignment
cleaning the Kennebec Ice Arena (the "Arena"), which was about
three miles from Jacques' home. Of those laid off, Jacques was
the only one of his crew to be offered another assignment.
Although he had never requested a ride to an assignment in the
past, because he could not drive and the Arena was approximately
three miles from his home, Jacques asked the Group's manager,
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Chris Buck ("Buck"), whether he would be catching a ride from the
Group's headquarters or whether a company van would pick him up
on its way to the job site. Buck replied that Jacques would have
to arrange for his own transportation to the Arena. Jacques'
response was that he would inquire into bus routes and schedules
and would telephone Buck right back. Upon gathering the relevant
information, Jacques telephoned Buck and informed him that he
could take a bus and arrive at the Arena sometime between 10:00
a.m. and 10:30 a.m. In reply, Buck informed him that starting at
that time was unacceptable. The Arena assignment required a
start time of 8:00 a.m. as certain public areas had to be
completed prior to, at least, 9:30 a.m. Buck told Jacques that
he would find someone else for the Arena assignment. Another
employee, who the evidence shows did not have a disability, was
subsequently assigned to that assignment.
Jacques was not dismissed from the Group for his
failure to perform the Arena assignment and continued to be
assigned to work seven hours a week on Sundays at the Carlton
Woolen Mills (the "Mills"), an assignment which generally was
considered one of the dirtiest. Jacques had previously worked at
the Mills. The record suggests that it was often an assignment
Group employees did in order to earn overtime. The Group
provided Jacques with transportation to the Mills in one of the
company vans in which two other employees also traveled. Jacques
reported to the Mills assignment from February 27, 1994, through
March 27, 1994, at which point Jacques discontinued reporting to
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that assignment. Jacques has not worked for the Group since
then. Shortly after February 25, 1994, Jacques began soliciting
direct employment 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, alleging that the Group discriminated against him in
regard to his right of return from layoff, rehire and job
assignment by failing to find a "reasonable accommodation" for
his disability.1 After the court denied Jacques' motion for
partial summary judgment,2 the issues of intentional
discrimination and punitive damages were tried to a jury on July
11, 1995. At the close of the Group's evidence, Jacques moved
for judgment as a matter of law pursuant to Fed. R. Civ. P. 50,
which motion was denied. On July 17, 1995, the jury returned a
verdict finding that the Group did not illegally discriminate
against Jacques on the basis of his disability and, consequently,
did not reach the issues of compensatory and punitive damages.
____________________
1 Jacques does not allege that he was discriminated against in
termination or layoff. Indeed, not only is it uncontroverted
that the Group did not terminate Jacques for his failure to
fulfill the Arena assignment and that 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.
2 The district court denied summary judgment on the grounds that
there was "a material dispute about whether [Jacques']
employment, and there [was] insufficient evidence that [Jacques]
suffered some other adverse employment action." Memorandum of
Decision, May 23, 1995 (Docket No. 23).
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Appellant moved again for judgment as a matter of law pursuant to
Fed. R. Civ. P. 50. After reviewing briefs from both parties,
the district court issued its memorandum and decision on October
2, 1995, in which it denied Jacques' motion and entered judgment
in accordance with the jury verdict.
II. APPLICABLE LAW II. APPLICABLE LAW
The ADA is a federal civil rights statute, enacted "to
provide a clear and comprehensive national mandate for the
elimination of discrimination against individuals with
disabilities." 42 U.S.C. 12101(b)(1). "In the employment
context, the ADA prohibits a 'covered entity' (defined as 'a
person engaged in an industry affecting commerce who has 15 or
more employees') from 'discriminat[ing] against a qualified
individual with a disability because of the disability of such
individual in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation,
job training, and other terms, conditions, and privileges of
employment.'" Katz v. City Metal Co, Inc., 87 F.3d 26, 30 (1st ____ ___________________
Cir. 1996) (quoting 42 U.S.C. 12112(a)); see Grenier v. ___ _______
Cyanamid Plastics, Inc., 70 F.3d 667, 671 (1st Cir. 1995). The ________________________
regulations3 adopted under the ADA provide that it is unlawful
for a covered entity to discriminate on the basis of
____________________
3 "Such administrative interpretations of the Act by the
enforcing agency, 'while not controlling upon the courts by
reason of their authority, do constitute a body of experience
and informed judgment to which courts and litigants may properly
resort for guidance.'" Grenier, 70 F.3d at 672 (quoting Meritor _______ _______
Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)). ______________ ______
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"disability," see 42 U.S.C. 12102(2) (defining term), against a ___
"qualified individual with a disability," see 42 U.S.C. ___
12111(8) (defining term), in regard to, inter alia, the right of __________
return from layoff, 29 C.F.R. Ch. XIV 1630.4(b), and job
assignments, 29 C.F.R. Ch. XIV 1630.4(d).
