Sheng v. MTBank Corporation


OPINION, vacating in part, dismissing the appeal in part, and remanding to the district court for further proceedings consistent with this opinion, by JAC, ALK, RKW.[1960234] [14-4467]

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Case 14-4467, Document 65, 02/02/2017, 1960234, Page1 of 19 14-4467-cv Jia Sheng v. MTBank Corporation 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2015 4 (Argued: October 21, 2015 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Decided: February 2, 2017) Docket No. 14-4467-CV - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Jia Sheng, Plaintiff-Appellant, v. M&TBank Corporation, Manufacturers & Traders Trust Company, d/b/a M&TBank, Defendants-Appellees. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B e f o r e: KEARSE, WINTER, and CABRANES, Circuit Judges. Appeal from a judgment entered in the United States District 22 Court for the Western District of New York (Hugh B. Scott, 23 Magistrate Judge) after a jury verdict. 24 appellant’s federal claims of disability discrimination, 25 retaliation, and failure to accommodate. 26 the district court erred by (i) admitting evidence of an offer of 27 settlement in violation of Fed. R. Evid. 408, (ii) disqualifying 28 her attorney and opposing counsel, (iii) not instructing jurors 29 on the requirement of an interactive process under the Americans 30 with Disabilities Act, and (iv) ruling as a matter of law on her 1 The jury rejected Appellant argues that Case 14-4467, Document 65, 02/02/2017, 1960234, Page2 of 19 1 New York State Human Rights Law (NYSHRL) claim. 2 judgment in part, insofar as it adopted the jury’s verdict and 3 the district court’s disqualification order; dismiss the appeal 4 in part, insofar as it pertains to claims under the NYSHRL; and 5 remand for further proceedings consistent with this opinion. 6 7 8 9 10 11 12 We vacate the GEORGE D. VALLAS, The Ottinger Firm, P.C., New York, NY, for Plaintiff-Appellant. JUSTIN C. ELLER, Miles & Stockbridge, P.C., Baltimore, MD, for Defendants-Appellees. WINTER, Circuit Judge: 13 Jia Sheng brought this action against appellees 14 (collectively MTBank1), claiming violations of various state and 15 federal statutes by not allowing her to work remotely when she 16 became pregnant. 17 Scott ruled as a matter of law against appellant on a number of 18 claims, while the jury found for MTBank on the remaining claims. 19 On appeal, appellant contends that the district court erred After the close of evidence, Magistrate Judge 20 by: (i) admitting evidence in violation of Fed. R. Evid. 408 21 that MTBank made an offer of reinstatement allowing her to work 22 remotely, (ii) disqualifying the attorneys for both parties under 23 the advocate-witness rule, (iii) not instructing jurors on her 24 claim that MTBank violated the Americans with Disabilities Act of 25 1990 (ADA) by failing to engage in an interactive process, and 1 Appellant named as defendants in her complaint “M&T Bank Corporation, and Manufacturers & Traders Trust Company d/b/a M&T Bank.” We refer to them collectively herein as “MTBank.” 2 Case 14-4467, Document 65, 02/02/2017, 1960234, Page3 of 19 1 (iv) dismissing as a matter of law appellant’s New York State 2 Human Rights Law (NYSHRL) claim, which appellant argues had the 3 same legal and factual underpinnings as her ADA claim that was 4 presented to the jury. 5 We hold that (i) the district court abused its discretion in 6 admitting evidence of the reinstatement offer because the offer 7 was, as a matter of law, not unconditional;(ii) the district 8 court erred in sua sponte disqualifying the attorneys, because 9 the disqualification depended on the erroneous admission of 10 evidence relating to the reinstatement offer; (iii) the jury 11 instructions were not erroneous; and (iv) we lack jurisdiction 12 over appellant’s challenge to the district court’s NYSHRL ruling. 13 We vacate the judgment in part, insofar as it adopted the 14 jury’s verdict and the district court’s disqualification order; 15 dismiss the appeal in part, insofar as it pertains to claims 16 under the NYSHRL; and remand for further proceedings consistent 17 with this opinion. 18 19 BACKGROUND “In reviewing this record we construe all evidence, draw all 20 inferences, and make all credibility determinations in favor of 21 the party that prevailed before the jury.” DiBella v. Hopkins, 22 403 F.3d 102, 110 (2d Cir. 2005). 