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Rinsky v. Cushman & Wakefield, Inc.

United States Court of Appeals, First Circuit

March 8, 2019

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]

          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.

          Before Barron and Selya, Circuit Judges, and Katzmann, [*] Judge.

          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 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 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.

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 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 Mass. Gen. Laws ch. 151B[2], 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, 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 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 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 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 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.

         A. Applicability of the NYCHRL.

         On appeal, C&W launches two separate challenges to the applicability of the NYCHRL. Neither is meritorious.

         1. ...


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