“Working an Employee Out” after an Accommodation Request: The First Circuit’s Hard-Line on Rule 50 Preservation and Punitive Exposure in Menninger v. PPD Development, L.P.

Introduction

In Menninger v. PPD Development, L.P., No. 23-2030 (1st Cir. 2025), the First Circuit affirmed a $24 million jury verdict—including $10 million in punitive damages—for a senior laboratory executive whom the jury found was discriminated and retaliated against because of her social-anxiety disorder.

More than a fact-bound ADA dispute, the opinion crystallises two doctrinal touchstones:

Rule 50 Preservation. A perfunctory, one-sentence “directed-verdict” request devoid of legal or factual grounds does not preserve any sufficiency-of-the-evidence arguments for post-verdict review; plain-error review will not rescue the default in the ordinary civil case.
Punitive Damages for “Exit Strategies.” Jurors may infer “malice or reckless indifference” under 42 U.S.C. § 1981a from internal e-mails plotting to “work” a disabled employee “out,” fabricate criticisms, and conduct a sham investigation—exposing employers to eight-figure punitive awards.

Summary of the Judgment

The jury found PPD liable under the ADA and Massachusetts Chapter 151B for (a) failure to accommodate, (b) disparate treatment, and (c) retaliation, awarding $1.565 m back pay, $5.465 m front pay, $7 m emotional distress, and $10 m punitive damages.
PPD’s post-trial motions for judgment as a matter of law (JMOL), new trial, and remittitur were denied.
On appeal PPD raised three issues: (i) legal sufficiency of the evidence, (ii) an allegedly misleading “reader” jury instruction, and (iii) lack of basis for punitive damages.
The First Circuit:
- Held that PPD’s skeletal Rule 50(a) motion preserved nothing; consequently, its sufficiency challenge was unreviewable.
- Found the “reader/interpreter” instruction textually correct, not misleading, and—because no contemporaneous objection was made—reviewed at most for plain error (none found).
- Affirmed punitive damages, concluding the evidence permitted a finding of malice or reckless indifference and rejecting PPD’s argument that earlier summary-judgment rulings foreclosed punitive exposure.

Analysis

1. Precedents Cited and Their Influence

The panel’s reasoning is steeped in both ADA doctrine and procedural jurisprudence.

Rule 50 Suite
- Zachar v. Lee, Correa v. Hospital San Francisco, and Fed. R. Civ. P. 50 advisory notes—underscore that a Rule 50(b) motion “is only a renewal” of the Rule 50(a) motion.
- Blockel v. J.C. Penney (1st Cir. 2003) was distinguished; there, the trial judge cut off counsel’s explanation, whereas here the judge invited detail but counsel demurred.
- Chestnut v. City of Lowell and Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc. debate whether appellate courts may entertain unpreserved sufficiency claims; the panel declined to resolve the broader question, finding the case non-exceptional.
ADA and Retaliation Cases
- Tobin v. Liberty Mutual—benchmarks punitive damages: malice or reckless indifference requires acting “in the face of a perceived risk” of illegality.
- Kolstad v. ADA—Supreme Court’s pivotal punitive-damages standard applied.
- Passantino (Ninth Cir.) and Brown v. Advanced Concept Innovations (Eleventh Cir.)—cited to buttress that scheming and cover-ups can support punitive awards.

2. The Court’s Legal Reasoning

a. Rule 50 Preservation

Rule 50(a)(2) demands that a movant “specify” the law and facts warranting judgment. PPD’s motion—“A motion for directed verdict, Your Honor”—did not. The court counted multiple subsequent opportunities to flesh out the motion; counsel remained silent.

Because Rule 50(b) arguments can be based only on Rule 50(a) grounds, PPD’s post-verdict sufficiency attack was procedurally barred. The panel refused even plain-error review, characterising civil forfeiture as near-absolute absent the rare Chestnut-type miscarriage of justice.

b. Jury Instruction (“Reader/Interpreter”)

The ADA lists “qualified readers or interpreters” as exemplars of reasonable accommodation (§ 12111(9)(B)). The district court quoted this, then reminded jurors that no accommodation is reasonable if it eliminates essential job functions or imposes undue hardship.

PPD’s initial objection—that “reader” was vision-specific—was mollified when the court added clarifying language; PPD voiced no further protest, thereby forfeiting the claim. On plain-error review the panel saw no misleading effect, especially given closing arguments’ negligible emphasis on the “reader” request.

c. Punitive Damages

Malice or reckless indifference exists when the employer knew its conduct carried a substantial risk of violating federal law. The panel highlighted evidence that:

HR e-mails spoke of “delicately working [Menninger] out” immediately after her second accommodation request.
Management coached the supervisor to “document criticisms,” lowering performance ratings as a pre-textual trail.
An internal “investigation” was led by the very HR official implicated in the scheme, supporting findings of a sham process.

From these facts a jury could infer that PPD (1) recognised ongoing ADA obligations, yet (2) tried to orchestrate Menninger’s ouster or forced resignation and obscure the motive—conduct squarely within Kolstad’s punitive ambit.

3. Likely Impact of the Decision

Procedural Rigor. Employment litigators must articulate specific Rule 50(a) grounds; “placeholder” motions risk wholesale forfeiture. Trial judges may likewise insist on clarity, knowing appellate review will be unforgiving.
HR & Compliance Protocols. The decision signals that internal e-mails planning an “exit strategy” post-accommodation can fuel punitive damages. Employers should ensure:
- Good-faith interactive processes are documented, not contrived.
- Investigations are neutral; investigators uninvolved in the underlying events.
- No retaliatory performance escalations follow a protected request.
Litigation Strategy. Plaintiffs’ counsel can leverage discovery of “work-out” or “self-select” language to support punitive exposure. Defendants must be prepared to address malice-inducing evidence—mere illegality is insufficient, but cover-ups are potent.
Clarifying the “Exceptional Case” Escape Hatch. Although the panel skirted a definitive ruling on Unitherm’s scope, its reluctance to invoke “miscarriage of justice” indicates the doorway is nearly sealed in civil trials within the First Circuit.

Complex Concepts Simplified

Rule 50(a) vs. Rule 50(b):
- 50(a) Motion—made before the jury deliberates; must spell out why the opponent’s evidence is legally insufficient.
- 50(b) Motion—a “renewal” after verdict; one may not add new theories.
Plain-Error Review (Civil): An appellate safety-valve activated only when an error is clear, affects substantial rights, and impugns the trial’s fairness. The First Circuit rarely applies it to unpreserved sufficiency challenges.
Punitive Damages Standard (§ 1981a): Plaintiff must show employer acted with “malice or reckless indifference” to federally protected rights; i.e., knew there was a legal risk and disregarded it.
Interactive Process: A collaborative dialogue between employer and disabled employee to identify feasible accommodations. While failure to engage may support liability, the First Circuit (like many courts) treats it as evidence, not a freestanding cause of action.

Conclusion

Menninger fortifies two cautionary lessons. First, procedural minimalism is perilous: a lawyer who utters a skeletal Rule 50 motion gambles away substantive appellate review. Second, retaliatory maneuvers masquerading as “performance management” can become the basis for blockbuster punitive awards when internal communications reveal an intent to circumvent disability protections.

For practitioners, the case underscores the synergy between sound trial practice (preserving issues with specificity) and substantive compliance (documenting genuine accommodation efforts). For employers, it is a stark reminder: ADA liability—and particularly punitive exposure—does not hinge merely on denying an accommodation; it can flow from the strategy and mindset adopted once a disability is disclosed.