Tobin v. Liberty Mutual Insurance

United States Court of Appeals
For the First Circuit

Nos. 07-1764, 07-1765

KEVIN W. TOBIN,

Plaintiff-Appellee/Cross-Appellant,

v.

LIBERTY MUTUAL INSURANCE COMPANY,

Defendant-Appellant/Cross-Appellee.

APPEALS 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.

Lisa J. Damon, with whom Susan W. Gelwick and Seyfarth Shaw
LLP were on brief, for defendant-appellant.
Frank J. Frisoli for plaintiff-appellee.

January 23, 2009
 LIPEZ, Circuit Judge. A jury awarded plaintiff Kevin

Tobin more than $1.3 million in damages based on the failure of his

employer, Liberty Mutual Insurance Company, to accommodate his

disability as required by federal and state law. The district

court subsequently ordered a $90,000 remittitur, but rejected

Liberty Mutual's contention that the evidence was insufficient to

support either liability or the remaining damages award. The court

also rebuffed the company's argument that the statute of

limitations had run on Tobin's claims.

On appeal, Liberty Mutual renews its sufficiency and

statute-of-limitations challenges and also argues that the district

court erred in calculating prejudgment interest. Tobin cross-

appeals, claiming that the district court erred in refusing to

instruct the jury on punitive damages and denying attorney's fees

pending final judgment. After careful review of the record, we

affirm.

I.

A. Prior Proceedings

Tobin was terminated by Liberty Mutual in January 2001

after working for the company for nearly thirty-seven years. For

most of that time, he served as a sales representative responsible

for selling insurance and assisting customers with needs related to

their insurance policies. He had been under the care of a

-2-
psychiatrist since 1976, was diagnosed with bipolar disorder in

1992, and had taken short-term disability leaves in 1997 and 1998.

Following his termination, Tobin filed this action

against the company alleging, inter alia, disability

discrimination, including a failure to accommodate, pursuant to the

Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213,

and the Massachusetts anti-discrimination statute, Mass. Gen. Laws

ch. 151B ("Chapter 151B").1 Liberty Mutual defended against the

claims by asserting that Tobin did receive certain accommodations

and was not entitled to others, and that he was fired because of

poor job performance.

In its initial consideration of the case, the district

court granted summary judgment for Liberty Mutual on all claims.

Tobin then appealed. See Tobin v. Liberty Mut. Ins. Co., 433 F.3d

100 (1st Cir. 2005). We agreed with the district court that Tobin

had failed to adduce evidence showing that the company's proffered

reason for his discharge was pretextual. We noted that Liberty

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

'longstanding performance deficiencies,'" id. at 105-06, which

included failing to meet minimum quotas and standards and not

showing up for meetings with supervisors. We therefore held that

1
He also alleged various other causes of action, including
age discrimination and wrongful termination, but those claims were
abandoned early in the litigation.

-3-
the district court correctly granted summary judgment on Tobin's

pretext claim. Id. at 106.

We reached the contrary conclusion with respect to the

"reasonable accommodation" claim. Under both the ADA and Chapter

151B, employers are required to assist an otherwise qualified

employee who has a disability by providing reasonable

accommodations that would enable him to perform his job. 42 U.S.C.

§ 12112(b)(5)(A);2 Mass. Gen. Laws ch. 151B, § 4(16).3 However, in

making such accommodations, an employer is not obliged to alter an

employee's essential job functions. Tobin, 443 F.3d at 107. After

reviewing the evidence offered on Tobin's accommodation claim, we

discerned a triable issue of fact as to whether Tobin would be able

2
The ADA's definition of 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 [the] covered entity can
demonstrate that the accommodation would impose an undue hardship
on the operation of the [entity's] business." 42 U.S.C. §
12112(b)(5)(A).
3
We previously have noted that Chapter 151B "tracks the ADA
in virtually all respects." Gillen v. Fallon Ambulance Serv.,
Inc., 283 F.3d 11, 20 n.5 (1st Cir. 2002); see also Mulloy v.
Achushnet Co., 460 F.3d 141, 154 (1st Cir. 2006) ("'[T]he Supreme
Judicial Court of Massachusetts has indicated that federal case law
construing the ADA should be followed in interpreting the
Massachusetts disability law.'" (quoting Ward v. Mass. Health
Research Inst., Inc., 209 F.3d 29, 33 n.2 (1st Cir. 2000)));
Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 772 N.E.2d
1054, 1062 n.6 (Mass. 2002) ("We look to the Federal cases decided
under the ADA as a guide to the interpretation of G.L. c. 151B.").
The only difference of significance here is the length of the
statutes of limitation. Other than in our discussion of that
issue, infra Section II, we will focus on the ADA and federal case
law. See Tobin, 433 F.3d at 104 n.2.

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to perform the essential functions of his job if provided the

accommodations he had requested. We therefore remanded that claim

for further proceedings.4 The district court held an eleven-day

jury trial that produced the verdict for Tobin that Liberty Mutual

challenges in this appeal.

B. Tobin's Work Problems and Requests for Accommodation

1. History of Deteriorating Performance

Tobin's bipolar disorder affected his ability to do his job in

a variety of ways. His focus and concentration were impaired, and

he had difficulty prioritizing and completing work. Most tasks

took him longer than in the past to accomplish, and he had

difficulty transitioning from one task to the next. Multiple

witnesses testified about the jumble of papers that typically

covered his desk. Stress tended to worsen his problems in managing

his workload. Tobin's limitations made it difficult for him to

find prospective customers in sufficient numbers to meet the

company's sales goals. Although Tobin had accumulated a large

"book" of business over the years – insurance policies that renewed

4
In our earlier decision, we also discussed Tobin's assertion
that Liberty Mutual failed to engage in an "interactive process"
with him to identify appropriate accommodations, 433 F.3d at 108-
09, although we recognized that that claim was "a subsidiary theory
of his 'reasonable accommodation' argument." Tobin, 433 F.3d at
108 n.7. We held that the district court properly found that
Liberty Mutual had satisfied its obligation to engage in an
interactive process, and had, in fact, provided Tobin with
accommodations other than the ones at issue here. Id. at 109. We
therefore do not consider the "interactive process" aspect of
Tobin's accommodations claim in this opinion.

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and continued to bring in significant profits in annual premiums –

by the early 1990s he began to routinely fall short of annual

quotas for new policy sales.

Tobin's supervisor in the mid-1990s, Mike Robin, first took

action against Tobin in 1996, giving him a written warning stating

that failure to meet his sales requirements would lead to probation

and possible termination. Although Liberty Mutual waived that

probationary period because Tobin's wife was ill, Robin implemented

a nine-week warning period on November 21, 1997, requiring Tobin to

improve his performance by increasing sales and participating in

sales initiatives.

Two weeks into that period, Tobin took his first short-term

disability leave of absence, which extended from December 1997

until June 1998. He took a second disability leave from September

1998 until January 1999. Each time he returned to work, he was

placed on a reduced schedule for a month before resuming full-time

duties. During his re-entry periods, he received additional

training and met with his supervisor regularly to review his

performance and discuss ways that he could increase his sales.

After both leaves, when he returned to full-time work, the warning

period that had been suspended when he took his first leave was

reinstated.

When Tobin returned from the second leave in January 1999,

Liberty Mutual hired a nurse to assist him in transitioning back

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into full-time sales work. Although he managed to sell enough

policies in February to avoid a threatened four-week probation, his

then-supervisor, Manina Schwitters, stated in a letter dated March

8, 1999, that she would monitor Tobin's sales results in four-week

increments for the rest of the year. He failed to satisfy his

quota in March (selling only ten policies instead of twenty-four),

but successfully completed the resulting probation by selling the

required thirty policies. His performance continued to

deteriorate, however; he was given another warning period in

October 2000, and then placed on probation from November 27, 2000

through January 5, 2001. He failed to sell the required thirty

policies during that period and was terminated on January 10, 2001

for consistent poor performance.

2. Requests for Accommodation

It is undisputed that Tobin repeatedly asked Liberty Mutual to

help him achieve his performance goals by giving him two forms of

assistance: (1) providing him with increased support staff to

respond to customer service calls, which would allow him to devote

more time to new sales, and (2) assigning him to manage a "Mass

Marketing" account. Mass Marketing ("MM") accounts are group

insurance programs offered to businesses and other institutions in

which employees or members are able to purchase insurance policies

at a discount. Both the insurance company as a whole and

individual sales representatives highly value MM accounts because

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they offer access to a large volume of potential clients in a

single location. It is not uncommon for more than a dozen

individuals whose employer has newly signed up for an MM account to

meet with a sales representative at their workplace in back-to-back

time slots on a single day.

Tobin sought to prove at trial that he would have been able to

overcome the difficulties caused by his disability, and could have

met his quotas, if Liberty Mutual had given him adequate customer

service support and assigned him to an MM account. He claimed that

these accommodations would have compensated for the disadvantages

caused by his disability without altering the essential functions

of his job. He elicited testimony indicating that he had

difficulty finding prospective clients, but that he had good

closing skills once he was engaged in a sales call. He also

suggested that the time he had available to prospect for new

clients was disproportionately consumed by his need to respond to

service calls from his large number of long-time clients.

In response, Liberty Mutual offered evidence that Tobin was

provided with the support staff he needed and that he was not

qualified to handle an MM account. Liberty Mutual argued that MM

accounts were distributed solely on the basis of merit to sales

representatives who were actively pursuing other such accounts and

who otherwise were meeting their sales quotas. In addition,

company representatives testified that managing an MM account

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required strong organizational and time-management skills because

of the sales representative's need to move from task to task when

meeting in rapid succession with many individuals. Such

circumstances also made MM sales encounters particularly stressful.

In effect, the company attempted to show that Tobin could not have

done the job even with the accommodation of an MM assignment and

Liberty Mutual was therefore not obliged to make such an

accommodation.