The ADA further provides that the term "discriminate"
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(5)(A). Reasonable accommodations include,
inter alia, "job restructuring [and] part-time or modified work __________
schedules." 42 U.S.C. 12111(9); see 29 C.F.R. App. 1630.2(o) ___
(defining reasonable accommodation). Furthermore, in order
[t]o determine the appropriate reasonable
accommodation, it may be necessary for
the covered entity to initiate an
informal, interactive process with the
qualified individuals with 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 she] was disabled
within the meaning of the Act. Second,
that with or without reasonable
accommodation he [or she] was able to
perform the essential functions of [the]
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job. And, third, that the employer
discharged him [or her] in whole or in
part because of his [or her] disability.
Katz, 87 F.3d at 30. A plaintiff may also indirectly prove his ____
or her case "by using the prima facie case and burden shifting ___________
methods that originated in McDonnell Douglas Corp. v. Green, 411 _______________________ _____
U.S. 792 (1973)." Id. n.2 (citations omitted); see Taylor v. ___ ___ ______
Principal Financial Group, Inc., ___ F.3d ___, ___, 1996 WL _________________________________
350705 at *6 (5th Cir. 1996) (citations omitted). Under the
McDonnell Douglas analysis, a plaintiff must first prove by a _________________
preponderance of the evidence that he or she (i) has a disability
within the meaning of the Act; (ii) is qualified to perform the
essential functions of the job, with or without reasonable
accommodations; (iii) was subject to an adverse employment action
by a company subject to the Act; (iv) was replaced by a non-
disabled person or was treated less favorably than non-disabled
employees; and (v) suffered damages as a result. See Taylor, ___ ___ ______
F.3d at ___, 1996 WL 350705 at *6.
III. PROCEEDINGS BELOW III. PROCEEDINGS BELOW
Below, the Group stipulated to the following: (i) at
the time of Jacques' separation from the Group, it was subject to
the ADA; (ii) Jacques is "disabled" within the meaning of the
ADA; and (iii) the Group was aware of Jacques' disability and
inability to drive a car at the time of the alleged
discrimination. As the district court correctly found, Jacques
was clearly qualified, indeed over-qualified given his education,
for the position of a general purpose cleaner. However, the
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Group argued that Jacques was not "otherwise qualified" because
he could not fulfill, with or without reasonable accommodation,
the "essential function"4 of arriving at the Arena by 8:00 a.m.
and that his suggested accommodations -- transportation and a
later starting time -- would pose an undue burden on the Group.
The jury, thus, was charged with determining whether Jacques was
otherwise qualified to perform the essential function of the job,
with or without reasonable accommodation; whether the Group
illegally discriminated against him on the basis of his
disability; and, if so, if he suffered damages as a result.
Because the jury resolved the merits against Jacques, the
question of damages was never addressed.
Based on the evidence, the district court concluded
that a reasonable jury could find: (i) 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. 1211(10); and (iii) that ___
for these reasons, the jury could reasonably find that Jacques
____________________
4 The EEOC regulations define the term "essential functions" as
"the fundamental job duties of the employment position the
individual with a disability holds" and "does not include the
marginal functions of the position." 29 C.F.R. 1630.2(n)(1).
Among other reasons, a job function may be considered essential
because the position exists to perform that particular function.
See 29 C.F.R. 1630.2(n)(2); Larkins v. Ciba Vision Corp., 858 ___ _______ __________________
F. Supp. 1572, 1580 (N.D.Ga. 1994).
5 According to the Group, the Mills assignment was not intended
to be a reasonable accommodation for Jacques.
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was not otherwise qualified to perform the essential function of
the Arena assignment, with or without reasonable accommodation.
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IV. DISCUSSION IV. DISCUSSION
Turning to the appeal before us, we note first that
Jacques conceded during oral argument that an essential function
of the Arena assignment was the 8:00 a.m. start time.
