Full opinion text
MEMORANDUM OF DECISION AND ORDER SPATT, District Judge. The Plaintiff in this case, John Welch, alleged that his employer, the Defendant United Parcel Service, Inc. (“UPS”), discriminated against him on the basis of his disability, and also retaliated against him for complaining about that discrimination. Based on these allegations, the Plaintiff asserted (1) federal claims under the Americans with Disabilities Act (“ADA”), (2) state claims under the New York State Human Rights Law (“NYSHRL”), and (3) city law claims under the New York City Human Rights Law (“NYCHRL”). A trial was held and a mixed verdict was rendered. Presently before the Court are several post-trial motions filed by both parties. I. BACKGROUND A. Factual Background This case was initiated by the Plaintiff John Welch in 2009 against his employer, the Defendant UPS. Welch was hired by UPS in March 1987 as a part-time package loader at its facility in Brooklyn, New York. Throughout the Plaintiffs long tenure with UPS, only a portion of which is relevant for the legal disputes in this case, the Plaintiff went through a number of transfers to various positions in UPS. These positions included: (1) in March 2005, the Plaintiff was a preload supervisor for UPS’s Foster Avenue Facility; (2) in mid-2005, the Plaintiff worked as a P.M. supervisor at the Greenpoint Center; (3) in or about October 2005, the Plaintiff was transferred to Comprehensive Health and Safety Program (“CHSP”) Supervisor for its Long Island City facility; (4) in or about October 2006, the Plaintiff was transferred to a position on the Nassau preload; (5) in or about June 2007, the Plaintiff was returned to a position as CHSP Supervisor; (6) in or about June 2008, the Plaintiff conducted driver safety training out of UPS’s Nassau facility and was also transferred back to the Nassau preload; and (7) on or about September 6, 2010, the Plaintiff accepted and commenced the preload assist supervisor (“PAS”) position, which is the position he held at the time of the trial. The Plaintiff suffers from various medical conditions, including: (1) hypertrophic cardiomyopathy (“HCM”); (2) bipolar disorder; (3) hiatal hernia; (4) restless leg syndrome (“RLS”); (5) sleep apnea; and (6) depression with post-traumatic stress disorder (“PTSD”). Because of these alleged disabilities, namely the HCM and sleep apnea, the Plaintiff made various requests for accommodation under UPS’s American Disabilities Act (“ADA”) accommodation policy. His requests for accommodation were as follows: (1) on or around August 23, 2005, the Plaintiff requested an accommodation of no lifting over 30 pounds, light duty, and avoiding extremes of exertion, which UPS claims was satisfied when he was moved to the position of CHSP supervisor in or about October 2005; (2) in 2007, the Plaintiff again requested an accommodation of no lifting over 40 pounds; working shifts of 8 hours or less; and no overnight shifts due to his HCM and sleep apnea, which UPS claims was satisfied when they again returned him to the position of CHSP supervisor in or around June 2007; and (3) in 2010, the Plaintiff requested a third accommodation of no lifting over 20 pounds; no operation of heavy machinery; and no driving of heavy trucks, which UPS claims was satisfied when they put him in the Preload Assist Supervisor (“PAS”) position, which he remains in today. According to the Plaintiff, the numerous transfers, requests for accommodation, and discussions between him and his employer, led to various instances of retaliation and failures to accommodate his disabilities. B. Procedural History On May 16, 2011, the Defendant moved for summary judgment dismissing all of the Plaintiffs claims, on the grounds that (1) portions of the Plaintiffs claims were barred by the relevant statute of limitations, (2) the Plaintiff did not have a disability (or record of disability) under the ADA, (3) the Plaintiff was not otherwise qualified to perform the essential functions of his job, and (4) the Defendant accommodated the Plaintiffs disability at all times. The Court found there to be genuine issues of material fact in all aspects of the case. Therefore, on September 2, 2011, the Court denied the Defendant’s motion for summary judgment. The trial commenced on September 7, 2011. At the trial, which lasted more than one week, the Plaintiff presented various witnesses in support of his claims. The Plaintiff testified himself; as well as Dr. Mark Sherrid, John Guest, Rashmee Sin-ha, Dr. Marcia Knight, and Michael Ridolfi. After the conclusion of the Plaintiffs case, the Defendant moved for judgment as a matter of law pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ.P.”) 50(a), with respect to the Plaintiffs claims of failure to accommodate and retaliation. {See 9/13/11 Tr., 658:9-677:6.) The Court reserved decision on this motion. The Defendant also moved to dismiss the Plaintiffs claim for punitive damages, which the Court denied. The Defendant then presented its case, offering the testimony of various UPS employees; including Irene Gordon, Robert Rizzo, Beverly Riddick, James Kirk, Kevin DiLibero, Christopher Travaglia, David Mazzola, Steven Wiederhold, and Joseph Mero. On September 23, 2011, the jury rendered a verdict. With regard to the Plaintiffs disability claims, the jury found that: (1) the Plaintiff did not prove that he was an individual with a “disability” within the meaning of the ADA, namely that he had an impairment which substantially limited a major life activity; (2) the Plaintiff did prove that he was an individual with a “disability” within the meaning of the NYSHRL and the NYCHRL; (3) the Plaintiff did prove he was a “qualified individual” within the meaning of the terms as instructed by the Court; (4) UPS failed to accommodate the Plaintiff with regard to his disability and required him to work in a significantly more difficult work area which would adversely affect his physical conditions; but that (5) UPS proved by a preponderance of the evidence that it made a good faith effort to identify and provide the Plaintiff with a reasonable accommodation that would allow him to work within his restrictions. Therefore, the Defendant UPS was successful in defending the Plaintiffs failure to accommodate claims under the ADA, NYSHRL, and NYCHRL. With regard to the Plaintiffs retaliation claims, the jury found that: (1) the Plaintiff proved that the Defendant required him to work in a significantly more difficult work area which would adversely affect his physical conditions, after he sent a letter to Kevin DiLibero at UPS; had a letter sent to Kevin DiLibero by his attorney; and filed his EEOC complaint; and that (2) the Plaintiff proved that there was a causal connection between the letters sent to DiLibero and the filing of the EEOC complaint and the requirements to work in significantly more difficult work areas. Thus, the Plaintiff was successful under his NYSHRL and NYCHRL retaliation causes of action. As a result, the jury awarded the Plaintiff $200,000 for compensatory damages and no punitive damages. On October 21, 2011, the Defendant filed the instant motion for judgment as a matter of law and/or a new trial, and the Plaintiff filed a motion for a new trial as well as a motion for attorneys’ fees and costs. II. DISCUSSION A. Legal Standards 1. The Renewed Motion for Judgment as a Matter of Law In substance, Fed.R.Civ.P. 50(b) provides that if a jury returns a verdict for which there is not a legally sufficient evidentiary basis, the District Court may either order a new trial or direct the entry of judgment as a matter of law. In order to grant a motion for JMOL, there must be a “‘complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture, or ... such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men [and women] could not arrive at a verdict against [it].’ ” Concerned Area Residents for Environment v. Southview Farm, 34 F.3d 114, 117 (2d Cir.1994) (quoting Song v. Ives Lab., Inc., 957 F.2d 1041, 1046 (2d Cir.1992)); Mattivi v. South African Marine Corp. “Huguenot”, 618 F.2d 163, 168 (2d Cir.1980). “The same standard that applies to a pre-trial motion for summary judgment pursuant to Fed.R.Civ.P. 56 also applies to motions for judgment as a matter of law during or after trial pursuant to Rule 50.” Piesco v. Koch, 12 F.3d 332, 341 (2d Cir.1993); see also the Advisory Committee Note to the 1991 Amendment of Fed. R.Civ.P. 50. This Rule is well and clearly explained in the seminal case of This Is Me, Inc. v. Elizabeth Taylor, 157 F.3d 139 (2d Cir.1998). In Taylor, the Court commented that the then recent adoption of the term “judgment as a matter of law” to replace both the term “directed verdict” and the term “judgment N.O.V.” was intended to call attention to the close relationship between Rule 50 and 56. 157 F.3d at 142. The Court then went on to explain the basis for granting a post-verdict Rule 50 motion, as follows: A district court may not grant a motion for a judgment as a matter of law unless “the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable [persons] could have reached.” Cruz v. Local Union No. 3, Int’l Bhd. of Elec. Workers, 34 F.3d 1148, 1154-55 (2d Cir.1994) (quoting Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir.1970)) (internal quotation marks omitted). Weakness of the evidence does not justify judgment as a matter of law; as in the case of a grant of summary judgment, the evidence must be such that “a reasonable juror would have been compelled to accept the view of the moving party.” Piesco, 12 F.3d at 343. Id.; see also Fabri v. United Techs. Int’l Inc., 387 F.3d 109, 119 (2d Cir.2004) (same); Sanders v. New York City Human Res. Admin., 361 F.3d 749, 755 (2d Cir.2004). When ruling on a motion for JMOL, the court must “ ‘consider the evidence in the light most favorable to the [non-moving party] and ... give that party the benefit of all reasonable inferences that the jury might have drawn in [its] favor from the evidence.’ ” Concerned Area Residents for the Env’t v. Southview Farm, 34 F.3d 114, 117 (2d Cir.1994), cert. denied, 514 U.S. 1082, 115 S.Ct. 1793, 131 L.Ed.2d 721 (1995), (quoting Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363, 367 (2d Cir.1988)). The court “must disregard all evidence favorable to the moving party that the jury is not required to believe.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Meloff v. New York Life Ins. Co., 240 F.3d 138, 145 (2d Cir.2001). Accordingly, when ruling on a motion brought pursuant to Rule 50, the court may not rule on the credibility of the -witnesses or the weight of the evidence. Caruso v. Forslund, 47 F.3d 27, 32 (2d Cir.1995). Rather, it must defer to the credibility assessments that may have been made by the jury and the reasonable factual inferences that may have been drawn by the jury. See Williams v. Cnty. of Westchester, 171 F.3d 98, 101 (2d Cir.1999). A JMOL is thus “proper only if ‘the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable [persons] could have reached.’ ” Fiacco v. City of Rensselaer, 783 F.2d 319, 329 (2d Cir.1986) (quoting Simblest, 427 F.2d at 4). Such motions “should be granted cautiously and sparingly.” 9A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2524, at 252 (1995); Japan Airlines Co. Ltd. v. Port Auth. of New York & New Jersey, 178 F.3d 103, 112 (2d Cir.1999). 2. The Motion for a New Trial Under Federal Rule of Civil Procedure 59 (“Fed.R.Civ.P. 59” or “Rule 59”), a court “may, on motion, grant a new trial on all or some of the issues — and to any party — ... after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court.” Fed.R.Civ.P. 59(a)(1)(A). “‘Amotion for a new trial should be granted when, in the opinion of the district court, the jury has reached a seriously erroneous result or ... the verdict is a miscarriage of justice.’ ” DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 133 (2d Cir.1998) (quoting Song v. Ives Lab., Inc., 957 F.2d 1041, 1047 (2d Cir.1992)). The general grounds for a new trial are that (1) the verdict is against the clear weight of the evidence; (2) the trial court was not fair; (3) substantial errors occurred in the admission or rejection of evidence or the giving or refusal of instructions to the jury; or (4) damages are excessive. 12 Moore’s Federal Practice, § 59.13[1] at 59-43 (3d Ed.2005). In comparison to a Rule 50 motion for judgment as a matter of law, the Second Circuit has held that the standard for a Rule 59 motion in some respects is less onerous for the moving party in two ways: first, “[ujnlike judgment as a matter of law, a new trial may be granted even if there is substantial evidence supporting the jury’s verdict.” DLC Mgmt. Corp., 163 F.3d at 134. Second, in deciding a Rule 59 motion “a trial judge is free to weigh the evidence himself, and need not view it in the light most favorable to the verdict winner.” Id. However, the granting of a new trial is an extraordinary relief, and one that “is properly granted only upon a showing of exceptional circumstances.” Id. at 391. B. As to the Defendant’s Motion for Judgment as a Matter of Law 1. NYCHRL Claims a. Whether a Rule 50(b) Motion as to the NYCHRL Claims is Proper As an initial matter, the Plaintiff argues that UPS is procedurally barred from raising a Rule 50(b) motion in connection with the Plaintiffs NYCHRL claims because the Defendant did not raise this issue in its initial Rule 50(a) motion. According to the Plaintiff, UPS was required to raise the objection that the evidence was insufficient to establish a claim under the NYCHRL at the charging conference, or at the very least, prior to the jury being charged. See Thorsen v. Cnty. of Nassau, 722 F.Supp.2d 277, 287 (E.D.N.Y.2010). In response, the Defendant argues first, that it did raise the applicability of the NYCHRL to the Plaintiffs claims prior to the start of the trial. (9/7/2011 Tr., 11:14— 24.) The Court specifically reserved judgment as to the particular issue. Also, the Defendant points out that the Court sua sponte raised the issue of whether the NYCHRL could apply to the Plaintiffs allegations, given the fact that the majority of his work for UPS during the relevant time period took place on Long Island. Second, the Defendant asserts that because the applicability of the NYCHRL to the Plaintiffs claims is a legal question, it is a recognized exception to the bar under Rule 50(b) for failure to preserve a claim. Third, the Defendant claims that declining to rule on this issue would result in a manifest injustice because UPS will be held liable under a law that does not apply to its conduct. Rule 50(a) provides that, prior to submission of a case to a jury, if a court that “finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on [a given] issue,” it may enter judgment as a matter of law on that issue. Rule 50(a)’s language thus permits a party to make a motion for judgment as a matter of law prior to submission of the case to the jury. Rule 50(b) provides that a party may renew this motion after a verdict. Thus, Rule 50(b) implies that a motion for judgment as a matter of law must be renewed at the close of all the evidence if the moving party wants to obtain such relief should the jury bring in a verdict against him. See Cruz v. Local Union No. 3 of Int’l Bhd. of Elec. Workers, 34 F.3d 1148, 1155 (2d Cir.1994) (“The rule is well established that a motion for [judgment as a matter of law] at the close of all the evidence is a prerequisite for [judgment as a matter of law].” (second brackets in original; citation and internal quotation marks omitted)); Pittman by Pittman v. Grayson, 149 F.3d 111, 120 (2d Cir.1998) (“[T]o be timely, the motion for judgment as a matter of law must be made ‘before submission of the case to the jury.’” (quoting Fed.R.Civ.P. 50(a)(2))), cert. denied, 528 U.S. 818, 120 S.Ct. 59,145 L.Ed.2d 51 (1999). “But neither the rule nor the note discusses the consequences of failure to comply strictly with the rule.” Szmaj v. Am. Tel. & Tel. Co., 291 F.3d 955 (7th Cir.2002). Here, it is undisputed that the Defendant did, at a minimum, raise the issue before the jury was instructed and deliberated. It was not presented to the Court as a formal Rule 50(a) motion, but rather, as a motion in limine. Specifically, the Defendant’s Counsel stated the following before the Court at a hearing on September 7, 2011, prior to the commencement of the trial: The third aspect of this is I understand this discrimination failure to accommodate claim is based on the ADA, the New York State Human Rights Law and the New York City Human Rights Law. However, Mr. Welch worked in New York City only in 2010. Anything prior cannot be covered jurisdictionally by the New York City Human Rights Law. So as a result, that claim has to be limited to the time Mr. Welch was working in Manhattan.... Again, but I want to be clear, clearly it’s in the statute as well as the case law in that regard. (9/1/2011 Tr., 11:14-22; 12:3-5.) However, the Court reserved judgment on the issue. (See 9/7/2011 Tr., 11:23-24 (“THE COURT: But I’m not going to that now, that will all come later, of course.... When I give instructions to the jury, we will get into that.”).) On one hand, the Court could find that the Defendant is not procedurally barred from now asserting this argument again by a Rule 50(b) motion because the arguments were somewhat raised prior to deliberations and it was the Court’s decision to not explore the merits at that time. Cf. Roberts v. Nat’l R.R. Passenger Corp., Nos. 04 Civ. 1318, 04 Civ. 1622, 04 Civ. 2195, 2006 WL 2621733, at *4 (D.Conn. Sept. 12, 2006) (“Amtrak is not precluded by the asserted failure to move at the end of the case. It noted its intent to move as required by Rule 50 of the Federal Rules of Civil Procedure, and the Court noted its awareness of the basis for the motion and reserved judgment. The lack of a detailed recitation of the grounds for the motion was due to the Court’s intervention, to which O & G took no exception.”); Skrundz v. Pabey, No. 05 Civ. 188, 2009 WL 1704687, at *1 (N.D.Ind. June 17, 2009) (“Rule 50 allows a court to enter judgment as a matter of law when the motion is first offered or to reserve judgment on the motion until after a jury has returned its verdict.”); John M. Floyd & Assocs., Inc. v. Ocean City Home Bank, No. 03 Civ. 1473, 2008 WL 4534079, at *2 (D.N.J. Oct. 2, 2008) (“Once the Court denies or reserves judgment on the initial motion under Rule 50(a), the party may renew its motion after the jury has returned a verdict. Fed.R.Civ.P. 50(b).”). As explained by Judge Block: A Rule 50(b) motion “is limited to those grounds that were specifically raised in the prior [Rule 50(a) motion].” Tolbert v. Queens College, 242 F.3d 58, 70 (2d Cir.2001). Pursuant to this specificity requirement, the Rule 50(a) motion “must at least identify the specific element that the defendant contends is insufficiently supported.” Galdieri-Ambrosini v. National Realty & Dev. Corp., 136 F.3d 276, 286 (2d Cir.1998). The purpose of the specificity requirement is “so that the responding party may seek to correct any overlooked deficiencies in the proof.” Id. (quoting Fed.R.Civ.P. 50 Advisory Committee Note (1991)). Drake v. Delta Air Lines, Inc., No. 94 Civ. 5944, 2005 WL 1743816, at *1 (E.D.N.Y. July 21, 2005). Therefore, it is possible to view the Defendant’s in limine motion as a vehicle through which it identified the specific element that it believed would be unsupported and provided the Plaintiff with an opportunity to correct this asserted deficiency in proof at the trial. On the other hand, the Defendant’s counsel raised the issue at the commencement of the trial, without any formal motion based on the insufficiency of evidence as a matter of law at the close of the Plaintiffs case. Cf. Syracuse v. Program for the Dev. of Human Potential, No. 07 Civ. 2205, 2012 WL 1624291, at *2 (E.D.N.Y. Apr. 30, 2012) (“Satisfying the requirements of Rule 50(a), defendant specified that it sought to have the action ‘dismiss[ed] for insufficiency of the evidence as a matter of law" ..., and detailed the facts that it contended supported such a judgment.... In regard to plaintiffs NYCHRL claim specifically, defendant argued that ‘there’s insufficiency of evidence in general to support that her health was a reason [for the non-promotion], because the defendant has put forth a legitimate reason.’ ... Accordingly, defendant’s Rule 50(b) motion currently pending before this Court is proeedurally proper”). In the Court’s view, this conduct does not technically comply with the letter of Rule 50. Many circuits have taken a forgiving view of certain violations of the renewal requirement. See, e.g., Giles v. General Electric Co., 245 F.3d 474, 481-83 (5th Cir.2001); Taylor Publishing Co. v. Jostens, Inc., 216 F.3d 465, 472-73 (5th Cir.2000); Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 129 (2d Cir.1999); Alcatel USA Inc. v. DGI Technologies, Inc., 166 F.3d 772, 781 (5th Cir.1999); Singer v. Dungan, 45 F.3d 823, 829 (4th Cir.1995); Keisling v. SER-Jobs for Progress, Inc., 19 F.3d 755, 759 (1st Cir.1994); Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1173-74 (3d Cir.1993). For instance, one district court in Virginia clarified that it had effectively excused the Defendant from formally making a Rule 50(a) motion at the close of all the evidence, because it had been made clear upon ruling on Plaintiffs motion for a directed verdict at the close of all the evidence, that the matter contained sufficient factual concerns for the jury to consider. See Cretella v. Kuzminski, 640 F.Supp.2d 741, 755 (E.D.Va.2009). In other words, there are certain courts that have found that the “spirit of the procedural requirements were met” (see id.), so that it was proper to review a subsequent Rule 50(b) motion, despite a failure to comply with the procedural requirements of raising a formal motion at the close of all evidence. See Singer v. Dungan, 45 F.3d 823, 829 (4th Cir.1995). However, not all courts have been so lenient. In 2009, the Tenth