Moore v. Industrial Demolition LLC

138 F.4th 17

• Court: Court of Appeals for the First Circuit
• Decided: May 13, 2025
• Docket: 23-1703
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

Nos. 23-1697, 23-1703

ERIC MOORE,

Appellee, Cross-Appellant,

v.

INDUSTRIAL DEMOLITION LLC,

Appellant, Cross-Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Gelpí, Thompson, and Kayatta, Circuit Judges.

Jamie Goodwin, with whom Samuel Kennedy-Smith and Michael Turiello were on brief, for appellee, cross-appellant.

Thomas M. Metzger, with whom Alexa M. Esposito was on brief, for appellant, cross-appellee.

May 13, 2025 THOMPSON, Circuit Judge. In December 2019, Eric Moore

("Moore"), an employee of Industrial Demolition, LLC ("Industrial

Demolition" or "Industrial"), injured his hip during his employ on

the demolition site of the Brayton Point Power Station in Somerset,

Massachusetts.1 Despite the limitations resulting from his injury,

Moore remained capable of performing his job on the demolition

site with reasonable accommodation by Industrial. So, a few days

after he got hurt, Moore returned to Brayton Point with a doctor's

note outlining his constraints relative to his injury and requested

an accommodation from the company as to allow him to continue

working. With Industrial's permission, Moore then began working

with certain restrictions on his activities designed to

accommodate his injury. Nevertheless, the constraints outlined in

Moore's doctor's note sparked the ire of his direct supervisor in

short order, and Moore's employment with Industrial Demolition

ended soon thereafter when he was directed to "[h]it the gate"

following an argument over his job-related limitations and his

reiterated requests for accommodation considering them. It is

that directive which spawned the series of proceedings leading us

here today.

The Brayton Point Power Station was Massachusetts' last 1

utility-scale, coal-fired electricity generating plant. See U.S. Energy Info. Admin., Massachusetts State Energy Profile, EIA.GOV., https://perma.cc/D9UA-3C2E.

- 2 - Ultimately, after some travel, a federal jury in the

District Court for the District of Massachusetts found that

Industrial Demolition failed to accommodate Moore's injury and

that it retaliated against him for requesting or using a reasonable

accommodation. The jury awarded Moore damages in the amount of

$10,035. Neither Moore nor Industrial Demolition was pleased with

this result, and both parties now move this court to reverse or

amend the judgment or to grant a new trial. We will outline and

address the parties' arguments as we go, but here's the spoiler

alert: The parties' requests for relief are denied.

HOW WE GOT HERE

Our recitation of the factual background is done in the

light most complimentary to the jury's verdict. See Galarneau v.

Merrill Lynch, Pierce, Fenner & Smith Inc., 504 F.3d 189, 198 (1st

Cir. 2007).

I. The Main Characters

Industrial Demolition is a national commercial

demolition company headquartered in St. Louis, Missouri, that

razes industrial sites and redevelops the land for sale. Its Chief

Executive Officer ("CEO") is Michael Roberts ("Roberts"), and its

Chief Operating Officer ("COO") is Rebecca Lydon ("Lydon"). Roger

Oberkramer ("Oberkramer") is a former site supervisor for

Industrial Demolition, and Moore is one of its former employees.

The Brayton Point Power Station ("Brayton Point"), the

- 3 - once-largest coal-fired generating plant in New England, is now in

the dustbin of history.

II. The Backdrop

Moore's work association with Industrial Demolition came

about like this. Before his employment with Industrial at the

Brayton Point site, Moore was a missionary in El Quinche, Ecuador.

But then his wife became ill with Monge's disease, forcing Moore

and his young family to return to the United States in 2018.2 They

wound up settling in Aurora, Indiana, where Moore began working

for Industrial Demolition as a driver and laborer on the nearby

demolition site of the Tanner's Creek Generating Station.3 In this

role, Moore worked using both his hands and mechanical equipment

to move scrap and reclaim copper, aluminum, electrical wires, and

2 Monge's disease, also known as chronic mountain sickness, is a progressive incapacitating syndrome affecting people living in high-altitude regions. See Francisco C. Villafuerte & Noemí Corante, Chronic Mountain Sickness: Clinical Aspects, Etiology, Management, and Treatment, 17 High Altitude Med. Biol. 61 (2016).

3 The Tanner's Creek Generating Station was a utility-scale, coal-fired electricity generating plant located on the north bank of the Ohio River in Lawrenceburg, Indiana. The plant ceased operations in 2015 after litigation involving the Environmental Protection Agency and eight states concerning harmful emissions that traveled from Tanner's Creek and other nearby plants to the East Coast. See Juliet Eilperin & Steven Mufson, American Electric Power agrees to close 3 coal plants in emissions settlement, Wash. Post (Feb. 25, 2013), https://perma.cc/TL9B-AFE5.

- 4 - steel. He was supervised by Oberkramer and compensated at a rate

of $30 per hour.

After Oberkramer and Moore worked together at Tanner's

Creek, Oberkramer invited Moore and his family to move to

Massachusetts to work on the Brayton Point demolition project.

Moore initially declined, believing that Industrial Demolition's

"work environment was so very dangerous" and that "[Oberkramer]

had absolutely no management ability," as he frequently belittled

employees and disregarded their well-being.4 As Moore explained

at trial, he "just really didn't want to put up with [Oberkramer]."

But, by May or June 2019, with his fifth child on the way, and

being the "sole breadwinner" for his family, Moore decided to take

Oberkramer up on the job offer. Moore and his family relocated to

Westport, Massachusetts, and he began working at Brayton Point,

again, primarily as a driver and laborer.

III. Trouble on Brayton Point

Notwithstanding the inherent risks to workers associated

with commercial demolition, Industrial had a laissez-fare attitude

towards its health and safety practices at the time Moore commenced

work at Brayton Point. In fact, the company only started to take

its health and safety procedures seriously after the Occupational

4 Moore testified that, under Oberkramer's supervision, the Tanner's Creek demolition site had no "standard operating procedure" or safety training, and explained that if "somebody got hurt, they'd just tell Roger."

- 5 - Safety and Health Administration ("OSHA") initiated an

investigation into its practices at the site around November of

2019.5 At that point, Industrial belatedly designated a safety

director to design and implement health and safety protocols. Yet

Oberkramer continued to oversee labor; and he leaned on the use of

threats, racial slurs, misogynistic language, and dangerous

instructions to manage his crew. For example, Oberkramer regularly

used the n-word and similar vulgar and derogatory epithets in

reference to Industrial's on-site employees.6

The OSHA investigation caused Industrial Demolition to

convert multiple trailers on the site into "clean rooms,"7 and

relative to this conversion endeavor, Moore was assigned to "tear[]

down" and "clean out" the trailers. On Saturday, December 7, 2019,

5 HeatherMinton ("Minton") was hired by Industrial Demolition as the site's health and safety director prior to the initiation of the OSHA investigation, but she testified that her initial employment duties had "nothing to do with" setting up a safety program. Minton also testified that she took over the safety program only after OSHA initiated its investigation, that Oberkramer was running safety prior to that point, and that the conditions were so poor that "guys were dropping dirty for lead in their blood."

6 Oberkramer referred to one colleague responsible for ensuring harmful runoff did not contaminate the Mount Hope Bay as "Ms. Piggy."

7The clean rooms were designed for employees to "shower [and] put on clean clothes" before leaving the site.

- 6 - Moore, while executing that assignment, likely injured his hip.8

Though he was able to finish the workday, over the weekend Moore

experienced progressively increasing pain. Come Monday morning,

the pain was urgent, and Moore called Oberkramer to tell him he

was going to the emergency room. Oberkramer replied "[j]ust let

me know."

Moore's physician initially prescribed medication and

recommended that he take the week off. But Moore explained he

would like to return to work as soon as possible because "he needed

the money" since Industrial did not provide paid sick leave. As

Moore put it, "if you don't clock in, you don't get paid." The

physician then wrote Moore a note that allowed him to return to

work immediately but with certain restrictions on heavy lifting

and prolonged standing.9 The hospital faxed that note to

Industrial Demolition, and Moore returned to work the next day on

Tuesday, December 10. Upon his return, COO Lydon acknowledged

receipt of the doctor's note and stated that "whatever the doctor

8At trial, Moore told the jury that he did not let anyone know immediately after he was injured. He stated that he remained silent that day because "[his injury] wasn't an issue at the time" and because there was no one to report the injury to other than Oberkramer. Industrial, for its part, argued before the jury that Moore did not report his injury immediately after it occurred because, in fact, Moore was not injured on the job site, but rather elsewhere at some other point in time.

9 The physician's note indicated that the outlined restrictions were to remain in place "[u]ntil cleared by [Moore's] primary care doctor and/or sports medicine/physiatry."

- 7 - put[] on the note, that's what the restrictions need to be." With

that directive in place, Oberkramer thus "[r]eluctantly" assigned

Moore modified duties.10

By Friday the 13th, Oberkramer's patience had run thin.

Frustrated with Moore's work restrictions, Oberkramer ordered

Moore and his team to "get out of [their] machine[s]" and "[w]ork

with [their] hands." Moore responded by reminding Oberkramer about

the accommodation he had been granted by "the office" for his hip

injury and emphasizing that he was "not supposed to be bending

over and picking up these pieces of heavy metal." Oberkramer

retorted, "I don't give an F about your doctor's note, I don't

give an F what the office says. . . . Get the job done. We need

production. Start working with your hands." Moore did as he was

told, despite the pain he felt in his hip, because he "didn't want

to irritate [Oberkramer] any further."

Oberkramer's temper flared again that Friday evening

when Moore turned on a vehicle's headlights while parking in a

dark area on site. As Moore was clocking out, Oberkramer accused

him of "jerking around all week in a machine" and "not getting[]

production done"; and he suggested that Moore take some time off.

Moore explained that he could not afford to take time off because

10The accommodations for Moore's injury were designed to last for at least the duration of his workweek, which would have concluded on Saturday, December 14, 2019.

- 8 - he had a family to support. Oberkramer recommended that Moore

return in the new year. Moore responded that he did not "see the

problem" and again reminded Oberkramer that he was "following [his]

work restriction." Oberkramer reiterated that he did not "give an

F about [the work restriction] or what the office has to say."

