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John Welch v. United Parcel Service Inc.

June 30, 2012

JOHN WELCH, PLAINTIFF,
v.
UNITED PARCEL SERVICE INC., D/B/A UPS,
DEFENDANT.



The opinion of the court was delivered by: Spatt, District Judge.

MEMORANDUM OF DECISION AND ORDER

The Plaintiff in this case, John Welch, alleged that his employer, the Defendant United Parcel Service, Inc. ("UPS"), discriminated against him on the basis of his disability, and also retaliated against him for complaining about that discrimination. Based on these allegations, the Plaintiff asserted (1) federal claims under the Americans with Disabilities Act ("ADA"), (2) state claims under the New York State Human Rights Law ("NYSHRL"), and (3) city law claims under the New York City Human Rights Law ("NYCHRL"). A trial was held and a mixed verdict was rendered. Presently before the Court are several post-trial motions filed by both parties.

I. BACKGROUND

A. Factual Background

This case was initiated by the Plaintiff John Welch in 2009 against his employer, the Defendant UPS. Welch was hired by UPS in March 1987 as a part-time package loader at its facility in Brooklyn, New York. Throughout the Plaintiff's long tenure with UPS, only a portion of which is relevant for the legal disputes in this case, the Plaintiff went through a number of transfers to various positions in UPS. These positions included: (1) in March 2005, the Plaintiff was a preload supervisor for UPS's Foster Avenue Facility; (2) in mid-2005, the Plaintiff worked as a P.M. supervisor at the Greenpoint Center; (3) in or about October 2005, the Plaintiff was transferred to Comprehensive Health and Safety Program ("CHSP") Supervisor for its Long Island City facility; (4) in or about October 2006, the Plaintiff was transferred to a position on the Nassau preload; (5) in or about June 2007, the Plaintiff was returned to a position as CHSP Supervisor; (6) in or about June 2008, the Plaintiff conducted driver safety training out of UPS's Nassau facility and was also transferred back to the Nassau preload; and (7) on or about September 6, 2010, the Plaintiff accepted and commenced the preload assist supervisor ("PAS") position, which is the position he held at the time of the trial.

The Plaintiff suffers from various medical conditions, including: (1) hypertrophic cardiomyopathy ("HCM"); (2) bipolar disorder; (3) hiatal hernia; (4) restless leg syndrome ("RLS"); (5) sleep apnea; and (6) depression with post-traumatic stress disorder ("PTSD"). Because of these alleged disabilities, namely the HCM and sleep apena, the Plaintiff made various requests for accommodation under UPS's American Disabilities Act ("ADA") accommodation policy. His requests for accommodation were as follows: (1) on or around August 23, 2005, the Plaintiff requested an accommodation of no lifting over 30 pounds, light duty, and avoiding extremes of exertion, which UPS claims was satisfied when he was moved to the position of CHSP supervisor in or about October 2005; (2) in 2007, the Plaintiff again requested an accommodation of no lifting over 40 pounds; working shifts of 8 hours or less; and no overnight shifts due to his HCM and sleep apnea, which UPS claims was satisfied when they again returned him to the position of CHSP supervisor in or around June 2007; and (3) in 2010, the Plaintiff requested a third accommodation of no lifting over 20 pounds; no operation of heavy machinery; and no driving of heavy trucks, which UPS claims was satisfied when they put him in the Preload Assist Supervisor ("PAS") position, which he remains in today.

According to the Plaintiff, the numerous transfers, requests for accommodation, and discussions between him and his employer, led to various instances of retaliation and failures to accommodate his disabilities.

B. Procedural History

On May 16, 2011, the Defendant moved for summary judgment dismissing all of the Plaintiff's claims, on the grounds that (1) portions of the Plaintiff's claims were barred by the relevant statute of limitations, (2) the Plaintiff did not have a disability (or record of disability) under the ADA, (3) the Plaintiff was not otherwise qualified to perform the essential functions of his job, and (4) the Defendant accommodated the Plaintiff's disability at all times. The Court found there to be genuine issues of material fact in all aspects of the case. Therefore, on September 2, 2011, the Court denied the Defendant's motion for summary judgment.

