United States Court of Appeals
For the First Circuit
No. 18-1302
YURY RINSKY,
Plaintiff, Appellee,
v.
CUSHMAN & WAKEFIELD, INC.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSSETTS
[Hon. Allison D. Burroughs, U.S. District Judge]
Before
Barron and Selya, Circuit Judges,
and Katzmann,* Judge.
Sawnie A. McEntire, with whom Benjamin M. McGovern, Holland
& Knight LLP, Ralph T. Lepore, III, Paula D. Taylor, and Parsons
McEntire McCleary PLLC were on brief, for appellant.
Mark D. Szal, with whom Szal Law Group LLC, John W. Dennehy,
and Dennehy Law were on brief, for appellee.
March 8, 2019
*
Of the United States Court of International Trade, sitting
by designation.
KATZMANN, Judge. In this diversity action, Appellee
Yury Rinsky (“Rinksy”), a citizen of Massachusetts, brought suit
against his former employer, the New York-based real estate firm
Cushman & W akefield, Inc. (“C&W”), claiming that C&W impermissibly
fired him because of his age and disability. C&W removed Rinsky’s
suit from the Massachusetts Superior Court to the United States
District Court for the District of Massachusetts (“district
court”) in Boston, which applied the New York City Human Rights
Law (“NYCHRL”), N.Y.C. Admin. Code §§ 8-101–107. The jury then
found that C&W discriminated against Rinsky on the basis of age
and awarded him $1,275,000, comprised of $425,000 in compensatory
damages and $850,000 in punitive damages. C&W appeals from this
verdict, arguing that the NYCHRL was inapplicable, that the
district court judge incorrectly instructed the jury, and that
there was insufficient evidence to support the jury’s verdict.
After navigating through the issues, including a question
requiring us to make an informed prophecy about how the highest
court in New York would define the burden of proof for punitive
damages in a NYCHRL claim, we affirm.
I.
A. Evidence at Trial.
Rinsky began working as a senior systems analyst for
C&W’s New York City office in 1988. Between 2009 and 2015, Rinsky
worked as a software engineer for the company’s AS/400 computer
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system. Beginning in 2012, he worked three to four days a week
remotely from his home in New Jersey and spent the remainder of
the work week in the New York City office. Rinsky also
occasionally worked remotely while visiting his daughter in
Boston. Rinsky received performance reviews of “exceeds
expectations” and “excellent” throughout his 27-year tenure with
C&W.
In December 2014, Rinsky and his wife purchased a home
in Winchester, Massachusetts. Rinsky testified at trial that he
did not initially intend to move there right away, but rather that
he and his wife planned to retire there in a few years to be closer
to their daughter and grandchild. In March 2015, Rinsky’s broker
listed his home in New Jersey for sale. Rinsky learned that same
month that his boss, Colin Reid, was transferring to the Miami
office. Rinsky testified that he then decided to ask Reid about
the possibility of transferring to the Boston office, and that
when he raised the question, Reid replied that they would “have
plenty of time to talk about it later.”
Rinsky then received an offer on his New Jersey home.
The offer included the following lease-back provision: “Sellers
will have the option to lease the house back at the lease market
value until buying another property.” Rinsky called Reid to inform
him of the offer and again inquired about the possibility of
transferring to the Boston office. During the phone call, Reid
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approved of Rinsky’s transfer to Boston but said he needed to check
with his boss, Andrew Hamilton. Reid also noted that Rinsky
primarily worked remotely anyway. A few days later, Rinsky asked
Reid about Hamilton’s response, but Reid informed Rinsky that he
had not yet talked to Hamilton about his transfer request. Rinsky
testified that a few days later, however, Reid told him that he
had spoken with Hamilton, that Hamilton said that he knew that
Rinsky “handle[s] most of the work on the AS/400, and he ha[d] no
problem for [Rinsky] to work out of the Boston office,” and that
the Chief Information Officer would be in touch about arranging a
cubicle for Rinsky in Boston.
Reid disputed Rinsky’s timeline at trial and testified
that the first he had heard of Rinsky’s relocation was April 30,
2015. He testified that he told Rinsky that the transfer request
would need to go through a process, requiring approvals from three
other company managers, and warned Rinsky that his own transfer
had taken months.
On May 14, Hamilton sent Reid a meeting request to
“discuss the situation Yury has put us in with his home purchase
in Boston.” On Sunday, May 17, Rinsky emailed Reid:
As discussed I will be moving to Boston on 5/27/2015 for
family reasons and need to take 4 personal days after
Memorial Day (5/26 – 5/29). I am confident that I can
continue to work to the best of my ability remotely. I
look forward to sitting down with you and coming up with
an arrangement that benefits all involved. Thanks.
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Reid replied, “Ok, we will talk on Tuesday.”
Hamilton emailed his boss and senior managing director,
Leif Maiorini, on May 27 with six steps to replace Rinsky,
including hiring a new employee, retaining Rinsky for about nine
weeks for knowledge transfer, and working with the Human Resources
manager on Rinsky’s exit. Later that same week, Rinsky began
working remotely from his Winchester, Massachusetts home. On June
2, a C&W employee emailed Rinsky to ask if he would need his
desktop in Boston, to which Rinsky replied, “I will need my desktop
in a couple of weeks when I get a cubicle in [the] Boston office.”
Reid replied, “Pls [sic] wait until I am back in NY tomorrow. Yury
might be getting new equipment for Boston, since I have an AS400
consultant sitting there next week.” Rinsky continued to work
remotely from his Massachusetts home.
Over the next three weeks, senior management exchanged
several emails regarding Rinsky’s position, his move to Boston,
and the need to terminate him. On June 15, Maiorini emailed
Hamilton and Reid to say, “we need to move forward with Yuri’s
[sic] termination as quickly as possible. The position that Yuri
[sic] fills is located in NYC. Given that he left without
notifying his manager or HR is unacceptable and we need to take
action as [sic] quickly.” The next day, the Human Resources
manager emailed Hamilton and Reid sample resignation language to
share with Rinsky. On Monday, June 22, Hamilton and Reid called
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Rinsky and asked him to report to New York City for work five days
a week, beginning the next day, or, in the alternative, to resign
from his position. Rinsky protested, sending emails to senior
management in which he explained that he believed his job transfer
to Boston had been approved. After Rinsky opted not to resign,
C&W terminated him on July 10.
Rinsky was 63 years old when he was terminated, and C&W
replaced him with an approximately 48-year-old employee. Hamilton
and Maiorini were in their forties, while Reid was 61 years old.
C&W also treated the request for a transfer of another employee
differently from the way it treated Rinsky’s request. In May 2015,
another C&W employee, Jay Leiser,1 moved to Florida. C&W allowed
him to work remotely from Florida part of the week and in person
in the New York City office the rest of the week. After six
months, C&W approved a full-time transfer to Florida.
B. Background and Procedural History.
On January 15, 2016, Rinsky, then living in Winchester,
Massachusetts, filed a complaint in Massachusetts Superior Court,
asserting claims against his former employer, C&W, for age
discrimination and disability discrimination, both in violation of
1
Neither party cites Leiser’s exact age. In closing
argument, C&W acknowledged that Leiser was younger than Rinsky,
and in his brief before this Court, Rinsky also indicated that
Leiser was younger than he.
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Mass. Gen. Laws ch. 151B2, promissory estoppel/detrimental
reliance, fraudulent representation, and negligent representation.
Mass. Gen. Laws ch. 151B, § 9 allows for recovery of “actual and
punitive damages” and “award[s] the petitioner reasonable
attorney’s fees and costs unless special circumstances would
render such an award unjust.” “[P]unitive damages may be awarded
for conduct that is outrageous, because of the defendant’s evil
motive or his reckless indifference to the rights of others.”
Dartt v. Browning-Ferris Indus., Inc. (Mass.), 691 N.E.2d 526, 537
(Mass. 1998) (quoting Restatement (Second) of Torts § 908(2)
(1979)). Such damages “are appropriate ‘where a defendant’s
conduct warrants condemnation and deterrence.’” Id. at 536
(quoting Bain v. Springfield, 678 N.E.2d 155, 162 (Mass, 1997)).
In age discrimination cases, Mass. Gen. Laws ch. 151B, § 9 provides
that the court must double and may treble actual damages “if the
court finds that the act or practice complained of was committed
with knowledge or reason to know” that there was a violation.