Liberty Mutual witnesses also testified about the service

support that Tobin received. In addition to service

representatives specifically assigned to Tobin, a pool of

representatives was available to him – and other sales agents – to

handle service calls when his own representatives were busy.

Liberty Mutual sought to show that Tobin did not effectively take

advantage of this support, choosing to handle too many service

calls himself. The company also elicited testimony that the need

for additional service help was a common problem among sales

representatives because of the limited number of service

representatives at the company.

C. The Verdict and Post-Trial Proceedings

In returning their verdict in favor of Tobin, the jurors

responded to a series of special questions posed by the district

court. They specifically found that the accommodations Tobin

requested were reasonable, that providing such accommodations would

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not have changed the essential functions of his job, and that one

or both of the accommodations would have enabled him to perform his

job despite his disability. In response to the court's special

question on damages, the jury awarded Tobin more than $800,000 for

economic loss and $500,000 for emotional distress.5

Liberty Mutual filed a post-trial motion pursuant to Federal

Rules of Civil Procedure 50 and 59(a), raising numerous arguments

in support of its request for judgment as a matter of law and, in

the alternative, a new trial. Among other contentions, the company

argued that Tobin had failed to prove either that he was disabled

within the meaning of the applicable federal and state

discrimination laws or that the proposed accommodations were

reasonable and would have enabled him to perform the essential

functions of his job. Liberty Mutual also asserted that Tobin's

claims were untimely because he had not made a specific request for

the accommodations within the statutory limitations periods. In

addition, the company challenged the damages award on multiple

grounds, including that the recovery for emotional distress was

unsupported by the record and was excessive.

Following a hearing, the district court largely rejected

Liberty Mutual's contentions. Although it acknowledged that the

jury was "very generous and indulgent" and that "the evidence is

5
The economic damages were allocated as follows: $439,315 for
unpaid salary, $264,951 for additional pension, and $151,713 for
additional thrift investment contributions.

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thin on certain essential points," the court concluded that the

judgment was supportable in light of the deference owed to jury

fact-finding. In particular, the court found that the evidence was

"sufficient to support a reasonable inference" that Tobin made a

timely request for the accommodations, and it also ruled that

"[t]here was certainly evidence from which a jury could reasonably

infer that providing Tobin with his requested accommodations would

have helped his performance as a sales representative." The court

further found "no adequate evidence that providing Tobin with

either of his proposed accommodations, although perhaps not

consistent with customary practice, would have placed an

unreasonable burden on Liberty Mutual."

As for Liberty Mutual's challenges to the damages award, the

court found merit only in the company's claim that Tobin's

compensation for lost salary should have been reduced by the amount

of his disability benefits. Hence the court conditioned its denial

of Liberty Mutual's request for a new trial on Tobin's acceptance

of a remittitur in the amount of $90,000. Tobin subsequently

accepted that reduction.

In this appeal, Liberty Mutual raises five objections to the

district court's rulings: (1) Tobin's claims should have been

deemed time-barred because he failed to make a specific request for

accommodations during the limitations period, (2) the evidence did

not support the jury's finding that assignment of an MM account was

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a reasonable accommodation, (3) the jury's award of front and back

pay was erroneous, (4) the district court erred in refusing to

grant a remittitur of the emotional distress damages, and (5) the

court erred in its calculation of prejudgment interest. In a

cross-appeal, Tobin claims that the district court erred in

refusing to instruct the jury on punitive damages and declining to

make an award of attorney's fees pending final resolution of the

case.

We address each contention in turn, beginning with the statute

of limitations.

II.

An employer's duty to accommodate an employee's disability is

ordinarily activated by a request from the employee, Freadman v.

Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 102 (1st Cir. 2007), and

the request must be "sufficiently direct and specific" to give the

employer notice of the needed accommodation, Reed v. LePage

Bakeries, Inc., 244 F.3d 254, 261 (1st Cir. 2001) (citation

omitted); see also Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d

6, 23 (1st Cir. 2004). If the request is refused, "the refusal is

a discrete discriminatory act triggering the statutory limitations

period." Ocean Spray Cranberries, Inc. v. MCAD, 441 Mass. 632, 808

N.E.2d 257, 268 (Mass. 2004); see also Nat'l R.R. Passenger Corp.

v. Morgan, 536 U.S. 101, 114 (2002) (noting that "[d]iscrete acts

such as termination, failure to promote, denial of transfer, or

-12-
refusal to hire" are separate, actionable incidents of

discrimination); Rivera v. P.R. Aqueduct & Sewers Auth., 331 F.3d

183, 188 (1st Cir. 2003) (citing Morgan and holding that transfer

was a time-barred discrete act); Elmenayer v. ABF Freight Sys.,

Inc., 318 F.3d 130, 134-35 (2d Cir. 2003) (holding that denial of

an employee's proposed accommodation for religious practices is a

"single completed action when taken" and, as such, is a "discrete

act" that starts the statutory clock).

Tobin filed his administrative claims with the Massachusetts

Commission Against Discrimination (under Chapter 151B) and the

Equal Employment Opportunity Commission (under the ADA) on July 2,

2001. Under the ADA, which requires that such claims be filed

within 300 days of the actionable conduct, see 42 U.S.C. §

12117(a); 42 U.S.C. § 2000e-5(e)(1), Tobin needed to prove that

Liberty Mutual committed a discriminatory act on or after September

4, 2000. For Chapter 151B, which at the relevant time had a six-

month limitations period,6 such an act needed to occur on or after

January 2, 2001.

Liberty Mutual takes two different paths in challenging the

timeliness of Tobin's failure-to-accommodate claim. First, it

argues that there is no evidence in the record of a "direct and

6
The Massachusetts legislature in 2002 amended Chapter 151B
§ 5 to extend the limitations period from six months to 300 days.
It is undisputed that the earlier version of the statute applies
here.

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specific" request by Tobin for MM assignments or additional

customer service assistance during the applicable limitations

periods. Alternatively, Liberty Mutual argues that, even if Tobin

made a specific request for the accommodations during the relevant

times, his discrimination claim would be time-barred because the

limitations periods started running years earlier, when Tobin

should have realized that the accommodations would not be

forthcoming. Because it is potentially dispositive, we turn first

to the latter contention.

A. When Did the Statutory Clocks Start to Run?

Liberty Mutual argues that the statutes of limitations began

to run on Tobin's reasonable accommodation claim when the company

first rejected his requests for MM accounts and additional support

staff. It is undisputed that those initial denials occurred no

later than 1997, and the company asserts that no rationale exists

for extending the limitations period beyond the initial statutory

term. Hence, Liberty Mutual maintains that Tobin's reasonable

accommodation claim had expired by the time he filed his

administrative complaint in July 2001. In response, Tobin argues

that his claim was timely both under the "continuing violation"

doctrine and because the company denied his renewed requests for

accommodation within the statutory periods. Although we agree that

Tobin's claim may be timely even though his accommodation requests

were first denied four years before he filed his administrative

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complaint, his reliance on the continuing violation doctrine is

misplaced.

1. The Continuing Violation Doctrine

A party alleging employment discrimination may, in appropriate

circumstances, file suit based on events that fall outside the

applicable statutes of limitation. Morgan, 536 U.S. at 116-117;

Ocean Spray Cranberries, 808 N.E.2d at 266-67. Under the

"continuing violation" doctrine, a plaintiff may obtain recovery

for discriminatory acts that otherwise would be time-barred so long

as a related act fell within the limitations period. However, it

is now well established that the doctrine does not apply to

"discrete acts" of alleged discrimination that occur on a

"particular day," but only to discriminatory conduct that takes

place "over a series of days or perhaps years." Morgan, 536 U.S.

at 115; see also Rivera, 331 F.3d at 188 (noting Morgan's holding

that "a discrete discriminatory act transpires only at the time it

takes place, even if it was related to acts that were timely

filed"); Cherosky v. Henderson, 330 F.3d 1243, 1246 (9th Cir. 2003)

("Morgan makes clear that claims based on discrete acts are only

timely where such acts occurred within the limitations period

. . . .").7

7
Morgan discussed the continuing violation doctrine in the
context of a Title VII claim, but the discussion is equally
applicable in the ADA context. See Mayers v. Laborers' Health &
Safety Fund of N. A., 478 F.3d 364, 368 (D.C. Cir. 2007) (per
curiam) (noting that "[t]he ADA incorporates the procedural

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 The classic example of a continuing violation is a hostile

work environment, which "is composed of a series of separate acts

that collectively constitute one 'unlawful employment practice.'"

Morgan, 536 U.S. at 117 (quoting 42 U.S.C. § 2000e-5(e)(1)). The

continuing violation doctrine applies in that setting because

hostile work environment claims by "[t]heir very nature involve[]

repeated conduct," and "a single act of harassment may not be

actionable on its own." Id. at 115; see also Ledbetter v. The

Goodyear Tire & Rubber Co., 127 S. Ct. 2162, 2175 (2007) ("[A]

hostile work environment claim 'cannot be said to occur on any

particular day'" because "the actionable wrong is the environment,

not the individual acts that, taken together, create the

environment." (quoting Morgan, 536 U.S. at 115-116)). Thus,

"component acts" of a hostile work environment claim that occur

outside the filing period may be considered for purposes of

determining liability. Morgan, 536 U.S. at 117.

By contrast, the denial of a disabled employee's request for

accommodation starts the clock running on the day it occurs. As we

have noted, such a denial is a discrete discriminatory act that,

like a termination, a refusal to transfer, or a failure to promote,

provisions of Title VII" (citing 42 U.S.C. § 12117)); Stepney v.
Naperville Sch. Dist. 203, 392 F.3d 236, 239 (7th Cir. 2004)
("[T]he ADA's enforcement provision expressly incorporates § 2000e-
5 of Title VII . . . ."); Bonilla v. Muebles J.J. Alvarez, Inc.,
194 F.3d 275, 278 (1st Cir. 1999) (holding that Congress "engrafted
onto the ADA the full panoply of 'procedures' described in section
2000e of Title VII").

