Jia SHENG, Plaintiff-Appellant, v. M&TBANK CORPORATION, Manufacturers & Traders Trust Company, d/b/a M&TBank, Defendants-Appellees.
Docket No. 14-4467-CV
United States Court of Appeals, Second Circuit.
February 2, 2017
August Term, 2015
Argued: October 21, 2015
Because the district court relied only on the untranslated document to calculate Román‘s total offense level, that document “affect[s] the disposition” of his appeal. See Millán-Isaac, 749 F.3d at 64. We therefore must vacate Román‘s sentence and remand for resentencing. We need not reach Román‘s remaining claims of error.
Finally, we briefly address resentencing. The untranslated document was not evidence, and so any certified translation would constitute new evidence. In general, “the district court may consider only such new arguments or new facts as are made newly relevant by the court of appeals’ decision” on remand for resentencing. United States v. Dávila-Félix, 763 F.3d 105, 110 (1st Cir. 2014) (alteration omitted), (quoting, United States v. Ticchiarelli, 171 F.3d 24, 32 (1st Cir. 1999)). We have previously allowed additional factfinding where the Government did not have an incentive to present evidence, but not “where the government asked for the enhancement but failed to adduce sufficient proof for its imposition—a situation in which there would not likely be reason to permit a second bite at the apple.” United States v. Montero-Montero, 370 F.3d 121, 124 (1st Cir. 2004). Here, the Government asked for a total offense level of seventeen “but failed to adduce sufficient proof for its imposition.” See id. The Jones Act requires federal courts to conduct proceedings “in the English language,”
III. CONCLUSION
We vacate Román‘s sentence and remand for resentencing because the district court improperly relied on an untranslated document in calculating Román‘s offense level.
Vacated and Remanded.
JUSTIN C. ELLER, Miles & Stockbridge, P.C., Baltimore, MD, for Defendants-Appellees.
Before: KEARSE, WINTER, and CABRANES, Circuit Judges.
WINTER, Circuit Judge:
Jia Sheng brought this action against appellees (collectively MTBank1), claiming violations of various state and federаl statutes by not allowing her to work remotely when she became pregnant. After the close of evidence, Magistrate Judge Scott ruled as a matter of law against appellant on a number of claims, while the jury found for MTBank on the remaining claims.
On appeal, appellant contends that the district court erred by: (i) admitting evidence in violation of
We hold that (i) the district court abused its discretion in admitting evidence of the reinstatement offer because the offer was, as a matter of law, not unconditional; (ii) the district court erred in sua sponte disqualifying the аttorneys, because the disqualification depended on the erroneous admission of evidence relating to the reinstatement offer; (iii) the jury instructions were not erroneous; and (iv) we lack jurisdiction over appellant‘s challenge to the district court‘s NYSHRL ruling.
We vacate the judgment in part, insofar as it adopted the jury‘s verdict and the district court‘s disqualification order; dismiss the appeal in part, insofar as it pertains to claims under the NYSHRL; and remand for further proceedings consistent with this opinion.
BACKGROUND
“In reviewing this record we construe all evidence, draw all inferences, and make all credibility determinations in favor of the party that prevailed before the jury.” DiBella v. Hopkins, 403 F.3d 102, 110 (2d Cir. 2005).
In January 2010, appellant began her employment with MTBank in Buffalo, New York as a Lead on its Quality Assurance Test (QAT) team in the bank‘s Central Technology (CT) Department. The QAT team executes system testing of computer programs for bank applications. In March 2011, appellant decided to resign her position and relocate to Los Angelеs, where her husband had taken a job. However, her supervisor, Monica Holcomb, suggested that she continue to work at MTBank remotely through the bank‘s Alternative Work Arrangement (AWA) policy. Under the AWA policy, “[a]n employee‘s failure to resume [a] traditional work schedule or location upon revocation of an AWA will be considered a voluntary resignation of employment.” J. App‘x at 77. Appellant accepted Holcomb‘s offer and began working remotely from California.
The next day, appellant notified Lonnie Basciani—who had replaced Holcomb as appellant‘s supervisor and in turn reported to Holcomb—that she was pregnant. Shortly thereafter, she expressed concern about her AWA policy. Management determined, however, that team leads would need to be physically present in Buffalo at least two days per week in order to communicate and work directly with the individuals implementing the Voyager Project. At the time, appellant was the only employee on AWA status and not based in Buffalo. On June 27, 2012, Holcomb notified appellant that her AWA status would be altered, and that she would need to begin traveling to Buffalo.
The following day, on June 28, 2012, appellant emailed Holcomb and MTBank‘s Human Resources Department, requesting a meeting to discuss the possibility of delaying the start of her commute to Buffalo until after she gave birth. At a July 3, 2012 meeting with Holcomb, however, appellant was informed that her request to be exempted from traveling to Buffalo during the duration of her pregnancy was denied. Appellant was given a deadline of July 27 to confirm that she would begin reporting to Buffalo in early August.