The argument escalated from there, until Oberkramer, "in [Moore's]

face yell[ed]," "[y]ou know what? I don't have a need of you here

anymore," and he concluded with a directive to Moore to "[h]it the

gate and don't come back." Given Moore's past experiences with

Oberkramer, he knew that such an outburst meant he was fired.11

The following week, Moore called CEO Roberts to discuss

what had transpired between him and Oberkramer. Moore told Roberts

that Oberkramer had fired him, and he implored Roberts to

investigate "what's taking place on the job site." After speaking

with Oberkramer and consulting with COO Lydon, Roberts got back to

Moore the next day. In that phone call, Roberts conveyed

Oberkramer's side of the story, stating that according to

Oberkramer, Moore was "fired" for speaking about his wages -- an

accusation Moore immediately and vehemently denied. Roberts then

acknowledged that "[Oberkramer] [was] a little rough around the

Moore testified that Oberkramer had previously instructed 11

employees to "[h]it the gate and [not] come back," and said it was Oberkramer's version of "[y]ou're fired[!]" -- "because employees wouldn't come back after that." As a result of Oberkramer's outburst, Moore was canned one day before his workweek was to conclude.

- 9 - edges," but seemingly vouched for Oberkramer's methodology by

saying he "g[o]t[] the job done and . . . g[o]t[] production." He

then told Moore that he was "welcome to stay" with the company and

instructed him to "just go and work it out with [Oberkramer]."

IV. The Procedural History

Moore and Oberkramer did not work it out. Considering

Oberkramer's demonstrated hostile tendencies, Moore concluded that

Roberts' directive to seek such resolution was unreasonable, and

he did not return to the job site. Instead, Moore's first course

of action was to file a complaint against Industrial Demolition

with the National Labor Relations Board ("NLRB") alleging that he

was unlawfully terminated. An investigation followed, and a

settlement between Moore and Industrial Demolition was ultimately

reached in October of 2020. That settlement required Industrial

Demolition to pay Moore $85,555: $60,639 for back pay, $23,750 for

front pay, and $1,166 to account for compound interest.12

Moore also filed suit against Industrial Demolition in

the Commonwealth's Superior Court. That case was removed to the

federal district court on diversity jurisdiction grounds, and, in

due course, a four-day jury trial ensued. The jury returned a

12 The appellate record does not contain the specifics of Moore's NLRB complaint, but the settlement agreement marked during the trial makes reference to Industrial's legal obligation to advise its employees of their right to discuss in the workplace wages and compensation with fellow employees.

- 10 - verdict in favor of Moore, finding under Massachusetts law that

Moore had a handicap which Industrial failed to accommodate and

that the company retaliated against him by terminating him for

requesting or using a reasonable accommodation. The jury

calculated and awarded damages in the amount of $10,035, which

represented $95,590 in back pay less the $85,555 NLRB settlement.

Unhappy with the trial results, Moore filed a motion to

amend the judgment and a motion for a new trial. See Fed. R. Civ.

P. 59(e); Fed. R. Civ. P. 59(a). In his motions, he argued a

couple of things: that the value of the NLRB settlement should not

have been admitted into evidence or considered when calculating

the damages award, and that the jury was unlawfully prohibited

from considering punitive damages. An equally unhappy Industrial

Demolition waged a three-pronged post-verdict attack: It filed a

renewed motion for judgment as a matter of law or, in the

alternative, a new trial or, in the alternative, a remittitur.

See Fed. R. Civ. P. 50(b). Its motion argued that Moore did not

have a handicap, so an accommodation was not needed, and that as

a matter of law Moore did not suffer retaliation. Industrial also

accused the court of engaging in improper conduct during the jury

deliberation process. And lastly, the company claimed Moore could

not recover damages for the complained-of injuries because he did

not meet his legal duty to mitigate damages. The district court

- 11 - denied both parties' motions, and they are now here seeking this

court's relief.

DISCUSSION

Each party offers a bouquet of arguments echoing the

reasoning from their respective post-trial motions. We will

address Industrial Demolition's arguments before moving on to

Moore's.

INDUSTRIAL DEMOLITION'S ARGUMENTS

I. Verdicts: The Rule 50(b) Arguments for Reversal

A. The Handicap Finding

In his claim against Industrial, Moore alleged that he

had a handicap which the company failed to accommodate in violation

of Massachusetts General Laws Chapter 151B ("M.G.L. c. 151B").

Before us, Industrial asserts that Moore, as a matter of law and

fact, did not have a handicap requiring an accommodation. The

company says that the district court's denial of its Rule 50(b)

motion seeking judgment as a matter of law of Moore's failure to

accommodate claim was therefore a mistake which merits reversal.

To support its legal proposition that the jury's handicap finding

was error, the company relies centrally on a theory that Moore's

temporary hip injury categorically fell outside of M.G.L.

c. 151B's definition of "handicap," considering its short

- 12 - duration,13 coupled with its trifling severity,14 as Industrial

would have us see it. Moore counters, saying the district court

called the handicap question just right. For the benefit of the

reader, we will outline the relevant law and the parties' arguments

13At trial, Moore acknowledged that during his visit to the emergency room, his physician initially suggested that he "take a week off," and informed him that he could thereafter "come back to work . . . [and] perform [his] full duties with zero restrictions." Moore also testified that he did not experience any physical or mental impairment that prevented him from working following his "active employment at Industrial." Based mainly on that testimony, Industrial asserts that Moore's injury "lasted [only] one week." On the other hand, however, the medical records introduced into evidence indicated that Moore's physicians, when tendering a diagnosis and prognosis, did not conclusively state that his injury would resolve within such a short time.

14The medical records introduced into evidence indicated that Moore's reason for visiting the emergency room was "severe [right] hip pain." Moore also testified that his hip injury rendered him "sw[o]ll[en]," "inflam[ed]," "hobbled," "with a limp," unable to "bear weight on [his] leg," and incapable of "even . . . stand[ing] up straight." Moore explained to the jury that he experienced "excruciating" and "progressively increasing" pain following his injury, and that doctors had discovered a "real deep tissue tear in the muscle in [his] hip," for which he was administered Toradol and provided a prescription for oral Motrin. He said he had to "crawl to the bathroom" on the morning he visited the hospital. And he told the jury that at the time of the Friday evening altercation with Oberkramer, he still "wasn't fully recovered." Be that as it may, Industrial says Moore's impairment, considering its short duration, required something more, citing, inter alia, the Massachusetts Commission Against Discrimination Guidelines, § II.A.6, wherein the Commission indicates that "isolated medical problems . . . of short duration usually are not handicaps" under the Commonwealth's law. See also Mass. Bay Transp. Auth. v. Mass. Comm'n Against Discrimination, 879 N.E.2d 36, 48 n.17 (Mass. 2008) (explaining that "[t]he guidelines represent the [Commission's] interpretation of [Chapter] 151B, and are entitled to substantial deference, even though they do not carry the force of law" (citation and internal quotation marks omitted)).

- 13 - bearing on the jury's finding that Moore "had a handicap" before

we explain why this court does not need to determine whether the

finding was reasonable to resolve this appeal.

First, as ever, the standard of review. When, as here,

statutory interpretation is at play, the denial of a Rule 50(b)

motion for judgment as a matter of law invites de novo review.

N. H. Lottery Comm'n v. Rosen, 986 F.3d 38, 54 (1st Cir. 2021).

And when, as now, a federal court sits in diversity, it is a

bedrock principle of federalism that the court is constrained to

apply state substantive law. Erie R.R. Co. v. Tompkins, 304 U.S.

64, 78 (1938); see also Hanna v. Plumer, 380 U.S. 460, 465 (1965)

("The broad command of Erie was . . . [that] federal courts are to

apply state substantive law and federal procedural law."). The

statute relevant to our analysis in this case, M.G.L. c. 151B,

provides in part in § 4(16) that it shall be an unlawful practice:

For any employer, personally or through an agent, to . . . discriminate against, because of his handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation, unless the employer can demonstrate that the accommodation required to be made . . . would impose an undue hardship to the employer's business.

The parties do not dispute that M.G.L. c. 151B provides

the definition of handicap relevant to Moore's claims, but they do

dispute with vigor whether, and to what extent, the Commonwealth's

- 14 - statute parallels federal law on the definition's score. Moore,

for his share, asserts that the word "handicap" in M.G.L. c. 151B

has been interpreted by the Commonwealth's courts in a broad manner

akin to the word "disability" in the analogous Americans with

Disabilities Act ("ADA"), 42 U.S.C. § 12112(a), capturing injuries

like his own within the definition's orbit. See ADA Amendments

Act of 2008 ("ADAAA"), Pub. L. No. 110–325, 122 Stat. 3553

(expressly providing, inter alia, protections for certain

temporary impairments); see also 29 C.F.R. § 1630.2(j)(1)(ix),

App. at 387 (2024) (an Equal Employment Opportunity Commission

regulation indicating that a cognizable impairment under the

amended ADA may last fewer than six months if it is "sufficiently

severe"). Industrial ripostes, asserting that Massachusetts

courts have interpreted the word handicap distinctly from the word

disability in the federal law, adopting a narrowly circumscribed

vision which definitively excludes temporary impairments like

Indisputably, Massachusetts courts have recognized that

M.G.L. c. 151B and the ADA have notable similarities. See, e.g.,

City of New Bedford v. Mass. Comm'n Against Discrimination, 799

N.E.2d 578, 588 n.26 (Mass. 2003) (describing the ADA and M.G.L.

c. 151B as "cognate" statutes). For example, the definition of

the term handicap in M.G.L. c. 151B is virtually identical to the

- 15 - definition of the term disability in the ADA.15 Both laws provide

three related but independent avenues for defining handicap or

disability that fall within the respective terms' boundaries: (1)

a physical or mental impairment which substantially limits one or

more major life activities of a person; (2) a record of having

such impairment; or (3) being regarded as having such impairment.

M.G.L. c. 151B, § 1(17); see also 42 U.S.C. § 12102.