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does not require repeated conduct to establish an actionable claim.

Consequently, the continuing violation doctrine does not apply to

this case, and the timeliness of Tobin's claim turns solely on

whether an actionable denial of his request for accommodations

occurred during the limitations periods.8

2. The Timing of Liberty Mutual's Denial of Tobin's Request
for Reasonable Accommodation

Liberty Mutual asserts that Tobin's claim was untimely

because the statutory periods began to run when the company first

refused to give him MM accounts. Citing numerous cases, it argues

that a plaintiff may not delay or restart the limitations period by

making repeated requests for the same accommodation. We reject

that understanding of the law.

It is settled that an employee may not extend or circumvent

the limitations period by requesting modification or reversal of an

employer's prior action. Delaware State Coll. v. Ricks, 449 U.S.

250, 261 n.15 (1980) ("Mere requests to reconsider . . . cannot

extend the limitations periods applicable to the civil rights

laws."). However, it is apparent from the Supreme Court's

discussions in Morgan and Ledbetter that an employee who renews his

request for particular accommodations may bring suit based on a new

8
The court in Ocean Spray appeared to contemplate a role for
the "continuing violation" analysis under Chapter 151B even in
cases involving discrete acts. See Ocean Spray, 808 N.E.2d at 267
n.16. We do not delve into that issue as it is unnecessary to
resolve the case before us.

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"discrete act" of discrimination if the employer again denies his

request. In Morgan, the Court explicitly stated that "[t]he

existence of past acts and the employee's prior knowledge of their

occurrence . . . does not bar employees from filing charges about

related discrete acts so long as the acts are independently

discriminatory and charges addressing those acts are themselves

timely filed." 536 U.S. at 113; see also Ledbetter, 127 S. Ct. at

2174 ("[A] freestanding violation may always be charged within its

own charging period regardless of its connection to other

violations.").

Liberty Mutual's argument misapprehends the difference between

instances in which the employer commits multiple acts, each of

which is independently discriminatory, and those circumstances in

which an employee attempts to rely on either the ongoing effects of

the employer's single discriminatory act or the employee's efforts

to obtain reversal of that singular act of alleged discrimination.

Three cases cited by Liberty Mutual help to illuminate that

distinction.

In Cherosky, 330 F.3d at 1244, the Ninth Circuit addressed the

accommodation claims of four postal employees whose requests to use

respirators on the job had been denied. The employees, who brought

suit four years later, acknowledged that their claims were based on

conduct – i.e., the denial – that occurred outside the applicable

limitations period. Id. at 1245-46. They argued that the denial

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date was not determinative because of the ongoing effect of the

Postal Service's allegedly discriminatory no-respirator policy.

Id. at 1246. Relying on Morgan, the court rejected their attempt

to extend the limitations period, concluding that "the alleged

wrong here occurred and accrued when the policy was invoked to deny

an individual employee's request." Id. at 1247. Significantly,

however, the court observed that the employees were not without a

remedy because "if a new request [for respirators] results in a

denial, the time period begins to run anew." Id. at 1248.

The Second Circuit in Elmenayer, 318 F.3d at 135, similarly

drew a distinction between the continuing impact of an employer's

rejection of an employee's requested accommodation and the

"discrete act" that started the running of the statute of

limitations. The employee in that case, a truck driver, had

requested a schedule change as an accommodation of his religious

observance, but his employer denied the proposal as inconsistent

with company rules. Id. at 132.

The court, also relying on Morgan, held that the statute was

triggered by the original denial of the employee's request, even

though "the effect of the employer's rejection continues to be felt

by the employee for as long as he remains employed." Id. at 135.

The court emphasized that, once the employer rejected the

employee's proposed accommodation, "it took no further action

concerning his interest in attending prayer sessions." Id.

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Referring to Morgan's holding that the timeliness of discrete acts

such as transfers or promotions turns on the day the decisions are

made, the Second Circuit observed that the continued enforcement of

scheduling rules "is no different, for time-bar purposes, than an

employer's continuation of an employee in a position from which he

had sought promotion or transfer." Id. However, like the court in

Cherosky, the Second Circuit recognized that different

considerations would exist "if the employee renew[ed] the request

for an accommodation" within the limitations period. Id. The

court declined to decide the effect of those different

circumstances.

In both Cherosky and Elmenayer, the employers committed one

allegedly discriminatory act that had continuous impact on

individuals who did not make renewed proposals for accommodation

during the applicable limitations periods. In De Leon Otero v.

Rubero, 820 F.2d 18, 19 (1st Cir. 1987), we confronted the

situation of an employee who alleged a discriminatory discharge and

sought to bring his claim within the statute of limitations based

on his subsequent efforts to secure reversal of the original

decision. We observed that the employer's refusal to rehire the

plaintiff after his termination was "not a separate act of

discrimination, but rather a consequence of his initial demotion."

Id. at 20; see also Martin v. Sw. Va. Gas Co., 135 F.3d 307, 310

(4th Cir. 1998) ("An employer's refusal to undo a discriminatory

-20-
decision is not a fresh act of discrimination.")(citation omitted);

Zdziech v. DaimlerChrysler Corp., 114 Fed. App'x 469, 471 (3d Cir.

2004) ("The repeated refusal of an employer to reinstate an

employee to a formerly held position . . . does not give rise to a

new claim of discrimination."); Long v. Howard Univ., 512 F. Supp.

2d 1, 17 (D.D.C. 2007) (noting the distinction between "new

discrete acts of discrimination within the limitations period, and

requests for reconsideration of a previously denied request, which

may not revive a time-barred claim").

Tobin's allegations here are materially different from those

in the cases we have described. He alleges that Liberty Mutual

consistently denied his repeated requests for accommodations and

asserts that each denial constituted a discrete act that was the

basis for a separate claim of discrimination and carried with it a

new statute of limitations. The correctness of his view is the

inevitable teaching of the Supreme Court's cases in this area. In

Ledbetter, the Court emphasized that "[a] new violation does not

occur, and a new charging period does not commence, upon the

occurrence of subsequent nondiscriminatory acts that entail adverse

effects resulting from . . . past discrimination." 127 S. Ct. at

2169. However, "if an employer engages in a series of acts each of

which is intentionally discriminatory, then a fresh violation takes

place when each act is committed." Id. Indeed, in the context of

disability discrimination, any other approach would fail to take

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into account the possibility of changes in either the employee's

condition or the workplace environment that could warrant a

different response from the employer to renewed requests for

accommodation.

Thus, the question we must answer is whether any of Tobin's

requests for accommodation occurred during the applicable statutory

periods. Before turning to that question, however, we briefly

address Tobin's argument that the statute of limitations never

began to run on his accommodation requests because Liberty Mutual

never outright told him he could not have MM accounts. We deem

Liberty Mutual's response an unequivocal denial of Tobin's request

for accommodation. He was told, repeatedly, that he would not be

given such accounts because he did not qualify for them.9 In other

words, Liberty Mutual unconditionally denied Tobin's request that

he be given such accounts as an accommodation and left no doubt

that he would have to meet the same eligibility criteria as every

other employee. The statute thus ran on any requests made and

denied on that basis outside of the applicable statutory periods.10

9
Tobin testified that he asked Schwitters for MM assigmments
"[o]ver and over again," and that "[s]he said I didn't qualify."
10
In so concluding, we effectively agree with Liberty Mutual's
contention that claims based on Tobin's requests for accommodation
prior to the limitations periods were time-barred because, when the
company rejected those early requests, Tobin "knew or reasonably
should have been aware that the employer was unlikely to afford him
a reasonable accommodation." Ocean Spray, 808 N.E.2d at 268
(holding that the statutory period begins to run even in the face
of "equivocal action or inaction" by the employer if the employee

-22-
B. Did Tobin Make a Timely and Specific Request for Accommodation?

The pivotal question in assessing the statute of limitations

issue is whether Tobin made a specific request for accommodation

that was denied during the statutory periods – in other words, on

or after September 4, 2000 for purposes of the ADA, and on or after

January 2, 2001 for purposes of Chapter 151B. Liberty Mutual

asserts that the record contains no evidence of such a request.

Tobin responds that the statute of limitations defense is waived

because Liberty Mutual did not request an instruction asking the

jury to make an explicit finding on whether a request and denial

occurred during either of the two limitations periods.

The timing of Tobin's requests for accommodation is an issue

of fact the jury logically should have been asked to decide.

However, the district court declined to reject the limitations

defense based on Liberty Mutual's failure to request a more

specific jury question. It noted that Liberty Mutual had raised

the statute of limitations issue repeatedly, including in its pre-

trial memorandum and in its motions for judgment following the

presentation of evidence. The court thus went on to consider

whether the jury had before it sufficient evidence to find that

Tobin asked Liberty Mutual for an accommodation during the

had adequate notice that his request would not be accommodated).

-23-
applicable statutory periods. We see no reason to disturb the

district court's decision to proceed in this manner.

The court concluded that the evidence was "thin," but

"sufficient to support a reasonable inference that Tobin's requests

for accommodation were made within the statute of limitations

period for Chapter 151B and consequently the ADA as well." We

agree with that assessment of the record. See Parker v. Gerrish,

547 F.3d 1, 8 (1st Cir. 2008) ("In reviewing decisions on motions

for judgment as a matter of law, we review questions of law de

novo, but review the sufficiency of the evidence drawing all

reasonable inferences in favor of the prevailing party.") (citation

and internal quotation marks omitted); Dixon v. Int'l Bhd. of

Police Officers, 504 F.3d 73, 81 (1st Cir. 2007) ("[W]e will set

aside the jury verdict only if the evidence, viewed in the light

most favorable to [plaintiff], points so strongly and

overwhelmingly in favor of [the defendants], that a reasonable

person could not have arrived at [this] verdict.") (citation and

internal quotation marks omitted; second and third alterations in

original).