23 In January 2010, appellant began her employment with MTBank 24 in Buffalo, New York as a Lead on its Quality Assurance Test 25 (QAT) team in the bank’s Central Technology (CT) Department. 3 The Case 14-4467, Document 65, 02/02/2017, 1960234, Page4 of 19 1 QAT team executes system testing of computer programs for bank 2 applications. 3 position and relocate to Los Angeles, where her husband had taken 4 a job. 5 she continue to work at MTBank remotely through the bank’s 6 Alternative Work Arrangement (AWA) policy. 7 "[a]n employee's failure to resume [a] traditional work schedule 8 or location upon revocation of an AWA will be considered a 9 voluntary resignation of employment." In March 2011, appellant decided to resign her However, her supervisor, Monica Holcomb, suggested that Under the AWA policy, J. App’x at 77. 10 accepted Holcomb’s offer and began working remotely from 11 Appellant California. 12 In the spring of 2012, MTBank’s management began exploring a 13 reorganization of the CT Department, including the QAT team. 14 This reorganization was intended to facilitate the Voyager 15 Project, a planned overhaul of MTBank’s existing online banking 16 system. 17 CT Department employees. 18 appellant, management explained that, in light of the 19 reorganization, all AWAs would be reviewed. 20 Holcomb called appellant, who confirmed that she understood that 21 her AWA status could be affected by the reorganization. 22 On May 30, 2012, MTBank announced the reorganization to In a meeting attended remotely by Later that day, The next day, appellant notified Lonnie Basciani -- who had 23 replaced Holcomb as appellant’s supervisor and in turn reported 24 to Holcomb -- that she was pregnant. 25 expressed concern about her AWA policy. 4 Shortly thereafter, she Management determined, Case 14-4467, Document 65, 02/02/2017, 1960234, Page5 of 19 1 however, that team leads would need to be physically present in 2 Buffalo at least two days per week in order to communicate and 3 work directly with the individuals implementing the Voyager 4 Project. 5 status and not based in Buffalo. 6 notified appellant that her AWA status would be altered, and that 7 she would need to begin traveling to Buffalo. 8 9 At the time, appellant was the only employee on AWA On June 27, 2012, Holcomb The following day, on June 28, 2012, appellant emailed Holcomb and MTBank’s Human Resources Department, requesting a 10 meeting to discuss the possibility of delaying the start of her 11 commute to Buffalo until after she gave birth. 12 meeting with Holcomb, however, appellant was informed that her 13 request to be exempted from traveling to Buffalo during the 14 duration of her pregnancy was denied. 15 deadline of July 27 to confirm that she would begin reporting to 16 Buffalo in early August. 17 At a July 3, 2012 Appellant was given a On July 19, appellant submitted a letter from her 18 obstetrician to Holcomb and MTBank’s Human Resources Department, 19 stating that, for health reasons, she should not engage in air 20 travel for the duration of her pregnancy. 21 letter, Human Resources and MTBank management examined whether 22 appellant could work on non-Voyager Project matters until she 23 gave birth in December 2012. 24 enough non-Voyager work to keep her occupied. After receiving this They concluded that there was not 5 Case 14-4467, Document 65, 02/02/2017, 1960234, Page6 of 19 1 For the next eight weeks, appellant received minimal 2 communication from MTBank, except for periodic directives that 3 she continue working. 4 notified appellant that she should either permanently relocate to 5 Buffalo within thirty days or apply for and, if eligible, take 6 early short-term disability leave, allowing her to remain in 7 California through the end of her pregnancy. 8 neither of these options, she would be terminated and given 9 eleven weeks of severance pay. 10 Finally, on September 11, 2012, MTBank If she chose On September 14, 2012, appellant emailed MTBank, rejecting 11 its offers. She explained that she was "not able to relocate to 12 Buffalo within the next 30 days due to medical restrictions on 13 [her] ability to travel during [her] pregnancy." 