25-707-cv Raymond v. 1199SEIU National Benefit Fund
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2025 (Argued: January 30, 2026 Decided: July 23, 2026) Docket No. 25-707-cv
SEAN R. RAYMOND SR., Plaintiff - Appellant,
v.
1199SEIU NATIONAL BENEFIT FUND, Defendant - Appellee.
Before: SACK AND PÉREZ, Circuit Judges, PRESKA, District Judge. *
Plaintiff-Appellant Sean R. Raymond Sr. (“Raymond”) appeals from a July 20, 2023 order of the United States District Court for the Southern District of New York (George B. Daniels, J.) granting Defendant-Appellee 1199SEIU National Benefit Fund (“NBF”) summary judgment as to Raymond’s failure-to- accommodate claim, and from the court’s February 24, 2025 order denying Raymond’s motion for a new trial under Rule 59(a) as to his disability discrimination claim. For the reasons set forth below, we agree with Raymond that the district court erred in granting summary judgment to NBF on his failure-to- accommodate claim. However, the district court’s denial of Raymond’s 59(a) motion as to his disability discrimination claim is not reviewable by this Court. We therefore VACATE the district court’s entry of summary judgment, DISMISS the appeal of the district court’s order on Raymond’s Rule 59(a) motion, and REMAND for further proceedings consistent with this opinion.
* Judge Loretta A. Preska, of the United States District Court for the Southern District of New York, sitting by designation. No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
LAUREN NOELLE BECK AND CHELSEA SINCOX (Joseph Bacchi, on the brief), Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY, for Appellant;
RACHEL S. FISCHER (Patrick J. Lamparello, on the brief), Proskauer Rose LLP, New York, NY, for Appellee.
SACK, Circuit Judge:
For nearly 30 years, Plaintiff-Appellant Sean R. Raymond Sr. (“Raymond”)
worked for Defendant-Appellee 1199SEIU National Benefit Fund (“NBF”). In his
most recent role as Outreach Coordinator, Raymond was required to drive to
various healthcare facilities in an assigned area on Long Island to give
presentations to facility workers on union benefits and pensions. During his
employment, Raymond developed a serious vein condition, for which he was
hospitalized multiple times. As a result of this illness, Raymond’s doctor first
approved him to work with “light restrictions,” meaning Raymond had to avoid
prolonged sitting and driving, and after his condition worsened, to avoid sitting
and driving for longer than thirty minutes at a time. Raymond notified NBF of
his limitations, and NBF responded by removing from his service area the four
facilities that were furthest away from Raymond’s home—leaving many facilities
to which it would take Raymond longer than thirty minutes to drive. Raymond
2 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
protested and requested that NBF reassign him to a different area. NBF refused.
Eventually, when Raymond could not return to work under NBF’s conditions,
NBF terminated his employment. Raymond sued, alleging that (1) NBF failed to
provide him with reasonable accommodations as required by the Americans
with Disabilities Act (“ADA”) and that (2) NBF engaged in unlawful disability
discrimination when it terminated him.
The district court (George B. Daniels, J.) granted summary judgment to
NBF on the reasonable accommodation claim, finding that NBF adequately
accommodated Raymond when it removed the four farthest stops from his route,
and that Raymond did not demonstrate that he had requested any other
plausible reasonable accommodation. The district court allowed the disability
discrimination claim to go to trial, where a jury ruled for NBF. After the verdict,
Raymond filed a Rule 59(a) motion for a new trial. He argued that the jury’s
verdict was not supported by the weight of the evidence because NBF did not
accommodate Raymond, and that it was clear that NBF required Raymond to
either return to work “without restriction” or be terminated, which is a per se
violation of the ADA. The district court denied this motion, concluding that a
3 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
reasonable jury could have found that NBF did not fire Raymond due to his
disability. Raymond appeals both decisions.
For the reasons set forth below, we agree with Raymond that the district
court erred in granting summary judgment to NBF on his failure-to-
accommodate claim. However, the district court’s denial of Raymond’s Rule
59(a) motion as to his disability discrimination claim is not reviewable by this
Court. We therefore VACATE the district court’s entry of summary judgment,
DISMISS the appeal of the district court’s order on Raymond’s Rule 59(a)
motion, and REMAND for further proceedings consistent with this opinion.
BACKGROUND
I. Factual Background
Plaintiff-Appellant Sean R. Raymond Sr. was employed by Defendant-
Appellant National Benefit Fund for nearly 30 years. He began his employment
in various administrative roles, first working in the supply room and the mail
room, and then at a desk job in the claims department. In 2003, Raymond was
promoted to Outreach Coordinator. Outreach coordinators engage with
healthcare workers to provide union members with information on pension
applications and estimates and give presentations to them about those benefits.
4 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
As part of their job, outreach coordinators frequently visit healthcare facilities to
discuss these issues with union members. Usually, a coordinator will visit one
facility per day, averaging visits to three or four facilities per week. Due to the
travel requirements of the job, the outreach coordinator job description states
that employees in this position must be able to “[s]it[] in a normal seated position
for extended periods of time.” Joint App’x 166.
