553 F.3d 121 (1st Cir. 2009), 07-1764, Tobin v. Liberty Mut. Ins. Co.

Docket Nº:07-1764, 07-1765.
Citation:553 F.3d 121
Party Name:Kevin W. TOBIN, Plaintiff-Appellee/Cross-Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Appellant/Cross-Appellee.
Case Date:January 23, 2009
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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553 F.3d 121 (1st Cir. 2009)

Kevin W. TOBIN, Plaintiff-Appellee/Cross-Appellant,


LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Appellant/Cross-Appellee.

Nos. 07-1764, 07-1765.

United States Court of Appeals, First Circuit.

January 23, 2009

Heard June 5, 2008.

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Lisa J. Damon, with whom Susan W. Gelwick and Seyfarth Shaw LLP were on brief, for defendant-appellant.

Frank J. Frisoli for plaintiff-appellee.

Before TORRUELLA, LIPEZ and HOWARD, Circuit Judges.

LIPEZ, Circuit Judge.

A jury awarded plaintiff Kevin Tobin more than $1.3 million in damages based on the failure of his employer, Liberty Mutual Insurance Company, to accommodate his disability as required by federal and state law. The district court subsequently ordered a $90,000 remittitur, but rejected Liberty Mutual's contention that the evidence was insufficient to support either liability or the remaining damages award. The court also rebuffed the company's argument that the statute of limitations had run on Tobin's claims.

On appeal, Liberty Mutual renews its sufficiency and statute-of-limitations challenges and also argues that the district court erred in calculating prejudgment interest. Tobin cross-appeals, claiming that the district court erred in refusing to instruct the jury on punitive damages and denying attorney's fees pending final judgment. After careful review of the record, we affirm.


A. Prior Proceedings

Tobin was terminated by Liberty Mutual in January 2001 after working for the company for nearly thirty-seven years. For most of that time, he served as a sales

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representative responsible for selling insurance and assisting customers with needs related to their insurance policies. He had been under the care of a psychiatrist since 1976, was diagnosed with bipolar disorder in 1992, and had taken short-term disability leaves in 1997 and 1998.

Following his termination, Tobin filed this action against the company alleging, inter alia, disability discrimination, including a failure to accommodate, pursuant to the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § § 12101-12213, and the Massachusetts anti-discrimination statute, Mass. Gen. Laws ch. 151B (" Chapter 151B" ).1 Liberty Mutual defended against the claims by asserting that Tobin did receive certain accommodations and was not entitled to others, and that he was fired because of poor job performance.

In its initial consideration of the case, the district court granted summary judgment for Liberty Mutual on all claims. Tobin then appealed. See Tobin v. Liberty Mut. Ins. Co., 433 F.3d 100 (1st Cir.2005). We agreed with the district court that Tobin had failed to adduce evidence showing that the company's proffered reason for his discharge was pretextual. We noted that Liberty Mutual had " provided a full and well-documented account of Tobin's ‘ longstanding performance deficiencies,’ " id. at 105-06, which included failing to meet minimum quotas and standards and not showing up for meetings with supervisors. We therefore held that the district court correctly granted summary judgment on Tobin's pretext claim. Id. at 106.

We reached the contrary conclusion with respect to the " reasonable accommodation" claim. Under both the ADA and Chapter 151B, employers are required to assist an otherwise qualified employee who has a disability by providing reasonable accommodations that would enable him to perform his job. 42 U.S.C. § 12112(b)(5)(A); 2Mass. Gen. Laws ch. 151B, § 4(16).3 However, in making such accommodations, an employer is not obliged to alter an employee's essential job functions. Tobin, 433 F.3d at 107. After reviewing the evidence offered on Tobin's accommodation claim, we discerned a triable issue of fact as to whether Tobin would be able to perform the essential functions of his job if provided the accommodations he had requested. We therefore remanded that claim for further proceedings.4 The district

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court held an eleven-day jury trial that produced the verdict for Tobin that Liberty Mutual challenges in this appeal.

