

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 95-2209

                         RICHARD JACQUES,

                      Plaintiff - Appellant,

                                v.

                      CLEAN-UP GROUP, INC.,

                      Defendant - Appellee.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

         [Hon. Eugene W. Beaulieu, U.S. Magistrate Judge]                                                                  

                                           

                              Before

                     Torruella, Chief Judge,                                                     

                 Cyr and Boudin, Circuit Judges.                                                         

                                           

     Eric M. Mehnert, with whom Hawkes &amp; Mehnert was on brief for                                                          
appellant.
     John S. Bobrowiecki, Jr., with whom Farris, Susi, Heselton &amp;                                                                           
Ladd, P.A. was on brief for appellee.                    

                                           

                        September 19, 1996
                                           

          TORRUELLA,  Chief Judge.    Appellant  Richard  Jacques                    TORRUELLA,  Chief Judge.                                           

("Jacques"),  a  person  with   epilepsy,  brought  suit  against

Appellee Clean-Up Group, Inc. ("the Group") seeking damages under

the  Americans with Disabilities Act ("the ADA" or "the Act"), 42

U.S.C.   12101 et seq.   The jury returned a verdict in favor the                               

Group and,  subsequently,  the  district  court  denied  Jacques'

motion for  judgment as a matter of law pursuant to Federal Rules

of Civil  Procedure 50 and upheld the jury verdict.  Before us is

Jacques' appeal of the decision and judgment below.  Jacques also

appeals from an evidentiary ruling.  We affirm.

                          I.  BACKGROUND                                    I.  BACKGROUND

          Jacques argues  that there is  insufficient evidence to

support the jury  verdict and that  the district court  therefore

should  have granted his  motion for judgment as  a matter of law

pursuant to Fed. R.  Civ. P. 50(a) &amp; (b).  We  review the court's

denial  of the Rule 50 motion de novo, examining  the evidence in                                               

the light most  favorable to  the nonmovant, the  Group.   Golden                                                                           

Rule Ins. Co. v. Atallah, 45 F.3d 512, 516 (1st Cir. 1995). "[W]e                                  

may not consider the  credibility of witnesses, resolve conflicts

in testimony, or evaluate the weight of the evidence."  Wagenmann                                                                           

v. Adams,  829 F.2d 196,  200 (1st Cir.  1987).  Reversal  of the                  

denial  of the  motion  is  warranted  "only  if  the  facts  and

inferences 'point so strongly and overwhelmingly in  favor of the

movant' that a reasonable  jury could not have reached  a verdict

against  that  party."     Atallah,  45  F.3d  at   516  (quoting                                            

Acevedo-D az v. Aponte, 1 F.3d 62, 66 (1st Cir. 1993)).  Thus, we                                

                               -2-

present the facts in the light most favorable to the Group as the

jury could have found them.

          Clean-Up Group,  Inc., a Maine corporation,  is a small

cleaning company, located approximately two-and-a-half miles from

Jacques' residence.  Jacques was employed by the Group as an all-

purpose cleaning  person between  November 6, 1993,  and February

1994.    Because of  his epilepsy,  Jacques  is not  permitted to

operate a motor vehicle in Maine.  Throughout his employment, the

Group had regularly assigned Jacques to more than forty hours per

week   at  various  job  sites   and  considered  him   to  be  a

conscientious and good  worker.  Jacques reported  to his various

assignments by walking, riding  his bicycle, or riding in  one of

the  Group's  vans, which  were  routinely  used when  employees,

working as a crew, and  equipment had to be transported to  a job

site.   Employees riding  in vans  were  driven to  and from  the

Group's office.  The  Group had never provided  transportation to

its employees under other circumstances. On  February  19,  1994,

Jacques was  laid off  from  the Group  when  the crew  to  which

Jacques  was  assigned  was dissolved.    A  few  days later,  on

February  24, the  Group offered  Jacques a  full-time assignment

cleaning the  Kennebec Ice Arena  (the "Arena"), which  was about

three miles from Jacques'  home.  Of those laid off,  Jacques was

the  only one  of  his crew  to  be offered  another  assignment.