Circuit found that because the Defendant did not assert its arguments in a Rule 50(a) motion at the close of the Plaintiffs case-in-chief, it was precluded from relying on them as a basis for Rule 50(b). See M.D. Mark, Inc. v. Kerr-McGee Corp., 565 F.3d 753, 762-65 (10th Cir.2009). This case presents a somewhat unusual situation. Typically, cases to have addressed whether the procedural requirements of a Rule 50(b) motion have been met, have dealt with the situation where a Rule 50(a) motion was made but either (1) the Judge reserved decision; or (2) it did not contain the same arguments that are raised in the subsequent Rule 50(b) motion. As to (1), the Second Circuit has held that “where the trial judge has indicated that renewing a previously made motion for judgment as a matter of law at the close of all the evidence was not necessary, and where the opposing party could not reasonably have thought that the motion was dropped, then judgment as a matter of law may be sought post-verdict.” See Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 133 (2d Cir.2008). As to (2), it is clear in this Circuit that “[a] Rule 50(a) motion requesting judgment as a matter of law on one ground but omitting another is insufficient to preserve a JMOL argument based on the latter.” Lore v. City of Syracuse, 670 F.3d 127, 152 (2d Cir.2012). Here, this case represents a combination of these concepts: this Court did reserve decision as to the applicability of the NYCHRL claims, but that applicability was not raised in an initial Rule 50(a) motion. Thus, the question presented is what the Court should do when the arguments were raised to the Court before the case is submitted to the jury but not by a formal Rule 50(a) motion. The rationale behind the renewal requirement is to provide “the requisite opportunity to cure any perceived deficiency in her proof before the case was submitted to the jury.” Lore v. City of Syracuse, 670 F.3d 127, 153 (2d Cir.2012) (“The principal purpose of the requirement that any such motion be made before the case is submitted to the jury is ‘to assure the responding party an opportunity to cure any deficiency in that party’s proof.’ ”) (quoting Piesco v. Koch, 12 F.3d at 340). Here, the Court finds that pursuant to the letter of Fed.R.Civ.P. 50(b) and the relevant case law, because the Defendant only raised the issue of the applicability of the NYCHRL at a pre-trial conference and again in the middle of jury deliberations (9/22/11 Tr., 1533-1536), but did not raise the issue in its Rule 50(a) motion, the present 50(b) is proeedurally improper. Cf. Bracey v. Board of Educ. of City of Bridgeport, 368 F.3d 108 (2d Cir.2004) (not addressing the Rule 50(b) motion on appeal because the Board never filed a Rule 50(a) motion, but also appeared to not have raised the arguments in any other vehicle). It is an unfair result and contravenes the purposes of Rule 50 to allow the Defendant to raise an issue before the Plaintiff has even put on his ease, and then not renew that contention regarding the sufficiency of the evidence after the Plaintiff has actually presented his proof. Such a finding would undermine the requirement that a Defendant identify the specific element that is unsupported and question the sufficiency of the evidence that was presented; and then afford the Plaintiff an opportunity to remedy any defect. However, the Second Circuit has created an exception, holding that a court “may grant judgment as a matter of law where no Rule 50 motion was made, if necessary to prevent ‘manifest injustice.’ ” Stephenson v. Doe, 332 F.3d 68, 76 (2d Cir.2003) (citing Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 129 (2d Cir.1999); Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 164 (2d Cir.1998)). Hence, this Court may nevertheless grant judgment as a matter of law to prevent “manifest justice” when the jury’s verdict is “wholly without legal support”. See Scott v. Rosenthal, 53 Fed.Appx. 137, 140 (2d Cir.2002). The cases have provided little guidance on what constitutes “manifest injustice” in this context, but rather appear to focus on the specifics of each fact pattern. Id. Of course, a defendant may not merely argue that the procedural bar should be waived because they should win on the underlying motion. “Such an argument would, of course, obviate the need for the procedural requirement in the first place.” Health Alliance Network, Inc. v. Continental Cas. Co., 245 F.R.D. 121, 124 (S.D.N.Y.2007). However, “where the argument presents a question of law and there is no need for additional fact-finding”, and manifest injustice may arise, then exercise of this discretion is warranted. See Malmsteen v. Berdon, LLP, 369 Fed.Appx. 248, 251 (2d Cir.2010). Here, because the Court finds that manifest injustice would occur if a verdict as to the NYCHRL is permitted to stand, as explained further, below, then this a basis under which the Court may permit the filing of a Rule 50(b) motion. See Ramos v. Co. of Suffolk, 707 F.Supp.2d 421, 426 (E.D.N.Y.2010) (Spatt, J.) (“As discussed above, the Second Circuit has held that a failure to move for judgment as a matter of law prior to submission to the jury is not a per se bar to a later motion for the same relief.”). This is not the type of situation where the Court has concerns that it “must give deference to all credibility determinations and reasonable inferences of the jury, and may not weigh the credibility of witnesses.... ” Kinneary v. City of New York, 601 F.3d 151, 155 (2d Cir.2010) (quoting Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 133 (2d Cir.2008)). There are no factual disputes or credibility determinations whatsoever as to the applicability of the NYCHRL. Rather, the plain issue is whether the Plaintiffs claimed contact with New York City is sufficient, as a matter of law, to warrant recovery under the NYCHRL. In the Court’s view, it would result in manifest injustice if UPS is held liable under a law which, based upon the evidence, does not apply to its conduct. Moreover, it would result in manifest injustice if the Plaintiff is permitted to recover damages and fees under a law under which he is not entitled to recovery. Accordingly, the Court will now rule on this aspect of the Defendant’s Rule 50(b) motion. b. NYCHRL Retaliation The Defendant contends that even if it is assumed that the Plaintiff was retaliated against in violation of the NYCHRL, the Defendant is nevertheless entitled to judgment as a matter of law in connection with the NYCHRL claims because the Plaintiff was never assigned to a more difficult work environment within the five boroughs during the relevant statutory time period. Quite simply, UPS argues that the record is devoid of any factors or evidence that could support a finding that Welch felt the impact of UPS’s alleged retaliation within the five boroughs. Title 8 of the New York City Administrative Code makes it unlawful for an employer to discharge from employment, or to discriminate against in compensation or in the terms, conditions or privileges of employment, any person based on their “actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation or alienage or citizenship status”. N.Y.C. Admin. Code § 8-107(l)(a). To succeed on a claim under the NYCHRL, a plaintiff must prove that the defendant discriminated against him “within the boundaries