The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LUCIANO RUSSO, GEORGE MESSIHA,
Plaintiffs,
MEMORANDUM & ORDER
– against – 23-cv-03954 (NCM) (TAM)
NATIONAL GRID, USA,
Defendant.
NATASHA C. MERLE, United States District Judge:
Plaintiffs Luciano Russo and George Messiha bring this action against National
Grid, USA (“National Grid”) for failure to accommodate their disabilities in violation of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the New York State
Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290 et seq., and the New York
City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8–107. In October 2025, the
Court held a jury trial on plaintiffs’ claims. See Minute Entries dated Oct. 6–10, 2025. The
jury returned a verdict in favor of plaintiffs on each claim. See Verdict Sheet, ECF No. 98.
Before the Court is defendant’s motion for judgment as a matter of law under Rule 50(b)
of the Federal Rules of Civil Procedure. See Mem. in Supp. of Mot. for J. as a Matter of Law
(“Mot.”), ECF No. 96. For the reasons stated below, the motion is DENIED.
BACKGROUND
The facts in this section are drawn from the parties’ stipulation of facts contained
in their joint proposed pretrial order (“JPTO”) at ECF No. 67. See Stipulations (“Joint
Stip.”), ECF No. 67 at 18–19; see also Memorandum & Order, ECF No. 79. National Grid
is a gas utility company that provides natural gas for heat, water heating, and cooking to
consumers in the New York City boroughs of Queens, Brooklyn, and Staten Island, and
also consumers on Long Island, upstate New York, and Massachusetts. Joint Stip. ¶ 1.
Plaintiff Luciano Russo was hired by National Grid in 2002 and became a dispatcher in
2013. Joint Stip. ¶ 6. Plaintiff George Messiha was hired by National Grid in 1993 and
became a dispatcher in 2001. Joint Stip. ¶ 7. Dispatchers provide support for National
Grid’s field employees and outside agencies to facilitate responses to reports of suspected
gas leaks in National Grid’s gas system. Joint Stip. ¶ 10.
In March or April of 2020, National Grid assigned its dispatchers to work from
home due to the COVID-19 pandemic, with the exception of supervisors, who were
required to report in-person to dispatch centers to “retriev[e] leak calls from the printer.”
Joint Stip. ¶ 19. In 2022, National Grid required all dispatchers to return to in-person work
on a full-time basis. Joint Stip. ¶ 20. Plaintiffs did not return to the office, and each
requested a medical accommodation to work from home based on alleged disabilities.
Joint Stip. ¶¶ 21–22. Defendant rejected both requests. Joint Stip. ¶ 23. Both plaintiffs
remain employed by National Grid. Joint Stip. ¶ 24. Messiha returned to work on August 1,
2024, with an accommodation for parking, while Russo never returned to work. Joint Stip.
¶ 24.
On May 26, 2023, plaintiffs brought suit against defendant in the Eastern District
of New York. See Compl., ECF No. 1. The Second Amended Complaint raises claims for
defendant’s failure to accommodate plaintiffs’ disabilities in violation of the ADA,
NYSHRL, and NYCHRL. See Second Am. Compl. (“SAC”), ECF No. 17. On December 20,
2024, the Court denied the parties’ cross-motions for summary judgment. See Order on
Motions for Summary Judgment (“Order”), ECF No. 56. Between October 6, 2025 and
October 10, 2025, the Court held a jury trial on plaintiffs’ claims. See Minute Entries dated
Oct. 6–10, 2025. Prior to submission of the case to the jury, defendant timely moved for
judgment as a matter of law under Rule 50(a) of the Federal Rules of Civil Procedure. See
Mot. The Court did not rule on the motion and instead “submitted the action to the jury
subject to the court’s later deciding the legal questions raised by the motion.” Fed. R. Civ.
P. 50(b). The jury returned a verdict in favor of plaintiffs on all claims. See Verdict Sheet.
Following the verdict, defendant timely renewed its motion for judgment as a
matter of law. See Minute Entry dated Oct. 10, 2025; Fed. R. Civ. P. 50(b). Plaintiffs filed
an opposition. See Mem. in Opp’n (“Opp’n”), ECF No. 101. Defendant filed a reply. See
Reply, ECF No. 103. Plaintiffs then filed a letter objecting to the inclusion of a new request
in defendant’s Reply. See Mem. in Opp’n to the Extent that Reply Memo Seeks to Amend
the Mot. (“Sur-Reply”) at 1–2, ECF No. 105.1
LEGAL STANDARD
Under Rule 50, a court may grant a motion for judgment as a matter of law only if
“the evidence, viewed in the light most favorable to the opposing party, is insufficient to
permit a reasonable juror to find in his favor.” Stevens v. Rite Aid Corp., 851 F.3d 224, 228
(2d Cir. 2017).2 A party moving under Rule 50 “faces a high bar.” Lavin-McEleney v.
Marist Coll., 239 F.3d 476, 479 (2d Cir. 2001); see also Ruderman v. L. Off. of Yuriy
Prakhin, P.C., No. 19-cv-02987, 2024 WL 1952582, at *1 (E.D.N.Y. Mar. 28, 2024).
1 Throughout this Order, page numbers for docket filings refer to the page numbers
assigned in ECF filing headers.
2 Throughout this Order, the Court omits all internal quotation marks, footnotes, and
citations, and adopts all alterations, unless otherwise indicated.
DISCUSSION
I. Statutory Framework of the ADA
The ADA states that covered employers “shall [not] discriminate against a qualified
individual on the basis of disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job training, and other
terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). The Act defines a
“qualified individual” as “an individual who, with or without reasonable accommodation,
can perform the essential functions of the employment position that such individual holds
or desires.” 42 U.S.C. § 12111(8). Furthermore, the ADA defines the word “disability” to
mean either: “(A) a physical or mental impairment that substantially limits one or more
major life activities of such individual; (B) a record of such an impairment; or (C) being
regarded as having such an impairment.” 42 U.S.C. § 12102(1).
Under the ADA, “major life activities include, but are not limited to, caring for
oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing,
lifting, bending, speaking, breathing, learning, reading, concentrating, thinking,
communicating, and working.” 42 U.S.C. § 12102(2)(A). In addition, major life activities
also include “the operation of a major bodily function, including but not limited to,
functions of the immune system, normal cell growth, digestive, bowel, bladder,
neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”
42 U.S.C. § 12102(2)(B).
For much of the ADA’s history, “[t]he definition of ‘disability’ under the ADA was
. . . interpreted narrowly.” Hamilton v. Westchester Cnty., 3 F.4th 86, 92 (2d Cir. 2021).
“In 2008, however, Congress passed the ADA Amendments Act (the ‘ADAAA’), Pub. L. No.
110-325, 122 Stat. 3553, which broadened the definition of ‘disability’ under the ADA.” Id.;
see also Hernandez v. City of New York, No. 11-cv-06644, 2015 WL 321830, at *15 n.9
(S.D.N.Y. Jan. 23, 2015) (“By passing the [ADAAA], which went into effect on January 1,
2009, Congress significantly broadened the definition of ‘disability’ under the ADA.”). The
Second Circuit has noted that “the principal purpose of the ADAAA was to overrule the
Supreme Court’s arguably narrow interpretation of what constitutes an ADA-
qualifying disability . . . , and to make clear that the substantial-limitation requirement in
the definition of ‘disability’ is not an exacting one.” Hamilton, 3 F.4th at 92.
