Sheng v. MTBank Corporation

Filing

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]

Case 14-4467, Document 65, 02/02/2017, 1960234, Page1 of 19

14-4467-cv
Jia Sheng v. MTBank Corporation

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UNITED STATES COURT OF APPEALS

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FOR THE SECOND CIRCUIT

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August Term, 2015

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(Argued: October 21, 2015

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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

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Court for the Western District of New York (Hugh B. Scott,

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Magistrate Judge) after a jury verdict.

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appellant’s federal claims of disability discrimination,

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retaliation, and failure to accommodate.

26

the district court erred by (i) admitting evidence of an offer of

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settlement in violation of Fed. R. Evid. 408, (ii) disqualifying

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her attorney and opposing counsel, (iii) not instructing jurors

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on the requirement of an interactive process under the Americans

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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

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New York State Human Rights Law (NYSHRL) claim.

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judgment in part, insofar as it adopted the jury’s verdict and

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the district court’s disqualification order; dismiss the appeal

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in part, insofar as it pertains to claims under the NYSHRL; and

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remand for further proceedings consistent with this opinion.

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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:

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Jia Sheng brought this action against appellees

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(collectively MTBank1), claiming violations of various state and

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federal statutes by not allowing her to work remotely when she

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became pregnant.

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Scott ruled as a matter of law against appellant on a number of

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claims, while the jury found for MTBank on the remaining claims.

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On appeal, appellant contends that the district court erred

After the close of evidence, Magistrate Judge

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by:

(i) admitting evidence in violation of Fed. R. Evid. 408

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that MTBank made an offer of reinstatement allowing her to work

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remotely, (ii) disqualifying the attorneys for both parties under

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the advocate-witness rule, (iii) not instructing jurors on her

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claim that MTBank violated the Americans with Disabilities Act of

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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

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(iv) dismissing as a matter of law appellant’s New York State

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Human Rights Law (NYSHRL) claim, which appellant argues had the

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same legal and factual underpinnings as her ADA claim that was

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presented to the jury.

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We hold that (i) the district court abused its discretion in

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admitting evidence of the reinstatement offer because the offer

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was, as a matter of law, not unconditional;(ii) the district

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court erred in sua sponte disqualifying the attorneys, because

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the disqualification depended on the erroneous admission of

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evidence relating to the reinstatement offer; (iii) the jury

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instructions were not erroneous; and (iv) we lack jurisdiction

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over appellant’s challenge to the district court’s NYSHRL ruling.

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We vacate the judgment in part, insofar as it adopted the

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jury’s verdict and the district court’s disqualification order;

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dismiss the appeal in part, insofar as it pertains to claims

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under the NYSHRL; and remand for further proceedings consistent

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with this opinion.

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19

BACKGROUND
“In reviewing this record we construe all evidence, draw all

20

inferences, and make all credibility determinations in favor of

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the party that prevailed before the jury.” DiBella v. Hopkins,

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403 F.3d 102, 110 (2d Cir. 2005).

23

In January 2010, appellant began her employment with MTBank

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in Buffalo, New York as a Lead on its Quality Assurance Test

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(QAT) team in the bank’s Central Technology (CT) Department.
3

The

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QAT team executes system testing of computer programs for bank

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applications.

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position and relocate to Los Angeles, where her husband had taken

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a job.

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she continue to work at MTBank remotely through the bank’s

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Alternative Work Arrangement (AWA) policy.

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"[a]n employee's failure to resume [a] traditional work schedule

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or location upon revocation of an AWA will be considered a

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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

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reorganization of the CT Department, including the QAT team.

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This reorganization was intended to facilitate the Voyager

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Project, a planned overhaul of MTBank’s existing online banking

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system.

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CT Department employees.

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appellant, management explained that, in light of the

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reorganization, all AWAs would be reviewed.

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Holcomb called appellant, who confirmed that she understood that

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her AWA status could be affected by the reorganization.

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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

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replaced Holcomb as appellant’s supervisor and in turn reported

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to Holcomb -- that she was pregnant.

25

expressed concern about her AWA policy.
4

Shortly thereafter, she
Management determined,

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however, that team leads would need to be physically present in

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Buffalo at least two days per week in order to communicate and

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work directly with the individuals implementing the Voyager

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Project.

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status and not based in Buffalo.

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notified appellant that her AWA status would be altered, and that

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she would need to begin traveling to Buffalo.

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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

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meeting to discuss the possibility of delaying the start of her

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commute to Buffalo until after she gave birth.

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meeting with Holcomb, however, appellant was informed that her

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request to be exempted from traveling to Buffalo during the

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duration of her pregnancy was denied.

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deadline of July 27 to confirm that she would begin reporting to

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Buffalo in early August.

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At a July 3, 2012

Appellant was given a

On July 19, appellant submitted a letter from her

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obstetrician to Holcomb and MTBank’s Human Resources Department,

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stating that, for health reasons, she should not engage in air

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travel for the duration of her pregnancy.

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letter, Human Resources and MTBank management examined whether

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appellant could work on non-Voyager Project matters until she

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gave birth in December 2012.

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enough non-Voyager work to keep her occupied.

After receiving this

They concluded that there was not

5

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For the next eight weeks, appellant received minimal

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communication from MTBank, except for periodic directives that

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she continue working.

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notified appellant that she should either permanently relocate to

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Buffalo within thirty days or apply for and, if eligible, take

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early short-term disability leave, allowing her to remain in

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California through the end of her pregnancy.

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neither of these options, she would be terminated and given

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eleven weeks of severance pay.

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Finally, on September 11, 2012, MTBank

If she chose

On September 14, 2012, appellant emailed MTBank, rejecting

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its offers.