of New York City”. Shah v. Wilco Sys., Inc., 27 A.D.3d 169, 175, 806 N.Y.S.2d 553, 558 (1st Dep’t 2005); Fried v. LVI Servs., Inc., No. 10 Civ. 9308, 2011 WL 4633985, at *12 (S.D.N.Y. Oct. 4, 2011) (“The NYCHRL expressly limits the applicability of its protections to acts that occur within the boundaries of New York City.”) (citing N.Y.C. Admin. Code § 2-201). “[T]o determine the location of the discrimination under the NYCHRL, courts look to the location of the impact of the offensive conduct.” Curto v. Med. World, Commc’ns, Inc., 388 F.Supp.2d 101, 109 (E.D.N.Y.2005). As the New York Court of Appeals recently held, “the impact requirement is relatively simple for courts to apply and litigants to follow, leads to predictable results, and confines the protections of the NYCHRL to those who are meant to be protected — those who work in the city.” Hoffman v. Parade Publ’ns., 15 N.Y.3d 285, 290-91, 907 N.Y.S.2d 145, 933 N.E.2d 744 (2010) (emphasis added). Here, it is undisputed that the Plaintiff is a non-resident of New York City. Thus, the Plaintiff necessarily needed to establish at the trial that he felt the impact of the Defendant’s alleged retaliation within the boundaries of New York City. In the Plaintiffs opposition papers, he does not specifically argue that there was any evidence presented at trial that would establish that he felt the impact of the Defendant’s alleged retaliation within New York City. Rather, his post-trial memorandum merely recounts the following facts elicited from Welch’s testimony. From January to October 2006, prior to the relevant time period, the Plaintiff worked as a supervisor in the comprehensive health and safety program (“CHSP”) in Maspeth, Queens. (9/7/2011 Tr. 131; 138; 9/8/2011 Tr., 253:8-19.) In October 2006, Welch was reassigned to work as a supervisor at the Nassau preload. (9/7/2011 Tr., 139.) Then from July to December 2007, he worked as a supervisor in the CHSP in Melville, New York. (9/7/2011 Tr., 146-47.) Thus, the only instances of the Plaintiff conceivably feeling the impact of the Defendant’s alleged retaliation are: (1) at a meeting in Brooklyn on June 20, 2008, DiLibero, UPS’ employee relations manager, told Welch that his allegations of discrimination were “false” (9/8/2011 Tr., 169:9-17) and that he was going to be “reassigned to the preload operation, the very operation [Welch] was taken from prior to that because it did not meet [his] restrictions” (9/8/2011 Tr., 170:5-24); and (2) that the Plaintiff worked at the Foster Avenue facility in Brooklyn for two days during the Jewish holidays in September 2009, during which time he delivered packages that exceeded the weight restrictions imposed by his physicians (9/8/2011 Tr., 192:1-18.) As for the June 2008 meeting, as previously stated, it is the impact of the adverse action, not the location where acts leading to the discrimination occur, that gives rise to a claim under the NYCHRL. See Shah, 27 A.D.3d at 176, 806 N.Y.S.2d at 558 (“[T]he locus of the decision to terminate here is of no moment. What is significant is where the impact is felt. Thus, even if the termination decision had been made in New York City, the NYCHRL would not apply since its impact on her occurred in New Jersey, not within the five boroughs.”); Salvatore v. KLM Royal Dutch Airlines, No. 98 Civ. 2450, 1999 WL 796172, at *16 (S.D.N.Y. Sept. 30, 1999) (“The fact that certain acts leading to discrimination may occur in New York City will not necessarily give rise to a claim under the [NYCHRL].”). Although the decision to reassign the Plaintiff was communicated to him at a meeting that was held within the boundaries of New York City, Welch felt the impact of this retaliation through the actual reassignment to Nassau County. See Duffy v. Drake Beam Morin, Harcourt Gen., Inc., No. 96 Civ. 5606, 1998 WL 252063, at *11 (S.D.N.Y. May 19, 1998) (“To hold otherwise would be to expand the [NYCHRL] to cover any employee who is fired pursuant to a decision handed down by an employer from its New York City headquarters, no matter where the employee in question actually works.”); Lightfoot v. Union Carbide Corp., No. 92 Civ. 6411, 1994 WL 184670, at *5 (S.D.N.Y. May 12, 1994) (dismissing NYCHRL claim where the employer’s early retirement plan was “approved at a meeting in New York City,” because “[i]ts impact on [plaintiff] ... occurred while he was employed in Connecticut”), aff'd, 110 F.3d 898 (2d Cir.1997). The meeting in Brooklyn is simply insufficient, as a matter of law, to demonstrate that the impact of the retaliation occurred within the confines of New York City. See Fried v. LVI Servs., Inc., No. 10 Civ. 9308, 2011 WL 4633985, at *13 (S.D.N.Y. Oct. 4, 2011) (“Plaintiffs admission that he worked five days a week out of the West-port Office during the time of the events in question is dispositive. Fried’s argument to the contrary — that he attended meetings in New York City, made regular phone calls to New York City, and secured contracts for LVT in New York City ...— is unavailing.”). As for the two day working period during the Jewish holidays, the main alleged instances of retaliation made by the Plaintiff were the reassignment to the Nassau preload in June 2008 and the peak season assignments at the Roosevelt Field Mall in Long Island. These reassignments were to facilities outside of the boundaries of New York City. It would be tenuous to an absurd degree to find that because the Plaintiff testified that he covered for other workers observing a religious holiday for two days, that is sufficient to recover under the NYCHRL. Cf. Regan v. Benchmark Co., LLC, No. 11 Civ. 4511, 2012 WL 692056, at *13 (S.D.N.Y. March 1, 2012) (sustaining the plaintiffs NYCHRL claims because even after she was transferred to a New Jersey office, “she remained affiliated with the New York City office to the extent possible. In particular, Regan continued to service New York City-based clientele and remained under the management and supervision of Benchmark’s New York City office.... Therefore, although Regan was physically working out of Jersey City, all other aspects of her employment connected her to Benchmark’s New York City office”). More importantly, this extremely brief coverage in light of other employees’ absences was not alleged to have been part of the retaliation by the Defendant in the complaint or part of his theory for recovery. Therefore, the Court finds that the Defendant’s motion for judgment as a matter of law dismissing the Plaintiffs NYCHRL retaliation claims must be granted, c. NYCHRL Failure to Accommodate Similarly, the Defendant also contends that even if it is assumed that it failed to accommodate the Plaintiff in violation of the NYCHRL, the Defendant is nevertheless entitled to judgment as a matter of law in connection with the NYCHRL claims because the Plaintiff was not impacted by this lack of accommodation within the five boroughs during the relevant statutory time period. Ultimately, the jury found in favor of the Defendant’s good faith defense as to this cause of action. However, because the Court finds that the NYCHRL would be inapplicable to any failure to accommodate claims, the Court need not address below whether the good faith defense was proper in connection with the NYCHRL. The only argument that the Plaintiff makes as to how the impact of the failure to