United States Court of Appeals
For the First Circuit
No. 25-1732
JOHN BUCCIERI,
Plaintiff, Appellant,
v.
BREWSTER AMBULANCE SERVICE, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Margaret R. Guzman, U.S. District Judge]
Before
Dunlap, Lynch, and Kayatta,
Circuit Judges.
Andrew Rozynski and Eisenberg & Baum, LLP for appellant.
Sarah B. Herlihy and Herlihy Law LLC for appellee.
July 13, 2026
LYNCH, Circuit Judge. In this Americans with
Disabilities Act ("ADA") case, appellant John Buccieri appeals
from the district court's grant of a Federal Rule of Civil
Procedure 50(b) motion filed by Brewster Ambulance Service, Inc.
("Brewster") and entry of judgment as a matter of law ("JMOL")
following the liability phase of a jury trial. Buccieri v.
Brewster Ambulance Serv., Inc., 792 F. Supp. 3d 273, 283 (D. Mass.
2025). The jury had returned a verdict for Brewster on Buccieri's
claim of failure to hire for a Chair Car Driver position, finding
that Brewster had "prove[d] by a preponderance of the evidence
that providing Mr. Buccieri with the requested accommodation(s)
would have been an undue hardship to Brewster Ambulance and/or
posed a direct threat to Mr. Buccieri or others." The district
court held on the evidence presented no reasonable jury could
conclude that Brewster had failed to engage in an interactive
process as required by the ADA. Id. at 282-83.
On de novo review, we affirm the district court's entry
of JMOL. We hold that no reasonable jury could conclude that
there was a reasonable accommodation that would have allowed
Buccieri to perform the essential communications functions of the
driver positions without undue hardship to Brewster.
- 2 -I.
We describe the facts of record that were not materially
disputed, largely documented in contemporaneous writings or
testimony from the trial.
A.
Brewster is a family-owned medical transportation
services company. Collectively, Mark Brewster, the President and
CEO, his brother and co-owner George Brewster Jr., and his father
George Brewster Sr. have close to a hundred years of experience in
the medical transport business.1 Brewster employs approximately
1,800 people and operates approximately 300 vehicles daily,
including ambulances, Day Care Vans, and Chair Cars.
Chair Cars are vehicles that transport a single
wheelchair-using patient, typically to medical appointments.
According to the undisputed testimony of Mark and of Brewster
employees with expertise in its Chair Car program, Brewster staffs
Chair Cars with only one driver, and Chair Car Drivers must
communicate frequently with patients, dispatch, and medical
1 Mark Brewster testified that his great-grandfather founded
the original Brewster Ambulance company in 1906, which was run by
his family and which Mark's father, George Brewster Sr., sold in
1997. Mark and his brother, George Brewster Jr., restarted the
company in its current iteration in 2010. George Sr. came out of
retirement in 2015 to help the company during an expansion phase
and re-retired in 2023. All three were involved in the
decisionmaking in this case. For clarity, the opinion refers to
the three Brewsters by their first names.
- 3 -facilities during day and night shifts. "[E]very [Chair Car] ride
is required to have a medical necessity form completed by a
licensed health care provider" attesting that the patient being
transported has a medical reason why he or she cannot be
transported by other means for Brewster to receive insurance
reimbursement for the ride. The patients who qualify for Chair
Car services typically come from skilled nursing facilities where
they receive supervised care due to their medical issues. In
Brewster's experience, as Mark testified at trial, such patients
from time to time experience medical emergencies while in Chair
Cars, including heart attacks, strokes, vomiting, and problems
with oxygen tanks. Such emergencies require immediate responses
from the driver of the Chair Car. All drivers, as a result, must
have first responder training and be CPR certified, and are trained
to call 911 in a medical emergency.
In addition, Brewster's Chair Car supervisor, William J.
Sefton, testified about other patient incidents requiring
immediate responses from the driver, including a patient who got
out of the wheelchair while the van was moving and had to be told
by the driver to sit back down, and a patient falling out of the
wheelchair due to a broken seatbelt. Sefton also testified that
Chair Car Drivers monitor patients visually via the rearview
mirror. He further testified that, from his experience as a Chair
Car Driver, it is helpful when drivers talk to patients because it
- 4 -"puts them at ease" and helps "mak[e] sure that they're
comfortable."
Chair Car Drivers also frequently communicate with
dispatch in addition to talking to patients in the car. Dispatch
assigns patients to Chair Car Drivers and notifies the drivers of
the patients' names, locations, and destinations throughout the
day. Drivers must also notify dispatch every time there is a
status change, such as when they are arriving at a location,
beginning transport, and experiencing a delay. The number one
cause of distracted driving at Brewster is cell phone use.