The court described the evidence as follows:

The evidence of Tobin's requests for accommodations
between September 2, 2000 and January 2, 2001 and between
January 2, 2001 and January 10, 2001 was more generalized
than specific but it built upon earlier specific
evidence. Tobin testified that "I continually made the
same two requests" for accommodations – additional
service support and Mass Marketing – during his weekly
meetings with his supervisor Nina Schwitters from

-24-
 February 1999 until his discharge in January 2001. While
thin, this evidence, when coupled with evidence of
meetings between Schwitters and Tobin, is sufficient
. . . .

As the district court acknowledged, there was no explicit evidence

that Tobin requested accommodation on particular days within the

statutory periods. But the evidence that he met with Schwitters at

least weekly11 and that he asked for MM assignments "[o]ver and over

again" allows the inference that he was continuing to do so in the

critical meetings toward the end of his tenure with Liberty Mutual.

That inference is reinforced by notes that Schwitters made

during a meeting with Tobin on January 2, 2001 indicating that

Tobin complained about not being on a "level playing field" with

other representatives.12 Tobin later used the "level playing field"

language in testifying that the disadvantage of his disability

could have been overcome if he had received the requested

accommodations.13 Given Tobin's testimony that he repeatedly asked

11
He testified that he met with her "at least once a week,
possibly twice a week. Because sometimes I would meet her
individually and sometimes there would be a meeting. And then
after the meeting, she would ask me to stay after the meeting."
12
The handwritten notes include the phrase "Not on level
playing field." At trial, Schwitters was asked if there was
discussion with Tobin "about whether he was on a level playing
field with the other reps." She responded: "I think that was his
comment to me."
13
The relevant testimony was part of the following exchange:

Q. But if you did fall on your face, sir, to use your
words, there would be harm to Liberty Mutual, wouldn't
there? Isn't that right?

-25-
for the same accommodations in his meetings with Schwitters, it is

reasonable to infer that his reference to the level playing field

on January 2 was accompanied by another such request. Moreover,

Schwitters' notes from the meeting include the notation "No MM

accts" – confirming that assignment of the accounts was discussed.

We are thus satisfied that the evidence in the record, though

circumstantial, was sufficient to support a finding that Tobin

followed his routine practice at the January 2 meeting and

requested the accommodation of MM accounts. See Caldwell Tanks,

Inc. v. Haley & Ward, Inc., 471 F.3d 210, 214 (1st Cir. 2006) ("A

district court may grant a Rule 50 motion only when 'after

examining the evidence and all reasonable inferences therefrom "in

the light most favorable to the nonmovant," it determines that "the

evidence could lead a reasonable person to only one conclusion,"

favorable to the movant.'") (citations omitted); Fed. R. Civ. P.

50(a)(1).

The court's use of the sufficiency standard in evaluating the

evidence reflected an assumption that the jury had found, albeit

implicitly, that Tobin had requested the accommodations during the

A. No. What I meant by falling on my face, if you gave
me a Mass Merchandising, gave me the help I asked, say
for a 90-day period and I didn't get the numbers, then I
would probably think about retiring. Okay. But if you
gave me the Mass Merchandising and you gave me the help,
I knew that I would be successful. I can't guarantee
that, but I know I'd be on a level playing field.

-26-
statutory periods. The court's assumption appeared to stem from

the parties' discussion of the statute of limitations in connection

with Special Verdict Question 4. That question asked if Tobin had

established by a fair preponderance of the evidence that, with the

requested accommodations, he would have been able to perform the

essential functions of the job of sales representative. The court

added the statute of limitations dates to Question 4 over Tobin's

objection but with Liberty Mutual's acquiescence, and the jury

consequently was required to find that Tobin would have been able

to do the job "[b]etween September 4, 2000 and January 10, 2001,"

and "[b]etween January 2, 2001 and January 10, 2001."14 At the

charging conference, the court observed that this addition

"solve[d] the statute of limitations[] issue."

In a footnote in its brief, Liberty Mutual asserts that the

court applied the wrong standard because the jury never made an

express finding on whether Tobin requested an accommodation during

the limitations periods. The company claims that the court should

have weighed the evidence itself instead of examining whether the

evidence was sufficient to support a jury finding. In so arguing,

Liberty Mutual apparently relies on Federal Rule of Civil Procedure

49(a), which allows a court to make a finding based on its own

14
January 10 was the date of Tobin's termination. The
question thus asked the jury to determine if Tobin would have been
able to do the job during the statute of limitations periods and
before his termination.

-27-
review of the evidence when special verdict questions omit a

material issue of fact that should have been resolved by the jury.15

See Anderson v. Cryovac, Inc., 862 F.2d 910, 915-916 (1st Cir.

1988).

Although we have reservations about whether the jury would

have understood Question 4 to incorporate the pertinent statute of

limitations question, Liberty Mutual has only itself to blame for

that ambiguity. It did not propose a special verdict question

explicitly asking the jury to determine whether a request was made

within the statutory periods. In these circumstances, we again

have no reason to fault the district court's conclusion that

Question 4 "solve[d] the statute of limitations[] issue." See id.

at 918 (noting that parties "ought not to be allowed to base an

appeal on the ambiguities and omissions that were the natural

consequence of their strategy").

15
Rule 49 addresses procedures related to special verdicts and
to general verdicts with written questions. Section (a)(3) of the
Rule, applicable to special verdicts, provides in relevant part:

A party waives the right to a jury trial on any issue of
fact raised by the pleadings or evidence but not
submitted to the jury unless, before the jury retires,
the party demands its submission to the jury. If the
party does not demand submission, the court may make a
finding on the issue. If the court makes no finding, it
is considered to have made a finding consistent with its
judgment on the special verdict.

-28-
 Hence we conclude that the district court properly found that

Tobin's claims under both the ADA and Chapter 151B were timely. We

therefore turn to the merits of those claims.

III.

The ADA "prohibits an employer from discriminating against an

'individual with a disability' who, with 'reasonable

accommodation,' can perform the essential functions of the job."

U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 393 (2002) (quoting 42

U.S.C. § 12112(a) and (b)). It is the plaintiff's burden to show

availability of "reasonable accommodations," and the defendant then

has the opportunity to "demonstrate that the accommodation would

impose an undue hardship on the operation of [its] business." 42

U.S.C. § 12112(b)(5)(A); see also Freadman, 484 F.3d at 103; Reed,

244 F.3d at 258-59.

More specifically, the plaintiff's burden under the ADA is "to

show not only that the proposed accommodation would enable her to

perform the essential functions of her job, but also that, at least

on the face of things, it is feasible for the employer under the

circumstances." Reed, 244 F.3d at 259. If the plaintiff

successfully carries this burden, "the defendant then has the

opportunity to show that the proposed accommodation is not as

-29-
feasible as it appears but rather that there are further costs to

be considered." Id.16

In our earlier decision in this case, we vacated the grant of

summary judgment on Tobin's "failure to accommodate" claim because

we perceived "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." 433 F.3d at 107.

On remand, a jury found that assigning Tobin to an MM account and

providing additional service support would have been reasonable

accommodations enabling him to perform his job without changing its

essential functions.17 The district court refused to disturb that

judgment.

16
We have recognized that the plaintiff's burden to show
reasonableness overlaps with the defendant's burden to prove undue
hardship because "[a] reasonable request for an accommodation must
in some way consider the difficulty or expense imposed on the one
doing the accommodating." Reed, 244 F.3d at 259.

Indeed, where the costs of an accommodation are
relatively obvious – where they really are what they
appear to be on the face of things – plaintiff's burden
and defendant's burden may in application be quite
similar, even to the extent of being mirror images.
Where the burdens will significantly differ is when the
costs of an accommodation are not evident on the face of
things, but rather are better known to the employer.

Id. at 260.
17
Although the jury made findings with respect to both MM
accounts and service support, Liberty Mutual focuses on the MM
assignments and we therefore do likewise in our discussion.

-30-
 On appeal, Liberty Mutual argues that the district court

erred in denying its motion for judgment as a matter of law,

renewing its contention that the evidence Tobin presented was

insufficient to prove that assigning him Mass Marketing accounts

would have been a "reasonable" accommodation. We review de novo

the district court's denial of Liberty Mutual's motion, and will

"set aside the jury verdict only if the evidence, viewed in the

light most favorable to [Tobin], points so strongly and

overwhelmingly in favor of [Liberty Mutual], that a reasonable

person could not have arrived at [this] verdict," Dixon, 504 F.3d

at 80-81 (citation and internal quotation marks omitted) (final

substitution in original).

Liberty Mutual argues that Tobin's request for MM accounts was

unreasonable because he was unqualified for such an assignment in

two respects: first, his poor sales performance made him ineligible

for MM assignments, which were awarded as perks to the highest

performing agents, and, second, his disability made him incapable

of handling the stressful, fast-paced MM sales process.

A. Eligibility for MM Accounts

We have little difficulty in dismissing the first rationale.

Ample evidence supports the conclusion that Tobin's illness

significantly impaired his ability to meet his sales goals.

Indeed, he requested an MM assignment in the belief that the

logistical convenience of such accounts would offset the deficits

-31-
in his performance that were attributable to his disability.18 A

request for an accommodation cannot be deemed unreasonable solely

because the disabled employee has failed to satisfy standard

eligibility requirements for the benefit. Such a conclusion would

turn the ADA's accommodation requirement on its head. See Barnett,

535 U.S. at 397 ("[P]references will sometimes prove necessary to

achieve the Act's basic equal opportunity goal.); id. at 398 ("The

simple fact that an accommodation would provide a 'preference' – in

the sense that it would permit the worker with a disability to

violate a rule that others must obey – cannot, in and of itself,

automatically show that the accommodation is not 'reasonable.'").

