Menninger V Ppd Development Lp

United States Court of Appeals
For the First Circuit
No. 23-2030

LISA MENNINGER,

Plaintiff, Appellee,

PPD DEVELOPMENT, L.P.,

Defendant, Appellant.

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

[Hon. Leo T. Sorokin, U.S. District Judge]

Before

Aframe and Kayatta,*
Circuit Judges.

Douglas Hallward-Driemeier, with whom John P. Bueker and
Ropes & Gray LLP were on brief, for appellant.
Stephanie Schuster, Douglas W. Baruch, Jennifer M.
Wollenberg, and Morgan, Lewis & Bockius LLP on brief for National
Association of Manufacturers, amicus curiae.
Patrick J. Hannon, with whom Hartley Michon Robb Hannon LLP
was on brief, for appellee.

July 24, 2025

* Judge Selya heard oral argument in this case and
participated in the initial semble thereafter. His death on
February 22, 2025, ended his involvement in this case. The
remaining two panelists issued this opinion pursuant to 28 U.S.C.
§ 46(d).
KAYATTA, Circuit Judge. Dr. Lisa Menninger was the

Executive Director for Laboratory Operations at a clinical

laboratory division of PPD Development, L.P. (PPD). Menninger

claims that PPD discriminated and retaliated against her because

of her social anxiety disorder, in violation of the Americans with

Disabilities Act (ADA) and Massachusetts antidiscrimination law.

A jury agreed and awarded Menninger more than twenty-four million

dollars in damages. PPD then moved for judgment as a matter of

law, a new trial, and remittitur, but the district court denied

those motions. For the reasons detailed below, we affirm.

Because PPD challenges the sufficiency of the evidence

supporting the jury's verdict, we recount the events in the light

most favorable to Menninger, "drawing all factual inferences and

resolving all credibility determinations in her favor." Dimanche

v. Mass. Bay Transp. Auth., 893 F.3d 1, 4 n.2 (1st Cir. 2018); see

also Franchina v. City of Providence, 881 F.3d 32, 38 (1st Cir.

2018) ("[O]ur recounting of the facts . . . defer[s] to the jury's

discernible resolution of disputed factual issues." (quotation

marks and citation omitted)).

PPD is a clinical research organization. It assists

pharmaceutical companies in testing new drugs, researching

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vaccines, and organizing and analyzing data from clinical trials.

One of its divisions, Global Central Labs, focuses on clinical

laboratory testing. Menninger was its Executive Director for

Laboratory Operations.

In 2017, its business stagnating, PPD's senior

management decided to implement a plan focusing on client

relationships. As part of that plan, PPD tasked its operational

leads -- including Menninger -- with increasing their involvement

in client pitches, bid defenses, and other engagements with

clients.

When Menninger's supervisor, Hacene Mekerri, told her

about the planned change in her duties, Menninger balked. She

explained to Mekerri that public presentations in front of large

crowds "ma[d]e [her] anxious." Mekerri "tried to reassure [her]"

that she was capable of the public speaking he had in mind, and he

suggested that they return to the discussion "after the holidays."

On January 11, 2018, Menninger emailed Mekerri to continue the

conversation. She informed him that she suffered from generalized

anxiety disorder, social anxiety disorder, and panic attacks,

which she treated with medication as needed. She also explained

that increased client visits, social interactions, and

presentations would be "difficult in light of [her] disability,"

and that she was "open to discussing whatever ideas" Mekerri had

for her role.

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PPD proposed that Menninger have her doctor recommend

accommodations that might allow Menninger to perform her new

duties. After consulting with an attorney and her doctor, she

agreed.

On January 31, 2018, Menninger's psychiatrist,

Dr. Marianna Kessimian, submitted a written accommodation request

on Menninger's behalf. The request noted that Menninger could

"tolerate" public speaking and social interaction "to the extent

that they [were] necessary for her job." However, it cautioned

that expanding Menninger's public-speaking and social-interaction

responsibilities would "increase her anxiety and worsen her

somatic symptoms," making it "substantially more difficult, if not

impossible, for [Menninger] to perform her job." Kessimian

suggested three possible accommodations: (1) minimizing social

interaction or public speaking "to the extent possible"; (2) not

changing Menninger's role to require more public speaking or social

interactions; and (3) developing a "plan" for any necessary public

speaking and social interactions, in consultation with Kessimian

or another qualified healthcare provider, so as to "minimize

[Menninger's] anxiety and somatic symptoms."

In response, Human Resources (HR) Associate Director

Chad St. John asked Menninger for additional information from her

physician regarding the specific duties Mekerri had raised that

Menninger could not perform. St. John also prompted Mekerri to

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send Menninger an email, on February 6, listing five broad

categories of public-speaking and social tasks that Menninger

would be expected to perform (specifying the frequency and number

of attendees for some, but not all, of the tasks). Some of the

listed activities were ones that Menninger performed "regularly

without issue," whereas others -- like being physically present

for client site visits -- marked a sharp departure from her

previous role.

Menninger worked with Kessimian to request a second set

of accommodations specifically tailored to Mekerri's emailed list.

Kessimian's additional suggestions included providing a "surrogate

or reader" to attend client meetings or make presentations on

Menninger's behalf. Kessimian also said that Menninger was "able

to build business relationship[s] in a more 'behind the scenes'

fashion and would like [to] brainstorm other potential avenues

where she [could] add value" in the business-development context.

Kessimian submitted the request on February 14, 2018.