Congress provided “[r]ules of construction regarding the definition of disability” for
courts to follow when adjudicating ADA claims. See 42 U.S.C. § 12102(4). Among other
rules: (1) the “definition of disability . . . shall be construed in favor of broad coverage of
individuals . . . , to the maximum extent permitted by the terms of” the statute; (2) the
“term ‘substantially limits’ shall be interpreted consistently with the findings and purposes
of the [ADAAA];” (3) an “impairment that is episodic or in remission is a disability if it
would substantially limit a major life activity when active”; and (4) the “determination of
whether an impairment substantially limits a major life activity shall be made without
regard to the ameliorative effects of mitigating measures” such as medication, equipment,
reasonable accommodations, or learned behavioral modifications. 42 U.S.C. § 12102(4).
The Equal Employment Opportunity Commission (“EEOC”) has issued regulations
interpreting the ADA and the statutory changes made by the ADAAA. See Regulations to
Implement the Equal Employment Provisions of the ADA, 29 C.F.R. pt. 1630 (2026).
These regulations are not binding on the Court, but it is proper for the Court to consider
them as persuasive authority. See Loper Bright Enters. v. Raimondo, 603 U.S. 369, 394
(2024) (citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).
Although the amended ADA does not define the term “physical or mental
impairment,” the regulations specify that the term means: “(1) [a]ny physiological disorder
or condition . . . affecting one or more body systems, such as neurological, musculoskeletal,
special sense organs, respiratory . . . , digestive, genitourinary, . . . skin, and endocrine; or
(2) [a]ny mental or psychological disorder, such as an intellectual disability . . . [or]
emotional or mental illness.” 29 C.F.R. § 1630.2(h).
The regulations also provide guidance on determining whether an impairment
substantially limits an individual in a major life activity. 29 C.F.R. § 1630.2(j)(1). The
regulations state that “[a]n impairment is a disability within the meaning of [the ADA] if
it substantially limits the ability of an individual to perform a major life activity as
compared to most people in the general population.” 29 C.F.R. § 1630.2(j)(1)(ii).
Moreover, the regulations state that “[a]n impairment need not prevent, or significantly or
severely restrict, the individual from performing a major life activity in order to be
considered substantially limiting.” Id. The regulations note that “[t]he determination of
whether an impairment substantially limits a major life activity requires an individualized
assessment.” 29 C.F.R. § 1630.2(j)(1)(iv). They also explicitly state that in making this
assessment, “the term ‘substantially limits’ shall be interpreted and applied to require a
degree of functional limitation that is lower than the standard for ‘substantially limits’
applied prior to the ADAAA.” Id. And significantly, the regulations specify that “[t]he
comparison of an individual’s performance of a major life activity to the performance of
the same major life activity by most people in the general population usually will not
require scientific, medical, or statistical analysis. Nothing in this paragraph is intended,
however, to prohibit the presentation of scientific, medical, or statistical evidence to make
such a comparison where appropriate.” 29 C.F.R. § 1630.2(j)(1)(v). Finally, the regulations
convey that “[t]he primary object of attention in cases brought under the ADA should be
whether covered entities have complied with their obligations” and “the threshold issue of
whether an impairment ‘substantially limits’ a major life activity should not demand
extensive analysis.” 29 C.F.R. § 1630.2(j)(1)(iii).
II. Plaintiffs’ Claims under the ADA
At trial, plaintiffs held the burden of persuading the jury that they each had “a
physical or mental impairment that substantially limits one or more major life activities.”
42 U.S.C. § 12102(1). Defendant raises three principal arguments that plaintiffs did not
meet this burden. First, defendant argues that because plaintiffs did not offer any medical
evidence, they did not establish that they were disabled within the meaning of the ADA.
Mot. 3–7. Second, defendant argues that “[p]laintiffs have not identified any qualifying
impairments within the meaning of the ADA.” Mot. 8–9. Finally, defendant argues that,
even if plaintiff had identified such impairments, plaintiffs “did not identify any major life
activities impacted by their alleged impairments or prove that such major life activities
were substantially limited.” Mot. 9–11. The Court considers each argument.
A. Establishment of Disability
1. Whether Medical Evidence is Always Required to Establish
Disability
Defendant’s first argument is that plaintiffs did not offer medical evidence at trial
to establish that they had disabilities, and accordingly, they cannot have established that
they were disabled. See Mot. 4–5. Defendant asserts that “it is well-settled that [p]aintiffs
must offer medical evidence in support of their alleged disabilities” and cites a district
court case from 2003 that observed “[c]ourts in the Second Circuit have consistently held
that when a plaintiff fails to offer any medical evidence substantiating the specific
limitations to which he claims he is subject due to his condition, he cannot establish that
he is disabled within the meaning of the ADA.” Mot. 4 (quoting Baerga v. Hosp. for Special
Surgery, No. 97-cv-00230, 2003 WL 22251294, at *6 (S.D.N.Y. 2003)).
This Court disagrees that the purported requirement to offer medical evidence to
establish disability is “well-settled.” Mot. 4. In fact, the predominate view taken by federal
courts—particularly under the post-amendment ADA—is that medical evidence is not
always required to establish disability, and whether medical evidence is necessary depends
on whether the plaintiff’s disability is one comprehensible to a lay juror (such as a plaintiff
who can’t see) or one that a lay juror cannot reasonably comprehend without the assistance
of medical expertise (such as a plaintiff who suffers from a rare neurological disorder).
Neither the U.S. Supreme Court nor the Second Circuit Court of Appeals have given
a complete answer to this question. However, three federal courts of appeals have ruled on
the issue under the post-amendment ADA: the First Circuit, the Third Circuit, and the
Tenth Circuit. Each has unanimously held that medical evidence is not always necessary
to establish a disability under the ADA, and whether such evidence is required depends on
how understandable the disability is to a lay juror. See Tesone v. Empire Mktg. Strategies,
942 F.3d 979, 996–99 (10th Cir. 2019); Mancini v. City of Providence ex rel. Lombardi,
909 F.3d 32, 41 (1st Cir. 2018); Morgan v. Allison Crane & Rigging LLC, 114 F.4th 214,
225 (3d Cir. 2024).
As the Tenth Circuit explains, “no language in the ADA or implementing regulations
states that medical testimony is required, and there is certainly no general rule that
medical testimony is always necessary to establish disability.” Tesone, 942 F.3d at 996.
Instead, in the Tenth Circuit’s view, “whether medical evidence is necessary to support a
disability discrimination claim is a determination that must be made on a case-by-case
basis.” Id. When making this case-by-case judgment, “[c]ourts generally require expert
evidence when a condition would be unfamiliar to a lay jury and only an expert could
diagnose that condition. Id. (citing Mancini, 909 F.3d at 41); see also Katz v. City Metal
Co. Inc., 87 F.3d 26, 31 n.4 (“[W]here it is not obvious to a lay jury that the condition affects
one of the bodily systems listed in the regulations, expert testimony that it does may well
be necessary to avoid a judgment as a matter of law.”). On the other hand, “when a plaintiff
alleges an impairment that a lay jury can fathom without expert guidance, courts generally
do not require medical evidence to establish an ADA disability.” Tesone, 942 F.3d at 997.