Noting that Rinsky was a citizen of Massachusetts, C&W
was a corporation organized under the law of the state of New York,
2
As required by the Massachusetts exhaustion scheme, see
Goldstein v. Brigham & Women’s Faulkner Hosp., Inc., 80 F. Supp.
3d 317, 323 (D. Mass. 2015), prior to filing suit under Mass. Gen.
Laws ch. 151B in Superior Court, Rinsky first filed an
administrative complaint with the Commonwealth of Massachusetts
Commission Against Discrimination (“MCAD”) and waited the
requisite 90 days before suing upon his claim.
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with a principal place of business in New York, and the amount in
controversy exceeded $75,000, C&W removed the case on diversity
grounds to the federal district court. As required by 28 U.S.C.
§ 1446(a), the complaint served on C&W in the state court action
was attached to the Notice of Removal. The complaint was not
repleaded in federal court. The case proceeded to discovery under
Massachusetts law. C&W moved for and was denied summary judgment
under Massachusetts law. The district court then ordered briefing
on whether Massachusetts or New York law should apply.
Citing the Massachusetts “functional choice-of-law
approach that responds to the interests of the parties, the States
involved, and the interstate system as a whole,” C&W argued that
New York law should apply because New York “has the most
significant relationship” to the case. See Bushkin Assocs. v.
Raytheon Co., 473 N.E.2d 662, 668 (Mass. 1985); City of Haverhill
v. George Brox, Inc., 716 N.E.2d 138, 144 (Mass. App. Ct. 1999).
According to C&W, Massachusetts was only connected to the case
because the plaintiff moved there on his own accord. Moreover,
the termination took place in New York and was the key event that
engendered this suit. C&W represented that the New York
counterpart to the Massachusetts discrimination statute (Mass.
Gen. Laws ch. 151B) pleaded by Rinsky in the underlying complaint
was the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law
§§ 290–296. In relevant part, that statute prohibits
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discrimination in employment on the basis of “age . . . [or]
disability.” Id. at § 296(a). To prevail in an action, a plaintiff
must show that “age was the ‘but-for’ cause of the challenged
adverse employment action.” See Gorzynski v. JetBlue Airways
Corp., 596 F.3d 93, 106 (2d Cir. 2010) (stating that claims under
the NYSHRL are “identical” to claims brought under the more
stringent stands of the federal Age Discrimination in Employment
Act, id. at 105 n.6); Douglas v. Banta Homes Corp., No. 11 Civ.
7217, 2012 WL 4378109, at *3 (S.D.N.Y. Sept. 21, 2012) (stating
that, for claims under the NYSHRL, a plaintiff must meet a
heightened standard of proving that “age was the ‘but-for’ cause
of the challenged adverse action [and] [i]t is insufficient for
the plaintiff to prove simply that age was ‘one motivating factor’
in the decision” (quoting Colon v. Trump Int’l Hotel & Tower, No.
10 Civ. 4794, 2011 WL 6092299, at *5 (S.D.N.Y. Dec. 10, 2011))).
C&W noted that, unlike the Massachusetts statute, the NYSHRL does
not provide for punitive damages or for an award of fees.
Rinsky responded that the statute most analogous to the
Massachusetts statute was the NYCHRL, N.Y.C. Admin. Code § 8-101
et seq., which expressly provides for recovery of uncapped
compensatory damages, including punitive damages and attorneys’
fees for claims of age and disability discrimination.
Specifically, the NYCHRL provides that persons aggrieved by
unlawful discriminatory practices “shall have a cause of action in
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any court of competent jurisdiction for damages, including
punitive damages.” N.Y.C. Admin. Code § 8-502(a). To succeed, a
plaintiff must meet a lesser standard than that required by the
NYSHRL; age need only be “one motivating factor” or a “substantial
factor” for the adverse employment action. See Russo v. N.Y.
Presbyterian Hosp., 972 F. Supp. 2d 429, 455–56 (E.D.N.Y. 2013)
(citing Brightman v. Prison Health Serv., Inc., 970 N.Y.S.2d 789,
792 (App. Div. 2013)). The NYCHRL further provides that “the
court, in its discretion, may award the prevailing party reasonable
attorney’s fees, expert fees and other costs.” N.Y.C. Admin. Code
§ 8-502(g). Rinsky noted that “the viability of the punitive
damages and attorney’s fees provisions of the City Human Rights
Law [is] not affected in any way by the State Human Rights Law.”
Grullon v. S. Bronx Overall Econ. Dev. Corp., 712 N.Y.S.2d 911,
917 (N.Y. Civ. Ct. 2000).
The district court ruled that:
[a]fter reviewing the parties’ supplemental briefing
[ECF Nos. 45, 46], the Court concludes that New York law
applies to this case, and that New York law does not
permit Plaintiff to bring common-law claims for
fraudulent or negligent misrepresentation or promissory
estoppel. The Court further concludes that Plaintiff
may bring his discrimination claims pursuant to the New
York City Human Rights Law, Admin. Code of City of New
York § 8-101 et seq., which provides for the recovery of
punitive damages and attorneys’ fees. Therefore, the
Court will allow Plaintiff to introduce evidence of
damages in accordance with this statute. The parties
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are granted leave to supplement their proposed jury
instructions.[3]
The district court also determined that the NYCHRL, which provides
for punitive damages, was analogous to the initially pleaded claims
under Massachusetts law. In short, with the dismissal of Rinsky’s
common law claims, what remained for the jury was consideration of
the age and disability discrimination claims pursuant to the
NYCHRL.
The morning of the commencement of the trial and delivery
of opening statements by counsel, just as the evidence was about
to be introduced, C&W’s counsel stated to the court:
I don’t think this particular point has been made clear.
C&W objects to the New York City Human Rights Law being
applied. I know it’s in Your Honor’s order from last
Friday. Our position on this is what was pled was state
law claims. [Rinsky] availed himself of the MCAD. He
availed himself of M.G.L. 151B. These are state law
claims. There is a New York counterpart to M.G.L. 151B,
and that is the New York State Human Rights Law. And
our position is although Your Honor has already ruled on
this, it would be the state law claims that would be the
analog to the Massachusetts claims that have been pled.
The court replied: “Okay. That wasn’t clear. So thank you.”
Following a five-day trial, the jury returned its
verdict. Although Rinsky did not prevail on his claim of
disability discrimination, the jury found in his favor on his age
3
“A federal court sitting in diversity applies state
substantive law. To determine the applicable substantive law, the
federal court applies the choice-of-law principles of the forum
state, here Massachusetts.” Levin v. Dalva Bros., Inc., 459 F.3d
68, 73 (1st Cir. 2006) (citations omitted).
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discrimination claim, awarding $425,000 in compensatory damages
and $850,000 in punitive damages. After the verdict was rendered,
C&W filed, pursuant to Federal Rule of Civil Procedure 50(b), a
renewed motion for judgment as a matter of law (“JMOL”), in which
it argues that the evidence was legally insufficient to find that
age or disability discrimination was a motivating factor in
Rinsky’s termination. C&W also moved for a new trial, pursuant to
Federal Rule of Civil Procedure 59(a), on the age discrimination
claim. The district court denied C&W’s post-trial motions. C&W
timely filed an appeal with this court.
C. Jurisdiction.
The district court had subject matter jurisdiction under
28 U.S.C. § 1332(a) because the controversy is between citizens of
different states and the amount in controversy exceeds $75,000.
We have jurisdiction over the appeal of the district court’s final
order under 28 U.S.C. § 1291.
II.
C&W argues that the district court impermissibly applied
the NYCHRL because the impact of Rinsky’s termination was felt in
Massachusetts, not New York City, as would be required for the
protections of the NYCHRL to apply; that the district court
improperly instructed the jury; and that there was insufficient
evidence to support the jury’s verdict. We discuss each issue in
turn.
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A. Applicability of the NYCHRL.
On appeal, C&W launches two separate challenges to the
applicability of the NYCHRL. Neither is meritorious.
1. Pleading.
C&W argues on appeal that Rinsky waived his NYCHRL claim
“by failing to plead a city-based cause of action (or amend his
pleadings in order to do so) at any point during the proceedings
below.” We conclude that this claim has not been preserved for
appellate review and that in any event it fails on the merits.