Consequently, in light of the Group's stipulations below and
Jacques' concession, resolution of this appeal hinges only on
whether the jury properly found that Jacques was not "otherwise
qualified, with or without reasonable accommodation" to perform
the Arena assignment's essential function 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 reasonable jury could
reach the conclusions it set forth in its decision. 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. Not only was Jacques the only person
from the laid-off crew to have been offered the opportunity to
return from layoff, but at the time Jacques was offered the Arena
assignment the Group (including Buck) had full knowledge of
Jacques' disability and his inability to drive; indeed, the
record shows that, with respect to the Arena assignment, Jacques
was both "hired" and "fired" by the same person, Buck. See ___
Tyndall, 31 F.3d at 214 (noting that there is a strong inference _______
of nondiscrimination where the hirer and firer are the same
person).
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Furthermore, the record strongly suggests that Jacques
could have fulfilled the essential function of arriving at the
Arena by 8:00 a.m. without the need for a reasonable _______
accommodation. Jacques testified that he was quite willing to
make his own way to the Group's office some two and half miles
from his home, however, he never explained why he was unwilling
to go the approximate extra half a mile to the Arena. The jury
reasonably could have been swayed by this unexplained refusal
given the uncontroverted evidence that Jacques had never
previously requested transportation and had always 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 for the Group as there was testimony to the
effect that: (i) all of the Group's vans were assigned to other
crews and were unavailable to transport Jacques; (ii) no other
Group employee was available to provide Jacques with
transportation on a daily basis; and (iii) it would be
economically detrimental for the Group to hire another individual
to drive Jacques in light of its profit margin. Further still,
the jury reasonably could have found that accommodating Jacques
by permitting him to start after 10:00 a.m., by splitting his
shift with another employee, or by reassignment to another crew
would be unreasonable as it would eliminate the job's essential
function of arriving at 8:00 a.m. See, e.g., Treadwell v. ___ ____ _________
Alexander, 707 F.2d 473, 478 (11th Cir. 1983) (affirming district _________
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court conclusion that, in light of agency's limited resources,
"doubling up" employees would impose an "undue hardship");
Larkins v. CIBA Vision Corp., 858 F. Supp. 1572, 1583 (N.D.Ga. _______ _________________
1994) (holding that the ADA does not require an employer to
eliminate the essential functions of a job to accommodate an
employee).
This does not end our inquiry, however, as Jacques
faults the district court's denial of his Fed. R. Civ. P. 50
motion. He argues here, as he did below, that the Group
discriminated against him as a matter of law through its
uncontroverted failure to engage in an "informal, interactive
process" with him, within the meaning of 29 C.F.R.
1630.2(o)(3), in order to determine whether a reasonable
accommodation could have been made so that Jacques could get to
the Arena by 8:00 a.m.6 The reasonableness of Jacques' suggested
accommodations and the question of any undue burden for the
Group, Jacques contends, are not even reached in this case. As
Jacques admitted in oral argument, the fundamental basis of his
claim is that the Group's failure to look for, or 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.
____________________
6 For record support, Jacques points to his trial testimony as
well as that of Buck and the Group's President, all of which
demonstrate that the Group made absolutely no effort to find a
reasonable accommodation or otherwise assist Jacques in
determining whether one existed.
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For legal support, Jacques relies on 29 C.F.R.
1630.2(o)(3). In response to the Group's observation that
Jacques' brief provides no case law to support his argument,
during oral argument Jacques pointed us to three cases
interpreting analogous provisions in the Rehabilitation Act of
1973, 29 U.S.C. 791 et seq.,7 and California's Fair Employment _______
and Housing Act ("FEHA"). These cases, he contends, support his
assertion that it is an employer's duty to suggest and provide
reasonable accommodations to the employee. See Buckingham v. ___ __________
United States, 998 F.2d 735, 739-41 (9th Cir. 1993) (upholding _____________
denial of summary judgment for employer on the grounds that there
is no per se rule against employee transfers under the _______
Rehabilitation Act and that employers have duty to "gather
sufficient information" when accommodation is required to enable
employee to perform essential function); Sargent v. Litton _______ ______
Systems, Inc., 841 F. Supp. 956 (N.D.Ca. 1994) (denying summary _____________
judgment 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. 1984) (noting that government's duty to propose or
make reasonable accommodations cannot be triggered by mere
existence of handicapped employee where there is no evidence that
employee was not reasonably accommodated and finding that
____________________
7 "Unless expressly stated otherwise, the standards applied in
the ADA are not intended to be lesser than the standards applied
under the Rehabilitation Act of 1973." 29 C.F.R. 1630.1, App.
(1995).
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employee failed to show how reasons for dismissal were caused by
failure to reasonably accommodate).
