United States Court of Appeals For the First Circuit No. 23-2030
LISA MENNINGER,
Plaintiff, Appellee,
v.
PPD DEVELOPMENT, L.P.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Leo T. Sorokin, U.S. District Judge]
Before
Aframe and Kayatta,* Circuit Judges.
Douglas Hallward-Driemeier, with whom John P. Bueker and Ropes & Gray LLP were on brief, for appellant. Stephanie Schuster, Douglas W. Baruch, Jennifer M. Wollenberg, and Morgan, Lewis & Bockius LLP on brief for National Association of Manufacturers, amicus curiae. Patrick J. Hannon, with whom Hartley Michon Robb Hannon LLP was on brief, for appellee.
July 24, 2025
* Judge Selya heard oral argument in this case and participated in the initial semble thereafter. His death on February 22, 2025, ended his involvement in this case. The remaining two panelists issued this opinion pursuant to 28 U.S.C. § 46(d). KAYATTA, Circuit Judge. Dr. Lisa Menninger was the
Executive Director for Laboratory Operations at a clinical
laboratory division of PPD Development, L.P. (PPD). Menninger
claims that PPD discriminated and retaliated against her because
of her social anxiety disorder, in violation of the Americans with
Disabilities Act (ADA) and Massachusetts antidiscrimination law.
A jury agreed and awarded Menninger more than twenty-four million
dollars in damages. PPD then moved for judgment as a matter of
law, a new trial, and remittitur, but the district court denied
those motions. For the reasons detailed below, we affirm.
I.
A.
Because PPD challenges the sufficiency of the evidence
supporting the jury's verdict, we recount the events in the light
most favorable to Menninger, "drawing all factual inferences and
resolving all credibility determinations in her favor." Dimanche
v. Mass. Bay Transp. Auth., 893 F.3d 1, 4 n.2 (1st Cir. 2018); see
also Franchina v. City of Providence, 881 F.3d 32, 38 (1st Cir.
2018) ("[O]ur recounting of the facts . . . defer[s] to the jury's
discernible resolution of disputed factual issues." (quotation
marks and citation omitted)).
B.
PPD is a clinical research organization. It assists
pharmaceutical companies in testing new drugs, researching
- 2 - vaccines, and organizing and analyzing data from clinical trials.
One of its divisions, Global Central Labs, focuses on clinical
laboratory testing. Menninger was its Executive Director for
Laboratory Operations.
In 2017, its business stagnating, PPD's senior
management decided to implement a plan focusing on client
relationships. As part of that plan, PPD tasked its operational
leads -- including Menninger -- with increasing their involvement
in client pitches, bid defenses, and other engagements with
clients.
When Menninger's supervisor, Hacene Mekerri, told her
about the planned change in her duties, Menninger balked. She
explained to Mekerri that public presentations in front of large
crowds "ma[d]e [her] anxious." Mekerri "tried to reassure [her]"
that she was capable of the public speaking he had in mind, and he
suggested that they return to the discussion "after the holidays."
On January 11, 2018, Menninger emailed Mekerri to continue the
conversation. She informed him that she suffered from generalized
anxiety disorder, social anxiety disorder, and panic attacks,
which she treated with medication as needed. She also explained
that increased client visits, social interactions, and
presentations would be "difficult in light of [her] disability,"
and that she was "open to discussing whatever ideas" Mekerri had
for her role.
- 3 - PPD proposed that Menninger have her doctor recommend
accommodations that might allow Menninger to perform her new
duties. After consulting with an attorney and her doctor, she
agreed.
On January 31, 2018, Menninger's psychiatrist,
Dr. Marianna Kessimian, submitted a written accommodation request
on Menninger's behalf. The request noted that Menninger could
"tolerate" public speaking and social interaction "to the extent
that they [were] necessary for her job." However, it cautioned
that expanding Menninger's public-speaking and social-interaction
responsibilities would "increase her anxiety and worsen her
somatic symptoms," making it "substantially more difficult, if not
impossible, for [Menninger] to perform her job." Kessimian
suggested three possible accommodations: (1) minimizing social
interaction or public speaking "to the extent possible"; (2) not
changing Menninger's role to require more public speaking or social
interactions; and (3) developing a "plan" for any necessary public
speaking and social interactions, in consultation with Kessimian
or another qualified healthcare provider, so as to "minimize
[Menninger's] anxiety and somatic symptoms."
In response, Human Resources (HR) Associate Director
Chad St. John asked Menninger for additional information from her
physician regarding the specific duties Mekerri had raised that
Menninger could not perform. St. John also prompted Mekerri to
- 4 - send Menninger an email, on February 6, listing five broad
categories of public-speaking and social tasks that Menninger
would be expected to perform (specifying the frequency and number
of attendees for some, but not all, of the tasks). Some of the
listed activities were ones that Menninger performed "regularly
without issue," whereas others -- like being physically present
for client site visits -- marked a sharp departure from her
previous role.
Menninger worked with Kessimian to request a second set
of accommodations specifically tailored to Mekerri's emailed list.
Kessimian's additional suggestions included providing a "surrogate
or reader" to attend client meetings or make presentations on
Menninger's behalf. Kessimian also said that Menninger was "able
to build business relationship[s] in a more 'behind the scenes'
fashion and would like [to] brainstorm other potential avenues
where she [could] add value" in the business-development context.
Kessimian submitted the request on February 14, 2018.