Although he had never  requested a ride to  an assignment in  the

past,  because he could not drive and the Arena was approximately

three miles  from his  home, Jacques asked  the Group's  manager,

                               -3-

Chris Buck ("Buck"), whether he would be catching a ride from the

Group's headquarters or whether  a company van would pick  him up

on its way to the job site.  Buck replied that Jacques would have

to arrange for  his own  transportation to the  Arena.   Jacques'

response  was that he would inquire into bus routes and schedules

and would telephone Buck right back.  Upon gathering the relevant

information,  Jacques telephoned  Buck and  informed him  that he

could take a  bus and arrive at the Arena  sometime between 10:00

a.m. and 10:30 a.m.  In reply, Buck informed him that starting at

that time  was unacceptable.    The Arena  assignment required  a

start  time  of 8:00  a.m.  as  certain public  areas  had  to be

completed prior to,  at least, 9:30 a.m.   Buck told Jacques that

he would find  someone else  for the Arena  assignment.   Another

employee, who the evidence  shows did not have a  disability, was

subsequently assigned to that assignment. 

          Jacques  was  not  dismissed  from the  Group  for  his

failure to  perform  the Arena  assignment  and continued  to  be

assigned  to work  seven hours a  week on Sundays  at the Carlton

Woolen  Mills (the  "Mills"), an  assignment which  generally was

considered one of the dirtiest.  Jacques had previously worked at

the Mills.  The record suggests  that it was often an  assignment

Group  employees  did  in order  to  earn  overtime.   The  Group

provided Jacques with transportation  to the Mills in one  of the

company vans in which two other employees also traveled.  Jacques

reported to the Mills assignment from  February 27, 1994, through

March  27, 1994, at which point Jacques discontinued reporting to

                               -4-

that  assignment.   Jacques has  not worked  for the  Group since

then.  Shortly after  February 25, 1994, Jacques began soliciting

direct  employment  from  some  of  the  Group's  customers.   In

connection with his job search, Jacques sent a letter dated March

3,  1994, to  one  of the  Group's customers,  in  which he  made

disparaging statements about the Group (the "March 3 letter"). 

          Jacques  subsequently brought  this civil  action under

the ADA,  alleging that  the Group discriminated  against him  in

regard  to  his  right of  return  from  layoff,  rehire and  job

assignment by  failing to  find a "reasonable  accommodation" for

his  disability.1   After the  court denied  Jacques' motion  for

partial   summary   judgment,2    the   issues   of   intentional

discrimination  and punitive damages were tried to a jury on July

11,  1995.  At  the close of the  Group's evidence, Jacques moved

for judgment as a  matter of law pursuant to Fed. R.  Civ. P. 50,

which motion was  denied.  On July 17, 1995, the  jury returned a

verdict  finding that  the Group  did not  illegally discriminate

against Jacques on the basis of his disability and, consequently,

did not reach  the issues of  compensatory and punitive  damages.
                                                  

1  Jacques does  not allege that he was  discriminated against in
termination or  layoff.  Indeed,  not only  is it  uncontroverted
that  the  Group did  not terminate  Jacques  for his  failure to
fulfill the  Arena assignment  and that  Jacques continued to  be
assigned to the weekly Mills assignment, but the evidence clearly
shows that Jacques stopped reporting to the  Mills assignment and
the Group on his own volition.

2  The district court denied summary judgment on the grounds that
there  was   "a   material  dispute   about  whether   [Jacques']
employment, and there [was]  insufficient evidence that [Jacques]
suffered some  other adverse  employment action."   Memorandum of
Decision, May 23, 1995 (Docket No. 23).

                               -5-

Appellant moved again for judgment as a matter of law pursuant to

Fed. R. Civ. P.  50.  After reviewing  briefs from both  parties,

the district court issued its memorandum and decision  on October

2,  1995, in which it denied Jacques' motion and entered judgment

in accordance with the jury verdict.  

                       II.  APPLICABLE LAW                                 II.  APPLICABLE LAW

          The ADA is a federal civil  rights statute, enacted "to

provide  a  clear  and  comprehensive national  mandate  for  the

elimination   of   discrimination   against    individuals   with

disabilities."  42  U.S.C.    12101(b)(1).    "In the  employment

context,  the ADA  prohibits a  'covered entity'  (defined as  'a

person  engaged in an industry  affecting commerce who  has 15 or

more  employees')  from  'discriminat[ing]  against  a  qualified

individual  with a disability  because of the  disability of such

individual in  regard to job application  procedures, the hiring,

advancement, or   discharge of employees,  employee compensation,

job  training, and  other  terms, conditions,  and privileges  of

employment.'"  Katz  v. City Metal Co, Inc., 87  F.3d 26, 30 (1st                                                     

Cir.  1996)  (quoting  42  U.S.C.     12112(a));  see  Grenier v.                                                                        

Cyanamid Plastics,  Inc., 70 F.3d 667, 671  (1st Cir. 1995).  The                                  

regulations3 adopted under the  ADA  provide that it  is unlawful

for  a   covered  entity   to  discriminate   on  the  basis   of

                                                  

3   "Such  administrative  interpretations  of  the  Act  by  the
enforcing  agency,  'while not  controlling  upon  the courts  by
reason  of their  authority,  do constitute a  body of experience
and informed judgment to which  courts and litigants may properly
resort  for guidance.'"  Grenier, 70 F.3d at 672 (quoting Meritor                                                                           
Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)).                                  