A disabled employee may not be entitled to an otherwise

reasonable accommodation, however, if granting the accommodation

would result in displacing employees with "superior rights." Id.

at 393. The Supreme Court held in Barnett that, with some

exceptions, a seniority system will prevail over an accommodations

request that conflicts with the system's rules, protecting

"employee expectations of fair, uniform treatment." Id. at 394,

404. Liberty Mutual equates the assignment of MM accounts with

18
The record supports Tobin's belief that MM accounts were a
fertile source of new sales. Edward Mace, a colleague of Tobin's
at Liberty Mutual, testified that about fifty percent of his sales
in 1999 and 2000 derived from group accounts. He further stated
that most sales representatives would have the same percentage of
group sales. However, another sales representative, Leonard
Shepard, reported that not all group accounts were equally
productive.

-32-
such a system, asserting that Tobin should not be allowed to

circumvent the company's established assignment policy.

Even accepting the analogy between the Barnett seniority

system and the MM assignment policy for purposes of our discussion,

Liberty Mutual's argument is unavailing. The Court acknowledged

that its holding in Barnett, which applied to the "uniform,

impersonal operation of seniority rules," id. at 404, might be

inapplicable where "special circumstances" altered employees'

expectations of "consistent, uniform treatment," id. at 404-05.

The Court cited as examples of such circumstances the employer's

retention of the right to change the seniority system unilaterally,

along with its exercise of that right "fairly frequently," and also

when a system already contained exceptions "such that, in the

circumstances, one further exception is unlikely to matter." Id.

at 405. Both of those examples are relevant here.

Despite the performance eligibility criteria for MM

assignments articulated by Liberty Mutual's witnesses,19 the

evidence at trial showed that the accounts were awarded on a case-

by-case, discretionary basis and not always as a reward for sales

performance. Robin, who was Tobin's sales manager through 1998,

testified that new sales representatives sometimes were assigned MM

accounts to jump-start their business. He stated: "[W]e had an

19
These criteria were detailed in a memorandum that Schwitters
distributed to the sales representatives early in her tenure as
sales manager.

-33-
inducement to give the Mass Marketing accounts to some of the newer

people because it helped them get off to a fast start and make it

in the insurance industry." Robert Nadeau, the assistant regional

sales manager during the relevant period, testified that some low-

producing sales representatives also received MM accounts because

they had sold MM accounts themselves and did not have Tobin's

extended history of failing to meet minimum standards. Both Robin

and Nadeau indicated that they had the discretion to give Tobin an

MM account, but chose not to do so. Thus, unlike in a fixed

seniority system, allocating an MM opportunity to Tobin could not

have frustrated any individual's expectation of receiving that

assignment. Based on this evidence, the jury permissibly could

conclude that giving Tobin an MM opportunity would be a feasible

accommodation.

B. Ability to Handle MM Accounts

Liberty Mutual's second contention – that assigning Tobin an

MM account was not reasonable because his disability rendered him

unable to manage those accounts – is more substantial. If a

proposed accommodation would not be feasible for the employee, it

would not assist him in performing his job duties. See Reed, 244

F.3d at 259 (holding that, in order to prove "reasonable

accommodation," a plaintiff must prove not only that the proposed

accommodation is "feasible for the employer under the

circumstances" but also that it "would enable h[im] to perform the

-34-
essential functions of h[is] job"); id. (stating that "proving an

accommodation's effectiveness is part of the plaintiff's burden").

Liberty Mutual elicited evidence that managing an MM account

required good organizational skills and the ability to work quickly

because sales representatives are sometimes "bombarded" with

questions from potential or current clients during their on-site

sessions with company employees. Leonard Shepard, the sales

representative with the most MM accounts during Tobin's tenure,

testified that his encounters with clients at one company, EMC,

were "hectic" and occurred in "a high pressure atmosphere" –

environments that were difficult for Tobin.

Unquestionably, such evidence raises some doubt about Tobin's

ability to handle MM accounts. However, Robin admitted at trial

that, when asked during his deposition why he had not given Tobin

an MM account, he had not expressed concern about Tobin's

competence. Rather, his reasons focused on Tobin's longstanding

under-performance.20 At trial, Robin reiterated the low-performance

concern, as well as a concern about Tobin's ability, and noted that

Tobin "did nothing to help himself get Mass Marketing accounts."

20
In his deposition, Robin offered three reasons for declining
to give Tobin an MM account: (1) that Tobin was not meeting his
goal for life insurance sales, (2) he had not done enough
prospecting for MM accounts on his own, and (3) he was not meeting
Liberty Mutual's overall sales objectives. When asked if Tobin's
"level of disorganization and lack of follow-through" would affect
his ability to handle an MM account, Robin stated that he would
have had concerns "if it were a large account."

-35-
Robin explained that he considered it unfair when "other reps

[were] out prospecting to get them on their own to just give one to

[Tobin] when he was doing nothing to help himself."21 This

testimony, in light of Robin's earlier deposition statements,

permitted the jury to infer that Tobin was denied MM accounts

primarily because Robin considered him to be undeserving rather

than unable to manage them.22

Indeed, other evidence allowed the jury to find that Tobin

could have competently handled an MM account and that Robin had

admitted as much. Robin testified that it "could be a reasonable

assumption" that Tobin would have been able to sell more policies

if he had access to more people who wanted to buy insurance. At

his deposition, Robin agreed that his reports on Tobin stated that

he was "good at closing sales,"23 and Robin also stated at that time

21
At trial, Robin also gave three reasons for denying Tobin
an MM assignment: (1) his failure to do his own prospecting, (2)
the desire to give MM accounts to new people to give them "a fast
start," and (3) doubts about Tobin's "ability to effectively manage
a Mass Marketing account to get the most out of it that we could
get out of it."
22
Liberty Mutual sought to offset the suggestion that Robin
had only recently adopted a more negative evaluation of Tobin's
abilities by eliciting testimony that Robin, who left his job at
Liberty Mutual in 1998, had not had access to documents at the time
of his deposition that he had reviewed before testifying at trial.
But we cannot say that the jury was obliged to credit that
explanation or to disregard Robin's repeated assertion that Tobin
was not given an MM account because he had not earned it.
23
At trial, Robin testified that Tobin's closing skills were
"[g]ood on property and casualty sales, and poor on life insurance
sales."

-36-
that Tobin's sales results would have improved if he had been

assigned MM accounts.24 Edward Mace, another Liberty Mutual sales

representative, testified that some MM accounts were "relatively

easy" to handle because the company would pre-schedule

appointments, and "[y]ou could sit down and have your day planned

ahead for you." Mace also reported that the individual interviews

could be spaced farther apart, reducing the time pressure, and that

there was a routine to the process – further evidence that handling

MM accounts would be manageable despite Tobin's disability.

Taken together, this evidence suggests that access to MM

accounts might in fact have given Tobin the "jump start" he claimed

to need to compensate for his disability, allowing him to focus on

24
The following exchange from Robin's deposition on January
29, 2003 was read to the jury:

QUESTION: Is it fair to say, sir, in terms of
prospecting, the difference between servicing a
Mass.[sic] Merchandising account and just doing this with
the general population is that the Mass Merchandising
account, the Human Resources Department of the employer
would identify the prospects for you?
ANSWER: They would be in many cases of great assistance.
QUESTION: And in fact, after these prospects were
identified by the HR department of the company, the
manner of sales that were generated from that prospect
would be partially dependent on your ability to close
sales?
ANSWER: Correct.
QUESTION: And Kevin was reasonably good at closing sales?
ANSWER: Correct
QUESTION: And had Kevin been assigned some of these Mass
Marketing accounts, his sales results would have improved
dramatically, wouldn't they? . . .
[ANSWER:] My assumption would be that the sales results
would have been – would have improved.

-37-
what he could do well – close sales – rather than on prospecting

for new business. To be sure, the evidence of Tobin's ability to

manage MM accounts was controverted. As we have described,

however, the jury had before it sufficient evidence to conclude

that assignment to an MM account would have enabled Tobin to

achieve his sales quotas and thus to perform the essential

functions of his job – making such an assignment a "reasonable

accommodation."25

C. Undue Hardship

Having concluded that the jury could find that it was

"feasible for [Liberty Mutual] under the circumstances" to assign

25
Indeed, in his concurring opinion when this case previously
was before us, Judge Howard noted that Tobin already had "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." 433 F.3d at 110. Judge Howard continued:

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.

Id. at 110-111.

-38-
Tobin to one or more MM accounts, see Reed, 244 F.3d at 259, we

turn to whether there are "further costs to be considered, certain

devils in the details" that would make such an accommodation an

undue hardship on the company. Id. In this case, as in many, only

a fine line exists between the employee's showing of reasonableness

and the company's claim of undue hardship. Id. at 260 ("[I]n many

cases the dividing line between 'reasonable accommodation' and

'undue hardship' will be inexact – but benignly so."). In claiming

hardship, Liberty Mutual posits that placing Tobin in charge of an

MM account would have put the insurer's business with the MM client

in jeopardy. Robin testified that, at times, Tobin did not always

"seem fully functional so that I would be comfortable putting him

in front of customers." Robin also expressed concern that, with

Tobin as the sales representative, "we could blow up a very large

national account or even a well-known local account." Robin gave

as an example EMC Corporation, whose representatives, he said,

"complained at the slightest, slightest screw-up that a sales rep.

made."26

26
Schwitters testified that EMC was a fast-growing company in
early 1999, shortly after she became a sales manager and Tobin's
supervisor. The company, which she said was "on the verge of [its]
patent," was adding locations and employees, and Schwitters
assigned three new sales representatives to EMC in April and an
additional representative later in 1999. Schwitters described EMC
as "the most demanding customer I have ever dealt with in my
career, but rightfully so [because t]hey were high security."

-39-
 This evidence does not compel judgment for Liberty Mutual.