St. John responded by email to Menninger twelve days
later, stating that PPD could accommodate Menninger's requests for
a surrogate to present at internal meetings, as well as her request
to reduce travel expectations. However, he indicated that PPD
could not make any accommodations with regard to "Client Bid
Defense," "Issue resolution calls," "HH/Client site meetings,"
- 5 - "phone," "Technical Sales presentation internal and external," and
"Lunch/dinner and social interactions" during customer visits.
Two days later, Menninger was scheduled to meet with
St. John and Mekerri to discuss the accommodation requests. Before
the meeting, St. John emailed Deborah Ballweg, HR Executive
Director, and mentioned "delicately working [Menninger] out,"
explaining that he and Mekerri "[g]ave only slightly on two out of
five items that her physician requested" as reasonable
accommodations.
During the meeting with St. John and Mekerri, Menninger
sought more information about the specific responsibilities for
which PPD stated that no accommodations were possible,
because -- as she put it in a follow-up email -- she thought there
were "many tasks that could fall within those items that would not
implicate [her] disability." However, PPD would not provide those
details. Instead, PPD focused on "working [Menninger] out," with
St. John asking Menninger to either transition to "a temporary
consulting role" or take an "exit package."
Predictably, matters deteriorated from there. Menninger
made clear that she did not want to leave PPD. St. John sent a
memorandum to PPD's legal department seeking guidance in pursuing
an "an exit strategy" with Menninger. St. John also sent the legal
department a draft email stating that to provide Menninger with
further information about her new public-facing responsibilities
- 6 - "would only present [Menninger] the opportunity to select"
responsibilities that she "believe[d she could or could not] do."
Meanwhile, PPD stayed its course of refusing to provide further
details about the public-facing responsibilities at issue.
In the months that followed, St. John coached Mekerri on
"documenting criticisms [of Menninger] to his manager file," and
helped him draft an email to Menninger instructing her to modify
her 2018 goals to include "[e]liminat[ing] Lab Issues, client
complain[ts,] and audit findings" and "proactively eliminat[ing]
quality issues." Menninger viewed these criticisms of her
performance as unfounded, and she saw the "goals" Mekerri had laid
out as impossible standards that would set her up for failure.
She complained of potential discrimination or retaliation, but the
PPD representative who investigated her
complaint -- Ballweg -- told Menninger that Ballweg had found no
evidence of wrongdoing.
That spring, as tensions rose between Menninger and her
employer, Menninger developed major depressive disorder -- what
PPD's own medical expert would later classify as a "reactive
depression" triggered by PPD's response to Menninger's
accommodation requests. On June 2, 2018, Menninger informed PPD
that she would need to take medical leave on her doctor's advice,
effective immediately. After exhausting her available paid and
- 7 - unpaid leave, Menninger was still medically unable to return to
work. In February 2019, PPD fired her.
Four months later, Menninger sued PPD for disability
discrimination and retaliation under both state and federal law.
She claimed that PPD failed to reasonably accommodate her; that it
took adverse action against her because of her disability; and
that it retaliated against her for disclosing her disability and
seeking accommodation.
After discovery, the district court granted partial
summary judgment for PPD on two points: It rejected Menninger's
theory that PPD could be liable solely for failing to engage in an
interactive process, and it limited Menninger's disparate-
treatment claims to a single adverse action, Mekerri's February 6,
2018, email describing the five categories of public-facing
responsibilities he expected Menninger to take on.1 Otherwise,
the court denied PPD's motion for summary judgment, and the case
proceeded to trial.
Trial did not go well for PPD. As the district court
recounted, "the relative strength of the parties' positions
appeared much different than it had on a written discovery record
unilluminated by live witness testimony." In particular,
explained the district court, "Menninger's credible and detailed
Menninger has not appealed that entry of partial judgment 1
paring down her claims.
- 8 - testimony was measured against accounts by PPD representatives
that were often vague, suffered from troubling inconsistencies, or
tended to corroborate Menninger's position rather than undermine
it." At the end of the ten-day trial, the jury found in Menninger's
favor in all respects. It concluded that PPD unlawfully failed to
provide a reasonable accommodation, unlawfully discriminated
against her under Massachusetts and federal law, and unlawfully
retaliated against her under federal and state law. It awarded
Menninger more than $24,000,000 in damages, comprised of
$1,565,000 in back pay, $5,465,000 in front pay, $5,000,000 in
past emotional distress, $2,000,0000 in future emotional distress,
and $10,000,000 in punitive damages.
With a new set of lawyers, PPD moved for judgment as a
matter of law, a new trial, and remittitur. The district court
denied those motions, and this appeal followed.
II.
Menninger's claims -- and the resulting jury
verdict -- arise under the ADA, as well as analogous provisions of
Massachusetts state law. The ADA "provide[s] a clear and
comprehensive national mandate for the elimination of
discrimination against individuals with disabilities." 42 U.S.C.
§ 12101(b)(1). In enacting the ADA, Congress sought to dismantle
barriers that might otherwise prevent individuals with actual or
perceived disabilities "from contributing, according to their
- 9 - talents, to our Nation's social, economic and civil life." Ortiz-
Martínez v. Fresenius Health Partners, PR, LLC, 853 F.3d 599, 604
(1st Cir. 2017) (quoting Ramos-Echevarría v. Pichis, Inc., 659
F.3d 182, 186 (1st Cir. 2011)). The ADA and its state-law analog,
Massachusetts General Laws chapter 151B, forbid a covered employer
from discriminating against a qualified disabled individual in
hiring, firing, promotions, compensation, and other terms and
conditions of employment. See id.; 42 U.S.C. § 12112(a); Mass.
