Labor & Employment Law Daily Wrap Up, DISCRIMINATION—DISABILITY—1st Cir.: $10,000 verdict stands in hip-injured worker’s accommodation, retaliation case, (May 14, 2025)

By Jason Albright, J.D.

The worker was directed to “[h]it the gate” following an argument over his job-related limitations.

Neither Industrial Demolition, LLC nor a former employee is entitled to reversal or amendment of a jury award of $10,035 on reasonable accommodation and retaliation claims stemming from the employee’s discharge after requesting accommodation for a workplace hip injury. Finding no error below, the First Circuit observed, among other things, that the plaintiff previously received a settlement in his unlawful discharge charge filed against the employer with the NLRB, and that the district court properly permitted the jury to consider that settlement (Moore v. Industrial Demolition LLC, Nos. 23-1697 and 23-1703 (1st Cir. May 13, 2025)).

Commercial demolition company. Industrial Demolition, LLC is a national commercial demolition company headquartered in St. Louis, Missouri. It razes industrial sites and redevelops the land for sale.

Missionary. Before his employment with Industrial at the erstwhile Brayton Point Power Station, the plaintiff was a missionary in El Quinche, Ecuador. After his wife became ill with Monge's disease, he and his young family returned to the U.S. in 2018, settling in Aurora, Indiana, where he began working for Industrial Demolition as a driver and laborer on the nearby demolition site of the Tanner's Creek Generating Station.

Brayton Point. After working with a specific supervisor at Tanner's Creek, the supervisor invited him and his family to move to Massachusetts to work on the Brayton Point demolition project. Despite some initial reservations, the plaintiff and his family relocated to Westport, Massachusetts, and he began working at Brayton Point, primarily as a driver and laborer.

OSHA investigation, rough-and-tumble. Industrial Demolition, according to the court, “had a laissez-fare (sic) attitude towards its health and safety practices at the time [the plaintiff] commenced work at Brayton Point,” and despite an OSHA investigation initiated around November 2019, the supervisor, who continued to oversee labor, “leaned on the use of threats, racial slurs, misogynistic language, and dangerous instructions to manage his crew.” He “regularly used the n-word and similar vulgar and derogatory epithets in reference to Industrial's on-site employees,” according to the court.

Assignment. The OSHA investigation caused Industrial Demolition to convert multiple trailers on the site into “clean rooms,” and relative to this conversion endeavor, the employee was assigned to “tear[] Down” and “clean out” the trailers.

Hip injury. And on a Saturday in early December 2019, the employee, while executing that assignment, likely injured his hip. Though he was able to finish the workday, he experienced progressively increasing pain during the weekend and went to the emergency room Monday morning.

Return to work with restrictions. The employee’s physician initially prescribed medication and recommended that he take the week off, but Industrial Demolition did not provide paid sick leave, and so he returned to work with a physician’s note that allowed him to return to work immediately but with certain restrictions on heavy lifting and prolonged standing.

Discharge. By Friday, December 13, however, the supervisor’s patience “had run thin,” according to the court. The supervisor ordered the employee and his team to “get out of [their] machine[s]” and “[w]ork with [their] hands.” The employee responded by reminding him about the accommodation he had been granted by “the office” for his hip injury and emphasizing that he was “not supposed to be bending over and picking up these pieces of heavy metal.”

Ultimately, after telling the employee, “I don't give an F about your doctor's note…,” among other things, the supervisor suggested the employee take some time off. The employee responded that he did not “see the problem” and again reminded the supervisor that he was “following [his] work restriction,” but the supervisor repeated his prior statement about the doctor’s note, the argument escalated, and the supervisor concluded with a directive to the employee to “[h]it the gate and don't come back.”

NLRB complaint. After failing to “work it out” with the supervisor at the suggestion of the CEO, the employee did not return to the jobsite and filed a complaint against Industrial Demolition with the NLRB, alleging that he was unlawfully terminated.

Settlement agreement. An investigation followed, and a settlement between the former employee and Industrial Demolition was ultimately reached in October of 2020. The settlement required Industrial Demolition to pay him $85,555: $60,639 in back pay, $23,750 in front pay, and $1,166 for compound interest.

Lawsuit. The former employee also filed suit against Industrial Demolition in Massachusetts Superior Court. That case was removed to a federal district court on diversity jurisdiction grounds, a four-day jury trial ensued, and the jury returned a verdict in favor of the former employee, finding under Massachusetts law that he had a handicap that the employer failed to accommodate and that the company also retaliated against him by terminating him for requesting or using a reasonable accommodation.

Jury’s award. The jury calculated and awarded damages in the amount of $10,035, which represented $95,590 in back pay less the $85,555 NLRB settlement.

Parties’ motions and appeals. The former employee filed a motion to amend the judgment and a motion for a new trial. Industrial Demolition waged a three-pronged post-verdict attack: it filed a renewed motion for judgment as a matter of law or, in the alternative, a new trial or, in the alternative, a remittitur.

The district court denied both parties' motions, and both appealed to the First Circuit.

“Handicap” finding? Among other things, Industrial Demolition argued that, as a matter of law, the former employee did not have a “handicap” requiring an accommodation pursuant to Mass. Gen. Laws ch. 151B. His temporary hip injury, it argued, categorically fell outside the statutory definition considering its “short duration,” coupled with its “trifling severity.” Leaving this state-law question for another day, the appeals court found that the jury’s retaliation verdict was independently sufficient to support the award.

Retaliation. The jury, the appeals court observed, “possessed something akin to direct evidence that [the employee] was instructed to ‘[h]it the gate’ because of his accommodation requests.” Considering the evidence of retaliatory conduct, the appeals court said, the record was sufficient to support the jury's conclusion that the employee suffered an adverse employment action for engaging in protected conduct. The district court's denial of Industrial Demolition’s motion for judgment as a matter of law against the retaliation claim was thus affirmed, as was the jury's general damages award.

Deduct the settlement? In the former employee’s motion to amend, he argued that the district court erred when it permitted the jury to consider the earlier settlement between him and Industrial Demolition, which arose from his NLRB charge, by instructing the jury to deduct from the final damages award the settlement's value. According to the former employee, the settlement was collateral source income that should have been excluded from the jury's consideration as a matter of law.

Unpersuaded, the First Circuit observed that the former employee “never explains how the NLRB settlement payment, one which came directly from Industrial Demolition itself and not some third party, and which specifically compensated him for back and front pay, touches upon collateral source jurisprudence.” Nor did he explain why the NLRB settlement payment from the employer is somehow an exception meriting departure from courts' usual practice of not applying the collateral source rule when the source of the payment is the defendant.

Remedy was still the lost wages. He argued that the NLRB investigated the employer “for preventing employees from discussing their wages and for retaliating against those employees who do so,” and not for engaging in disability discrimination or retaliation. Even if that assertion was true, however, this was “not an argument which tells us why the settlement payment qualifies as excludable collateral source income; and it ignores the fact that the payment prompted by the NLRB proceeding was precisely calculated by reference to lost wages.”

The district court's denial of his motion for an amended judgment was thus affirmed, as was the verdict.

The case is Nos. 23-1697 and 23-1703.

Judge: Thompson, O.

Attorneys: Paul M. Facklam, Jr. (Sandulli Grace) for Eric Moore. Alexa M. Esposito (Littler Mendelson) for Industrial Demolition LLC.

Companies: Industrial Demolition LLC

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