Some examples illustrate how courts have engaged in this case-by-case approach.
The Tenth Circuit discusses a case where “the plaintiff claimed her employer refused to
accommodate her avascular necrosis—a rare condition that can cause bone tissue to die
from poor blood supply. But aside from her own declarations, the plaintiff offered no
medical evidence to confirm her diagnosis. Because she lacked expert medical evidence of
her condition, the district court granted summary judgment for the defendants.” Tesone,
942 F.3d at 997 (discussing Felkins v. City of Lakewood, 774 F.3d 647, 648, 651 (10th Cir.
2014)). On appeal, the Tenth Circuit “explained that a lay witness is competent to testify
concerning those physical injuries and conditions which are susceptible to observation by
an ordinary person[,] . . . [but] where injuries complained of are of such character as to
require skilled and professional persons to determine the cause and extent thereof, they
must be proved by the testimony of medical experts.” Tesone, 942 F.3d at 997. In the Tenth
Circuit’s view, “avascular necrosis was beyond the realm of common experience and thus
required the special skill and knowledge of an expert witness.” Id.
By contrast, the First Circuit discussed a case where a plaintiff provided lay evidence
that he had a “knee injury” but provided no medical evidence verifying or expounding on
this. Mancini, 909 F.3d at 41–42. The Court held “medical evidence was not required to
establish that [plaintiff’s] knee injury constituted an impairment” given that it was well
within the province of a lay jury to understand. Mancini, 909 F.3d at 42. “On a spectrum
that ranges from missing limbs to rare medical infirmities,” the court explained, “some
conditions plainly fall within the universe of impairments that a lay jury can fathom
without expert guidance. These conditions do not require medical evidence in an ADA
case.” Id.
At least one district court within the Second Circuit has adopted the same view held
by the First Circuit, Third Circuit, and Tenth Circuit. See Zeltman v. Infinigy Sols., LLC,
No. 20-cv-00571, 2024 WL 3653800, at *3 (N.D.N.Y. Aug. 5, 2024). In Zeltman, plaintiff’s
injuries “allegedly caused back, neck, and shoulder pain” and the court found that
“[p]laintiff is clearly capable of testifying about his injuries and how they have impacted
one or more major life activities, as required to prove his claim.” Id.
Although the Second Circuit has never fully addressed whether medical evidence is
always necessary to establish a disability under the ADA, the Second Circuit has explicitly
held that medical evidence is not always required to establish one of the elements of
disability. As noted previously, the ADA’s statutory text defines someone as disabled if they
have “a physical or mental impairment that substantially limits one or more major life
activities.” 42 U.S.C. § 12102(1)(A). This definition can be broken into two elements: (1)
whether the plaintiff has “a physical or mental impairment”; and (2) whether the
impairment “substantially limits” a major life activity.
The Second Circuit held in Rodriguez v. Village Green Realty, Inc. that medical
evidence is not always required to establish the second element of disability—that an
impairment substantially limits a major life activity. 788 F.3d 31, 43 (2d Cir. 2015). This
holding is instructive for the instant case for two reasons. First, Rodriguez makes clear
that medical evidence is not always needed for the “substantially limits” element of the
definition of disability. Second, Rodriguez can serve as a guide for how to assess whether
medical evidence is necessary to establish the first element of disability—whether the
plaintiff has an impairment—though the Second Circuit did not address the question
directly. As explained below, the logic that led the Second Circuit to hold that medical
evidence is not always necessary to establish the “substantially limits” element indicates
that medical evidence is not always necessary to establish the existence of a “physical or
mental impairment,” either.3
In Rodriguez, the Second Circuit “address[ed] the 1988 Amendments to the [Fair
Housing Act (“FHA”)], which extended the [FHA]’s protections against housing
discrimination to disabled individuals.” 788 F.3d at 40. The Second Circuit was “guided
by [its] decisions interpreting similar language that appeared in the [ADA] prior to the
ADA’s amendment in 2008.” Id.; see also id. at 40 n.10 (noting that the FHA’s definition
of “handicap” is virtually identical to the pre-2008 ADA’s definition of “disability,” so the
Second Circuit interprets the FHA in line with the pre-amendment ADA).
The defendants in Rodriguez “argue[d] that this Circuit requires the submission of
medical evidence to establish a disability under the FHA and that plaintiffs’ claims fail for
their failure to present admissible medical evidence.” Id. at 43. The Second Circuit rejected
that position. Id. The Second Circuit explained: “medical evidence as to the extent of an
3 The fact that the Rodriguez addresses the “substantially limits” element but does
not address the other elements was recognized by Mazzocchi v. Windsor Owners Corp.,
204 F. Supp. 3d 583, 610 (S.D.N.Y. 2016) (“Although the Second Circuit has held that
medical evidence is ‘not always necessary’ to establish that an impairment substantially
limits major life activities, it has not ruled on whether such evidence is necessary to
establish the existence of an impairment in the first instance.”).
individual’s impairment is not always required . . . . Neither the ADA or the FHA’s text, nor
the respective implementing regulations require medical evidence to establish . . . the
impairment of a major life activity.” Id. “Medical testimony may be helpful to show that an
impairment is substantially limiting,” the Second Circuit noted, “but it is not always
necessary.” Id.
Several aspects of Rogriguez lead the Court to believe that, similarly, medical
evidence is not always required to establish the other element of disability. For one, the
reasoning of Rogriguez was based on the fact that “neither the ADA or the FHA’s text, nor
the respective implementing regulations require medical evidence to establish . . . the
impairment of a major life activity.” Id. Likewise for the “physical or mental impairment”
element, neither the ADA’s text, nor its implementing regulations, state that medical
evidence is always required. Second, the Rodriguez court came to its conclusion while
interpreting the definition of disability under the narrower pre-amendment ADA. The
amendments to the ADA only made it easier for plaintiffs to establish disability.
Accordingly, given that medical evidence was not universally required for element (2)
under the limited version of the statute, it is likely that medical evidence is not universally
required for element (1)—a fairly comparable element—under the more expansive version
of the statute.
Defendant’s motion cites six cases to argue that medical evidence is required by
courts in the Second Circuit. See Mot. 4. The Court is not persuaded by any of these
citations. Defendant’s first citation is a pre-amendment case issued in 2003. See Mot. 4
(citing Baerga, 2003 WL 22251294, at *6). That case held that “[p]laintiff’s failure to
provide medical documentation of his alleged sleeping difficulties renders his ‘substantial
limitation’ showing insufficient as a matter of law.” Baerga, 2003 WL 22251294, at *6.
This holding has been abrogated by Rodriguez, which held that “[m]edical testimony may
be helpful to show that an impairment is substantially limiting, but it is not always
necessary.” 788 F.3d at 43. The second case defendant cites is Heilweil v. Mount Sinai
Hospital, an earlier Second Circuit case from 1994. Mot. 4 (citing Heilweil v. Mount Sinai
Hosp., 32 F.3d 718, 723 (2d Cir. 1994)). However, Rodriguez explicitly discussed Heilweil,
explaining that “[o]ur decision in Heilweil . . . is not to the contrary” and reading Heilweil
to reflect the basic fact that “conclusory declarations are insufficient to raise a question of
material fact.” 788 F.3d at 44. The third case defendant cites, Peterec-Tolino v. Com. Elec.
