United States District Court, D. Massachusetts
MEMORANDUM AND ORDER DENYING DEFENDANT'S
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.
Yury Rinsky filed this case in Massachusetts state court in
January 15, 2016, alleging that Defendant Cushman &
Wakefield, Inc., his former employer, discriminated against
him based on his age and disability. [ECF No. 1-1 at 5-13].
Defendant removed the case to this Court on February 25,
2016, invoking the Court's diversity jurisdiction. [ECF
No. 1]. After a five-day jury trial, on April 14, 2017, the
jury returned a verdict finding that Plaintiff's age was
a substantial factor in Defendant's decision to terminate
him, but that Plaintiff's disability, if any, was not a
substantial factor in the decision to terminate. [ECF No.
60]. The jury awarded Plaintiff $290, 000 in back pay, $135,
000 in front pay, $850, 000 in punitive damages, and nothing
for emotional distress, resulting in a total award of $1,
275, 000. Id. Now before the Court are
Defendant's renewed motion for judgment as a matter of
law pursuant to Fed.R.Civ.P. 50(b) [ECF No. 74] and its
motion for a new trial under Fed.R.Civ.P. 59(a) [ECF No. 75].
For the reasons set forth below, both motions are denied.
STANDARD OF REVIEW
Rule 50 motion for judgment as a matter of law is based on
the contention that the evidence was not sufficient to
support the jury's verdict. “A party seeking to
overturn a jury verdict faces an uphill battle.”
Marcano Rivera v. Turabo Med. Ctr. P'ship, 415
F.3d 162, 167 (1st Cir. 2005). “Courts may only grant a
judgment contravening a jury's determination when the
evidence points so strongly and overwhelmingly in favor of
the moving party that no reasonable jury could have returned
a verdict adverse to that party.” Id. (quoting
Rivera Castillo v. Autokirey, Inc., 379 F.3d 4, 9
(1st Cir. 2004)). In evaluating a motion for judgment as a
matter of law, the Court must consider “the evidence
presented to the jury, and all reasonable inferences that may
be drawn from such evidence, in the light most favorable to
the jury verdict.” Osorio v. One World Techs.
Inc., 659 F.3d 81, 84 (1st Cir. 2011) (quoting
Granfield v. CSX Transp., Inc., 597 F.3d 474, 482
(1st Cir. 2010)).
contrast, the Court's power to grant a Rule 59 motion for
a new trial “is much broader than its power to grant a
[motion for judgment as a matter of law].” Jennings
v. Jones, 587 F.3d 430, 436 (1st Cir. 2009). The Court
may grant a motion for a new trial “if the verdict is
against the demonstrable weight of the credible evidence,
” or if it “results in a blatant miscarriage of
justice.” Foisy v. Royal Maccabees Life Ins.
Co., 356 F.3d 141, 146 (1st Cir. 2004) (quoting
Sanchez v. P.R. Oil Co., 37 F.3d 712, 717 (1st Cir.
1994)). “The district court may ‘independently
weigh the evidence' in deciding whether to grant a new
trial.” Cham v. Station Operators, Inc., 685
F.3d 87, 97 (1st Cir. 2012) (quoting Jennings, 587
F.3d at 435). “[A] district court wields ‘broad
legal authority' when considering a motion for a new
trial . . . .” Jennings, 587 F.3d at 436
(quoting de Pérez v. Hosp. del Maestro, 910
F.2d 1004, 1006 (1st Cir.1990)). At the same time, a
“district judge cannot displace a jury's verdict
merely because [she] disagrees with it' or because
‘a contrary verdict may have been equally . . .
supportable.'” Id. (quoting Ahern v.
Scholz, 85 F.3d 774, 780 (1st Cir. 1996)). “[W]hen
an argument that the evidence was insufficient forms the
basis of a motion for new trial, the district court is
generally well within the bounds of its discretion in denying
the motion using the same reasoning as in its denial of a
motion for judgment as a matter of law.” Lama v.