Brewster uses a radio system for communications between
drivers and dispatch, which is highly reliable and generally has
no delays or downtime. Use of the radio system requires the driver
to contact dispatch by picking up a small microphone which is
clipped on the dashboard, depressing a button on the side of the
mic, and speaking into it. Mark testified that Brewster used a
radio-based communication system rather than a cell-phone-based
communication system because the radio system, unlike cell phones
or tablets, does not require the driver to remove their eyes from
the road to find the correct buttons or dial a number on the cell
phone. Mark's undisputed testimony stated that the number one
cause of accidents involving Brewster vehicles is distracted
driving. Drivers also must communicate with staff at the
facilities where patients are picked up and dropped off.
- 5 -B.
John Buccieri applied for a position as a Chair Car
Driver on January 10, 2019. Buccieri was born deaf, and his
primary language is American Sign Language ("ASL").2 Brewster
scheduled Buccieri for an interview with Joseph Hughes, a regional
manager who had no experience personally driving Chair Cars. 3
Before the interview, Hughes had internal conversations with
Brewster's Human Resources ("HR") Department about how Brewster
might reasonably accommodate a deaf Chair Car Driver. On
January 18, 2019, Hughes asked HR "what [Brewster] can offer as a
reasonable accommodation for [Buccieri's] disability and this
job," and Paul Mohnkern, Brewster's HR manager who also had no
personal experience driving Chair Cars, responded that evening and
identified relevant issues to discuss with Buccieri, including
"how will he handle dealing with the general public, and how will
2 At the time that Buccieri applied to Brewster, he had
previously worked for about four years at Advocates Inc. as a
residential counselor in a group home for deaf individuals. At
Advocates, part of his job included driving group home residents
to appointments, stores, and other locations, and Buccieri
testified that two residents he transported used wheelchairs.
Buccieri also testified he was able to communicate directly using
sign language with all of the Advocates residents. Buccieri had
also done delivery work for two years at Jerry's Marine Services,
and had been a volunteer firefighter for almost six years in
Florida.
3 As regional manager for the Worcester region, Hughes
managed day-to-day operations of approximately thirty ambulances
and about ten Chair Cars.
- 6 -he handle an emergency/ lift breaking/ less than great patient"
and "[h]ow will he properly and timely communicate with
[d]ispatch." Mohnkern noted that "[t]hose questions need to be
asked . . . because the[se] [issues] will happen daily" and
Brewster "need[s] to make sure [Buccieri], the patient, the
vehicle, and the company are safe." Hughes responded by email to
Mohnkern that he "would like to send [Buccieri] the job description
and have him prepare some answers for the interview on how he would
meet all the job requirements," which Mohnkern replied was "a great
idea." Hughes emailed the job description to Buccieri on
January 22, 2019, informing him of Brewster's concern that "[t]he
biggest hurdle will be communicating effectively with our dispatch
center and the clients," and adding that "[w]e are 100% radio
dispatched." Hughes also asked Buccieri to "[p]lease take a look
and think of ways we can help you achieve the requirements of the
job." The job description listed as a "Qualification[] and
Education Requirement[]" of the position that Chair Car Drivers
"[m]ust be able to read, speak and write English." It listed
"Roles and Responsibility" of the Chair Car Driver position,
including:
Preserve a secure environment for all
clients transported in a Brewster Ambulance
vehicle. Proper restraints will be used at
all times.
Communicate with Field Supervisor for any
scanning . . . and unusual occurrences.
- 7 -. . . .
Participate in assigned base duties [of
providing patient Chair Car transportation
services] to be performed in support of base
operations. Adherer [sic] to base duties as
well as policies and procedures of Brewster
Ambulance.
Cultivate a professional relationship
while interfacing with shift crews, Field
Supervisors, Customers and patients.
Provide safe and courteous
transportation to any client transported by
Brewster Ambulance Service.
Use proper and professional radio
etiquette at all times.
Hughes conducted the in-person interview with Buccieri
on January 24, 2019, which Buccieri attended with an in-person ASL
interpreter. The only accommodation that Buccieri requested from
Brewster was to use Video Relay Services ("VRS") to communicate
with dispatch. VRS is a federally funded service that "enables
persons with hearing disabilities who use [ASL] to communicate
with voice telephone users through video equipment, rather than
through typed text." Consumer Guide: Video Relay Services, Fed.
