The jury in this racial discrimination case found that the Village of Freeport violated Section 1981 and Title VII in appointing an Hispanic police officer (Bermudez) as Police Chief instead of the plaintiff (Barrella), a white male. That $1.350 million verdict is gone because the trial court allowed the plaintiffs to put on lay witnesses who told the jury they thought the police chief appointment was racially-motivated. Since that kind of opinion testimony is prohibited under the rules of evidence, the Village gets a new trial.
The case is Village of Freeport v. Barrella, decided on February 16. I wrote about the first part of the ruling at this link, which ruled that "Hispanic" is a race under Title VII and Section 1981. That interesting discussion segued into the more traditional appellate analysis about whether the Village received a fair trial. The Court of Appeals (Cabranes, Leval and Lohier) says the Village did not get a fair trial, so the Eastern District of New York must empanel another jury to decide if plaintiff was denied the Police Chief position in violation of the civil rights laws.
What went wrong at trial? We have to consider Fed. R. Evid. 701, which permits non-experts to testify in the form of an opinion only if it helps the jury to clearly understand the witness's testimony or in determining a disputed fact issue. But we cannot have these witnesses "tell the jury what result to reach." These witnesses are only allowed to help the jury draw its own conclusions. In 2000, the Court of Appeals said that
In employment discrimination actions, “Rule 701(b) bars lay opinion testimony that amounts to a naked speculation concerning the motivation for a defendant’s adverse employment decision.” Although witnesses may testify regarding “their own observations of the defendant’s interactions with the plaintiff or with other employees,” they may not opine as to the motives, racial or otherwise, underlying those interactions.
At this trial, one witness testified that "there might have been a component of race involved" in the decision to promote Bermudez over Barrella. But that was only this witness's "own personal opinion" based on other personnel decisions in the Village despite no personal knowledge of the qualifications of anyone involved in those personnel decisions. Another witness told the jury that Mayor Hardwick took race into account in making personnel decisions, but he "reached this conclusion without any personal knowledge of Hardwick's actual reasons."
In short, the District Court permitted Gros and Maguire to testify that Hardwick had recommended individuals for promotion based on their race, despite those witnesses’ admissions that they had no personal knowledge of Hardwick’s selection process and only the vaguest idea of the relevant candidates’ qualifications. Such testimony was not helpful to the jury in the sense required by Rule701(b), and the District Court’s decision to allow the jury to consider it was an “abuse of discretion.”
This was not harmless error, the Court of Appeals says, because it was a close case, and this bad testimony could have made the difference. The case was close because, while plaintiff had a better resume than Bermudez, the mayor may have had good non-discriminatory reasons for picking Bermudez over Barella. And federal law did not require the mayor to chose the most qualified person anyway. While the mayor said publicly that Bermudez was the Village's "first Hispanic" or "first Latino" police chief, the Court of Appeals says that "an employer's stated desire for diversity in the workplace does not, without more, establish discriminatory intent with respect to any particular employment decision." In addition,the civil rights laws do not "categorically forbid politicians from considering an appointment's political implications" or even to gain political favor from those appointments. Rather, "the urge of politicians to take credit for hiring or promoting members of hitherto underrepresented communities has often 'been a powerful means of achieving the social and political integration of excluded groups." (The Second Circuit actually cites a dissenting opinion from the late Justice Scalia for that proposition). In short, the Court says,
an otherwise lawful employment decision—one that was made for race‐neutral reasons or as part of a lawful affirmative‐action plan—does not become unlawful merely because the decision‐maker believed that some voters might evaluate that decision at least partly through the lens of identity politics.
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Stephen Bergstein is a civil rights lawyer in Orange County, N.Y. He has briefed or argued more than 200 appeals in the state and federal courts.