McDonald v. Brookline, MA

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Norman H. Stahl, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. [17-1016]

Case: 17-1016

Document: 00117176526

Page: 1

Date Filed: 07/12/2017

Entry ID: 6105350

United States Court of Appeals
For the First Circuit
No. 17-1016
WILLIAM MCDONALD,
Plaintiff, Appellant,
v.
TOWN OF BROOKLINE,
Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]

Before
Torruella, Stahl, and Thompson,
Circuit Judges.

John F. Palmer, with whom the Law Office of John F. Palmer
was on brief, for appellant.
Patricia Correa on brief for appellee.

July 12, 2017

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STAHL, Circuit Judge.

Date Filed: 07/12/2017

Entry ID: 6105350

William McDonald was fired from

his job in the Town of Brookline's ("Town") Department of Public
Works in May 2009 for unjustified absences from work and failing
to provide adequate documentation for his use of sick leave.
McDonald filed a complaint against his former employer in federal
district

court,

alleging

that

his

termination

violated

the

Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12103 et seq.
McDonald alleged that he had been suffering from sleep apnea and
the Town terminated him on the basis of his poor work performance
that resulted from this disability, and failed to make reasonable
accommodations for his disability.

After a six-day trial, a jury

in the District of Massachusetts found in favor of the Town.
McDonald now appeals, arguing that the district court erred in its
jury instructions.

Finding no basis for that contention, we

AFFIRM.
I. Facts & Background
McDonald joined the Town's Public Works Department in
2003, when he was hired as a Motor Equipment Operator II and
Laborer in the Highway and Sanitation Division.
and

specific

subdivisions:
sweeping,

assignments
the

Town

potholes,

varied
could

plowing,

and

assign
and

were
him

road

McDonald's duties

spread
to

among

three

Highway

(street

maintenance),

Traffic

(maintenance and installation of road signs, lighting, and poles),
or Sanitation (driving or riding on the back of garbage trucks

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during collections), depending on the needs of the Department and
other factors such as weather and road conditions.

In the two

years leading up to the events in question in this case, McDonald
was principally assigned to the Traffic division, but was asked to
fill in on the Sanitation crew on approximately six occasions.
Although he generally received positive work performance
reviews from his supervisor during his first several years on the
job, McDonald also struggled with substance abuse issues and,
beginning in 2008, began to receive complaints about his use of
sick leave.

For instance, on March 4, 2008, his supervisor wrote

to him that his sick leave record was unacceptable and that he
needed to provide further documentation from a physician to justify
recent absences.

In July 2008, McDonald submitted a doctor's note

on a day when he was absent from work.

However, during the civil

trial in his case against the Town, he admitted that he was absent
from work that day because of a mandatory court appearance arising
from a previous drug-related arrest.

On September 2, 2008, the

Town suspended McDonald from work for three days for what it
claimed was sick leave abuse.
The events that ultimately sealed McDonald's fate took
place in the winter and spring of 2009.

On the one hand, Brookline

experienced a particularly bad winter that year, and McDonald
clocked a significant amount of overtime hours to assist the
Sanitation division with snow removal efforts.

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On the other hand,

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McDonald was frequently absent from work.

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In January, he took a

number of sick days and bereavement leave to tend to his father,
who had been seriously injured in an accident during the previous
fall and ultimately passed away in late January 2009.

On February

12, 2009, McDonald called in sick because he was experiencing "flulike symptoms" and was feeling "run down."

Several days later, on

February 18, 2009, McDonald went to the emergency room at Beth
Israel Deaconess Hospital ("BIDH") and complained that he felt
tired, achy, and was experiencing "sweats."

He was diagnosed with

bronchitis, given a prescription for Levaquin, and sent home.
The next day, February 19, the DPW Commissioner sent
McDonald a notice informing him that he was to appear at a
disciplinary hearing on March 2, 2009, to address "unsubstantiated
questionable

sick

leave."

That

notice

specifically

informed

McDonald that he faced possible termination for these violations.
On February 20, he visited his primary care physician to procure
medical documentation supporting his absences, and renewed his
complaints about various symptoms (nausea, vomiting, diarrhea, and
"night sweats") that he had previously raised at the BIDH emergency
room.
work.

The physician wrote him a note to cover his absence from
Somewhere

around

this

same

time,

he

also

visited

a

psychologist for difficulties that he was having with sleeping.
The psychologist referred him to a sleep study at BIDH on March 7,
2009.