14 On September 20, 2012, Ariel Y. Graff, an attorney for appellant, 15 wrote a letter to MTBank’s General Counsel stating that appellant 16 had been "effectively terminated . . . because of her 17 pregnancy . . . Constitut[ing] unlawful discrimination on the 18 basis of gender, pregnancy and pregnancy-related medical 19 conditions." 20 in part, "to offer the Company and potential individually named 21 Defendants the opportunity to avoid a costly legal action that 22 will result in substantial liability and adverse publicity for 23 the Company and its executives." Id. at 60-62. J. App’x at 78. He also stated that he was writing, Id. at 62. 24 The letter was forwarded to MTBank's vice-president and 25 counsel, Sean Ronan, who spoke with Graff by telephone on October 6 Case 14-4467, Document 65, 02/02/2017, 1960234, Page7 of 19 1 12, 2012. At the start of the conversation, Graff made clear, 2 and Ronan agreed, that Rule 408 of the Federal Rules of Evidence, 3 Fed. R. Evid. 408 (providing that offers of settlement are 4 inadmissible in later proceedings under certain conditions), 5 would govern the conversation. 6 offer demanding $200,000. 7 prepared to agree to such a monetary settlement. 8 suggested that appellant be reinstated and that she be allowed to 9 work remotely from Los Angeles for the remainder of her Graff then made a settlement Ronan responded that the bank was not Instead, he 10 pregnancy. 11 offer was conditioned upon the execution of a release of 12 appellant’s claims for monetary damages. 13 the Equal Employment Opportunity Commission (EEOC), Ronan 14 described his oral offer to appellant as follows: 15 to offer [appellant] the accommodation she had demanded was not 16 unlike any other offer of compromise [MTBank] -- and a myriad of 17 other parties -- may offer to stave-off the vicissitudes of 18 litigation. 19 ultimately decided to capitulate to [appellant's] demand solely 20 because we recognized that it would be better than incurring time 21 and expense fighting the issue." 22 No explicit statement was made that the reinstatement Later, in a letter to "Our decision Distasteful and disruptive as it may have been, we J. App’x at 75. On November 8, 2012, appellant filed a Charge of 23 Discrimination with the EEOC. On the same day, appellant filed 24 the present action, eventually amending her complaint to allege 25 that MTBank had: (i) engaged in unlawful interference under the 7 Case 14-4467, Document 65, 02/02/2017, 1960234, Page8 of 19 1 Family Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., the 2 California Family Rights Act, Cal. Gov’t Code § 12945.2, and the 3 California Pregnancy Disability Leave Law, Cal. Gov’t Code § 4 12945(a); (ii) unlawfully retaliated under the FMLA, Title VII of 5 the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the ADA, 6 42 U.S.C. § 12101 et seq., and the NYSHRL, N.Y. Exec. Law § 290 7 et seq.; (iii) unlawfully discriminated under Title VII, the ADA, 8 and the NYSHRL; and (iv) failed to provide a reasonable 9 accommodation under the ADA, the NYSHRL, and the California Fair 10 11 Employment and Housing Act (FEHA), Cal. Gov’t Code § 12940. Before trial, appellant filed a motion in limine with the 12 district court, seeking to exclude "[a]ll offers made by [MTBank] 13 to reinstate [appellant] in exchange for settling the instant 14 action" pursuant to Federal Rule of Evidence 408. 15 at 8. 16 reinstatement offer was admissible to show that appellant failed 17 to mitigate damages and, second, should not be excluded under 18 Rule 408 because the offer was unconditional, i.e., was not 19 contingent on appellant’s releasing MTBank from liability. 20 MTBank opposed the motion. See J. App’x It argued, first, that the After an evidentiary hearing, the district court denied 21 appellant's motion. The court reasoned that, under Pierce v. 22 F.R. Tripler & Co., 955 F.2d 820, 827 (2d Cir. 1992), an offer of 23 settlement made by defendant's counsel to plaintiff's counsel is 24 presumed to be inadmissible unless there is "convincin[g 25 evidence] that the offer was not an attempt to compromise the 8 Case 14-4467, Document 65, 02/02/2017, 1960234, Page9 of 19 1 claim." Sheng v. M & T Bank Corp., 2014 WL 5500632, at *3 2 (W.D.N.Y. Oct. 30, 2014). 3 longer be good law in light of our decision in Lightfoot v. Union 4 Carbide Corp., 110 F.3d 898 (2d Cir. 1997), which validated the 5 proposition that an unconditional offer "cannot be construed as 6 an offer to settle or compromise under Rule 408." 