Although Robin's testimony indicates that assigning Tobin to the

EMC account may have imposed undue risk on the company, EMC was not

Liberty Mutual's only MM client. Mace testified that some such

accounts were "relatively easy" to handle, and flexibility was

possible. He also reported that imperfect matches between sales

representatives and MM clients had occurred in the past and were

resolved by changing the representative.27 Thus, the jury could

have concluded that any problem arising from Tobin's placement in

an MM account he could not properly manage would not have exposed

the company to undue hardship. If a conflict arose or Tobin was

unable to meet the client's expectations, Liberty Mutual would

have been able to solve the problem by changing personnel.28

We therefore agree with the district court that the record

permitted the jury to conclude that Liberty Mutual refused to

reasonably accommodate Tobin by assigning him to one or more MM

accounts.

27
In response to a question from counsel, Mace agreed that it
"sometimes happens[] that the Mass Merchandising customer is not
happy with the sales rep that's been assigned by Liberty Mutual;
and, so, the Liberty Mutual manager . . . will need to find a
replacement."
28
Indeed, Tobin testified that "the way I wanted to do it, if
they were afraid that I would foul up the account, was to have Nina
[Schwitters] come out with me for the first few weeks and see if I
was doing all right."

-40-
 IV.

Liberty Mutual argues that the record contains insufficient

evidence to support the jury's inclusion of front and back pay in

Tobin's compensatory damages award. Tobin was awarded

approximately $440,000 in lost wages to cover the period between

his termination and the date of his anticipated retirement at age

62.29 The company asserts that these damages were improper because

Tobin failed to show that Liberty Mutual's conduct caused the total

disability that he claims prevented him from obtaining another job.

A victim of employment discrimination ordinarily has the duty

to mitigate damages by seeking alternative employment. Johnson v.

Spencer Press of Maine, Inc., 364 F.3d 368, 379 (1st Cir. 2004);

Blockel v. J.C. Penney Co., 337 F.3d 17, 27 (1st Cir. 2003).

However, the employer may be held responsible for the entire amount

of lost salary notwithstanding the employee's failure to obtain

another job "[i]f the employer's unlawful conduct caused the

29
A back-pay award compensates a plaintiff for lost wages up
to the time of the trial court judgment. Johnson, 364 F.3d at 379.
Front pay is awarded for lost salary during the period between
judgment and reinstatement, or in lieu of reinstatement. Id. In
this case, the verdict form did not specifically refer to the
salary amounts as "back pay" or "front pay," but asked the jury to
specify the damages for particular time periods. The jury awarded
$143,532 for the period between January 10, 2001 – the date of
Tobin's termination – and April 1, 2003 – the date he began to
receive Social Security disability benefits. It awarded $204,560
for the period between April 1, 2003 and May 8, 2006, the date of
the verdict. It assessed $91,223 for the period between the
verdict and September 26, 2007 – the date Tobin had planned to
retire.

-41-
employee's inability to mitigate damages." Johnson, 364 F.3d at

384. In other words, if an employee is unable to work because of

a disability "caused" by the employer, the employee may obtain

compensation for the resulting lost pay. See id. at 383; Blockel,

337 F.3d at 27-28.30

The district court concluded that the evidence offered at

trial did not inevitably link Tobin's incapacity to Liberty

Mutual's conduct, observing that "one could argue" that the

evidence merely "'create[d] an issue regarding whether the [failure

to accommodate] . . . was one among numerous other independent and

significant contributing factors to [Tobin]'s psychological

30
The legal principles governing awards of front and back pay
differ. Back pay is "'a presumptive entitlement of a plaintiff who
successfully prosecutes an employment discrimination case.'"
Johnson, 364 F.3d at 379 (quoting Thurman v. Yellow Freight Sys.,
Inc., 90 F.3d 1160, 1171 (6th Cir. 1996)). Front pay awards are
not as readily made:

An award of front pay that extends over many years to an
estimated retirement date should be examined carefully
. . . since "the greater the period of time upon which a
front pay award is calculated in a case involving an at-
will employee the less likely it is that the loss of
future earnings can be demonstrated with any degree of
certainty or can reasonably be attributed to the illegal
conduct of the employer."

Cummings v. Standard Register Co., 265 F.3d 56, 66 (1st Cir. 2001)
(quoting Conway v. Electro Switch Corp., 523 N.E.2d 255, 257 (Mass.
1988)); see also Johnson, 364 F.3d at 380 ("Awards of front pay
. . . are available in a more limited set of circumstances than
back pay."). In this case, the difference is immaterial. Liberty
Mutual argues that neither form of compensation is appropriate
because the jury had no basis for concluding that the company was
responsible for Tobin's asserted inability to secure other
employment.

-42-
disability.'" Tobin v. Liberty Mut. Ins. Co., 2007 WL 967860, at

*9 (D. Mass. March 29, 2007)(quoting Johnson, 364 F.3d at 384).

The court noted, however, that "[i]mplicit in the jury's award of

lost pay for January 10, 2001 through September 26, 2007 is a

finding that Liberty Mutual's mistreatment of Tobin caused his

total disability such that he has not failed to mitigate damages by

not securing other gainful employment." Id. The court declined to

disturb the lost pay award, implicitly ruling that there was

sufficient evidence to support the jury's causation finding.31

Reviewing the evidence in the light most favorable to the

jury's verdict, we conclude that there was a sufficient factual

basis for the jury's findings on front and back pay. Both Tobin

and his psychiatrist, Dr. William Kantar, testified about the

impact of the probationary and warning periods that Liberty Mutual

repeatedly imposed on Tobin between 1997 and 2000. Although

31
In Johnson, we observed that juries typically are asked to
decide the issue of back pay only when, as in this case, they also
are resolving issues of liability and other forms of compensatory
damages. 364 F.3d at 380. Front pay awards "are generally
entrusted to the district judge's discretion." Id. The court's
role in awarding back and front pay is attributable to the
equitable nature of such relief. See Lussier v. Runyon, 50 F.3d
1103, 1108 (1st Cir. 1995) ("It follows a fortiori from the
equitable nature of the remedy that the decision to award or
withhold front pay is, at the outset, within the equitable
discretion of the trial court.") (some emphasis omitted); Santiago-
Negron v. Castro-Davila, 865 F.2d 431, 441 (1st Cir. 1989)
(recognizing the equitable origin of back pay damages, but holding
that such an award is a jury issue when it is "a factor of
compensatory damages"). Here, as we have described, the jury was
asked to set the amounts for both past and future lost wages.

-43-
Liberty Mutual's conduct outside the limitations period does not

provide a basis for damages, evidence of such conduct and its

effects shed light on the impact of Liberty Mutual's later refusals

to accommodate Tobin. See Morgan, 536 U.S. at 113 (noting that an

employee may use time-barred discriminatory acts "as background

evidence in support of a timely claim"); Ocean Spray, 808 N.E.2d at

270 (same).

Kantar testified that, when Tobin perceives a lack of support,

"his agitation or fragmentation increases." When asked if a

perceived lack of support could decrease Tobin's functionality "to

a point where he was dysfunctional," Kantar responded: "I feel that

it did." During the probationary period at the end of 2000, Tobin

"got significantly worse in terms of his ability to function, to

meet his responsibilities, to deal with the stresses that he

faced." Kantar reported that, by contrast, when Tobin feels

understood and supported, "it enables him to calm down; the

agitation is reduced; the disorganization is reduced; and he is

able to apply his abilities." According to Kantar, the perception

of support "would . . . tend to increase his functionality."

Tobin confirmed this view. He testified that the probation

letters "really made me less functional" and that it was

"devastating" to confront the reactivation of a warning period as

soon as he returned to a full-time schedule after each disability

leave. Tobin recalled that when he was placed on warning after the

-44-
second leave, he felt as if he had been "punched right in the

stomach." He testified that the warning undid "all of the good"

from his work with the nurse whom Liberty Mutual had hired to

assist him: "It just . . . blew the wind out of my sails."

By the time Tobin started his last probation period, he felt

"exhausted," and he reported that the fatigue "made me less

focused. . . . [M]y concentration skills laxed. It affected my

sleep, my weight, my appetite." Months after his termination,

Tobin testified, he felt even worse and experienced "almost like

post-traumatic syndrome." Those feelings continued to the time of

trial: "I live with it every day. I have nightmares. It's just

devastating." Kantar reinforced the ongoing nature of Tobin's

disability: "As I look at Mr. Tobin's life over the years, he has

been unable to move on in his life. He's not been able to pursue

employment."

This evidence allowed the jury to find that the lack of

support reflected in the company's final denial of accommodations

further exacerbated Tobin's stress and precipitated his total

inability to function in the workplace. Although the company

points to other stressors in Tobin's life that could have

contributed to his disability – including family conflicts and

additional medical issues – the jury was free to credit the

evidence showing a link between Tobin's status at work and his

mental condition. Based on that evidence, the jury could have

-45-
concluded that Liberty Mutual's refusal to accommodate Tobin's

disability in early 2001 denied him a last chance to avoid the

termination with which he had been threatened, increasing the

stress that, in turn, exacerbated his functional difficulties.

Losing the job predictably resulted in more anguish, and the jury

could have found that it caused further deterioration of his

functional abilities.

The facts here differ from those we considered in Johnson, 364

F.3d at 383, a case highlighted by Liberty Mutual. A jury found

that plaintiff Johnson had been constructively discharged from his

job at Spencer Press because of harassment on account of his

religion. Id. at 375. On appeal, we reviewed the district court's

ruling that Johnson's eligibility for front and back pay ended when

he was fired from a new job and he did not again seek employment to

mitigate damages. Johnson, however, had claimed that his

disability prevented him from resuming work. Id. at 383. We

acknowledged that he would be entitled to continuing lost wages if

his total disability had been caused by Spencer Press, but

concluded that the evidence was insufficient to establish such

causation. Id. at 383-84.

