Filed: Aug. 21, 2020
Latest Update: Aug. 21, 2020
Summary: United States Court of Appeals For the First Circuit No. 18-2164 BRIAN BELL, Plaintiff, Appellant, v. O'REILLY AUTO ENTERPRISES, LLC, d/b/a O'Reilly Auto Parts, Defendant, Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. Jon D. Levy, U.S. District Judge] Before Barron, Selya, and Boudin, Circuit Judges. Allan K. Townsend, with whom Chad T. Hanson was on brief, for appellant. Christopher C. Taintor, with whom Norman, Hanson & DeTroy, LLC, was on brief, for ap
Summary: United States Court of Appeals For the First Circuit No. 18-2164 BRIAN BELL, Plaintiff, Appellant, v. O'REILLY AUTO ENTERPRISES, LLC, d/b/a O'Reilly Auto Parts, Defendant, Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. Jon D. Levy, U.S. District Judge] Before Barron, Selya, and Boudin, Circuit Judges. Allan K. Townsend, with whom Chad T. Hanson was on brief, for appellant. Christopher C. Taintor, with whom Norman, Hanson & DeTroy, LLC, was on brief, for app..
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United States Court of Appeals
For the First Circuit
No. 18-2164
BRIAN BELL,
Plaintiff, Appellant,
v.
O'REILLY AUTO ENTERPRISES, LLC, d/b/a O'Reilly Auto Parts,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy, U.S. District Judge]
Before
Barron, Selya, and Boudin,
Circuit Judges.
Allan K. Townsend, with whom Chad T. Hanson was on brief, for
appellant.
Christopher C. Taintor, with whom Norman, Hanson & DeTroy,
LLC, was on brief, for appellee.
August 21, 2020
BOUDIN, Circuit Judge. Brian Bell alleged that O'Reilly
Auto Enterprises ("O'Reilly") failed properly to accommodate his
disability under the Americans with Disabilities Act ("ADA"), 42
U.S.C. § 12101 et seq, and the Maine Human Rights Act ("MHRA"), 5
M.R.S. § 4551 et seq. At trial, the jury found for O'Reilly. Bell
now appeals.
Bell lives with Tourette's syndrome, attention-
deficit/hyperactivity disorder, and major depression. He takes
medication, but experiences motor tics, often accompanied by a
mild verbal noise, and he cannot concentrate easily. With
depression, he wakes up weary.
Despite these symptoms, Bell earned a position with
O'Reilly to manage its store in Belfast, Maine. As store manager,
Bell was "[r]esponsible for the sales, profitability, appearance,
and overall operations of the store." Bell trained, supervised,
and evaluated employees, monitored accounting, tracked inventory,
and set prices. He oversaw a small team, usually about eight to
twelve employees.
Bell worked as a store manager for months without
incident. During this time, not counting breaks, Bell was
scheduled to work slightly more than fifty hours a week and ten-
and-a-half hours a day. Beyond these scheduled hours, Bell
infrequently worked an additional fifteen to thirty minutes a week
to complete tasks.
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But work grew more intense when Bell lost two shift
leaders, leaving only a few employees who could open and close the
store. Unable to schedule employees for overtime, Bell made up
the difference himself, working almost 100 hours a week on fifteen-
hour days. He worked from around 6:30 a.m. to 9:30 p.m. almost
every day, including weekends.
Bell's symptoms grew more severe and his motor tics grew
more frequent and more painful. His concentration deteriorated,
as did his sleep. He told his mental health provider that he felt
overwhelmed. Bell broke down soon after. At work, exhausted, he
began to tremble uncontrollably, his motor tics relentless. Bell
left the store to take a break, resting in his truck parked
outside, but his supervisor demanded that he return. Bell went to
his mental health provider to discuss his symptoms.
O'Reilly then told Bell that before he could work again,
he would have to get his provider to fill out a form confirming
his fitness for duty. Bell's provider indicated that he would be
fit to return to work a few days later so long as he received an
accommodation. She later testified that she aimed to secure an
accommodation for Bell that would protect him against
"overwhelming stress" by preventing O'Reilly from placing him
"into the kind of working schedule that he had had, working 50
hours or more."
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The two settled on the following language for the
proposed accommodation: "Mr. Bell because of his mental health
issues should not be scheduled for more than 9 hours 5 days a
week." Bell's provider checked a box indicating that Bell's "[m]ax
hours per day of work" should be restricted to nine hours. Bell
faxed this form to O'Reilly.
O'Reilly denied Bell's requested accommodation. Bell's
district manager said that O'Reilly understood the form to be a
hard cap on his worked hours; after Bell made clear that he
intended only to request a restriction on his scheduled hours,
Bell's district manager directed Bell to have his provider fill
out a revised form to that effect.
The provider declined to revise the form, deeming the
original language adequate to convey Bell's request. Instead, she
invited O'Reilly to discuss the request with her if the company
needed clarification. O'Reilly never did but eventually
terminated Bell.
Bell sued O'Reilly in the federal district court in
Maine. Among other claims, Bell alleged that O'Reilly violated
the ADA and the MHRA when it failed to provide Bell with a
reasonable accommodation. Those claims survived summary judgment
and went to trial.