Additionally, a follow-up letter from the Town to McDonald,

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dated February 24, 2009, clarified that McDonald was suspended
from active employment pending the March 2 hearing. However, after
McDonald provided the Town with an authorization to obtain records
from his primary physician, the Town was apparently satisfied that
the most recent absences had been medically justified, and it
withdrew his suspension and reimbursed McDonald for the days that
he had been suspended.
This rapprochement, however, was short-lived.

Upon his

return to work, McDonald complained of being assigned to the
Sanitation division because he had difficulty "keeping up" with
the physical nature of the work.
after

refusing

to

perform

He was sent home on March 19

sanitation

work.

His

physician,

reviewing the results from McDonald's March 7 study, concluded
that McDonald was suffering from sleep apnea, and suggested he see
a sleep specialist "ASAP."

He also wrote him a physician's note

to return to work which indicated that McDonald was being treated
for

"fatigue

and

a

related

disorder"

and

that

he

should

be

performing "light duty for the foreseeable future."
The

Town,

in

a

March

23

letter

authored

by

DPW

Commissioner Thomas DeMaio, requested further information and
documentation from McDonald regarding the "medical reasons for the
request for light duty," and informed him that he could not come
back to work until that information had been received and until "a
determination [has been] made as to your employment status."

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On

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March 27, the Town's Assistant Director of Human Resources sent
McDonald a letter informing him of his rights under the Family
Medical Leave Act ("FMLA") and enclosing a form that McDonald could
fill

out

McDonald,

if
who

he

was

had

interested

follow-up

in

applying

appointments

for

FMLA

scheduled

leave.

with

his

physician and his sleep specialist on March 31 and April 2,
respectively, did not reply to the DeMaio letter until April 6, at
which time he reiterated his request for light duty and enclosed
the sleep study along with another copy of the March 19 note from
his physician.

He never filed the FMLA form.

Thereafter, the parties exchanged a series of letters
throughout April 2009.

McDonald continued to complain of fatigue,

and the sleep study raised a concern on the part of the Town that
he could become drowsy while operating heavy equipment.

The Town

continued to find McDonald's supporting documentation insufficient
to justify his use of sick leave, and at times even found the
information inconsistent and contradictory.

The record, as well

as the briefing by the Town to this court, suggests that the Town
believed that McDonald's symptoms were the product of substance
abuse withdrawal and that they believed he was using sick leave as
a cover for these problems.

McDonald apparently did not disclose

his substance abuse issues to the medical professionals that he
met with during the relevant time period.

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By

mid-April,

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McDonald

Date Filed: 07/12/2017

had

exhausted

his

Entry ID: 6105350

available

leave, and on April 16, the HR Director sent him what she described
as

a

"wake-up

call"

letter,

informing

McDonald

that

the

documentation that the Town had received was insufficient and that
he was subject to termination if he continued to be absent from
work without permission.

McDonald responded the next day that he

would be submitting a comprehensive report from his physician once
his follow-up appointments and evaluations were completed in a
week or two.

On April 21, the DPW Deputy Commissioner sent

McDonald a letter informing him that he would be considered absent
without pay, an offense which could lead the Town to view McDonald
as having "voluntarily and permanently separated [himself] from
employment consistent with" Massachusetts law,1 unless he submitted
a

completed

documentation.

FMLA

leave

request

form

or

other

sufficient

The Deputy Commissioner enclosed a new FMLA form

along with that letter, as McDonald had not returned the one that
the Town had previously sent him in March.
McDonald arranged for a follow-up appointment with the
sleep specialist on May 2 and arranged to be fitted with a CPAP
mask and machine to wear at night to address his sleep apnea.
Although he was informed that the equipment would be delivered
within a week, and the sleep specialist advised him that he could

1

The letter specifically cited Mass. Gen. Laws ch. 31, § 38.

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return to work in mid-May, he did not respond to the Deputy
Commissioner's letter of April 21, nor did he call anyone at the
Town to discuss his recent medical appointments and to address the
Town's explicitly stated warning that he would be deemed as having
abandoned

his

position

(which

the

Town

had

kept

open

since

March 19) if he did not promptly provide them with either specific
documentation

or

with

a

completed

FMLA

leave

request

form.

Finally, having not heard from McDonald, on May 12, the Town sent
him a letter informing him that his employment was being terminated
because he had failed to provide adequate medical documentation to
justify his absences, had not applied for or been granted a leave
of absence, and had been absent from work without authorization
for more than fourteen days.

This notice also informed McDonald

that he had the right to a hearing to challenge this decision.
McDonald quickly responded by sending two letters to the
Town on May 14, one enclosing a request for leave under the FMLA
signed by his physician and attaching his sleep specialist's
follow-up report from the May 2 visit, and the second requesting
a post-termination hearing.