Outreach coordinators each service nursing homes, hospitals, and other
medical and care facilities within a specific zone. Each coordinator is assigned to
a specific zone by the Director of Outreach, who was, at all relevant times, Frank
Sossi (“Sossi”). 1
After his promotion to Outreach Coordinator, Raymond serviced a variety
of zones across New York State, including in upstate New York, Long Island,
Brooklyn, and Queens. Between 2010 and 2015, Raymond was at times assigned
to Area I, which covered most of Long Island, and at other times to Area J, which
covered the borough of Queens and western Long Island. Because Area J
1 It is unclear how many different zones outreach coordinators service, but it appears there are at least Areas A–J, presumably meaning that there are at least 10 different zones to which a coordinator could be assigned.
5 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
covered the most nursing homes—nearly 50—Sossi sometimes staffed the Area
with two coordinators who would split the zone. When Raymond worked Area
J during this time period, he was assigned to only half of the zone, and he could
reach most of the facilities in that half in a forty-five minute drive or less from his
home in Elmont, New York. Area I, however, extends to the far eastern tip of
Long Island, meaning that visiting some of the facilities required Raymond to
drive for several hours from his home.
In 2010, Raymond was diagnosed with superficial thrombophlebitis, which
can cause “painful, sometimes life-threatening blood clots.” Joint App’x 254. On
June 7, 2010, Raymond informed NBF of his diagnosis by sending his employer a
notice and proof of claim for disability benefits. Raymond continued his role as
Outreach Coordinator after his diagnosis, and he worked in this role for five
years thereafter without incident.
In August 2015, Raymond suffered a pulmonary embolism, which caused
life-threatening blood clots that required hospitalization. He was then placed on
short-term disability leave for twenty-six weeks, until January 2016. When he
returned to work in January, Raymond provided NBF with a doctor’s note that
stated that he should work with “light duties restrictions,” meaning “half of the
6 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
standing, walking and lifting that he normally does.” Joint App’x 696. It also
noted that “[s]itting [was] advisable for a period of 4 weeks” before Raymond
could “return to normal job duties.” Id. Because “[Raymond] mostly sits,” Sossi
acknowledged in an internal email chain that NBF “c[ould] accommodate the
request” to limit Raymond’s time on his feet. Joint App’x 698. Cleared to return
to work with these restrictions, Raymond resumed servicing half of Area J. He
manned this zone for two years without any problems.
In 2017, one of Raymond’s colleagues left NBF, leaving an area without an
outreach coordinator. NBF informed Sossi, who managed coordinator
assignments, that it would not authorize him to hire someone new to fill this
position. To fix this coverage gap, Sossi shuffled around the existing outreach
coordinators. Area J—consisting of 50 facilities fairly close together in Queens
and on the western part of Long Island—which was previously serviced by two
coordinators was now to be serviced by only one. Sossi gave this new Area J
assignment to an outreach coordinator named Lillian Ferraro, with whom he had
previously had a romantic relationship. Sossi assigned Raymond to Area I,
7 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
which although it contains fewer facilities, covers much more territory than Area
J. Joint App’x 249, 2626. 2
In December 2017, Raymond emailed his supervisors, including Sossi, to
express concerns about his reassigned route. He attached to his email a doctor’s
note that stated that “[i]t should be clearly evident that there are restrictions in
his physical activities not only to diminish the recurrence of genetically provoked
deep thrombophlebitis of the legs[,] but also life threatening pulmonary
2 Although Sossi and NBF never admitted that Area J requires far shorter drives than Area I, the map of Area I and Area J shops above makes that clear.
8 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
embolism.” Joint App’x 2548. The note also informed NBF that some of the
doctor’s instructions should be “strictly followed,” such as to “[a]void
prolong[ed] walking, standing, sitting (driving) and squatting.” Id. In response,
Sossi acknowledged in an internal email that two of Raymond’s assigned
facilities were more than ninety minutes away from his home, five were between
an hour and seventy-five minutes away, nine under an hour, and fifteen less than
thirty minutes from his home. And, Sossi wrote, because “[t]he job responsibility
for an Outreach Coordinator states clearly that there will be extensive travel in
the Tri-State area, . . . if [Raymond] or anyone can’t meet that requirement then
he may want to reconsider being an Outreach Coordinator.” Joint App’x 2636.
Despite his concerns, Raymond began servicing Area I on January 8, 2018.
On January 12, 2018, Sossi informed Raymond that the four facilities furthest
from his house would be serviced by a different outreach coordinator. Raymond
worked Area I—minus the four furthest facilities—without incident for six
months.
Raymond’s condition worsened, however, and, in the spring of 2018, he
was hospitalized. On June 20, 2018, Raymond sent NBF a letter from his doctor
explaining that Raymond’s “left deep venous system . . . is permanently
9 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
damaged by the phlebitis, so much so that the blood in the left leg is going in
reverse instead of draining towards his heart when he is standing.” Joint App’x
724. Due to the permanent damage, the doctor “strongly recommend[ed] that
[Raymond] should absolutely avoid prolonged continuous standing, walking,
sitting or driving without elevating his legs for more than thirty minutes
continuously.” Id. Raymond briefly returned to work, but shortly thereafter, he
was hospitalized again, during which his doctor recommended he take short-
term disability leave. NBF did not respond to the doctor’s note or otherwise
contact Raymond to discuss its contents.