The trial commenced on September 7, 2011. At the trial, which lasted more than one week, the Plaintiff presented various witnesses in support of his claims. The Plaintiff testified himself; as well as Dr. Mark Sherrid, John Guest, Rashmee Sinha, Dr. Marcia Knight, and Michael Ridolfi. After the conclusion of the Plaintiff's case, the Defendant moved for judgment as a matter of law pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 50(a), with respect to the Plaintiff's claims of failure to accommodate and retaliation. (See 9/13/11 Tr., 658:9--677:6.) The Court reserved decision on this motion. The Defendant also moved to dismiss the Plaintiff's claim for punitive damages, which the Court denied. The Defendant then presented its case, offering the testimony of various UPS employees; including Irene Gordon, Robert Rizzo, Beverly Riddick, James Kirk, Kevin DiLibero, Christopher Travaglia, David Mazzola, Steven Wiederhold, and Joseph Mero.

On September 23, 2011, the jury rendered a verdict. With regard to the Plaintiff's disability claims, the jury found that: (1) the Plaintiff did not prove that he was an individual with a "disability" within the meaning of the ADA, namely that he had an impairment which substantially limited a major life activity; (2) the Plaintiff did prove that he was an individual with a "disability" within the meaning of the NYSHRL and the NYCHRL; (3) the Plaintiff did prove he was a "qualified individual" within the meaning of the terms as instructed by the Court; (4) UPS failed to accommodate the Plaintiff with regard to his disability and required him to work in a significantly more difficult work area which would adversely affect his physical conditions; but that (5) UPS proved by a preponderance of the evidence that it made a good faith effort to identify and provide the Plaintiff with a reasonable accommodation that would allow him to work within his restrictions. Therefore, the Defendant UPS was successful in defending the Plaintiff's failure to accommodate claims under the ADA, NYSHRL, and NYCHRL.

With regard to the Plaintiff's retaliation claims, the jury found that: (1) the Plaintiff proved that the Defendant required him to work in a significantly more difficult work area which would adversely affect his physical conditions, after he sent a letter to Kevin DiLibero at UPS; had a letter sent to Kevin DiLibero by his attorney; and filed his EEOC complaint; and that (2) the Plaintiff proved that there was a causal connection between the letters sent to DiLibero and the filing of the EEOC complaint and the requirements to work in significantly more difficult work areas. Thus, the Plaintiff was successful under his NYSHRL and NYCHRL retaliation causes of action. As a result, the jury awarded the Plaintiff $200,000 for compensatory damages and no punitive damages.

On October 21, 2011, the Defendant filed the instant motion for judgment as a matter of law and/or a new trial, and the Plaintiff filed a motion for a new trial as well as a motion for attorneys' fees and costs.

II. DISCUSSION

A.Legal Standards

1.The Renewed Motion for Judgment as a Matter of Law

In substance, Fed. R. Civ. P. 50(b) provides that if a jury returns a verdict for which there is not a legally sufficient evidentiary basis, the District Court may either order a new trial or direct the entry of judgment as a matter of law. In order to grant a motion for JMOL, there must be a "'complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or . . . such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men [and women] could not arrive at a verdict against [it].'" Concerned Area Residents for Environment v. Southview Farm, 34 F.3d 114, 117 (2d Cir. 1994) (quoting Song v. Ives Lab., Inc., 957 F.2d 1041, 1046 (2d Cir. 1992)); Mattivi v. South African Marine Corp. "Huguenot", 618 F.2d 163, 168 (2d Cir. 1980).