Considering the similarities between the statutes, the

Supreme Judicial Court of Massachusetts ("SJC") has indicated that

Massachusetts courts look to federal law to interpret the

definition of handicap under M.G.L. c. 151B, except in those rare

instances where the SJC "discern[s] some reason to depart from

those [federal] rulings." City of New Bedford, 799 N.E.2d at 588

n.26; see Flagg, 992 N.E.2d at 364 (looking to federal

jurisprudence to resolve an associational discrimination claim);

15 The minor textual differences between the two statutes, such as the use of the word handicap in the Commonwealth's law versus disability in the ADA, do not alter the meaning between the two. Dahill v. Police Dep't of Boston, 748 N.E.2d 956, 959 n.7 (Mass. 2001). Another federal law addressing similar conduct, the Rehabilitation Act of 1973 ("the Rehabilitation Act"), also uses the term "handicap," and defines the term in the same way as M.G.L. c. 151B and the ADA. See Pub. L. No. 93–516, § 111(a), 88 Stat. 1617, 1619 (1974). Although Massachusetts courts have sometimes looked to the Rehabilitation Act to resolve claims related to handicap discrimination, neither party in this appeal made any arguments related to that Act. See, e.g., Flagg v. AliMed, Inc., 992 N.E.2d 354, 364 (Mass. 2013) (reasoning that because the Rehabilitation Act was enacted before M.G.L. c. 151B, unlike the ADA, "[t]he Rehabilitation Act . . . is a more direct analogy to § 4(16)").

- 16 - Dartt v. Browning-Ferris Indus., Inc., 691 N.E.2d 526, 532 (Mass.

1998) ("We are also guided in our resolution by interpretations of

the Americans with Disabilities Act . . . even though that statute

was enacted in 1991, after the enactment of G.L. c. 151B,

§ 4(16)."); cf. Dahill, 748 N.E.2d at 963–64 (looking to federal

case law but holding "it [was] not appropriate to follow the

Federal jurisprudence in th[at] case").

Industrial asseverates that this case presents those

rare circumstances where Massachusetts law counsels departure from

the federal jurisprudence in such a way which removes Moore's

injury from the Massachusetts antidiscrimination law's reach. The

company points out that, unlike the ADA, M.G.L. c. 151B has not

been amended to clarify the inclusion of certain temporary

impairments -- and it asserts that Massachusetts plaintiffs

therefore face a more demanding standard, identifiable in

Massachusetts law and the pre-amendment federal cases, when

proving a handicap; a standard which Moore, they argue, failed to

meet. See Sutherland v. Peterson's Oil Serv., Inc., 126 F.4th 728,

738–39 (1st Cir. 2025) (discussing the ADAAA's effect on the

standard for proving a disability under federal law). Moore, for

his argument, says that Massachusetts courts have interpreted

M.G.L. c. 151B in alignment with the ADAAA to support a liberal

understanding of the term handicap covering impairments such as

his own, citing Massasoit Indus. Corp. v. Mass. Comm'n Against

- 17 - Discrimination, 73 N.E.3d 333, 339 n.6 (Mass. App. Ct. 2017)

(explaining that "the Supreme Judicial Court has rejected the

argument that temporary disabilities are unprotected as a matter

of law" and noting as additional support that the ADA has since

been amended to clarify their inclusion). Moore further asserts

that, even before the amendments to the ADA broadening its

protections, Massachusetts law already recognized impairments such

as his, citing Dartt, 691 N.E.2d at 536 ("[Petitioner] urges us to

hold that a temporary disability does not constitute a handicap

within the meaning of the statute. We decline to do so.").

Some argument and law scrivened down, we move on to

explain why we need not elect a victor on this cragged front to

decide Industrial's appeal. That is so because, whether Moore

"had a handicap" sufficient to support his failure to accommodate

claim, his retaliation claim stood with independent sufficiency to

support the jury's damages verdict -- for reasons we will explain

in further detail in the next section of this opinion. See, e.g.,

Psy-Ed Corp. v. Klein, 947 N.E.2d 520, 529–30 (Mass. 2011) ("A

claim of retaliation may succeed even if the underlying claim of

discrimination fails."). Before excavating the details, we point

out for now that both Moore's failure to accommodate and his

retaliation claim sought the same back pay based on the same set

of operative facts; and the jury did not distinguish the damages

between the two claims when rendering its verdict. This court has

- 18 - previously explained that when there is a general damages award

and there are two counts potentially supporting that award, an

error in one claim submitted to the jury is deemed harmless where

the reviewing court can be "reasonably certain that the jury's

verdict did not rest on [the] erroneous basis." See Davis v.

Rennie, 264 F.3d 86, 106 (1st Cir. 2001).16 In other words, as the

stated principle pertains to this case, our court does not need to

decide whether Moore's injury qualified as a handicap under

Industrial's preferred reading of M.G.L. c. 151B, nor do we need

to decide whether the injury would qualify if the Commonwealth's

law parallels the ADA in the way Moore believes it does, so long

as we possess reasonable certainty that the jury's retaliation

verdict stood on its own solid ground to support the jury's damages

award. See Davis, 264 F.3d at 106. In view of that standard, on

the record before us, we find such certainty well within our grasp.

The jury, in delivering its verdict that Moore was retaliatorily

discharged "for requesting or using a reasonable accommodation,"

16We note that the court in Davis left open the possibility that, under certain circumstances, a more lenient "substantial evidence" standard might govern this court's review of an individual claim's sufficiency to support a verdict that encompasses several claims of liability, such as when there is no objection made to the general verdict form in the proceedings below. See 264 F.3d at 106–07. As such, although we employ a reasonable certainty standard to determine whether Moore's retaliation claim was independently sufficient to support the jury's general damages award here, we emphasize that we are not foreclosing the consideration of an alternative test in future cases.

- 19 - expressly rejected Moore's claim that he was

"terminate[d] . . . because of his handicap." Such rejection

plainly illustrates that the jury's conclusion Industrial

retaliatorily terminated Moore did not rest on its determination

that he "had a handicap." See Davis, 264 F.3d at 106.

With everything now said, we can advance and explain why

the jury's retaliation verdict was appropriate whether Moore could

reasonably qualify as handicapped or not. In obeisance to

principles of federalism, it seems wise to leave it to the

Commonwealth's courts to answer on another day the question whether

a short-lived impairment such as Moore's could reasonably satisfy

M.G.L. c. 151B's criteria. See, e.g., Roberge v. Travelers Prop.

Cas. Co. of Am., 112 F.4th 45, 56 (1st Cir. 2024) (explaining that

"federalism concerns and principles of prudence are at their peak

when a federal case 'raises difficult questions of state law

bearing on important matters of state policy'" (quoting Smith v.

Prudential Ins. Co. of Am., 88 F.4th 40, 57 (1st Cir. 2023))).

B. The Retaliation Verdict's Independent Sufficiency

Recall, the jury below found that Industrial retaliated

against Moore by terminating him "for requesting or using a

reasonable accommodation," in violation of M.G.L. c. 151B, § 4(4),

which prohibits employers from "discharg[ing], expel[ling] or

otherwise discriminat[ing] against any person because he has

opposed any practices forbidden under this chapter or because he

- 20 - has filed a complaint, testified or assisted in any proceeding

under [M.G.L. c. 151B, § 5]." Industrial now before us argues

that the record provided insufficient evidence to support the

jury's decision on Moore's retaliation claim, for reasons we will

explore momentarily. First, we pause to emphasize that

Massachusetts antidiscrimination law treats retaliation as a

"separate and independent cause of action" that does not require

proof of a handicap. Abramian v. President & Fellows of Harvard

Coll., 731 N.E.2d 1075, 1087 (Mass. 2000). Instead, Moore's

retaliation claim under the Commonwealth's law only required: (1)

proof that he engaged in protected conduct; (2) proof that he

suffered some adverse action; and (3) proof that some causal

connection existed between the protected conduct and the adverse

action. See Mole v. Univ. of Massachusetts, 814 N.E.2d 329, 338–

39 (Mass. 2004); see also Tate v. Dep't of Mental Health, 645

N.E.2d 1159, 1165 (Mass. 1995) (describing an M.G.L. c. 151B

retaliation claim's elements slightly differently, requiring proof

that the plaintiff had a reasonable and good faith belief the

defendant was engaged in wrongful discrimination, proof that the

plaintiff acted reasonably in response to his belief, and proof

that the defendant's desire to retaliate against the plaintiff was

a determinative factor in its decision to impose an adverse

employment action upon him).

- 21 - Basic judicial principles in place, onto Industrial's

arguments. The first requirement of Moore's retaliation claim

under either formulation of the claim's elements related to whether

his conduct was protected under the statute. See Mole, 814 N.E.2d

at 338 n.13; see also Abramian, 731 N.E.2d at 1087. Industrial

argues that Moore's requests for and use of an accommodation were

unprotected as a matter of law because, considering his injury's

short duration and its minimal-in-the-company's-eyes severity, he

necessarily lacked a reasonable-good-faith belief he was actually

entitled to an accommodation, which the company says his claim

required. See Psy-Ed Corp., 947 N.E.2d at 529-30 (explaining that

"a claim of retaliation may succeed even if the underlying claim

of discrimination fails, provided that in asserting [his]

discrimination claim, the claimant can 'prove that [he] reasonably

and in good faith believed that the [employer] was engaged in

wrongful discrimination'" (quoting Abramian, 731 N.E.2d at 1087)).

For reasons we will soon tell, you can color us unpersuaded.

Let's focus narrowly on Moore's requests for reasonable

accommodation rather than his use of an accommodation to dissect

his retaliation claim. See, e.g., United States v. Moran, 393

F.3d 1, 14–15 (1st Cir. 2004) (explaining that "when disjunctive

theories are submitted to the jury [as here] and the jury renders

a general verdict . . . as long as there was sufficient evidence

to support one of the theories presented, then the verdict should

- 22 - be affirmed" (citations and internal quotation marks omitted)).