At the outset, we note that the NYCHRL claim is in the
case only because after C&W removed the action from Massachusetts
state court to federal court, C&W requested that the district court
apply New York rather than Massachusetts law. Rinsky’s complaint
under Massachusetts law raised the issue of age discrimination and
punitive damages, the pleadings and proceedings made C&W aware of
the issues in dispute, and the parties discussed the NYCHRL prior
to trial. As we have detailed, supra pp. 10-11, the district court
acceded to C&W’s request to apply New York law and then concluded
that -- as a choice of law matter -- the analogous New York law
claim was one based on NYCHRL, which like Massachusetts law,
offered the potential for punitive damages. We have also noted
that after trial was under way, C&W merely objected to the district
court’s decision to apply the city-based cause of action, without
providing any explanation or case law for why that decision was
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wrong. We have “repeatedly warned litigants that ‘arguments not
made initially to the district court cannot be raised on appeal.’”
DiMarco-Zappa v. Cabanillas, 238 F.3d 25, 34 (1st Cir. 2001)
(quoting St. Paul Fire & Marine Ins. Co. v. Warwick Dyeing Corp.,
26 F.3d 1195, 1205 (1st Cir. 1994)). “Simply noting an argument
in passing without explanation is insufficient to avoid waiver.”
Id. (citing McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22 (1st
Cir. 1991)). “A party must ‘provide . . . analysis. . .’ or
‘present . . . legal authority directly supporting their thesis.’”
Id. (quoting McCoy, 950 F.2d at 22). Thus, because C&W failed in
the district court to “meet [its] ‘duty to spell out . . . arguments
squarely and distinctly[,]’” any challenge to the decision to apply
the NYCHRL as a result of its choice of law analysis is waived.
Id. (quoting McCoy, 950 F.3d at 22 (finding that two sentences
plus one case citation were insufficient to avoid waiver)). For
the same reasons, C&W’s post-trial contention, made in a footnote
without argument or authority, that Rinsky forfeited his ability
to pursue a NYCHRL claim because his original complaint did not
include a cause of action under an unidentified Massachusetts city
ordinance, must also be deemed waived.4 See DiMarco-Zappa, 238
F.3d at 34. As the district court observed: C&W “has never raised
this point before, and does not explain what principle would allow
4
The district court noted that “no such statute exists in
Winchester, where [Rinsky] resides[].”
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it to do so for the first time in a post-trial motion. Simply
appending an otherwise-waived argument to a jurisdiction argument
is not enough.” We agree.
C&W’s pleading claim also fails on the merits. The
Federal Rules of Civil Procedure govern an action once it is
removed from the state court. Fed. R. Civ. P. 81(c)(1). See
generally 14 James Wm. Moore et al., Moore’s Federal Practice –
Civil § 81.04 ¶ 3 (2018). “A fundamental purpose of pleadings
under the Federal Rules of Civil Procedure is to afford the
opposing party fair notice of the claims asserted against him and
the grounds on which those claims rest.” Rodriguez v. Doral Mortg.
Corp., 57 F.3d 1168, 1171 (1st Cir. 1995). Under the circumstances
of this action removed by C&W, with fair notice of the claim and
issues provided to C&W as mandated by Federal Rule of Civil
Procedure 8(a)(2),5 Rinsky was not required to newly plead the
NYCHRL claim.
We also note that Federal Rule of Civil Procedure
81(c)(2) provides that “[a]fter removal, repleading is unnecessary
unless the court orders it.” See Moore, § 81.04 ¶ 4(a); Freeman
v. Bee Machine Co., 319 U.S. 448, 452 (1943) (“District courts .
. . [have] the power to permit a recasting of pleadings or
5
Federal Rule of Civil Procedure 8(a)(2) requires that a
complaint “must contain a short and plain statement of the claim
showing that the pleader is entitled to relief.”
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amendments to complaints in accordance with the federal rules.”).
“[F]ederal courts will accept, as operative, papers served in state
court which satisfy the notice-giving function of pleadings under
the Federal Rules of Civil Procedure.” Frank B. Hall & Co., Inc.
v. Rushmore Ins. Co., 92 F.R.D. 743, 745 (S.D.N.Y. 1981); see also
Istituto Per Lo Sviluppo Economico Dell’Italia Meridionale v.
Sperti Prods., Inc., 47 F.R.D. 310, 313 (S.D.N.Y. 1969) (rejecting
defendant’s objection to lack of a formal complaint since plaintiff
“supplied the defendant with more details than it could possibly
hope to obtain from a formal complaint” and defendant was “fully
able to raise any objections and defenses” to plaintiff’s claims).
That said, “[i]t would not serve the interests of justice . . . to
redeem a totally unpleaded, unlitigated claim in circumstances
that threaten significant prejudice to a defendant.” Rodriguez,
57 F.3d at 1171.
Here, contrary to C&W's assertions, the NYCHRL claim was
not an unlitigated claim "tease[d] [] out of adduced facts." Id.
On these facts, C&W has shown no prejudice arising out of the
failure to replead, nor can it assert successfully that it was
denied notice of what claim was being litigated. Although it would
have been advisable as a matter of "clean" litigation practice for
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the district court to have ordered repleading, repleading was not
required here.6
2. Justiciability.
C&W alleges that the district court improperly concluded
that the NYCHRL applied to Rinsky’s claims because he lived and
worked in Massachusetts at the time C&W terminated him, and thus
the impact of the adverse employment decision was not felt in New
York City. Therefore, according to C&W, the district court lacked
subject matter jurisdiction. We are unpersuaded by C&W’s
contentions.
a. Basic Concepts.
At the outset, we note that C&W confuses the very
different concepts of subject matter jurisdiction and
justiciability. “[T]he question whether a district court has
subject matter jurisdiction over a dispute, as a general matter,
is substantively different from the question whether a district
court has, or has acquired, the power to adjudicate a particular
dispute.” AEP Energy Servs. Gas Holding Co. v. Bank of America,
626 F.3d 699, 720 (2d Cir. 2010). “It is well-settled that subject
6
The court, in its “Memorandum and Order Denying Defendant’s
Post-Trial Motions,” stated that had C&W raised the issue in a
timely fashion, “the Court would have entertained a motion to amend
the complaint . . . Allowing Plaintiff to amend the complaint would
have been appropriate once the Court determined, at Defendant’s
behest, that New York law applied, and such an amendment would not
have prejudiced Defendant.”
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matter jurisdiction ‘concerns a court’s competence to adjudicate
a particular category of cases.’” Id. (quoting Wachovia Bank v.
Schmidt, 546 U.S. 303, 316 (2006)); see also Verizon Md., Inc. v.
Pub. Serv. Comm’n of Md., 535 U.S. 635, 643 (2002) (noting that
subject matter jurisdiction refers to “the courts’ statutory or
constitutional power to adjudicate the case” (quoting Steel Co. v.
Citizens for Better Env’t, 523 U.S. 83, 89 (1998) (emphasis
omitted)). Subject matter jurisdiction “poses a ‘whether[]’ . .
. question: Has the Legislature empowered the court to hear cases
of a certain genre?” Schmidt, 546 U.S. at 316. Cf. Arbaugh v. Y
& H Corp., 546 U.S. 500, 511 (2006) (condemning the use of “‘drive-
by jurisdictional rulings’” that conflate a federal court’s
subject matter jurisdiction with “the question whether the federal
court had authority to adjudicate the claim in suit” (quoting Steel
Co., 523 U.S. at 91)).
Here, there can be no doubt the federal district court
has original subject matter jurisdiction under 28 U.S.C. §
1332(a)(1), commonly known as the “diversity jurisdiction”
provision. The parties are citizens of different states, and the
amount in controversy exceeds $75,000, which satisfies 28 U.S.C.
§ 1332(a)(1). Cf. Grinnell Corp. v. Hackett, 475 F.2d 449, 453
(1st Cir. 1973) (“Justiciability is . . . distinguishable from
subject matter jurisdiction, which was here properly not
disputed.”).
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We have recognized a formulation of justiciability that
relates to whether there is “a lack of judicially discoverable and
manageable standards for resolving [the case].” Id. (quoting Baker
v. Carr, 369 U.S. 186, 217 (1962)). Thus, whether the elements of
the legal claims in dispute have been satisfied -- that is, whether
the claims are cognizable and thus justiciable -- is another matter
to which we now turn.