St. John responded by email to Menninger twelve days

later, stating that PPD could accommodate Menninger's requests for

a surrogate to present at internal meetings, as well as her request

to reduce travel expectations. However, he indicated that PPD

could not make any accommodations with regard to "Client Bid

Defense," "Issue resolution calls," "HH/Client site meetings,"

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"phone," "Technical Sales presentation internal and external," and

"Lunch/dinner and social interactions" during customer visits.

Two days later, Menninger was scheduled to meet with

St. John and Mekerri to discuss the accommodation requests. Before

the meeting, St. John emailed Deborah Ballweg, HR Executive

Director, and mentioned "delicately working [Menninger] out,"

explaining that he and Mekerri "[g]ave only slightly on two out of

five items that her physician requested" as reasonable

accommodations.

During the meeting with St. John and Mekerri, Menninger

sought more information about the specific responsibilities for

which PPD stated that no accommodations were possible,

because -- as she put it in a follow-up email -- she thought there

were "many tasks that could fall within those items that would not

implicate [her] disability." However, PPD would not provide those

details. Instead, PPD focused on "working [Menninger] out," with

St. John asking Menninger to either transition to "a temporary

consulting role" or take an "exit package."

Predictably, matters deteriorated from there. Menninger

made clear that she did not want to leave PPD. St. John sent a

memorandum to PPD's legal department seeking guidance in pursuing

an "an exit strategy" with Menninger. St. John also sent the legal

department a draft email stating that to provide Menninger with

further information about her new public-facing responsibilities

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"would only present [Menninger] the opportunity to select"

responsibilities that she "believe[d she could or could not] do."

Meanwhile, PPD stayed its course of refusing to provide further

details about the public-facing responsibilities at issue.

In the months that followed, St. John coached Mekerri on

"documenting criticisms [of Menninger] to his manager file," and

helped him draft an email to Menninger instructing her to modify

her 2018 goals to include "[e]liminat[ing] Lab Issues, client

complain[ts,] and audit findings" and "proactively eliminat[ing]

quality issues." Menninger viewed these criticisms of her

performance as unfounded, and she saw the "goals" Mekerri had laid

out as impossible standards that would set her up for failure.

She complained of potential discrimination or retaliation, but the

PPD representative who investigated her

complaint -- Ballweg -- told Menninger that Ballweg had found no

evidence of wrongdoing.

That spring, as tensions rose between Menninger and her

employer, Menninger developed major depressive disorder -- what

PPD's own medical expert would later classify as a "reactive

depression" triggered by PPD's response to Menninger's

accommodation requests. On June 2, 2018, Menninger informed PPD

that she would need to take medical leave on her doctor's advice,

effective immediately. After exhausting her available paid and

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unpaid leave, Menninger was still medically unable to return to

work. In February 2019, PPD fired her.

Four months later, Menninger sued PPD for disability

discrimination and retaliation under both state and federal law.

She claimed that PPD failed to reasonably accommodate her; that it

took adverse action against her because of her disability; and

that it retaliated against her for disclosing her disability and

seeking accommodation.

After discovery, the district court granted partial

summary judgment for PPD on two points: It rejected Menninger's

theory that PPD could be liable solely for failing to engage in an

interactive process, and it limited Menninger's disparate-

treatment claims to a single adverse action, Mekerri's February 6,

2018, email describing the five categories of public-facing

responsibilities he expected Menninger to take on.1 Otherwise,

the court denied PPD's motion for summary judgment, and the case

proceeded to trial.

Trial did not go well for PPD. As the district court

recounted, "the relative strength of the parties' positions

appeared much different than it had on a written discovery record

unilluminated by live witness testimony." In particular,

explained the district court, "Menninger's credible and detailed

Menninger has not appealed that entry of partial judgment
1

paring down her claims.

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testimony was measured against accounts by PPD representatives

that were often vague, suffered from troubling inconsistencies, or

tended to corroborate Menninger's position rather than undermine

it." At the end of the ten-day trial, the jury found in Menninger's

favor in all respects. It concluded that PPD unlawfully failed to

provide a reasonable accommodation, unlawfully discriminated

against her under Massachusetts and federal law, and unlawfully

retaliated against her under federal and state law. It awarded

Menninger more than $24,000,000 in damages, comprised of

$1,565,000 in back pay, $5,465,000 in front pay, $5,000,000 in

past emotional distress, $2,000,0000 in future emotional distress,

and $10,000,000 in punitive damages.

With a new set of lawyers, PPD moved for judgment as a

matter of law, a new trial, and remittitur. The district court

denied those motions, and this appeal followed.

II.

Menninger's claims -- and the resulting jury

verdict -- arise under the ADA, as well as analogous provisions of

Massachusetts state law. The ADA "provide[s] a clear and

comprehensive national mandate for the elimination of

discrimination against individuals with disabilities." 42 U.S.C.

§ 12101(b)(1). In enacting the ADA, Congress sought to dismantle

barriers that might otherwise prevent individuals with actual or

perceived disabilities "from contributing, according to their

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talents, to our Nation's social, economic and civil life." Ortiz-

Martínez v. Fresenius Health Partners, PR, LLC, 853 F.3d 599, 604

(1st Cir. 2017) (quoting Ramos-Echevarría v. Pichis, Inc., 659

F.3d 182, 186 (1st Cir. 2011)). The ADA and its state-law analog,

Massachusetts General Laws chapter 151B, forbid a covered employer

from discriminating against a qualified disabled individual in

hiring, firing, promotions, compensation, and other terms and

conditions of employment. See id.; 42 U.S.C. § 12112(a); Mass.