Contractors, Inc., reasons that “[p]laintiff’s failure to provide medical documentation of
his asthma also undermines a claim of substantial limitation.” No. 08-cv-00891, 2011 WL
5105474, at *6 (S.D.N.Y. Oct. 26, 2011). However, Peterec-Tolino cites exactly two cases
for this proposition—Baerga and Heilweil—the former of which is likely no longer good
law, and the latter of which the Second Circuit has characterized as consistent with
Rodriguez’s holding that medical testimony is not always necessary, depending on the
circumstances. The fourth case defendant cites, Davis v. N.Y. State Off. of Mental Health,
echoes the same holding as Baerga—that “[p]laintiff’s failure to provide medical
documentation . . . renders his ‘substantial limitation’ showing insufficient as a matter of
law”—which the Second Circuit has rejected. No. 05-cv-05599, 2009 WL 5178440, at *9
(E.D.N.Y. Dec. 31, 2009). Defendants’ fifth case, Levine v. Smithtown Cent. Sch. Dist., also
takes the outdated view that the “[t]he absence of . . . medical evidence precludes a trier of
fact from concluding that [plaintiff]’s impairment substantially limited a major life
activity.” 565 F. Supp. 2d 407, 425 (E.D.N.Y. 2008). Finally, defendant’s sixth case,
Douglas v. Victor Capital Group, decided in 1998, cites a litany of district court cases from
the 1990s rejecting ADA claims where no medical evidence was provided to establish
disability. 21 F. Supp. 2d 379, 392 (S.D.N.Y. 1998). But Douglas and the cases it cites are
substantially less persuasive than Tesone, Mancini, Morgan, especially given that each
case from the 1990s was interpreting the pre-amendment ADA.4
Taking stock of the persuasive authorities available and the arguments raised by the
parties, this Court holds that medical evidence is not necessarily required to establish that
a plaintiff has a disability. Whether or not medical evidence is needed depends on whether
the disability in question is one a lay jury can comprehend without expert medical
guidance.
2. Whether Medical Evidence Was Required in This Case
While medical evidence may not always be required, the Court must address
whether medical evidence was required in this case, either to establish that plaintiffs had
an impairment or to establish that the impairment substantially limited a major life
activity. The following sections discuss whether each plaintiff has satisfied each element of
the definition of “disability,” and as part of this analysis, the Court considers the necessity
of medical evidence for each element and each plaintiff. See infra II.B–II.C.
B. Whether Each Plaintiff Identified a Physical or Mental Impairment
The second argument defendant raises is that it was not reasonable for the jury to
find either plaintiff disabled because neither plaintiff “identified any qualifying
impairments within the meaning of the ADA.” Mot. 8. Specifically, defendant argues that
“[p]laintiffs did not identify any disorders or conditions from which they suffer by name”
or establish “that they have been diagnosed with a disorder or condition at all.” Mot. 8.
Defendant states that plaintiffs offered only “self-serving descriptions of symptoms” but
4 The additional cases cited in defendant’s Reply also do not persuade the Court
otherwise. See Reply 6–8.
“without identifying any underlying physiological, psychological, or mental disorder,
condition, or anatomical loss.” Mot. 8. Defendant further argues that “symptoms standing
alone and untethered to a diagnosed condition affecting a listed body system or a
recognized mental disorder do not constitute a ‘physical or mental impairment’ under the
ADA.” Mot. 8. These arguments echo arguments also raised in the medical evidence
portion of defendant’s motion. See, e.g., Mot. 5 (“Plaintiffs have neither identified the
alleged disabilities with which they have been diagnosed (if any), nor have they presented
any medical evidence from which a reasonable jury could conclude that they were disabled
under the ADA . . . .”).
1. Plaintiff Russo
Russo provided testimony describing the condition that he contended was a
disability. He described the condition as “a roller coaster of constipation and diarrhea that
comes out of nowhere with little to no warning and . . . considerable to excruciating
abdominal and rectal pain.” Tr. 122:06–09. Russo also described it as “[a] classic roller
coaster of constipation and diarrhea, causing me to stay in the bathroom for three-hours-
plus a day at any time of the day out of the blue.” Tr. 70:07–09. At one point, Russo was
asked: “did your bowel movements and diarrhea and your bouts of having to spend hours
in the bathroom, did that increase after 2020?”, Tr. 71:24–72:01, and Russo testified “Yes.”
Tr. 72:02. Russo was also asked “[h]ow frequently were you utilizing the bathroom?”, Tr.
72:03, to which Russo stated “To this day, it slowly and surely steadily increases. I might
have slept an hour last night because of what happened with my digestive issues last night
and this morning before coming here.” Tr. 72:04–08. Plaintiff Russo was also asked: “How
would you work at home if you were in the bathroom,” Tr. 72:09–10, to which he
responded that he works while sitting on the toilet: “I can bring a kitchen chair into my
bathroom, set it in front of my toilet, put the laptop on it, . . . plug it into the wall so it never
loses charge. . . . I bring my company cell phone in there. . . . I’m logged into the landline
phones in the office through . . . software. I bring pens and paper for writing notes or
anything like that.” Tr. 72:11–22.
Based on this evidence, the Court finds that Russo provided evidence that would
permit a reasonable juror to conclude that he had a physical impairment. The EEOC
regulations state that ‘physical impairment’ includes “[a]ny physiological disorder or
condition . . . affecting one or more body systems.” 29 C.F.R. § 1630.2(h). Russo testified
that he has “constipation and diarrhea that comes out of nowhere with little to no
warning,” accompanied by abdominal and rectal pain, that results in him spending
upwards of three hours using the bathroom. Tr. 122:06–09. The constipation and diarrhea
that Russo testified about fit the EEOC’s language of a “disorder or condition . . . affecting”
a “body system[].” 29 C.F.R. § 1630.2(h).
The Court does not agree with defendant’s argument that Russo’s claim must fail
because he did not “identify any disorders or conditions from which [he] suffer[s] by
name.” Mot. 8. While it is true that plaintiff did not introduce evidence establishing that
he had a diagnosis such as “Irritable Bowel Syndrome,” nothing in the statutory text
suggests that a plaintiff must provide evidence that he or she has a specific named
diagnosis with a specific medical term. For example, if an individual testifies that he cannot
see, a reasonable jury is perfectly able to conclude that the individual is disabled. This is
the case even if the condition is never given a name, whether it be a simple description of
the principal symptom such as “blindness” or a specialized medical term reflecting a
medical diagnosis, such as “leber congenital amaurosis” or “Norrie disease” (rare disorders
that can cause the complete inability to see).5
The Court also disagrees that Russo’s claim must fail because he did not provide
medical evidence. See Mot. 3–7. This is not an instance where a plaintiff provided evidence
that he had “avascular necrosis” or another condition that would be opaque to a layperson.
See Tesone, 942 F.3d at 997. Rather, any reasonable lay juror, drawing on their life
experience, would be able to comprehend what it means to have “constipation and
diarrhea that comes out of nowhere with little to no warning and . . . considerable to
excruciating abdominal and rectal pain” that leads to “stay[ing] in the bathroom for three-
hours-plus.” Tr. 70:07–09; 122:06–09. This testimony falls within the “realm of common
experience.” Tesone, 942 F.3d at 997.