7 5500632, at *3. 8 evidence to suggest that the offer of reinstatement was 9 conditioned upon the compromise of the plaintiff's claims," and, The court suggested that Pierce may no Sheng, 2014 WL The district court concluded that there was "no 10 therefore, the evidence of the reinstatement offer was admissible 11 to show that appellant had not attempted to mitigate damages.2 12 Id. 13 disqualified from acting as trial counsel under the 14 advocate-witness rule because they were the only witnesses who 15 could testify before the jury as to whether MTBank extended an 16 unconditional offer and whether appellant unreasonably rejected 17 that offer. 18 19 The court further ruled that both Graff and Ronan were Id. at *4. A jury trial began on November 3, 2014. After the close of evidence, the district court granted MTBank's motion for judgment 2 The court ultimately allowed the jury to resolve "questions of fact" over whether MTBank "made an unconditional offer of reinstatement and whether the plaintiff reasonably refused the offer." Id. at *4 & n.6. This procedure followed Fed. R. Evid. 104, which directs that the trial court decide “preliminary questions” of fact governing issues of admissibility -- here, whether the reinstatement offer was conditional or not -- but allow the jury to determine the same facts where the same preliminary questions of fact go to the merits -- here, whether appellant failed to mitigate damages by declining an unconditional offer of reinstatement. 9 Case 14-4467, Document 65, 02/02/2017, 1960234, Page10 of 19 1 as a matter of law pursuant to Fed. R. Civ. P. 50(a) on a number 2 of appellant's claims, including the failure to accommodate under 3 the NYSHRL. 4 the ADA imposes an affirmative duty on employers to engage in an 5 interactive process with all employees who have requested 6 accommodations. 7 The court also declined to instruct the jury that On November 7, 2014, the jury returned a verdict for MTBank 8 on the four remaining claims: interference under the FMLA, 9 retaliation under the FMLA, failure to accommodate under the ADA, 10 and failure to accommodate under the California FEHA. On 11 December 2, 2014, appellant appealed from “the jury verdict 12 entered in this action on the 7th day of November 2014.” 13 DISCUSSION 14 a) Admissibility of the Reinstatement Offer and Attorney 15 16 Disqualification Appellant argues that the district court abused its 17 discretion by admitting evidence of MTBank’s offer of 18 reinstatement. 19 harmless. 20 basis for Graff and Ronan’s disqualification, they may appear in 21 subsequent proceedings. 22 We agree and find that this error was not Because the admission of the evidence served as the We review evidentiary rulings for abuse of discretion, 23 United States v. Cuti, 720 F.3d 453, 457 (2d Cir. 2013), a 24 standard that is met only when the district court “based its 25 ruling on an erroneous view of the law or on a clearly erroneous 10 Case 14-4467, Document 65, 02/02/2017, 1960234, Page11 of 19 1 assessment of the evidence, or rendered a decision that cannot be 2 located within the range of permissible decisions," In re Sims, 3 534 F.3d 117, 132 (2d Cir. 2008) (internal quotation marks, 4 citations, and alterations omitted). 5 new trial, however, if any error was harmless, i.e., where we 6 “can conclude with fair assurance that the evidence did not 7 substantially influence the jury.” 8 F.3d 138, 141 (2d Cir. 2009) (internal quotation marks omitted). 9 We will not vacate for a United States v. Mercado, 573 Rule 408(a) prohibits, inter alia, the admission of 10 “[e]vidence of the following . . . to prove or disprove the 11 validity or amount of a disputed claim . . . : 12 offering . . . valuable consideration in . . . attempting to 13 compromise the claim . . . .” 14 added). 15 (1) . . . Fed. R. Evid. 408(a)(1) (emphasis In Pierce, we held that "where a party is represented by 16 counsel, threatens litigation and has initiated the first 17 administrative steps in that litigation, any offer made between 18 attorneys will be presumed to be an offer within the scope of 19 Rule 408." 20 rebutted only if "[t]he party seeking admission of [the] 21 offer . . . demonstrate[s] convincingly that the offer was not an 22 attempt to compromise the claim." 