Gen. Laws ch. 151B, § 4 (2025). An employer also discriminates

against a disabled employee when it refuses to make reasonable

accommodations for the employee's disability, so long as the

employer knows about the disability and the accommodation would

not impose an undue hardship on its business. See 42 U.S.C.

§ 12112(b)(5); Mass. Gen. Laws ch. 151B, § 4 (2025). Finally,

federal and state laws forbid covered employers from retaliating

against employees who request or use reasonable accommodations, or

who oppose disability discrimination. See 42 U.S.C. § 12203;

Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 106 (1st

Cir. 2007); Mass. Gen. Laws ch. 151B, § 4(4) (2025); Rae v. Woburn

Pub. Schs., 113 F.4th 86, 100 (1st Cir. 2024) (explaining that the

ADA and chapter 151B's antiretaliation provisions are analogs and

can be analyzed in tandem).2

2 The parties identify no relevant distinctions between the
federal and state-law schemes -- leaving us at liberty to analyze

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PPD appeals the judgment against it on three grounds.

First, it argues that Menninger's disability-discrimination claims

were insufficient as a matter of law and should never have gone to

a jury. Second, it claims that the verdict was tainted by

"misleading" jury instructions, entitling PPD to a new trial.

Third, it asserts that the punitive-damages award is "unsupported"

by the evidence. We address each argument in turn.

The Federal Rules of Civil Procedure provide a clear,

two-step process for a party who believes that the evidence

presented at trial in a civil action is legally insufficient to

support a jury verdict. First, the party must move for judgment

as a matter of law under Rule 50(a), which it may do "at any time

before the case is submitted to the jury." Fed. R. Civ. P. 50(a).

When the party makes this motion, it "must specify the judgment

sought," as well as "the law and facts that entitle [it] to the

judgment." Id. This mandated specificity matters, because it

"apprise[s the opposing party] of the materiality of the

dispositive fact" and gives it "an opportunity to present . . .

evidence bearing on that fact." Fed. R. Civ. P. 50 advisory

committee's note to 1991 amendment. Second, if the district court

the two sets of claims jointly for purposes of this appeal. See
Bazinet v. Beth Israel Lahey Health, Inc., 113 F.4th 9, 12 n.1
(1st Cir. 2024).

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denies the Rule 50(a) motion, the party has another chance: It

may "renew[]" its motion after the entry of judgment or, in some

circumstances, after the jury is discharged. Fed R. Civ. P. 50(b).

Crucially, "[b]ecause the Rule 50(b) motion is only a renewal of

the preverdict [Rule 50(a)] motion, it can be granted only on

grounds advanced in the preverdict motion." Fed. R. Civ. P. 50

advisory committee's note to 2006 amendment (emphasis added); see

also Zachar v. Lee, 363 F.3d 70, 73 (1st Cir. 2004) ("[A] motion

for judgment as a matter of law at the close of the evidence

'preserves for review only those grounds specified at the time,

and no others.'" (quoting Correa v. Hosp. S.F., 69 F.3d 1184, 1196

(1st Cir. 1995))).

PPD's entire Rule 50(a) motion consisted of the

following exchange, which took place at the close of Menninger's

evidence:

THE COURT: Are there any motions you want to
make? You don't have to, but I'm just giving
you the chance.

MR. CURRAN: Yeah. A motion for directed
verdict, Your Honor.3

THE COURT: All right. Fine. I will deny
that. So anything else? We're just going to
get Mr. Kelly?

MR. CURRAN: Yes, Dr. Kelly.

3 "Directed verdict" is the older term for a motion for
judgment as a matter of law. See Fed. R. Civ. P. 50 advisory
committee's note to 1991 amendment. As the district court properly
noted, this is a distinction without a difference. See id.

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The foregoing exchange was not necessarily PPD's last

chance to put forward, under Rule 50(a), reasons for granting

judgment as a matter of law. Ordinarily, a party may supplement

an initial oral Rule 50(a) motion with subsequent oral or written

statements of the basis for that motion, so long as it does so

"before the case is submitted to the jury." Fed. R. Civ. P. 50(a);

cf. Santos-Arrieta v. Hosp. Del Maestro, 14 F.4th 1, 10 (1st Cir.

2021). During the full day that passed before the case went to

the jury, the trial judge met repeatedly with counsel for both

parties to discuss remaining issues, including jury instructions

and "additional issues Menninger's counsel had raised late the

previous day." As the district court recounted, at no point during

these discussions -- or at any other time -- did PPD attempt to

explain the basis of its Rule 50(a) motion, ask the court to

reconsider its denial of the motion, or "supplement its cursory

oral request with a concise written version identifying one or

more grounds (as parties often do . . . )." PPD suggests that the

district court erred by "focusing on" these additional

opportunities for PPD to articulate the basis for its 50(a) motion.

But PPD's silence on the matter of a directed verdict in subsequent

meetings with the court supported the conclusion that PPD had

already said all it had to say on the matter.