Bell's theory of the case was that he needed O'Reilly to
accommodate his disability, he had requested a reasonable
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accommodation, and O'Reilly had rejected it. O'Reilly had enlisted
Bell to work "close to 100 hours a week, [and] his meds couldn't
keep up." With the restriction, Bell's counsel argued, Bell would
have "some protection" against this enlistment. But O'Reilly
denied his request.
O'Reilly answered that the requested accommodation would
have prevented Bell from performing a store manager's essential
job functions. O'Reilly's witnesses testified that it was
essential for store managers to work at least fifty hours a week,
with the flexibility to do more, and Bell's requested restriction
would have left him locked into a schedule below O'Reilly's "bare
minimum scheduling requirement."
Bell replied that because his accommodation restricted
only scheduled hours, he would have been able to work unscheduled
hours. And he had confirmed in a letter to O'Reilly that he could
work unscheduled hours "on occasion . . . [i]f necessary." Bell
testified that "if there were no other option, then [he] would
have a found a way" to work the hours needed to get the job done.
In closing O'Reilly's counsel pivoted, telling the jury
that "if he can do it, that means he doesn't need the
accommodation. . . . [and] he is at least not entitled to an
accommodation under the law." He emphasized that "the judge will
instruct you that even if you have a disability, you're entitled
to an accommodation only if you need that accommodation in order
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to do the essential functions of your job." The judge gave this
instruction, and the jury returned a verdict for O'Reilly on all
claims.
Bell timely appealed, and among other challenges argues
that the district court erred in instructing the jury that to
succeed on a claim that an employer failed to provide a reasonable
accommodation, a plaintiff must prove that "he needed an
accommodation to perform the essential functions of his job." Bell
contends that a disabled employee who "experiences difficulty" due
to his disability "in performing his job" may ultimately be
entitled to a reasonable accommodation.
Where, as here, a motion for a new trial relies on
"preserved claims of instructional error," the "questions as to
whether the jury instructions capture the essence of the applicable
law" are reviewed de novo. Thomas & Betts Corp. v. New
Albertson's, Inc., 915 F.3d 36, 49 (1st Cir. 2019) (internal
quotations omitted). Following the parties, we treat the MHRA as
"coextensive with the ADA in all material respects." Richardson
v. Friendly Ice Cream Corp.,
594 F.3d 69, 74 n.2 (1st Cir. 2010).
The district court erred here when it instructed the
jury that, for a disabled employee to make out a failure-to-
accommodate claim, he must demonstrate that he needed an
accommodation to perform the essential functions of his job.
Giving the jury instructions their "most natural reading," United
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States v. Pizarro, 772 F.3d 284, 300 (1st Cir. 2014), they required
an employee to demonstrate that he could not perform the essential
functions of his job without accommodation.
An employee who can, with some difficulty, perform the
essential functions of his job without accommodation remains
eligible to request and receive a reasonable accommodation. The
ADA prohibits an employer from "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." 42 U.S.C. § 12112(b)(5)(A). A "qualified
individual" is "an individual who, with or without reasonable
accommodation, can perform the essential functions of the
employment position that such individual holds or desires." Id.
§ 12111(8) (emphasis added).
For this reason, to make out a failure to accommodate
claim, a plaintiff need only show that: "(1) he is a handicapped
person within the meaning of the Act; (2) he is nonetheless
qualified to perform the essential functions of the job (with or
without reasonable accommodation); and (3) the employer knew of
the disability but declined to reasonably accommodate it upon
request." Sepúlveda-Vargas v. Caribbean Rests., LLC, 888 F.3d
549, 553 (1st Cir. 2018). A plaintiff can make out this kind of
claim even when an employer has "pronounced itself fully satisfied
with [the disabled employee]'s level of performance" before a
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request. Calero-Cerezo v. U.S. Dep’t of Just., 355 F.3d 6, 23
(1st Cir. 2004).
Vacation is appropriate "only if the error is determined
to have been prejudicial based on a review of the record as a
whole," Sony BMG Music Ent. v. Tenenbaum, 660 F.3d 487, 503 (1st
Cir. 2011) (internal quotations omitted), but the error here
prejudiced Bell. By instructing the jury that an employee must
demonstrate that he needed an accommodation to perform the
essential functions of his job, the district court wrongly limited
O’Reilly’s potential liability.
O’Reilly responds that there was no prejudice because
the challenged instruction was "functionally equivalent" to
another instruction from the district court: that an employee must
demonstrate "that the proposed accommodation would enable him to
perform the essential functions of the job." But this instruction
does not say "by implication" whether the employee must demonstrate
"that without the accommodation he was 'unable' to do" the
essential functions of the job. Rather, the instruction expresses
only the well-settled rule that a proposed accommodation must be
"effective," leaving an employee able to perform the essential
functions of the job. Trahan v. Wayfair Me., LLC, 957 F.3d 54, 66
(1st Cir. 2020).
O'Reilly also argues that there was no prejudice because
no reasonable jury could have found that Bell would have been able
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to perform the essential functions of his job with O’Reilly: it
was essential that O’Reilly’s store managers work at least fifty
hours a week, with the flexibility to do more, but Bell had
requested a scheduling restriction that would have left him unable
to fulfill this role. On this issue and on this record, a jury
could have found for Bell.
The district court's judgment is vacated and the case is
remanded for a new trial on Bell's failure-to-accommodate claim.
Costs are to be taxed in favor of Bell.
It is so ordered.
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