23 955 F.2d at 827. The Pierce presumption can be Id. We do not agree with the district court that Pierce is “no 24 longer . . . good law” in light of our decision in Lightfoot. 25 See Sheng, 2014 WL 5500632, at *3. 11 Lightfoot’s only citation to Case 14-4467, Document 65, 02/02/2017, 1960234, Page12 of 19 1 Pierce approved the earlier decision. 2 (citing Pierce, 955 F.2d at 826-29). 3 stated the obvious: 4 not require the employee to abandon or modify his suit, and . . . 5 therefore cannot be considered an offer of settlement or 6 compromise.” 7 See 110 F.3d at 909 Indeed, Lightfoot simply “By definition, an unconditional offer may Id. Analogizing to Pierce, we conclude that the district court 8 erred in admitting evidence of MTBank’s reinstatement offer. 9 While Pierce uses the word “presumed,” it did not relegate the 10 issues to the tangled analysis sometimes employed in the area of 11 legal presumptions. 12 Committee notes. 13 inference that, even when a lawyer informs counsel for a 14 (potential) plaintiff that the (potential) defendant agrees to 15 all relief believed to be demanded, some sort of release, at the 16 very least, is expected in return. 17 almost universal, absent express reservations to the contrary, 18 renders the offer conditional and subject to exclusion under Rule 19 408. 20 See generally Fed. R. Evid. 301, Advisory Rather, it simply recognized the self-evident This expectation, which is To be sure, there may be exceptional circumstances in which 21 the parties understand that an unconditional offer is being made, 22 but no such circumstances exist here. 23 by counsel who initiated the first steps toward the litigation by 24 sending a letter dated September 20, 2012 to MTBank’s General 25 Counsel alleging unlawful discrimination on the basis of gender 12 Appellant was represented Case 14-4467, Document 65, 02/02/2017, 1960234, Page13 of 19 1 and pregnancy. The letter prompting the call was marked 2 “CONFIDENTIAL COMMUNICATION FOR SETTLEMENT PURPOSES ONLY,” and 3 the two attorneys, Graff and Ronan, began their October 12, 2012 4 call by agreeing that Rule 408 would govern the conversation. 5 course, such an agreement by itself does not preclude a party 6 from making an unconditional offer, but it does suggest that the 7 parties here were hoping to take advantage of Rule 408's 8 protection –- protection available only for conditional offers. 9 Further, although Ronan had not explicitly made reinstatement Of 10 contingent upon the execution of a release and waiver of claims, 11 the reinstatement offer was made immediately after Graff’s 12 settlement offer of $200,000 was rejected. 13 Moreover, Ronan himself admitted the offer was conditioned 14 on appellant’s forgoing litigation when he told the EEOC that 15 "[MTBank’s] decision to offer [appellant] the accommodation she 16 had demanded was not unlike any other offer of compromise 17 [MTBank]--and a myriad of other parties--may offer to stave-off 18 the vicissitudes of litigation. 19 may have been, [MTBank] ultimately decided to capitulate to 20 [appellant's] demand solely because we recognized that it would 21 be better than incurring time and expense fighting the issue." 22 J. App’x at 75. 23 reinstatement offer was conditioned upon dropping the lawsuit and 24 its monetary demand, eliminating, as a matter of law, any factual 25 issue as to whether the offer was conditional. Distasteful and disruptive as it This constitutes an admission by MTBank that the 13 Case 14-4467, Document 65, 02/02/2017, 1960234, Page14 of 19 1 While “evidentiary rulings are subject to harmless error 2 analysis,” Mercado, 573 F.3d at 141, our review of the record 3 convinces us that this error was hardly harmless. 4 App’x at 94 (MTBank’s opening statement (“[Appellant] was offered 5 ultimately exactly what she had asked for. . . . So, why are we 6 standing here today if that’s what she was offered?”)); id. at 7 260 (MTBank’s closing statement (“The bottom line I’m going to 8 offer is, [appellant’s] attorneys know that the offer is a game 9 changer. . . . You don’t always get what you want exactly when See, e.g., J. 10 you want it, but here, [appellant] was offered exactly what she 11 asked for.”)). 12 substantially affected the jury’s verdict. 