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Only after the jury verdict did PPD explain (in a

Rule 50(b) motion) why it contended that the evidence presented at

trial was insufficient to support a verdict on at least some

counts. The Rule 50(b) motion argued that no reasonable jury could

find from the evidence that Menninger was capable of the essential

functions of her job, nor that PPD subjected her to adverse

treatment because of her disability. PPD's prior one-sentence,

oral request for a "directed verdict" specified neither of these

grounds.4 Consequently, PPD neither provided Menninger the

required opportunity to offer further evidence, nor permitted the

district court to consider those arguments before submitting the

issues to the jury. Because PPD entirely failed to identify the

grounds for its Rule 50(a) motion, let alone "the law and facts

that entitle[d it] to the judgment," Fed. R. Civ. P. 50(a)(2), it

had no arguments to renew at the Rule 50(b) stage.

Seeking to escape this self-imposed bind, PPD casts

blame on the district court, which -- it claims -- prevented PPD

from articulating the grounds for its initial motion by

4As we have previously observed, "[i]t is not clear from
our precedent what standard of review we should apply in evaluating
a trial court's determination [of whether] an argument made in a
Rule 50(b) motion was preserved in a Rule 50(a) motion." Cornwell
Ent., Inc. v. Anchin, Block & Anchin, LLP, 830 F.3d 18, 25 (1st
Cir. 2016). We need not decide that here, because "whatever the
standard of review -- de novo, abuse of discretion, or even clear
error" -- we find no error in the trial court's ruling that PPD
failed to preserve its sufficiency-of-the-evidence challenge. Id.
at 25–26.

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"immediately and summarily" denying the motion. The situation,

PPD contends, is "precisely the same" as that in Blockel v. J.C.

Penney Co., 337 F.3d 17 (1st Cir. 2003). The relevant exchange in

Blockel was as follows:

COUNSEL: Your Honor . . . we did want to
proceed with our motions for directed verdicts
on certain issues.

THE COURT: I never noticed that you filed one
at the close of plaintiff's evidence. I said
at the time that I believed after the evidence
was complete.

COUNSEL: I believe that we --

THE COURT: Motion for directed verdict has
been filed, and it's on the record, and the
Court denies it.

Id. at 25 n.2 (emphases added). "Under [those] circumstances," we

found that the trial court "foreclosed" the party from explaining

the basis of its motion, and we elected not to "fault[ the party]

for failing to provide more detail." Id. at 25.

Here, the circumstances materially differ. The district

court actually invited PPD to make a Rule 50(a) motion. Indeed,

the district court's perception was that, "had it not invited PPD

to make 'any motions' it wished to make, PPD would have made no

Rule 50(a) motion at all." Furthermore, the record does not

suggest that the court cut counsel short. Rather, as the district

court explained, it denied the motion only upon realizing that

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"no . . . further argument was forthcoming." PPD does not even

now explain how that finding was erroneous.

As PPD correctly points out, where "so much rides on a

procedural rule, parties must be able to rely on clearly defined

lines." Rule 50 provides just such a line, requiring in plain

terms that a party in a civil action "specify the judgment sought

and the law and facts that entitle [it] to the judgment." Fed. R.

Civ. P. 50(a)(2). This, PPD did not do.

PPD alternatively contends that even if it failed to

comply with Rule 50(a), this court should review its sufficiency-

of-the-evidence arguments for plain error -- which, it argues,

will "differ only negligibly" from "customary appellate review."

But as a general rule in a civil proceeding, this court does not

consider even on plain-error review an argument raised for the

first time in a Rule 50(b) motion. See, e.g., Full Spectrum

Software, Inc. v. Forte Automation Sys., Inc., 858 F.3d 666, 674

(1st Cir. 2017); RFF Fam. P'ship, LP v. Ross, 814 F.3d 520, 536

(1st Cir. 2016); Costa-Urena v. Segarra, 590 F.3d 18, 26 n.4 (1st

Cir. 2009).

Prior to 2006, we acknowledged the possibility of a

departure from this general rule in "an exceptional case," to

prevent "a miscarriage of justice." Correa, 69 F.3d at 1196

(citations omitted). In Chestnut v. City of Lowell, 305 F.3d 18

(1st Cir. 2002), we provided an example of such an exceptional

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case, where (1) the nonmoving party shared responsibility for its

opponent's failure to raise the relevant defense; and (2) the error

came at the expense of "innocent taxpayers of the City," the "very

ones" for whose benefit the defense was adopted. Id. at 20.

More recently, and in the wake of the Supreme Court's

decision in Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc.,

546 U.S. 394, 405 (2006), several other courts of appeals have

found that federal courts have no authority to consider

sufficiency-of-the-evidence arguments not timely advanced in

Rule 50(a) motions. See, e.g., Mountain Dudes v. Split Rock

Holdings, Inc., 946 F.3d 1122, 1131 (10th Cir. 2019); Miller v.

Huron Reg'l Med. Ctr., 936 F.3d 841, 847–48 (8th Cir. 2019); see

also United States v. Maldonado-García, 446 F.3d 227, 230 n.4 (1st

Cir. 2006) (discussing Unitherm's implications in the context of

Rule 50's criminal analog).

This court has yet to determine Unitherm's implications

for cases like Chestnut. See Chestnut, 305 F.3d 18. Nor need we

do so now. Even if we had the authority to entertain, in

exceptional cases, sufficiency challenges not preserved in

accordance with Rule 50, this case would not qualify for such

dispensation. Both parties had counsel below, and PPD's counsel

had numerous opportunities to comply with a plain and clear rule

well known to trial lawyers. In fact, the trial judge actively

ensured that PPD's counsel had an opportunity to voice a Rule 50(a)

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motion. The case itself was reasonably complicated, and it is not

patently clear how the plaintiff would have responded had PPD

timely spelled out the holes that it now contends exist in

Menninger's evidence. For all these reasons, we decline to

consider on the merits PPD's unpreserved sufficiency-of-the-

evidence arguments.