We reason it is prudent to place our concentration on Moore's

accommodation requests to ascertain protected conduct because our

court has previously held that a plaintiff's "requesting an

accommodation [was] protected activity" sufficient to support a

retaliation claim, Wright v. CompUSA, Inc., 352 F.3d 472, 478 (1st

Cir. 2003), in a case where the evidence was ultimately

insufficient to allow a reasonable jury to find that the plaintiff

was actually entitled to an accommodation under M.G.L. c. 151B,

id. at 477. See also Abramian, 731 N.E.2d at 1087–88 (concluding

that a plaintiff's reasonable opposition to conduct that he in

good faith believed violated M.G.L. c. 151B, § 4(1), qualified as

protected conduct supporting the jury's retaliation verdict under

M.G.L. c. 151B, § 4(4), even though the conduct which the plaintiff

opposed may not have actually violated the statute). In other

words, Moore's requesting an accommodation from Industrial to

allow him to continue working notwithstanding his injured hip and

his opposing the company's accommodation request denials as they

fell here could have reasonably qualified as protected conduct on

the record before us whether Moore's hip injury could have

reasonably qualified as a handicap or not. See Wright, 352 F.3d

at 478; see also Psy-Ed Corp., 947 N.E.2d at 529-30; Abramian, 731

N.E.2d at 1087–88. Thus, we can take up the jury's finding

indicating Industrial retaliated against Moore for requesting an

- 23 - accommodation to guide our resolution of Industrial's appeal

relative to Moore's retaliation claim. In doing so, we will first

address the legal sufficiency of Moore's accommodation requests,

and then we will advance to explore the good faith and

reasonableness of Moore's belief he was entitled to an

accommodation, as well as the reasonableness of his opposition

against the company's accommodation-request responses.17

The law surrounding accommodation requests in the

handicap discrimination context is fairly straightforward. See

generally Stratton v. Bentley Univ., 113 F.4th 25, 52 (1st

17It is not entirely clear whether, in order to establish protected conduct under M.G.L. c. 151B, an individual claiming retaliation based on an accommodation request must also show in addition: (1) that he reasonably and in good faith believed he was actually entitled to an accommodation; or (2) that he reasonably opposed his employer's denial of the accommodation request. See Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1st Cir. 1997) (explaining that, under the analogous ADA provision governing retaliation, "Congress intended . . . retaliation protection for employees who request a reasonable accommodation . . . [even if they do not] also file a formal charge" and even though they do not "literally oppose any act or practice [forbidden by the law]"); see also Wright, 352 F.3d at 474-75 (finding support for the plaintiff's retaliation claim under M.G.L. c. 151B without discussing whether the plaintiff had a reasonable-good-faith belief he was actually entitled to an accommodation and without identifying any reasonable opposition by the plaintiff against the accommodation request's denial). For our part as it concerns this case, we decline to comment on whether Moore was required to make a showing that he reasonably and in good faith believed he was entitled to an accommodation or to make a showing that he reasonably opposed Industrial's denial of his accommodation request -- however, to the extent that the Massachusetts law required a showing of either, we will explain in due time why a reasonable jury here could have found that Moore met the mark.

- 24 - Cir. 2024). To suffice as an accommodation request, an employee

who asserts that he has a handicap limiting his engagement in his

job's functions must inform his employer about his limitations

with "sufficient[] direct[ness] and specific[ity]," to give notice

that he needs "special accommodation." Reed v. LePage Bakeries,

Inc., 244 F.3d 254, 261 (1st Cir. 2001) (citations omitted); see

also Bos. Hous. Auth. v. Bridgewaters, 898 N.E.2d 848, 857-59

(Mass. 2009) (relying on Reed, 244 F.3d at 261, to evaluate whether

a plaintiff's statements qualified as requests for accommodation

in a housing discrimination matter also involving a claim under

M.G.L. c. 151B); Ocean Spray Cranberries, Inc. v. Mass. Comm'n

Against Discrimination, 808 N.E.2d 257, 271 (Mass. 2004)

(examining evidence illustrating the sufficiency of an

accommodation request in a handicap discrimination case under

M.G.L. c. 151B).18 At the least, the employee's request for

18 We note that language in a footnote in Ocean Spray could be seen as indicating that, under M.G.L. c. 151B, a plaintiff's accommodation request must definitively establish that he is "entitled to" an accommodation to suffice. See 808 N.E.2d at 271 n.21 (stating that "for an employee's actions to constitute a request for accommodation, they must make the employer aware that the employee is entitled to and needs accommodation"). In view of that language from the Commonwealth's highest court, we emphasize that the SJC in Ocean Spray was narrowly analyzing a failure to accommodate claim, which required proof of a handicap, rather than a retaliation claim based on an accommodation request, which does not require such proof. Id. at 270; see Abramian, 731 N.E.2d at 1087; Wright, 352 F.3d at 478. Indeed, the SJC in Ocean Spray expressly stated that the only issue it was exploring relative to the plaintiff's accommodation request was whether the

- 25 - accommodation must identify some desired accommodation and explain

how the desired accommodation is linked to some handicap. See

Reed, 244 F.3d at 261; see also Bridgewaters, 898 N.E.2d at 859

(explaining that "[t]o make a reasonable accommodation request, no

'magic' words are required"). And the employee's requested

accommodation must appear reasonable on its face. See U.S.

Airways, Inc. v. Barnett, 535 U.S. 391, 401 (2002); see also Reed,

244 F.3d at 259 (explaining that an accommodation request is

facially reasonable when "at least on the face of things, it is

feasible for the employer under the circumstances").

With the law in the backdrop, we can now display the

evidence painting the picture which the jury viewed of Moore's

accommodation requests. The record borne below depicted, among

other things, that Moore suffered a hip injury; that he visited a

physician to address the "severe pain" and other issues resulting

therefrom; and that he thereafter told Industrial that he desired

defendant-employer's response to the request illustrated that the plaintiff was being discriminated against "because of his handicap." 808 N.E.2d at 270. In that limited context, it made sense for the SJC to suggest that an accommodation request "must make the employer aware that the employee is entitled to . . . accommodation" to suffice to show that any mistreatment resulting from the request is based on the plaintiff's qualifying handicap. Id. at 271 n.21. That said, the SJC's narrow focus in Ocean Spray on whether the employer's accommodation-request-related conduct evinced discrimination "because of [a] handicap" distinguishes the case from cases like the one before us now, which focus on retaliation based on an accommodation request rather than focusing on discrimination based on a handicap. See, e.g., Wright, 352 F.3d at 478.

- 26 - an accommodation, consistent with his physician's prescription,

limiting his participation in heavy lifting and prolonged standing

for at least the length of the workweek concluding on Saturday,

December 14, 2019. The record also illustrated further that COO

Lydon, upon Moore's request, acknowledged his desired

accommodation and assured him "whatever the doctor put[] on the

note, that's what the restrictions need to be." All good up to

that point as Industrial respected Moore's request and the

parameters of his limitations. Then, as the record unraveled the

events, on Friday the 13th, while Moore's accommodation was still

in effect, Oberkramer demanded that he "get out of [his] machine[]"

and "start working with [his] hands." And when Moore resisted,

reminding Oberkramer about the accommodation he had been granted

by "the office" for his hip injury, and emphasizing that he was

"not supposed to be bending over and picking up these pieces of

heavy metal," Oberkramer exploded: "I don't give an F about your

doctor's note, I don't give an F what the office says. . . . Get

the job done. We need production. Start working with your hands."

While Moore did as he was told at the time, as the record showed,

when Moore was clocking out later that day, Oberkramer revived the

conversation by telling Moore that he had been "jerking around all

week in a machine" and suggesting that "[m]aybe [he] need[ed] to

take some time off." And, when Moore again reminded Oberkramer he

- 27 - was "following [his] work restriction," Oberkramer, in retort,

told him to "[h]it the gate and [not] come back."

A reasonable jury engaging with the above-identified

evidence could have found that when Moore asked Oberkramer, while

being demanded to "get out of [his] machine[]," to respect the

accommodation he had earlier been granted by "the office" for his

hip injury, and again later when Moore told Oberkramer that he

desired to continue "following [his] work restriction" relative to

his injury in response to Oberkramer's comment he "should come

back at the first of the year," Moore twice satisfied the

accommodation request rubric. See Reed, 244 F.3d at 261; see also

Wright, 352 F.3d at 474-75 (outlining what qualified as an

accommodation request on the case's record). Additionally,

considering the same evidence, a reasonable jury could have fairly

concluded that Moore reasonably and in good faith believed he was

entitled to reasonable accommodation when he made his requests to

Oberkramer, and, moreover, that he in the same way believed

Oberkramer's conduct disregarding the requests violated M.G.L.

c. 151B. See Abramian, 731 N.E.2d at 1087–88. Indeed, Industrial

considered the severity and the expected duration of Moore's injury

in nevertheless granting him an accommodation initially. And

Oberkramer's subsequent about-face utterly disregarding the

in-effect accommodation's outlined restrictions did not

necessarily dispel any reasonable-good-faith belief Moore could

- 28 - have possessed that he remained entitled to the accommodation: an

accommodation which, we should mention, was feasible under the

circumstances considering it had been in effect without any issues

identified by Industrial for several days at the point of Moore's

requests to Oberkramer. See Reed, 244 F.3d at 259. Ironically,

Oberkramer's repeated refrain in response to both of Moore's

relevant requests, "I don't give an F about what the office says,"

could have been understood by a reasonable jury as suggesting to

Moore at the very least that given the office's acknowledgment of

his physical limitations, some accommodation for him was needed.

A reasonable jury looking at the noted evidence among other

evidence could sensibly have found that Moore's requests for

reasonable accommodation in response to Oberkramer's remarks and

directives were based on a reasonable-good-faith belief that he

was entitled to reasonable accommodation under M.G.L c. 151B. And,

as for the reasonableness of Moore's opposition to the wrongdoing

he perceived as manifest in Oberkramer's accommodation request

denials, insofar as it is relevant to Moore's claim, see Tate, 645

N.E.2d at 1165, Industrial undertook no effort to explain to us

how Moore's insisting that his in-effect accommodation be

respected in opposition to Oberkramer's request-related conduct

could be seen as unreasonable, and any argument on the subject is

thus waived, see United States v. Zannino, 895 F.2d 1, 17 (1st

Cir. 1990) (explaining that "issues adverted to in a perfunctory

- 29 - manner, unaccompanied by some effort at developed argumentation,

are deemed waived"). Therefore, putting it all together at last,

because a reasonable jury on this record could have found that

Moore's requests for reasonable accommodation and his opposition

as here against Oberkramer's accommodation-request denials were

protected activities under M.G.L. c. 151B, there was sufficient

evidence for the jury below to conclude that Moore satisfied the

first requirement supporting his retaliation claim. See Wright,

352 F.3d at 474-75; see also Reed, 244 F.3d at 261; Abramian, 731

N.E.2d at 1087–88.

We forge ahead to the next requirement of Moore's

retaliation claim: proof that Industrial's desire to retaliate

against him for engaging in protected conduct was a determinative

factor in its decision to take an adverse employment action against

him.19 Tate, 645 N.E.2d at 1165. Massachusetts courts have

sometimes separated this requirement into two prongs: first

considering whether the employee suffered an adverse employment

action, and then considering the employer's motive for that action.

