          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."



                                 - 3 -
          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

                                        - 5 -
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

                                       - 6 -
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

                                   - 7 -
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

                                       - 8 -
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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