FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSSETTS [Hon. Allison D. Burroughs, U.S. District
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.
D. Szal, with whom Szal Law Group LLC, John W. Dennehy, and
Dennehy Law were on brief, for appellee.
Barron and Selya, Circuit Judges, and Katzmann,
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.
Evidence at Trial.
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 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.
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."
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 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
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.
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.
Reid replied, "Ok, we will talk on Tuesday."
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.
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 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.
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,
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.
Background and Procedural History.
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 Mass. Gen. Laws ch. 151B, 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.
that Rinsky was a citizen of Massachusetts, C&W was a
corporation organized under the law of the state of New York,
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.
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 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.
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 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.
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 are granted leave to supplement their proposed jury
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.
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.
court replied: "Okay. That wasn't clear. So thank
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
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
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.
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.
Applicability of the NYCHRL.
appeal, C&W launches two separate challenges to the
applicability of the NYCHRL. Neither is meritorious.