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Rinsky v. Cushman & Wakefield Inc.

United States District Court, D. Massachusetts

March 7, 2018

YURY RINSKY, Plaintiff,



         Plaintiff 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.


         Defendant's 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)).

         In 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).


         In reaching its verdict, the jury could have found the following facts, based on the evidence presented at trial.[1]

         Plaintiff 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.

         Plaintiff 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 approved.

         On 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.

         Throughout 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.

         Plaintiff 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.

         Plaintiff 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.”[2] 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.

         Unbeknownst 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.”[3] 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.

         During 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.

         In May 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.

         Plaintiff 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 ...

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