                               -6-

"disability," see 42 U.S.C.   12102(2) (defining term), against a                           

"qualified  individual  with  a  disability,"  see  42  U.S.C.                                                               

12111(8)  (defining term), in regard to, inter alia, the right of                                                             

return  from layoff,  29  C.F.R. Ch.  XIV    1630.4(b),  and  job

assignments, 29 C.F.R. Ch. XIV   1630.4(d).

          The ADA further  provides that the  term "discriminate"

includes:

            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, unless such covered  entity can
            demonstrate that  the accommodation would
            impose an undue hardship on the operation
            of  the business  of such  covered entity
            . . . .

42  U.S.C.    12112(5)(A).    Reasonable accommodations  include,

inter alia,  "job restructuring [and] part-time  or modified work                    

schedules."  42 U.S.C.   12111(9); see 29 C.F.R. App.   1630.2(o)                                                

(defining reasonable accommodation).  Furthermore, in order 

            [t]o determine the appropriate reasonable
            accommodation,  it  may be  necessary for
            the   covered   entity  to   initiate  an
            informal,  interactive  process with  the
            qualified  individuals with  a disability
            in need of the accommodation.

29 C.F.R.   1630.2(o)(3).

          To establish a claim of disability discrimination under

the ADA, a plaintiff  must prove three things by  a preponderance

of the evidence:

            First,  that  he  [or  she]  was disabled
            within  the meaning of  the Act.  Second,
            that    with   or    without   reasonable
            accommodation he  [or  she] was  able  to
            perform the essential functions  of [the]

                               -7-

            job.    And,  third,  that  the  employer
            discharged him  [or her] in  whole or  in
            part because of his [or her] disability.

Katz, 87 F.3d  at 30.  A plaintiff may  also indirectly prove his              

or  her case "by using  the prima facie  case and burden shifting                                                 

methods that originated in McDonnell Douglas Corp.  v. Green, 411                                                                      

U.S. 792 (1973)."   Id.  n.2 (citations omitted);  see Taylor  v.                                                                       

Principal  Financial  Group, Inc.,       F.3d    ,     ,  1996 WL                                           

350705  at *6  (5th Cir.  1996) (citations  omitted).   Under the

McDonnell Douglas  analysis, a  plaintiff must  first prove  by a                           

preponderance of the evidence that he or she (i) has a disability

within the meaning of  the Act; (ii) is qualified to  perform the

essential  functions  of  the  job, with  or  without  reasonable

accommodations; (iii) was subject to an adverse employment action

by a  company subject to  the Act;  (iv) was replaced  by a  non-

disabled person  or was treated less  favorably than non-disabled

employees; and (v) suffered damages as a result.  See Taylor,                                                                          

F.3d at    , 1996 WL 350705 at *6. 

                     III.  PROCEEDINGS BELOW                               III.  PROCEEDINGS BELOW

          Below, the  Group stipulated  to the following:  (i) at

the time of Jacques' separation from the Group, it was subject to

the ADA; (ii)  Jacques is  "disabled" within the  meaning of  the

ADA; and (iii)  the Group  was aware of  Jacques' disability  and

inability  to  drive   a  car   at  the  time   of  the   alleged

discrimination.   As the district court  correctly found, Jacques

was clearly qualified, indeed over-qualified given his education,

for  the position  of a  general purpose  cleaner.   However, the

                               -8-

Group argued  that Jacques was not  "otherwise qualified" because

he could  not fulfill, with or  without reasonable accommodation,

the "essential function"4 of  arriving at the Arena by  8:00 a.m.

and  that his  suggested accommodations  -- transportation  and a

later starting time  -- would pose an undue burden  on the Group.

The jury,  thus, was charged with determining whether Jacques was

otherwise qualified to perform the essential function of the job,

with  or  without  reasonable accommodation;  whether  the  Group

illegally  discriminated   against  him  on  the   basis  of  his

disability;  and,  if so,  if he  suffered  damages as  a result.