Johnson's doctor had reported that the harassment he suffered

"'exacerbated his depression and panic and anxiety disorders,'" but

also noted that he had "'other issues in his life, including family

deaths, divorce, and problems with his sons.'" Id. The doctor

-46-
then went on to say that he "did not make a determination as to

what event or events, if any, caused [Johnson's] depression and

panic and anxiety disorders." Id. The doctor thus declined to

confirm a link between the defendant's conduct and the plaintiff's

condition. We commented that this testimony "may have created a

genuine question of fact about whether there was some relationship

between the harassment at Spencer Press and Johnson's disability,"

but it was not enough to stave off summary judgment in light of

other factors. Specifically, we pointed to the "numerous other

significant problems in his life that may have been causally

related to his disability" and to the fact that Johnson had found

a new job immediately after leaving Spencer Press and kept the job

for seven months, until he was fired for violating company rules.

Id.

We already have noted that Tobin, too, had other causes of

stress in his life, and he also was able to find a job after

leaving Liberty Mutual. However, the evidence concerning his post-

termination employment at another insurance agency served to

reinforce, rather than undermine, his claim for lost wages. Tobin

stated that he was able to function during his thirteen months at

the job when the work was easy, but he had no net earnings during

that time. He also testified that "I really could not do the

-47-
job."32 Nor was Kantar's testimony as equivocal as the expert's

testimony in Johnson; Kantar specifically attributed psychological

harm to Tobin from Liberty Mutual's conduct. A causal link was

explicitly drawn, for example, in Kantar's testimony that the first

resumption of Tobin's warning period "set in motion again all the

turmoil about how he was going to survive," and the warning after

his second disability leave "sen[t] him into turmoil again."

In sum, unlike in Johnson, the jury could properly trace

Tobin's incapacitation to his employer's conduct. We therefore

reject Liberty Mutual's contention that the jury lacked a factual

basis for awarding Tobin front and back pay.

V.

Liberty Mutual argues that the jury's award of $500,000 for

emotional distress was "grossly excessive" and that the district

court consequently erred in refusing to grant a remittitur. We

review the district court's denial of remittitur only for abuse of

discretion. Koster v. Trans World Airlines, 181 F.3d 24, 34 (1st

Cir. 1999). "We will not disturb an award of damages because it is

extremely generous or because we think the damages are considerably

less," but will adhere to the jury's judgment unless the damages

awarded are "so grossly disproportionate to any injury established

by the evidence as to be unconscionable as a matter of law." Id.;

32
In 2002, his income of $5,355 was offset by a $7,062
deduction for business miles; in 2003, he earned $1,641 and
deducted $3,121 for mileage.

-48-
see also McDonough v. City of Quincy, 452 F.3d 8, 22 (1st Cir.

2006).

The district court observed that "the award was certainly

generous and at the outer reaches of a reasonable jury verdict,"

placing the damages amount within "the range which might be deemed

excessive by the First Circuit and the Supreme Judicial Court."

Tobin, 2007 WL 967860, at *8. Nonetheless, the court concluded

that Tobin's circumstances were "more extreme" than the plaintiffs'

situations in two cases emphasized by Liberty Mutual where

remittitur had been ordered, Koster and Labonte v. Hutchins &

Wheeler, 678 N.E.2d 853 (Mass. 1997), and it declined to enter such

an order here. Id.

The district court did not abuse its discretion in allowing

the jury's verdict to stand. Although Liberty Mutual argues that

Tobin "failed to present any evidence even hinting that his

psychological condition was worsened by Liberty Mutual's failure to

accommodate his disability," other than his "own, self-serving

testimony," we already have explained why the jury permissibly

could conclude that the company's denial of accommodations caused

his total disability. As recounted above, both Tobin and Kantar

testified that at the time of trial – five years after he left the

company – Tobin continued to suffer severe emotional distress from

Liberty Mutual's failure to provide reasonable accommodations that

the jury found would have enabled him to successfully perform his

-49-
job. Moreover, Tobin had spent thirty-seven years at the company

– his entire working life. Kantar observed that "his identity has

been connected with Liberty Mutual" and that being "a sales rep for

Liberty Mutual [is] . . . part of who he is." Kantar reported that

Tobin was "devastated" by the way the termination occurred,

perceiving it as a betrayal. Tobin also was told incorrectly on

the day of his termination that he and his family no longer had

health insurance coverage, information that was particularly

alarming in light of his wife's ongoing treatment for breast

cancer.33

As the district court recognized, the lasting nature of

Tobin's distress and his total incapacity distinguish this case

from others in which large awards have been found unjustified. In

Koster, 181 F.3d at 36, we concluded that an emotional distress

award of $716,000 was excessive and that the evidence would support

a maximum recovery of $250,000. However, "[t]here was no evidence

that Koster ever sought medical treatment or suffered any long-term

depression or incapacitation" and, indeed, Koster opened a business

of his own after losing his job. Id. at 36.34

33
Tobin was told two days later that his coverage would, in
fact, continue. He described the intervening period as "two days
of turmoil."
34
We note that, pursuant to state law, the district court had
doubled the damages awarded to Koster by the jury, effectively
allowing $1.432 million for emotional distress. See 181 F.3d at
28, 34. Thus, if the court applied the same multiplier on remand,
the $250,000 recovery that we deemed permissible would have become

-50-
 Similarly, in Labonte, 678 N.E.2d at 861-62, the court

rejected a $550,000 award for emotional distress where the

plaintiff's post-termination depression abated when he found a new

job and enrolled in a doctoral program. In Hetzel v. County of

Prince William, 89 F.3d 169 (4th Cir. 1996), another case on which

Liberty Mutual relies, the court found the $500,000 award for

emotional distress to be unsupported where the plaintiff remained

employed in her job as a police officer, "continue[d] to perform

her duties with no noticeable diminution in performance," "ha[d] no

observable injuries or physical ailments," and had sought no help

– professional or otherwise – to deal with her asserted emotional

difficulties. Id. at 171.

In sum, we find our assessment in a prior case equally apt

here: "Given this precedent, the deferential standard of review,

and 'the esoteric nature of damages for emotional distress,' the

award in this case, while high, is not so high that we should

disturb it." McDonough, 452 F.3d at 22 (citation omitted).

VI.

Liberty Mutual contends that the district court erred in

assessing interest on the damages award at the prejudgment rate,

rather than at the lower post-judgment rate,35 for the time period

a $500,000 award. See id. at 36 n.5.
35
In a Memorandum and Order issued April 11, 2007, the
district court noted the "substantial difference" in the applicable
interest rates: 12% for prejudgment interest and 4.98% for post-

-51-
between the original entry of judgment on the jury verdict, on May

9, 2006, and the date of the Second Amended Judgment, April 11,

2007.36 We review this contention de novo. R.I. Charities Trust

v. Engelhard Corp., 267 F.3d 3, 5 (1st Cir. 2001).

It is well established that prejudgment interest is a

substantive remedy governed by state law when state-law claims are

brought in federal court, Conway, 825 F.2d at 602; Blockel, 337

F.3d at 29, while post-judgment interest, even on state-law claims,

is governed by federal law, Cummings, 265 F.3d at 68. Liberty

Mutual does not contest the district court's decision to adopt

Massachusetts law for the prejudgment interest rate. It challenges

only the period of time for which the state's 12% rate is

applicable.

Prejudgment interest in Massachusetts "ordinarily applies to

that period from the date of commencement [of suit] to the date on

which judgment is entered." Foley v. City of Lowell, Mass., 948

F.2d 10, 17 (1st Cir. 1991) (citation and internal quotation marks

omitted) (substitution in original); Mass. Gen. Laws Ann. ch. 231,

§ 6B (stating that "there shall be added by the clerk of court to

judgment interest.
36
The district court originally entered judgment on May 9,
2006 based on the jury's verdict the previous day. An Amended
Judgment was entered on March 30, 2007 to reflect Tobin's
acceptance of the remittitur. Both parties then filed objections
to the calculation of prejudgment interest. The Second Amended
Judgment was entered on April 11, 2007, after the court issued a
Memorandum and Order addressing their contentions.

-52-
the amount of damages interest thereon at the rate of twelve per

cent per annum from the date of commencement of the action"). In

asserting that the end date for calculating Massachusetts

prejudgment interest is the date of the original entry of judgment,

Liberty Mutual relies on cases holding that, under federal law,

post-judgment interest ordinarily begins to accrue at that time.

See, e.g., Cordero v. DeJesus-Mendez, 922 F.2d 11, 17 (1st Cir.

1990) (holding that, "[w]here an original judgment is upheld for

the most part but modified on remand, post-judgment interest should

accrue from the date of the first judgment"); Marshall v. Perez-

Arzuaga, 866 F.2d 521, 524 (1st Cir. 1989) (holding that equity

supports "accruing post-judgment interest from entry of a judgment

on a verdict rather than from the date a motion for a judgment

N.O.V. is denied").

However, a successful plaintiff's right to a particular remedy

under federal law does not trump his right to a more advantageous

remedy under state law. When federal and state claims overlap, the

plaintiff may choose to be awarded damages based on state law if

that law offers a more generous outcome than federal law. Doty v.

Sewall, 908 F.2d 1053, 1063 (1st Cir. 1990); id. ("[W]here, as

here, the claims under federal and state law, and the damages

awarded therefore, are identical, a plaintiff is entitled to select

the body of law under which the damages will be paid."). We have

specifically applied that principle to the award of prejudgment

-53-
interest in cases involving "wholly symmetrical" claims, holding

that a plaintiff in such a case has the option to invoke either

"federal or state law, whichever affords her the better interest

rate." Conetta v. Nat'l Hair Care Ctrs., Inc., 236 F.3d 67, 78

(1st Cir. 2001); see also Doty, 908 F.2d at 1063.37

Here, too, the claims under federal and Massachusetts law are

substantively identical, and the jury's special verdict did not

distinguish between them. See Doty, 908 F.2d at 1063

("[E]xamination of the special verdict form makes it clear that

damages for the two claims were provided generally, and were not

segregated into separate federal and state components."). Thus,

Liberty Mutual may not rely on federal case law establishing the

37
The issue in Conetta was the proper rate of prejudgment
interest. Under federal law, the award of prejudgment interest and
the appropriate rate, if not prescribed by the statute providing
the plaintiff's recovery, are discretionary decisions for the
judge. Conetta, 236 F.3d at 77; Cottrill v. Sparrow, Johnson &
Ursillo, Inc., 100 F.3d 220, 224-25 (1st Cir. 1996) ("[I]f the
particular federal statute is silent, courts have discretion to
select an appropriate rate, and they may look to outside sources,
including state law, for guidance."). The district court in
Conetta initially ordered prejudgment interest at six percent, but
increased the rate in response to a post-judgment motion to the
twelve percent figure set by state law (in that instance, Rhode
Island). In Doty, the district court had denied prejudgment
interest on the damages awarded for pendent Massachusetts claims.
908 F.2d at 1062-63. In both instances, we held that, because the
state and federal claims were identical, the plaintiff was entitled
to the advantages provided by state law.