"The same standard that applies to a pre-trial motion for summary judgment pursuant to Fed. R. Civ. P. 56 also applies to motions for judgment as a matter of law during or after trial pursuant to Rule 50." Piesco v. Koch, 12 F.3d 332, 341 (2d Cir. 1993); see also the Advisory Committee Note to the 1991 Amendment of Fed. R. Civ. P. 50. This Rule is well and clearly explained in the seminal case of This Is Me, Inc. v. Elizabeth Taylor, 157 F.3d 139 (2d Cir. 1998). In Taylor, the Court commented that the then recent adoption of the term "judgment as a matter of law" to replace both the term "directed verdict" and the term "judgment N.O.V." was intended to call attention to the close relationship between Rule 50 and 56. 157 F.3d at 142. The Court then went on to explain the basis for granting a post-verdict Rule 50 motion, as follows:

A district court may not grant a motion for a judgment as a matter of law unless "the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable [persons] could have reached."

Cruz v. Local Union No. 3, Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1154--55 (2d Cir. 1994) (quoting Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970)) (internal quotation marks omitted). Weakness of the evidence does not justify judgment as a matter of law; as in the case of a grant of summary judgment, the evidence must be such that "a reasonable juror would have been compelled to accept the view of the moving party." Piesco, 12 F.3d at 343.

Id.; see also Fabri v. United Techs. Int'l Inc., 387 F.3d 109, 119 (2d Cir. 2004) (same); Sanders v. New York City Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004).

When ruling on a motion for JMOL, the court must "'consider the evidence in the light most favorable to the [non-moving party] and . . . give that party the benefit of all reasonable inferences that the jury might have drawn in [its] favor from the evidence.'" Concerned Residents for the Env't v. Southview Farm, 34 F.3d 114, 117 (2d Cir. 1994), cert. denied, 514 U.S. 1082, 115 S. Ct. 1793, 131 L. Ed. 2d 721 (1995), (quoting Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363, 367 (2d Cir. 1988)). The court "must disregard all evidence favorable to the moving party that the jury is not required to believe." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151, 120 S. Ct. 2097 (2000); Meloff v. New York Life Ins. Co., 240 F.3d 138, 145 (2d Cir. 2001). Accordingly, when ruling on a motion brought pursuant to Rule 50, the court may not rule on the credibility of the witnesses or the weight of the evidence. Caruso v. Forslund, 47 F.3d 27, 32 (2d Cir. 1995). Rather, it must defer to the credibility assessments that may have been made by the jury and the reasonable factual inferences that may have been drawn by the jury. See Williams v. Cnty. of Westchester, 171 F.3d 98, 101 (2d Cir. 1999).

A JMOL is thus "proper only if 'the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable [persons] could have reached.'" Fiacco v. City of Rensselaer, 783 F.2d 319, 329 (2d Cir. 1986) (quoting Simblest, 427 F.2d at 4). Such motions "should be granted cautiously and sparingly." 9A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2524, at 252 (1995); Japan Airlines Co. Ltd. v. Port Auth. of New York & New Jersey, 178 F.3d 103, 112 (2d Cir. 1999).

2.The Motion for a New Trial

Under Federal Rule of Civil Procedure 59 ("Fed. R. Civ. P. 59" or "Rule 59"), a court "may, on motion, grant a new trial on all or some of the issues - and to any party - . . . after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court." Fed. R. Civ. P. 59(a)(1)(A). "'A motion for a new trial should be granted when, in the opinion of the district court, the jury has reached a seriously erroneous result or . . . the verdict is a miscarriage of justice.'" DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 133 (2d Cir. 1998) (quoting Song v. Ives Labor, Inc., 957 F.2d 1041, 1047 (2d Cir. 1992)). The general grounds for a new trial are that (1) the verdict is against the clear weight of the evidence;

(2) the trial court was not fair; (3) substantial errors occurred in the admission or rejection of evidence or the giving or refusal of instructions to the jury; or (4) damages are excessive. 12 Moore's Federal Practice, § 59.13[1] at 59-43 (3d Ed. 2005).