Borras, 16 F.3d 473, 477 (1st Cir. 1994).
EVIDENCE AT TRIAL
reaching its verdict, the jury could have found the following
facts, based on the evidence presented at
began working for Defendant in New York City in 1988. From
2009 to 2015, he was employed as a software engineer
specializing in the AS/400 computer system. In 2012,
Defendant instructed Plaintiff to work remotely part time due
to a lack of space in the New York City office, so from 2012
to 2015, Plaintiff worked remotely three to four days a week,
spending only one or two days per week in the office.
Defendant did not impose any restrictions as to where
Plaintiff performed remote work, and sometimes Plaintiff
would work remotely from Boston while visiting his daughter.
During this time, Plaintiff continued to receive excellent
annual performance reviews.
learned in March 2015 that his supervisor, Colin Reid, was
transferring from New York to Miami. Later the same month,
Plaintiff asked Reid if he could transfer to Boston. Reid
responded that he was too busy to discuss it at the time, but
that they could talk about it later. In April 2015, Plaintiff
informed Reid that he had sold his house, but with the option
to continue living in it after the sale went through.
Plaintiff again requested permission to transfer to Boston.
Reid said he was willing to allow Plaintiff to transfer,
especially given the fact that Plaintiff was already working
remotely half of the time, although he would have to check
with his manager, Andrew Hamilton. A few days later,
Plaintiff asked Reid if he had spoken to Hamilton yet; Reid
responded that he had not. Approximately four days later, in
mid-April 2015, Plaintiff asked again, and Reid responded
that Hamilton had said it was “no problem” for
Plaintiff to work out of the Boston office. Plaintiff asked
Reid what the next steps were, and Reid responded that the
chief information officer would need to arrange for a cubicle
for Plaintiff in the Boston office. At this point, Plaintiff
understandably believed that his transfer to Boston had been
Sunday, May 17, 2015, Plaintiff sent an email to Reid in
which he stated that he planned to move to Boston on
Wednesday, May 27, and asked to take four personal days off
near that time. Reid responded, “Okay. We will talk on
Tuesday [May 19].” When Plaintiff spoke with Reid on
May 19, they discussed logistical matters such as his
equipment and who would be Plaintiff's contact in the
Boston office. When Plaintiff offered to come to the New York
office one day per week, Reid stated that might not be
necessary, and that Plaintiff would likely only have to come
to New York occasionally, as needed, or possibly at the end
of each month, when the workload was the heaviest.
Plaintiff's last day in the New York office was May 22.
On that day, he met with Reid to discuss his current projects
and what he would work on in June. Plaintiff also said
goodbye to his coworkers in the New York office, and told
them he was transferring to Boston.
the time period at issue, neither Reid nor any other
individual mentioned to Plaintiff that Defendant had a
specific process for handling transfer requests, nor did
anyone tell Plaintiff that any other authorization or
additional steps were required beyond obtaining permission
from Reid and Hamilton. As far as Plaintiff knew, Defendant
did not have any official or unofficial policies concerning
transferring offices. Prior to his departure, nobody told
Plaintiff that his transfer request was still pending, that
there was any problem with it, that it was not approved, or
that he might lose his job if he moved.
began working from Boston on May 28. Shortly thereafter, an
employee of Defendant who managed computer inventory emailed
Plaintiff to ask if he still needed his desktop computer,
which was in New York. Plaintiff replied, copying Reid, that
he would need it in a couple weeks once he was assigned a
cubicle in the Boston office. Reid sent an email in response,
copying Hamilton, stating that Plaintiff might be getting new
equipment in Boston, because a consultant would be sitting at
Plaintiff's previous space in New York. Plaintiff
performed his work remotely during the first few weeks of
June. He communicated regularly with Reid, who never
mentioned any issues concerning the transfer.
was invited to participate in a conference call on June 22,
2015 with Reid, Hamilton, and a representative from HR,
Katrina Hicks. During the call, Hamilton informed Plaintiff
that he would be required to be physically present in the New
York office five days per week, beginning the following day.