Sometime on or around July 27, 2018, Raymond again complained to NBF
about his area reassignment and the length of his drives. Although it is not clear
exactly what was said, at the very least, he communicated that the new route
required “[m]uch longer driving” of sometimes two to three hours, that he
“[i]nformed Frank [Sossi]” that he “could not do the amount of driving due to
[m]edical reasons” and provided a doctor’s note but was “reassigned anyway,”
and that his leg vein is “now dead.” Joint App’x 736. Still having not received a
response, on July 31, Raymond sent a letter to NBF’s human resources
department (“HR”) requesting that HR respond to the doctor’s note. NBF’s
10 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
Assistant Director of HR Kevin Hurley then called him. Raymond asked Hurley
if he could have his old assignment back—in other words, he asked to be
assigned back to Area J, which required more frequent but fewer drives than his
current Area I assignment. Hurley denied this request, explaining that NBF had
already made special exceptions for Raymond when they removed the four
furthest facilities from his route.
Following the advice of his doctor, Raymond began short-term disability
leave on August 6, 2018. While on leave, his doctor informed NBF’s HR that
Raymond could return to work as long as he “[a]void[ed] prolonged
standing/sitting/squatting.” Joint App’x 2615. HR informed Raymond’s boss,
Sossi, of these limitations via email. Sossi responded five minutes later,
explaining that “[t]he position requires sitting, standing and driving for a
prolonged period of time” and so “[u]nfortunately [NBF] can’t accommodate this
request.” Id.
After this exchange, NBF insisted that Raymond could only return to work
if he had a “clearance note stating . . . no restrictions.” Joint App’x 2520; see also
id. at 2542 (HR explaining that Raymond “can only come back to work . . . if
11 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
[NBF] ha[s] medical clearance from his doctor . . . with no restrictions”); id. at
2555 (Hurley asking if Raymond was “cleared to return with no restrictions”).
On January 17, 2019, Raymond emailed Richard Kral, NBF’s HR Manager,
asking NBF to implement the “reasonable accommodations” that his doctor’s
note of January 15 had outlined. Joint App’x 191–92. Kral responded that
Raymond’s “request was discussed with department management[,] and a
determination was made that the Fund could not accommodate the request given
the fact that these restrictions would negatively impact the ability for [Raymond]
to perform the essential functions of [his] job as an Outreach Coordinator.” Id. at
191.
On February 1, 2019, Raymond sent a letter to NBF’s HR Director, Richard
Whitter, asking Whitter to reconsider NBF’s decision to not accommodate his
medical restrictions. In that letter, Raymond explained that company policy
states that “an employee with a disability should consult with Human Resources
to candidly discuss possible accommodations,” and that “the organization will
conduct an investigation to identify possible accommodations that will help
eliminate the limitations resulting from the disability.” Joint App’x 195. He
asked whether NBF followed that process when it swiftly denied his request, and
12 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
if it did, he asked about “what possible accommodations were identified.” Id.
Raymond also suggested some possible accommodations, including adjusting or
reallocating assignments so that Raymond had fewer locations that required
“extended driving”; alternatively, he proposed moving to a different position
that did not require that much driving. Joint App’x 195–96.
On February 4, Whitter responded that “a determination was made that
[NBF] is unable accommodate the request because these restrictions would
negatively impact [Raymond’s] ability to perform the essential functions of [his]
job as an Outreach Coordinator. This determination has not changed.” Joint
App’x 150. He did not answer Raymond’s question about company policy, nor
did he engage with either of the two alternative solutions proposed by Raymond.
On February 6, 2019, unable to return to work without any restrictions,
Raymond applied for long-term disability leave, and NBF immediately
terminated his employment. In a letter notifying Raymond of this decision, Kral
explained that Raymond was being fired “[a]s a result of . . . [his] inability to
return to work, without any restrictions.” Joint App’x 2564. The letter noted that
“if in the future [Raymond is] medically cleared to return to employment
without restrictions,” he was “welcome to apply for any suitable positions.” Id.
13 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
II. Procedural History
On December 8, 2020, Raymond commenced this suit in the Southern
District of New York. He alleged disability discrimination under the Americans
with Disabilities Act, claiming that NBF violated the Act by: (1) denying his
request for reasonable accommodations and (2) firing him due to his disability.
After mediation and discovery, NBF moved for summary judgment,
seeking dismissal of Raymond’s claims in their entirety. On July 20, 2023, the
court (Daniels, J.) granted in part and denied in part NBF’s motion.
A. Failure-to-Accommodate Claim
The district court granted NBF summary judgment as to Raymond’s
failure-to-accommodate claim, finding that Raymond failed to show a genuine
dispute of material fact that, while employed by NBF, NBF refused to make
reasonable accommodations for his disability. Although the district court agreed
that Raymond was disabled and that NBF regarded him as disabled, it concluded
that NBF “repeatedly accommodated [Raymond’s] perceived disability,” first by
limiting the amount of heavy things Raymond had to carry, then by exempting
14 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
him from servicing the four farthest facilities. 3 Raymond v. 1199SEIU Nat’l Benefit
Fund, No. 20-CV-10380 (GBD), 2023 WL 4637626, at *6 (S.D.N.Y. July 20, 2023)
(“Raymond I”).