In comparison to a Rule 50 motion for judgment as a matter of law, the Second Circuit has held that the standard for a Rule 59 motion in some respects is less onerous for the moving party in two ways: first, "[u]nlike judgment as a matter of law, a new trial may be granted even if there is substantial evidence supporting the jury's verdict." DLC Mgmt. Corp, 163 F.3d at 134. Second, in deciding a Rule 59 motion "a trial judge is free to weigh the evidence himself, and need not view it in the light most favorable to the verdict winner." Id. However, the granting of a new trial is an extraordinary relief, and one that "is properly granted only upon a showing of exceptional circumstances." Id. at 391.

B.As to the Defendant's Motion for Judgment as a Matter of Law

1.NYCHRL Claims

a.Whether a Rule 50(b) Motion as to the NYCHRL Claims is Proper

As an initial matter, the Plaintiff argues that UPS is procedurally barred from raising a Rule 50(b) motion in connection with the Plaintiff's NYCHRL claims because the Defendant did not raise this issue in its initial Rule 50(a) motion. According to the Plaintiff, UPS was required to raise the objection that the evidence was insufficient to establish a claim under the NYCHRL at the charging conference, or at the very least, prior to the jury being charged. See Thorsen v. Cnty. of Nassau, 722 F. Supp. 2d 277, 287 (E.D.N.Y. 2010).

In response, the Defendant argues first, that it did raise the applicability of the NYCHRL to the Plaintiff's claims prior to the start of the trial. (9/7/2011 Tr., 11:14--24.) The Court specifically reserved judgment as to the particular issue. Also, the Defendant points out that the Court sua sponte raised the issue of whether the NYCHRL could apply to the Plaintiff's allegations, given the fact that the majority of his work for UPS during the relevant time period took place on Long Island. Second, the Defendant asserts that because the applicability of the NYCHRL to the Plaintiff's claims is a legal question, it is a recognized exception to the bar under Rule 50(b) for failure to preserve a claim. Third, the Defendant claims that declining to rule on this issue would result in a manifest injustice because UPS will be held liable under a law that does not apply to its conduct.

Rule 50(a) provides that, prior to submission of a case to a jury, if a court that "finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on [a given] issue," it may enter judgment as a matter of law on that issue. Rule 50(a)'s language thus permits a party to make a motion for judgment as a matter of law prior to submission of the case to the jury. Rule 50(b) provides that a party may renew this motion after a verdict. Thus, Rule 50(b) implies that a motion for judgment as a matter of law must be renewed at the close of all the evidence if the moving party wants to obtain such relief should the jury bring in a verdict against him. See Cruz v. Local Union No. 3 of Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1155 (2d Cir. 1994) ("The rule is well established that a motion for [judgment as a matter of law] at the close of all the evidence is a prerequisite for [judgment as a matter of law]." (second brackets in original; citation and internal quotation marks omitted)); Pittman by Pittman v. Grayson, 149 F.3d 111, 120 (2d Cir. 1998) ("[T]o be timely, the motion for judgment as a matter of law must be made 'before submission of the case to the jury.'" (quoting Fed. R. Civ. P. 50(a)(2)), cert. denied, 528 U.S. 818, 120 S. Ct. 59, 145 L. Ed. 2d 51 (1999). "But neither the rule nor the note discusses the consequences of failure to comply strictly with the rule." Szmaj v. Am. Tel. & Tel. Co., 291 F.3d 955 (7th Cir. 2002).

Here, it is undisputed that the Defendant did, at a minimum, raise the issue before the jury was instructed and deliberated. It was not presented to the Court as a formal Rule 50(a) motion, but rather, as a motion in limine. Specifically, the Defendant's Counsel stated the following before the Court at a hearing on September 7, 2011, prior to the commencement of the trial:

The third aspect of this is I understand this discrimination failure to accommodate claim is based on the ADA, the New York State Human Rights Law and the New York City Human Rights Law. However, Mr. Welch worked in New York City only in 2010. Anything prior cannot be covered jurisdictionally by the New York City Human Rights Law. So as a result, that claim has to be limited to the time Mr. Welch was working in Manhattan..