Commc'ns Comm'n (July 18, 2022), https://www.fcc.gov/consumers/
guides/video-relay-services [https://perma.cc/W3AU-XGK7]. VRS
connects Buccieri to an ASL interpreter via a video application on
his personal cell phone, while the ASL interpreter is on a
telephone call with the hearing party. See id. The interpreter
then "relays the conversation back and forth between the parties,"
signing spoken comments from the hearing party to Buccieri over
- 8 -the video link, and saying Buccieri's signed comments to the
hearing party over the telephone call. Id. Buccieri demonstrated
the VRS system to Hughes during the interview, and Hughes reported
in an email to Mohnkern later that day that the VRS system allowed
Brewster to call Buccieri or Buccieri to call Brewster.4 Buccieri
and Hughes discussed Brewster providing a phone holder for
Buccieri's personal phone in the Chair Car to allow Buccieri to
see when a call from dispatch is coming in, pull over, and answer
that call and communicate with dispatch through VRS. Buccieri
clarified in his testimony that the VRS system has had "WiFi issues
and technical issues" and was "really not a professional process."
Buccieri, however, did not propose VRS as a means to communicate
with patients and presented no evidence that it would allow
communication with patients.
In his email to Mohnkern after the interview had
concluded, Hughes recommended that Buccieri be hired and that, in
addition to the VRS and phone holder accommodation, Buccieri have
an in-person ASL interpreter for orientation and his first day of
training. On January 30, 2019, Mohnkern notified Mark, George
Jr., and George Sr. by email about Buccieri's application, Hughes's
recommendation, and Buccieri's articulated accommodation request
4 Hughes also reported in that email that in the
demonstration VRS worked "very well" and allowed "a normal
conversation back and forth with almost no lag."
- 9 -of VRS and a phone holder. Like Hughes, Mohnkern had never worked
as a Chair Car Driver. Mark, by contrast, who had worked as a
Chair Car Driver for four years, used his and his family's
experience in considering whether and how Buccieri could be
accommodated. Mark responded to Mohnkern's email on the same day,
with George Sr. and George Jr. copied, and expressed his concerns
that Buccieri "would [not] be able to communicate with staff or
hear the radio when we call him for runs," concerns that Mark,
consistent with that contemporaneous email, testified at trial he
had "[b]ecause all of what [Brewster] do[es] in [the medical
transportation] industry requires verbal communication . . . not
only radio transmissions but staff at the facility [a patient was
being transported to or from]." George Sr. responded to
Mohnkern's email after Mark, stating that "it would be awesome to
hire him if he can do the job," but expressing concerns about
Buccieri's communication abilities beyond communication with
dispatch, such as "how would he communicate with staff at
facilities," "[h]ow would he know if a patient needed help in the
back of the vehicle," and "[h]ow would he communicate with his
patients."
Despite these concerns, reading the evidence most
favorably to Buccieri, Brewster apparently extended a verbal offer
of employment to Buccieri at some point after his January 24, 2019,
interview. Brewster also arranged for Buccieri to join one of its
- 10 -Chair Cars on trips picking up and dropping off patients on
January 31, 2019.5 While in the Chair Car during this ride-along,
Buccieri did not have an ASL interpreter with him, and he never
drove the Chair Car; Buccieri helped the wheelchair patients into
and out of the car and helped secure their wheelchairs in the
vehicle. The next day, on February 1, 2019, Hughes sent an email
to Mohnkern reporting that Buccieri:
rode yesterday with our [Chair Car]
supervisor6 for 3 calls. Our supervisor is
concerned he will not be able to do the job
and expresses concerns on his ability to
communicate with the clients and staff at the
facility. As much as I would like to hire him
as he is very dedicated to this I also share
the same concerns.
Given these concerns about Buccieri's ability to fulfill the
essential communications functions of the Chair Car Driver role,
Hughes asked in the same email to Mohnkern on February 1, 2019,
whether Brewster could "offer him anything else in our
organization."
That same day, Mohnkern contacted Matt Churchill, the
supervisor of Brewster's Day Care Van services where there was an
5 Hughes's undisputed testimony was that he and Buccieri had
agreed during the interview to have Buccieri ride along with a
Brewster Chair Car, although he could not remember whose idea it
was to have Buccieri join a Chair Car ride.
6 Hughes testified at trial he believed the supervisor in
question was William J. Sefton, as Sefton was "the only supervisor" in the Chair Car division. Sefton testified, however, that he was
not the driver who had Buccieri ride along with him.
- 11 -opening for the different position of a Day Care Van Driver, via
email to ask "would [Buccieri] be a candidate for Day Care, or is
there too much communication with that as well." Brewster's Day
Care Vans are fifteen-passenger vans that transport multiple
patients, who are generally less medically fragile than Chair Car
patients, to and from appointments during the day. On February 4,
2019, Churchill informed Mohnkern by email that "Day[] [C]are Vans
require the same amount of communications [as Chair Cars]
unfortunately."