For record support, Jacques points to trial testimony
elicited by the Group's after-the-fact investigation into three
area organizations that provide transportation to disabled
individuals. This testimony, Jacques argues, not only
demonstrates his complete unawareness until asked on cross-
examination that those services existed but also that the Group
was better situated to ascertain alternative reasonable
accommodations. Their failure to do so, he points out, is not
surprising given the undisputed testimony that the Group, while
aware that it was subject to the ADA, was unaware of ADA
provisions regarding reasonable accommodations.
The Group counters with two points. First, the Group
argues that 29 C.F.R. 1630.2(o)(3) does not impose an
affirmative obligation upon the employer as it explicitly uses
the term "may," not "shall." Second, the Group points out that
the jury was instructed in accordance with Section 1630.2(o)(3)'s
language and that the jury could have found from the evidence
presented that the Group's failure to suggest additional options
did not constitute a failure to provide reasonable
accommodations. Conceding at oral argument that the employer may
in some situations have specialized knowledge or be otherwise
better situated such that it would be required to suggest
accommodations in the first instance, the Group argues that the
jury could reasonably conclude that this was not such a case.
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The regulations' use of "may" clearly suggests that
Congress, while it could have imposed an affirmative obligation
upon employers in all cases, chose not to. That said, however,
as the Seventh Circuit recently observed, "someone, either the
employer or the employee, bears 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 Cir. 1996), ____ __________________
and 29 C.F.R. 1630.2(o)(3) indicates that "[t]he employer has
at least some responsibility in determining the necessary
accommodation . . . [and that] the regulations envision an
interactive process that requires participation by both parties."
Id. The Fifth Circuit made a similar observation even more ___
recently: "Once the accommodation is properly requested, the
responsibility for fashioning a reasonable accommodation is
shared between the employee and the employer." Taylor, ___ F.3d ______
at ___, 1996 WL 350705 at *8 (stating that the "employee's
initial request triggers employer's obligation to participate in
interactive process" and that employer cannot be held liable for
failing to provide one if employee fails to request an
accommodation.); cf. White v. York Int'l Corp., 45 F.3d 357, 363 ___ _____ ________________
(10th Cir. 1995) (noting that interactive process is triggered
only after employer makes threshold determination that disabled
employee may be accommodated).8
____________________
8 Neither party cited any of these ADA cases. Even though
Taylor was decided after oral argument, neither party filed a ______
supplemental letter pursuant to Fed. R. App. P. 28(j).
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That said, based upon our standard of review, this
appeal begins and ends with the reasonableness of the jury's
verdict: we simply cannot conclude that reasonable persons,
looking at the evidence in the light most favorable to the Group,
and according it all reasonable inferences could not have found
for the Group. See Gallagher v. Wilton Enterprises, Inc., 962 ___ _________ _________________________
F.2d 120, 124 (1st Cir. 1992); Chedd, Angier v. Omni _______________ ____
Publications, Inc., 756 F.2d 930, 934 (1st Cir. 1985). In other __________________
words, we agree with the Group that the jury could have found
from the evidence presented that the Group's 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 to
initiate a discussion with the employee
about appropriate accommodations . . . .
Unlawful discrimination occurs when the
employee's . . . opportunities with
respect to . . . right of return from
layoff, rehiring and job assignment are
adversely affected because of his
disability or because the employer failed
to make a reasonable accommodation.
Tr. Trans. Vol. IV at 388-89. Jacques objected to the court's
refusal to instruct the jury that 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. Nor does he make such a claim
or otherwise challenge the district court's instruction on
appeal.
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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 alternatives did not
constitute a per se failure to provide reasonable accommodations ______
here. The jury reasonably could have concluded that engaging in
an interactive process simply was not necessary in order to ___
determine the appropriate reasonable accommodation. Not only was
there substantial evidence from which to conclude that Jacques
(an intelligent and 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: as we already noted, Jacques never
explained why the extra half mile precluded him from 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 showing that he told employer
that he was limited as a result of his disability); Buckingham, __________
998 F.2d at 742 (noting on remand that employee may meet burden
by showing, inter alia, that accommodation sought is necessary to __________ _________
enable performance of essential function).9
____________________
9 We recognize that, even when qualified employees are able to
perform a job's essential functions, employers may not be
relieved of their duty to accommodate where accommodations are
required to allow equal enjoyment of employment privileges and
benefits or to pursue therapy or treatment. See Buckingham, 998 ___ __________
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Furthermore, apart from his investigation into bus
routes, Jacques presented no evidence that he requested any other
accommodations, inquired whether the Group had any suggestions,
or otherwise indicated that he was still interested in finding a
solution. Cf. Taylor, ___ F.3d at ___, 1996 WL 350705 * 8 __ ______
(noting that responsibility for fashioning accommodation is
shared between employer and employee). While it is
uncontroverted that the Group did not suggest any alternative
accommodations after it rejected as unreasonable Jacques'
proposed accommodations, there is no evidence that the Group
failed to consider Jacques' requested accommodations and "there
is nothing in the record from which we can discern any attempt by
the [Group] to sweep the problem under the rug." Beck, 75 F.3d ____
at 1136 (affirming summary judgment in favor of employer under
the ADA where employee was responsible for breakdown in
interactive process to determine reasonable accommodation); cf. __
Butler, 595 F. Supp. at 1967 (noting that there must be 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 order to
enjoy equal privileges and benefits or to pursue therapy or
treatment for his epilepsy.