2. Plaintiff Messiha
Messiha testified about two principal ailments, one mental and one physical. For
one, Messiha testified that he “had numbness in my feet all the time.” Tr. 230:16. See also
Tr. 673 (“I was seeking to find out what’s going on with me and the numbness in my feet
that I had.”). Second, Messiha testified that he was “suffering from panic attacks [and]
insomnia.” Tr. 229:14–15. Messiha was asked “can you describe, what do you mean by a
panic attack? Describe the symptoms. You’re not a doctor. Just tell us, what did it mean
5 Defendant argues that it is improper for a jury to find that a plaintiff disabled based
on “a litany of possibly unrelated symptoms” without medical evidence showing that the
symptoms in fact constitute a specific disability diagnosis. Mot. 5–6, 8. The Court does not
agree. If a plaintiff testifies about multiple symptoms that are comprehensible to a lay
person, it is not necessary for the jury to determine whether the symptoms stem from one
cause or multiple. For example, if a person testifies that they cannot hear any sound, and
also have daily seizures, the jury need not determine whether the two conditions arise from
the same illness or from two unrelated illnesses in order to find that the plaintiff suffers
from one or more impairments that substantially limit a major life activity.
for you?” Tr. 230:02–04. Messiha stated: “I could be sleeping, and I jump out of my bed,
and I can’t breathe and I have to run outside. Whatever I had on, I had to run outside to
be able to breathe again.” Tr. 230:05–07. Because of the panic attacks and the numbness
in his feet, Messiha testified, “driving was very hard, focusing to drive was hard, walking
was hard” and that with respect to driving, “I couldn’t feel the pedal, the pedal of the
brakes, the gas, nothing. The numbness was always there in my feet.” Tr. 230:15–25.
Based on this evidence, the Court likewise finds that Messiha provided evidence
that would permit a reasonable juror to conclude that he had a physical or mental
impairment, or both. The EEOC regulations state that ‘physical impairment’ includes
“[a]ny physiological disorder or condition . . . affecting one or more body systems” such as
the “neurological” system or the “musculoskeletal” system or the “skin.” 29 C.F.R.
§ 1630.2(h). Messiha testified that he had “numbness in my feet all the time” and that
“[t]he numbness was always there in my feet.” Tr. 230:16–17, 24–25. According to
Messiha’s testimony, what it felt like was the absence of the sensation of touch: that when
driving, for instance, he “couldn’t feel the pedal, the pedal of the brakes, the gas, nothing.”
Tr. 230:23–24. The “numbness” fits the EEOC’s language of a “disorder or condition
affecting” Messiha’s feet, which are certainly part of a body system. 29 C.F.R. § 1630.2(h).
Meanwhile, the EEOC regulations state that “mental impairment” includes “emotional or
mental illness,” id., and Messiha’s panic attacks appropriately fit.
The Court also finds that reasonable lay jurors were capable of comprehending
Messiha’s impairment or impairments without the presence of medical evidence.
Numbness is a sensation that virtually every person is familiar with from their ordinary
life experience. A lay juror can understand what it means that an individual had
“numbness in my feet all the time” such that he could not feel the gas and break pedals of
a car when driving. Similarly, Messiha’s testimony of having panic attacks, and specifically
that: “I could be sleeping, and I jump out of my bed, and I can’t breathe and I have to run
outside . . . to be able to breathe again” describes Messiha’s experience in comprehensible
terms that reasonable lay jurors can understand.
3. Additional Arguments Concerning Trial Evidence
Defendant raises two additional arguments that the Court will address. First,
defendant asserts that “[p]laintiffs premised their claims entirely on their own self-serving
testimony regarding alleged symptoms they experienced . . . without introducing any
corroborating medical records, clinical findings, or professional diagnoses.” Mot. 5.
Defendant’s description of the testimony as “self-serving” does not move the needle. The
fact that testimony is self-serving is simply a factor that the jury may consider in
determining how much weight to afford the testimony. Healey v. Chelsea Res., Ltd., 947
F.2d 611, 620 (2d Cir. 1991) (“The fact that . . . testimony may be self-serving goes to its
weight rather than its admissibility.”) Moreover, there is no blanket rule that self-serving
testimony must be corroborated by non-self-serving evidence. See United States v. Brack,
No. 21-3077-cr, 2023 WL 3513572, at *2 n.2 (2d Cir. May 18, 2023) (“There is no
requirement that a witness’s sworn testimony be corroborated before it can be credited.
Any lack of a corroboration for a witness’s testimony—unless it is incredible on its face—
goes merely to the weight of the evidence; the weight it is to be accorded is a matter for
argument to the factfinder . . . .” (quoting United States v. Norman, 776 F.3d 67, 79 (2d
Cir. 2015))).
Second, defendant suggests that plaintiffs’ evidence is conclusory. The Court does
not agree. Defendant cites language from a recent case, Philbert v. New York City
Department of Education, that “simply providing conclusory statements is not enough to
support a finding that plaintiff is disabled within the meaning of the ADA.” Mot. 5 (quoting
Philbert v. N.Y. City Dep’t of Educ., No. 21-cv-03119, 2024 WL 756362 (S.D.N.Y. Feb. 23,
2024)). In Philbert, the plaintiff “submitted a declaration stating that her migraines cause
‘visual and speech impairments, difficulty hearing, difficulty sleeping, concentration
issues,’ and more, and that they ‘affect her in all aspects of her daily life and prevent her
from living a full, fruitful life free from pain.’ Plaintiff also state[d] that she ‘constantly
needs to be inside away from bright lights’ and that she has ‘trouble reading.’” Philbert,
2024 WL 756362, at *6. The Philbert court found these statements to be “conclusory” and
“devoid of detail” and held that “simply providing conclusory statements that [p]laintiff is
affected by her migraines is not enough to support a finding that she is disabled within the
meaning of the ADA.” Id.
Philbert does not change the Court’s conclusion in the instant case. For one, the
Second Circuit reviewed the Philbert decision and held that the district court erred by
dismissing plaintiff’s claim on the basis of insufficient detail because plaintiff was not, in
fact, required to prove her disability at the summary judgment stage. See Philbert v. New
York City Dep’t of Educ., No. 24-804, 2025 WL 3251187, at *1 (2d Cir. Nov. 21, 2025).
More importantly, the Court finds that the evidence presented at trial by Russo and
Messiha was not conclusory. Russo testified that he experienced “a roller coaster of
constipation and diarrhea that comes out of nowhere with little to no warning and . . .
considerable to excruciating abdominal and rectal pain,” Tr. 122:06–09, which caused him
“to stay in the bathroom for three-hours-plus” per day at unpredictable times and work
with his laptop set up on a kitchen chair placed directly in front of the toilet. Tr. 70:07–09;
72:11–22. Messiha testified that he had “numbness in my feet all the time” and illustrated
this with the specific example that, when he would drive, he “couldn’t feel the pedal, the
pedal of the brakes, the gas, nothing. The numbness was always there in my feet.” Tr.
230:16–17, 23–25. Messiha also testified that, when he would experience a panic attack,
he “could be sleeping, and I jump out of my bed, and I can’t breathe and I have to run
outside . . . to be able to breathe again.” Tr. 230:05–07. The Court finds that these
allegations are not so “devoid of detail,” Philbert, 2024 WL 756362, at *6, as to render
Russo and Messiha’s evidence purely conclusory.