Hamilton also stated that it would be in Plaintiff's best
interest to resign, which Plaintiff declined to do. After the
call ended, Reid sent an email, with a draft resignation
letter attached, to Plaintiff, copying Hamilton and Hicks,
that stated, “this is the response that HR is expecting
from you based on our conversation this
morning.” The proposed text included this statement:
“After informing you of my decision to relocate and
understanding the need for my role is located in
[Defendant's] New York office, I have decided not to
continue my employment.” Plaintiff refused to submit
the proposed resignation letter. The next day, Plaintiff lost
access to the AS/400 system, and after a period of review, on
July 14, 2015, Reid sent an email to Plaintiff stating that
he had been terminated.
to Plaintiff, Defendant had formulated a plan to hire a
replacement and then terminate Plaintiff even before
Plaintiff moved to Boston. On May 14, 2015, Reid sent an
email to Hamilton asking him to “think through the
options and risks of replacing [Plaintiff] (via contractor or
permanent role) so we can evaluate all the pros and cons of
keeping and replacing.” Reid and Hamilton had a meeting
to discuss the matter on May 19. On May 20, Reid contacted
Edgardo Felix, Plaintiff's eventual replacement, to ask
if he was interested in working for Defendant, and to inquire
as to whether he had experience with the AS/400 system. On
May 27, Hamilton sent an email to Leif Maiorini, his
supervisor, who was a senior managing director for Defendant.
The email explained that Hamilton, Reid, and Hicks had agreed
on a plan to onboard Plaintiff's replacement, transfer
knowledge from Plaintiff to his replacement, retain Plaintiff
for about nine weeks, and then work with Hicks on the
“official exit (mitigating litigation risks).”
Felix was hired as a contractor to work on the AS/400 system
in early June. For several weeks leading up to the June 22
phone call with Plaintiff, Reid, Hamilton, Maiorini, Hicks,
and Craig Cuyar, the head of the department, corresponded via
email about when to conduct what they referred to as
Plaintiff's “termination” or
“separation, ” depending on the progress of the
knowledge transfer and Plaintiff's work on key tasks.
the time at issue, Defendant did not maintain a formal
process for evaluating employee transfer requests, and there
was no written policy concerning transfers. Instead, transfer
requests were discussed verbally by the managers involved, as
well as HR. Maiorini testified that, in general, the process
was that an employee would make a verbal transfer request to
his or her manager, and then the manager would be responsible
for discussing the request with the other, more senior
individuals whose approval was necessary. No further action
from the employee was required. Maiorini characterized the
process as “informal, ” and stated that managers
can skip steps or ignore steps in the process.
2015, another employee of Defendant, Jay Leiser, who worked
in the same department as Plaintiff, asked to transfer to
Florida. Leiser informed his manager, Bill Wolf, that his
wife had an opportunity to start a dental practice in
Florida, and that he had already made plans to sell his home
in New York and move to Florida. In an email sent the next
month, on June 4, Cuyar informed Maiorini that he wanted to
address Leiser's compensation since he was moving to an
area with a lower cost of living, but that he wanted to
handle Plaintiff's move differently, following the
precedent established when a previous employee moved without
informing Defendant first, despite the fact that
Plaintiff's situation was more analogous to Leiser's.
Not long after, Leiser moved to Florida. For the first six
months, Leiser worked remotely one or two days per week, and
came back to New York to work in person the rest of the time.
Defendant then granted him permission to transfer to Florida.
In addition, another employee in the department, Steve Lipka,
transferred to Boston in or around 2011.
was 63 years old at the time he was terminated. He was the
oldest person in his department. Plaintiff's replacement,
Felix, was approximately 48 years old. Hamilton, Cuyar, and