     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                          Decided: February 2, 2017)

5                                Docket No.        14-4467-CV

6    - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
 7   Jia Sheng,
 8
 9                Plaintiff-Appellant,
10
11                      v.
12
13   M&TBank Corporation, Manufacturers & Traders Trust Company, d/b/a
14   M&TBank,
15
16                Defendants-Appellees.
17
18   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
19
20   B e f o r e:       KEARSE, WINTER, and CABRANES, Circuit Judges.

21         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.              The jury rejected

24   appellant’s federal claims of disability discrimination,

25   retaliation, and failure to accommodate.              Appellant argues that

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
1    New York State Human Rights Law (NYSHRL) claim.           We vacate the

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                           GEORGE D. VALLAS, The Ottinger Firm, P.C.,
 7                           New York, NY, for Plaintiff-Appellant.
 8
 9                           JUSTIN C. ELLER, Miles & Stockbridge, P.C.,
10                           Baltimore, MD, for Defendants-Appellees.
11
12   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.      After the close of evidence, Magistrate Judge

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

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
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                              BACKGROUND

19        “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.     The

                                     3
1    QAT team executes system testing of computer programs for bank

2    applications.   In March 2011, appellant decided to resign her

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

4    a job.    However, her supervisor, Monica Holcomb, suggested that

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

6    Alternative Work Arrangement (AWA) policy.    Under the 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."   J. App’x at 77.   Appellant

10   accepted Holcomb’s offer and began working remotely from

11   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.    On May 30, 2012, MTBank announced the reorganization to

17   CT Department employees.    In a meeting attended remotely by

18   appellant, management explained that, in light of the

19   reorganization, all AWAs would be reviewed.   Later that day,
20   Holcomb called appellant, who confirmed that she understood that

21   her AWA status could be affected by the reorganization.

22        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.    Shortly thereafter, she

25   expressed concern about her AWA policy.    Management determined,

                                       4
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.   At the time, appellant was the only employee on AWA

5    status and not based in Buffalo.       On June 27, 2012, Holcomb

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

7    she would need to begin traveling to Buffalo.

8         The following day, on June 28, 2012, appellant emailed

9    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.       At a July 3, 2012

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.       Appellant was given a

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

16   Buffalo in early August.

17        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.       After receiving this

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.   They concluded that there was not

24   enough non-Voyager work to keep her occupied.



                                        5
1         For the next eight weeks, appellant received minimal

2    communication from MTBank, except for periodic directives that

3    she continue working.   Finally, on September 11, 2012, MTBank

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.        If she chose

8    neither of these options, she would be terminated and given
9    eleven weeks of severance pay.

10        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."        J. App’x at 78.

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."   Id. at 60-62.   He also stated that he was writing,

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 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
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.    Graff then made a settlement

6    offer demanding $200,000.    Ronan responded that the bank was not

7    prepared to agree to such a monetary settlement.         Instead, he

8    suggested that appellant be reinstated and that she be allowed to

9    work remotely from Los Angeles for the remainder of her

10   pregnancy.    No explicit statement was made that the reinstatement

11   offer was conditioned upon the execution of a release of

12   appellant’s claims for monetary damages.       Later, in a letter to

13   the Equal Employment Opportunity Commission (EEOC), Ronan

14   described his oral offer to appellant as follows:         "Our decision

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.    Distasteful and disruptive as it may have been, we
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."       J. App’x at 75.

22        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
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   Employment and Housing Act (FEHA), Cal. Gov’t Code § 12940.

11        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.    See J. App’x

15   at 8.   MTBank opposed the motion.   It argued, first, that the

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

2    (W.D.N.Y. Oct. 30, 2014).       The court suggested that Pierce may no

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."            Sheng, 2014 WL

7    5500632, at *3.     The district court concluded that there was "no

8    evidence to suggest that the offer of reinstatement was
9    conditioned upon the compromise of the plaintiff's claims," and,

10   therefore, the evidence of the reinstatement offer was admissible

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

12   Id.   The court further ruled that both Graff and Ronan were

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.    Id. at *4.

18         A jury trial began on November 3, 2014.          After the close of
19   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
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.   The court also declined to instruct the jury that

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         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   Disqualification

16        Appellant argues that the district court abused its

17   discretion by admitting evidence of MTBank’s offer of

18   reinstatement.    We agree and find that this error was not
19   harmless.   Because the admission of the evidence served as the

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

21   subsequent proceedings.