On February 4, 2019, Mohnkern emailed Mark and shared
Hughes's email with the concerns about Buccieri's communication
abilities and Churchill's assessment that Day Care Vans required
the same amount of communication. Mark responded by email the
same day and stated that "[a]s much as I would like to give him an
opportunity, . . . [i]f he can't communicate with the patients I
don't see how it would work."
Mohnkern consulted with the billing department manager
to determine if that department had a suitable opening and was
told there were no opportunities for individuals, such as Buccieri,
who were inexperienced in billing.
In the meantime, Buccieri heard nothing further from
Brewster after his January 31, 2019, ride-along. On February 14,
2019, Jennifer Courville, a Career Resource Specialist who had
been aiding Buccieri in his job search, reached out to Brewster
- 12 -via email to inquire about the status of Buccieri's application.
Later that day, Buccieri received a verbal rejection from Brewster,
apparently with the promise that "he would be receiving a formal
letter from the [HR] [D]epartment explaining the reason why he was
not hire[d] for the [C]hair[] [Car] [D]river position." When that
letter did not come within a week, Courville again emailed Brewster
on Buccieri's behalf, asking on February 21, 2019, when Buccieri
could expect the letter. Three days later, on February 24, 2019,
Mohnkern responded, emailing Courville a formal rejection letter,
which he asked her to forward to Buccieri. Buccieri later
confirmed he had received the email. The email stated that
Brewster had concerns that "someone would be successful without
the ability to hear," given that the "three primary components" of
the position were "Passenger Safety, Operations, and Customer
Service." It also informed Buccieri of alternative positions that
Brewster had considered once it had determined that the Chair Car
Driver position "would not be a fit" and the reasons why Buccieri
was not eligible for those positions.
The email had an attached document identifying the
specific issues Brewster had with Buccieri's ability to perform
the Chair Car Driver job. The attached document listed five
questions and answers, addressed to Buccieri from the perspective
of Brewster, that detailed "the contributing factors as to why
Brewster Ambulance Service will not be extending a job offer to
- 13 -you for the Chair Car Driver position." The first question asked
"[w]ould a person sitting behind you, out of reach, be able to
notify you they had an urgent medical concern?" The answer to
Question 1 stated:
No. Because you would not be able to
hear a request for assistance, or hear an
unusual sound like an audible grunt or
respiratory noises, you would have to rely on
visual monitoring of a passenger in the
rearview mirror, or by turning around. This
would cause a safety concern when driving as
the mirror is designed for vehicle operation
and not monitoring internal occupants. While
the mirror could be used to look at a passenger
when queued by them, it is not a sufficient
means of continuous monitoring by itself. It
could also delay a response to intervene with
first aid until the situation was noticed
visually.
Question 2 asked "[w]ould you be able to quickly identify a
passenger who has unsecured themselves from the seat with the
intention of moving about the chair car cabin or attempting to
exit the vehicle, experiencing distress, or requesting
assistance?" The answer to Question 2 stated:
No. We felt that without hearing the
belts become unbuckled, noise of movement in
the chair and with securing devices, it would
be possible for a passenger to become
unsecured and interrupt vehicle operation
before it was visually noted.
Question 3 asked "[w]ould the inability to communicate over the
radio cause a delay or disruption in service?" The answer to
Question 3 stated:
- 14 -Yes. The dispatcher is responsible for
dispatching emergencies to ambulances and
non-emergent transports to chair cars and
transport ambulances. They also use a
computer system to enter dispatching data
simultaneously in a fast-paced, high stress
environment. They would need to stop or delay
these processes to make a phone call on the
VRS system. In order to make sure the
information was transmitted correctly this
would require additional time to confirm
transmitted information to the VRS interpreter
is relayed correctly.
Question 4 asked "[a]re their [sic] potential problems with the VRS
system?" The answer to Question 4 stated:
Yes. A study from the National
Consortium of Interpreter Education Centers
identified that users of the VRS system report
the skill level of interpreters was much
higher than when VRS call centers were first
established. Interviewees cited examples
such as interpreters not being able to sign
fluently, not being able to read
fingerspelling or numbers, and not being able
to recognize sign variations.
This could lead to delays in getting the
right passenger to the right destination [if]
incorrect information was transmitted.
Question 5 asked "[w]ould there be a means to overcome the
requirement in the posted job description to speak English?" The
answer to Question 5 stated:
With difficulty. Most of our customers
speak English and those with some level of
functional communication problems struggle to
speak or speak clearly. They may not have any
other means of communicating because of
developmental or cognitive delays. In many
cases, their low audible, difficult to
understand speech, is the only means of
communication. It would be difficult to speak
- 15 -to this population who already struggle to
communicate.
Mohnkern's email also invited further conversation,
asking Buccieri's Career Resource Specialist to "[p]lease let me
know if you have any questions." Mohnkern also testified that
Brewster was open to further discussions concerning accommodations
based on the detailed explanation that Mohnkern's email provided.