In reaching this conclusion, the district court noted that “[e]mployers are
not required to provide a perfect accommodation,” nor are they required to
“create a new position for an employee seeking an accommodation.” Id. The
court reasoned that the “only request that [NBF] refused was [Raymond’s]
transfer back to his previous assignment of Area J.” Id. It found that this request
was “not a plausible ‘reasonable accommodation,’” because Raymond did not
provide any evidence “that demonstrates [that] Area J as opposed to modified
Area I could have resolved issues with his revised restrictions.” Id. From this,
Judge Daniels concluded that Raymond “present[ed] no evidence that [NBF]
refused to make any specific reasonable accommodation that was necessary to
enable [Raymond] to perform the essential functions of his job as an Outreach
Coordinator.” Id. at *7. And as for Raymond’s January 17, 2019 email
“requesting ‘reasonable accommodations’” and his February 1, 2019 letter asking
NBF to “identify possible accommodations,” the district court found that
3 Unless otherwise indicated, we omit all internal quotation marks, alteration marks, emphases, footnotes, and citations when quoting cases. 15 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
Raymond did not “reveal any specific accommodations that [he] requested which
[NBF] failed to provide,” and therefore Raymond did not sufficiently allege a
genuine dispute of material fact as to whether NBF refused to make reasonable
accommodations for his disability. Id. On this basis, the district court granted
NBF’s motion for summary judgment on Raymond’s failure-to-accommodate
claim.
The district court denied NBF’s motion for summary judgment on the
disability discrimination claim. In doing so, the court first recognized that
Raymond “proffered sufficient evidence that he has a disability under the ADA,”
and that NBF had notice of Raymond’s disability. Id. at *4. The court also
acknowledged that “[t]he parties do not dispute that Defendant NBF is an
employer subject to the ADA.” Id. Nevertheless, it concluded that NBF failed to
meet its burden of “demonstrat[ing] as a matter of law that [Raymond] was not
fired because of his disability” by “show[ing] that [he] was either incapable or
unwilling to do his job, . . . provid[ing] a non-discriminatory reason to terminate
his employment.” Id. Similarly, the district court also ruled that “a reasonable
jury could find that [Raymond] was qualified to perform essential functions of
16 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
his job with reasonable accommodations.” Id. at *5. This claim therefore
proceeded to trial.
B. Disability Discrimination Claim
Trial on Raymond’s disability discrimination claim lasted from June 24,
2024, to July 1, 2024. On July 1, the jury returned a verdict for NBF, and the court
entered judgment reflecting this verdict on July 2.
On July 30, 2024, Raymond filed a motion for a new trial under Rule 59(a),
arguing that the jury’s verdict contravened the weight of the evidence. He also
asked the district court to amend its summary judgment order on the failure-to-
accommodate claim under Rule 59(e). The district court denied Raymond’s
motion as to both granting a new trial and amending the summary judgment
order.
As to the motion for a new trial, the district court found that “[t]here was
sufficient evidence introduced at trial to support the jury’s verdict that Raymond
was not terminated due to his disability.” Raymond v. 1199 SEIU Nat’l Benefit
Fund, No. 20-CV-10380 (GBD) (GWG), 2025 WL 588412, at *2 (S.D.N.Y. Feb. 24,
2025) (“Raymond II”). First, it analyzed whether Raymond’s proposed
alternatives constituted reasonable accommodations under the ADA. It 17 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
concluded that a reasonable jury could have found that NBF could not have
reasonably accommodated Raymond by providing him with shorter driving
routes or routes that allowed for frequent breaks, because (1) “[t]here was . . . no
evidence presented” at trial—other than Raymond’s own testimony—that
alternative routes “covered any shorter distances” than his existing assignment;
(2) “NBF was not required to reassign other coordinators or ‘create’ new areas to
accommodate Raymond’s restrictions”; and (3) “there [was] no evidence that
Raymond suggested any . . . other . . . accommodations to NBF, besides returning
to his original assignment, which was no longer available.” Id. at *2, 3.
Ultimately, the district court concluded that “NBF had already attempted to
accommodate Raymond in accordance with its legal duty when it removed from
his route the four farthest facilities in Area I.” Id. at *3.
Next, the court analyzed whether the evidence presented at trial
“unequivocally showed” that Raymond was terminated due to his disability. Id.
Though it noted that “terminating an employee because they cannot return to
work without restrictions . . . is a per se violation of the ADA,” the court found
that the “evidence did not support a finding that NBF actually had or enforced
such a policy.” Id. The district court based this conclusion not on NBF’s internal
18 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
emails in the weeks before Raymond was fired that emphasized his need to
return without restrictions, but on NBF’s earlier communications that allowed
Raymond to return to work with light restrictions. [SPA6.] And it went a step
further, finding that not only did the evidence not show that NBF required
Raymond to return to work without any restrictions or accommodations, but that
“the evidence showed that NBF did attempt to accommodate Raymond’s
prolonged-driving restriction by removing the four farthest stops on his Area I
route.” Id. (emphasis in original). The district court therefore found that “the
jury reasonably concluded that NBF’s unwillingness to guarantee that Raymond
would not have to drive more than thirty minutes at a time was not evidence of
NBF’s discriminatory animus against the disabled.” Id. Rather, “NBF was in fact
motivated by legitimate business judgment,” and so “it was not unreasonable for
the jury to conclude that NBF fired Raymond not because of his disability, but
because he was unwilling or unable to do his assigned job.” Id. The court denied
Raymond’s motion for a new trial.
The district court then denied Raymond’s motion to amend the summary
judgment order, finding that “he d[id] not present . . . any new information or
evidence that [it] did not already consider at summary judgment.” Id. at *4.
19 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
And, reiterating its position in its summary judgment opinion, the district court
reasoned that it “properly decided that there was no genuine issue of material
fact as to Raymond’s failure-to-accommodate claim” because (1) NBF did
accommodate Raymond, “most notably by reassigning his four farthest facilities
in Area I,” and (2) Raymond did not show that he requested any accommodation
other than a return to his old Area J assignment. Id.