-54-
start date for post-judgment interest to deny Tobin a more

favorable result under state law.38

The question thus becomes whether prejudgment interest under

Massachusetts law runs to the date of the original entry of

judgment or to the date of the trial court's later entry of final

judgment. Although we have found no cases explicitly addressing

that question, we have in the past ruled that the final judgment

establishes the proper end date for the accrual of prejudgment

interest. See Foley, 948 F.2d at 17. The district court here also

treated the question as self-evident: "[I]t is the final judgment

in the District Court that is determinative. The second amended

judgment will be the touchstone for appellate evaluation."

Memorandum and Order, April 11, 2007, at 5.

In Foley, where the plaintiff also brought parallel claims

under federal and state laws, the district court had awarded

prejudgment interest from the date of the suit (November 27, 1985),

only to the date the jury verdict was returned (June 6, 1989).

Entry of judgment on the verdict had occurred on June 30, 1989,

although final judgment was not entered until December 6, 1990.

38
Where the federal and state claims are not fully aligned,
however, it would be "appropriate for the district court to
consider applicable federal standards in fashioning an interest
award." Conway, 825 F.2d at 602; see also Doty, 908 F.2d at 1063
("Ordinarily, where the component of state law damages is not
clearly discernible, it is appropriate for the district court to
consider federal standards in determining the propriety of
prejudgment interest.").

-55-
Id. at 16-17. We agreed with the plaintiff's contention that the

court "improperly truncated the prejudgment interest period,

thereby costing him the benefit, for an eighteen-month period, of

the rate differential between prejudgment and post-judgment

interest." Id. at 17. In other words, we held that under

Massachusetts law the plaintiff was presumptively entitled to

prejudgment interest until final judgment was entered. Id.39 We

then observed:

Because the plaintiff is entitled to
prejudgment interest on the damage award from
November 27, 1985 until final judgment was
entered on December 6, 1990, postjudgment
interest on damages (originally specified by
the district court to start on June 6, 1989)
must be deferred to dovetail with the end of
the prejudgment interest period.

Id. at 18 n.10.

We see no reason here to depart from our approach in Foley.

Accrual of prejudgment interest until final judgment discourages

frivolous post-verdict motions by a losing defendant, accelerating

payment of the debt owed to the plaintiff. Cf. Marshall, 866 F.2d

at 524 (noting that, when motions for judgment N.O.V. are

unsuccessful, "equity strongly favors awarding the plaintiff post-

judgment interest during the pendency of the motions because the

39
The entitlement was "presumptive" because "a trial court has
some discretion under Massachusetts practice to adjust an interest
award if a prevailing litigant has been responsible for unnecessary
delays." Foley, 948 F.2d at 17-18 (citing Currier v. Malden Redev.
Auth., 449 N.E.2d 679, 681 (Mass. 1983)).

-56-
defendant, a judgment debtor, had possession and control of the

funds during that period"). If such an assessment would be unjust

in a particular case, the trial court – as we noted in Foley –

would have the discretion to modify the interest award. See 948

F.2d at 17-18. No such concerns have been asserted here. We

therefore leave undisturbed the district court's award of

prejudgment interest.

VII.

In his cross-appeal, Tobin contends that the district court

erred in refusing to instruct the jury on punitive damages. We

review de novo a district court's determination that the evidence

does not warrant a punitive damages instruction. McDonough, 452

F.3d at 23; Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 41 (1st

Cir. 2003).

Under federal law, "punitive damages in discrimination cases

are authorized 'in only a subset of cases involving intentional

discrimination.'" Che, 342 F.3d at 41 (quoting Kolstad v. Am.

Dental Ass'n, 527 U.S. 526, 534 (1999)). To establish a basis for

punitive damages, the plaintiff must, in addition to proving

intentional discrimination, "show[] that the employer acted with

malice or reckless indifference to federally protected rights."

McDonough, 452 F.3d at 23. This formulation means that the

employer must have "at least discriminate[d] in the face of a

perceived risk that its actions [would] violate federal law."

-57-
Kolstad, 527 U.S. at 536; see also McDonough, 452 F.3d at 24

("[M]alice and reckless indifference concern, not the employer's

awareness that it is discriminating, but the employer's knowledge

that it is acting in violation of federal law.").40

Tobin emphasizes Liberty Mutual's repeated rejections of his

requests for assistance, testimony at trial by some of his

superiors denying knowledge of his disability, and the company's

meticulous building of a written record that documented his

deficiencies – all of which he asserts was evidence of the

company's intentional disregard of its responsibility to

accommodate his disability while it "orchestrated" his discharge.

The district court viewed the sum of the evidence differently in

explaining its rejection of the punitive damages instruction:

The short of it is what happened here was the grim
grinding of the bureaucratic enterprise toward a result.
At each point, consideration was given – whether or not
correctly, but consideration was given – by the defendant
to the relevant factors. This is not one that comes
within either the federal or the state definition of
punitive damages.

We agree that the evidence is insufficient to support punitive

damages. Although the jury supportably found that assignment to MM

40
The Massachusetts standard is similar. Punitive damages are
authorized where the defendant's conduct is "'outrageous[] because
of the defendant's evil motive or his reckless indifference to the
rights of others.'" Dartt v. Browning-Ferris Indus., 691 N.E.2d
526, 537 (Mass. 1998) (quoting Restatement (Second) of Torts §
908(2) (1979)). Our discussion of the issue under federal law thus
embraces the state-law issue as well. See McDonough, 452 F.3d at
24 n.10.

-58-
accounts would have enabled Tobin to perform the essential

functions of his job, the evidence allowing that conclusion does

not reflect "malice or reckless indifference" by Liberty Mutual

toward Tobin's rights. That evidence, which concerned Tobin's

capabilities and the skills required for MM accounts, shows only

that the company was unjustified in denying him the opportunity.

We recognize that the record contains some troubling evidence,

including the implausible testimony of Schwitters and Vance that

they were unaware that Tobin had a disability in the year leading

up to his termination. However, his superiors' general

insensitivity to his circumstances does not provide a basis for

concluding that the particular conduct found actionable by the jury

was committed "in the face of a perceived risk that [the] action[]

will violate federal law," Kolstad, 527 U.S. at 536. Indeed, if,

as Tobin asserts, his supervisors were trying to create a record of

poor performance so that he could be terminated "lawfully," it

would make no sense for the company to consciously risk violating

the law by refusing an accommodation it believed was reasonable.

Moreover, unlike some acts of discrimination – such as

retaliation for an employee's exercise of protected rights –

rejection of a requested accommodation does not by itself suggest

that the employer knew its conduct may be in violation of the law.

Cf., e.g., McDonough, 452 F.3d at 23 (finding punitive damages

instruction warranted where plaintiff alleged retaliation for

assisting with another employee's sexual harassment claim); Che,

-59-
342 F.3d at 41 ("When a jury finds that an employer has engaged in

intentional discriminatory retaliation, the employer's actions and

the effect of those actions are closely connected in a way not

necessarily present in other types of cases.").

In short, the evidence supports the jury's finding that

Liberty Mutual misjudged the reasonableness of the accommodations

requested by Tobin, and thereby exposed the company to liability

under federal and state disability laws, but it does not reveal the

kind of intentional or reckless indifference to federal rights

required to support an award of punitive damages. See Smith v.

Bell Atl., 829 N.E.2d 228, 245 (Mass. App. Ct. 2005) ("[T]he

company's behavior, while actionable, was not so egregious as to

warrant the condemnation and enhanced deterrence that underlie the

imposition of punitive damages.").

VIII.

Tobin also asserts that the district court abused its

discretion in denying his request for attorney's fees. He notes

that a fee award is "virtually obligatory" for prevailing

plaintiffs in ADA cases, see Race v. Toledo-Davila, 291 F.3d 857,

858 (1st Cir. 2002) (per curiam), and that attorney's fees are

mandated for a plaintiff who recovers under Chapter 151B. See

Mass. Gen. Laws Ann. ch. 151B, § 9.

The flaw in this argument is that the court did not summarily

reject Tobin's entitlement to fees, but merely postponed such an

award. The court explained that, because of the "close and

-60-
contestable character of the issues," it was denying the fees,

"without prejudice, pending final resolution of the case." Tobin,

2007 WL 967860, at *11. Although the better practice where fees

are mandated by statute would be to set the fee at the conclusion

of the trial, allowing the parties to appeal the fee award along

with any substantive issues, we decline to deny the court the

discretion to take a different approach in particular instances.

Here, the district court considered the possibility that one or

more of its rulings would be reversed, and it concluded that

judicial efficiency would be better served by delaying the fee

decision. Tobin cites no authority forbidding that pragmatic

exercise of the court's discretion, and such a prohibition strikes

us as inadvisable.

In any event, at this juncture, the issue is moot. Whether or

not the court erred, the case must now be remanded so that the

district court may calculate an appropriate fee. In so doing, it

should address both the trial and appellate proceedings. See

Powell v. Alexander, 391 F.3d 1, 24 (1st Cir. 2004).

Affirmed.

-61-