McDonald v. Town of Brookline, 863 F.3d 57

McDonald, a Town of Brookline DPW employee, was suspended and ultimately terminated in May 2009 for repeated unverified sick-leave absences and failure to provide adequate medical documentation.
Around early 2009 McDonald sought medical care for fatigue and underwent a sleep study; a physician diagnosed sleep apnea and recommended light duty and a CPAP machine.
The Town repeatedly requested additional documentation and FMLA paperwork; McDonald missed deadlines, did not return an earlier FMLA form, and was warned his job would be deemed abandoned if he failed to comply.
McDonald was terminated May 12, 2009 for unauthorized absence and failure to provide sufficient documentation; he submitted an FMLA request two days later and sought post-termination hearing rights.
At the June 10, 2009 post-termination hearing McDonald presented no evidence and acknowledged he viewed himself as having abandoned the job; the Town upheld termination.
McDonald sued under the ADA claiming discrimination, failure to provide reasonable accommodation (including leave), and failure to engage in an interactive process; a 2016 jury found for the Town on accommodation/discrimination, but found McDonald was disabled and qualified.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether jury should have been instructed that employer has a continuing post-termination duty to consider new information and engage in the interactive process	McDonald: Court must instruct jury that the Town’s duty to engage in the interactive process and to provide reasonable accommodation can continue after termination and that post-termination conduct is relevant	Town: Omission was wording choice; jury may consider evidence and counsel may argue post-termination conduct without special instruction	Court: No abuse of discretion. Instructions adequately covered the law; parties argued post-termination evidence and jury could consider it.
Whether jury should have been explicitly told that leave of absence (or extended leave) is an example of a reasonable accommodation	McDonald: Court should have listed leave/extended leave as an explicit example because he requested three months’ leave after termination and Town never responded	Town: No requirement to provide an exhaustive list; statutory examples are illustrative; jury could consider requested accommodation and period	Held: No plain error. Court’s general instruction (and statutory examples quoted) and counsel’s arguments were sufficient for jury to consider leave requests.

Shervin v. Partners Healthcare Sys., Inc., 804 F.3d 23 (1st Cir. 2015) (standard for review of jury instructions and wording discretion)
Testa v. Wal-Mart Stores, Inc., 144 F.3d 173 (1st Cir. 1998) (jury instruction adequacy standard)
Sullivan v. Nat'l Football League, 34 F.3d 1091 (1st Cir. 1994) (parties entitled to present legal theories to jury)
McKinnon v. Skil Corp., 638 F.2d 270 (1st Cir. 1981) (reversible error requires prejudice)
Frederico v. Order of Saint Benedict in R.I., 64 F.3d 1 (1st Cir. 1995) (instructions must not confuse or mislead on controlling issues)
García-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638 (1st Cir. 2000) (reasonable accommodation analysis is fact-specific)
Criado v. IBM Corp., 145 F.3d 437 (1st Cir. 1998) (leave of absence can be reasonable in some circumstances)
Romano v. U-Haul Int'l, 233 F.3d 655 (1st Cir. 2000) (plain error review standard)
Elgabri v. Lekas, 964 F.2d 1255 (1st Cir. 1992) (plain error standard reference)
Gray v. Genlyte Group, Inc., 289 F.3d 128 (1st Cir. 2002) (failure to object at trial triggers plain error review)