accommodate under the NYCHRL was felt in New York City is that Welch was working in Manhattan in an administrative position in the industrial engineering department, which accommodated his disabilities, when he was reassigned to a position in Long Island that did not accommodate his disability. However, it is illogical for Welch to assert that his position in New York City accommodated his disability, but then simultaneously claim that the impact of UPS’ failure to accommodate was felt while he was in that position. Thus, the Court agrees with the Defendant that there is insufficient evidence, as a matter of law, to demonstrate that the Plaintiff is entitled to recovery under the NYCHRL for failure to accommodate. In sum, the Court finds that the jury’s verdict must be set aside in connection with the NYCHRL claims and that judgment be entered as a matter of law in favor of the Defendant dismissing these causes of action. In light of this finding, the Court need not address the Defendant’s contention that the jury’s verdict is a miscarriage of justice because of the addition of the NYCHRL claims on the eve of trial. 2. Retaliation Claims The next major issue raised by the Defendant in its post-trial motions involves the jury’s verdict in connection with the Plaintiffs retaliation claims. Here, UPS claims that it is entitled to judgment as a matter of law on the Plaintiffs retaliation cause of action because there is a complete absence of evidence supporting the jury’s verdict. “ADA [and NYSHRL] retaliation claims are ... analyzed under a burden-shifting analysis — first, the plaintiff must make a prima facie showing of retaliation; then, the burden shifts to the employer to articulate a legitimate, non-[retaliatory] reason for the adverse action; lastly, the plaintiff must provide evidence demonstrating that the proffered reason is merely a pretext for [retaliation].” Shepheard v. N.Y. City Correctional Dep’t, 360 Fed.Appx. 249, 251 (2d Cir.2010). In order for a plaintiff to make its initial prima facie showing of retaliation, “the plaintiff must demonstrate that (1) he was engaged in an activity protected by the NYSHRL and/or the NYCHRL; (2) the employer was aware of the activity; (3) an employment action adverse to the plaintiff occurred; and (4) there was a causal connection between the protected activity and the adverse employment action.” Stephan v. W. Irondequoit Cent. Sch. Dish, 450 Fed.Appx. 77, 80 (2d Cir.2011). This Court instructed the jury that the first two prongs of the Plaintiffs prima facie case were undisputed; namely, that the Plaintiff engaged in a protected activity and that UPS knew about the activity. Only prongs three and four — whether UPS took an adverse employment action against Welch and whether a causal connection existed between the protected activity and the adverse action — were submitted to the jury. The Defendant now argues that the evidence at trial simply did not establish those prongs. a. As to Whether the Evidence Established that the Plaintiffs Job Reassignment was an Adverse Employment Action An adverse employment action is a “ ‘material adverse change’ in the terms and conditions of employment.” Sanders v. New York City Human Resources Admin., 361 F.3d 749, 755 (2d Cir.2004) (quoting Richardson v. New York State Dep’t of Corr. Serv., 180 F.3d 426, 446 (2d Cir.1999)). Such an action is “more disruptive than a mere inconvenience or an alteration of job responsibilities.” Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.2000) (quoting Crady v. Liberty Nat’l Bank & Trust Co. of Ind., 993 F.2d 132, 136 (7th Cir.1993)). Materially adverse changes encompass “termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation.” Id. (quoting Crady, 993 F.2d at 136). “Actions are materially adverse if they are harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Hicks v. Baines, 593 F.3d 159, 165 (2d Cir.2010) (internal quotation marks omitted). At the trial, the Plaintiff contended that he was transferred in June 2008 to the Nassau preload in retaliation for: (1) a written complaint of discrimination he made to Kevin DiLibero on April 20, 2008, which Welch testified he sent because he “felt there was an ongoing pattern of discrimination, retaliation, gross negligence on account of [his] illness and treatment, and [he] just wanted to be taken care of’; and (2) a letter sent to DiLibero from his attorneys on June 12, 2008. (9/8/11 Tr., 165:17-21; 170:1-14.) In addition, the Plaintiffs complaint to the EEOC in 2008 was alleged to be another instance of protected activity. There is no dispute that Welch did not attempt to demonstrate at the trial that the transfer to the Nassau preload in 2008 resulted in a demotion or reduction in his pay or benefits. Rather, the Plaintiff asserted that the reassignment to the Nassau preload required him to work in violation of his medical restrictions, and consequently this constituted an adverse employment action. Welch testified at the trial that he was required to lift in excess of his medical restrictions in this position and now argues that the jury credited this testimony. For instance, when asked by counsel “At the Nassau preload, were you lifting packages that exceeded the weight limitations that had been recommended by your physicians?”, Welch responded “Yes, I was.” (9/8/2011 Tr., 170-71) He now contends that with this testimony, he presented sufficient evidence for the jury to conclude that his transfer to the preload could have dissuaded a reasonable employee in his position from complaining of unlawful discrimination. On the other hand, the Defendant claims that this reassignment to the Nassau preload was made for the precise purpose of accommodating his disability. In particular, the Defendant claims that the evidence demonstrates that it transferred Welch with the specific instruction to not lift any packages in excess of his weight restriction. Thus, although the Plaintiff may have refused to follow this edict at times, this does not change the terms of his reassignment. In this regard, DeLiberto testified at the trial as follows: Q: Did you have any reservation about assigning Mr. Welch to be a preload supervisor given his restrictions? A: No. Q: Why not? A: It is definitely something that could [fit] his accommodations. My concern was that, and I made this very clear in the meeting several times, that John had to understand it was his responsibility to adhere to these restrictions. I mean, we can definitely accommodate you. You don’t have to drive a UPS vehicle. We can work you nine hours. You don’t have to lift packages over 80, 40 pounds. And no repetitive movement of those packages. Q: What did you mean by conveying to Mr. Welch that it would be his responsibility? A: Well, we had issues with him in the past where he was not working within his restrictions in the past when we accommodated him, and I wanted to make it very clear that we couldn’t accept this any longer; that we’re giving you the accommodations and it is your responsibility to ensure that you do follow them and adhere to them. (9/15/2011 Tr., 965-66.) First, there is no question that if the reassignment was to a position that no longer accommodated his disability, that could theoretically constitute an adverse employment action. See Vinson v. N.Y. City Dep’t of Corrections, No. 01 Civ. 6900, 2006 WL 