Gen. Laws ch. 151B, § 4 (2025). An employer also discriminates
against a disabled employee when it refuses to make reasonable
accommodations for the employee's disability, so long as the
employer knows about the disability and the accommodation would
not impose an undue hardship on its business. See 42 U.S.C.
§ 12112(b)(5); Mass. Gen. Laws ch. 151B, § 4 (2025). Finally,
federal and state laws forbid covered employers from retaliating
against employees who request or use reasonable accommodations, or
who oppose disability discrimination. See 42 U.S.C. § 12203;
Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 106 (1st
Cir. 2007); Mass. Gen. Laws ch. 151B, § 4(4) (2025); Rae v. Woburn
Pub. Schs., 113 F.4th 86, 100 (1st Cir. 2024) (explaining that the
ADA and chapter 151B's antiretaliation provisions are analogs and
can be analyzed in tandem).2
2 The parties identify no relevant distinctions between the federal and state-law schemes -- leaving us at liberty to analyze
- 10 - PPD appeals the judgment against it on three grounds.
First, it argues that Menninger's disability-discrimination claims
were insufficient as a matter of law and should never have gone to
a jury. Second, it claims that the verdict was tainted by
"misleading" jury instructions, entitling PPD to a new trial.
Third, it asserts that the punitive-damages award is "unsupported"
by the evidence. We address each argument in turn.
The Federal Rules of Civil Procedure provide a clear,
two-step process for a party who believes that the evidence
presented at trial in a civil action is legally insufficient to
support a jury verdict. First, the party must move for judgment
as a matter of law under Rule 50(a), which it may do "at any time
before the case is submitted to the jury." Fed. R. Civ. P. 50(a).
When the party makes this motion, it "must specify the judgment
sought," as well as "the law and facts that entitle [it] to the
judgment." Id. This mandated specificity matters, because it
"apprise[s the opposing party] of the materiality of the
dispositive fact" and gives it "an opportunity to present . . .
evidence bearing on that fact." Fed. R. Civ. P. 50 advisory
committee's note to 1991 amendment. Second, if the district court
the two sets of claims jointly for purposes of this appeal. See Bazinet v. Beth Israel Lahey Health, Inc., 113 F.4th 9, 12 n.1 (1st Cir. 2024).
- 11 - denies the Rule 50(a) motion, the party has another chance: It
may "renew[]" its motion after the entry of judgment or, in some
circumstances, after the jury is discharged. Fed R. Civ. P. 50(b).
Crucially, "[b]ecause the Rule 50(b) motion is only a renewal of
the preverdict [Rule 50(a)] motion, it can be granted only on
grounds advanced in the preverdict motion." Fed. R. Civ. P. 50
advisory committee's note to 2006 amendment (emphasis added); see
also Zachar v. Lee, 363 F.3d 70, 73 (1st Cir. 2004) ("[A] motion
for judgment as a matter of law at the close of the evidence
'preserves for review only those grounds specified at the time,
and no others.'" (quoting Correa v. Hosp. S.F., 69 F.3d 1184, 1196
(1st Cir. 1995))).
PPD's entire Rule 50(a) motion consisted of the
following exchange, which took place at the close of Menninger's
evidence:
THE COURT: Are there any motions you want to make? You don't have to, but I'm just giving you the chance.
MR. CURRAN: Yeah. A motion for directed verdict, Your Honor.3
THE COURT: All right. Fine. I will deny that. So anything else? We're just going to get Mr. Kelly?
MR. CURRAN: Yes, Dr. Kelly.
3 "Directed verdict" is the older term for a motion for judgment as a matter of law. See Fed. R. Civ. P. 50 advisory committee's note to 1991 amendment. As the district court properly noted, this is a distinction without a difference. See id.
- 12 - The foregoing exchange was not necessarily PPD's last
chance to put forward, under Rule 50(a), reasons for granting
judgment as a matter of law. Ordinarily, a party may supplement
an initial oral Rule 50(a) motion with subsequent oral or written
statements of the basis for that motion, so long as it does so
"before the case is submitted to the jury." Fed. R. Civ. P. 50(a);
cf. Santos-Arrieta v. Hosp. Del Maestro, 14 F.4th 1, 10 (1st Cir.
2021). During the full day that passed before the case went to
the jury, the trial judge met repeatedly with counsel for both
parties to discuss remaining issues, including jury instructions
and "additional issues Menninger's counsel had raised late the
previous day." As the district court recounted, at no point during
these discussions -- or at any other time -- did PPD attempt to
explain the basis of its Rule 50(a) motion, ask the court to
reconsider its denial of the motion, or "supplement its cursory
oral request with a concise written version identifying one or
more grounds (as parties often do . . . )." PPD suggests that the
district court erred by "focusing on" these additional
opportunities for PPD to articulate the basis for its 50(a) motion.
But PPD's silence on the matter of a directed verdict in subsequent
meetings with the court supported the conclusion that PPD had
already said all it had to say on the matter.