Again, but I want to be clear, clearly it's in the statute as well as the case law in that regard. (9/1/2011 Tr., 11:14--22; 12:3--5.) However, the Court reserved judgment on the issue. (See 9/7/2011 Tr., 11:23-24 ("THE COURT: But I'm not going to that now, that will all come later, of course. . . . When I give instructions to the jury, we will get into that.").)

On one hand, the Court could find that the Defendant is not procedurally barred from now asserting this argument again by a Rule 50(b) motion because the arguments were somewhat raised prior to deliberations and it was the Court's decision to not explore the merits at that time. Cf. Roberts v. Nat'l R.R. Passenger Corp., Nos. 04 Civ. 1318, 04 Civ. 1622, 04 Civ. 2195, 2006 WL 2621733, at *4 (D. Conn. Sept. 12, 2006) ("Amtrak is not precluded by the asserted failure to move at the end of the case. It noted its intent to move as required by Rule 50 of the Federal Rules of Civil Procedure, and the Court noted its awareness of the basis for the motion and reserved judgment. The lack of a detailed recitation of the grounds for the motion was due to the Court's intervention, to which O & G took no exception."); Skrundz v. Pabey, No. 05 Civ. 188, 2009 WL 1704687, at *1 (N.D. Ind. June 17, 2009) ("Rule 50 allows a court to enter judgment as a matter of law when the motion is first offered or to reserve judgment on the motion until after a jury has returned its verdict."); John M. Floyd & Assocs., Inc. v. Ocean City Home Bank, No. 03 Civ. 1473, 2008 WL 4534079, at *2 (D.N.J. Oct. 2, 2008) ("Once the Court denies or reserves judgment on the initial motion under Rule 50(a), the party may renew its motion after the jury has returned a verdict. Fed. R. Civ. P. 50(b)."). As explained by Judge Block:

A Rule 50(b) motion "is limited to those grounds that were specifically raised in the prior [Rule 50(a) motion]." Tolbert v. Queens College, 242 F.3d 58, 70 (2d Cir. 2001). Pursuant to this specificity requirement, the Rule 50(a) motion "must at least identify the specific element that the defendant contends is insufficiently supported." Galdieri-Ambrosini v. National Realty & Dev. Corp., 136 F.3d 276, 286 (2d Cir. 1998). The purpose of the specificity requirement is "so that the responding party may seek to correct any overlooked deficiencies in the proof." Id. (quoting Fed. R. Civ. P. 50 Advisory Committee Note (1991)).

Drake v. Delta Air Lines, Inc., No. 94 Civ. 5944, 2005 WL 1743816, at *1 (E.D.N.Y. July 21, 2005). Therefore, it is possible to view the Defendant's in limine motion as a vehicle through which it identified the specific element that it believed would be unsupported and provided the Plaintiff with an opportunity to correct this asserted deficiency in proof at the trial.

On the other hand, the Defendant's counsel raised the issue at the commencement of the trial, without any formal motion based on the insufficiency of evidence as a matter of law at the close of the Plaintiff's case. Cf. Siracuse v. Program for the Dev. of Human Potential, No. 07 Civ. 2205, 2012 WL 1624291, at *2 (E.D.N.Y. Apr. 30, 2012) ("Satisfying the requirements of Rule 50(a), defendant specified that it sought to have the action 'dismiss[ed] for insufficiency of the evidence as a matter of law' . . . , and detailed the facts that it contended supported such a judgment. . . . In regard to plaintiff's NYCHRL claim specifically, defendant argued that 'there's insufficiency of evidence in general to support that her health was a reason [for the non-promotion], because the defendant has put forth a legitimate reason.' . . . Accordingly, defendant's Rule 50(b) motion currently pending before this Court is procedurally proper"). In the Court's view, this conduct does not technically comply with the letter of Rule 50.

Many circuits have taken a forgiving view of certain violations of the renewal requirement. See, e.g., Giles v. General Electric Co., 245 F.3d 474, 481-83 (5th Cir. 2001); Taylor Publishing Co. v. Jostens, Inc., 216 F.3d 465, 472-73 (5th Cir. 2000); Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 129 (2d Cir. 1999); Alcatel USA Inc. v. DGI Technologies, Inc., 166 F.3d 772, 781 (5th Cir. 1999); Singer v. Dungan, 45 F.3d 823, 829 (4th Cir. 1995); Keisling v. SER-Jobs for Progress, Inc., 19 F.3d 755, 759 (1st Cir. 1994); Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1173-74 (3d Cir. 1993).