Because  the  jury  resolved  the  merits  against  Jacques,  the

question of damages was never addressed. 

          Based on  the evidence,  the  district court  concluded

that a reasonable jury could find:  (i)  that the completion time

of the Arena assignment was an essential element of the position,

see 29 C.F.R. App.   1630.2(n); (ii) that there was no reasonable             

accommodation to Jacques' disability that would not pose an undue

hardship to  the Group,5 see 42 U.S.C.   1211(10); and (iii) that                                      

for these reasons,  the jury could  reasonably find that  Jacques

                                                  

4   The EEOC regulations define the term "essential functions" as
"the  fundamental  job  duties  of the  employment  position  the
individual with  a disability  holds" and  "does not  include the
marginal functions of the position."   29 C.F.R.    1630.2(n)(1).
Among other  reasons, a job function may  be considered essential
because the position exists  to perform that particular function.
See 29 C.F.R.    1630.2(n)(2); Larkins v. Ciba Vision  Corp., 858                                                                      
F. Supp. 1572, 1580 (N.D.Ga. 1994).

5  According to the Group, the Mills assignment was  not intended
to be a reasonable accommodation for Jacques.  

                               -9-

was not otherwise qualified to perform the essential function  of

the Arena assignment, with or without reasonable accommodation.

                               -10-

                         IV.  DISCUSSION                                   IV.  DISCUSSION

          Turning to  the appeal  before us,  we note  first that

Jacques conceded during oral  argument that an essential function

of  the  Arena   assignment  was  the   8:00  a.m.  start   time.

Consequently,  in light  of  the Group's  stipulations below  and

Jacques'  concession, resolution  of this  appeal hinges  only on

whether the jury properly  found that Jacques was  not "otherwise

qualified, with  or without reasonable accommodation"  to perform

the  Arena assignment's  essential function  of arriving  by 8:00

a.m.  

          After reviewing de novo the  evidence in the light most                                           

favorable to the Group as the nonmovant, Atallah, 45 F.3d at 516,                                                          

we agree with  the district  court that a  reasonable jury  could

reach the conclusions it set forth in its  decision.  Indeed, the

jury reasonably could have found that Jacques' disability was not

a motivating factor in the Group's decision to find a replacement

for  the Arena assignment.  Not  only was Jacques the only person

from  the laid-off crew to  have been offered  the opportunity to

return from layoff, but at the time Jacques was offered the Arena

assignment  the  Group (including  Buck)  had  full knowledge  of

Jacques'  disability  and his  inability  to  drive; indeed,  the

record shows that,  with respect to the Arena assignment, Jacques

was  both "hired"  and "fired"  by  the same  person, Buck.   See                                                                           

Tyndall, 31 F.3d at  214 (noting that there is a strong inference                 

of  nondiscrimination  where the  hirer  and firer  are  the same

person).

                               -11-

          Furthermore,  the record strongly suggests that Jacques

could have  fulfilled the essential  function of arriving  at the

Arena  by   8:00  a.m.  without   the  need   for  a   reasonable                                         

accommodation.  Jacques  testified that he  was quite willing  to

make his  own way to the  Group's office some two  and half miles

from his home, however,  he never explained why he  was unwilling

to go  the approximate extra half a mile to  the Arena.  The jury

reasonably  could have  been swayed  by this  unexplained refusal

given  the   uncontroverted  evidence  that  Jacques   had  never

previously requested  transportation and had always  made his way

to the Group's office. 

            Or,  in the  alternative,  the jury  reasonably could

have found that providing Jacques with transportation constituted

an undue  burden  for the  Group as  there was  testimony to  the

effect that:  (i) all of  the Group's vans were assigned to other

crews and were  unavailable to transport  Jacques; (ii) no  other

Group   employee   was   available   to  provide   Jacques   with

transportation  on  a   daily  basis;  and  (iii)   it  would  be

economically detrimental for the Group to hire another individual

to drive  Jacques in light of its  profit margin.  Further still,

the jury  reasonably could have found  that accommodating Jacques

by permitting him  to start  after 10:00 a.m.,  by splitting  his

shift with another employee, or  by reassignment to another  crew

would be unreasonable as  it would eliminate the job's  essential

function  of arriving  at  8:00 a.m.    See, e.g.,  Treadwell  v.                                                                       

Alexander, 707 F.2d 473, 478 (11th Cir. 1983) (affirming district                   

                               -12-

court conclusion  that, in  light of agency's  limited resources,

"doubling  up"  employees  would  impose  an  "undue  hardship");

Larkins  v. CIBA Vision Corp.,  858 F. Supp.  1572, 1583 (N.D.Ga.                                       

1994)  (holding  that the  ADA does  not  require an  employer to

eliminate the  essential  functions of  a job  to accommodate  an

employee).