PPD next claims that an improper jury instruction

tainted the verdict, warranting a new trial. Specifically, PPD

takes issue with the court's instruction that a reasonable

accommodation "might include," among other things, "the provision

of qualified readers or interpreters." PPD acknowledges that the

quoted language comes directly from the ADA's definition of

reasonable accommodation. See 42 U.S.C. § 12111(9). It argues,

however, that the instruction was misleading in the context of

this case because one of Menninger's requested accommodations was

for a "surrogate or reader" to present at meetings on her behalf.

In this context, PPD suggests, the "reader" instruction

"effectively direct[ed] a judgment in Dr. Menninger's favor" by

indicating that her requested accommodation was presumptively

reasonable. This is a problem, PPD argues, because the statutory

language about "readers" applies only to vision-impaired

employees.

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We need not assay the full merits of this argument,

because, once again, PPD failed to preserve its objection. Federal

Rule of Civil Procedure 51 requires "[a] party who objects to an

instruction" to "do so on the record, stating distinctly the matter

objected to and the grounds for the objection." Fed. R. Civ.

P. 51(c)(1). Our "interpretation of Rule 51 is quite strict," for

"good reason." Flynn v. AK Peters, Ltd., 377 F.3d 13, 25 (1st

Cir. 2004) (quoting Connelly v. Hyundai Motor Co., 351 F.3d 535,

544 (1st Cir. 2003)). "Our strict enforcement of the object-or-

forfeit rule serves 'to compel litigants to afford the trial court

an opportunity to cure [a] defective instruction and to prevent

the litigants from ensuring a new trial in the event of an adverse

verdict by covertly relying on the error.'" Booker v. Mass. Dep't

of Pub. Health, 612 F.3d 34, 41 (1st Cir. 2010) (quoting Flynn,

377 F.3d at 25).

Here, PPD did raise a concern with a proposed "reader"

instruction during the charge conference, arguing that the

statutory reference to "readers" does not "refer to the type of

reader that Dr. Menninger was requesting," but rather to "having

someone read to" the disabled employee. But when the district

court pointed out that the listed accommodations were merely

examples and not per se reasonable in any given case, the following

exchange ensued:

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THE COURT: . . . I could add, potentially, a
sentence at the end [saying that] whether or
not something is a reasonable accommodation
depends upon, you know, a determination
considering all the relevant facts and
circumstances.

[PPD'S COUNSEL]: That might be helpful, Your
Honor.

THE COURT: Do you object to that?

[MENNINGER'S COUNSEL]: I don't.

[PPD'S COUNSEL]: Would it be okay to add
"interpreter," just to give it some context?

THE COURT: Sure. I'll add it if you want.

[PPD'S Counsel]: Thanks.

Following that conversation, PPD raised no further objections to

the "reader" instruction, nor did it indicate in any way that it

continued to take issue with the instruction as modified by the

court and supplemented by PPD's suggestion.

Where a district court "add[s] instructional language to

address" a party's concern with a jury instruction, and the party

does "not object after being apprised of the court's proposed

modification or after hearing the modified instruction given to

the jury," the party forfeits its objection to the instruction.

Booker, 612 F.3d at 42. Such is the case here. By failing to

object to the modified instruction, PPD deprived the district court

of the opportunity to cure the alleged defect. See Flynn, 377

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F.3d at 25.5 Indeed, as the above colloquy makes clear, PPD's

limited post-revision request and its silence otherwise signaled

that it was not pressing an objection to the negotiated, revised

version.

Because PPD forfeited its argument as to the jury

instruction, we review the "reader" instruction for plain error

only. In reviewing for plain error, we "resuscitate a forfeited

argument only if the appellant demonstrates that (1) an error

occurred (2) which was clear or obvious and which not only

(3) affected the appellant's substantial rights, but also

(4) seriously impaired the fairness, integrity, or public

reputation of the judicial proceedings." Dávila v. Corporación de

P.R. para la Difusión Pública, 498 F.3d 9, 14–15 (1st Cir. 2007)

(cleaned up).

PPD suggests that Menninger has, in turn, waived her
5

forfeiture argument by failing to raise it in her opposition to
PPD's posttrial motions. For support, it cites United States v.
Tiru-Plaza, 766 F.3d 111, 118 n.12 (1st Cir. 2014), and Rivera-
Carrasquillo v. Centro Ecuestre Madrigal, Inc., 812 F.3d 213, 233
n.32 (1st Cir. 2016). In Tiru-Plaza, we elected to "skip over any
possible waiver argument and . . . treat the claim on its merits"
where the opposing party apparently "did not raise a claim of
waiver" at all, even on appeal. 766 F.3d at 118 n.12. Similarly,
in Rivera-Carrasquillo, we declined to treat an argument as waived,
despite "superficial treatment" of the argument, where the
opposing party "ha[d] not asked us to find" waiver on appeal. 812
F.3d at 233 n.32. Neither rationale applies here, because
Menninger did identify and brief the forfeiture issue before us,
giving PPD the opportunity to raise its own arguments in reply.
We therefore decline PPD's invitation to treat the forfeiture issue
as, itself, waived.