For instance, one district court in Virginia clarified that it had effectively excused the Defendant from formally making a Rule 50(a) motion at the close of all the evidence, because it had been made clear upon ruling on Plaintiff's motion for a directed verdict at the close of all the evidence, that the matter contained sufficient factual concerns for the jury to consider. See Cretella v. Kuzminski, 640 F. Supp. 2d 741, 755 (E.D. Va. 2009). In other words, there are certain courts that have found that the "spirit of the procedural requirements were met" (see id.), so that it was proper to review a subsequent Rule 50(b) motion, despite a failure to comply with the procedural requirements of raising a formal motion at the close of all evidence. See Singer v. Dungan, 45 F.3d 823, 829 (4th Cir. 1995).

However, not all courts have been so lenient. In 2009, the Tenth Circuit found that because the Defendant did not assert its arguments in a Rule 50(a) motion at the close of the Plaintiff's case-in-chief, it was precluded from relying on them as a basis for Rule 50(b). See M.D. Mark, Inc. v. Kerr--McGee Corp., 565 F.3d 753, 762--65 (10th Cir. 2009).

This case presents a somewhat unusual situation. Typically, cases to have addressed whether the procedural requirements of a Rule 50(b) motion have been met, have dealt with the situation where a Rule 50(a) motion was made but either (1) the Judge reserved decision; or (2) it did not contain the same arguments that are raised in the subsequent Rule 50(b) motion. As to (1), the Second Circuit has held that "where the trial judge has indicated that renewing a previously made motion for judgment as a matter of law at the close of all the evidence was not necessary, and where the opposing party could not reasonably have thought that the motion was dropped, then judgment as a matter of law may be sought post-verdict." See Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 133 (2d Cir. 2008). As to (2), it is clear in this Circuit that "[a] Rule 50(a) motion requesting judgment as a matter of law on one ground but omitting another is insufficient to preserve a JMOL argument based on the latter." Lore v. Cit of Syracuse, 670 F.3d 127, 152 (2d Cir. 2012). Here, this case represents a combination of these concepts: this Court did reserve decision as to the applicability of the NYCHRL claims, but that applicability was not raised in an initial Rule 50(a) motion. Thus, the question presented is what the Court should do when the arguments were raised to the Court before the case is submitted to the jury but not by a formal Rule 50(a) motion.

The rationale behind the renewal requirement is to provide "the requisite opportunity to cure any perceived deficiency in her proof before the case was submitted to the jury." Lore v. City of Syracuse, 670 F.3d 127, 153 (2d Cir. 2012) ("The principal purpose of the requirement that any such motion be made before the case is submitted to the jury is 'to assure the responding party an opportunity to cure any deficiency in that party's proof.'") (quoting Piesco v. Koch, 12 F.3d at 340).

Here, the Court finds that pursuant to the letter of Fed. R. Civ. P. 50(b) and the relevant case law, because the Defendant only raised the issue of the applicability of the NYCHRL at a pre-trial conference and again in the middle of jury deliberations (9/22/11 Tr., 1533-1536), but did not raise the issue in its Rule 50(a) motion, the present 50(b) is procedurally improper. Cf. Bracey v. Board of Educ. Of City of Bridgeport, 368 F.3d 108 (2d Cir. 2004) (not addressing the Rule 50(b) motion on appeal because the Board never filed a Rule 50(a) motion, but also appeared to not have raised the arguments in any other vehicle). It is an unfair result and contravenes the purposes of Rule 50 to allow the Defendant to raise an issue before the Plaintiff has even put on his case, and then not renew that contention regarding the sufficiency of the evidence after the Plaintiff has actually presented his proof. Such a finding would undermine the requirement that a Defendant identify the specific element that is unsupported and question the sufficiency of the evidence that was presented; and then afford the Plaintiff an opportunity to remedy any defect.