140553, at *7 (E.D.N.Y. Jan. 17, 2006) (“plaintiff is correct that a transfer resulting in a denial or withdrawal of a reasonable accommodation can be considered an adverse employment action.”); Honey v. Cnty. of Rockland, 200 F.Supp.2d 311, 320 (S.D.N.Y.2002) (stating that if the plaintiff demonstrated that her supervisor had refused to continue to accommodate her disability because she had filed an EEOC complaint, that action would be considered an adverse employment action); Adams v. New York State Thrmvay Auth., No. 97 Civ. 1909, 2001 WL 874785, at *15 n. 11 (N.D.N.Y. March 22, 2001) (stating in dicta that a “denial of a request for a reasonable accommodation can be an adverse employment action”). Second, merely making accommodations for the Plaintiffs disability on paper, but not actually accommodating him for such a disability in reality, would not prevent this reassignment from constituting an adverse employment action. If that were the case, then any employer could escape liability by simply theoretically accommodating or failing to retaliate without actually doing so. Thus, the jury was entitled to conclude that despite the Defendant’s testimony regarding its attempts to accommodate his disability, Welch’s disability was not accommodated in practice and this had a sufficiently material negative impact on the terms and conditions of Welch’s employment with UPS to constitute an adverse employment action for purposes of a retaliation analysis. Third, the Court is certainly aware of the Second Circuit’s admonition that, in determining a Rule 50 motion, a court “must give deference to all credibility determinations and reasonable inferences of the jury, and may not weigh the credibility of witnesses....” Kinneary v. City of New York, 601 F.3d 151, 155 (2d Cir.2010) (quoting Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 133 (2d Cir.2008)). In the Court’s view, the jury’s verdict strongly indicates that they did found the Plaintiff to be credible, and the Court is hesitant to intrude on this determination by entering judgment that directly contradicts such an express finding. Therefore, the Court finds that based upon Welch’s testimony, the evidence at trial was sufficient to establish that his job reassignment to the Nassau preload in 2008 was an adverse employment action, b. As to Whether the Evidence Established a Causal Connection In addition to disputing whether there was sufficient evidence to establish an adverse employment action suffered by Welch, the Defendant contends that the evidence at the trial did not establish a causal connection between the Plaintiffs protected activities and the alleged adverse employment action. First, the Defendant asserts that the assignment to the Nassau preload occurred on June 10, 2008, which was prior to June 12, 2008, when the Plaintiffs attorneys sent a letter to UPS and the filing of the EEOC complaint. However, even taking that as true, that does not warrant judgment as a matter of law. There was sufficient evidence in the record to warrant a finding of retaliation as to the April 20, 2008 complaint that the Plaintiff made directly to DiLibero. Second, according to UPS, the evidence at the trial established that UPS assigned the Plaintiff to the Nassau preload as early as October-2006, which was twenty months prior to the Plaintiffs April 20, 2008 letter to DiLibero and June 12, 2008 letter to DiLibero from the Plaintiffs attorneys. UPS argues that “[ajssignment to the same position after plaintiff lodged an internal complaint cannot constitute retaliation.” (Reply Mem. at 8) (citing Young v. Westchester Co. Dep’t of Social Servs., 57 Fed.Appx. 492, 495 (2d Cir.2003)). In other words, because the Plaintiffs theory of the case was that UPS had a long history of repeatedly assigning him to job positions that did not confirm to his medical restrictions, the 2008 reassignment to the Nassau preload did not change or worsen after his complaints of discrimination. In Young v. Westchester Co. Dep’t of Social Servs., 57 Fed.Appx. 492, 495 (2d Cir.2011), the Second Circuit affirmed the district court’s granting summary judgment in favor of the county. In particular, the Court noted that: Young has not submitted any evidence to suggest that there is a causal relationship between her requests to return to work, or to transfer, and the disciplinary measures and delayed transfers to which she alleges she was subjected. Ordinarily, causality can be inferred from the fact that “ ‘the protected activity was closely followed in time by the adverse action.’ ” Lovejoy-Wilson [v. NOCO Motor Fuel, Inc.], 263 F.3d [208] at 224 [ (2d Cir.2001) ] (quoting Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir.2001)). However, where the adverse action was already ongoing at the time of the protected activity, or is very similar to another adverse action that was taken before the protected activity, with no other change in relevant circumstances, logic precludes any inference of causation. See Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir.2001). Young had already had a transfer request pending since March of 1997 at the time she requested her accommodations. Absent evidence that suitable positions were unavailable during that period, but available during late 1998 and 1999, it is hard to see how any failure to transfer Young could have been related to her protected activities... .Young offers no evidence, other than relative nearness in time, to link the allegedly adverse actions to her protected activities. Under these circumstances, we conclude, there is no reasonable inference that the two sets of events were causally related. Id. at 495. As a general matter, the Defendant is correct that if the adverse action was already ongoing at the time of the protected activity, or is very similar to another adverse action that was taken before the protected activity with no other change in relevant circumstances, logic precludes any inference of causation. However, in the Court’s view, under the unique facts of this case, this broad principle is inapplicable. Certainly, the subject of the retaliation — the assignment to the Nassau preload — was a position that was previously held by Welch prior to his protected activity. However, certain significant events took place in the interim. In particular, the Plaintiff had made a request for an accommodation and was transferred from the Nassau preload to the CHSP. Thus, it is not the case that the activity was consistently ongoing. Nor is it logical to view the fact that it was similar to another adverse action taken before the protected activity in a vacuum. The fact that Welch had been previously accommodated by being transferred out of the Nassau preload in 2006 lends credence to the notion that being transferred back to the Nassau preload was retaliatory. As Welch testified at the trial, DiLibero told Welch that he was going to be “reassigned to the preload operation, the very operation [he] was taken from prior to that because it did not meet [his] restrictions.” (9/8/11 Tr., 170.) Accordingly, the Court denies the Defendants’ motion for judgment as a matter of law as to the Plaintiffs retaliation claims. 