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 11 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 MTBank ), claiming violations of various state and 1 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

Appel lant namedas defendants in he r complain t “M& T Ban k Corporat ion, 1 and Manufa cture rs & Trade rs Tr ust C ompan y d/b /a M& T Ban k.” We re fer t o them colle ctive ly he rein as “MTBank .” 21 (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

31 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,

41 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.

51 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 61 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 71 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 81 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

The c ourt ultimatelyallowed t he ju ry toreso lve " quest ions of fa ct" 2 over wheth er MT Bank "madean u ncond ition al of fer o f rei nstat ementand wheth er the p laint iff r eason ably refus ed th e off er." Id. at *4 & n. 6. T his p rocedure followed F ed. R . Evi d. 10 4, wh ich d irect s tha t thetria l cou rt de cide “prel imina ry qu estio ns” o f fac t governin g iss ues o f admissib ility-- h ere, wheth er th e rei nstat ementoffe r was cond ition al ornot -- bu t all ow th e jur y to de termi ne th e same fac ts wh ere t he same pr elimi nary quest ions of fa ct goto the merits -- h ere, wheth er appella nt fa iled to mi tigat e damages by de clini ng an un condi tiona l off er ofrein statement.

91 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 101 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 111 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

121 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.

131 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

141 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.

151 § 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) (“[Plaintiff24 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

161 failure to engage in a good faith interactive process can be 3 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

An employe r eng ages in aninte racti ve pr ocessby, for e xampl e, 3 "meet ing w ith t he employe e whorequ ests an ac commo datio n, re quest ing informatio n abo ut th e con ditio n andwhatlimi tatio ns th e emp loyeehas, aski ng the employee wh at heor s he sp ecifi callywant s, sh owingsomesignof h aving consi deredthe emplo yee's requ est, and o fferi ng an d dis cussi ng availab le alter natives wh en th e request is to o bur densome." Love joy-W ilsonv. NOCO MotorFuel , Inc ., 26 3 F.3 d 208 , 218 -19 ( 2d Ci r. 20 01) ( inter nal quotat ion marks and alter ation s omi tted) .

171 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-to25 accommodate claim, which was allowed to proceed to trial.

181 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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