- 13 - Only after the jury verdict did PPD explain (in a
Rule 50(b) motion) why it contended that the evidence presented at
trial was insufficient to support a verdict on at least some
counts. The Rule 50(b) motion argued that no reasonable jury could
find from the evidence that Menninger was capable of the essential
functions of her job, nor that PPD subjected her to adverse
treatment because of her disability. PPD's prior one-sentence,
oral request for a "directed verdict" specified neither of these
grounds.4 Consequently, PPD neither provided Menninger the
required opportunity to offer further evidence, nor permitted the
district court to consider those arguments before submitting the
issues to the jury. Because PPD entirely failed to identify the
grounds for its Rule 50(a) motion, let alone "the law and facts
that entitle[d it] to the judgment," Fed. R. Civ. P. 50(a)(2), it
had no arguments to renew at the Rule 50(b) stage.
Seeking to escape this self-imposed bind, PPD casts
blame on the district court, which -- it claims -- prevented PPD
from articulating the grounds for its initial motion by
4As we have previously observed, "[i]t is not clear from our precedent what standard of review we should apply in evaluating a trial court's determination [of whether] an argument made in a Rule 50(b) motion was preserved in a Rule 50(a) motion." Cornwell Ent., Inc. v. Anchin, Block & Anchin, LLP, 830 F.3d 18, 25 (1st Cir. 2016). We need not decide that here, because "whatever the standard of review -- de novo, abuse of discretion, or even clear error" -- we find no error in the trial court's ruling that PPD failed to preserve its sufficiency-of-the-evidence challenge. Id. at 25–26.
- 14 - "immediately and summarily" denying the motion. The situation,
PPD contends, is "precisely the same" as that in Blockel v. J.C.
Penney Co., 337 F.3d 17 (1st Cir. 2003). The relevant exchange in
Blockel was as follows:
COUNSEL: Your Honor . . . we did want to proceed with our motions for directed verdicts on certain issues.
THE COURT: I never noticed that you filed one at the close of plaintiff's evidence. I said at the time that I believed after the evidence was complete.
COUNSEL: I believe that we --
THE COURT: Motion for directed verdict has been filed, and it's on the record, and the Court denies it.
Id. at 25 n.2 (emphases added). "Under [those] circumstances," we
found that the trial court "foreclosed" the party from explaining
the basis of its motion, and we elected not to "fault[ the party]
for failing to provide more detail." Id. at 25.
Here, the circumstances materially differ. The district
court actually invited PPD to make a Rule 50(a) motion. Indeed,
the district court's perception was that, "had it not invited PPD
to make 'any motions' it wished to make, PPD would have made no
Rule 50(a) motion at all." Furthermore, the record does not
suggest that the court cut counsel short. Rather, as the district
court explained, it denied the motion only upon realizing that
- 15 - "no . . . further argument was forthcoming." PPD does not even
now explain how that finding was erroneous.
As PPD correctly points out, where "so much rides on a
procedural rule, parties must be able to rely on clearly defined
lines." Rule 50 provides just such a line, requiring in plain
terms that a party in a civil action "specify the judgment sought
and the law and facts that entitle [it] to the judgment." Fed. R.
Civ. P. 50(a)(2). This, PPD did not do.
PPD alternatively contends that even if it failed to
comply with Rule 50(a), this court should review its sufficiency-
of-the-evidence arguments for plain error -- which, it argues,
will "differ only negligibly" from "customary appellate review."
But as a general rule in a civil proceeding, this court does not
consider even on plain-error review an argument raised for the
first time in a Rule 50(b) motion. See, e.g., Full Spectrum
Software, Inc. v. Forte Automation Sys., Inc., 858 F.3d 666, 674
(1st Cir. 2017); RFF Fam. P'ship, LP v. Ross, 814 F.3d 520, 536
(1st Cir. 2016); Costa-Urena v. Segarra, 590 F.3d 18, 26 n.4 (1st
Cir. 2009).
Prior to 2006, we acknowledged the possibility of a
departure from this general rule in "an exceptional case," to
prevent "a miscarriage of justice." Correa, 69 F.3d at 1196
(citations omitted). In Chestnut v. City of Lowell, 305 F.3d 18
(1st Cir. 2002), we provided an example of such an exceptional
- 16 - case, where (1) the nonmoving party shared responsibility for its
opponent's failure to raise the relevant defense; and (2) the error
came at the expense of "innocent taxpayers of the City," the "very
ones" for whose benefit the defense was adopted. Id. at 20.
More recently, and in the wake of the Supreme Court's
decision in Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc.,
546 U.S. 394, 405 (2006), several other courts of appeals have
found that federal courts have no authority to consider
sufficiency-of-the-evidence arguments not timely advanced in
Rule 50(a) motions. See, e.g., Mountain Dudes v. Split Rock
Holdings, Inc., 946 F.3d 1122, 1131 (10th Cir. 2019); Miller v.
Huron Reg'l Med. Ctr., 936 F.3d 841, 847–48 (8th Cir. 2019); see
also United States v. Maldonado-García, 446 F.3d 227, 230 n.4 (1st
Cir. 2006) (discussing Unitherm's implications in the context of
Rule 50's criminal analog).
This court has yet to determine Unitherm's implications
for cases like Chestnut. See Chestnut, 305 F.3d 18. Nor need we
do so now. Even if we had the authority to entertain, in
exceptional cases, sufficiency challenges not preserved in
accordance with Rule 50, this case would not qualify for such
dispensation. Both parties had counsel below, and PPD's counsel
had numerous opportunities to comply with a plain and clear rule
well known to trial lawyers. In fact, the trial judge actively
ensured that PPD's counsel had an opportunity to voice a Rule 50(a)
- 17 - motion. The case itself was reasonably complicated, and it is not
patently clear how the plaintiff would have responded had PPD
timely spelled out the holes that it now contends exist in
Menninger's evidence. For all these reasons, we decline to
consider on the merits PPD's unpreserved sufficiency-of-the-
evidence arguments.