Throughout trial, C&W contended that it terminated
Rinsky because he moved to Massachusetts without first receiving
proper approval to transfer his employment to the C&W of
Massachusetts (“C&W of MA”) office in Boston. C&W argues that the
NYCHRL did not apply to Rinsky’s claims because he lived and worked
in Massachusetts at the time C&W terminated him, and thus the
impact of the decision was felt only outside New York City and not
within the reach of the statute. We disagree.
The highest court in New York, the Court of Appeals, has
held that when determining whether plaintiffs can bring a claim
pursuant to the NYCHRL, the question is whether the impact of an
alleged discriminatory decision was felt within New York City.
Hoffman v. Parade Publ’n, 933 N.E.2d 744, 746 (N.Y. 2010); see
also Vangas v. Montefiore Med. Ctr., 823 F.3d 174, 182–83 (2d Cir.
2016); Robles v. Cox & Co., 841 F. Supp. 2d 615, 624 (E.D.N.Y.
2012). “[T]he impact requirement does not exclude all nonresidents
from its protection; rather, it expands those protections to
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nonresidents who work in the city, while concomitantly narrowing
the class of nonresident plaintiffs who may invoke its protection.”
Hoffman, 933 N.E.2d at 747. In other words, the impact requirement
“confines the protections of the NYCHRL to those who are meant to
be protected -- those who work in the city.” Id. In contrast,
the fact that the alleged discriminatory action occurs in New York
City is not enough to support a claim under the NYCHRL; “although
the locus of the decision to terminate may be a factor to consider,
the success or failure of an NYCHRL claim should not be solely
dependent on something as arbitrary as where the termination
decision was made.” Id.
b. Impact Under the NYCHRL.
In light of these tenets, the present claim appears fully
justiciable. It is clear that Rinsky’s residence in Massachusetts
does not either preclude him from bringing a claim under the NYCHRL
or support the conclusion that the impact of his termination was
not felt in New York City. See id. Nor does the fact that he
teleworked from Massachusetts. C&W asserts, unpersuasively, that
“the only rational interpretation of the jury’s verdict is that it
rejected C&W’s theory of job abandonment and instead credited
Rinsky’s argument that C&W granted his request (either explicitly
or implicitly) to be transferred to C&W of MA.” Rather, the
evidence showed that Rinsky performed work at C&W’s New York City
office for twenty-seven years. Believing he had permission to
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work from Massachusetts, Rinsky began to perform his work for the
New York City office remotely from his Massachusetts home. Several
weeks later, C&W terminated him, purportedly for refusing to
conduct his work while physically present in the New York City
office. We agree with the post-trial observation of the presiding
judge that a “plausible reading of the verdict and the evidence is
that [C&W] allowed [Rinsky] to believe that he would be able to
transfer to Massachusetts, but never officially authorized or
intended to authorize the transfer, thus creating a pretext to
fire him after he moved.” Therefore, Rinsky was “continuously
employed in New York City, despite the fact that he worked remotely
from Massachusetts in the days preceding his termination.”
The NYCHRL must be “construed liberally for the
accomplishment of the uniquely broad and remedial purposes
thereof.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715
F.3d 102, 109 (2nd Cir. 2013) (quoting Restoration Act § 7
(amending N.Y.C. Admin. Code § 8–130)). It would create a
significant loophole in the statutory protection that the New York
Court of Appeals deemed was provided to non-resident employees,
Hoffman, 933 N.E.2d at 746, if by the chicanery of misleading or
lulling employees into working remotely from outside New York City
before terminating them, an employer could immunize itself from
liability. Surely, in enacting the NYCHRL, the New York City
Council did not countenance that such stratagems in service of
- 21 -
prohibited discrimination would be beyond the reach of the statute.
In short, the district court did not err in determining that the
NYCHRL applies.7
We find instructive the analysis presented in Wexelberg
v. Project Brokers LLC, No. 13 Civ. 7904, 2014 WL 2624761 (S.D.N.Y.
2014). In that case, the plaintiff had worked in the defendant’s
New York City office for six weeks, followed by five weeks of
working remotely for the New York City office from his New Jersey
home. Id. at *10. The court determined that the plaintiff could
bring claims under the NYCHRL and noted that “this arrangement may
present quite a different scenario from the caselaw that addresses
a claim by an employee stationed at an out-of-state office.” Id.
at *11; contra Hoffman, 933 N.E.2d at 745-47 (denying NYCHRL
protection to a resident of Georgia working for defendant’s Atlanta
office when his contacts with New York City were limited to
communications and occasional personal visits to the New York City
office). The Wexelberg court was particularly concerned about the
“form of victimization” that would result from “the simple
stratagem of directing a targeted employee to do his work at home
rather than at the New York [City] office where he normally works,
and then terminating him a few days or weeks later” in order to
7
In view of our holding, we need not reach Rinsky’s
alternative argument that C&W should be judicially estopped from
contending that the NYCHRL does not apply.
- 22 -
circumvent the NYCHRL. Wexelberg, 2014 WL 2624761, at *11. C&W
argues that Wexelberg is distinguishable because C&W did not direct
Rinsky to move to Boston and instead Rinsky initiated his own
relocation. Be that as it may, the same concerns present in
Wexelberg are still at play here.
B. Jury Instructions.
C&W contends that the district court committed reversible
error in its causation and punitive damages instructions. We do
not discern merit in these claims.
1. Causation.
C&W argues that the district court failed to instruct
the jury properly regarding the substantive differences between
the NYCHRL and the NYSHRL and that this failure prejudiced C&W.
Specifically, C&W contends that the instruction incorrectly
captured the applicable law because it included the lower standard
of causation pursuant to the NYCHRL -- that age must be a
substantial or motivating factor in a plaintiff’s termination --
which C&W contends is inapplicable to this action. Instead,
according to C&W, the district court should have exclusively
denoted the stricter “but-for” standard under the NYSHRL.
Moreover, C&W contends that, regardless of whether it was proper
for the district court to address the NYCHRL and NYSHRL claims in
tandem, the phraseology of the instruction still prejudiced C&W by
collapsing the distinction between the NYCHRL and NYSHRL.
- 23 -
The relevant portion of the jury instruction is as follows:
It is unlawful for an employer or its agents to terminate
an employee based on his age or because of a disability.
In this case, in order for the plaintiff to recover, he
must prove by a preponderance of the evidence that his
age, a disability, or both was a determining or
substantial factor in Defendant Cushman & Wakefield’s
decision to terminate him. . . .
Age and/or disability are determining factors if
Plaintiff would not have been terminated but for his age
and/or disability. . . .
Evidence of pretext standing alone may but not need
support an inference of unlawful bias. Therefore, if
the plaintiff has persuaded you that the defendant’s
explanation for terminating the plaintiff is false, you
may but are not required to infer that defendant is
covering up a discriminatory intent, motive, or state of
mind, although plaintiff must still show that age or
disability was a substantial factor.
Additionally, C&W complains of the question posed in the
special verdict form asking whether Rinsky “prove[d] by a
preponderance of the evidence that his age was a substantial factor
in [C&W’s] decision to terminate him?”
Claims of preserved instructional error are reviewed
under a split standard. Franchina v. City of Providence, 881 F.3d
32, 55 (1st Cir. 2018). “Questions as to whether jury instructions
capture the essence of the applicable law are reviewed de novo,
while questions as to whether the court’s choice of phraseology in
crafting its jury instructions is unfairly prejudicial are
reviewed for abuse of discretion.” Id. (citing DeCaro v. Hasbro,
Inc., 580 F.3d 55, 61 (1st Cir. 2009)). The abuse of discretion
- 24 -
analysis “focuses on whether the instruction ‘adequately
illuminate[d] the law applicable to the controverted issues in the
case without unduly complicating matters or misleading the jury.’”
Shervin v. Partners Healthcare Sys., Inc., 804 F.3d 23, 47 (1st
Cir. 2015) (quoting Testa v. Wal–Mart Stores, Inc., 144 F.3d 173,
175 (1st Cir. 1998)).