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We see no "clear or obvious" error in the lower court's

accurate quotation of the ADA's statutory text, see 42 U.S.C.

§ 12111(9)(B), nor do we think the instruction "seriously impaired

the fairness, integrity, or public reputation of the judicial

proceeding[]," Dávila, 498 F.3d at 14–15. It is true that under

some circumstances, a legally accurate jury instruction may

nonetheless be misleading. For example, in Drumgold v. Callahan,

707 F.3d 28 (1st Cir. 2013), we held that a plaintiff was entitled

to a new trial where the jury instructions accurately described a

causation standard that did not apply to the plaintiff's claims.

Id. at 53–54. In this vein, PPD argues that the "reader" example

could have misled the jurors, because the ADA uses "reader" to

mean something different from what Menninger's expert meant when

she described a reader as someone who would make presentations on

Menninger's behalf. PPD contends that such presentations

constituted essential functions of Menninger's job. And as PPD

correctly observes, it is generally not reasonable to expect an

employer to accommodate a disability by relieving an employee of

the responsibility to perform essential functions. See Mulloy v.

Acushnet Co., 460 F.3d 141, 153 (1st Cir. 2006); Kvorjak v. Maine,

259 F.3d 48, 57 (1st Cir. 2001).

It is by no means clear, however, that jurors would have

construed the court's reference to a "reader" as including a person

who would perform Menninger's essential job functions. Our

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precedent instructs us to evaluate a jury instruction "in the

context of the instruction as a whole." Richards v. Relentless,

Inc., 341 F.3d 35, 48 (1st Cir. 2003). Here, the court's list of

examples was immediately followed by its qualifying statement that

"[a]n accommodation is not reasonable if it requires eliminating

or excusing an inability to perform any essential functions of the

job, if it requires shifting any of the essential functions . . .

to other employees, if it requires creating a new position for the

disabled employee, or if it creates an undue hardship." Nor does

the hiring of a reader, however construed, appear to have played

any significant role in closing arguments. Menninger's counsel

mentioned it once, immediately followed by the statement that the

case was not "really about" that accommodation request. Instead,

Menninger's counsel primarily argued that PPD refused to exchange

information or seek, in good faith, a way for Menninger to perform

her essential job functions. All in all, there was no plain error

here.

As its final sally, PPD seeks to overturn the ten-

million-dollar punitive-damages award. First, it contends that

the award was "almost certainly the direct result of the erroneous

'reader' instruction." For the reasons discussed above, we discern

no plain error in the district court's "reader" instruction, and

thus PPD cannot prevail on that basis.

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Second, PPD argues that as a matter of law, Menninger

failed to show PPD's "malice" or "reckless indifference." The

district court found that PPD preserved this particular claim of

error, and Menninger does not challenge that conclusion. We

therefore proceed to the merits of PPD's argument that the evidence

could not have supported the state-of-mind elements of Menninger's

punitive-damages claim.6 We review de novo a preserved challenge

to the sufficiency of the evidence underlying a punitive-damages

award, viewing the evidence "in the light most hospitable to the

jury's verdict." Méndez-Matos v. Municipality of Guaynabo, 557

F.3d 36, 40, 48 (1st Cir. 2009) (citation omitted).

Punitive damages are sometimes either unavailable, see,

e.g., Barnes v. Gorman, 536 U.S. 181, 189 (2002) (holding that

punitive damages are not available in private suits brought under

Title VI of the Civil Rights Act), or are subject to heightened

burdens of persuasion, see, e.g., Pac. Mut. Life Ins. Co. v.

Haslip, 499 U.S. 1, 23 n.11 (1991) (observing that many states

require "clear and convincing evidence" to justify a punitive-

6 While PPD describes the punitive-damages award as "grossly
excessive," it does not develop any argument that the award was
unlawfully excessive. See Rodríguez-Marín v. Rivera-González, 438
F.3d 72, 85 (1st Cir. 2006) (explaining the "three guideposts" for
determining whether a punitive-damages award is unlawful). It has
thus waived any such argument. See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation,
are deemed waived.").

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damages award). But the federal law under which Menninger has

sued expressly authorizes the recovery of punitive damages, and it

imposes no heightened burden of proof. 42 U.S.C. § 1981a(b)(1).

That law permits punitive damages when an employee demonstrates

that her employer "engaged in a discriminatory practice . . . with

malice or with reckless indifference to the federally protected

rights of an aggrieved individual." Id. Where the "discriminatory

practice involves the provision of a reasonable accommodation," an

employer can avoid punitive damages if it "demonstrates good faith

efforts . . . to identify and make a reasonable accommodation."

Id. § 1981a(a)(3). Because "[t]he Massachusetts standard is

similar[,] . . . [o]ur discussion of [punitive damages] under

federal law . . . embraces the state-law issue as well." Tobin v.

Liberty Mut. Ins. Co., 553 F.3d 121, 148 n.40 (1st Cir. 2009). A

plaintiff must prove not only that her employer intentionally

discriminated against her, but also that it did so "in the face of

a perceived risk that its actions would violate federal law." Id.

at 148 (cleaned up).