His FMLA form requested an additional

three months leave to adjust to the CPAP machine, notwithstanding
his sleep doctor's report that noted that McDonald should be able
to return to work in mid-May.
His hearing was scheduled for June 10, 2009.

McDonald

did not contact his union representatives for assistance at the

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hearing; however, a union representative nonetheless attended the
hearing and took notes.

At the hearing, McDonald did not offer

any evidence or medical information, did not offer any argument
when presented with evidence that he had separated himself from
his employment, and responded "correct" when asked if he viewed
himself as having voluntarily abandoned his job.

Following the

conclusion of the hearing, the Town sent McDonald a post-hearing
decision letter on June 16, 2009, noting that McDonald had not
asked for a leave of absence and had offered no evidence at the
hearing to rebut the Town's position that he had voluntarily
separated himself from his job.

His termination, effective May

12, 2009, was upheld.
On May 7, 2012, McDonald filed a pro se complaint against
the Town in the District Court for the District of Massachusetts.
In his complaint, McDonald alleged that the Town had violated the
ADA by discriminating against him on the basis of his sleep apnea
disability, denying him a reasonable accommodation, and failing to
engage in an interactive dialogue as required under the ADA.
McDonald later procured counsel and requested a jury trial, which
began on September 12, 2016.

At the close of the six-day trial,

McDonald submitted proposed jury instructions that included, most
relevantly, the following language (emphasis added):
1. . . . A reasonable accommodation may include:
job restructure; part-time or modified work
schedule; reallocation of job duties; leave of

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absence and leave extension; additional leave
beyond that allowed in leave policy; and other
similar accommodations for individuals with
Plaintiff’s disabilities . . . .
2. The duty to provide a reasonable accommodation
is a continuing one . . . . It may extend beyond
the decision to terminate Plaintiff if the
Defendant is provided with new or additional
information that provides a basis for the claim
that Plaintiff suffers from a disability which
may require an accommodation.
3. An employee’s request for an accommodation
triggers a duty on the part of the employer to
engage in an interactive process . . . . The
obligation to engage in an interactive process,
like the duty to provide an accommodation, may
extend beyond the termination of employment.
The

district

court,

however,

did

not

include

the

underlined portions of McDonald's proposed instructions in its
charge to the jury.

Instead, the district court informed the

parties that by not explicitly informing the jury that they could
consider

post-termination

evidence,

she

was

not

"precluding"

counsel from arguing that post-termination activities on the part
of the Town could factor into the jury's consideration of whether
the

Town

made

a

reasonable

accommodation

to

the

plaintiff's

disability. The Court informed counsel that it was not the court's
role to "outline to the jury all the evidence" with respect to
what constitutes a reasonable accommodation, but reiterated that
it was "fine for you [counsel] to argue" that point to the jury.
The district court's instructions informed the jury that
the

ADA

and

its

implementing

regulations

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indicated

that

a

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"reasonable accommodation may include making existing facilities
used by employees readily accessible to and usable by individuals
with disability, restructuring the job, part-time or modifying
work schedules."2

The instructions also informed the jury that

"[i]t may be necessary for the employer to initiate an informal
interactive process with the employee with a disability in need of
accommodation.

This

process

should

identify

the

precise

limitations resulting from the disability and potential reasonable
accommodations

that

could

overcome

those

limitations."

When

evaluating whether the plaintiff was disabled within the meaning
of the ADA framework, the court instructed the jury that "the only
relevant condition in response to this question is sleep apnea,"
and that "evidence of drug or alcohol abuse may not be considered
in deciding this question."
Summarizing the employer's obligations under the ADA,
the court instructed the jury as follows:
While the [T]own does not have to provide a
specific
accommodation
requested
by
the
plaintiff, it has to provide a reasonable one
within its existing working requirements and
environment.
It does not have to provide an
accommodation that would create for itself an
undue hardship that would cause increased
costs,
bad
impact
on
other
employees,
constraints imposed by its workforce structure
or the location of its several facilities, but
it does have to make an effort to provide a
reasonable accommodation to allow the disabled
employee to perform work. The law contemplates
2

See 42 U.S.C. § 12111(9)(B).

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that the process of arriving at a reasonable
accommodation be accomplished by an interactive
process between the employee and the employer
who should identify the precise limitations
resulting from the employee's disability and a
potential accommodation appropriate to those
limitations.
McDonald's
failure

to

include

attorney

renewed

post-termination

his

objections

activities

in

to

the

the
jury

instructions; however, he did not specifically object on the ground
that the instructions should have explicitly listed approved leave
as an example of a reasonable accommodation.