19 The standard to show that protected conduct caused an adverse action in a retaliation claim under the ADA is distinct from the "determinative factor" standard required under M.G.L. c. 151B. See Abramian, 731 N.E.2d at 1087 (quoting Tate, 645 N.E.2d at 1159) (setting forth the retaliation standard under Commonwealth law). Under the ADA, unlike M.G.L. c. 151B, a "but-for causation standard controls whether a defendant is liable for retaliation." Palmquist v. Shinseki, 689 F.3d 66, 77 (1st Cir. 2012).

- 30 - See Mole, 814 N.E.2d at 338–39; Verdrager v. Mintz, Levin, Cohn,

Ferris, Glovsky & Popeo, P.C., 50 N.E.3d 778, 800 (Mass. 2016).

Industrial asserts on appeal to us that Moore did not suffer any

adverse action, so we will follow the outlined two-step approach.

An adverse employment action for purposes of M.G.L.

c. 151B includes any action with effects on objective aspects of

an employee's working terms, conditions, or privileges that

"materially disadvantage[s] [the] employee." Yee v. Massachusetts

State Police, 121 N.E.3d 155, 162 (Mass. 2019) (citing Psy-Ed

Corp., 947 N.E.2d at 530). Massachusetts courts generally

determine whether conduct produces an objective material

disadvantage on a "case-by-case basis," "focus[ing] on a

reasonable person in the employee's position." Id. Nevertheless,

certain actions by employers, such as terminations, are adverse

according to the statute. See Abramian, 731 N.E.2d at 1087

("General Laws c. 151B, § 4(4), prohibits retaliation by making it

unlawful for 'any person . . . to discharge, expel or otherwise

discriminate against any person because he has opposed any

practices' forbidden under G.L. c. 151B." (emphases added)). Both

parties here agree that terminating Moore would have qualified as

an adverse action. What Industrial asserts on appeal though is

that contrary to the jury's determination, the evidence

demonstrates that Moore was never terminated. To support its

assertion, the company points primarily to the apparent lack of

- 31 - clarity in Oberkramer's direction to Moore to "[h]it the gate," as

well as to CEO Roberts' later phone call with Moore days after the

hit-the-gate incident, wherein Roberts told Moore he was "welcome

to stay" with the company if he would "just go and work it out

with [Oberkramer]." In our review of Industrial's appeal, we will

first address whether Oberkramer's directive to Moore could

reasonably be seen by a jury as a termination of Moore's

employment, and then we will move to address whether CEO Roberts'

later statements to Moore relative to Oberkramer's directive

affect our analysis of whether Moore was terminated by Industrial

in the first instance.

To bolster its belief that Oberkramer's directives and

conduct towards Moore could not have evinced a termination,

Industrial emphasizes that Moore testified before the jury that

Oberkramer "did not use th[e] words" "you are fired" when telling

him: "[h]it the gate and don't come back." According to

Industrial, because "Moore confirmed that he was never told that

he was fired" by Oberkramer, a reasonable jury could not have

concluded that the company terminated him. That is what Industrial

says, but the law, for its part, tells us otherwise. The words

"you're fired" were not required to show that Moore had been

terminated, for reasons we will now explain. See, e.g., Edwards

v. Commonwealth, 174 N.E.3d 1153, 1167 (Mass. 2021).

- 32 - The SJC recently addressed a factually similar

words-matter disagreement in a wrongful termination case under the

Massachusetts whistleblower act. See Edwards, 174 N.E.3d at 1167;

see also M.G.L. c. 149, § 185(a)(5). In Edwards, the SJC

distinguished between situations where "a mere 'threat of

discharge or discipline' meant that [an employee] was confronted

with a 'difficult choice' about whether to resign," and situations

where an employee was involuntarily terminated. Edwards, 174

N.E.3d at 1167 (citing Spencer v. Civil Serv. Comm'n, 93 N.E.3d

840, 850 (Mass. 2018)). Considering, among other things, testimony

that Edwards had been told by her supervisor that the employer

would "go in another direction," the SJC determined that a

reasonable jury could conclude Edwards had been terminated rather

than presented with a choice. Id. That case is instructive here.20

As in Edwards, a reasonable jury in this case could have similarly

concluded that when Moore was directed by Oberkramer to "[h]it the

gate and [not] come back," he was being ordered to leave his

position immediately and was not being presented with a difficult

After resolving the termination issue, the SJC in Edwards 20

went on to explain that "[e]ven if the plaintiff had been offered a genuine choice between resignation and involuntary termination, that would [have] not necessarily foreclose[d] a showing that she had suffered an 'adverse employment action.'" 174 N.E.3d at 1167 (citing Yee, 121 N.E.3d at 162). That is so because an adverse employment action for purposes of M.G.L. c. 149, § 185(a)(5), like M.G.L. c. 151B, § 4(4), includes any action with "effects on working terms, conditions, or privileges" that "have materially disadvantaged an employee." Id.

- 33 - choice. Id. Moore testified that Oberkramer had previously

instructed employees "[h]it the gate and don't come back," and he

explained to the jury that this familiar expression represented

Oberkramer's version of "[y]ou're fired[!]" -- "because employees

wouldn't come back [after that]." The jury's decision to credit

Moore's testimony indicating that Oberkramer's statements fell in

line with how Industrial typically terminated employees was well

within its purview; and the fact that Moore was never expressly

"told that he was fired" by Oberkramer did not make the jury's

conclusion that he was terminated unreasonable. Id.

After arguing that a reasonable jury could not have found

that Moore was terminated by Oberkramer, Industrial turns to the

later conversation between Moore and CEO Roberts, which took place

on December 17, 2019, some days after the hit-the-gate incident,

to further support its idea that the company did not terminate

Moore. However, in doing so, Industrial does not explain how

Roberts' statements subsequent to Moore's termination by

Oberkramer should impact our analysis of the earlier termination.

First of all, the company does not shed any light on how we should

interpret Moore's testimony recounting that Roberts informed him

during their conversation that "[Oberkramer] said that [he] was

fired because [he] was talking about [his] wages," as support for

the company's preferred factual inference that Moore was never

terminated. And, if after the chat about Moore's work status,

- 34 - Roberts did not intend to "fire" Moore, the company does not

identify any evidence that Roberts ever reached out to Moore to

bring him back when it was apparent Oberkramer and Moore did not

"work it out." In the same vein, the company does not point to

any facts contradicting Moore's testimony suggesting that,

considering "everything that's taken place on the job site,"

Roberts' expectation that he and Oberkramer could work things out

was unreasonable. Therefore, given the state of the evidence

presented by the company, a sensible jury could have concluded

that CEO Roberts' overture to Moore that he was "welcome to stay"

working for Industrial if he could just "work it out with

[Oberkramer]" was nothing more than hollow talk. So, to put things

briefly, without any argument from Industrial explaining why

Oberkramer's termination of Moore could not suffice as an adverse

action notwithstanding CEO Roberts' later comments, we conclude

that the "adverse action" element of Moore's retaliation claim was

satisfied by the record. See Edwards, 174 N.E.3d at 1167.

Regarding the next and final element of Moore's

retaliation claim, proof of a forbidden motive animating the

adverse action, while direct evidence of this final requirement is

typically available only under incredible circumstances,21 in this

21Given this general unavailability, Massachusetts courts usually look to federal law and employ the McDonnell Douglas burden-shifting framework to evaluate indirect evidence that bears

- 35 - case, the jury possessed something akin to direct evidence that

Moore was instructed to "[h]it the gate" because of his

accommodation requests. See Lipchitz v. Raytheon Co., 751 N.E.2d

360, 367–68 (Mass. 2001) (explaining that "[i]f the employee [is]

able to prove by direct evidence that discriminatory animus

motivated the decision, she [does] not have to rely on the indirect

method of proving animus"); see also Chief Just. for Admin. & Mgmt.

of Trial Ct. v. Mass. Comm'n Against Discrimination, 791 N.E.2d

316, 321 n.11 (Mass. 2003) ("Direct evidence is evidence that, 'if

believed, results in an . . . at least highly probable[] inference

that a forbidden bias was present in the workplace.' Typically,

direct evidence consists of statements of discriminatory intent

attributable to an employer." (citations omitted)). That said, in

its briefing before this court, Industrial did not assert a

contention that the jury lacked a basis to find a retaliatory

motive here. Instead, the company relied on its futile (for

reasons we have just explained) theory that it did not take an

adverse action against Moore to begin with. As such, any argument

contradicting the jury's finding a discriminatory motive, by

on an employer's intent. See Verdrager, 50 N.E.3d at 793; see also Theidon v. Harvard Univ., 948 F.3d 477, 505 (1st Cir. 2020) (outlining the McDonnell Douglas framework in the retaliation context and applying the framework to an M.G.L. c. 151B claim). The McDonnell Douglas framework is a three-step, burden-shifting test outlined by the Supreme Court which allows plaintiffs to prove a forbidden motive with indirect evidence. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–805 (1973).

- 36 - direct evidence or otherwise, is waived. See Zannino, 895 F.2d at

17.

Considering the evidence of retaliatory conduct we have

limned and the argument bearing upon it; the record was sufficient

to support the jury's conclusion that Moore suffered an adverse

employment action for engaging in protected conduct. The district

court's denial of Industrial's motion for judgment as a matter of

law considering Moore's retaliation claim is therefore affirmed,

and the jury's general damages award is also affirmed too

alongside. See Wright, 352 F.3d at 478; see also Davis, 264 F.3d

at 106.

II. The Rule 59(a) Arguments for a New Trial

Industrial Demolition next challenges the district

court's denial of its request for a new trial. The company urges

this court to reverse the district court's decision based on

alleged substantive and procedural errors during the jury

instruction process.

Rule 59(a) extends a district court's authority to grant

a new trial "much [more] broad[ly] than its power to grant a

[motion for judgment as a matter of law]." Jennings v. Jones, 587

F.3d 430, 436 (1st Cir. 2009). The Rule authorizes a district

court to "set aside the jury's verdict and order a new

trial . . . if the verdict is against the law, against the weight

of the credible evidence, or tantamount to a miscarriage of

- 37 - justice." Casillas-Díaz v. Palau, 463 F.3d 77, 81 (1st Cir. 2006).