DISCUSSION
I. Applicable Law A. Standard of Review
“We review de novo a district court’s decision to grant summary judgment,
construing the evidence in the light most favorable to the party against whom
summary judgment was granted and drawing all reasonable inferences in that
party’s favor.” Bey v. City of New York, 999 F.3d 157, 164 (2d Cir. 2021). Although
we resolve ambiguities in favor of the nonmoving party, Uviles v. City of New
York, 130 F.4th 27, 30–31 (2d Cir. 2025), “conclusory statements, conjecture, or
speculation by the party resisting the motion will not defeat summary
judgment,” Kulak v. City of New York, 88 F.3d 63, 70 (2d Cir. 1996). “Summary
judgment is required if ‘there is no genuine dispute as to any material fact and
20 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
the movant is entitled to judgment as a matter of law.’” United States v. Sum of
$185,336.07 U.S. Currency Seized from Citizen’s Bank Acct. L7N01967, 731 F.3d 189,
192 (2d Cir. 2013) (quoting Fed. R. Civ. P. 56(a)).
B. Relevant Law
To prevail on a failure-to-accommodate claim under the ADA, an
employee must show that:
(1) [he] is a person with a disability under the meaning of the ADA; (2) an employer covered by the statute had notice of his disability; (3) with reasonable accommodation, [the employee] could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations.
McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 97 (2d Cir. 2009). For the
purpose of summary judgment, the district court in this case concluded that
Raymond met his burden on the first two elements—that he is disabled within
the meaning of the ADA and that NBF, an employer covered by the ADA, had
notice of his disability. His appeal thus turns on the other two factors: whether
(1) Raymond could perform his job with a reasonable accommodation and (2)
NBF refused to make such accommodations.
In pertinent part, a reasonable accommodation under the ADA is one that
“enable[s] an individual with a disability who is qualified to perform the
21 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
essential functions of that position; or . . . to enjoy equal benefits and privileges of
employment.” 29 C.F.R. §§ l630.2(o)(1)(ii)–(iii). 4 Such accommodations may
include, but are not limited to, “[j]ob restructuring; part-time or modified work
schedules; reassignment to a vacant position; acquisition or modifications of
equipment or devices; appropriate adjustment or modifications of examinations,
training materials, or policies; the provision of qualified readers or interpreters;
and other similar accommodations for individuals with disabilities.” Id. §
l630.2(o)(2)(ii). “A covered entity is required, absent undue hardship, to provide
a reasonable accommodation” to any employee who meets the definition of
disability under the “actual disability” or “record of” prongs as defined by the
regulations. Id. § l630.2(o)(4); see also id. § 1630.2(g)(i) & (ii). 5
4 Regulations promulgated by the Equal Employment Opportunity Commission define “essential functions” as “the fundamental job duties of the employment position the individual with a disability holds or desires.” 29 C.F.R. § 1630.2(n)(1) (clarifying that the term “does not include the marginal functions of the position”); id. § 1630.2(n)(2)–(3) (providing a non-exclusive list of reasons and evidence that would support a finding that a job function is essential). Courts “must give considerable deference to an employer’s judgment regarding what functions are essential for service in a particular position.” D’Amico v. City of New York, 132 F.3d 145, 151 (2d Cir. 1998). Ultimately, however, determining the essential functions of the job is a quintessential fact-bound inquiry best suited for the jury. See McMillan v. City of New York, 711 F.3d 120, 126 (2d Cir. 2013). 5 The regulations provide three alternative prongs of “disability” pursuant to which an
individual may establish coverage: (i) the “actual disability” prong; (ii) the “record of”
22 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
“The hallmark of a reasonable accommodation is effectiveness.” Dean v.
Univ. at Buffalo Sch. of Med. & Biomedical Scis., 804 F.3d 178, 189 (2d Cir. 2015). To
satisfy the ADA, an “accommodation need not be perfect or the one most
strongly preferred by the [plaintiff], but it still must be effective.” Id. “An
ineffective ‘modification’ or ‘adjustment’ will not accommodate a disabled
individual’s limitations.” U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 400 (2002)
(emphases in original). That is, while an employer need not provide the exact
accommodation requested by an employee, if the accommodation does not
enable the disabled employee to perform the job’s essential functions, that
accommodation is not a reasonable one.
Still, a “‘reasonable accommodation’ does not mean elimination of any of
the job’s essential functions.” Gilbert v. Frank, 949 F.2d 637, 644 (2d Cir. 1991). In
enacting the ADA, “Congress intended simply that disabled persons have the
same opportunities available to them as are available to nondisabled persons.”
Wernick v. Fed. Rsrv. Bank of N.Y., 91 F.3d 379, 384 (2d Cir. 1996). And to
prong; and (iii) the “regarded as” prong. 29 C.F.R. § 1630.2(g)(1)(i)–(iii). These definitions largely mirror and expand upon the statutory definitions of “disability” under the ADA. See 42 U.S.C. § 12102(1)(A)–(C). Again, because the district court found that Raymond demonstrated a disability under the ADA, these nuances are not outcome determinative for purposes of this appeal. 23 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
eliminate entirely an essential function of the job would be to favor individuals
with disabilities over those without. See id. at 384–85.