The district court rejected PPD's post-verdict challenge

to the punitive-damages award because "the evidence . . .

permitt[ed] a reasonable jury to conclude PPD acted with malice or

reckless indifference to Menninger's rights in the course of its

responses to her request for an accommodation and/or her HR

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complaint." Specifically, the district court endorsed Menninger's

arguments that the evidence supported findings that PPD (1) sought

to coerce Menninger to quit, (2) manufactured false grounds to

terminate her, and (3) established new goals and expectations for

her role that it knew were impossible, all because of Menninger's

disability or in retaliation for disclosing her disability and

requesting accommodations. The district court further adopted

Menninger's argument that a reasonable jury could have concluded

that PPD perceived a substantial "risk that its actions would

violate federal law," as evidenced by its decision to conduct a

sham investigation of her complaint, as well as its witnesses'

contradictory testimony at trial. Tobin, 553 F.3d at 148.

After carefully reviewing the record, we agree with the

district court that a reasonable jury could have viewed the

evidence in a manner supporting the punitive-damages award.

We note at the outset that we see no evidence of malice

in PPD's decision to increase Menninger's public-facing

responsibilities before ever learning of her disability, nor in

its initial response to her first request for accommodation on

January 11, 2018. Instead, the trouble began when Menninger

submitted a second request for accommodations on February 14. On

February 28, St. John sent an email to Ballweg in which he

referenced "delicately working [Menninger] out," stated that

Mekerri was meeting with Menninger that day, and noted that PPD

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had "[given] only slightly on two out of five items that

[Menninger's] physician requested." That same day, Mekerri and

St. John met with Menninger and, according to Menninger's

testimony, gave her only two options: take an immediate exit

package, or transition into a temporary consulting role before

exiting.

An employer does not necessarily act with malice when it

illegally attempts to terminate an employee. As the Supreme Court

has explained, "[t]here will be circumstances where intentional

discrimination does not give rise to punitive damages

liability . . . [because the employer] discriminates with the

distinct belief that its discrimination is lawful." Kolstad v.

Am. Dental Ass'n, 527 U.S. 526, 536–37 (1999). Thus, in Tobin, we

rejected a proposed punitive-damages instruction where the

employer had at most "misjudged the reasonableness of the

accommodations requested," and there was no evidence of the

employer's "intentional or reckless indifference to [the

plaintiff's] federal rights" beyond its failure to accommodate him

and "general insensitivity to his circumstances." 553 F.3d at

149. Similarly, if PPD believed that it had no legal duty to

further accommodate Menninger's disability -- for example, because

her disability prevented her from completing her job's essential

functions -- its failure to accommodate her further would not have

been malicious.

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But the jury had reason to doubt whether PPD so believed.

At trial, Ballweg testified that it would have been "inappropriate"

for PPD to seek an exit strategy for Menninger at the time of the

February meeting and emails, because "[t]he interactive dialogue,

discussions with Dr. Menninger, had not resolved." She further

testified that if Mekerri had sought, in the February 2018 meeting,

"to work Dr. Menninger out of the organization," that would have

been "unfair treatment" of Menninger, the kind that Ballweg was

tasked with investigating later that spring. She testified that

St. John had not informed her of his efforts to seek an exit

strategy for Menninger (despite an email from St. John to Ballweg

plainly referencing his efforts to "work[ Menninger] out"). She

also testified that the email about "working [Menninger] out" might

refer to the fact that Menninger worked remotely and "wasn't on

site at the Central Lab." In light of this puzzling testimony

from PPD's head of HR, the jury might reasonably have concluded

that PPD did not, in fact, believe that it could lawfully terminate

Menninger upon receiving her second request for accommodations.

To the contrary, the jury might have found that as of February

2018, PPD believed that it was still in the midst of the

interactive process to determine whether it could reasonably

accommodate Menninger's disability. And the jury could further

have concluded that by nonetheless seeking to "work[ Menninger]

out" in February 2018, PPD acted "in the face of a perceived risk

- 28 -
that its actions would violate federal law." Tobin, 553 F.3d at

148 (cleaned up).

PPD's subsequent behavior provided further support for

Menninger's claim that, rather than believing it could lawfully

discharge Menninger because of her disability, PPD instead sought

to fabricate other grounds to terminate her or else pressure her

to quit. The jury saw evidence that in April 2018, Mekerri's

supervisor emailed Ballweg's supervisor to ask about the "timing

on Lisa Menninger's exit." The email was forwarded to Ballweg,

who responded that termination was "not close" unless Menninger

"self-select[ed]" (i.e., quit), because Menninger got a "3 rating

for 2017" and PPD was "just now starting to document" her supposed

performance issues. The jury also heard testimony from St. John

suggesting that he had been "coaching" Mekerri to document

performance issues for Menninger. It heard testimony from Ballweg

and St. John that St. John helped Mekerri draft new performance

goals for Menninger, saw a document indicating that those goals

included "Elimination of Lab Issues," and heard testimony that

"elimination of all lab errors" was "an impossible goal,"

supporting Menninger's theory that she was being set up to fail.

Taken together, this evidence could have permitted the jury to

infer that -- far from believing it could legally fire Menninger

because her social anxiety prevented her from doing her job -- PPD

sought to conceal its unlawful motivations by manufacturing

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performance-based grounds for terminating Menninger, or creating

conditions so unpleasant that she would "self-select" (that is,

quit).

Finally, in weighing this evidence, the jury could have

also considered PPD's response to Menninger's discrimination

complaint in the spring of 2018. When Menninger made an internal

complaint that she was facing unfair criticism at work because she

had disclosed her disability and requested accommodations, Ballweg

was the PPD employee who investigated the complaint. Ballweg

testified that it would be "inappropriate" for an internal

investigation of a discrimination complaint to be conducted by

someone who was "involved directly in" the events complained of.