Buccieri admits he never responded to this invitation or raised
any questions with Brewster.
II.
Buccieri's ADA suit against Brewster was filed on
November 14, 2022, in federal court.7 On February 7, 2025, over
Brewster's objection to separating the liability and damages
portions of the trial, the court entered an order that "the
liability portion of the trial [will] start[] first, followed by
the damages portion," and that "[a]t the close of the liability
portion, the [c]ourt will hear the parties on whether to continue
with the same jurors."
The jury trial began on February 10, 2025. At the close
of testimony on day three, Brewster's counsel made a Rule 50(a)
7 The court sua sponte dismissed Buccieri's claim under
Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, as
untimely, and Buccieri voluntarily withdrew his time-barred claim
under Mass. Gen. Laws ch. 151B. Buccieri does not appeal the
dismissal of his Section 504 claim.
- 16 -motion for judgment as a matter of law, arguing that the evidence
was insufficient on three different grounds.8 Counsel argued that:
(1) There was insufficient evidence to find that Buccieri could
perform the essential functions of the Chair Car Driver position:
[T]he jury cannot find that he has presented
evidence that with a reasonable accommodation
he could have performed the essential
functions of this job.
(2) Brewster had shown that accommodating Buccieri would be an
undue hardship:
So [Buccieri's] own testimony, his own
admission of a party opponent is that the
technology he proposed was not reliable, and
translate that into an emergency situation or
a medically sensitive situation, such as
Brewster, and I don't know how the jury could
find that he could do this job based on the
facts my client knew at this time.
(3) There was insufficient evidence on the facts presented to
permit a separate theory of liability for Brewster's alleged
failure to engage in the interactive process:9
[T]he interactive process ended with my client
outlining the concerns and Mr. Buccieri never
8 At trial, Brewster's counsel and the district court
referred to the Rule 50(a) motion as a "directed verdict" motion,
which is "the term the [Federal Rules of Civil Procedure] used for
a Rule 50(a) motion for 'judgment as a matter of law' prior to the
1991 amendment." Santos-Arrieta v. Hosp. Del Maestro, 14 F.4th
1, 9 n.14 (1st Cir. 2021) (citing Fed. R. Civ. P. 50 advisory
committee's note to 1991 amendment).
9 Buccieri's complaint had not included failure to engage in
an interactive process as a potential basis for liability.
Buccieri apparently first raised that theory at the February 5,
2025, pre-trial conference.
- 17 -responding. So he ended the interactive
process on this.
Brewster's counsel later expanded:
[T]here has to be a failure on my client's
part in the interactive process . . . for that
theory to be cognizable. . . . I'm
struggling with where the failure is because
[Buccieri] presents the VRS. My client, you
see from the emails very clearly, considers
the VRS, considers his . . . operation in the
field, considers other jobs for him,
. . . goes even the extra step in saying,
hey, look, he hasn't asked for it, but can we
bring in a translator for orientation.
The court denied the Rule 50(a) motion on all three grounds. At
the charge conference the next day, Brewster also objected to the
wording of Question 6 of the jury verdict form concerning the
interactive process, which the court overruled.10
10 Question 6, which was not in the proposed jury verdict
form submitted by Buccieri or Brewster, asked the jury whether
Buccieri proved that "had a good faith interactive process
occurred, Mr. Buccieri and Brewster Ambulance could have found
reasonable accommodation(s) that would have enabled Mr. Buccieri
to perform the job's essential functions." Brewster's counsel
argued that the phrase "had a good faith interactive process
occurred" "suggests that a good faith interactive process did not
occur" but "[the jurors are] not asked that question," and
suggested alternate wording to avoid "assuming that there's been
a lack of an interactive process, which I think is very much in
dispute." The court overruled the objection, and Brewster's
counsel renewed the objection before the jury retired. As
Brewster does not develop a verdict form impropriety argument on
appeal, we do not address this issue. See Xirum v. Bondi, 141
F.4th 345, 355 (1st Cir. 2025) ("[I]ssues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived." (quoting United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990))).
- 18 -The jury found as follows. Question 1, which the
verdict form labeled as a "COMMON ELEMENT" to both failure to hire
and failure to engage in an interactive process, asked the jury
whether:
the Plaintiff, Mr. John Buccieri, prove[d] by
a preponderance of the evidence that he could
have performed the essential functions of this
position on or about February 24, 2019, [the
date of Brewster's written explanation of its
decision not to hire Buccieri,] if Brewster
Ambulance had made reasonable accommodations
for Mr. Buccieri's disability?