As we have discussed, the NYCHRL -- not the NYSHRL -- is
applicable in this action. The jury instruction language quoted
above includes the essence of applicable law -- that is, that a
plaintiff must “establish that there was a causal connection
between [the] protected activity and the employer’s subsequent
action, and must show that a defendant’s legitimate reason for
[his] termination was pretextual or ‘motivated at least in part by
an impermissible motive.’” Russo, 972 F. Supp. 2d at 456 (citing
Brightman, 970 N.Y.S.2d at 792). Courts interpreting claims under
the NYCHRL have rejected the imposition of the heightened “but-
for” causation standard governing NYSHRL actions. See, e.g.,
Calhoun v. Cnty. of Herkimer, 980 N.Y.S.2d 664, 667–68 (2014)
(stating that plaintiff’s burden of establishing causation is
showing that “the defendant was motivated at least in part by an
impermissible motive” (quoting Brightman, 970 N.Y.S.2d at 789));
Taylor v. Seamen’s Soc. For Children, No. 12 Civ. 3713, 2013 WL
6633166, at *23 (S.D.N.Y. Dec. 17, 2013) (finding that the “but-
for” causation standard did not apply to claim under the NYCHRL);
- 25 -
Douglas, 2012 WL 4378109, at *3 (“[T]he Court’s analysis of the
claims brought pursuant to the . . . NYSHRL diverges from its
analysis of the claim brought pursuant to the NYCHRL . . . [C]ourts
. . . have found that NYCHRL claims remain subject to the standard
that requires age to be only a ‘motivating factor’ for the adverse
employment action, rather than the ‘but-for’ cause.”) (quoting
Colon, 2011 WL 6092299, at *5) (internal quotation marks omitted).
This is because NYCHRL claims are viewed under a more liberal
standard than New York state and federal claims. See Douglas,
2012 WL 4378109, at *3; Holleman v. Art Crating Inc., No. 12 Civ.
2719, 2014 WL 4907732 at *22 (E.D.N.Y. Sept. 30, 2014) (citing
Mihalik, 715 F.3d at 109–10); see also Sass v. MTA Bus Co., 6 F.
Supp. 3d 238, 243 (E.D.N.Y. 2014) (finding no error in instructing
jury on the NYCHRL claim that plaintiff had to prove that “one or
more of his protected activities played an important role in
defendant’s decision to terminate plaintiff,” and that
“plaintiff’s participation in protected activities were more
likely than not a motivating factor in defendant’s termination of
plaintiff”). C&W does not dispute that a “motivating factor”
instruction was correct under the NYCHRL. We conclude that the
jury instructions did not fail to “capture the essence of the
applicable law.” Franchina, 881 F.3d at 55.
If anything, the district court’s instructions provided
a higher burden of proof than was necessary in stating that “[a]ge
- 26 -
and or disability are determining factors if [Rinsky] would not
have been terminated but for his age and/or disability.” Such
error was not prejudicial. Because the more lenient “substantial
factor” standard is appropriate under the NYCHRL, the inclusion of
the stricter “but-for” standard language as well did not prejudice
C&W. Where Rinsky’s NYCHRL claim prevailed, even with an
instruction that included the language of the stricter standard,
any error in the instruction was harmless to C&W. See 28 U.S.C.
§ 2111.
“Jury instructions are intended to furnish a set of
directions composing, in the aggregate, the proper legal standards
to be applied by lay jurors in determining the issues that they
must resolve in a particular case.” Teixeira v. Town of Coventry,
882 F.3d 13, 16 (1st Cir. 2018) (quoting United States v.
DeStefano, 59 F.3d 1, 2 (1st Cir. 1995)). Here, the instructions,
in aggregate, describe the appropriate substantial factor
standard. Thus, “[g]iven the satisfactory nature of the district
court’s jury instructions as a whole, we discern no merit in the
appellant’s claims of error.” Id. at 15.
Finally, we address C&W’s contention that the court
should have delivered C&W’s requested jury instruction:
Plaintiff must prove, by a preponderance of the
evidence, that his age . . . was the “but-for” cause of
defendant’s decision to terminate his employment. The
issue in an action for age . . . discrimination is not
whether defendant acted with good cause, but whether its
- 27 -
business decision would have been made but for a
discriminatory motive.
“When . . . a party assigns error to the failure to give
a requested instruction, the threshold inquiry is whether the
requested instruction was correct as a matter of law.” Shervin,
804 F.3d at 47 (citing Elliott v. S.D. Warren Co., 134 F.3d 1, 6
(1st Cir. 1998)). “If that threshold is met, the challenger must
make two subsequent showings: first that the proposed instruction
is ‘not substantially incorporated into the charge as rendered’
and second that it is ‘integral to an important point in the
case.’” Franchina, 881 F.3d at 55–56 (quoting White v. N.H. Dept.
of Corr., 221 F.3d 254, 263 (1st Cir. 2000)). Here, as discussed
above, the applicable standard for the NYCHRL claims is whether
age was a substantial or motivating factor, not whether Rinsky’s
termination would have occurred but for a discriminatory motive.8
C&W’s proposed instruction thus fails the threshold test, and we
discern no error in the district court’s decision not to use C&W’s
suggested instruction.
2. Punitive Damages.
C&W contends that the district court’s punitive damages
instructions to the jury constituted error for two reasons. First,
8
There is thus no merit to C&W’s complaint that the question
posed in the special verdict form -- asking whether Rinsky
“prove[d] by a preponderance of the evidence that his age was a
substantial factor in [C&W’s] decision to terminate him?” -- was
in error.
- 28 -
according to C&W, the NYCHRL does not apply, and thus the jury
should not have considered punitive damages that are explicitly
authorized under that statute in appropriate cases. However, as
we have discussed, the NYCHRL does apply to this action, and so
the district court properly permitted the jury to consider whether
to award punitive damages.
Second, C&W argues that, even assuming arguendo that
consideration of punitive damages under the NYCHRL was proper, the
district court erred in not instructing the jury that Rinsky had
to prove his entitlement to punitive damages by “clear and
convincing evidence.” The district court instructed the jury on
punitive damages as follows:
Although uncertainty in the amount of damages does not
bar recovery and mathematical precision is not required,
you must not speculate, conjecture, or guess in awarding
damages. A damages award must be based on just and
reasonable inferences from the evidence.
. . .
In addition to awarding damages to compensate the
plaintiff, you may but are not required to award
plaintiff punitive damages if you find the acts of the
defendant were wanton and reckless or malicious. The
purpose of punitive damages is not to compensate the
plaintiff but to punish the defendant and thereby
discourage the defendant and others from acting in a
similar way in the future. An act is malicious when it
is done deliberately with knowledge of the plaintiff’s
rights and with intent to interfere fear [sic] with those
rights. An act is wanton and reckless when it
demonstrates conscious indifference and utter disregard
of its effect upon the health, safety, and rights of
others. If you find that the defendant’s acts were not
wanton or reckless or malicious, you may not award
- 29 -
punitive damages. On the other hand, if you find the
defendant’s acts were wanton or reckless or malicious,
you may award punitive damages.
After the trial concluded and briefing on the post-trial
motions was completed, “consistent with the New York City Council’s
directive to construe the New York City Human Rights Law
liberally,” Chauca v. Abraham, 89 N.E.3d 475, 477 (N.Y. 2017), the
New York Court of Appeals rejected the heightened level of
culpability set forth under Title VII of the Civil Rights Act,
that had been imposed by Second Circuit precedent. Id.9 Rather,
it ruled that the appropriate, common-law-derived standard, as
articulated in Home Ins. Co. v. Am. Home Prod. Corp., 550 N.E.2d
930, 934–35 (N.Y. 1990), was “whether the wrongdoer has engaged in
discrimination with willful or wanton negligence, or recklessness,
or a ‘conscious disregard of the rights of others or conduct so
reckless so as to amount to such disregard.’” Chauca, 89 N.E.3d
at 481 (quoting Home Ins. Co., 550 N.E.2d at 932). Thus, as it
turned out, the jury instruction challenged in the instant appeal
largely tracked the language set forth by the New York Court of
9
In Farias v. Instructional Sys., Inc., the Second Circuit
ruled the federal Title VII standard applies to claims for punitive
damages under the NYCHRL. 259 F.3d 91, 101 (2d Cir. 2001).
Therefore, according to the Farias court, “the standard in the
Second Circuit for liability for punitive damages under the NYCHRL
required a showing that the defendant had engaged in intentional
discrimination and had done so with malice or with reckless
indifference to the protected rights of the aggrieved individual.”
Chauca v. Abraham, 841 F.3d 86, 91 (2d Cir. 2016) (summarizing the
holding in Farias).
- 30 -
Appeals, and on appeal C&W does not contend that the standard to
be used for determining liability for punitive damages as charged
by the judge here was in error. Rather, C&W argues that the
punitive damages instruction was in error because it did not
reflect the plaintiff’s burden of offering “clear and convincing
evidence” in order to obtain punitive damages, which, according to
C&W, was required under New York law.