C. Whether Each Plaintiffs’ Impairments Substantially Limited Major
Life Activities
Defendant next argues that even assuming that plaintiffs identified cognizable
impairments, “[p]laintiffs did not identify any major life activities impacted by their
alleged impairments or prove that such major life activities were substantially limited.”
Mot. 9. The Court disagrees. When Congress enacted the ADAAA, as the Second Circuit
has noted, “the principal purpose [was] . . . to make clear that the substantial-limitation
requirement in the definition of ‘disability’ is not an exacting one.” Hamilton, 3 F.4th at
92. The statutory text specifically states that the “definition of disability . . . shall be
construed in favor of broad coverage of individuals . . . , to the maximum extent permitted
by the terms of” the statute. 42 U.S.C. § 12102(4). Moreover, the regulations note that “the
threshold issue of whether an impairment ‘substantially limits’ a major life activity should
not demand extensive analysis.” 29 C.F.R. § 1630.2(j)(1)(iii).
Plaintiff Russo provided evidence that his constipation, diarrhea, and abdominal
and rectal pain constitute a “physical or mental impairment.” See supra Section II.B.
Moreover, the text of the ADA states that major life activities include “the operation of a
major bodily function, including but not limited to . . . bowel . . . functions.” 42 U.S.C.
§ 12102(2)(B). It was reasonable for the jury to conclude that Russo’s “constipation and
diarrhea that comes out of nowhere with little to no warning” and that causes him “to stay
in the bathroom for three-hours-plus a day at any time of the day out of the blue”
constitutes a substantial limitation on the operation of his bowel functions. Furthermore,
though Russo testified that his constipation and diarrhea are intermittent, the ADA states
that an “impairment that is episodic . . . is a disability if it would substantially limit a major
life activity when active.” 42 U.S.C. § 12102(4). Thus, Russo may still be considered
disabled even if his constipation and diarrhea only substantially impair his bowel functions
when they are active. Accordingly, it was reasonable for the jury to conclude that Russo’s
impairment substantially limits a major life activity.
Plaintiff Messiha provided evidence that his panic attacks have interfered with his
sleep and that he has suffered from insomnia. Tr. 229–30. Messiha also testified that
because of his panic attacks and the numbness in his feet, “driving was very hard, focusing
to drive was hard, [and] walking was hard.” Tr. 230:15–16. Many courts have held that
driving is not a “major life activity” under the ADA. See Dechberry v. N.Y.C. Fire Dep’t,
124 F. Supp. 3d 131, 152 (E.D.N.Y. 2015) (collecting cases). But the ADA specifies that
“major life activities include . . . sleeping [and] walking.” 42 U.S.C. § 12102(2)(A); see also
id. (“concentrating”). It was reasonable for the jury to conclude, based on the evidence
presented at trial, that Messiha’s impairments posed a substantial limitation on the major
life activities of sleeping and walking.
Defendant argues that plaintiff must provide evidence of an impairment’s
frequency, severity, and duration. See Mot. 9–11. Even assuming that that is true, plaintiffs
provided such evidence. Russo explained that his “constipation and diarrhea . . . comes out
of nowhere with little to no warning,” is accompanied by “considerable to excruciating
abdominal and rectal pain,” and causes him “to stay in the bathroom for three-hours-plus
a day.” Tr. 70:08–09, 122:06–09; see also Tr. 72:03–08. Messiha testified that the
numbness was “always” present in his feet and was of such severity that he could not feel
the pedal of a car. Tr. 230:22–25. Moreover, Messiha illustrated the intensity of the panic
attacks he suffered. See, e.g., Tr. 230:05–07 (“I could be sleeping, and I jump out of my
bed, and I can’t breathe and I have to run outside . . . to be able to breathe again.”). While
Messiha did not give a numerical estimate of how often these panic attacks occurred, he
confirmed that the panic attacks were “having an impact on [his] day-to-day life,”
Tr. 229:17–21, which a jury could reasonably interpret to bear on the frequency of the
panic attacks. In sum, this testimony equipped the jury with sufficient facts to understand
the characteristics of the impairments and the degree of limitation caused.
Lastly, the Court finds that medical evidence was not needed to establish the
“substantial limitation” element for either Russo or Messiha. It is not unreasonable for a
lay juror hearing the instant case without the benefit of medical evidence to conclude that
Russo’s bouts of constipation and diarrhea, that come out of nowhere and resulted in him
using the restroom for over three hours, are a substantial limitation on the functioning of
Russo’s bowels. It is likewise not unreasonable for a lay juror hearing the instant case
without the benefit of medical evidence to conclude that Messiha’s panic attacks and
numbness of his feet are substantial limitations on Messiha’s sleeping and walking. A
reasonable lay juror—drawing on their life experience, the testimony offered, and natural
inferences they derive—can understand that constipation and diarrhea of the sort Russo
described are substantial limits on the normal functioning of a person’s bowels. This is
within the “realm of common experience.” Tesone, 942 F.3d at 997. Similarly, a reasonable
lay juror drawing on the same things can understand that the panic attacks and foot
numbness that Messiha described are substantial limits on Messiha’s sleeping and
walking. This, too, is within the “realm of common experience.” Id.
Defendant’s reliance on Zuppardo v. Suffolk County Vanderbilt Museum does not
change the Court’s conclusion. See Mot. 5 (citing Zuppardo v. Suffolk Cnty. Vanderbilt
Museum, 19 F. Supp. 2d 52, 56 (E.D.N.Y. 1998), aff’d, 173 F.3d 848 (2d Cir. 1999)). In
Zuppardo, plaintiff argued he was disabled “because his ability to walk has been impaired
by his leg and back conditions,” but the court found that he had “failed to show that his
walking was substantially limited by his leg and back conditions,” because, among other
reasons, plaintiff could still “walk some distances” and plaintiff provided no evidence that
his impairments would have a “significant impact” on his ability to work. Zuppardo, 19 F.
Supp. 2d at 55–56. The Zuppardo court reached this conclusion by analyzing three factors
that were, at the time, codified in the EEOC’s regulations. See 29 C.F.R. § 1630.2(j)(2)
(1998). Those regulations called for considering: “(i) the nature and severity of the
impairment; (ii) [t]he duration or expected duration of the impairment; and (iii) [t]he
permanent or long term impact . . . [of] the impairment.” Id. Following enactment of the
ADAAA, however, the EEOC overhauled this regulation. The three factors relied upon by
Zuppardo were abolished. Compare 29 C.F.R. § 1630.2 (1998), with 29 C.F.R. § 1630.2
(2026). Moreover, the regulations now specify that (1) “[a]n impairment need not prevent,
or significantly or severely restrict, the individual from performing a major life activity in
order to be considered substantially limiting” and (2) “the term ‘substantially limits’ shall
be interpreted and applied to require a degree of functional limitation that is lower than
the standard for ‘substantially limits’ applied prior to the ADAAA.” 29 C.F.R.