On July 19, appellant submitted a letter from her obstetrician to Holcomb and MTBank‘s Human Resources Department, stating that, for health reasons, she should not engage in air travel for the duration of her pregnancy. After receiving this letter, Human Resources and MTBank management examined whether appellant could work on non-Voyager Project matters until she gave birth in December 2012. They concluded that there was not enough non-Voyager work to keep her occupied.
For the next eight weeks, appellant received minimal communication from MTBank, except for periodic directives that she continue working. Finally, on September 11, 2012, MTBank notified appellant that she should either permanently relocate to Buffalo within thirty days or apply for and, if eligible, take early short-term disability leave, allowing her to remain in California through the end of her pregnancy. If she chose neither of these options, she would be terminated and given eleven weeks of severance pay.
On September 14, 2012, appellant emailed MTBank, rejecting its offers. She explained that she was “not able to relocate to Buffalo within the next 30 days due to medical restrictions on [her] ability to travel during [her] pregnancy.” J. App‘x at 78. On September 20, 2012, Ariel Y. Graff, an attorney for appellant, wrote a letter to MTBank‘s General Counsel stating that appellant had been “effectively terminated . . . because of her pregnancy . . . Constitut[ing] unlawful discrimination on the basis of gender, pregnancy and pregnancy-related medical conditions.” Id. at 60-62. He also stated that he was writing, in part, “to offer the Company and potential individually named Defendants the opportunity to avoid a costly legal action that will result in substantial liability and adverse publicity for the Company and its executives.” Id. at 62.
On November 8, 2012, appellant filed a Charge of Discrimination with the EEOC. On the same day, appellant filed the present action, eventually amending her complaint to allege that MTBank had: (i) engaged in unlawful interference under the Family Medical Leave Act (FMLA),
Before trial, appellant filed a motion in limine with the district court, seeking to exclude “[a]ll offers made by [MTBank] to reinstate [appellant] in exchange for settling thе instant action” pursuant to
After an evidentiary hearing, the district court denied appellant‘s motion. The court reasoned that, under Pierce v. F.R. Tripler & Co., 955 F.2d 820, 827 (2d Cir. 1992), an offer of settlement made by defendant‘s counsel to рlaintiff‘s counsel is presumed to be inadmissible unless there is “convin[cing evidence] that the offer was not an attempt to compromise the claim.” Sheng v. M & T Bank Corp., 2014 WL 5500632, at *3 (W.D.N.Y. Oct. 30, 2014). The court suggested that Pierce may no longer be good law in light of our decision in Lightfoot v. Union Carbide Corp., 110 F.3d 898 (2d Cir. 1997), which validated the proposition that an unconditional offer “cannot be construed as an offer to settle or compromise under
A jury trial began on November 3, 2014. After the close of evidence, the district court granted MTBank‘s motion for judgment as a matter of law pursuant to
On November 7, 2014, the jury returned a verdict for MTBank on the four remaining claims: interference under the FMLA, retaliation under the FMLA, failure to accommodate under the ADA, and failure to accommodate under the California FEHA. On December 2, 2014, appellant appealed from “the jury verdict entered in this action on the 7th day of November 2014.”
DISCUSSION
a) Admissibility of the Reinstatement Offer and Attorney Disqualification
Appellant argues that the district court abused its discretion by admitting evidence2 of MTBank‘s offer of reinstatement. We agree and find that this error was not harmless. Because the admission of the evidence served as the basis for Graff and Ronan‘s disqualification, they may appear in subsequent proceedings.
We review evidentiary rulings for abuse of discretion, United States v. Cuti, 720 F.3d 453, 457 (2d Cir. 2013), a standard that is met only when the district court “based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within the range of permissible decisions,” In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (internal quotation marks, citations, and alterations omitted). We will not vacate for a new trial, however, if any error was harmless, i.e., where we “can conclude with fair assurance that the evidence did not substantially influence the jury.” United States v. Mercado, 573 F.3d 138, 141 (2d Cir. 2009) (internal quotation marks omitted).
In Pierce, we held that “where a party is represented by counsel, threatens litigation and has initiated the first administrative steps in that litigation, any offer made between attorneys will be presumed to be
We do not agree with the district court that Pierce is “no longer . . . good law” in light of our decision in Lightfoot. See Sheng, 2014 WL 5500632, at *3. Lightfoot‘s only citation to Pierce approved the earlier decision. See 110 F.3d at 909 (citing Pierce, 955 F.2d at 826-29). Indeed, Lightfoot simply stated the obvious: “By definition, an unconditional offer may not require the employee to abandon or modify his suit, and . . . therefore cannot be considered an offer of settlement or compromise.” Id.