The jury responded "Yes" to Question 1.11
The verdict form labeled Questions 2-4 as concerning the
"FAILURE TO HIRE" basis for liability. Question 2 asked the jury
whether:
the Plaintiff, Mr. John Buccieri, prove[d] by
a preponderance of the evidence that he was a
qualified individual under the Americans with
Disabilities Act on or about February 24,
2019?
The jury answered yes. Question 3 asked the jury whether:
the Plaintiff, Mr. John Buccieri, prove[d] by
a preponderance of the evidence that his
disability was a motivating factor in Brewster
11 During deliberations, the jury asked a question regarding
"Question 1 and its reference to reasonable accommodation," and
asked the court whether it "[s]hould . . . be considering the phone holder and VRS as the only reasonable accommodations or just
reasonable accommodations in general?" The court responded, "I'm
going to go back to the jury instruction," repeating that "[t]he
burden is on the employee or the potential employee to offer what
the accommodation is intended to be. You cannot speculate what
was not in the evidence. You can only take the evidence that you
heard that was believable and the instructions."
- 19 -Ambulance's decision to take an adverse
employment action against him?
The jury answered yes. Question 4 asked the jury whether:
the Defendant, Brewster Ambulance, prove[d] by
a preponderance of the evidence that providing
Mr. Buccieri with the requested
accommodation(s) would have been an undue
hardship to Brewster Ambulance and/or posed a
direct threat to Mr. Buccieri or others?
The jury answered yes.
The verdict form labeled Questions 5 and 6 as concerning
the "FAILURE TO ENGAGE IN AN INTERACTIVE PROCESS" basis for
liability. Question 5 asked the jury whether:
the Plaintiff, Mr. John Buccieri, prove[d] by
a preponderance of the evidence that he made
a request for an accommodation that was
sufficiently direct and specific so as to put
Brewster Ambulance on notice of the need for
that accommodation?
The jury answered yes. Question 6 asked the jury whether:
the Plaintiff, Mr. John Buccieri, prove[d] by
a preponderance of the evidence that, had a
good faith interactive process occurred,
Mr. Buccieri and Brewster Ambulance could have
found reasonable accommodation(s) that would
have enabled Mr. Buccieri to perform the job's
essential functions?
The jury answered yes. In light of these verdict form answers,
the court and the parties understood the jury as returning a split
verdict, finding for Brewster on Buccieri's failure-to-hire theory
but finding for Buccieri on his interactive-process theory.
- 20 -At a status conference on April 29, 2025, the court told
the parties that it was taking the jury trial for the damages phase
off the schedule and directed the parties to present supplemental
briefing "specific[ally]" on the issue of "the level of
interaction -- interactive process, the participation by both
parties." The court had not entered final judgment as to
liability, and it stated that it had "serious doubts that there
was sufficient evidence to support the interactive process
verdict." The court stated that "[t]he First Circuit is very
clear that the interactive process is a two-way street," citing
EEOC v. Kohl's Department Stores, Inc., 774 F.3d 127 (1st Cir.
2014), which held that Kohl's was not liable under the ADA where
the employee had failed to engage in an interactive process, see
id. at 132-34. Brewster's counsel stated that the defendant
"anticipated filing a post[-trial] motion," but that the Federal
Rules of Civil Procedure were "clear we didn't need to do it until
after a judgment had issued." Counsel offered "to get [the motion]
in by the end of the week in a [Rule 50(b) motion], if that would
be easier." The court responded that both parties should "brief
this specific issue" by May 20, 2025.
In Brewster's supplemental briefing submitted on May 20,
2025, Brewster argued that the court should "direct entry for
- 21 -Brewster as a matter of law" under "FRCP 50(b)(3),"12 "given the
lack of evidence that Brewster failed to engage in the interactive
process in good faith":
The evidence . . . makes it clear that
Brewster was more than willing to support the
one accommodation . . . that [p]laintiff
requested. . . . The undisputed testimony is
that Brewster was open to further discussions,
but [p]laintiff ceased the dialogue.
. . . Brewster determined that the
accommodation would not be fully effective.
Brewster looked for other accommodations, but
did not fail to consider other accommodations
or refuse to communicate with [p]laintiff.
Brewster's brief also argued:
The Court should also consider whether
there was any evidence that a reasonable
accommodation would have been found to enable
[p]laintiff to perform the essential functions
of the job. The jury's second question [to
the court during deliberations] ("Should we be
considering the phone holder and VRS as the
only reasonable accommodations or just
reasonable accommodations in general?")
suggest[s] the jury was speculating on this.
There is no evidence in the record as to an
accommodation identified or requested by
[p]laintiff that would have permitted him to
communicate as needed.