22        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
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).     We will not vacate for a

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.”     United States v. Mercado, 573

8    F.3d 138, 141 (2d Cir. 2009) (internal quotation marks omitted).
9         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 . . . :     (1) . . .

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

13   compromise the claim . . . .”    Fed. R. Evid. 408(a)(1) (emphasis

14   added).

15        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."   955 F.2d at 827.   The Pierce presumption can be

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."     Id.

23        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.     Lightfoot’s only citation to

                                      11
1    Pierce approved the earlier decision.      See 110 F.3d at 909

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

3    stated the obvious:     “By definition, an unconditional offer may

4    not require the employee to abandon or modify his suit, and . . .

5    therefore cannot be considered an offer of settlement or

6    compromise.”    Id.

7           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.     See generally Fed. R. Evid. 301, Advisory

12   Committee notes.      Rather, it simply recognized the self-evident

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.      This expectation, which is

17   almost universal, absent express reservations to the contrary,

18   renders the offer conditional and subject to exclusion under Rule

19   408.

20          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.      Appellant was represented

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
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.    Of

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

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.    Distasteful and disruptive as it
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.    This constitutes an admission by MTBank that the

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.


                                       13
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.    See, e.g., J.

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

10   you want it, but here, [appellant] was offered exactly what she

11   asked for.”)).   The reinstatement offer may, therefore, have

12   substantially affected the jury’s verdict.

13        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.”     Turley v. ISG Lackawanna, Inc.,

24   774 F.3d 140, 152-53 (2d Cir. 2014) (internal quotation marks

25   omitted).   “A jury instruction is erroneous if it misleads the


                                     14
1    jury as to the correct legal standard or does not adequately

2    inform the jury on the law.”    Perry v. Ethan Allen, Inc., 115

3    F.3d 143, 153 (2d Cir. 1997) (internal citation omitted).    We

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.”    Lore v. City of Syracuse, 670 F.3d 127, 156 (2d Cir.

7    2012).

8         Before this case was submitted to the jury, appellant
9    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.    We

18   disagree.    We do hold, however, that district courts may admit an
19   employer’s failure to engage in an interactive process as

20   evidence of discrimination under the ADA.

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.’"    McBride v. BIC Consumer Products Mfg. Co., Inc.,

25   583 F.3d 92, 96 (2d Cir. 2009) (quoting 42 U.S.C.


                                      15
1    § 12112(b)(5)(A)).   A “qualified individual” is “an individual

2    who, with or without reasonable accommodation, can perform the

3    essential functions of the employment position that such

4    individual holds or desires.”   42 U.S.C. § 12111(8).   A plaintiff

5    makes out a prima facie case of disability discrimination arising

6    from a failure to accommodate by showing each of the following:

 7              (1) [P]laintiff is a person with a
 8              disability under the meaning of the ADA;
 9              (2) an employer covered by the statute
10              had notice of his disability; (3) with
11              reasonable accommodation, plaintiff
12              could perform the essential functions of
13              the job at issue; and (4) the employer
14              has refused to make such accommodations.
15
16   McBride, 583 F.3d at 96-97 (internal quotation marks omitted).

17      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.”    Id. at 100-01 (collecting cases).

21   Therefore, there is no valid independent claim under the ADA for

22   failure to engage in an interactive process.   See Noll v. Int’l

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.”).   We clarify, however, that an employer’s




                                      16
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   reasonable] accommodation,” 583 F.3d at 96-97.

11       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.           They state that,

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.”          29 C.F.R.

18   § 1630.2(o)(3) (emphasis added).          Even where the employer has
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
             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
1    of qualification, and the existence of a reasonable

2    accommodation.   See McBride, 583 F.3d at 101 ("[A]n employer's

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    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.     An offer of an accommodation

12   conditioned upon the dropping of monetary claims does not fulfill

13   the requirements of the ADA as to an interactive process.     The

14   Act clearly imposes a duty to provide an accommodation in job

15   requirements, if feasible.   The discussion obligation relates

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.
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
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.”    Fed. R. App. P. 3(c)(1)(B).   The

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         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).      Indeed, appellant argued for

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.   As a result, we find that appellant did not properly

16   preserve her argument that the district court erred in granting

17   MTBank’s Rule 50(a) motion.

18                                 CONCLUSION
19        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




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