PPD next claims that an improper jury instruction
tainted the verdict, warranting a new trial. Specifically, PPD
takes issue with the court's instruction that a reasonable
accommodation "might include," among other things, "the provision
of qualified readers or interpreters." PPD acknowledges that the
quoted language comes directly from the ADA's definition of
reasonable accommodation. See 42 U.S.C. § 12111(9). It argues,
however, that the instruction was misleading in the context of
this case because one of Menninger's requested accommodations was
for a "surrogate or reader" to present at meetings on her behalf.
In this context, PPD suggests, the "reader" instruction
"effectively direct[ed] a judgment in Dr. Menninger's favor" by
indicating that her requested accommodation was presumptively
reasonable. This is a problem, PPD argues, because the statutory
language about "readers" applies only to vision-impaired
employees.
- 18 - We need not assay the full merits of this argument,
because, once again, PPD failed to preserve its objection. Federal
Rule of Civil Procedure 51 requires "[a] party who objects to an
instruction" to "do so on the record, stating distinctly the matter
objected to and the grounds for the objection." Fed. R. Civ.
P. 51(c)(1). Our "interpretation of Rule 51 is quite strict," for
"good reason." Flynn v. AK Peters, Ltd., 377 F.3d 13, 25 (1st
Cir. 2004) (quoting Connelly v. Hyundai Motor Co., 351 F.3d 535,
544 (1st Cir. 2003)). "Our strict enforcement of the object-or-
forfeit rule serves 'to compel litigants to afford the trial court
an opportunity to cure [a] defective instruction and to prevent
the litigants from ensuring a new trial in the event of an adverse
verdict by covertly relying on the error.'" Booker v. Mass. Dep't
of Pub. Health, 612 F.3d 34, 41 (1st Cir. 2010) (quoting Flynn,
377 F.3d at 25).
Here, PPD did raise a concern with a proposed "reader"
instruction during the charge conference, arguing that the
statutory reference to "readers" does not "refer to the type of
reader that Dr. Menninger was requesting," but rather to "having
someone read to" the disabled employee. But when the district
court pointed out that the listed accommodations were merely
examples and not per se reasonable in any given case, the following
exchange ensued:
- 19 - THE COURT: . . . I could add, potentially, a sentence at the end [saying that] whether or not something is a reasonable accommodation depends upon, you know, a determination considering all the relevant facts and circumstances.
[PPD'S COUNSEL]: That might be helpful, Your Honor.
THE COURT: Do you object to that?
[MENNINGER'S COUNSEL]: I don't.
[PPD'S COUNSEL]: Would it be okay to add "interpreter," just to give it some context?
THE COURT: Sure. I'll add it if you want.
[PPD'S Counsel]: Thanks.
Following that conversation, PPD raised no further objections to
the "reader" instruction, nor did it indicate in any way that it
continued to take issue with the instruction as modified by the
court and supplemented by PPD's suggestion.
Where a district court "add[s] instructional language to
address" a party's concern with a jury instruction, and the party
does "not object after being apprised of the court's proposed
modification or after hearing the modified instruction given to
the jury," the party forfeits its objection to the instruction.
Booker, 612 F.3d at 42. Such is the case here. By failing to
object to the modified instruction, PPD deprived the district court
of the opportunity to cure the alleged defect. See Flynn, 377
- 20 - F.3d at 25.5 Indeed, as the above colloquy makes clear, PPD's
limited post-revision request and its silence otherwise signaled
that it was not pressing an objection to the negotiated, revised
version.
Because PPD forfeited its argument as to the jury
instruction, we review the "reader" instruction for plain error
only. In reviewing for plain error, we "resuscitate a forfeited
argument only if the appellant demonstrates that (1) an error
occurred (2) which was clear or obvious and which not only
(3) affected the appellant's substantial rights, but also
(4) seriously impaired the fairness, integrity, or public
reputation of the judicial proceedings." Dávila v. Corporación de
P.R. para la Difusión Pública, 498 F.3d 9, 14–15 (1st Cir. 2007)
(cleaned up).
PPD suggests that Menninger has, in turn, waived her 5
forfeiture argument by failing to raise it in her opposition to PPD's posttrial motions. For support, it cites United States v. Tiru-Plaza, 766 F.3d 111, 118 n.12 (1st Cir. 2014), and Rivera- Carrasquillo v. Centro Ecuestre Madrigal, Inc., 812 F.3d 213, 233 n.32 (1st Cir. 2016). In Tiru-Plaza, we elected to "skip over any possible waiver argument and . . . treat the claim on its merits" where the opposing party apparently "did not raise a claim of waiver" at all, even on appeal. 766 F.3d at 118 n.12. Similarly, in Rivera-Carrasquillo, we declined to treat an argument as waived, despite "superficial treatment" of the argument, where the opposing party "ha[d] not asked us to find" waiver on appeal. 812 F.3d at 233 n.32. Neither rationale applies here, because Menninger did identify and brief the forfeiture issue before us, giving PPD the opportunity to raise its own arguments in reply. We therefore decline PPD's invitation to treat the forfeiture issue as, itself, waived.
- 21 - We see no "clear or obvious" error in the lower court's
accurate quotation of the ADA's statutory text, see 42 U.S.C.