Ultimately, the process of a failure-to-accommodate claim is as follows:
First, if the employer provided an accommodation, the court examines
whether the provided accommodation was reasonable under the ADA—in other
words, whether it was “effective.” See Noll v. Int’l Bus. Machs. Corp., 787 F.3d 89,
94–95 (2d Cir. 2015). If so, the inquiry stops there. See id. at 94.
If not, then the plaintiff bears the “burden of production,” which requires
him to show the existence of a “plausible accommodation.” Barnett, 535 U.S. at
402. To demonstrate the existence of a plausible accommodation at the summary
judgment stage, a plaintiff “need only show that an ‘accommodation’ seems
reasonable on its face.” Id. at 401. Such a showing will “defeat a
defendant/employer’s motion for summary judgment.” Id. The burden then
shifts to the employer to show, at trial, that a particular accommodation “would
cause [the employer] to suffer an undue hardship.” Borkowski v. Valley Cent. Sch.
Dist., 63 F.3d 131, 138 (2d Cir. 1995).
With these principles in mind, we turn to the issues before us on appeal.
24 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
II. Failure-to-Accommodate Claim
First, we must analyze whether NBF’s accommodation—removing the
four farthest facilities from Raymond’s route—was reasonable under the ADA
and our caselaw. 6 Even if we conclude that it was not reasonable, our inquiry
does not end there. Because “we may affirm a grant of summary judgment on
any basis that finds ‘sufficient support in the record, including grounds not
relied on by the district court,’” Dean, 804 F.3d at 189, we must further consider
whether Raymond’s proposed accommodations are reasonable on their face, see
Noll, 787 F.3d at 94.
A. Removal of the Four Farthest Stops
We first conclude that the district court applied an incorrect legal standard
when analyzing whether NBF’s removal of the four stops was a reasonable
accommodation under the ADA.
6Because determining the essential functions of Raymond’s job is a quintessential fact- bound inquiry best suited for the jury, see McMillan, 711 F.3d at 126, for purposes of our assessment of the district court’s summary judgment decision on the failure-to- accommodate claim, we assume without deciding that the essential functions of Raymond’s job do not require driving for more than thirty minutes uninterrupted because that is a reasonable inference we can draw from the summary judgment record, see Bey v. City of New York, 999 F.3d 157, 164 (2d Cir. 2021). 25 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
The district court opinion granting summary judgment to NBF on the
failure-to-accommodate claim stated that “[d]efendant repeatedly
accommodated [Raymond’s] perceived disability.” Raymond I, 2023 WL 4637626,
at *6. It noted that, after Raymond’s December 2017 doctor’s note recommended
against prolonged sitting and driving, NBF reassigned Raymond’s four farthest
stops to another outreach coordinator. Id. The court then declared, without
further analysis, that this reassignment “show[s] that [NBF] responded to
[Raymond’s] expressed needs,” providing a reasonable accommodation, and “no
reasonable jury could conclude that [NBF] refused to make reasonable
accommodations in response to [Raymond’s] requests.” Id. at *6–7. But any
action taken by an employer, even one that reduces the employee’s workload or
addresses some of the employee’s needs, is not necessarily a reasonable
accommodation. Rather, to qualify as a reasonable accommodation, the
accommodation “must be effective.” Dean, 804 F.3d at 189. Or, to state it
differently, if the employer’s response does not “accommodate a disabled
individual’s limitations,” the response is “ineffective.” Barnett, 535 U.S. at 400.
To be an effective accommodation, then, the removal of the four stops
must address Raymond’s physical limitations and enable him to perform the
26 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
essential functions of his job. Because the district court did not consider whether
the route change accommodated Raymond’s limitations, and instead apparently
treated any action that NBF took to respond to Raymond’s request as a
reasonable accommodation, it applied an incorrect legal standard.
But even using the correct standard, we cannot say whether removing the
four stops was a reasonable accommodation. Whether a given accommodation is
reasonable is a “‘fact-specific’ question that often must be resolved by a
factfinder.” Noll, 787 F.3d at 94. In other words, “determinations on this issue
must be made on a case-by-case basis,” Wernick, 91 F.3d at 385, and often cannot
be resolved at summary judgment.
Many questions of fact remain. First, the record is unclear as to the extent
of Raymond’s limitations. While his June 27, 2018 doctor’s note does suggest
that Raymond cannot drive for more than thirty minutes at a time, it is up to the
jury to decide whether the note accurately described Raymond’s physical
limitations. See Tafolla v. Heilig, 80 F.4th 111, 122–23 (2d Cir. 2023); see also
Capobianco v. City of New York, 422 F.3d 47, 55 (2d Cir. 2005) (“[U]nsworn letters
from physicians generally are inadmissible hearsay that are an insufficient basis
for opposing a motion for summary judgment.”). At trial, NBF would have the
27 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
opportunity to present any evidence that may contradict the doctor’s note, and
the jury, as fact-finder, could determine what weight, if any, to give the note. 7
Second, even if it were undisputed that Raymond cannot sit for more than
thirty minutes at a time, there is a dispute of fact as to whether his assignment in
Area I required him to drive uninterrupted for longer than that. By NBF’s own
account, removing the four farthest stops still left Raymond with at least nine
facilities that were over thirty minutes away from Raymond’s home. See Joint
App’x 2636–37 (internal email acknowledging that after the route changes,
Raymond’s area still included “9 shops less than 1 hour drive” but more than
thirty minutes from Raymond’s home, “5 shops less than 1:15min drive,” and “2
shops more than 1:30 min” from his home). But the parties dispute whether
these facility visits required more than thirty minutes of continuous driving.