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half-a-mile as an implicit refusal of the Arena assignment and
preference to wait for a more convenient assignment to become
available. As Macomber testified, Jacques "rode his bike to
[the] office every single day, and the ice [A]rena was not much
further. That's the reason [why] I offered him the job." In
fact, trial testimony that the Group filed in opposition to
Jacques' application to the Maine Department of Labor for partial
unemployment on the basis that he refused the Arena assignment
suggests that this is precisely how 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 he requested
results from its failure to be properly informed of its
obligations under the ADA. Nevertheless, the Group is spared
from walking the plank given that we cannot conclude under our
circumscribed review of the jury's verdict -- evaluating the
evidence with our "eye[s] toward determining whether it can
support only one outcome," S nchez v. Puerto Rico Oil Co., 37 _______ ____________________
F.3d 712, 716 (1st Cir. 1994) -- that no reasonable jury could
have reached the verdict reached below.
The ADA represents a major commitment by the federal
government to assure adequate protection to Americans with
disabilities. 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
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that amounts to a violation of the ADA. But cases involving
reasonable accommodation turns heavily upon their facts and an
appraisal of the reasonableness of the parties' behavior. The
jury verdict in this case was not irrational, the jury
instructions were not subject to objection, and we leave more
difficult cases to another day.
V. EVIDENTIARY RULING V. EVIDENTIARY RULING
Jacques also argues that the district court abused its
discretion when it admitted into evidence the March 3 letter in
which Jacques made disparaging statements about 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 this, Jacques continues, and because
the letter served merely to reflect upon his character and to
arouse the jury's hostility, it should have been excluded due to
its "extreme prejudicial nature."
As Jacques points out, "[e]vidence having a dual
tendency, inadmissible and gravely prejudicial for one 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 _______ ______
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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. 403, we review Jacques' claim of error under Rule 403
only for plain error pursuant to Fed. R. Civ. P. 103,10
recognizing while we do so that "Rule 403 is a liberal rule under
which relevant evidence generally is admitted." United States v. _____________
McMahon, 938 F.2d 1501, 1508 (1st Cir. 1991); Dente v. Riddell, _______ _____ ________
Inc., 664 F.2d 1, 5 (1st Cir. 1981) ("A trial judge has much ____
latitude in these matters.").
It was clearly not plainly erroneous to admit the
letter on the basis that its probative value outweighed its
prejudicial effect. While the letter does not frame Jacques in a
flattering light, it was certainly not without relevance. In
response to Jacques' relevancy objection, the Group replied below
that the March 3 letter was relevant as it tended to show that
the Group did not intentionally discriminate against Jacques in
making its decision to terminate and failure to rehire. The
court agreed, noting that "if the jury finds it 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 substantial right of the party is affected . . . . In
case the ruling is one admitting evidence, a timely objection or
motion to strike appears on the record, stating the specific
ground of objection, if the specific ground for the objection is
not apparent from the context."
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reasons, it's a factual finding for the jury."11 Even though the
letter was written after the alleged discrimination regarding
Jacques' return from layoff, it was still relevant as it also
tended to show that Jacques was an intelligent, educated and
resourceful individual. It also was probative as to his
credibility. Even were we to assume that the magistrate judge
was faced with a "close call" given the 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. CONCLUSION VI. CONCLUSION
For the foregoing reasons, the decision below is
affirmed. affirmed ________
____________________
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 of the evidence. Id. ("The substantiality of ___
the consideration given to competing interests (potential
prejudice and probative value) can best be guaranteed by an
explicit articulation of the trial court's reasoning."). Because
Jacques failed to raise the issue of prejudicial effect below, we
also review this for plain error. We find none.
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