13 The reinstatement offer may, therefore, have Accordingly, we vacate the judgment insofar as it adopted 14 the jury’s verdict. In addition, we also vacate the appeal 15 insofar as it adopted the district court’s order sua sponte 16 disqualifying Graff and Ronan, because that order rested on the 17 erroneous admission of evidence relating to MTBank’s 18 reinstatement offer. 19 b) The Jury Instructions 20 “We review a claim of error in the district court’s jury 21 instructions de novo, disturbing the district court’s judgment 22 only if the appellant shows that the error was prejudicial in 23 light of the charge as a whole.” 24 774 F.3d 140, 152-53 (2d Cir. 2014) (internal quotation marks 25 omitted). Turley v. ISG Lackawanna, Inc., “A jury instruction is erroneous if it misleads the 14 Case 14-4467, Document 65, 02/02/2017, 1960234, Page15 of 19 1 jury as to the correct legal standard or does not adequately 2 inform the jury on the law.” 3 F.3d 143, 153 (2d Cir. 1997) (internal citation omitted). 4 will not require a new trial “[i]f the instructions, read as a 5 whole, presented the issues to the jury in a fair and evenhanded 6 manner.” 7 2012). 8 9 Perry v. Ethan Allen, Inc., 115 We Lore v. City of Syracuse, 670 F.3d 127, 156 (2d Cir. Before this case was submitted to the jury, appellant objected to the district court’s proposed jury instructions on 10 the ground that the instruction on the ADA failure-to-accommodate 11 claim did not “include within the definition of failure to 12 accommodate a failure to engage in the interactive process with 13 the employee in violation of [the] Code of Federal Regulations 14 and Brady v. Walmart.” J. App’x at 251. Appellant presses this 15 contention on appeal, arguing in effect that a defendant’s 16 failure to engage in an interactive process is alone sufficient 17 to support a failure-to-accommodate claim under the ADA. 18 disagree. 19 employer’s failure to engage in an interactive process as 20 evidence of discrimination under the ADA. We We do hold, however, that district courts may admit an 21 “Discrimination in violation of the ADA includes, inter 22 alia, ‘not making reasonable accommodations to the known physical 23 or mental limitations of an otherwise qualified individual with a 24 disability.’" 25 583 F.3d 92, 96 (2d Cir. 2009) (quoting 42 U.S.C. McBride v. BIC Consumer Products Mfg. Co., Inc., 15 Case 14-4467, Document 65, 02/02/2017, 1960234, Page16 of 19 1 § 12112(b)(5)(A)). 2 who, with or without reasonable accommodation, can perform the 3 essential functions of the employment position that such 4 individual holds or desires.” 5 makes out a prima facie case of disability discrimination arising 6 from a failure to accommodate by showing each of the following: 7 8 9 10 11 12 13 14 15 16 17 A “qualified individual” is “an individual 42 U.S.C. § 12111(8). A plaintiff (1) [P]laintiff is a person with a disability under the meaning of the ADA; (2) an employer covered by the statute had notice of his disability; (3) with reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations. McBride, 583 F.3d at 96-97 (internal quotation marks omitted). In McBride, we agreed with “each of our sister Circuits . . . 18 that failure to engage in an interactive process does not form 19 the basis of an ADA claim in the absence of evidence that 20 accommodation was possible.” 21 Therefore, there is no valid independent claim under the ADA for 22 failure to engage in an interactive process. 23 Bus. Machines Corp., 787 F.3d 89, 97 (2d Cir. 2015) (“[Plaintiff- 24 employee] contends that [defendant-employer] failed to engage in 25 [an interactive] process, and advances an argument that this 26 failure gave rise to an independent cause of action [under the 27 ADA]. We disagree.”). Id. at 100-01 (collecting cases). See Noll v. Int’l We clarify, however, that an employer’s 16 Case 14-4467, Document 65, 02/02/2017, 1960234, Page17 of 19 1 failure to engage in a good faith interactive process3 can be 2 introduced as evidence tending to show disability discrimination, 3 McBride, 583 F.3d at 101 (citing Barnett v. U.S. Air, Inc., 228 4 F.3d 1105, 1116 (9th Cir. 2000) (en banc), rev'd on other 5 grounds, 535 U.S. 391 (2002); Cravens v. Blue Cross and Blue 6 Shield of Kansas City, 214 F.3d 1011, 1020-21 (8th Cir. 2000); 7 Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 952 (8th Cir. 8 1999); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 317-20 9 (3d Cir. 1999)), and that “the employer has refused to make [a 10 11 reasonable] accommodation,” 583 F.3d at 96-97. The regulations implementing the ADA are consistent with our 12 view that a failure to engage in a good faith interactive process 13 is not an independent violation of the ADA. 14 “[t]o determine the appropriate reasonable accommodation it may 15 be necessary for the [employer] to initiate an informal, 16 interactive process with the [qualified] individual with a 17 disability in need of the accommodation.” 