Compare, e.g., id. at 1081 (fellow Outreach Coordinator testifying that he could
“pull over” and “stretch” during his drives), with id. at 256 (Raymond’s affidavit
stating that “outreach coordinators are not permitted to take breaks while
7 NBF did, at trial, proffer evidence to cast doubt on Raymond’s alleged physical limitations. But that evidence does not appear to be in the summary judgment record. We therefore decline to credit it, and leave it up to the district court on remand to decide whether to reopen the summary judgment record (for this and other contested facts) or to proceed to trial on the failure-to-accommodate claim. 28 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
traveling”). The extent of Raymond’s physical limitations and whether NBF’s
response reasonably accommodated them are therefore questions of fact for the
district court and the jury, as finder of fact, to consider on remand.
B. Raymond’s Proposed Accommodations
Even if we cannot conclude that, as a matter of law, NBF provided
reasonable accommodations as required under the ADA, NBF can still prevail if
Raymond did not meet his burden at the summary judgment stage that any
facially reasonable accommodations existed.
The district court determined that Raymond had proposed “only” one
alternative accommodation: reassignment back to Area J. Raymond I, 2023 WL
4637626, at *6. It concluded that the request was not a “plausible” one because
“[t]here is no evidence that Area J is materially different from [NBF’s] prior
accommodation of removing the four farthest facilities in Area I.” Id. But there
is evidence in the record supporting an inference that Area J requires less
driving. A map of Area J and Area I shows that the facilities in Area J are
concentrated in Queens and western Long Island, closer to Raymond’s home.
Area I, by contrast, is spread across middle and eastern Long Island. Even if you
remove the four farthest stops, a reasonable jury could interpret the map as
29 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
showing that, at least measured by distance, Raymond’s assignment to Area I
requires longer drives than Area J. And Raymond himself testified that Area J
would have required “less driving.” 8 Joint App’x 109. Raymond also testified
that because the drives in Area J allowed him to take local roads, he could pull
over and rest his legs as needed, which he claimed he could not do in Area I.
NBF argues that Raymond’s request to be reassigned back to Area J is not a
plausible accommodation because Area J was not a vacant position. It is true
that, as an example of acceptable accommodations, the regulations promulgated
by the Equal Employment Opportunity Commission (“EEOC”) list
“reassignment to a vacant position.” 29 C.F.R. § l630.2(o)(2)(ii) (emphasis added).
And “accommodation is reasonable only if its costs are not clearly
disproportionate to the benefits that it will produce.” Borkowski, 63 F.3d at 138.
But we think that NBF’s argument is flawed for two reasons.
First, a reasonable jury could conclude that Raymond is not requesting to
be transferred to a new position: His position is Outreach Coordinator; he may
8The district court acknowledged this testimony, but seems not to have credited it. At the summary judgment stage, this appears to have been error. See McMillan, 711 F.3d at 127–28 (relying solely on plaintiff’s testimony that his proposed accommodation would allow him to perform the essential functions of his job to defeat summary judgment). 30 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
merely be asking to be given a new assignment under that position. Indeed,
neither the ADA nor the EEOC regulations define the term “position” or
“assignment.” So while normally a “plaintiff seeking to hold the employer liable
for failing to transfer [him] to a vacant position as a reasonable accommodation
must demonstrate that there was a vacant position into which [he] might have
been transferred,” Jackan v. N.Y. State Dep’t of Lab., 205 F.3d 562, 567 (2d Cir.
2000), such a requirement may not apply here.
Second, even if we view the “position” as filled, which ordinarily defeats
an employee’s claim, a normally unreasonable accommodation can be found to
be reasonable, on a case-by-case basis, where the employee’s desired
accommodation aligns with company practice. C.f. Barnett, 535 U.S. at 404–05
(reasoning that while a requested accommodation may be unreasonable where it
requires an employer to bypass its seniority system, that same accommodation
may be reasonable if the employer frequently ignores the seniority system such
that “one more departure . . . will not likely make a difference”). In other words,
if NBF frequently shuffles employees into non-vacant positions, then Raymond’s
reassignment request might be a plausible accommodation.
31 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
It is clear from the record that Sossi, Raymond’s boss, frequently
reassigned outreach coordinators to different areas. What is not clear, however,
is whether this was only done to fill existing vacancies, or whether areas were
frequently passed between existing outreach coordinators. And that detail
matters. “[W]e do not read the ADA as requiring affirmative action in favor of
individuals with disabilities, in the sense of requiring that disabled persons be
given priority in hiring or reassignment over those who are not disabled.”
Wernick, 91 F.3d at 385. Thus, if NBF never shuffles around the assignments of
existing outreach coordinators, then Raymond’s proposal to switch back to Area
J—which was being serviced by his colleague—would appear to be one that
gives him an unfair priority in reassignment. The district court must determine,
on remand, whether this request is plausible, keeping in mind that the plaintiff
32 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
bears only a “light burden of production” as to the facial reasonableness of a
proposed accommodation. 9 McBride, 583 F.3d at 97 n.3.
III. Disability Discrimination Claim
Raymond also argues that the district court erred in denying his Rule 59(a)
motion for new trial. But this denial is not an appealable order.