On September 19,

2016, the jury returned its verdict on special questions and found
in favor of the Town, concluding that it had not terminated
McDonald on the basis of his disability and that the Town did not
fail to reasonably accommodate him and his disability.3

The Court

entered judgment against McDonald on October 5, 2016.

After his

motion for a new trial was denied on November 21, 2016, McDonald
filed a timely appeal to this court.
II. Discussion
A. Standard of Review
With respect to properly preserved objections to the
failure to give a requested jury instruction, this court conducts
de novo review as to "whether a given instruction is, in substance,

3

The jury did find, however, that McDonald was both disabled
by sleep apnea during the relevant period of time in 2009 and was
a "qualified individual" under the ADA.

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legally correct."

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Shervin v. Partners Healthcare Sys., Inc., 804

F.3d 23, 47 (1st Cir. 2015).

However, "[w]e review for abuse of

discretion the particular wording chosen to convey a concept to
the jury."

Id.

This inquiry, in turn, "focuses on whether the

instruction 'adequately illuminate[d] the law applicable to the
controverted

issues

in

the

case

without

unduly

complicating

matters or misleading the jury.'" Id. (quoting Testa v. Wal-Mart
Stores, Inc., 144 F.3d 173, 175 (1st Cir. 1998) (alteration in
original)).

A district court's refusal to grant a proposed jury

instruction

only

constitutes

reversible

error

prejudicial when evaluating the record as a whole.

if

it

was

See McKinnon

v. Skil Corp., 638 F.2d 270, 274 (1st Cir. 1981) ("As long as the
judge's instruction properly apprises the jury of the applicable
law, failure to give the exact instruction requested does not
prejudice the objecting party.").
B. Events After May 12
McDonald first argues that it was prejudicial error for
the district court not to have specifically instructed the jury
that the Town had a continuing duty to engage in an interactive
process with him and to use information that the Town learned after
his May 12 termination to reasonably accommodate his disability.
Here, the parties disagree over the appropriate standard of review.
McDonald argues that the district court's jury instruction was
incorrect as a matter of law, because the jury was not informed

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that the Town may have a continuing duty under the ADA, posttermination, to revisit its decision in light of new information
as to a former employee's disability.

Therefore, and because he

objected to this aspect of the jury instructions below, McDonald
argues that we should conduct de novo review.

By contrast, the

Town argues that McDonald's challenge only goes to the precise
wording choices made by the district court when it explained the
legal framework to the jury at the close of trial, which in turn
would trigger abuse of discretion review.
We think the Town has the better of this argument.
Ultimately, McDonald's objection is that the jury instructions did
not adequately direct the jury toward his preferred evidence:
namely,

the

Town's

behavior

after

it

terminated

McDonald

on

May 12, including the Town's failure to respond to McDonald's
letter of May 14.

The district court's decision not to include

the specific language about the period of time between May 12 and
the June 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.

While "[a] party

. . .

is entitled to have its legal theories on controlling issues, which
are supported by the law and by the evidence, presented to the
jury,"

Sullivan v. Nat'l Football League, 34 F.3d 1091, 1107 (1st

Cir. 1994), as amended on denial of reh'g (Oct. 26, 1994), he or

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she is not entitled to have a district court tailor the jury
instructions to the most advantageous portions of the record.
Because we view McDonald's challenge in this light, we
review

the

discretion.

district
Under

court's
that

jury

standard,

instructions
we

think

for

the

abuse

of

instructions

"adequately illuminate[d] the law applicable to the controverted
issues

in

the

case

without

unduly

complicating

matters

or

misleading the jury," Shervin, 804 F.3d at 47 (quoting Testa, 144
F.3d at 175) (alteration in original)).

The district court, while

not including the requested language in the charge, indicated that
it would be "fine for [plaintiff's counsel] to argue" the point
about post-termination evidence to the jury, and he did so.

Both

parties presented evidence of events that took place after May 12,
2009, and argued to the jury that these events were relevant to
the plaintiff's claims insofar as they shed light on whether the
Town made a reasonable accommodation for McDonald's disability.
The Town, for instance, argued that McDonald himself had confirmed
his job abandonment at the June 2009 hearing, focusing on his
failure to provide additional evidence at that hearing and pointing
out that McDonald had responded affirmatively when asked whether
he viewed himself as having abandoned his job. Similarly, McDonald
focused on the May 14, 2009, FMLA request and the Town's failure
to respond to that request.

The Town countered that the May 14

request was "too little too late" given McDonald's failure to

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respond to previous overtures and his failure to provide adequate
medical documentation justifying his absences.
In

short,

what

the

Town

knew,

and

when,

featured

prominently in the closing arguments made by both parties, as did
details of McDonald's June 2009 post-termination hearing and his
failure to present any mitigating evidence at that hearing.