"The trial judge, [when] considering [a] motion for a new trial,

may consider the credibility of the witnesses who had testified

and, of course, will consider the weight of the evidence."

MacQuarrie v. Howard Johnson Co., 877 F.2d 126, 132 (1st Cir.

1989). We review "the district court's disposition of a new trial

motion for abuse of discretion." Ira Green, Inc. v. Mil. Sales &

Serv. Co., 775 F.3d 12, 18 (1st Cir. 2014).

Industrial Demolition essentially alleges that the

district court engaged in judicial misconduct, thereby committing

reversible errors on the fourth day of trial, April 14, 2023,

during the jury deliberation process. Here's what occurred. The

district court concluded its final instructions to the jury that

day by stating: "And if any of you have a question, please let the

person [who is securing you] know and we will reassemble here, and

if I can answer the question in writing, I will do that." The

jury then began its deliberations at approximately 11:15 a.m.

Around 1:00 p.m., the jury submitted the following question to the

court: Can you provide the definition of handicap? At 1:05 p.m.,

Moore's counsel entered the courtroom, along with the courtroom

clerk and the court reporter. The judge was not present at this

time and Industrial Demolition's counsel was still en route to the

courtroom. The clerk then opted to read into the record outside

- 38 - of the jury's presence the court's proposed answer to the jury's

question, saying:

I'm just going to read this in. This is the answer the judge gave. In this case, handicapped under the law means an actual physical impairment which substantially limits one or more major life activities. Major life activities include, but are not limited to, caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. An actual physical impairment substantially limits an individual's ability to work if it prevents or significantly restricts the individual from performing a class of jobs or broad range of jobs in various classes.

Moore's attorneys indicated agreement with that

definition. Industrial Demolition's counsel entered the courtroom

at 1:08 p.m. and began reviewing the jury's question and the

court's proposed answer. The company's counsel then objected to

the substance of the proposal, noting that the court's proposed

definition lacked additional language defining the term

"substantially limits" which was included in the earlier oral

instructions -- language which stated that "the determination of

whether an individual is substantially limited in a major life

activity depends on, one, the nature and severity of the

impairment; two, the duration or expected duration of the

impairment; and three, the permanent or long-term impact or the

expected permanent or long-term impact of or resulting from the

impairment." Counsel also lodged a procedural objection,

- 39 - complaining that a response to the jury's question had been

prepared without his input and that substantive discussions had

occurred outside of his presence.

A short time later, at 1:50 p.m., the district court

judge entered the courtroom and began to hear from the parties.

Industrial Demolition's counsel again objected on the record,

indicating his belief that substantive discussions had occurred

outside of his presence, and explaining his position that the

definition of handicap given to the jury was legally insufficient.

The court then entertained arguments from both parties about the

definition. At 2:02 p.m., after hearing from both sides, the court

said:

I think what I will do is send to the jury the proposed response that you have seen and [the courtroom clerk] will take it to them, ask them to read it, and ask them whether that satisfies the question that they put to us. If it doesn't satisfy, then they can ask us what else they need to know in order to be able to answer the question that is posed to them in the jury verdict.

Following the court's comment, the proposed response

that the courtroom clerk read into the record at 1:05 p.m. was

thus sent to the jury. The jury reported it was satisfied with

the response and therefore, no additional instructions were

delivered.

Now on appeal, Industrial offers two primary arguments.

In doing so, the company does not meaningfully reprise its argument

- 40 - that the district court committed legal error by communicating

with Moore's counsel outside of its presence. That argument is

therefore waived. See Zannino, 895 F.2d at 17. In its stead, the

company premieres a new argument that was not presented to the

district court until its post-trial Rule 59 motion, asserting that

the court erred by actually answering the jury's question before

Industrial's counsel had the opportunity to be heard. Even if we

deem that argument timely raised, the record as outlined above

clearly indicates that such conduct never occurred. See, e.g.,

Kattan by Thomas v. D.C., 995 F.2d 274, 276 (D.C. Cir. 1993), as

amended (June 30, 1993) ("In analogous circumstances, this Court

has recognized that a losing party may not use a Rule 59 motion to

raise new issues that could have been raised previously."). Though

the district court may have formulated a tentative response to the

jury's question before hearing from counsel, it clearly

entertained input from both sides before making a final decision.

The company's remaining asseveration reprises its

argument that the district court erred by providing an insufficient

definition of the term handicap in response to the jury's question.

That contention also fails. Industrial's argument boils down to

its disagreement with the court's refusal to repeat an instruction

defining substantial limitation already given to the jury prior to

the start of deliberations. Yet it provides no authority

supporting the idea that such a refusal constitutes legal error

- 41 - amounting to an abuse of discretion. See Testa v. Walmart Stores,

Inc., 144 F.3d 173, 176 (1st Cir. 1998) (concluding under similar

circumstances that "nothing in the circumstances of th[e]

case . . . compelled the judge to [repeat his earlier

instruction]"); see also Elliott v. S.D. Warren Co., 134 F.3d 1,

6 (1st Cir. 1998) (emphasizing that "within wide limits, the method

and manner in which the judge carries out [their] obligation [to

inform the jury about the applicable law] is left to [their]

discretion"). Indeed, the district court provided the jury what

it asked for -- the definition of handicap, not substantial

limitation. Testa, 144 F.3d at 176 ("[W]hen a jury question is

received during deliberations, the judge must address only those

matters fairly encompassed within the question."). Therefore, the

district court committed no error, and the court's denial of

Industrial Demolition's motion for a new trial is affirmed.22

III. The Arguments for a Remittitur

Industrial advances a couple of arguments in support of

its remittitur claims. It first says that the evidence presented

to the jury necessarily showed that Moore failed to make reasonable

Even if this court were to assume that the district court 22

erred in instructing the jury as to the definition of "handicap," such error would still not merit reversal on the record before us, as the jury's handicap finding did not ultimately affect its damages verdict -- as we have previously explained at length. See Romano v. U-Haul Int'l, 233 F.3d 655, 665 (1st Cir. 2000) ("We will not, then, reverse a judgment if the error that resulted from the incorrect instruction was harmless.").

- 42 - efforts to secure new employment, and the company insists that

Moore's back pay should have been reduced accordingly -- to zero.

Second, the company points out that its work on Brayton Point ended

on August 14, 2020, and it contends that there was therefore no

basis for the jury to award Moore back pay for any period after

that date. We take each argument in turn, reviewing the district

court's decision on the motion for a remittitur for abuse of

discretion. See Trainor v. HEI Hospitality, LLC, 699 F.3d 19, 29

(1st Cir. 2012).

Industrial first asserts that there was insufficient

evidence for the jury to conclude that Moore was entitled to any

back pay when he "removed himself" from the labor market at the

conclusion of his employment with the company; and it argues that

the company is therefore entitled to a remittitur on that basis.

"An award of back pay compensates plaintiffs for lost wages and

benefits between the time of the discharge and the trial court

judgment." Johnson v. Spencer Press of Me., Inc., 364 F.3d 368,

379 (1st Cir. 2004). "During the back pay period, [however,]

individuals have an obligation to exercise 'reasonable diligence'

in finding alternative suitable employment." Id. Considering

that obligation, an award of back pay will typically be "offset by

any wages that could have been earned with reasonable diligence

after the illegal discharge, regardless of whether they were

actually earned." Id. A district court has discretion to order

- 43 - a remittitur to address improper back pay calculations "if such an

action is warranted in light of the evidence adduced at trial."

Trainor, 699 F.3d at 29. "In exercising [that] discretion, [a

district] court is obliged to impose a remittitur 'only when the

[jury's] award exceeds any rational appraisal or estimate of the

damages that could be based upon the evidence before it.'" Id.

(quoting Wortley v. Camplin, 333 F.3d 284, 297 (1st Cir. 2003)).

In asserting that Moore "removed himself" from the labor

market following his employment with the company, Industrial

essentially argues that Moore failed to exercise reasonable

diligence to find alternative suitable employment after he was

terminated. See Johnson, 364 F.3d at 379. The SJC has helpfully

explained that, under Massachusetts law, the burden of proof to

show a failure to exercise reasonable diligence lies with the

employer. McKenna v. Comm'r of Mental Health, 199 N.E.2d 686, 688

(Mass. 1964). Moreover, the SJC has emphasized that evidence a

terminated employee "had not applied for any . . . positions

during the time []he was not employed by the

[defendant] . . . alone . . . is not sufficient" to meet that

burden. Ryan v. Superintendent of Sch. of Quincy, 373 N.E.2d 1178,

1182 (Mass. 1978). Additionally, an employer arguing that a

discharged employee failed to appropriately mitigate damages is

required to show what amount an employee "could have earned in

other similar work[,]" McKenna, 199 N.E.2d at 689, and that

- 44 - substantially equivalent jobs were available in the relevant

geographic area, see Black v. Sch. Comm. of Malden, 341 N.E.2d

896, 900 (Mass. 1976) (outlining when "[a] former employer meets

its burden of proof of 'mitigation of damages'").

Let us review the evidence relative to Industrial's

burden to prove Moore failed to exercise reasonable diligence to

find alternative suitable employment. Moore testified that

Industrial Demolition discharged him on December 13, 2019, after

the altercation with Oberkramer about his work restrictions. He

told the jury that he left Massachusetts and moved to Indiana soon

thereafter. That next month, on January 20, 2020, the first case

of the COVID-19 coronavirus was reported in the United States.

See Michelle L. Holshue, et al., First Case of 2019 Novel

Coronavirus in the United States, 382 N. Engl. J. Med. 929 (2020).

Bearing in mind that global pandemic backdrop, Moore testified

that he did not seek employment for several months after leaving

Massachusetts, from January 2020 to April 2020, as "there [were]

a lot of things happening in the world at that time" and "[f]inding

a job was pretty difficult." Nevertheless, he stated that by the

middle of 2021, he had secured a full-time job in Somerset,

Kentucky.

For its part corresponding to its burden, the record

illustrates that Industrial never made any meaningful attempt to

properly show that Moore failed to make reasonable efforts to find

- 45 - alternative suitable employment.23 See Ryan, 373 N.E.2d at 1182;

Sch. Comm. of Malden, 341 N.E.2d at 900. For example, Industrial

did not offer evidence that there were substantially equivalent

jobs in or near Somerset, Massachusetts, at the time of Moore's

termination, nor did it demonstrate what Moore could have earned

in similar work. The company's first remittitur argument asserting

that Moore failed to exercise reasonable diligence in seeking

alternative suitable employment therefore fails.