Our caselaw on this issue is somewhat confounding. Just last year, we
concluded that there is “ambiguity in our precedents” regarding whether a
district court’s denial of a Rule 59(a) motion for a new trial on weight-of-the-
evidence grounds is reviewable. See Ortiz v. Stambach, 137 F.4th 48, 71 (2d Cir.
2025) (collecting cases). We doubt, though, that our precedents can be viewed
that way. Instead, we conclude that our precedents firmly establish that such a
denial is not reviewable on appeal.
9 In his email requesting to be moved back to Area J, Raymond also proposed another accommodation in addition to area reassignment—assignment to a different position altogether. See Joint App’x 195–96 (Raymond asking whether NBF considered moving him to a job that “require[d] less extended driving” (internal quotation marks omitted)). Because Raymond “bears the burden of proving that such a vacancy existed,” Jackan, 205 F.3d at 564, and because Raymond identified no such open positions, this request is not plausible on its face. Additionally, in his briefs before us, Raymond suggests that NBF’s “refusal to engage in an interactive process” regarding possible accommodations “resolve[s] the issue in [] Raymond’s favor on summary judgment.” Appellant’s Br. at 38 n.8. At oral argument, however, Raymond’s counsel disclaimed an interactive process claim, see Oral Arg. at 1:10–1:35, and so we do not consider the issue here. 33 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
We have made the (seemingly odd, we think) distinction that:
appellate review of a district court’s decision as to whether a jury verdict was against the weight of evidence “is warranted in the rare case where a trial judge rejects a jury’s verdict as against the weight of the evidence . . . but is not warranted in the far more frequent circumstance where a trial judge denies a ‘weight of the evidence’ challenge and leaves in place a jury verdict supported by legally sufficient evidence. In the latter circumstance, the loser’s only appellate recourse is to challenge the legal sufficiency of the evidence. The loser is also entitled to argue to the trial judge that the verdict is against the weight of the evidence and to obtain a new trial if the judge can be persuaded, but the denial of that challenge is one of those few rulings that is simply unavailable for appellate review.”
Ferreira v. City of Binghamton, 975 F.3d 255, 265–66 (2d Cir. 2020) (quoting
Stonewall Ins. Co. v. Asbestos Claims Mgmt. Corp., 73 F.3d 1178, 1199 (2d Cir. 1995)).
In other words, Ferreira reads Stonewall as saying that the reviewability of a
Rule 59(a) weight-of-the-evidence decision depends on the outcome of the
district judge’s decision: If the district judge overturns the jury verdict on weight-
of-the-evidence grounds, it is reviewable; if the judge upholds a jury verdict over
a losing party’s motion that the verdict contravenes the weight of the evidence,
that decision is not reviewable. That is, if a district court denies a Rule 59(a)
motion to vacate a verdict, we cannot review that denial.
34 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
Raymond’s appeal of the district court’s denial of his Rule 59(a) motion on
weight-of-evidence grounds is exactly the type of challenge that Stonewall and
Ferreira forbid. Because we cannot review the district court’s order, we must
dismiss for lack of appellate jurisdiction. See Dutch Am. Mercantile Corp. v.
Eighteenth Ave. Land Co., 302 F.2d 636, 637 (2d Cir. 1962).
***
We do note, however, what seems to us as oddness of this non-
reviewability precedent. All of our sister circuits appear to allow review of Rule
59(a) motions where a judge denies a losing party’s weight-of-the-evidence
motion. See, e.g., Correia v. Fitzgerald, 354 F.3d 47, 54 (1st Cir. 2003); Leonard v.
Stemtech Int’l Inc., 834 F.3d 376, 386 (3d Cir. 2016); Gray v. Bd. of Cnty. Comm’rs of
Frederick Cnty., 551 F. App’x 666, 675 (4th Cir. 2014); Foradori v. Harris, 523 F.3d
477, 497 (5th Cir. 2008); Mys v. Mich. Dep’t of State Police, 886 F.3d 591, 599 (6th
Cir. 2018); Saathoff v. Davis, 826 F.3d 925, 933 (7th Cir. 2016); Russell v. Anderson,
966 F.3d 711, 724 (8th Cir. 2020); Williams v. Gaye, 895 F.3d 1106, 1127 (9th Cir.
2018); Escue v. N. OK Coll., 450 F.3d 1146, 1156–57 (10th Cir. 2006); Dudley v. Wal-
Mart Stores, Inc., 166 F.3d 1317, 1320 (11th Cir. 1999); Curry v. Dist. of Columbia,
195 F.3d 654, 658–59 (D.C. Cir. 1999); Lubby Holdings LLC v. Chung, 11 F.4th 1355,
35 No. 25-707-cv Raymond v. 1199SEIU National Benefit Fund
1361 (Fed. Cir. 2021). But of course, this panel is bound by our current
precedent. 10
CONCLUSION
We have considered the parties’ remaining arguments on appeal and
conclude that they are without merit. For the reasons explained above, we
VACATE the district court’s entry of summary judgment, DISMISS the appeal
of the district court’s order on Raymond’s Rule 59(a) motion, and REMAND for
further proceedings consistent with this opinion.
10 We must follow the precedent laid out by our Court “unless and until it is reconsidered by our court sitting in banc (or its equivalent) or is rejected by a later Supreme Court decision.” United States v. Sterkaj, 138 F.4th 95, 99 (2d Cir. 2025). 36