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Jury instructions need not detail employer’s post-termination ADA duties, possible accommodations

By Kathleen Kapusta, J.D.

A district court’s decision not to specifically instruct a jury in an ADA discrimination lawsuit that a municipal employer had a continuing duty to engage in an interactive process with its employee and to use information it learned after his termination to reasonably accommodate his sleep apnea was not an abuse of discretion, the First Circuit ruled. Nor did the court below err by refusing to specifically include in the jury instruction a leave of absence as a possible accommodation that the town could have made available to the employee, said the appeals court, observing that there “is no requirement under the ADA that a trial judge provide a jury with an exhaustive or itemized list of possible steps that the employer might take to accommodate an employee’s disability.” The district court’s judgment was affirmed (McDonald v. Town of Brookline, July 12, 2017, Stahl, N.).

Hired in 2003, the public works department employee struggled with substance abuse issues and, starting in 2008, his supervisor complained about his use of sick leave and lack of acceptable documentation to justify his absences. As a result of his frequent absences in early 2009, he was required to appear at a disciplinary hearing. Around that same time, he was diagnosed with sleep apnea and his doctor wrote a note indicating he was being treated for fatigue and a related disorder. Although the town requested further information and informed him in a letter of his FMLA rights, the employee never requested leave. He was told, however, that he could not come back to work until the information had been received and a determination had been made as to his employment status.

Termination. After he exhausted his available leave, he was notified that he was being terminated for failure to provide adequate medical documentation. He then requested FMLA leave and a post-termination hearing. At the hearing, he did not offer any evidence or medical information and when asked if he viewed himself as having voluntarily abandoned his job, he responded “correct.” His termination was accordingly upheld.

Jury instructions. The employee then sued, alleging the town violated the ADA by discriminating against him on the basis of his disability, denying him a reasonable accommodation, and failing to engage in an interactive dialogue. At the close of a six-day trial, the district court did not instruct the jury, as the employee requested, that the town had a continuing duty to engage in an interactive process with him and to use information that it learned after his termination to reasonably accommodate his disability. Nor did it instruct the jury that a “reasonable accommodation may include, inter alia, leave of absence and leave extension; [and] additional leave beyond that allowed in leave policy.”

The jury returned a verdict in favor of the town and the court entered judgment against the employee and subsequently denied his motion for a new trial.

Post-termination events. On appeal, the parties disagreed over the appropriate standard of review regarding the district court’s failure to include post-termination activities in the jury instructions. The employee urged the appeals court to conduct a de novo review, arguing that the jury instruction was incorrect as a matter of law because the jury was not informed the town might have a continuing duty under the ADA, post-termination, to revisit its decision in light of new information as to a former employee’s disability. Siding with the town, however, the court found that ultimately, the employee’s objection was that the jury instructions did not adequately direct the jury toward his preferred evidence—the town’s behavior after his termination and its failure to respond to his post-termination letter requesting FMLA leave.

Further, said the court, the district court’s decision not to include the specific language about the period of time between the employee’s termination and his post-termination hearing “was based on the sound principle that it is not incumbent on the trial judge to, as the court below put it, ‘outline to the jury all the evidence’ with respect to what constitutes a reasonable accommodation.” Reviewing the jury instruction for abuse of discretion, the court found it adequately illuminated the law applicable to the controverted issues in the case without unduly complicating matters or misleading the jury.

Moreover, the lower court told the parties that it would be “fine for [plaintiff's counsel] to argue” the point about post-termination evidence to the jury, and he did so. “In short,” said the appeals court, “what the Town knew, and when, featured prominently in the closing arguments made by both parties,” as did details of the employee’s post-termination hearing and his failure to present any mitigating evidence at that hearing. Accordingly, the court found no abuse of discretion, and no error on the part of the district court.

Leave as reasonable accommodation. Turning to the employee’s assertion that the district court committed prejudicial error by failing to instruct the jury that a reasonable accommodation may include a leave of absence or leave extension, the court reviewed this for plain error as the employee’s counsel did not raise this objection either before or after the jury was charged. Finding “no error plain or otherwise,” the court explained that there is no requirement under the ADA that a trial judge provide a jury with an exhaustive or itemized list of possible steps the employer might take to accommodate an employee’s disability. Rather, the language of the ADA, which the district court quoted almost verbatim, indicates that the provided examples of possible accommodations are merely illustrative, not exhaustive or mandatory.

And while the district court did not explicitly instruct the jury that reasonable accommodations may include a leave of absence, it did tell the jury that it was “to determine whether the defendant, the [T]own, failed to accommodate the disabilities of the plaintiff” and that it should specifically consider “what accommodation [the employee] requested and for what period of time.” This, said the appeals court, was sufficient to direct the jury to consider the employee’s claim that the town failed to accommodate his disability by failing to grant him leave.