Regarding Industrial Demolition's last-gasp alternative

argument that because the company's work on Brayton Point ended in

August of 2020, Moore could not have been entitled to back pay

after that date, we find it unpersuasive. The company's reasoning

falters because the record does not show that Moore's employment

23 Thecompany's averment to CEO Roberts' statement indicating that Moore was invited to move forward working with Industrial if he could just "work it out" with Oberkramer could have been sensibly framed by the company on this record as an argument that Moore failed to mitigate damages by declining CEO Roberts' offer of re-employment. See, e.g., Sherman v. Sch. Comm. of Whitman, 522 N.E.2d 433, 435 (Mass. App. Ct. 1988) (exploring a claim that the plaintiff-employee failed to mitigate damages by declining a reinstatement offer after being terminated); see also Ford Motor Co. v. EEOC, 458 U.S. 219, 232 (1982) (explaining that "an employer charged with unlawful discrimination often can toll the accrual of backpay liability by unconditionally offering the claimant the job he sought, and thereby providing him with an opportunity to minimize damages"). That being said, because the company did not argue below nor before us that Moore's conversation with CEO Roberts should affect the mitigation analysis, we limit our discussion in this case to addressing the company's mitigation arguments which it presents to us here. See Zannino, 895 F.2d at 17.

- 46 - with Industrial would have necessarily ended at that time. Recall

that Moore, who had previously worked for Industrial Demolition at

the Tanner's Creek site until the conclusion of its project there,

had demonstrated a willingness to relocate with Industrial to where

the work could be found. He moved himself (and his family) to

Massachusetts to work on the Brayton Point project, in spite of

his displeasure with Industrial's disregard for safety protocols

and notwithstanding his antipathy towards Oberkramer's management

skills. And Moore told the jury that, prior to his discharge, he

"figured [he would] be working [for Industrial] probably another

ten years," noting that he had been "promised a raise at the next

job site." Considering that evidence, and as the jury found, the

record does not support Industrial's preferred inference that

Moore would have stopped working for Industrial at the conclusion

of the Brayton Point project. The district court's denial of the

company's motion for a remittitur is therefore affirmed.

MOORE'S ARGUMENTS ON APPEAL

Having addressed Industrial Demolition's requests for

relief and affirmed each of the district court's decisions, we now

turn to Moore's appeal from the district court's denial of his

motion to amend the judgment and his motion for a new trial.

I. The Motion to Amend the Judgment

Moore believes that the district court erred when it

permitted the jury to consider the earlier settlement between him

- 47 - and Industrial Demolition, which arose from his successful NLRB

grievance, by instructing the jury to deduct from the final damages

award the settlement's value. According to Moore, the settlement

was collateral source income which should have been excluded from

the jury's consideration as a matter of law.24 We review the

district court's denial of Moore's motion to alter or amend the

judgment on that basis for abuse of discretion. See Markel Am.

Ins. Co. v. Diaz-Santiago, 674 F.3d 21, 32 (1st Cir. 2012); see

also Negron-Almeda v. Santiago, 528 F.3d 15, 25 (1st Cir. 2008)

("[A] court's material error of law is invariably an abuse of its

discretion.").

The collateral source rule has traditionally provided

"that benefits received by the plaintiff from a source collateral

to the defendant may not be used to reduce that defendant's

liability for damages." Lussier v. Runyon, 50 F.3d 1103, 1107

(1st Cir. 1995) (quoting 1 Dan B. Dobbs, Law of Remedies § 3.8(1),

at 372–73 (2d ed. 1993)). As for its operation, it "has both a

substantive aspect that relates to the law of damages, and an

evidentiary component that governs what types of evidence may be

admitted in evidence at trial." Law v. Griffith, 930 N.E.2d 126,

24Industrial Demolition says that Moore waived his collateral source argument by agreeing to deduct the NLRB settlement from any damages award. While Moore did agree that the district court could, post-verdict, consider a remittitur to address the settlement, he did not agree to deduct the settlement or to introduce evidence of the settlement to the jury.

- 48 - 132 (Mass. 2010). Where, as here, an appellant asserts that the

district court was legally incorrect in its application of the

rule in calculating damages, the appellant mounts a substantive

challenge which is appropriately analyzed under Massachusetts law.

See McInnis v. A.M.F., Inc., 765 F.2d 240, 245 (1st Cir. 1985)

("In spite of the general applicability of the Federal Rules of

Evidence to diversity actions, it is well recognized that Congress

did not intend the rules to preempt so-called 'substantive' state

rules of evidence such as the parole evidence rule, the collateral

source rule, or the Statute of Frauds."). Under Massachusetts

law, the collateral source rule provides that "the value . . . an

injured plaintiff would be entitled to recover from [a] tortfeasor

as a component of her compensatory damages . . . is not to be

reduced by any insurance payments or other compensation received

from third parties by or on behalf of the injured person."

Griffith, 930 N.E.2d at 131.

The problem with Moore's collateral source

argument is that he fails to explain why the payment he received

directly from Industrial via the settlement implicates the

Commonwealth's rule in any way. See id. (emphasizing that the

collateral source rule traditionally applies to compensation

received from third parties); Goldstein v. Gontarz, 309 N.E.2d

196, 202–03 (Mass. 1974) (cataloguing SJC and Supreme Court cases

where a payment has been considered collateral); N.L.R.B. v.

- 49 - Gullett Gin Co., 340 U.S. 361, 364 (1951) (distinguishing direct

and collateral source income). On its face, a settlement paid by

an accused party as a result of a process supervised by the NLRB

is different from the "fringe benefits" that Massachusetts courts

have typically categorized as collateral, like insurance policies,

unemployment benefits, and workers compensation. See Goldstein,

309 N.E.2d at 202–03. That collateral class of compensation has

traditionally been limited to third-party payments that "[are] not

made to discharge any liability or obligation of [the tortfeasor],"

and which flow indirectly to the plaintiff from insurers or from

programs using state funds derived from taxation. See Gullett

Gin, 340 U.S. at 364. Reducing a damages award to account for

that collateral class of income would usually produce an unjust

profit for the tortfeasor, which the collateral source rule guards

against. See Griffith, 930 N.E.2d at 132 (explaining that "it is

the position of the law that a benefit that is directed to the

injured party should not be shifted so as to become a windfall for

the tortfeasor" (quoting Restatement (Second) of Torts § 920A,

Comment b (1979))).

While application of the collateral source rule is

typically limited to that class of third-party payments, courts,

including Massachusetts courts, have recognized exceptions, and

have found, in certain instances, payments by a defendant to be

subject to the collateral source doctrine, such as where the

- 50 - payments should be considered in the nature of a fringe benefit or

deferred compensation. See, e.g., Short v. Marinas USA Ltd.

P'ship, 942 N.E.2d 197, 207 n.12 (Mass. App. Ct. 2011) ("When

evaluating whether a source is collateral, our determination

depends upon the purpose and nature of the payments and not merely

their source." (cleaned up)); see also Falconer v. Penn Mar., Inc.,

397 F. Supp. 2d 144, 147-48 (D. Me. 2005) (explaining that the

collateral source rule "usually" does not apply when the source of

the payment is the defendant while noting that circumstances exist

where "the character of the benefits" nevertheless may merit

application of the rule to a culpable defendant); Davis v. Odeco,

Inc., 18 F.3d 1237, 1245 (5th Cir. 1994) (concluding that payments

from an insurance plan funded primarily by the defendant-employer

were in the nature of a fringe benefit and thus subject to the

collateral source rule).

Having in mind those principles which animate the

concerns that the collateral source rule operates to address, we

reiterate -- Moore never explains how the NLRB settlement payment,

one which came directly from Industrial Demolition itself and not

some third party, and which specifically compensated him for back

and front pay, touches upon collateral source jurisprudence. See

Short, 942 N.E.2d at 207 (explaining that applications of the

collateral source rule which would result in "a windfall to the

plaintiff from a noncollateral source" are disfavored). Nor does

- 51 - he ever explicate why the NLRB settlement payment from Industrial

is an exception meriting departure from courts' usual practice of

not applying the collateral source rule when the source of the

payment is the defendant. See Bunker Hill Ins. Co. v. G.A.

Williams & Sons, Inc., 116 N.E.3d 47, 53 n.10 (Mass. App. Ct. 2018)

(citing Russo v. Matson Nav. Co, 486 F.2d 1018, 1020 (9th Cir.

1973) (recognizing the broad rule that where the plaintiff receives

from the tortfeasor payments to compensate for his injury, the

tortfeasor need not pay twice for the same damage); see also

Falconer, 397 F. Supp. 2d at 147-48. What we get instead is Moore

endeavoring to complicate the collateral source rule by arguing,

without citation to relevant authority,25 that the settlement

payment should be excluded under the rule because the payment

compensated him for distinct injuries inflicted upon him by

Industrial related to unfair labor practices and unrelated to his

causes of action before the court. Specifically, Moore says the

NLRB investigated Industrial "for preventing employees from

discussing their wages and for retaliating against those employees

who do so," and that it did not investigate Industrial for engaging

in handicap discrimination or retaliation. Okay. But even if

Moore attempts to support his proposition with cites to 25

Jones v. Cincinnati, Inc., 589 N.E.2d 335 (Mass. App. Ct. 1992), and Goldstein, 309 N.E.2d 196, but both are inapposite as neither involves a direct payment made to a plaintiff-employee from a defendant-employer.

- 52 - that assertion may be true, it is not an argument which tells us

why the settlement payment qualifies as excludable collateral

source income; and it ignores the fact that the payment prompted

by the NLRB proceeding was precisely calculated by reference to

lost wages.

Bottom line, while Moore's collateral source argument is

likely waived for lack of adequate development, see Zannino, 895

F.2d at 17, with no reasoned explanation in support of his

argument, we cannot conclude the district court's decision

permitting the jury to consider and instructing it to deduct the

settlement payment from its ultimate damages award was error and

thus an abuse of discretion. So, the district court's denial of

Moore's motion for an amended judgment is affirmed.

II. The Motion for a New Trial on Punitive Damages

The light at the end of the tunnel nears. Our last task

is to address Moore's belief that he is entitled to a new trial on

the limited question of punitive damages. He argues that the

district court erred when it rejected his request to present the

punitive damages question to the jury and when it denied his motion

for a new trial on the issue.