But emails in evidence and Ballweg's own testimony indicated that

Ballweg was deeply involved in PPD's efforts to "work[ Menninger]

out." The evidence supported an inference that Ballweg oversaw

the efforts to reduce Menninger's performance rating and document

criticisms of Menninger's work, updated higher-ups on the progress

of "Menninger's exit" and the efforts to create a record of poor

performance, and helped draft communications from Mekerri

assigning Menninger new, allegedly impossible goals and

identifying supposed performance issues. Thus, the jury could

have concluded not only that Ballweg was an inappropriate person

to investigate Menninger's complaint, but also that by conducting

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the investigation herself, Ballweg deliberately sought to conceal

any wrongdoing.

We emphasize that the jury was by no means required to

draw these inferences. A reasonable jury could have believed that

Menninger could not do the job as newly envisioned without

accommodations that were unreasonable. The jury could have elected

not to credit Ballweg's assessment that it would have been

"inappropriate" to seek an "exit strategy" for Menninger in

February 2018; it could have found, instead, that PPD believed in

good faith that it could lawfully "work[ Menninger] out" because

her condition prevented her from doing her job. And it could have

credited Ballweg's testimony that she conducted a fair and

impartial investigation of Menninger's complaint. But on appeal,

we are bound to draw our factual inferences "in the light most

hospitable to the jury's verdict." Casillas-Díaz v. Palau, 463

F.3d 77, 79 (1st Cir. 2006); see also Soto-Feliciano v. Villa

Cofresi Hotels, Inc., 779 F.3d 19, 30 (1st Cir. 2015) ("A rational

jury could draw either inference, regardless of which may be the

stronger of the two. But we may not supplant the jury's role by

weighing the strength of those competing inferences for

ourselves.").

In sum, the jury could reasonably have found that PPD,

fearing demands by Menninger that it make unwanted accommodations,

began a campaign to manufacture termination grounds or pressure

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Menninger to quit and then sought to cover up those efforts, thus

demonstrating its knowledge "of a perceived risk that its actions

would violate federal law." Tobin, 553 F.3d at 148 (cleaned up);

cf. Passantino v. Johnson & Johnson Consumer Prods., Inc., 212

F.3d 493, 516 (9th Cir. 2000) (holding that punitive damages were

available against an employer where the jury could reasonably "have

found that defense witnesses lied (both to [the plaintiff] and at

trial) about their actions, as part of a continuing effort to cover

up their campaign against her"); Brown v. Advanced Concept

Innovations, LLC, No. 21-11963, 2022 WL 15176870, at *5 (11th Cir.

Oct. 27, 2022) (per curiam) (holding that an ADA punitive-damages

award was supported by evidence that, among other things, the

employer "created documentation falsely suggesting that [the

plaintiff] had voluntarily resigned, rather than been terminated

for not being able to perform the duties of the position"). On

the record before us, these determinations were not beyond the

jury's ken. See United States v. Mehanna, 735 F.3d 32, 47 (1st

Cir. 2013) ("It is the jury's role -- not that of the Court of

Appeals -- to choose between conflicting hypotheses, especially

when such choices depend on the drawing of inferences and elusive

concepts such as motive and intent.").

PPD last claims that because the district court rejected

Menninger's theory that her employer failed to engage in an

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interactive process, Menninger cannot show malice or reckless

indifference. PPD is correct that the district court granted

partial summary judgment on Menninger's no-interactive-process

theory. But the court simultaneously refused to grant PPD summary

judgment on some of Menninger's disparate-treatment and

retaliation theories and on the issue of pretext, in a manner

difficult to reconcile with PPD's view that the district court

issued a blanket finding of good faith. Specifically, the district

court found triable issues of fact as to whether PPD decided to

make Menninger's job "more difficult" in February 2018 because of

her disability; sought to coerce her to quit in retaliation for

disclosing her disability and requesting accommodations; excluded

her from hiring and recruitment responsibilities in retaliation

for disclosing her disability; and deliberately conducted a "sham

investigation" of Menninger's complaint to obscure its actions.

And it found that a jury could view "internal communications among

senior leadership and HR showing efforts to push Menninger out" as

evincing "pretext for discrimination based on [Menninger's]

disability."

In this context, we read the district court's summary-

judgment ruling as simply rejecting a standalone claim that PPD

violated state (and possibly federal) law by failing to engage in

any interactive process whatsoever. This legal

conclusion -- resting on the district court's finding that PPD did

- 33 -
not "completely disregard[]" Menninger's request for

accommodations -- is a far cry from the factual finding that PPD

wishes to attribute to the district court, i.e., that PPD engaged

in "good faith" in all its dealings with Menninger. Indeed, the

district court itself offered a different understanding of its

summary-judgment holding: In its response to PPD's posttrial

motions, the court found that the evidence permitted a finding of

malice or reckless indifference, and it stated that "[t]o the

extent [the district court had] granted summary judgment on any

discrete legal theory or claim, its instructions to the jury

carefully described the law in a manner entirely consistent with

those rulings, and PPD has not suggested . . . otherwise"

(emphases in original). We are thus loath to reach beyond the

plain language of the district court's summary-judgment ruling to

infer an implicit finding of good faith.

We therefore decline to strike the jury's punitive-

damages award.

III.

For the foregoing reasons, we affirm on all counts the

district court's final judgment and its order denying PPD's

posttrial motions.

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