However, the Second Circuit has created an exception, holding that a court "may grant judgment as a matter of law where no Rule 50 motion was made, if necessary to prevent 'manifest injustice.'" Stephenson v. Doe, 332 F.3d 68, 76 (2d Cir. 2003) (citing Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 129 (2d Cir. 1999); Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 164 (2d Cir. 1998)). Hence, this Court may nevertheless grant judgment as a matter of law to prevent "manifest justice" when the jury's verdict is "wholly without legal support". See Scott v. Rosenthal, 53 Fed. App'x 137, 140 (2d Cir. 2002). The cases have provided little guidance on what constitutes "manifest injustice" in this context, but rather appear to focus on the specifics of each fact pattern. Id. Of course, a defendant may not merely argue that the procedural bar should be waived because they should win on the underlying motion. "Such an argument would, of course, obviate the need for the procedural requirement in the first place." Health Alliance Network, Inc. v. Continental Cas. Co., 245 F.R.D. 121, 124 (S.D.N.Y. 2007). However, "where the argument presents a question of law and there is no need for additional fact-finding", and manifest injustice may arise, then exercise of this discretion is warranted. See Malmsteen v. Berdon, LLP, 369 Fed. App'x 248, 251 (2d Cir. 2010).

Here, because the Court finds that manifest injustice would occur if a verdict as to the NYCHRL is permitted to stand, as explained further below, then this a basis under which the Court may permit the filing of a Rule 50(b) motion. See Ramos v. Co. of Suffolk, 707 F. Supp. 2d 421, 426 (E.DN.Y. 2010) (Spatt, J.) ("As discussed above, the Second Circuit has held that a failure to move for judgment as a matter of law prior to submission to the jury is not a per se bar to a later motion for the same relief."). This is not the type of situation where the Court has concerns that it "must give deference to all credibility determinations and reasonable inferences of the jury, and may not weigh the credibility of witnesses. . . ." Kinneary v. City of New York, 601 F.3d 151, 155 (2d Cir. 2010) (quoting Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 133 (2d Cir. 2008)). There are no factual disputes or credibility determinations whatsoever as to the applicability of the NYCHRL. Rather, the plain issue is whether the Plaintiff's claimed contact with New York City is sufficient, as a matter of law, to warrant recovery under the NYCHRL.

In the Court's view, it would result in manifest injustice if UPS is held liable under a law which, based upon the evidence, does not apply to its conduct. Moreover, it would result in manifest injustice if the Plaintiff is permitted to recover damages and fees under a law under which he is not entitled to recovery. Accordingly, the Court will now rule on this aspect of the Defendant's Rule 50(b) motion.

b.NYCHRL Retaliation

The Defendant contends that even if it is assumed that the Plaintiff was retaliated against in violation of the NYCHRL, the Defendant is nevertheless entitled to judgment as a matter of law in connection with the NYCHRL claims because the Plaintiff was never assigned to a more difficult work environment within the five boroughs during the relevant statutory time period. Quite simply, UPS argues that the record is devoid of any factors or evidence that could support a finding that Welch felt the impact of UPS's alleged retaliation within the five boroughs.