A district court may grant a motion for a new trial "only

if the verdict is against the law, against the weight of the

credible evidence, or tantamount to a miscarriage of justice."

Sánchez v. Foley, 972 F.3d 1, 16 (1st Cir. 2020) (citations and

- 53 - internal quotation marks omitted); Fed. R. Civ. P. 59(a). We

review a district court's decision on the motion for abuse of

discretion. Sánchez, 972 F.3d at 16.

The availability of punitive damages is a substantive

issue, so again, we turn to Massachusetts law to apprise the

district court's decision. See Gasperini v. Ctr. for Humanities,

Inc., 518 U.S. 415, 428 (1996). Under Massachusetts law, punitive

damages are generally appropriate "where a defendant's conduct

warrants condemnation and deterrence." Bain v. City of

Springfield, 678 N.E.2d 155, 161–62 (Mass. 1997). Massachusetts

has traditionally identified the broad circumstances warranting

such condemnation and deterrence by statutorily authorizing

punitive damages for certain causes of action. See Aleo v. SLB

Toys USA, Inc., 995 N.E.2d 740, 753 (Mass. 2013). M.G.L. c. 151B,

at issue here, is one of those Massachusetts statutes which

specifically expresses that "[i]f the court finds for the

petitioner, it may award the petitioner actual and punitive

damages." M.G.L. c. 151B, § 9. The decision whether punitive

damages are appropriate in a particular M.G.L. c. 151B case depends

on "common law and constitutional principles," Dartt, 691 N.E.2d

at 536, and punitive damages are typically warranted only for

"conduct that is outrageous, because of the defendant's evil motive

or his reckless indifference to the rights of others," id. (citing

the Restatement (Second) of Torts § 908(2) (1979); see Haddad v.

- 54 - Wal-Mart Stores, Inc., 914 N.E.2d 59, 74 (Mass. 2009) ("While

discrimination of all types is wrong and unacceptable, certain

discriminatory conduct is more outrageous than others. Punitive

damages have been, and remain, permissible only where the

defendant's behavior is particularly outrageous or egregious.").

The SJC has provided guidance explaining how to identify

outrageous or egregious conduct warranting the imposition of

punitive damages in the M.G.L. c. 151B context. Haddad, 914 N.E.2d

at 63. "In determining whether the defendant's conduct was so

outrageous or egregious that punitive damages . . . are warranted,

the fact finder should consider all of the factors surrounding the

wrongful conduct." Id. at 75.26 Additionally, the SJC has further

explained that for an employer to be held liable for the outrageous

or egregious conduct of a lower-level supervisor, the employer

must have knowledge of the conduct and fail to take corrective

action. Gyulakian v. Lexus of Watertown, Inc., 56 N.E.3d 785, 794

26The SJC identified five such non-exclusive factors courts may consider, including: (1) whether there was a conscious or purposeful effort to demean or dimmish the class of which the plaintiff is a part; (2) whether the defendant was aware that the discriminatory conduct would likely cause serious harm, or recklessly disregarded the likelihood harm would arise; (3) the actual harm to the plaintiff; (4) the defendant's conduct after learning that the initial conduct would likely cause harm; and (5) the duration of the wrongful conduct and any concealment of that conduct by the defendant. Haddad, 914 N.E.2d at 75. The SJC stated that "[j]udges can look to these factors for guidance, and should tailor jury instructions in a particular case by selecting from among the suggested factors as warranted by the evidence." Id.

- 55 - (Mass. 2016); Merrimack Coll. v. KPMG LLP, 108 N.E.3d 430, 443

(Mass. 2018); see Tryon v. Mass. Bay Transp. Auth., 159 N.E.3d

177, 189 n.12 (Mass. App. Ct. 2020) (discussing the "Gyulakian and

Merrimack College . . . standard"). An employer's failure to take

corrective action to address known discrimination is the

outrageous or egregious conduct on the part of the employer

warranting the imposition of punitive damages. Gyulakian, 56

N.E.3d at 796–97 (citing Haddad, 914 N.E.2d at 73).

In the case at hand, when confronted by Moore's counsel

about a potential punitive damages question for the jury's

consideration, the district court judge did not tailor jury

instructions by selecting from the factors suggested in Haddad,

914 N.E.2d at 75, nor did she discuss the "Gyulakian and Merrimack

College . . . standard," Tryon, 159 N.E.3d at 189 n.12. Instead,

the court cursorily stated, "we've heard all the evidence, and I

don't think the evidence [for punitive damages] is there." Moore's

counsel offered a "strong objection to the exclusion of punitive

damages without . . . any consideration of the applicable

Massachusetts law," but to no avail. And the district court did

not expand upon its reasoning in its later decision denying Moore's

motion for a new trial on the punitive damages question.

While a district court, in general, should proceed with

caution when performing its gatekeeper function in evaluating a

punitive damages charge request under M.G.L. c. 151B, we believe

- 56 - the district court acted within its discretion in this case. But

see Haddad, 914 N.E.2d at 72 ("An award of punitive damages

[typically] requires a determination of the defendant's intent or

state of mind, determinations properly left to the jury."); Labonte

v. Hutchins & Wheeler, 678 N.E.2d 853, 858 (Mass. 1997) ("We start

with the proposition that taking [certain] question[s] out of the

jury's hands is disfavored in the context of discrimination

cases."). We espy no discretionary abuse because our review of

the record suggests that had the district court properly applied

Haddad, 914 N.E.2d 59, Gyulakian, 56 N.E.3d 785, and Merrimack

Coll., 108 N.E.3d 430, to assess Moore's argument and explicated

its reasoning, a reasonable jury could not have fairly concluded

that Industrial's behavior complained of here warranted punitive

damages. See, e.g., Smith v. Bell Atl., 829 N.E.2d 228, 245 (2005)

(a pre-Haddad case affirming a trial court's decision to withhold

the punitive damages question from the jury); Kiely v. Teradyne,

Inc., 13 N.E.3d 615, 620 (Mass. 2014) (a post-Haddad case affirming

a trial court judge's vacatur of a jury's punitive damages award).27

27While evidence was presented suggesting Industrial operated an unsavory workplace -- think highly unsafe work environment as per OSHA and inappropriate use of derogatory language -- the behavior we focus on when evaluating Moore's punitive damages claim of error is Industrial's discriminatory and retaliatory conduct with a nexus to Moore's injuries. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 422 (2003) ("A defendant's dissimilar [conduct], independent from the [wrongful conduct] upon which liability was premised, may not serve as the basis for

- 57 - Considering Moore sought to hold Industrial, his past

employer, liable for punitive damages based on his then-supervisor

Oberkramer's conduct, the district court was tasked to look beyond

Oberkramer to determine whether members of senior management were

aware of the complained-of-disability-based discrimination. See

Gyulakian, 56 N.E.3d at 795 (explaining that "[p]unitive damages

are intended to fulfil a prophylactic purpose, and serve little

benefit when imposed on an employer for the actions of a

supervisory employee where that supervisor's discriminatory

transgressions were unknown to the employer"); see also Merrimack

Coll., 108 N.E.3d at 443 ("To support an award of punitive damages,

a jury must find the employer itself to be morally blameworthy,

and that requires a finding that a member of the employer's senior

management was morally blameworthy."). If members of senior

management were shown to be aware, the district court could have

only then moved forward to consider whether senior management

participated in the misconduct or acquiesced in it by knowing of

punitive damages."). The Supreme Court has cautioned that "[a] defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory . . . business." Id. at 423. And the SJC has also indicated "that a supervisor's creation of a[n] . . . [unlawful] work environment alone is [not] sufficient to warrant the imposition of punitive damages on the employer." Gyulakian, 56 N.E.3d at 795. Here, since the issue upon which we reject Moore's claim -- that of the employer's lack of notice (which we discuss next) -- is dispositive, we need not opine on whether Oberkramer's conduct, if known and ignored by Industrial, would have been outrageous and egregious enough to warrant a punitive damages charge.

- 58 - it and failing to provide a remedy -- thus rendering Industrial

liable for punitive damages. Gyulakian, 56 N.E.3d at 796.

In this case, however, while Moore presented evidence

that members of senior management, namely CEO Roberts and COO

Lydon, were put on notice of Oberkramer's discriminatory conduct

after he was terminated, along with evidence that senior management

failed to act to remedy the discrimination subsequently, Moore

also testified that until he spoke with Roberts about Oberkramer's

abusive workplace conduct following his termination, senior

management "had probably absolutely no idea" about the conditions

on site. See Gyulakian, 56 N.E.3d at 796 (emphasizing that there

was sufficient evidence for the jury to find that members of senior

management were "on notice of the sexually harassing conduct of

its employee . . . well before [the plaintiff] was terminated").

Consistent with that testimony, CEO Roberts stated that he had

received no earlier complaints about Oberkramer and his conduct

prior to Moore's discharge. And Moore fails to identify any point

in the record that rebuts either statement or that otherwise

indicates that senior management was on notice of Oberkramer's

unlawful conduct prior to the day Oberkramer terminated his

employment.28 If Moore had shown that members of senior management,

28Additionally, we note that there is no evidence indicating Roberts believed that Moore tried to work it out with Oberkramer and was rebuffed. In other words, as far as Roberts was aware, he

- 59 - for example, had been made aware of Oberkramer's hostile reactions

toward requests for accommodation at some point in time prior to

the moment he was terminated, Moore may have been able to prove

his claim for punitive damages. Here, however, instead of that

sort of evidence, Moore presented evidence showing senior

management's knowledge of Oberkramer's conduct after Oberkramer

terminated his employment, along with a conclusory legal argument

that punitive damages should always be considered in cases

involving the intentional tort of retaliation. That legal

argument, however, has already been considered and rejected by the

SJC. See Haddad, 914 N.E.2d at 63 (explaining that intentional

discrimination alone is not sufficient to warrant the imposition

of punitive damages). And, as we have explained, the district

court's assessment that senior management's post hoc knowledge of

Oberkramer's conduct was insufficient to warrant the imposition of

punitive damages on the company was not an abuse of discretion.

See Gyulakian, 56 N.E.3d at 796.

We affirm the district court's denial of Moore's motion

THE OUTCOME

The district court's verdict is affirmed. Each party

shall bear its own costs.

had given Moore the ability to continue his employment with the company.

- 60 -