3. Failure to Accommodate Claims Next, UPS contends that it is entitled to judgment as a matter of law in connection with the Plaintiffs failure to accommodate cause of action because there is a complete absence of evidence to support the jury’s verdict. As an initial matter, there is no practical impact if this Court were to reverse the jury’s finding that UPS failed to accommodate him with regard to his disability under the NYSHRL because ultimately, the jury found in favor of the Defendant on the disability discrimination causes of action. Nevertheless, for purposes of comprehensiveness, the Court will proceed to rule on the Defendant’s motion in this regard. The issue arises once again as to whether it is proper for the Defendant to raise this in a Rule 50(b) motion. In its initial motion for judgment as a matter of law, the Defendant raised several issues, including: (1) whether Welch is a disabled individual under the ADA, an issue as to which the Defendant ultimately prevailed at the trial (9/13/2011 Tr., at 658); (2) whether Welch engaged in protected activities and whether there was a causal connection with regard to the retaliation claims, discussed above (9/13/2011 Tr., at 666-67); and (3) whether punitive damages were applicable, which the jury ultimately did not award (9/13/2011 Tr., at 676-77.) Thus, the Court may only consider the Defendant’s current arguments as to the failure to accommodate claims if there is a manifest injustice. However, as set forth below, the Court does not find there to be any danger of injustice based upon the jury’s verdict and the Defendant’s renewed motion for judgment as a matter of law as to the failure to accommodate claims is denied. a. As to Whether the Evidence Established Welch is a Qualified Individual under NYSHRL UPS argues that the Plaintiff did not demonstrate at trial that he was a “qualified individual” under the terms of the NYSHRL. At trial, Welch had the burden to establish that: (1) the Defendant was subject to the NYSHRL; (2) that he was disabled within the meaning of this law; (3) he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) that he suffered an adverse employment action because of his disability. See Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir.2001). The question is whether the evidence demonstrated that Welch was otherwise qualified to perform the essential functions of his job with or without reasonable accommodation. The Second Circuit has stated that “[t]he term ‘essential functions,’ which is not defined in the statutes themselves, is generally defined in ADA regulations promulgated by the Equal Employment Opportunity Commission (‘EEOC’) to mean the ‘fundamental’ duties to be performed in the position in question, but not functions that are merely ‘marginal.’ ” Stone v. City of Mount Vernon, 118 F.3d 92, 97 (2d Cir.1997) (citing 29 C.F.R. § 1630.2(n)(1)); see Reville v. Niagara Frontier Transp. Auth., 04 Civ. 0258, 2009 WL 5167645, at *8 (W.D.N.Y. Dec. 20, 2009) (“The employer’s written job description, especially, is given substantial weight” in determining a job’s essential functions) (internal citations and quotations omitted). “Evidence of whether a particular function is essential includes, but is not limited to the employer’s judgment as to which functions are essential, the written job description, the amount of time spent performing the function, the consequences of not requiring the employee to perform the function, the work experience of past employees in the position, and the current work experience of employees in similar positions.” Sharp v. Abate, 887 F.Supp. 695, 699 (S.D.N.Y.1995). UPS now argues that the evidence at trial plainly established that the Plaintiff could not meet the essential functions of the preload supervisor or CHSP positions. In particular, it claims that Welch was unable to meet the essential job functions because he could not lift in excess of, first 40, then 20 pounds, or to work the requisite 9-10 hours per day, or the varying shifts or extended hours as necessary. Moreover, UPS contends that although it may have waived numerous essential job functions, this does not render those job functions non-essential. The Court agrees with UPS as to this general principle of law. See Uhl v. Home Depot U.S.A., Inc., No. 08 Civ. 3064, 2010 WL 3282611, at *5 (E.D.N.Y. Aug. 13, 2010) (“Home Depot crafted a ‘light duty’ position that enabled him to work while excusing him from some undisputed essential functions of a Sales Associate position. But, contrary to Mr. Uhl’s belief, this does not mean that Home Depot previously gave him a ‘reasonable accommodation,’ that it must afford him again. Instead, it supports that Home Depot previously exceeded its legal obligations, by affording him a more than reasonable accommodation. Home Depot’s prior, voluntary effort to accommodate Mr. Uhl in excess of its legal obligations is admirable. But it does not compel Home Depot to continue to accommodate him beyond what the law requires.”); see also Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522, 1528 (11th Cir.1997); Walton v. Mental Health Ass’n. of Southeastern Pennsylvania, 168 F.3d 661, 671 (3d Cir.1999). This is because “[a] reasonable accommodation can never involve the elimination of an essential function of a job.” Shannon v. New York City Transit Auth., 332 F.3d 95, 100 (2d Cir.2003). The Plaintiff claims that the CHSP and PAS positions did not require him to lift or work excessive hours. {See 9/7/2011 Tr., 81-82 (testimony by Welch that he was not required to do any lifting or work excessive hours in his PAS position); 134-35 (testimony by Welch that he was not required to do any lifting or work excessive hours in CHSP position); 9/8/2011: 198.) In any event, the Plaintiff contends that whether lifting and working long hours was “essential” to the supervisor position, as opposed to a “marginal” function, was a question of fact for the jury. Given that the Plaintiffs duty was to supervise a number of loaders and thus not to move packages himself, Welch argues that a reasonable jury could find that lifting was “marginal” to the position. See Russo v. Sysco Food Servs. of Albany, L.L.C., 488 F.Supp.2d 228, 237 (N.D.N.Y.2007) (finding a question of fact as to whether truck driving was an essential function of the transportation supervisor position, in light of the written job description and the frequency with which an employee must perform a function). Notably, the “essential functions” of a job is a fact specific inquiry. See Hall v. United States Postal Service, 857 F.2d 1073, 1079-80 (6th Cir.1988) (reversing a grant of summary judgment on the basis that there was a genuine issue of material fact as to whether a 70-pound lifting requirement was an essential function of a Postal Service distribution clerk, despite the fact that the job description and an affidavit from an employment supervisor stated that it was an essential part of the job.). Determining “whether physical qualifications are essential functions of a job requires the court to engage in a highly fact-specific inquiry .... Such a determination should be based upon more than statements in a job description and should reflect the actual functioning and circumstances of the particular enterprise involved.” Id. at 1079 (emphasis added); see also Henchey v. Town of North Greenbush, 831 F.Supp. 960, 966-67 (N.D.N.Y.1993) (finding a question of material fact to exist as to whether heavy lifting is an “essential function” of the job of a “labore