She explained that she was "not able to relocate to

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Buffalo within the next 30 days due to medical restrictions on

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[her] ability to travel during [her] pregnancy."

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On September 20, 2012, Ariel Y. Graff, an attorney for appellant,

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wrote a letter to MTBank’s General Counsel stating that appellant

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had been "effectively terminated . . . because of her

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pregnancy . . . Constitut[ing] unlawful discrimination on the

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basis of gender, pregnancy and pregnancy-related medical

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conditions."

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in part, "to offer the Company and potential individually named

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Defendants the opportunity to avoid a costly legal action that

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will result in substantial liability and adverse publicity for

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the Company and its executives."

Id. at 60-62.

J. App’x at 78.

He also stated that he was writing,

Id. at 62.

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The letter was forwarded to MTBank's vice-president and

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counsel, Sean Ronan, who spoke with Graff by telephone on October
6

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12, 2012.

At the start of the conversation, Graff made clear,

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and Ronan agreed, that Rule 408 of the Federal Rules of Evidence,

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Fed. R. Evid. 408 (providing that offers of settlement are

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inadmissible in later proceedings under certain conditions),

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would govern the conversation.

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offer demanding $200,000.

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prepared to agree to such a monetary settlement.

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suggested that appellant be reinstated and that she be allowed to

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work remotely from Los Angeles for the remainder of her

Graff then made a settlement

Ronan responded that the bank was not
Instead, he

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pregnancy.

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offer was conditioned upon the execution of a release of

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appellant’s claims for monetary damages.

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the Equal Employment Opportunity Commission (EEOC), Ronan

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described his oral offer to appellant as follows:

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to offer [appellant] the accommodation she had demanded was not

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unlike any other offer of compromise [MTBank] -- and a myriad of

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other parties -- may offer to stave-off the vicissitudes of

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litigation.

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ultimately decided to capitulate to [appellant's] demand solely

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because we recognized that it would be better than incurring time

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and expense fighting the issue."

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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

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the present action, eventually amending her complaint to allege

25

that MTBank had:

(i) engaged in unlawful interference under the
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Family Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., the

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California Family Rights Act, Cal. Gov’t Code § 12945.2, and the

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California Pregnancy Disability Leave Law, Cal. Gov’t Code §

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12945(a); (ii) unlawfully retaliated under the FMLA, Title VII of

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the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the ADA,

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42 U.S.C. § 12101 et seq., and the NYSHRL, N.Y. Exec. Law § 290

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et seq.; (iii) unlawfully discriminated under Title VII, the ADA,

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and the NYSHRL; and (iv) failed to provide a reasonable

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accommodation under the ADA, the NYSHRL, and the California Fair

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Employment and Housing Act (FEHA), Cal. Gov’t Code § 12940.
Before trial, appellant filed a motion in limine with the

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district court, seeking to exclude "[a]ll offers made by [MTBank]

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to reinstate [appellant] in exchange for settling the instant

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action" pursuant to Federal Rule of Evidence 408.

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at 8.

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reinstatement offer was admissible to show that appellant failed

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to mitigate damages and, second, should not be excluded under

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Rule 408 because the offer was unconditional, i.e., was not

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contingent on appellant’s releasing MTBank from liability.

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MTBank opposed the motion.

See J. App’x

It argued, first, that the

After an evidentiary hearing, the district court denied

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appellant's motion.

The court reasoned that, under Pierce v.

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F.R. Tripler & Co., 955 F.2d 820, 827 (2d Cir. 1992), an offer of

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settlement made by defendant's counsel to plaintiff's counsel is

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presumed to be inadmissible unless there is "convincin[g

25

evidence] that the offer was not an attempt to compromise the
8

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claim."

Sheng v. M & T Bank Corp., 2014 WL 5500632, at *3

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(W.D.N.Y. Oct. 30, 2014).

3

longer be good law in light of our decision in Lightfoot v. Union

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Carbide Corp., 110 F.3d 898 (2d Cir. 1997), which validated the

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proposition that an unconditional offer "cannot be construed as

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an offer to settle or compromise under Rule 408."

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5500632, at *3.

8

evidence to suggest that the offer of reinstatement was

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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

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to show that appellant had not attempted to mitigate damages.2

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Id.

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disqualified from acting as trial counsel under the

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advocate-witness rule because they were the only witnesses who

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could testify before the jury as to whether MTBank extended an

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unconditional offer and whether appellant unreasonably rejected

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that offer.

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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

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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

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the NYSHRL.

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the ADA imposes an affirmative duty on employers to engage in an

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interactive process with all employees who have requested

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accommodations.

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The court also declined to instruct the jury that

On November 7, 2014, the jury returned a verdict for MTBank

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on the four remaining claims:

interference under the FMLA,

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retaliation under the FMLA, failure to accommodate under the ADA,

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and failure to accommodate under the California FEHA.

On

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December 2, 2014, appellant appealed from “the jury verdict

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entered in this action on the 7th day of November 2014.”

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DISCUSSION

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a) Admissibility of the Reinstatement Offer and Attorney

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Disqualification
Appellant argues that the district court abused its

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discretion by admitting evidence of MTBank’s offer of

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reinstatement.

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harmless.

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basis for Graff and Ronan’s disqualification, they may appear in

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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
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assessment of the evidence, or rendered a decision that cannot be

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located within the range of permissible decisions," In re Sims,

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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 . . . :

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offering . . . valuable consideration in . . . attempting to

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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

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Pierce approved the earlier decision.

2

(citing Pierce, 955 F.2d at 826-29).

3

stated the obvious:

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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

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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

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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

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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

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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

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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