§ 12111(9)(B), nor do we think the instruction "seriously impaired
the fairness, integrity, or public reputation of the judicial
proceeding[]," Dávila, 498 F.3d at 14–15. It is true that under
some circumstances, a legally accurate jury instruction may
nonetheless be misleading. For example, in Drumgold v. Callahan,
707 F.3d 28 (1st Cir. 2013), we held that a plaintiff was entitled
to a new trial where the jury instructions accurately described a
causation standard that did not apply to the plaintiff's claims.
Id. at 53–54. In this vein, PPD argues that the "reader" example
could have misled the jurors, because the ADA uses "reader" to
mean something different from what Menninger's expert meant when
she described a reader as someone who would make presentations on
Menninger's behalf. PPD contends that such presentations
constituted essential functions of Menninger's job. And as PPD
correctly observes, it is generally not reasonable to expect an
employer to accommodate a disability by relieving an employee of
the responsibility to perform essential functions. See Mulloy v.
Acushnet Co., 460 F.3d 141, 153 (1st Cir. 2006); Kvorjak v. Maine,
259 F.3d 48, 57 (1st Cir. 2001).
It is by no means clear, however, that jurors would have
construed the court's reference to a "reader" as including a person
who would perform Menninger's essential job functions. Our
- 22 - precedent instructs us to evaluate a jury instruction "in the
context of the instruction as a whole." Richards v. Relentless,
Inc., 341 F.3d 35, 48 (1st Cir. 2003). Here, the court's list of
examples was immediately followed by its qualifying statement that
"[a]n accommodation is not reasonable if it requires eliminating
or excusing an inability to perform any essential functions of the
job, if it requires shifting any of the essential functions . . .
to other employees, if it requires creating a new position for the
disabled employee, or if it creates an undue hardship." Nor does
the hiring of a reader, however construed, appear to have played
any significant role in closing arguments. Menninger's counsel
mentioned it once, immediately followed by the statement that the
case was not "really about" that accommodation request. Instead,
Menninger's counsel primarily argued that PPD refused to exchange
information or seek, in good faith, a way for Menninger to perform
her essential job functions. All in all, there was no plain error
here.
C.
As its final sally, PPD seeks to overturn the ten-
million-dollar punitive-damages award. First, it contends that
the award was "almost certainly the direct result of the erroneous
'reader' instruction." For the reasons discussed above, we discern
no plain error in the district court's "reader" instruction, and
thus PPD cannot prevail on that basis.
- 23 - Second, PPD argues that as a matter of law, Menninger
failed to show PPD's "malice" or "reckless indifference." The
district court found that PPD preserved this particular claim of
error, and Menninger does not challenge that conclusion. We
therefore proceed to the merits of PPD's argument that the evidence
could not have supported the state-of-mind elements of Menninger's
punitive-damages claim.6 We review de novo a preserved challenge
to the sufficiency of the evidence underlying a punitive-damages
award, viewing the evidence "in the light most hospitable to the
jury's verdict." Méndez-Matos v. Municipality of Guaynabo, 557
F.3d 36, 40, 48 (1st Cir. 2009) (citation omitted).
Punitive damages are sometimes either unavailable, see,
e.g., Barnes v. Gorman, 536 U.S. 181, 189 (2002) (holding that
punitive damages are not available in private suits brought under
Title VI of the Civil Rights Act), or are subject to heightened
burdens of persuasion, see, e.g., Pac. Mut. Life Ins. Co. v.
Haslip, 499 U.S. 1, 23 n.11 (1991) (observing that many states
require "clear and convincing evidence" to justify a punitive-
6 While PPD describes the punitive-damages award as "grossly excessive," it does not develop any argument that the award was unlawfully excessive. See Rodríguez-Marín v. Rivera-González, 438 F.3d 72, 85 (1st Cir. 2006) (explaining the "three guideposts" for determining whether a punitive-damages award is unlawful). It has thus waived any such argument. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.").
- 24 - damages award). But the federal law under which Menninger has
sued expressly authorizes the recovery of punitive damages, and it
imposes no heightened burden of proof. 42 U.S.C. § 1981a(b)(1).
That law permits punitive damages when an employee demonstrates
that her employer "engaged in a discriminatory practice . . . with
malice or with reckless indifference to the federally protected
rights of an aggrieved individual." Id. Where the "discriminatory
practice involves the provision of a reasonable accommodation," an
employer can avoid punitive damages if it "demonstrates good faith
efforts . . . to identify and make a reasonable accommodation."
Id. § 1981a(a)(3). Because "[t]he Massachusetts standard is
similar[,] . . . [o]ur discussion of [punitive damages] under
federal law . . . embraces the state-law issue as well." Tobin v.
Liberty Mut. Ins. Co., 553 F.3d 121, 148 n.40 (1st Cir. 2009). A
plaintiff must prove not only that her employer intentionally
discriminated against her, but also that it did so "in the face of
a perceived risk that its actions would violate federal law." Id.
at 148 (cleaned up).
1.
