
USCA1 Opinion

	




                            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 & Mehnert was on brief for               _______________            ________________          appellant.               John S. Bobrowiecki, Jr., with whom Farris, Susi, Heselton &               ________________________            ________________________          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) & (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-