The brief also stated that "Brewster reserves its right to file
for post-judgment relief on a broader range of issues if necessary"
12 The Federal Rules of Civil Procedure provide that
Rule 50(b) motions must be filed "[n]o later than 28 days after
the entry of judgment." Fed. R. Civ. P. 50(b). As judgment had
not yet entered at the time of defendant's post-trial briefing,
the Rule 50(b) motion was timely.
- 22 -as the post-trial brief was only responsive to "[t]he [c]ourt['s]
. . . requested briefing on a narrow issue."
In Buccieri's supplemental briefing submitted on May 20,
2025, he argued that "the verdict [was] impervious to a renewed
motion for judgment as a matter of law" because there was "a
substantial and compelling evidentiary basis for each of th[e]
[jury's interactive process] findings." Buccieri argued that the
evidence established there had been a "[p]ost-[i]nterview
[b]reakdown . . . in the interactive process attributable to
Brewster":
Despite Mr. Hughes' positive assessment
[after the initial interview], the interactive
process deteriorated after Brewster's
ownership and senior human resources became
more involved without direct, meaningful
dialogue with Mr. Buccieri about their
emerging internal concerns.
. . . [Brewster's] alleged and vague
ride-along concerns were never discussed with
Mr. Buccieri, nor was he given any opportunity
to address them or suggest alternative
approaches. . . . [This] represent[ed] a
clear breakdown in the "meaningful dialogue"
required.
Buccieri also argued that "the jury heard evidence" that Brewster
engaged in "empty gestures on the part of the employer [that do]
not satisfy the good faith standard" (second quoting Kohl's Dep't
Stores, 774 F.3d at 132).
On July 28, 2025, the district court granted defendant's
motion and entered judgment in favor of Brewster on all counts.
- 23 -Buccieri, 792 F. Supp. 3d at 283. The court stated that "Brewster
cannot be liable . . . when it concluded it could not provide
Mr. Buccieri a reasonable accommodation" and that "[t]here was
ample evidence at trial that established Brewster's undue
hardship," so "the verdict on [failure to engage in the interactive
process] should be set aside because 'the jury failed to reach the
only result permitted by the evidence.'" Id. at 282 (quoting
Quiles-Quiles v. Henderson, 439 F.3d 1, 4 (1st Cir. 2006)).
Buccieri's appeal followed.
III.
This court "review[s] Rule 50 challenges to the
sufficiency of evidence presented at trial de novo, affirming entry
of judgment as a matter of law only if there is no legally
sufficient evidentiary basis for a reasonable jury to find for
[the non-moving party]." Intercity Maint. Co. v. Loc. 254, Serv.
Emps. Int'l Union, 241 F.3d 82, 86 (1st Cir. 2001) (second
alteration in original) (internal quotation marks and citation
omitted).
Under de novo review, where, as here, arguments are
properly made in Rule 50(a) and Rule 50(b) motions and properly
preserved, this court "can affirm on any independent basis that
appears in the record." McMillan v. Mass. Soc'y for Prevention
of Cruelty to Animals, 140 F.3d 288, 298 n.3 (1st Cir. 1998)
(affirming denial of Rule 50(b) JMOL motion); see also
- 24 -Quiles-Quiles, 439 F.3d at 5-8 (considering defendant's arguments
that plaintiff had produced insufficient evidence to establish
three elements of his disability harassment claim, only one of
which was the basis of the district court's grant of JMOL on that
claim); cf. Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546
U.S. 394, 407 (2006) (when party "fail[s] to renew its preverdict
[Rule 50(a)] motion as specified in Rule 50(b), there [i]s no basis
for review of [party]'s sufficiency of the evidence challenge in
the Court of Appeals").
We affirm the district court's order granting JMOL to
Brewster. On the evidence before it, no reasonable jury could
conclude that there was a reasonable accommodation that would have
enabled Buccieri to perform the essential functions of the Chair
Car Driver or Day Care Van Driver positions without undue hardship
to Brewster.
It has long been the law that "an employee's request for
accommodation sometimes creates 'a duty on the part of the employer
to engage in an interactive process,'" which "involves an informal
dialogue between the employee and the employer" "for the purpose
of discussing alternative reasonable accommodations." Kohl's
Dep't Stores, 774 F.3d at 132 (emphasis added) (footnote omitted)
(quoting Enica v. Principi, 544 F.3d 328, 338 (1st Cir. 2008)).
An employer cannot be held liable on an interactive process theory
where "the record forecloses a finding that the plaintiff could
- 25 -perform the duties of the job[] with . . . reasonable
accommodation." Kvorjak v. Maine, 259 F.3d 48, 53 (1st Cir. 2001);
see also Echevarría v. AstraZeneca Pharm. LP, 856 F.3d 119, 133
(1st Cir. 2017) ("The omission of an interactive process is of no
moment if the record forecloses a finding that the employee could
do the essential duties of the job, with or without reasonable
accommodation, -- which . . . is the case here." (internal
quotation marks and alteration omitted) (quoting Lang v. Wal-Mart
Stores E., L.P., 813 F.3d 447, 456 (1st Cir. 2016))).