The district court rejected PPD's post-verdict challenge
to the punitive-damages award because "the evidence . . .
permitt[ed] a reasonable jury to conclude PPD acted with malice or
reckless indifference to Menninger's rights in the course of its
responses to her request for an accommodation and/or her HR
- 25 - complaint." Specifically, the district court endorsed Menninger's
arguments that the evidence supported findings that PPD (1) sought
to coerce Menninger to quit, (2) manufactured false grounds to
terminate her, and (3) established new goals and expectations for
her role that it knew were impossible, all because of Menninger's
disability or in retaliation for disclosing her disability and
requesting accommodations. The district court further adopted
Menninger's argument that a reasonable jury could have concluded
that PPD perceived a substantial "risk that its actions would
violate federal law," as evidenced by its decision to conduct a
sham investigation of her complaint, as well as its witnesses'
contradictory testimony at trial. Tobin, 553 F.3d at 148.
After carefully reviewing the record, we agree with the
district court that a reasonable jury could have viewed the
evidence in a manner supporting the punitive-damages award.
We note at the outset that we see no evidence of malice
in PPD's decision to increase Menninger's public-facing
responsibilities before ever learning of her disability, nor in
its initial response to her first request for accommodation on
January 11, 2018. Instead, the trouble began when Menninger
submitted a second request for accommodations on February 14. On
February 28, St. John sent an email to Ballweg in which he
referenced "delicately working [Menninger] out," stated that
Mekerri was meeting with Menninger that day, and noted that PPD
- 26 - had "[given] only slightly on two out of five items that
[Menninger's] physician requested." That same day, Mekerri and
St. John met with Menninger and, according to Menninger's
testimony, gave her only two options: take an immediate exit
package, or transition into a temporary consulting role before
exiting.
An employer does not necessarily act with malice when it
illegally attempts to terminate an employee. As the Supreme Court
has explained, "[t]here will be circumstances where intentional
discrimination does not give rise to punitive damages
liability . . . [because the employer] discriminates with the
distinct belief that its discrimination is lawful." Kolstad v.
Am. Dental Ass'n, 527 U.S. 526, 536–37 (1999). Thus, in Tobin, we
rejected a proposed punitive-damages instruction where the
employer had at most "misjudged the reasonableness of the
accommodations requested," and there was no evidence of the
employer's "intentional or reckless indifference to [the
plaintiff's] federal rights" beyond its failure to accommodate him
and "general insensitivity to his circumstances." 553 F.3d at
149. Similarly, if PPD believed that it had no legal duty to
further accommodate Menninger's disability -- for example, because
her disability prevented her from completing her job's essential
functions -- its failure to accommodate her further would not have
been malicious.
- 27 - But the jury had reason to doubt whether PPD so believed.
At trial, Ballweg testified that it would have been "inappropriate"
for PPD to seek an exit strategy for Menninger at the time of the
February meeting and emails, because "[t]he interactive dialogue,
discussions with Dr. Menninger, had not resolved." She further
testified that if Mekerri had sought, in the February 2018 meeting,
"to work Dr. Menninger out of the organization," that would have
been "unfair treatment" of Menninger, the kind that Ballweg was
tasked with investigating later that spring. She testified that
St. John had not informed her of his efforts to seek an exit
strategy for Menninger (despite an email from St. John to Ballweg
plainly referencing his efforts to "work[ Menninger] out"). She
also testified that the email about "working [Menninger] out" might
refer to the fact that Menninger worked remotely and "wasn't on
site at the Central Lab." In light of this puzzling testimony
from PPD's head of HR, the jury might reasonably have concluded
that PPD did not, in fact, believe that it could lawfully terminate
Menninger upon receiving her second request for accommodations.
To the contrary, the jury might have found that as of February
2018, PPD believed that it was still in the midst of the
interactive process to determine whether it could reasonably
accommodate Menninger's disability. And the jury could further
have concluded that by nonetheless seeking to "work[ Menninger]
out" in February 2018, PPD acted "in the face of a perceived risk
- 28 - that its actions would violate federal law." Tobin, 553 F.3d at
148 (cleaned up).
PPD's subsequent behavior provided further support for
Menninger's claim that, rather than believing it could lawfully
discharge Menninger because of her disability, PPD instead sought
to fabricate other grounds to terminate her or else pressure her
to quit. The jury saw evidence that in April 2018, Mekerri's
supervisor emailed Ballweg's supervisor to ask about the "timing
on Lisa Menninger's exit." The email was forwarded to Ballweg,
who responded that termination was "not close" unless Menninger
"self-select[ed]" (i.e., quit), because Menninger got a "3 rating
for 2017" and PPD was "just now starting to document" her supposed
performance issues. The jury also heard testimony from St. John
suggesting that he had been "coaching" Mekerri to document
performance issues for Menninger. It heard testimony from Ballweg
and St. John that St. John helped Mekerri draft new performance
goals for Menninger, saw a document indicating that those goals
included "Elimination of Lab Issues," and heard testimony that
"elimination of all lab errors" was "an impossible goal,"
supporting Menninger's theory that she was being set up to fail.
Taken together, this evidence could have permitted the jury to
infer that -- far from believing it could legally fire Menninger
because her social anxiety prevented her from doing her job -- PPD
sought to conceal its unlawful motivations by manufacturing
- 29 - performance-based grounds for terminating Menninger, or creating
conditions so unpleasant that she would "self-select" (that is,
quit).
Finally, in weighing this evidence, the jury could have
also considered PPD's response to Menninger's discrimination
complaint in the spring of 2018. When Menninger made an internal
complaint that she was facing unfair criticism at work because she
had disclosed her disability and requested accommodations, Ballweg
was the PPD employee who investigated the complaint. Ballweg
testified that it would be "inappropriate" for an internal
investigation of a discrimination complaint to be conducted by
someone who was "involved directly in" the events complained of.