We are unpersuaded by this argument. First, to provide
context, we note that the appropriate burden of proof for punitive
damages generally is a matter of debate within New York’s courts.
See N.Y. Prac., Com. Litig. In New York State Courts § 49:7 (4th
ed. 2018). Indeed, the New York Pattern Jury Instructions “does
not include a statement of the standard of proof that must be
satisfied for an award of punitive damages because the Appellate
Divisions are split on the issue” of whether “clear and convincing
evidence” or “preponderance of the evidence” is the appropriate
standard. N.Y. Pattern Jury Inst. –Civil 2:278 (Comment, Dec.
2018 Update).10 New York’s highest court has not addressed the
split. Writing in 1997, then Judge Sotomayor observed that “[t]he
10
For entitlement to punitive damages, the Second Department
requires that the “clear and convincing evidence” standard be
charged, the First Department requires “clear, unequivocal and
convincing evidence”, and the Fourth Department holds that proof
by “a preponderance of the evidence” is sufficient. See N.Y.
Pattern Jury Inst. –Civil 2:278 (Comment, Dec. 2018 Update) (citing
cases).
- 31 -
federal and state court cases on the question are mired in a morass
of ambiguity.” Greenbaum v. Svenska Handelsbanken, N.Y., 979 F.
Supp. 973, 981–82 (S.D.N.Y. 1997). Surveying the landscape,
including New York Court of Appeals and Second Circuit
jurisprudence, the court in Greenbaum determined that the
appropriate standard is “preponderance of the evidence.” Id. at
982–83.11 The relevant terrain has not changed since that decision.
Were the issue before us the question of the appropriate burden of
proof for punitive damages generally, we might seriously consider
certifying the question to New York’s highest court. Cf. Chauca,
841 F.3d at 93 (certification by Second Circuit to the New York
Court of Appeals on issue of standard of liability for awarding
punitive damages under the NYCHRL); see also In re Engage, Inc.,
544 F.3d 50, 53–58 (1st Cir. 2008) (certification by First Circuit
of question to the Massachusetts Supreme Judicial Court). Though
the parties have not requested certification, we would not be
precluded from so doing on our own. See Chauca, 841 F.3d at 93.
11
The Greenbaum court noted that in an 1874 negligence case,
the New York Court of Appeals held that liability for punitive
damages needed to be “clearly established.” Cleghorn v. N.Y. Cent.
& H.R.R.R., 56 N.Y. 44, 47–48 (1874). However, “a significantly
more recent Court of Appeals decision recommends the precise
opposite result: that the preponderance standard applies to
punitive damages determinations.” Greenbaum, 979 F. Supp. at 978
(citing Corrigan v. Bobbs-Merrill Co., 126 N.E. 260, 263 (N.Y.
1920)).
- 32 -
The issue before us, however, is a narrower one: is clear
and convincing evidence required to award punitive damages under
the NYCHRL, which does not statutorily specify the quantum of
proof? As a Boston-based federal court, we are in essence asked
to make an informed prophecy as to the standard that would be
articulated by the New York Court of Appeals if confronted with
that question. “[A] federal court sitting in diversity should not
simply throw up its hands, but, rather, should endeavor to predict
how that court would likely decide the question.” Butler v.
Balolia, 736 F.3d 609, 613 (1st Cir. 2013); see also Travelers
Ins. Co. v. 633 Third Assoc., 14 F.3d 114, 119 (2d Cir. 1994). In
making such a determination, “the federal court should consult the
types of sources that the state’s highest court would be apt to
consult, including analogous opinions of that court, decisions of
lower courts in the state, precedents and trends in other
jurisdictions, learned treatises, and considerations of sound
public policy.” Butler, 736 F.3d at 613. In our view, the road
to the decision is well-lit, with sign posts that guide us to our
determination that under the NYCHRL, clear and convincing evidence
is not the quantum of proof for punitive damages. Even if we were
to assume arguendo that the New York Court of Appeals would apply
the “clear and convincing” evidence standard to punitive damages
generally, for the reasons discussed below, our conclusion
- 33 -
regarding the NYCHRL would not change. The district court thus
was correct in declining to so charge.
We turn for resolution of the burden of proof question
before us to the New York Court of Appeals decision that is now
the touchstone of our understanding for punitive damages under the
NYCHRL -- Chauca, 89 N.E.3d 475. There, as we have noted, the
Court of Appeals rejected as “contrary to the intent of the [New
York City] Council” the application of the stringent standards
imposed by Title VII for punitive damages. The court explained:
[I]n 2005, subsequent to Farias, the City Council passed
the Restoration Act, amending the Administrative Code of
the City of New York to ensure that “[t]he provisions of
[the NYCHRL] shall be construed liberally . . .
regardless of whether federal or New York state civil
and human rights laws . . . have been so construed”
(Administrative Code § 8-130 [a]). Expressing concern
that the NYCHRL was being too strictly construed, the
amendment established that similarly worded state or
federal statutes may be used as interpretive aids only
to the extent that the counterpart provisions are viewed
“as a floor below which the City’s Human Rights law
cannot fall, rather than a ceiling above which the local
law cannot rise,” and only to the extent that those state
or federal law decisions may provide guidance as to the
“uniquely broad and remedial purposes” of the local law
(Local Law No. 85 [2005] of City of NY §§ 1, 7). In a
report on the amendments (see Rep of Comm on Gen Welfare,
Aug. 17, 2005, 2005 NY City Legis Ann at 537), the
Committee on General Welfare rejected prior reasoning by
this Court that the City Council “would need to amend
the City HRL to specifically depart from a federal
doctrine if it wanted to do so” (Bennett v. Health Mgt.
Sys., Inc., 936 N.Y.S.2d 112 [2011]; McGrath v. Toys “R”
Us, Inc., 821 N.E.2d 519 [2004]). As a result, this
Court has acknowledged that all provisions of the NYCHRL
must be construed “broadly in favor of discrimination
plaintiffs, to the extent that such a construction is
- 34 -
reasonably possible” (Albunio v. City of New York, 947
N.E.2d 135 [2011]).
Chauca, 89 N.E.3d at 90. Because the New York Court of Appeals
has determined that the standard for recovering punitive damages
under the NYCHRL should be less demanding than the federal Title
VII standard, C&W’s contention that the NYCHRL mandates a burden
of clear and convincing evidence -- a burden that is higher than
even the rejected Title VII standard -- fails under the weight of
precedent and logic. It contradicts the reasoning and holding of
the Chauca court. In short, the suggested instruction was wrong
as a matter of law, and the district court did not err in rejecting
it. See Shervin, 804 F.3d at 46–48.
C. Sufficiency of the Evidence.
C&W contends that the district court erred “by rejecting
C&W’s post-verdict challenges to awards of compensatory and
punitive damages that were unsupported and against the weight of
the evidence.” C&W argues that Rinsky fell far short of meeting
his burden to show that age discrimination was the “but-for” cause
of termination. As discussed supra pp. 18–23, however, the NYCHRL
does apply, and Rinsky needed only to show that age discrimination
was a “substantial factor” in his termination. We thus review the
district court’s denial of the post-verdict motions using the
“substantial factor” standard. We affirm the district court’s
- 35 -
denial of the motion for JMOL under de novo review and its denial
of the motion for a new trial under abuse-of-discretion review.
We review de novo the district court’s post-verdict
denial of the Federal Rule of Civil Procedure 50 motion for JMOL,
“tak[ing] the facts in the light most favorable to the verdict.”
Jennings v. Jones, 587 F.3d 430, 438 (1st Cir. 2009); see also
Kennedy v. Town of Billerica, 617 F.3d 520, 527 (1st Cir. 2010).
“We reverse the district court’s denial of such motions if the
jury would not have a legally sufficient evidentiary basis for its
verdict.” Kennedy, 617 F.3d at 527 (quoting Jennings, 587 F.3d at
436). “This review is weighted toward preservation of the jury
verdict, which stands unless the evidence was so strongly and
overwhelmingly inconsistent with the verdict that no reasonable
jury could have returned it.” Crowe v. Bolduc, 334 F.3d 124, 134
(1st Cir. 2003) (citing Primus v. Galgano, 329 F.3d 236, 241–42
(1st Cir. 2003)); see also Granfield v. CSX Transp., Inc., 597
F.3d 474, 482 (1st Cir. 2010); Sanchez v. P.R. Oil Co., 37 F.3d
712, 716 (1st Cir. 1994).