          This  does not  end  our inquiry,  however, as  Jacques

faults the  district court's  denial of  his Fed.  R. Civ.  P. 50

motion.   He  argues  here,  as  he did  below,  that  the  Group

discriminated  against  him  as  a  matter  of  law  through  its

uncontroverted failure  to  engage in  an "informal,  interactive

process"  with   him,  within  the   meaning  of   29  C.F.R.    

1630.2(o)(3),  in  order   to  determine  whether   a  reasonable

accommodation could have been  made so that Jacques could  get to

the Arena by 8:00 a.m.6  The reasonableness of Jacques' suggested

accommodations  and  the question  of  any undue  burden  for the

Group,  Jacques contends, are not even  reached in this case.  As

Jacques admitted in  oral argument, the fundamental  basis of his

claim  is that  the  Group's failure  to  look for,  or  suggest,

alternative accommodations constitutes a violation even where, as

here, there  is no proof  that any  informal interactive  process

would have actually borne any fruit. 

                                                  

6  For  record support, Jacques points to his  trial testimony as
well  as that of  Buck and  the Group's  President, all  of which
demonstrate  that the Group made  absolutely no effort  to find a
reasonable  accommodation   or   otherwise  assist   Jacques   in
determining whether one existed.  

                               -13-

          For  legal   support,  Jacques  relies  on   29  C.F.R.

  1630.2(o)(3).   In  response  to the  Group's observation  that

Jacques'  brief provides  no  case law  to support  his argument,

during  oral   argument  Jacques   pointed  us  to   three  cases

interpreting analogous  provisions in the  Rehabilitation Act  of

1973,  29 U.S.C.   791 et seq.,7 and California's Fair Employment                                        

and  Housing Act ("FEHA").  These cases, he contends, support his

assertion  that it is an  employer's duty to  suggest and provide

reasonable  accommodations to  the employee.   See  Buckingham v.                                                                        

United States, 998  F.2d 735, 739-41  (9th Cir. 1993)  (upholding                       

denial of summary judgment for employer on the grounds that there

is   no  per  se  rule  against   employee  transfers  under  the                          

Rehabilitation  Act  and  that  employers have  duty  to  "gather

sufficient information"  when accommodation is required to enable

employee  to  perform  essential  function);  Sargent  v.  Litton                                                                           

Systems, Inc., 841 F.  Supp. 956 (N.D.Ca. 1994)  (denying summary                       

judgment  under FEHA where genuine issue of material fact existed

regarding employer's  efforts  to accommodate  and  existence  of

undue hardship); Butler v. Dept. of  the Navy, 595 F. Supp. 1063,                                                       

1068 (D.Md.  1984) (noting that  government's duty to  propose or

make  reasonable  accommodations  cannot  be  triggered  by  mere

existence of handicapped employee where there is no evidence that

employee  was  not  reasonably   accommodated  and  finding  that

                                                  

7  "Unless expressly  stated otherwise, the standards  applied in
the ADA are not intended to be lesser than the  standards applied
under  the Rehabilitation Act of 1973."  29 C.F.R.   1630.1, App.
(1995). 

                               -14-

employee  failed to show how reasons for dismissal were caused by

failure to reasonably accommodate).   

          For record support,  Jacques points to trial  testimony

elicited  by the Group's  after-the-fact investigation into three

area  organizations  that  provide  transportation   to  disabled

individuals.     This  testimony,   Jacques   argues,  not   only

demonstrates  his complete  unawareness  until  asked  on  cross-

examination that those  services existed but also that  the Group

was   better  situated   to   ascertain  alternative   reasonable

accommodations.  Their  failure to do so,  he points out,  is not

surprising given  the undisputed testimony that  the Group, while

aware  that  it was  subject  to  the  ADA, was  unaware  of  ADA

provisions regarding reasonable accommodations.