Title 8 of the New York City Administrative Code makes it unlawful for an employer to discharge from employment, or to discriminate against in compensation or in the terms, conditions or privileges of employment, any person based on their "actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation or alienage or citizenship status". N.Y.C. Admin. Code § 8--107(1)(a). To succeed on a claim under the NYCHRL, a plaintiff must prove that the defendant discriminated against him "within the boundaries of New York City". Shah v. Wilco Sys., Inc., 27 A.D.3d 169, 175, 806 N.Y.S.2d 553, 558 (1st Dep't 2005); Fried v. LVI Servs., Inc., No. 10 Civ. 9308, 2011 WL 4633985, at *12 (S.D.N.Y. Oct. 4, 2011) ("The NYCHRL expressly limits the applicability of its protections to acts that occur within the boundaries of New York City.") (citing N.Y.C. Admin. Code § 2--201). "[T]o determine the location of the discrimination under the NYCHRL, courts look to the location of the impact of the offensive conduct." Curto v. Med. World Commc'ns, Inc., 388 F. Supp. 2d 101, 109 (E.D.N.Y. 2005). As the New York Court of Appeals recently held, "the impact requirement is relatively simple for courts to apply and litigants to follow, leads to predictable results, and confines the protections of the NYCHRL to those who are meant to be protected ---- those who work in the city." Hoffman v. Parade Publ'ns., 15 N.Y.3d 285, 290--91, 907 N.Y.S.2d 145, 933 N.E.2d 744 (2010) (emphasis added).

Here, it is undisputed that the Plaintiff is a non-resident of New York City. Thus, the Plaintiff necessarily needed to establish at the trial that he felt the impact of the Defendant's alleged retaliation within the boundaries of New York City.

In the Plaintiff's opposition papers, he does not specifically argue that there was any evidence presented at trial that would establish that he felt the impact of the Defendant's alleged retaliation within New York City. Rather, his post-trial memorandum merely recounts the following facts elicited from Welch's testimony. From January to October 2006, prior to the relevant time period, the Plaintiff worked as a supervisor in the comprehensive health and safety program ("CHSP") in Maspeth, Queens. (9/7/2011 Tr, 131; 138; 9/8/2011 Tr., 253:8--19.) In October 2006, Welch was reassigned to work as a supervisor at the Nassau preload. (9/7/2011 Tr., 139.) Then from July to December 2007, he worked as a supervisor in the CHSP in Melville, New York. (9/7/2011 Tr., 146--47.) Thus, the only instances of the Plaintiff conceivably feeling the impact of the Defendant's alleged retaliation are: (1) at a meeting in Brooklyn on June 20, 2008, DiLibero, UPS' employee relations manager, told Welch that his allegations of discrimination were "false" (9/8/2011 Tr., 169:9--17) and that he was going to be "reassigned to the preload operation, the very operation [Welch] was taken from prior to that because it did not meet [his] restrictions" (9/8/2011 Tr., 170:5--24); and (2) that the Plaintiff worked at the Foster Avenue facility in Brooklyn for two days during the Jewish holidays in September 2009, during which time he delivered packages that exceeded the weight restrictions imposed by his physicians (9/8/2011 Tr., 192:1--18.)

As for the June 2008 meeting, as previously stated, it is the impact of the adverse action, not the location where acts leading to the discrimination occur, that gives rise to a claim under the NYCHRL. See Shah, 27 A.D.3d at 176, 806 N.Y.S.2d at 558 ("[T]he locus of the decision to terminate here is of no moment. What is significant is where the impact is felt. Thus, even if the termination decision had been made in New York City, the NYCHRL would not apply since its impact on her occurred in New Jersey, not within the five boroughs."); Salvatore v. KLM Royal Dutch Airlines, No. 98 Civ. 2450, 1999 WL 796172, at *16 (S.D.N.Y. Sept. 30, 1999) ("The fact that certain acts leading to discrimination may occur in New York City will not necessarily give rise to a claim under the [NYCHRL].").

Although the decision to reassign the Plaintiff was communicated to him at a meeting that was held within the boundaries of New York City, Welch felt the impact of this retaliation through the actual reassignment to Nassau County. See Duffy v. Drake Beam Morin, Harcourt Gen., Inc., No. 96 Civ. 5606, 1998 WL 252063, at *11 (S.D.N.Y. May 19, 1998) ("To hold otherwise would be to expand the [NYCHRL] to cover any employee who is fired pursuant to a decision handed down by an employer from its New York City headquarters, no matter where the employee in question actually works."); Lightfoot v. Union Carbide Corp., No. 92 Civ. 6411, 1994 WL 184670, at *5 (S.D.N.Y. May 12, 1994) (dismissing NYCHRL claim where the employer's early ...


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