No reasonable jury could conclude there was a reasonable
accommodation that would have allowed Buccieri to perform the
essential communications functions of the Chair Car Driver
position or the Day Care Van Driver position without undue hardship
to Brewster. As the jury did find, Buccieri's requested
accommodation of VRS and a phone holder would be an undue hardship
on Brewster. We reject Buccieri's argument to us that,
nonetheless, a jury could reasonably find that "at least one of
th[e] other accommodations" "presented at trial -- including
reassignment [to the Day Care Van Driver position], [text-based
and] tablet-based dispatch, or structured visual-monitoring
protocols" "could have enabled Mr. Buccieri to perform the
essential functions of" either the Chair Car or Day Care Van Driver
positions without undue hardship to Brewster. We treat Buccieri
as having presented a challenge to both driver positions despite
- 26 -language in his brief failing to specify which position he was
addressing and referring only to "the job." The undisputed
testimony at trial established that Chair Car Drivers are required
to communicate with dispatch, patients, and facilities staff, and
no accommodation would permit Buccieri to do so without imposing
an undue hardship on Brewster. The undisputed evidence was that
the same was true for the Day Care Van Driver job.
Buccieri presented no evidence to rebut that his
proposed tablet-based or any cell-phone-based accommodation for
communicating with dispatch, even if it was available at the
relevant time, would pose safety risks to all concerned of the
driver's eyes being taken off the road, risks the ADA did not
require Brewster to undertake. Brewster's radio system for
dispatch communications has safety advantages over Buccieri's
alternative accommodation of tablet-based communications, because
the radio system allows drivers to connect instantly to dispatch
with the press of one button on the radio and without taking their
eyes off the road. Brewster established that distracted driving
is the number one cause of accidents involving Brewster vehicles
and that cell phone use is the number one cause of distracted
driving.
As for the essential functions of communicating with
patients and ensuring their safety, Buccieri argues that the jury
had sufficient evidence to find that "a structured mirror- 27 -monitoring protocol" would allow him sufficient visual monitoring
to supervise the patients for medical emergencies. There are
multiple problems with Buccieri's argument, as "[t]he law does not
require an employer to accommodate a disability by foregoing an
essential function of the position." Kvorjak, 259 F.3d at 57
(internal quotation marks and citation omitted). The alternative
"visual-monitoring protocol[]" he proposes to us did not meet
Brewster's service and safety standards. Beyond that, Buccieri
produced no evidence that, for example, mirror-based monitoring
could ensure patient safety in darker conditions. As the district
court recognized, Buccieri presented "no evidence, none, that he
had that ability" "to speak to the patients."
For the same reasons, there is also no evidence to
support a finding that there were reasonable accommodations that
would have allowed Buccieri to perform the essential
communications functions of the Day Care Van Driver position, the
alternative position that Brewster considered as a potential
accommodation for Buccieri, without undue hardship. Brewster's
Day Care Van manager's undisputed assessment was that the role of
Day Care Van Driver still "require[d] the same amount of
communications" as the Chair Car Driver role, but with even more
patients in the Day Care Van vehicles.
The district court's order, mistakenly, referred to
rationales based on supposed verdict inconsistency and the
- 28 -impropriety of verdict form Question 6, which were not raised by
Brewster as grounds for JMOL "in either its Rule 50(a) or
Rule 50(b) motion . . . [thus making] the district court's sua
sponte tackling of th[ese] issue[s] error." Santos-Arrieta v.
Hosp. Del Maestro, 14 F.4th 1, 8 (1st Cir. 2021) (emphasis omitted)
(overturning the district court's grant of JMOL to defendant on an
issue argued in defendant's Rule 59(a) motion but not in
defendant's Rule 50(a) or Rule 50(b) motion). "[A]llowing a judge
to sua sponte raise a new issue post-verdict, and proceed to
overturn a jury verdict on that basis[,] [would] contravene[] the
dictates of Rule 50(b)," id. at 9 (quoting Robles-Vazquez v. Tirado
Garcia, 110 F.3d 204, 207 (1st Cir. 1997)), as Rule 50(b) forbids
a district court from granting a defendant's Rule 50(b) motion
based on a new ground not contained in a Rule 50(a) motion, id. at
8-9. Notwithstanding this mistake, we can affirm on the
insufficiency-of-the-evidence basis already explained, given that
Brewster did raise that issue in its Rule 50(a) and Rule 50(b)
motions.
IV.
The order of the district court is affirmed.
- 29 -