          The Group counters with two  points.  First, the  Group

argues  that   29  C.F.R.     1630.2(o)(3)  does  not  impose  an

affirmative obligation  upon the  employer as it  explicitly uses

the  term "may," not "shall."   Second, the Group points out that

the jury was instructed in accordance with Section 1630.2(o)(3)'s

language and that  the jury  could have found  from the  evidence

presented that the Group's  failure to suggest additional options

did   not    constitute   a   failure   to   provide   reasonable

accommodations.  Conceding at oral argument that the employer may

in  some situations  have specialized  knowledge or  be otherwise

better  situated such  that  it  would  be  required  to  suggest

accommodations in the first  instance, the Group argues  that the

jury could reasonably conclude that this was not such a case. 

                               -15-

          The  regulations' use  of "may"  clearly suggests  that

Congress, while  it could have imposed  an affirmative obligation

upon employers in all cases,  chose not to.  That said,  however,

as the  Seventh Circuit  recently observed, "someone,  either the

employer or  the employee, bears the  ultimate responsibility for

determining what specific actions must be taken by the employer,"

Beck v. University of Wis.,  75 F.3d 1130, 1135 (7th  Cir. 1996),                                    

and 29 C.F.R.    1630.2(o)(3) indicates that "[t]he  employer has

at  least  some  responsibility   in  determining  the  necessary

accommodation  . .  .  [and  that]  the regulations  envision  an

interactive process that requires participation by both parties."

Id.    The Fifth  Circuit made  a  similar observation  even more             

recently:   "Once  the accommodation  is properly  requested, the

responsibility  for  fashioning  a  reasonable  accommodation  is

shared  between the employee and the employer."  Taylor,     F.3d                                                                 

at     , 1996  WL  350705 at  *8  (stating that  the  "employee's

initial request triggers employer's obligation  to participate in

interactive process" and that employer  cannot be held liable for

failing  to   provide  one  if  employee  fails   to  request  an

accommodation.);  cf. White v. York Int'l Corp., 45 F.3d 357, 363                                                         

(10th Cir.  1995) (noting  that interactive process  is triggered

only after  employer makes threshold determination  that disabled

employee may be accommodated).8

                                                  

8   Neither  party cited  any of  these ADA  cases.   Even though
Taylor was  decided after  oral argument, neither  party filed  a                
supplemental letter pursuant to Fed. R. App. P. 28(j).

                               -16-

          That  said, based  upon  our standard  of review,  this

appeal  begins and  ends with  the reasonableness  of the  jury's

verdict:   we  simply  cannot conclude  that reasonable  persons,

looking at the evidence in the light most favorable to the Group,

and according it all reasonable  inferences could not have  found

for  the Group.  See  Gallagher v. Wilton  Enterprises, Inc., 962                                                                      

F.2d  120,  124   (1st  Cir.   1992);  Chedd,   Angier  v.   Omni                                                                           

Publications, Inc., 756 F.2d 930, 934  (1st Cir. 1985).  In other                            

words, we agree  with the Group  that the jury  could have  found

from the  evidence presented that the Group's  failure to suggest

additional  options  did  not  constitute a  failure  to  provide

reasonable accommodations.  

            The jury was correctly instructed that 

            it may be necessary  for the employer  to
            initiate a discussion  with the  employee
            about appropriate accommodations  . . . .
            Unlawful  discrimination occurs  when the
            employee's  .  .  .   opportunities  with
            respect  to .  . .  right of  return from
            layoff, rehiring and  job assignment  are
            adversely   affected   because   of   his
            disability or because the employer failed
            to make a reasonable accommodation.

Tr.  Trans. Vol. IV  at 388-89.  Jacques  objected to the court's

refusal to instruct  the jury that  if it were  to find that  the

Group failed to give him a reasonable accommodation then it would

not need to  go any  further as this  failure itself  constituted

intentional discrimination but did not object on the grounds that

the instruction misstated the law.  Nor does he make such a claim

or  otherwise  challenge  the  district  court's  instruction  on

appeal. 