§ 1630.2(j)(ii), (iv) (emphasis added). Accordingly, the Court finds Zuppardo of little
relevance on this issue for evaluating claims brought under the post-amended ADA.6
III. Plaintiffs’ Claims under the NYSHRL and NYCHRL
Defendant’s Rule 50 motion also seeks judgment as a matter of law with respect to
plaintiffs’ NYSHRL and NYCHRL claims on the basis that plaintiffs did not offer medical
evidence. Mot. 6. Defendant argues that “New York courts have dismissed disability
discrimination claims under the even more expansive disability definitions afforded under
the NYSHRL and the NYCHRL where plaintiffs failed to offer sufficient medical evidence
of their alleged disabilities.” Mot. 6. However, given that the Court has found that
plaintiffs’ claims survive under the ADA, there is little doubt they likewise survive under
the more lenient standards of the NYSHRL and NYCHRL. See Guerrero v. Constellation
Health Servs., No. 22-cv-07736, 2026 WL 1078128, at *6 (E.D.N.Y. Apr. 21, 2026)
(“Contrary to [d]efendants’ position regarding [p]laintiff’s lack of medical evidence, the
text of the NYSHRL does not require [p]laintiff to substantiate her disability with medical
evidence.”); see also N.Y. Exec. Law § 292(21) (defining disability as “a physical, mental or
medical impairment . . . which prevents the exercise of a normal bodily function or is
demonstrable by medically accepted clinical or laboratory diagnostic techniques”
(emphasis added)); Jones v. N.Y.C. Transit Auth., 838 F. App’x 642, 644 n.1 (2d Cir.
2021) (summary order) (“We have indicated that the definition of a disability under the
NYSHRL and NYCHRL is broader than the ADA definition.”).
6 Plaintiffs also argue that, regardless of whether they had impairments that
substantially limited a major life activity, plaintiffs qualify as disabled under the ADA
because defendant regarded them as disabled. See Opp’n 15. The Court disagrees. Plaintiffs
chose not to litigate their case under this theory. For example, the jury instructions make
no mention of regarded-as liability under the ADA. See Jury Instructions, ECF No. 97.
IV. Failure to Engage in an Interactive Process and/or Cooperative Dialogue
Defendant asserts that “[p]laintiffs did not offer any evidence from which a
reasonable juror could conclude that [defendant] failed to engage in the interactive process
under the ADA and the NYSHRL, or the cooperative dialogue under the NYCHRL.”
Mot. 11. Defendant appears to be arguing that plaintiffs were required to show that
defendant failed to engage in an interactive process and/or cooperative dialogue in order
to establish its liability for failure to accommodate, and plaintiffs did not do so. This
argument is without merit for two reasons. First, showing failure to engage in an
interactive process/cooperative dialogue is not necessarily required to establish liability
for failure to accommodate. Second, even if such a showing were required, a reasonable
juror could conclude that it was made here.
“[T]he ADA contemplates that employers will engage in an interactive process with
their employees and in that way work together to assess whether an employee’s disability
can be reasonably accommodated.” Brady v. Wal–Mart Stores, Inc., 531 F.3d 127, 135 (2d
Cir. 2008). The term “interactive process” is not found in the text of the ADA, but rather
stems from the regulations interpreting the term “reasonable accommodation.” See 29
C.F.R. § 1630.2(o)(3). Those regulations state “[t]o determine the appropriate reasonable
accommodation it may be necessary for the covered entity to initiate an informal,
interactive process with the individual with a disability . . . . This process should identify
the precise limitations resulting from the disability and potential reasonable
accommodations that could overcome those limitations.” Id. Failure to engage in an
interactive process is not, itself, an independent violation of the ADA. Sheng v. M&TBank
Corp., 848 F.3d 78, 87 (2d Cir. 2017). However, “an employer’s failure to engage in an
interactive process” can be “evidence of discrimination under the ADA.” Id. at 86
It is not necessary for the Court to reach the question of whether jurors heard
sufficient evidence to conclude that defendant failed to engage in an interactive process.
The question for the jury, in this aspect of the trial, was whether or not defendant made
“reasonable accommodations” for the defendants. Indeed, the jury verdict sheet asked the
jury to answer whether defendant failed to provide each plaintiff with a reasonable
accommodation, not whether defendant failed to engage in an interactive process. See
Verdict Sheet 1, 5. Whether defendant engaged in an interactive process may be relevant
to the jury’s determination of whether defendant failed to provide reasonable
accommodations, but the two questions are not synonymous.
Moreover, it was reasonable for the jury to conclude that plaintiffs were not
provided with reasonable accommodations. The jury heard evidence that plaintiffs were
ultimately offered only a single accommodation—that plaintiffs could work from the
company’s Greenpoint location rather than the company’s default location at 2 Hanson
Place. See, e.g., Tr. 79:16–17, 129:21–130:07, 284:04–06, 285:03–06; Pls’ Trial Exs. 3, 7,
12. Furthermore, the jury received evidence that if plaintiffs did not return to work either
with no accommodation or with the Greenpoint accommodation, they would face
suspension followed by termination. See, e.g., Pls’ Trial Exs. 3, 7, 12. The jury also heard
evidence that, for both plaintiffs, the Greenpoint accommodation would not address the
issues posed by their disabilities, see, e.g., Tr. 77:11–23, 79:14–15, 239:24–240:02,
whereas at least one different accommodation—working from home—would, see, e.g.,
Tr. 77:22–23, 226:18–227:06; Pls’ Trial Ex. 4. The jury also concluded, in a finding not
challenged by defendant in the instant motion, that the work-from-home accommodation
would not impose an undue hardship on defendant. Verdict Sheet 2, 5. Together, this
evidence was sufficient for a reasonable juror to conclude that defendant did not make
reasonable accommodations as required by the ADA, regardless of whether or not
defendant engaged in an interactive process.
Even if it were necessary to address the question, defendant has not raised a
persuasive argument that the jury lacked sufficient evidence to find that defendant failed
to engage in an interactive process. At trial, the jury heard extensive testimony and
received documentary evidence regarding what transpired between plaintiffs and
defendant with respect to plaintiffs’ disability accommodation requests. Defendant offers
two principal arguments for why any reasonable juror had to conclude that defendant
engaged in an interactive process based on this evidence. See Mot. 13. Neither argument
moves the needle.
First, defendant notes that it reviewed and considered each of plaintiffs’ work-from-
home requests, spoke with plaintiffs about their requests, listened to their concerns,
collected evidence regarding their disabilities, offered the Greenpoint location as an
alternative accommodation, and offered reasons in writing for the denial of plaintiffs’
work-from-home requests. Mot. 13. Many of these activities are consistent with engaging
in an interactive process. See Sheng, 848 F.3d at 87 n.3 (“An employer engages in an
interactive process by, for example, meeting with the employee who requests an
accommodation, requesting information about the condition . . . , asking the employee
what he or she specifically wants, showing some sign of having considered the employee’s
request, and offering and discussing available alternatives when the request is too
burdensome.”). However, an important component of the interactive process is the
“identify[ing]” of “potential reasonable accommodations.” 29 C.F.R. § 1630.2(o)(3). Even
if an employer receives an employee’s request and internally considers it, a reasonable
juror could still find that the employer did not engage in an interactive process if the
employer refuses to budge from offering a single potential accommodation on a take-it-or-
leave-it basis, especially after the employee has explained that the potential
accommodation will not in fact accommodate the employee’s disability. In the present
case, after being informed by plaintiffs that Greenpoint accommodation would not address
the limitations imposed by each plaintiff’s disability, defendant did not proceed to identify
any other potential reasonable accommodation or even engage in dialogue with plaintiffs
about the possibility of non-Greenpoint options.
