Retaliation for Accommodation Requests: Clarifying Employer Liability under M.G.L. c. 151B

Introduction

The First Circuit’s decision in Moore v. Industrial Demolition LLC, 23-1697 & 23-1703 (1st Cir. May 13, 2025), addresses two key questions under Massachusetts anti-discrimination law (M.G.L. c. 151B): (1) whether an employee’s request for a reasonable accommodation can independently support a retaliation claim, and (2) what constitutes an “adverse action” in the accommodation context. In Moore, Eric Moore injured his hip on the job, returned with a doctor’s restriction note, and was told by his supervisor—Roger Oberkramer—to “hit the gate and don’t come back.” The jury found Industrial Demolition liable both for failing to accommodate and for retaliation. On appeal both parties challenged the verdict; the First Circuit affirmed, holding that the retaliation theory alone sustained the award and that directing an employee to “hit the gate” can amount to an actionable termination.

Summary of the Judgment

The Court of Appeals for the First Circuit affirmed the district court’s denial of post-verdict motions. Key holdings:

An employee need not prove a “handicap” to maintain a retaliation claim under M.G.L. c. 151B § 4(4); a request for reasonable accommodation is protected activity.
“Hit the gate and don’t come back” qualifies as an “adverse action”—in effect, a termination—under Massachusetts law.
A general jury verdict on multiple theories is sustainable if one theory (retaliation) independently supports the award.
The employer’s post-termination admission of willingness to “work it out” did not undermine the adverse-action finding.
Punitive damages were properly withheld where senior management lacked prior notice of the discriminatory conduct.
The collateral-source rule did not bar offset for an NLRB settlement payment directly from the employer.

Analysis

1. Precedents Cited

Galarneau v. Merrill Lynch, 504 F.3d 189 (1st Cir. 2007) – standard of review for jury verdicts.
Reed v. LePage Bakeries, 244 F.3d 254 (1st Cir. 2001) – requisites of a reasonable accommodation request.
Wright v. CompUSA, 352 F.3d 472 (1st Cir. 2003) – request for accommodation is protected activity.
Abramian v. Harvard Univ., 731 N.E.2d 1075 (Mass. 2000) – retaliation claim independent of underlying discrimination.
Edwards v. Commonwealth, 174 N.E.3d 1153 (Mass. 2021) – “hit the gate” can effectuate a termination.
Dartt v. Browning-Ferris, 691 N.E.2d 526 (Mass. 1998) — application of ADA jurisprudence to M.G.L. c. 151B.

2. Legal Reasoning

Federal diversity jurisdiction requires application of Massachusetts substantive law (Erie). Under M.G.L. c. 151B:

Failure to Accommodate ( § 4(16) ) – employee must prove (a) qualifying handicap, (b) reasonable accommodation requested, (c) employer’s undue hardship defense. The First Circuit noted a split over whether temporary impairments qualify but declined to resolve it, finding the retaliation count sufficient.
Retaliation ( § 4(4) ) – protected activity (opposition to prohibited practice or request for accommodation), adverse action, causal link. The Court held that a request for reasonable accommodation need not prove the underlying claim to be actionable as retaliation.

The First Circuit applied a “harmless‐error” analysis to uphold a general verdict where the retaliation theory alone sufficed (cf. Davis v. Rennie, 264 F.3d 86 (1st Cir. 2001)). It further rejected the employer’s Rule 50(b) challenge to the retaliation verdict, finding sufficient evidence that:

Moore clearly requested restrictions matching his doctor’s note;
His supervisor’s “I don’t give an F about the office” comments demonstrated animus;
Directing him to “hit the gate and don’t come back” constituted an involuntary discharge (Edwards).

3. Impact

This decision is instructive for Massachusetts employers and practitioners:

Retaliation Focus – emphasizes that adverse action for a protected accommodation request is independently actionable, even if the accommodation claim fails or the impairment is of uncertain duration.
Termination Phrases – “hit the gate” or similar directives can amount to a firing without explicit “you’re fired.”
Jury Instructions – a general verdict form need not be set aside if one claim alone supports the damages award.
Collateral Source Rule – offset for direct settlements with the employer is not barred as a traditional “collateral source” item.
Punitive Damages – require employer notice of discriminatory conduct by senior management; post-hoc remedies alone do not usually suffice.

Complex Concepts Simplified

Rule 50(b) vs. Rule 59(a) – Rule 50(b) is a renewed motion for judgment as a matter of law; Rule 59(a) authorizes new trials if verdicts defy law, weight of evidence, or justice.
General Verdict Harmless Error – when a jury awards damages on multiple theories, reversal is unnecessary if at least one theory stands.
Collateral Source Rule – ordinarily prevents reduction for third-party benefits (insurance, workers’ comp.). A direct settlement from the employer is not a “collateral” benefit.
Adverse Action – beyond formal “termination,” courts look to whether a reasonable employee would view the act as involuntary separation.

Conclusion

Moore v. Industrial Demolition LLC cements two cornerstones in Massachusetts employment law: that an employee’s request for a reasonable accommodation is protected activity forming the basis of a retaliation claim, and that colloquial directives like “hit the gate” can effectuate an actionable termination. Employers must treat accommodation requests carefully and document any legitimate business reasons for discipline or discharge. For employees, Moore confirms that even short-lived impairments and blunt managerial directives remain within the protective ambit of M.G.L. c. 151B. Future litigants will rely on Moore to press retaliation claims where accommodation requests trigger unfair reprisals, and trial courts will follow its guidance on jury instructions, general verdicts, and the limits of collateral source offsets.