We

simply find no basis in the record to conclude that, by the
district judge's failure to specifically tell the jury that they
could consider this evidence, the jury in turn ignored it. Because
our role is to evaluate whether the jury instructions as a whole
"adequately explained the law or whether they tended to confuse or
mislead the jury on controlling issues," Frederico v. Order of
Saint Benedict in R.I., 64 F.3d 1, 4 (1st Cir. 1995), we think the
instructions met this standard, and did not confuse or mislead the
jury

into

thinking

it

could

only

review

including McDonald's May 12 termination.

evidence

up

to

and

We therefore find no

abuse of discretion, and no error, much less of the prejudicial
variety, in the district court's decision not to adopt McDonald's
proposed jury instructions on the question of the Town's postMay 12 responsibilities.
C. Leave of Absence and Reasonable Accommodation
McDonald's second argument is that the district court
committed prejudicial error by failing to instruct the jury, as he
requested, that a "reasonable accommodation may include, inter

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alia, leave of absence and leave extension; [and] additional leave
beyond that allowed in leave policy."

Because McDonald requested

a three-month leave of absence on May 14 (two days after his
termination) to resolve his sleep apnea, and because the Town never
responded directly to this request, McDonald argues that the
failure to specifically include additional leave time as an example
of a "reasonable accommodation" for purposes of the ADA could have
led the jury to conclude that leave time should not be considered
when the jury deliberated as to whether the Town behaved reasonably
in accommodating his disability.
We review this contention for plain error, as counsel
for McDonald did not raise this objection either before or after
the jury was charged.

See Gray v. Genlyte Grp., Inc., 289 F.3d

128, 133-34 (1st Cir. 2002).

Plain error review is designed to

"prevent a clear miscarriage of justice," Romano v. U-Haul Int'l,
233 F.3d 655, 664 (1st Cir. 2000).

When entertaining a challenge

under plain error review, we will disturb a district court's
decision only if the error "seriously affected the fairness,
integrity or public reputation of judicial proceedings,"

id.

(quoting Elgabri v. Lekas, 964 F.2d 1255, 1259 n.1 (1st Cir. 1992).
As with McDonald's argument on the question of the Town's
post-termination obligations under the ADA, we discern no error,
plain or otherwise, in the district court's refusal to specifically
include a leave of absence as a possible accommodation that the

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employer could have made available to McDonald.

Entry ID: 6105350

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.

And because

there is no affirmative requirement that the district court provide
such an exhaustive or itemized list, there can be no plain error.
Rather,

in

the

context

of

what

constitutes

a

reasonable

accommodation under the ADA, "[e]ach case must be scrutinized on
its own facts."

García-Ayala v. Lederle Parenterals, Inc., 212

F.3d 638, 648 (1st Cir. 2000).
The language in the statute itself, which the district
court quoted almost verbatim in its jury instructions, indicates
that the provided examples of possible accommodations are merely
illustrative,

not

exhaustive

or

mandatory.

See

42

U.S.C.

§ 12111(9) (noting that the term "reasonable accommodation" may
include making existing facilities readily accessible and usable
to

persons

with

disabilities,

adjusting

work

schedules,

reassigning a disabled employee to a vacant position, and so on).
Our cases discussing the possibility of granting additional leaves
of absence for employees under the ADA also echo this fact-specific
approach.

See Criado v. IBM Corp., 145 F.3d 437, 443 (1st Cir.

1998) (noting that "a leave of absence and leave extensions are
reasonable accommodations in some circumstances," but "[w]hether
the leave request is reasonable turns on the facts of the case.")

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Additionally,

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while

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the

district

court

Entry ID: 6105350

did

not

explicitly instruct the jury that reasonable accommodations may
include a leave of absence, the court did instruct 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 [McDonald] requested and
for what period of time" in its determination. This was sufficient
to direct the jury to consider McDonald's claim that the Town
failed to accommodate his disability by failing to grant him leave.
In this case, McDonald's attorney was able to argue to
the jury that the Town's failure to respond to the May 14 FMLA
leave

request

accommodation,

violated
and

its

nothing

duty
in

to

the

provide
district

a

reasonable

court's

jury

instructions suggested that the jury could not consider the Town's
response

to

McDonald's

leave

request

when

employer's behavior for purposes of the ADA.

evaluating

the

We do not see how

the district court's failure to specifically include a leave of
absence as a further example of possible accommodations for a
disabled employee constitutes clear error.
III. Conclusion
The judgment of the district court is affirmed.

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