Analogizing to Pierce, we conclude that the district court erred in admitting evidence of MTBank‘s reinstatement offer. While Pierce uses the word “presumed,” it did not relegate the issues to the tangled analysis sometimes employed in the area of legal рresumptions. See generally
To be sure, there may be exceptional circumstances in which the parties understand that an unconditional offer is being made, but no such circumstances exist here. Appellant was represented by counsel who initiated the first steps toward the litigation by sending a letter dated September 20, 2012 to MTBank‘s General Counsel alleging unlawful discrimination on the basis of gender and pregnancy. The letter prompting the call was marked “CONFIDENTIAL COMMUNICATION FOR SETTLEMENT PURPOSES ONLY,” and the two attorneys, Graff and Ronan, began their October 12, 2012 call by agreeing that
Moreover, Ronan himself admitted the offer was conditioned on appellant‘s forgoing litigation when he told the EEOC that “[MTBank‘s] decision to offer [appellant] the accommodation she had demanded was not unlike any other offer of compromise [MTBank]—and a myriad of other parties—may offer to stave-off the vicissitudes of litigation. Distasteful and disruptive as it may have been, [MTBank] ultimately decided to capitulate to [appellant‘s] demand solely becаuse we recognized that it would be better than incurring time and expense fighting the issue.” J. App‘x at 75. This constitutes an admission by MTBank that the reinstatement offer was conditioned upon dropping the lawsuit and its monetary demand, eliminating, as a matter of law, any factual issue as to whether the offer was conditional.
While “evidentiary rulings are subject to harmless error analysis,” Mercado, 573 F.3d at 141, our review of the record convinces us that this error was hardly harmless. See, e.g., J. App‘x at 94 (MTBank‘s opening statement (“[Appel-lant] was offerеd ultimately exactly what
Accordingly, we vacate the judgment insofar as it adopted the jury‘s verdiсt. In addition, we also vacate the appeal insofar as it adopted the district court‘s order sua sponte disqualifying Graff and Ronan, because that order rested on the erroneous admission of evidence relating to MTBank‘s reinstatement offer.
b) The Jury Instructions
“We review a claim of error in the district court‘s jury instructions de novo, disturbing the district court‘s judgment only if the appellant shows that the error was prejudicial in light of the charge as a whole.” Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 152-53 (2d Cir. 2014) (internal quotation marks omitted). “A jury instruction is erroneous if it misleads the jury as to the correct legal standard or does not adequately inform the jury on the law.” Perry v. Ethan Allen, Inc., 115 F.3d 143, 153 (2d Cir. 1997) (internal citation omitted). We will not require a new trial “[i]f the instructions, read as a whole, presented the issues to the jury in a fair and evenhanded manner.” Lore v. City of Syracuse, 670 F.3d 127, 156 (2d Cir. 2012).
Before this case was submitted to the jury, appellant objected to the district court‘s proposed jury instructions on the ground that the instruction on the ADA failure-to-accommodate claim did not “include within the definition of failure to accommodate a failure to engage in the interactive рrocess with the employee in violation of [the] Code of Federal Regulations and Brady v. Walmart.” J. App‘x at 251. Appellant presses this contention on appeal, arguing in effect that a defendant‘s failure to engage in an interactive process is alone sufficient to support a failure-to-accommodate claim under the ADA. We disagree. We do hold, however, that district courts may admit an employer‘s failure to engage in an interactive process as evidence оf discrimination under the ADA.
“Discrimination in violation of the ADA includes, inter alia, ‘not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.‘” McBride v. BIC Consumer Products Mfg. Co., Inc., 583 F.3d 92, 96 (2d Cir. 2009) (quoting
(1) [P]laintiff is a person with a disability under the meaning of the ADA; (2) an employer covеred 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 . . . that failure to engage in an interactive process does not form the basis of an ADA claim in the absence of evidence that accommodation was possible.” Id. at 100-01 (collecting
The regulations implementing the ADA are consistent with our view that a failure to engage in a good faith interactive process is not an independent violation of the ADA. They state that, “[t]o determine the appropriate reasonable accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the [qualified] individual with a disability in need of the accommodation.”
We see no conflict between this proposition and our ruling with regard to the exclusion of Ronan‘s offer under
c) The NYSHRL Claim
Appellant contends that the district court erred in granting MTBank‘s motion for judgment as a matter of law,
A notice of appeal must “designate the judgment, order, or part thereof being appealed.”
Here, appellant‘s Notice of Appeal appealed “from the jury verdict entered in this action on the 7th day of November 2014,” not from the district court‘s prior judgment as a matter of law. J. App‘x at 272 (emphasis added). Indeed, appellant argued for the first time in her opening brief to this court that the district court erred in its entry of judgment on the NYSHRL claims. As a result, we find that appellant did not properly preserve her argument that the district court erred in granting MTBank‘s
CONCLUSION
For the foregoing reasons, we vacate the judgment in part, insofar as it adopted the jury‘s verdict and the district court‘s disqualification order; dismiss the appeal in part, insofar as it pertains to claims under the NYSHRL; and remand for further proceedings consistent with this opinion.