Argued: October 21, 2015
from a judgment entered in the United States District Court
for the Western District of New York (Hugh B. Scott,
Magistrate Judge) after a jury verdict. The jury
rejected appellant's federal claims of disability
discrimination, retaliation, and failure to accommodate.
Appellant argues that the district court erred by (i)
admitting evidence of an offer of settlement in violation of
Fed.R.Evid. 408, (ii) disqualifying her attorney and opposing
counsel, (iii) not instructing jurors on the requirement of
an interactive process under the Americans with Disabilities
Act, and (iv) ruling as a matter of law on her New York State
Human Rights Law (NYSHRL) claim. We vacate the judgment in
part, insofar as it adopted the jury's verdict and the
district court's disqualification order; dismiss the
appeal in part, insofar as it pertains to claims under the
NYSHRL; and remand for further proceedings consistent with
D. VALLAS, The Ottinger Firm, P.C., New York, NY, for
C. ELLER, Miles & Stockbridge, P.C., Baltimore, MD, for
Before: KEARSE, WINTER, and CABRANES, Circuit Judges.
WINTER, Circuit Judge.
Sheng brought this action against appellees (collectively
MTBank), claiming violations of various state and
federal statutes by not allowing her to work remotely when
she became pregnant. After the close of evidence, Magistrate
Judge Scott ruled as a matter of law against appellant on a
number of claims, while the jury found for MTBank on the
appeal, appellant contends that the district court erred by:
(i) admitting evidence in violation of Fed.R.Evid. 408 that
MTBank made an offer of reinstatement allowing her to work
remotely, (ii) disqualifying the attorneys for both parties
under the advocate-witness rule, (iii) not instructing jurors
on her claim that MTBank violated the Americans with
Disabilities Act of 1990 (ADA) by failing to engage in an
interactive process, and (iv) dismissing as a matter of law
appellant's New York State Human Rights Law (NYSHRL)
claim, which appellant argues had the same legal and factual
underpinnings as her ADA claim that was presented to the
that (i) the district court abused its discretion in
admitting evidence of the reinstatement offer because the
offer was, as a matter of law, not unconditional;(ii) the
district court erred in sua sponte disqualifying the
attorneys, because the disqualification depended on the
erroneous admission of evidence relating to the reinstatement
offer; (iii) the jury instructions were not erroneous; and
(iv) we lack jurisdiction over appellant's challenge to
the district court's NYSHRL ruling.
vacate the judgment in part, insofar as it adopted the
jury's verdict and the district court's
disqualification order; dismiss the appeal in part, insofar
as it pertains to claims under the NYSHRL; and remand for
further proceedings consistent with this opinion.
reviewing this record we construe all evidence, draw all
inferences, and make all credibility determinations in favor
of the party that prevailed before the jury."
DiBella v. Hopkins, 403 F.3d 102, 110 (2d Cir.
January 2010, appellant began her employment with MTBank in
Buffalo, New York as a Lead on its Quality Assurance Test
(QAT) team in the bank's Central Technology (CT)
Department. The QAT team executes system testing of computer
programs for bank applications. In March 2011, appellant
decided to resign her position and relocate to Los Angeles,
where her husband had taken a job. However, her supervisor,
Monica Holcomb, suggested that she continue to work at MTBank
remotely through the bank's Alternative Work Arrangement
(AWA) policy. Under the AWA policy, "[a]n employee's
failure to resume [a] traditional work schedule or location
upon revocation of an AWA will be considered a voluntary
resignation of employment." J. App'x at 77.
Appellant accepted Holcomb's offer and began working
remotely from California.
spring of 2012, MTBank's management began exploring a
reorganization of the CT Department, including the QAT team.
This reorganization was intended to facilitate the Voyager
Project, a planned overhaul of MTBank's existing online
banking system. On May 30, 2012, MTBank announced the
reorganization to CT Department employees. In a meeting
attended remotely by appellant, management explained that, in
light of the reorganization, all AWAs would be reviewed.
Later that day, Holcomb called appellant, who confirmed that
she understood that her AWA status could be affected by the
next day, appellant notified Lonnie Basciani -- who had
replaced Holcomb as appellant's supervisor and in turn
reported to Holcomb -- that she was pregnant. Shortly
thereafter, she expressed concern about her AWA policy.
Management determined, however, that team leads would need to
be physically present in Buffalo at least two days per week
in order to communicate and work directly with the
individuals implementing the Voyager Project. At the time,
appellant was the only employee on AWA status and not based
in Buffalo. On June 27, 2012, Holcomb notified appellant that
her AWA status would be altered, and that she would need to
begin traveling to Buffalo.
following day, on June 28, 2012, appellant emailed Holcomb
and MTBank's Human Resources Department, requesting a
meeting to discuss the possibility of delaying the start of
her commute to Buffalo until after she gave birth. At a July
3, 2012 meeting with Holcomb, however, appellant was informed
that her request to be exempted from traveling to Buffalo
during the duration of her pregnancy was denied. Appellant
was given a deadline of July 27 to confirm that she would
begin reporting to Buffalo in early August.
19, appellant submitted a letter from her obstetrician to
Holcomb and MTBank's Human Resources Department, stating
that, for health reasons, she should not engage in air travel
for the duration of her pregnancy. After receiving this
letter, Human Resources and MTBank management examined
whether appellant could work on non-Voyager Project matters
until she ...