                               -17-

          Given its instructions and  the evidence presented, the

jury could have reasonably concluded that the Group's failure to 

initiate an  interactive process or suggest  alternatives did not

constitute a per se  failure to provide reasonable accommodations                             

here.   The jury reasonably could have concluded that engaging in

an  interactive process  simply  was not  necessary  in order  to                                                  

determine the appropriate reasonable accommodation.  Not only was

there substantial  evidence from  which to conclude  that Jacques

(an  intelligent  and  well-educated individual  who  had  always

managed to make his own way to job sites in the past) was just as

well situated, if not better so, to investigate and suggest other

alternatives, but  the jury reasonably could  have concluded that

Jacques was simply unwilling to fulfill the essential function of

the  Arena  assignment:    as  we  already noted,  Jacques  never

explained why the extra  half mile precluded him from  getting to

the Arena assignment on his own or why he was otherwise unwilling

to travel that extra distance.  Cf. Taylor,     F.3d at    , 1996                                                    

WL 350705 at *8 (noting that employee failed to fulfill burden of

adducing summary judgment evidence  showing that he told employer

that he was limited  as a result of his  disability); Buckingham,                                                                          

998 F.2d at 742 (noting on  remand that employee may meet  burden

by showing, inter alia, that accommodation sought is necessary to                                                                        

enable performance of essential function).9  
                                                  

9  We  recognize that, even when qualified employees  are able to
perform  a  job's  essential  functions,  employers  may  not  be
relieved of  their duty  to accommodate where  accommodations are
required to  allow equal  enjoyment of employment  privileges and
benefits  or to pursue therapy or treatment.  See Buckingham, 998                                                                      

                               -18-

          Furthermore,  apart from  his  investigation  into  bus

routes, Jacques presented no evidence that he requested any other

accommodations, inquired whether  the Group had any  suggestions,

or  otherwise indicated that he was still interested in finding a

solution.    Cf. Taylor,      F.3d  at    ,  1996  WL 350705  * 8                                 

(noting  that  responsibility  for  fashioning  accommodation  is

shared   between   employer  and   employee).      While  it   is

uncontroverted  that the  Group did  not suggest  any alternative

accommodations  after   it  rejected  as   unreasonable  Jacques'

proposed  accommodations, there  is  no evidence  that the  Group

failed  to consider Jacques'  requested accommodations and "there

is nothing in the record from which we can discern any attempt by

the  [Group] to sweep the problem under  the rug."  Beck, 75 F.3d                                                                  

at  1136 (affirming summary  judgment in favor  of employer under

the  ADA   where  employee  was  responsible   for  breakdown  in

interactive process to  determine reasonable accommodation);  cf.                                                                          

Butler, 595  F. Supp. at  1967 (noting  that there  must be  some                

sufficient connection between the loss of the protected interest,

the job, and the violation of the duty owed to the employee).  

          Indeed, just as the jury reasonably could conclude that

Jacques did not need reasonable accommodation in order to perform

the essential  functions, the  Group quite reasonably  could have

interpreted Jacques' unexplained refusal to travel the additional

                                                  

F.2d  at 740-41.   This, however, does  not assist  Jacques as he
presented no evidence that he required accommodation in  order to
enjoy equal  privileges  and benefits  or  to pursue  therapy  or
treatment for his epilepsy.

                               -19-

half-a-mile as an  implicit refusal of  the Arena assignment  and

preference to  wait for  a more  convenient assignment  to become

available.   As  Macomber  testified, Jacques  "rode his  bike to

[the] office every single  day, and the ice [A]rena  was not much

further.   That's the  reason [why] I  offered him the  job."  In

fact,  trial testimony  that  the Group  filed  in opposition  to

Jacques' application to the Maine Department of Labor for partial

unemployment  on the basis  that he refused  the Arena assignment

suggests that  this is  precisely how  the Group  interpreted the

situation.

          Of  course, we  are  painfully aware  that the  Group's

failure to engage in an informal interactive process with Jacques

regarding accommodation options  beyond those which  he requested

results  from  its  failure  to  be  properly   informed  of  its

obligations  under the  ADA.   Nevertheless, the Group  is spared

from  walking the plank given  that we cannot  conclude under our

circumscribed  review of  the  jury's verdict  -- evaluating  the

evidence  with  our "eye[s]  toward  determining  whether it  can

support only one  outcome," S nchez  v. Puerto Rico  Oil Co.,  37                                                                      

F.3d 712, 716 (1st Cir.  1994) --  that no reasonable  jury could

have reached the verdict reached below.

          The ADA  represents a  major commitment by  the federal

government  to  assure  adequate  protection  to  Americans  with

disabilities.    There  may  well  be  situations  in  which  the

employer's failure  to engage in an  informal interactive process

would constitute  a failure to  provide reasonable  accommodation

                               -20-

that amounts  to a  violation of the  ADA.   But cases  involving

reasonable accommodation  turns heavily  upon their facts  and an

appraisal of  the reasonableness of  the parties' behavior.   The

jury   verdict  in  this  case   was  not  irrational,  the  jury

instructions  were not subject  to objection,  and we  leave more

difficult cases to another day.