We review for abuse of discretion the district court’s
post-verdict denial of the Federal Rule of Civil Procedure 59
motion for a new trial. Jennings, 587 F.3d at 438 (citing
Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553 (1st Cir. 1989) and
Transamerica Premier Ins. Co. v. Ober, 107 F.3d 925 (1st Cir.
1997)).
- 36 -
Appellate review of a district court’s disposition of a
Rule 59(a) motion is even more circumscribed [than
appellate review of a denial of a motion for JMOL]; a
district court may set aside a jury’s verdict and order
a new trial only if the verdict is against the
demonstrable weight of the credible evidence or results
in a blatant miscarriage of justice. And, moreover, a
trial judge’s refusal to disturb a jury verdict is
further insulated because it can be reversed solely for
abuse of discretion.
Sanchez, 37 F.3d at 717 (internal citations omitted) (citing
Coffran v. Hitchcock Clinic, Inc., 683 F.2d 5, 6 (1st Cir. 1982);
Freeman v. Package Mach. Co., 865 F.2d 1331, 1334 (1st Cir. 1988);
Milone v. Moceri Family, Inc., 847 F.2d 35, 37 (1st Cir. 1988).
Abuse of discretion occurs “when a material factor deserving
significant weight is ignored, when an improper factor is relied
upon, or when all proper and no improper factors are assessed, but
the court makes a serious mistake in weighing them.” Indep. Oil
& Chem. Workers of Quincy, Inc. v. Procter & Gamble Mfg. Co., 864
F.2d 927, 929 (1st Cir. 1988). “[W]e will reverse a judge’s
decision not to grant a motion for a new trial ‘only if the verdict
is so seriously mistaken, so clearly against the law or the
evidence, as to constitute a miscarriage of justice.’” Gutierrez-
Rodriguez, 882 F.2d at 558 (quoting Levesque v. Anchor Motor
Freight, Inc., 832 F.2d 702, 703 (1st Cir. 1987)).
C&W has failed to meet its burden of showing either that
there was no legally sufficient basis for the verdict or that the
- 37 -
district court abused its discretion. We thus affirm the district
court’s denial of JMOL and the motion for a new trial.
As we have noted, C&W contends that Rinsky was fired
because he moved to Boston without its approval, and then refused
to return to New York when C&W asked him to do so. C&W argues
that “although Rinsky premised his entire case on the notion that
C&W created a ‘pretext’ to terminate him, there is not one iota of
evidence in the record to explain why C&W would have been motivated
to do so.” C&W further contends that “[t]here also was no direct
evidence in the record” to show age discrimination and provides a
litany of reasons as to why it would not have made sense for
Rinsky’s age to motivate his termination, from his “excellent
performance reviews” to his experience with the AS/400 system and
the age of his replacement. C&W, in sum, asserts that the lack of
direct evidence on the record plainly showing age discrimination
creates an evidentiary insufficiency, entitling C&W either to JMOL
or a new trial.
C&W, however, uses the wrong standard. As the district
court noted in its order and memorandum denying C&W’s motion, the
NYCHRL is “uniquely broad and protective,” allowing for the “use
of circumstantial evidence, by disproving Defendant’s proffered
non-discriminatory explanation, and then relying on appropriate
inferences.” The district court followed the standard as
summarized by the Second Circuit in Mihalik, 715 F.3d at 108–09:
- 38 -
In amending the NYCHRL, the City Council expressed the
view that the NYCHRL had been “construed too narrowly”
and therefore “underscore[d] that the provisions of New
York City’s Human Rights Law are to be construed
independently from similar or identical provisions of
New York state or federal statutes.” Restoration Act §
1. To bring about this change in the law, the Act
established two new rules of construction. First, it
created a “one-way ratchet,” by which interpretations of
state and federal civil rights statutes can serve only
“‘as a floor below which the City’s Human Rights law
cannot fall.’” Loeffler, 582 F.3d [268,][] 278 [(2d
2009)] (quoting Restoration Act § 1). Second, it amended
the NYCHRL to require that its provisions “be construed
liberally for the accomplishment of the uniquely broad
and remedial purposes thereof, regardless of whether
federal or New York State civil and human rights laws,
including those laws with provisions comparably-worded
to provisions of this title[,] have been so construed.”
Restoration Act § 7 (amending N.Y.C. Admin. Code § 8-
130).
While noting that the Restoration Act, amending the
NYCHRL, set forth a “one-way ratchet,” such that the federal
standard is the floor, the Mihalik court also observed that “[i]t
is unclear whether, and to what extent, the McDonnell Douglas
burden-shifting analysis [used for federal age discrimination
claims] has been modified for NYCHRL claims.” Id. at 110 n.8; see
also McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The
answer to this question was given in 2016 by New York City’s Local
Law No. 35, amending Administrative Code § 8-130 “to provide
additional guidance to the development of an independent body of
jurisprudence for the [NYCHRL] that is maximally protective of
civil rights in all circumstances.” N.Y.C. Local L. 35 of 2016 §
1 (Mar. 28, 2016) (codified at N.Y.C. Admin. Code § 8-130). The
- 39 -
amendment ratified three decisions under the NYCHRL, including
Bennett v. Health Mgmt. Sys., Inc., 936 N.Y.S.2d 112, 116 (App.
Div. 2011). It explained that each of the cases “correctly
understood and analyzed the liberal construction requirement” of
the NYCHRL and “developed legal doctrines accordingly that reflect
the broad and remedial purposes of [the NYCHRL].” N.Y.C. Admin.
Code § 8-130. See also Morse v. Fidessa Corp., 84 N.Y.S.3d 50,
52–53 (App. Div. 2018) (quoting Restoration Act and March 8, 2016
Committee on Civil Rights report accompanying Local Law 35).
Noting that different evidentiary frameworks may be appropriate
for different kinds of cases, Bennett explained that to establish
a claim for discrimination under the NYCHRL, a plaintiff must
satisfy either the McDonnell Douglas standard, or a lesser burden
in cases analyzing liability under a mixed motives theory. See
Bennett, 936 N.Y.S.2d at 117–21 (comparing various burdens of proof
in discrimination claims). Rinsky’s age discrimination claim
satisfies both.
Discriminatory intent can be difficult to prove. In
Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000), the
Supreme Court held that the McDonnell Douglas framework is
applicable to federal age discrimination claims (“Reeves/McDonnell
Douglas”), setting forth when it is appropriate for a jury to infer
discrimination if it declines to credit the employer’s explanation
for an adverse employment action. See Reeves, 530 U.S. at 143–
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44. “Proof that the defendant’s explanation is unworthy of
credence is simply one form of circumstantial evidence that is
probative of intentional discrimination, and it can be quite
persuasive.” Id. at 147. A jury may infer unlawful discrimination
where there is (1) a prima facie case of discrimination and (2)
“sufficient evidence to find that the employer’s asserted
justification is false.” Id. at 148. This does not mean “that
such a showing by the plaintiff will always be adequate to sustain
a jury’s finding of liability.” Id. Where, for example, “the
record conclusively revealed some other, nondiscriminatory reason
for the employer’s decision, or if the plaintiff created only a
weak issue of fact as to whether the employer’s reason was untrue
. . .”, “an employer would be entitled to judgment as a matter of
law.” Id.
Whether judgment as a matter of law is appropriate in
any particular case will depend on a number of factors
. . . includ[ing] the strength of the plaintiff’s prima
facie case, the probative value of the proof that the
employer’s explanation is false, and any other evidence
that supports the employer’s case . . . .
Id. at 148–49. In such cases, a court should not order JMOL for
the defendant absent sufficient evidence “to conclusively
demonstrate that [the employer’s] actions were not
discriminatorily motivated.” Id. at 153 (quoting Furnco Constr.
Corp. v. Waters, 438 U.S. 567, 580 (1978)).