Second, defendant raises futility, alleging that “each Plaintiff admitted at trial that
only one possible accommodation was acceptable – to be allowed to work from home –
thus failing to engage in an interactive [process] . . . and rendering futile any further efforts
by [d]efendant to find an alternate accommodation.” Mot. 13. With respect to Messiha,
defendant is presumably referring to the following testimony during cross examination:
Q: And working from home was the only accommodation that
you wanted, right? There was no other accommodation you
would have accepted at that point, right?
A: That’s the only thing they offered me, was Greenpoint,
which was further out from my house . . .
Q: You didn’t want to work at Greenpoint, right?
A: I couldn't. It’s further out from my house.
Q: . . . And you didn't want to work at 2 Hanson Place, right?
A: No
Q: All right. So the only accommodation you wanted, again,
was to work from home, right?
A: Yeah, until I get better, yes.
Tr. 280:17–281:10. However, Messiha made clear that Greenpoint was the only
accommodation ever discussed or offered by defendant. See Tr. 285:03–06 (“Q: Did
anyone try to suggest anything other than going to Greenpoint? A: No.”). Weighing the
totality of the evidence, it was not unreasonable for the jury to conclude that defendant’s
failure to discuss or propose an accommodation aside from Greenpoint demonstrated its
failure to engage in the interactive process. Moreover, even though Messiha answered
affirmatively to the question “So the only accommodation you wanted, again, was to work
from home, right?”, it was not unreasonable for the jury to conclude that this was
Messiha’s view in light of the options that plausibly seemed on the table: working from
Hanson Place (the default); working from home (what Messiha had been doing for around
two years); or working from Greenpoint (the sole alternative defendant offered).
With respect to Russo, defendant is likely referring to the following exchange:
Q: . . . Your first request for an accommodation in 2022, to
which the company responded with the Greenpoint backup
dispatch center, was only related to your concerns about
contracting COVID, right?
A: That was, yeah.
Q: You did not raise your gastrointestinal issues until after that
accommodation was offered to you, right?
A: Yes.
Q: From then on, the only accommodation that was acceptable
to you was to be able to work from your home, right?
A: Yes.
Q: And that’s because you wanted access to a private
bathroom, right?
A: I don’t want access to it; I need access to it.
Tr. 161:01–15. Presumably, defendant maintains that because “the only accommodation
that was acceptable to [Russo] was to be able to work from [his] home,” Tr. 161:09–12,
that made “futile any further efforts by [d]efendant to find an alternate accommodation,”
Mot. 13. However, as with Messiha, a reasonable jury could have interpreted Russo’s
testimony to be that working from home was the only accommodation that was acceptable
to him of the options that seemed plausibly on the table (Hanson Place, home, or
Greenpoint) because home was the only option with a private bathroom. It would have
been reasonable for the jury to interpret Russo’s statement as reflecting what was
acceptable to him among these particular options, rather than among all conceivable and
hypothetical possibilities. Bolstering this conclusion is that Russo was asked: “so when you
were seeking accommodations in 2022 to continue to work from home after the
Greenpoint dispatch center was offered to you as a backup, you communicated to people
that you needed a personal and exclusive bathroom for only your use; is that right?” and
Russo responded “I didn’t say personal and exclusive. I said -- my wording was private
bathroom.” Tr. 165:01–07. Given that Russo “communicated to people that [he] needed
. . . [a] private bathroom,” it was not unreasonable for the jury to believe that Russo would
have accepted an alternative that included a private bathroom had it been offered, and that
it was defendant, not Russo, who failed to engage in the interactive process.
More broadly, even though the jury heard evidence that each party strongly
preferred his or its own proposed solution, it was not unreasonable for the jury to attribute
the breakdown of the interactive process to the defendant, rather than plaintiffs, because
it was defendant alone who made the ultimatum that plaintiffs needed to either: (1) accept
the Greenpoint accommodation (or no accommodation) by a specific date and time; or (2)
face termination. See Pls’ Trial Exs. 3, 7, 12. Moreover, it was not unreasonable for the jury
to determine that plaintiffs did not themselves withdraw from discussions over a solution.
In sum, assuming it were necessary to reach the question, a reasonable juror could
conclude that defendant failed to engage in an interactive process.
The Court reaches the same conclusion with respect to defendant’s arguments
concerning the NYSHRL and NYCHRL. The NYSHRL, like the ADA, contemplates that
employers and employees will engage in an interactive process. See Noel v. BNY-Mellon
Corp., 514 F. App’x 9, 10 (2d Cir. 2013) (summary order). Unlike the ADA, the failure to
engage in an interactive process is on its own an actionable violation under the NYSHRL.
See Morse v. JetBlue Airways Corp., 941 F. Supp. 2d 274, 302 n.16 (E.D.N.Y. 2013). The
NYCHRL, meanwhile, requires a “cooperative dialogue.” N.Y.C. Admin. Code
§ 8-107(28)(a). This is “even more demanding than the interactive process standard.”
Betances v. MetroPlus Health Plan, Inc., No. 20-cv-02967, 2021 WL 2853363, at *8
(S.D.N.Y. July 7, 2021) (citing Hosking v. Mem’l Sloan-Kettering Cancer Ctr., 126
N.Y.S.3d 98, 102–03 (App. Div. 2020)). In the present case, the jury was not asked to
consider an independent claim for failure to engage in an interactive process or
cooperative dialogue under the NYSHRL and NYCHRL—rather, the jury was asked
whether defendant failed to provide a reasonable accommodation under these statutes.
See Verdict Sheet 1, 5. For the same reasons as with the ADA, defendant has not offered a
meritorious argument regarding plaintiffs’ reasonable accommodation claims under the
NYSHRL and NYCHRL.
V. New Arguments
Defendant’s reply brief argues that “there was insufficient evidence . . . to have
presented the question of punitive damages to the jury.” Reply 14–15. This argument is
new and was not mentioned in defendant’s Rule 50(a) motion. Accordingly, this argument
is waived. See Am. Tech. Ceramics Corp. v. Presidio Components, Inc., 490 F. Supp. 3d
593, 615–16 (E.D.N.Y. 2020) (“Because a motion pursuant to Rule 50(b) is in reality a
renewal of a motion pursuant to Rule 50(a), the grounds on which a party may rely in a
Rule 50(b) motion are limited to those grounds that were specifically raised in the prior
Rule 50(a) motion.”); see also Tolbert v. Queens Coll., 242 F.3d 58, 70 (2d Cir.
2001); Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 286–87 (2d Cir.
1998).
The reply brief also argues that plaintiffs “failed to present any evidence that
establishes any nexus between their alleged disabilities, the duties and responsibilities of
their job, and the accommodations they requested.” Reply 14. This argument was likewise
not mentioned in defendant’s Rule 50(a) motion. Although the Reply cites two pages of
the original Motion, Reply 14 (citing Mot. 9–10), neither these pages nor any other portion
of the Motion mentions this “nexus” argument. This argument is thus also waived.
CONCLUSION
For the foregoing reasons, defendant’s Motion for Judgment as a Matter of Law
under Rule 50 is DENIED. On or before June 29, 2026, defendant shall file a response to
plaintiffs’ Motion for Entry of Judgment, ECF No. 102. See Docket Entry dated Oct. 23,
2025.
SO ORDERED.
/s/ Natasha C. Merle
NATASHA C. MERLE
United States District Judge
Dated: May 28, 2026
Brooklyn, New York