                      V.  EVIDENTIARY RULING                                V.  EVIDENTIARY RULING

          Jacques also argues that  the district court abused its

discretion when it admitted  into evidence the March 3  letter in

which Jacques made  disparaging statements about  the Group.   If

this were a case about discrimination occurring upon termination,

Jacques  maintains, the  letter's  admission would  be justified;

however, because the discrimination occurred upon Jacques' return

from  layoff -- one  week before  the aggressive  and inflamatory

letter was written -- the probative value of the letter is highly

questionable.   Because of  this, Jacques continues,  and because

the letter served  merely to  reflect upon his  character and  to

arouse  the jury's hostility, it should have been excluded due to

its "extreme prejudicial nature."  

          As  Jacques  points  out,  "[e]vidence  having  a  dual

tendency, inadmissible  and gravely  prejudicial for one  purpose

but  not  objectionable  for another  if  separately  considered,

should be excluded from the jury where the feat of ignoring it in

the one aspect while  considering it in the  other is too  subtle

for the ordinary mind and the risk of confusion is so great as to

upset the  balance of  practical advantage."   Shepard v.  United                                                                           

                               -21-

States, 290 U.S.  96, 103 (1933).   Be that  as it may,  Jacques'                

counsel  failed  not only  to object  on  any grounds  other than

relevance but also to request a limiting instruction.  As counsel

never moved beyond relevancy to argue unfair prejudice under Fed.

R. Evid.  403, we review Jacques'  claim of error under  Rule 403

only  for  plain  error  pursuant  to  Fed.  R.  Civ.  P.  103,10

recognizing while we do so that "Rule 403 is a liberal rule under

which relevant evidence generally is admitted."  United States v.                                                                        

McMahon, 938 F.2d 1501,  1508 (1st Cir. 1991); Dente  v. Riddell,                                                                           

Inc.,  664 F.2d  1, 5 (1st  Cir. 1981)  ("A trial  judge has much              

latitude in these matters.").

          It  was  clearly not  plainly  erroneous  to admit  the

letter   on  the basis  that its  probative value  outweighed its

prejudicial effect.  While the letter does not frame Jacques in a

flattering  light, it  was certainly  not without relevance.   In

response to Jacques' relevancy objection, the Group replied below

that the  March 3 letter was  relevant as it tended  to show that

the Group  did not intentionally discriminate  against Jacques in

making  its decision  to terminate  and failure  to rehire.   The

court  agreed,  noting  that  "if  the  jury  finds  it  was  the

disability which was the cause of termination first, they have to

find that and  that's discriminatory. . .  . If there were  other
                                                  

10  Fed. R. Civ. P. 103 provides,  in pertinent part:  "Error may
not be predicated upon a ruling which admits or excludes evidence
unless a  substantial right of the party is affected  . . . .  In
case  the ruling is one admitting evidence, a timely objection or
motion  to strike  appears  on the  record, stating  the specific
ground  of objection, if the specific ground for the objection is
not apparent from the context."

                               -22-

reasons, it's a factual finding for the jury."11  Even though the

letter  was written  after the  alleged discrimination  regarding

Jacques' return from  layoff, it  was still relevant  as it  also

tended  to show  that Jacques  was an  intelligent,  educated and

resourceful  individual.    It  also  was  probative  as  to  his

credibility.   Even were we  to assume that  the magistrate judge

was  faced  with a  "close call"  given the  letter's prejudicial

propensity, see Fed. R. Civ. P. 403, we nonetheless would find no                         

plain error.  Not only do we find that the probative value of the

letter is not "substantially outweighed" by any unfair prejudice,

but we  would strike the Rule 403 balance in favor of admission. 

McMahon, 938 F.2d at 1508.                   

                         VI.  CONCLUSION                                   VI.  CONCLUSION

          For  the  foregoing  reasons,  the  decision  below  is

affirmed.          affirmed                  

                                                  

11   Relying on McShain,  Inc. v. Cessna  Aircraft Co.,  563 F.2d                                                                
632, 635 (3d Cir. 1977), Jacques also faults the district court's
articulation of factors used in balancing the probative value and
prejudicial effect  of the evidence.  Id. ("The substantiality of                                                   
the   consideration  given  to   competing  interests  (potential
prejudice  and  probative value)  can  best be  guaranteed  by an
explicit articulation of the trial court's reasoning.").  Because
Jacques failed to raise the issue of prejudicial effect below, we
also review this for plain error.  We find none. 

                               -23-