But emails in evidence and Ballweg's own testimony indicated that
Ballweg was deeply involved in PPD's efforts to "work[ Menninger]
out." The evidence supported an inference that Ballweg oversaw
the efforts to reduce Menninger's performance rating and document
criticisms of Menninger's work, updated higher-ups on the progress
of "Menninger's exit" and the efforts to create a record of poor
performance, and helped draft communications from Mekerri
assigning Menninger new, allegedly impossible goals and
identifying supposed performance issues. Thus, the jury could
have concluded not only that Ballweg was an inappropriate person
to investigate Menninger's complaint, but also that by conducting
- 30 - the investigation herself, Ballweg deliberately sought to conceal
any wrongdoing.
We emphasize that the jury was by no means required to
draw these inferences. A reasonable jury could have believed that
Menninger could not do the job as newly envisioned without
accommodations that were unreasonable. The jury could have elected
not to credit Ballweg's assessment that it would have been
"inappropriate" to seek an "exit strategy" for Menninger in
February 2018; it could have found, instead, that PPD believed in
good faith that it could lawfully "work[ Menninger] out" because
her condition prevented her from doing her job. And it could have
credited Ballweg's testimony that she conducted a fair and
impartial investigation of Menninger's complaint. But on appeal,
we are bound to draw our factual inferences "in the light most
hospitable to the jury's verdict." Casillas-Díaz v. Palau, 463
F.3d 77, 79 (1st Cir. 2006); see also Soto-Feliciano v. Villa
Cofresi Hotels, Inc., 779 F.3d 19, 30 (1st Cir. 2015) ("A rational
jury could draw either inference, regardless of which may be the
stronger of the two. But we may not supplant the jury's role by
weighing the strength of those competing inferences for
ourselves.").
In sum, the jury could reasonably have found that PPD,
fearing demands by Menninger that it make unwanted accommodations,
began a campaign to manufacture termination grounds or pressure
- 31 - Menninger to quit and then sought to cover up those efforts, thus
demonstrating its knowledge "of a perceived risk that its actions
would violate federal law." Tobin, 553 F.3d at 148 (cleaned up);
cf. Passantino v. Johnson & Johnson Consumer Prods., Inc., 212
F.3d 493, 516 (9th Cir. 2000) (holding that punitive damages were
available against an employer where the jury could reasonably "have
found that defense witnesses lied (both to [the plaintiff] and at
trial) about their actions, as part of a continuing effort to cover
up their campaign against her"); Brown v. Advanced Concept
Innovations, LLC, No. 21-11963, 2022 WL 15176870, at *5 (11th Cir.
Oct. 27, 2022) (per curiam) (holding that an ADA punitive-damages
award was supported by evidence that, among other things, the
employer "created documentation falsely suggesting that [the
plaintiff] had voluntarily resigned, rather than been terminated
for not being able to perform the duties of the position"). On
the record before us, these determinations were not beyond the
jury's ken. See United States v. Mehanna, 735 F.3d 32, 47 (1st
Cir. 2013) ("It is the jury's role -- not that of the Court of
Appeals -- to choose between conflicting hypotheses, especially
when such choices depend on the drawing of inferences and elusive
concepts such as motive and intent.").
2.
PPD last claims that because the district court rejected
Menninger's theory that her employer failed to engage in an
- 32 - interactive process, Menninger cannot show malice or reckless
indifference. PPD is correct that the district court granted
partial summary judgment on Menninger's no-interactive-process
theory. But the court simultaneously refused to grant PPD summary
judgment on some of Menninger's disparate-treatment and
retaliation theories and on the issue of pretext, in a manner
difficult to reconcile with PPD's view that the district court
issued a blanket finding of good faith. Specifically, the district
court found triable issues of fact as to whether PPD decided to
make Menninger's job "more difficult" in February 2018 because of
her disability; sought to coerce her to quit in retaliation for
disclosing her disability and requesting accommodations; excluded
her from hiring and recruitment responsibilities in retaliation
for disclosing her disability; and deliberately conducted a "sham
investigation" of Menninger's complaint to obscure its actions.
And it found that a jury could view "internal communications among
senior leadership and HR showing efforts to push Menninger out" as
evincing "pretext for discrimination based on [Menninger's]
disability."
In this context, we read the district court's summary-
judgment ruling as simply rejecting a standalone claim that PPD
violated state (and possibly federal) law by failing to engage in
any interactive process whatsoever. This legal
conclusion -- resting on the district court's finding that PPD did
- 33 - not "completely disregard[]" Menninger's request for
accommodations -- is a far cry from the factual finding that PPD
wishes to attribute to the district court, i.e., that PPD engaged
in "good faith" in all its dealings with Menninger. Indeed, the
district court itself offered a different understanding of its
summary-judgment holding: In its response to PPD's posttrial
motions, the court found that the evidence permitted a finding of
malice or reckless indifference, and it stated that "[t]o the
extent [the district court had] granted summary judgment on any
discrete legal theory or claim, its instructions to the jury
carefully described the law in a manner entirely consistent with
those rulings, and PPD has not suggested . . . otherwise"
(emphases in original). We are thus loath to reach beyond the
plain language of the district court's summary-judgment ruling to
infer an implicit finding of good faith.
We therefore decline to strike the jury's punitive-
damages award.
III.
For the foregoing reasons, we affirm on all counts the
district court's final judgment and its order denying PPD's
posttrial motions.
- 34 -