          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
            STAHL, Circuit Judge.          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.               McDonald's duties

and   specific   assignments      varied    and   were   spread    among   three

subdivisions:    the    Town   could     assign    him   to    Highway   (street

sweeping,   potholes,     plowing,     and    road   maintenance),       Traffic

(maintenance and installation of road signs, lighting, and poles),

or Sanitation (driving or riding on the back of garbage trucks


                                     - 2 -
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.   On the other hand,


                                - 3 -
McDonald was frequently absent from work.          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 "flu-

like 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.   The physician wrote him a note to cover his absence from

work.    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,


                                  - 4 -
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.                 He was sent home on March 19

after   refusing    to       perform    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."                       On


                                         - 5 -
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   if    he   was   interested   in   applying   for   FMLA   leave.

McDonald,    who    had   follow-up    appointments   scheduled    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.




                                      - 6 -
             By   mid-April,   McDonald      had   exhausted   his    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    FMLA   leave     request    form    or   other     sufficient

documentation.       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.


                                     - 7 -
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


                                    - 8 -
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


                               - 9 -
             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      indicated     that    a


                                       - 10 -
"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).


                                  - 11 -
           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    attorney   renewed    his   objections    to    the

failure   to   include   post-termination     activities   in   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.


                                - 12 -
legally correct."      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    if   it   was

prejudicial when evaluating the record as a whole.               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


                                     - 13 -
that the Town may 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.         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


                                    - 14 -
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    district     court's    jury   instructions    for    abuse   of

discretion.       Under     that   standard,   we    think   the   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


                                     - 15 -
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   evidence   up    to   and

including McDonald's May 12 termination.                  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 post-

May 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


                                     - 16 -
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


                               - 17 -
employer could have made available to McDonald.                     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.")


                                     - 18 -
           Additionally,       while     the    district      court    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    violated     its     duty    to    provide     a   reasonable

accommodation,     and   nothing       in    the     district    court's     jury

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

response   to     McDonald's    leave       request    when     evaluating    the

employer's behavior for purposes of the ADA.               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.




                                   - 19 -