18 § 1630.2(o)(3) (emphasis added). 19 refused to interact with the claimant, a violation of the ADA 20 requires a showing of a disability as defined by the ADA, proof 3 They state that, 29 C.F.R. Even where the employer has An employer engages in an interactive process by, for example, "meeting with the employee who requests an accommodation, requesting information about the condition and what limitations the employee has, asking the employee what he or she specifically wants, showing some sign of having considered the employee's request, and offering and discussing available alternatives when the request is too burdensome." Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 218-19 (2d Cir. 2001) (internal quotation marks and alterations omitted). 17 Case 14-4467, Document 65, 02/02/2017, 1960234, Page18 of 19 1 of qualification, and the existence of a reasonable 2 accommodation. 3 failure to engage in a sufficient interactive process does not 4 form the basis of a claim under the ADA and evidence thereof does 5 not allow a plaintiff to avoid summary judgment unless she also 6 establishes that, at least with the aid of some identified 7 accommodation, she was qualified for the position at issue."). 8 We see no conflict between this proposition and our ruling 9 See McBride, 583 F.3d at 101 ("[A]n employer's with regard to the exclusion of Ronan’s offer under Rule 408, 10 discussed supra, and admitting evidence of MTBank’s failure to 11 discuss possible accommodations. 12 conditioned upon the dropping of monetary claims does not fulfill 13 the requirements of the ADA as to an interactive process. 14 Act clearly imposes a duty to provide an accommodation in job 15 requirements, if feasible. 16 only to the feasibility of accommodating employer/employee needs. 17 Conditioning proposed accommodations on the dropping of claims 18 does not fulfill that obligation. An offer of an accommodation The The discussion obligation relates 19 c) The NYSHRL Claim 20 Appellant contends that the district court erred in granting 21 MTBank’s motion for judgment as a matter of law, Fed. R. Civ. P. 22 50(a), on her failure to accommodate claim under the NYSHRL –- 23 arguing that this claim had the same factual premises and was 24 governed by the same legal principles as her ADA failure-to- 25 accommodate claim, which was allowed to proceed to trial. 18 Case 14-4467, Document 65, 02/02/2017, 1960234, Page19 of 19 1 However, appellant did not properly preserve this issue for 2 appeal. 3 A notice of appeal must “designate the judgment, order, or 4 part thereof being appealed.” 5 requirement is jurisdictional, Gonzalez v. Thaler, 132 S. Ct. 6 641, 651-52 (2012), but “it is well settled that courts should 7 apply a liberal interpretation to that requirement,” Conway v. 8 Vill. Of Mount Kisco, 750 F.2d 205, 211 (2d Cir. 1984). 9 Fed. R. App. P. 3(c)(1)(B). The Here, appellant’s Notice of Appeal appealed “from the jury 10 verdict entered in this action on the 7th day of November 2014,” 11 not from the district court’s prior judgment as a matter of law. 12 J. App’x at 272 (emphasis added). 13 the first time in her opening brief to this court that the 14 district court erred in its entry of judgment on the NYSHRL 15 claims. 16 preserve her argument that the district court erred in granting 17 MTBank’s Rule 50(a) motion. 18 19 Indeed, appellant argued for As a result, we find that appellant did not properly CONCLUSION For the foregoing reasons, we vacate the judgment in part, 20 insofar as it adopted the jury’s verdict and the district court’s 21 disqualification order; dismiss the appeal in part, insofar as it 22 pertains to claims under the NYSHRL; and remand for further 23 proceedings consistent with this opinion. 24 19

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