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As discussed above, one way for a plaintiff to establish
discrimination under the NYCHRL is to fulfill the requirements of
the Reeves/McDonnell Douglas criteria. Here, the first element of
the Reeves/McDonnell Douglas inquiry is satisfied, as there is
sufficient evidence on the record for the jury to find that Rinsky
met his burden of showing a prima facie case of discrimination. A
prima facie case of discrimination under federal law requires that:
(i) at the relevant time the plaintiff was a member of
the protected class; (ii) the plaintiff was qualified
for the job; (iii) the plaintiff suffered an adverse
employment action; and (iv) the adverse employment
action occurred under circumstances giving rise to an
inference of discrimination, such as the fact that the
plaintiff was replaced by someone ‘substantially
younger.’
Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001)
(quoting O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308,
313 (1996)) (applying the standard for a prima facie case of racial
discrimination by an employer, set forth in McDonnell Douglas, 411
U.S. at 793, to an age discrimination case); see also Woodman v.
WWOR-TV, Inc., 411 F.3d 69 (2d Cir. 2005). At 63 years old, Rinsky
was indisputably a member of the protected class. Both parties,
moreover, agree that Rinsky was qualified for his job, receiving
“excellent” performance reviews, and that C&W terminated him. The
fourth requirement of a prima facie showing is met by substantially
the same record evidence as that of the finding that C&W’s non-
discriminatory justification was false, including C&W’s
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replacement of Rinsky with a “substantially younger” employee,
fifteen years his junior, see O’Connor, 517 U.S. at 313, and
buttressed by substantially the same record evidence discussed
below supporting the finding that C&W’s non-discriminatory
justification was false. We conclude that Rinsky established a
prima facie case of age discrimination.
The second element of the Reeves/McDonnell Douglas
inquiry is also satisfied, as there is sufficient evidence on the
record for the jury to find that C&W’s justification was false.
Making inferences most favorable to the plaintiff, a reasonable
jury could find from the evidence of record that Rinsky had long
worked remotely for C&W, C&W knew of Rinky's intent to move to
Boston, C&W treated other employees requesting transfers
differently, and C&W never warned Rinsky that his move to Boston
could result in termination. Rinsky was the oldest member of his
department, and C&W replaced Rinsky with a significantly younger
employee. Lastly, the record evidence shows that C&W began
formulating a plan to replace Rinsky prior to his move to Boston.
The district court thus concluded that “the evidence presented at
trial strongly suggested that Defendant’s asserted reason for
firing Plaintiff was false.” The district court found that the
evidence suggested “Defendant allowed Plaintiff to think that he
had permission to transfer, waited until he moved to Boston and
his replacement was trained, and then used the move as a pretense
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to fire him.” We conclude that the district court’s finding was
not “so clearly against the law or the evidence” and therefore not
an abuse of discretion. Gutierrez-Rodriguez, 882 F.2d at 558
(quoting Levesque, 832 F.2d at 703).
With the first two elements met, we then must examine,
as the district court rightly stated, “whether the record
‘conclusively revealed’ an alternative, non-discriminatory reason
for the employer’s decision.” Reeves, 530 U.S. at 148–49. On
C&W’s side of the ledger, the record does indicate that Reid was
close to Rinsky in age, Rinsky was skilled at his position, and
senior management had concerns about the number of employees
working remotely. However, nothing on the record conclusively
shows that C&W’s motivation for firing Rinsky was non-
discriminatory. The district court noted “the lack of any
indication in the record of an obvious, alternative, non-
discriminatory explanation for Plaintiff’s firing” and found “the
jury permissibly inferred that Defendant’s continued insistence
that it fired Plaintiff for moving without permission was covering
up an impermissible motive, even where there was little direct
evidence of age discrimination.” Considering both C&W’s burden to
show conclusively the non-discriminatory reason for Rinsky’s
termination and our obligation to weight our review of the record
“toward preservation of the jury verdict,” we conclude that the
record provides an insufficient basis for us to overturn the
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district court’s denial of JMOL. Crowe, 334 F.3d at 134. The
district court, therefore, did not abuse its discretion, as the
evidence substantially supports its finding that Rinsky satisfied
the age discrimination analysis under Reeves/McDonnell Douglas.
As we have noted, apart from the more stringent federal
McDonnell Douglas framework, a plaintiff may also establish a claim
of age discrimination in violation of the NYCHRL under the less
onerous mixed motive framework, as the district court recognized.12
The difference in analysis has been well articulated in a recent
age discrimination case arising under the NYCHRL:
The McDonnell Douglas framework and the mixed motive
framework diverge only after the plaintiff has
established a prima facie case of discrimination . . .
and the defense has responded to that prima facie case
by presenting admissible evidence of “legitimate,
independent, and nondiscriminatory reasons to support
its employment decision” (Forrest v. Jewish Guild for
the Blind, 3 N.Y.3d 295, 305, 786 N.Y.S.2d 382, 819
N.E.2d 998 [2004] [internal quotation marks omitted]).
12 The judge stated:
Alternatively, a plaintiff may also prevail in a NYCHRL
action “if he or she proves that unlawful discrimination
was one of the motivating factors, even it was not the
sole motivating factor for an adverse employment
decision.” Melman v. Montefiore Med Ctr., 989 A.D.3d
107, 127 (N.Y. App. Div. 2012). “If a plaintiff can
prevail on a ‘mixed motive’ theory, it follows that he
or she need not prove that the reasons proffered by the
employer for the challenged action was actually false or
entirely irrelevant.” Id. Rather, the plaintiff must
demonstrate that the challenged action was “more likely
than not based in whole or in part on discrimination.”
Id. (quoting Aulicino v. N.Y.C. Dep’t of Homeless
Servs., 580 F.3d 73, 80 (2d Cir. 2009)).
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At that point, under McDonnell Douglas, the burden
shifts to the plaintiff to produce evidence tending to
“prove that the legitimate reasons proffered by the
defendant were merely a pretext for discrimination.”
(id.). By contrast, under the mixed motive analysis,
the plaintiff may defeat the defendant's evidence of
legitimate reasons for the challenged action by coming
forward with evidence from which it could be found that
“unlawful discrimination was one of the motivating
factors, even if it was not the sole motivating factor,
for [the] adverse employment decision” (Melman v.
Montefiore Med. Ctr., 98 A.D.3d 107, 127, 946 N.Y.S.2d
27 [1st Dept.2012]).
Hamburg v. NYU Sch. of Med., 62 N.Y.S.3d 26, 32 (App. Div. 2017).
We have already concluded that the district court did
not err in concluding that Rinsky established at trial a prima
facie case of discrimination. We have further concluded that the
district court did not abuse its discretion in finding that the
trial evidence “strongly suggested that [C&W]’s asserted reason
for firing [Rinsky] was false.” Thus, under a mixed motive theory
of liability, the jury’s verdict could also be sustained. In
short, whether analyzed under the McDonnell Douglas framework or
the mixed motive framework, we affirm the district court’s denials
of C&W’s motions for JMOL and a new trial.
Finally, we are mindful of the “maximally protective”
reach of the NYCHRL in addressing claims of discrimination. N.Y.C.
Admin. Code § 8-130. “The independent analysis of NYCHRL claims
must be targeted to understanding and fulfilling the NYCHRL’s
uniquely broad and remedial purposes, which go beyond those of
counterpart state and federal civil rights laws.” Id. at Case
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Notes ¶3. The New York City government was clear as to the
legislative intent of the NYCHRL: “it is the intention of the
Council that judges interpreting the City’s Human Rights Law are
not bound by restrictive state and federal rulings and are to take
seriously the requirement that this law be liberally and
independently construed.” David N. Dinkins, Mayor, New York City,
Remarks at Public Hearing on Local Laws (June 18, 1991) (on file
with Committee on General Welfare) available at
http://antibiaslaw.com/sites/default/files/all/LL39LegHist-
Mayor.pdf. As we have noted, that commitment has only been
strengthened by the two rules of construction set forth in the
Restoration Act in 2005 and by the most recent amendment in 2016.
Here, the district court first reviewed C&W’s motions for JMOL and
a new trial under the more restrictive federal employment law.
Finding first that the record sufficiently supported the jury’s
finding of age discrimination under this more restrictive
standard, the district court then found the jury’s verdict to be
supported under the more “liberally . . . construed” NYCHRL. We
agree.
III.
We uphold the district court’s ruling denying C&W’s
motion for JMOL or a new trial, and we reject C&W’s other
assignments of error. Therefore, we affirm the judgment of the
district court.
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Rinsky v. Cushman & Wakefield, Inc.
Court: Court of Appeals for the First Circuit
Date filed: 2019-03-08
Citations: 918 F.3d 8
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