B. Tobin's Work Problems and Requests for Accommodation

1. History of Deteriorating Performance

Tobin's bipolar disorder affected his ability to do his job in a variety of ways. His focus and concentration were impaired, and he had difficulty prioritizing and completing work. Most tasks took him longer than in the past to accomplish, and he had difficulty transitioning from one task to the next. Multiple witnesses testified about the jumble of papers that typically covered his desk. Stress tended to worsen his problems in managing his workload. Tobin's limitations made it difficult for him to find prospective customers in sufficient numbers to meet the company's sales goals. Although Tobin had accumulated a large " book" of business over the years-insurance policies that renewed and continued to bring in significant profits in annual premiums-by the early 1990s he began to routinely fall short of annual quotas for new policy sales.

Tobin's supervisor in the mid-1990s, Mike Robin, first took action against Tobin in 1996, giving him a written warning stating that failure to meet his sales requirements would lead to probation and possible termination. Although Liberty Mutual waived that probationary period because Tobin's wife was ill, Robin implemented a nine-week warning period on November 21, 1997, requiring Tobin to improve his performance by increasing sales and participating in sales initiatives.

Two weeks into that period, Tobin took his first short-term disability leave of absence, which extended from December 1997 until June 1998. He took a second disability leave from September 1998 until January 1999. Each time he returned to work, he was placed on a reduced schedule for a month before resuming full-time duties. During his re-entry periods, he received additional training and met with his supervisor regularly to review his performance and discuss ways that he could increase his sales. After both leaves, when he returned to full-time work, the warning period that had been suspended when he took his first leave was reinstated.

When Tobin returned from the second leave in January 1999, Liberty Mutual hired a nurse to assist him in transitioning back into full-time sales work. Although he managed to sell enough policies in February to avoid a threatened four-week probation, his then-supervisor, Manina Schwitters, stated in a letter dated March 8, 1999, that she would monitor Tobin's sales results in four-week increments for the rest of the year. He failed to satisfy his quota in March (selling only ten policies instead of twenty-four), but successfully completed the resulting probation by selling the required thirty policies. His performance continued to deteriorate, however; he was given another warning period in October 2000, and then placed on probation from November 27, 2000 through January 5, 2001. He failed to sell the required thirty policies during that

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period and was terminated on January 10, 2001 for consistent poor performance.

2. Requests for Accommodation

It is undisputed that Tobin repeatedly asked Liberty Mutual to help him achieve his performance goals by giving him two forms of assistance: (1) providing him with increased support staff to respond to customer service calls, which would allow him to devote more time to new sales, and (2) assigning him to manage a " Mass Marketing" account. Mass Marketing (" MM" ) accounts are group insurance programs offered to businesses and other institutions in which employees or members are able to purchase insurance policies at a discount. Both the insurance company as a whole and individual sales representatives highly value MM accounts because they offer access to a large volume of potential clients in a single location. It is not uncommon for more than a dozen individuals whose employer has newly signed up for an MM account to meet with a sales representative at their workplace in back-to-back time slots on a single day.

Tobin sought to prove at trial that he would have been able to overcome the difficulties caused by his disability, and could have met his quotas, if Liberty Mutual had given him adequate customer service support and assigned him to an MM account. He claimed that these accommodations would have compensated for the disadvantages caused by his disability without altering the essential functions of his job. He elicited testimony indicating that he had difficulty finding prospective clients, but that he had good closing skills once he was engaged in a sales call. He also suggested that the time he had available to prospect for new clients was disproportionately consumed by his need to respond to service calls from his large number of long-time clients.

In response, Liberty Mutual offered evidence that Tobin was provided with the support staff he needed and that he was not qualified to handle an MM account. Liberty Mutual argued that MM accounts were distributed solely on the basis of merit to sales representatives who were actively pursuing other such accounts and who otherwise were meeting their sales quotas. In addition, company representatives testified that managing an MM account required strong organizational and time-management skills because of the sales representative's need to move from task to task when meeting in rapid succession with many individuals. Such circumstances also made MM sales encounters particularly stressful. In effect, the company attempted to show that Tobin could not have done the job even with the accommodation of an MM assignment and Liberty Mutual was therefore not obliged to make such an accommodation.

Liberty Mutual witnesses also testified about the service support that Tobin received. In addition to service representatives specifically assigned to...

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