Jury can find Culinary Institute of America violated FMLA in terminating woman who cared for sick kids
This FMLA case provides some guidance on the interference clause under this statute, which allows employees 120 days of unpaid leave to care for a sick family member. At this link, I wrote about the individual liability portion of the ruling. This time around, I write about the interference portion.
The case is Graziadio v. Culinary Institute of America, decided on March 17. Plaintiff needed leave for two reasons. One son, Vincent, was hospitalized with diabetes, Another son, DJ, broke his leg. After she took leave, plaintiff and management went around and around on when she could return and what paperwork she had to file to maintain that leave. She was eventually fired for abandoning her job. Taking up the issue of what constitutes interference for the first time, the Court of Appeals (Calabresi, Lohier and Lynch) lays out the standard:
to prevail on a claim of interference with her FMLA rights, a plaintiff must establish: 1) that she is an eligible employee under the FMLA; 2) that the defendant is an employer as defined by the FMLA; 3) that she was entitled to take leave under the FMLA; 4) that she gave notice to the defendant of her intention to take leave; and 5) that she was denied benefits to which she was entitled under the FMLA. Plaintiff has claim for the FMLA leaves for both sons.
As for Vincent, while plaintiff did take initial leave and was allowed to return to work, the jury could find that she tried to take intermittent leave afterwards and that her leave was not approved. It was during this intermittent leave period that CIA was dragging its feet and giving plaintiff a hard time about whether she had submitted the right paperwork under the FMLA. The Second Circuit also finds that plaintiff was entitled to this leave. While CIA questioned whether plaintiff submitted the proper FMLA form, she timely tried to cure any deficiencies by sending a new certification that outlined Vincent's medical schedule. The jury could find this form was enough to meet the certification requirements under the statute. In sum, plaintiff can win her case with respect to the Vincent-related leave.
Plaintiff can also win the case on her DJ-related leave. The jury could find she tried in good faith to comply with CIA's certification requests and that defendant's conduct excused any residual failure in compliance. When CIA asked plaintiff for medical certification as to DJ, that request was vague and did not give her adequate notice that CIA wanted medical certification. The letter also misstated the deadline for plaintiff to comply with the request. She then tried to restate and clarify her request for certification fairly quickly. The process got so convoluted along the way that, really, your eyes may glaze over while reading about it. The Court says:
Under these circumstances, a jury could conclude that Graziadio made sufficient 2 good faith efforts to comply with her employer’s requests and that defendants’ conduct — their imprecision in requesting certification, their failure to answer Graziadio’s questions responsively, and their failure to communicate with Graziadio after deeming her doctor’s note deficient—relieved Graziadio of any unsatisfied obligation to provide a medical certification to support her leave. Freed of this obligation, Graziadio may well have been entitled to leave to care for T.J. and may, therefore, be able to show that defendants interfered with that leave.
This evidence also supports plaintiff's retaliation claim under the FMLA. CIA said plaintiff abandoned her position. But plaintiff can show that excuse is implausible. CIA told her to contact her supervisor to arrange to return to work, but in that same missive, she was told that if she wants to return to work, she must submit proper FMLA medical certifications. "Given that, for the preceding two months, [supervisor] Garrioch had refused to allow Graziadio to return to work until she submitted new paperwork, it would have been reasonable for Graziadio to read this email as taking the same position: i.e., in order to return to work, you must submit appropriate paperwork and, presumably in or after doing so, you must contact your supervisor." The Second Circuit proceeds to cut through CIA's reasoning in terminating plaintiff, finding its excuses "difficult, to put it mildly, to accept defendants' argument" in one area. Another CIA argument, the Court says, is "hard to believe."
The Court of Appeals has issued its most definitive case under the Family and Medical Leave Act in years, primarily reaching two holdings: individual supervisors may be held liable under the Act, and also outlining the contours of an FMLA interference claim.
The case is Graziadio v. Culinary Institute of America, decided on March 17. In this post, I will talk about the individual liability portion of the case. In a few days, you will read about the other holdings. Plaintiff was a Payroll Administrator for CIA. When, in June 2012, her 17 year old son Vincent was hospitalized with diabetes, plaintiff asked her supervisor, Gardella, for permission to care for him. Later in June, plaintiff's other son, TJ, broke his leg. Plaintiff asked Gardella for permission to miss work, and Gardella ran it by HR Director Garrioch. That is when things got difficult and convoluted. From plaintiff's perspective, she got the run-around and otherwise blown off when she tried to clarify when to return to work, repeatedly asking management for the right FMLA paperwork. CIA told plaintiff it did not have the proper information from her to continue the FMLA leave. Plaintiff also tried without success to schedule a meeting with management about these issues. Plaintiff then hired a lawyer who tried to iron out these issues with CIA, which insisted that plaintiff had not provided the right information for FMLA leave. She was eventually fired for abandoning her position.Of course, plaintiff said she did not abandon her position and that, instead, management had not properly recognized her FMLA leave at the time.
Every lawsuit has a bad guy, even if the statute does not provide for individual liability. Plaintiff sued CIA, and Garrioch under the FMLA. The Second Circuit (Calabresi, Lynch and Lohier) decides for the first time that plaintiff can sue the individual defendant personally, citing cases from around the country and district courts in the Second Circuit. The legal standard the Court devises draws from the FLSA's "economic reality" test, which determines whether the defendant had the power to hire and fire, supervised and controlled employees, determined salaries and maintained employment records.
Under this test, Garrioch was an "employer" under the FMLA because she played a substantial role in plaintiff's termination, even if that decision formally rested with someone else. Garrioch also exercised control over plaintiff's employment, at least with respect to her FMLA leave. Here's the wrap-up on this issue:
on the overarching question of whether Garrioch “controlled plaintiff’s rights under the FMLA,” there seems to be ample evidence to support the conclusion that she did: deposition testimony and email exchanges demonstrate a) that Garrioch reviewed Graziadio’s FMLA paperwork, b) that she determined its adequacy, c) that she controlled Graziadio’s ability to return to work and under what conditions, and d) that she sent Graziadio nearly every communication regarding her leave and employment (including the letter ultimately communicating her termination). Indeed, Garrioch specifically instructed Gardella and Maffia that they were not to communicate with Graziadio and that Garrioch alone would handle Graziadio’s leave dispute and return to work.
Every village has a gadfly. This gadfly sued his village on Long Island. He claimed the village retaliated against him for speaking out on public matters, in part, by driving a truck into him and arresting him for trespass. But the case is dismissed.
The case is Bartels v. Incorporated Village of Lloyd Harbor, a summary order decided on March 17. Who knows what Bartels spoke out about in the town; the decision does not tell us. But he claims that one day he was on the side of the road taking pictures of a dangerous hanging wire "when a Village dump truck accelerated and veered toward him, causing him to leap over the guardrail" and down an embankment. He also says that on another occasion that two Village police officers retaliated against him for trying to document environmental harm in the Village.
On the truck incident, plaintiff said at deposition that he photographed the truck coming at him. But, the Second Circuit (Hall, Chin and Carney) says, "contrary to that testimony, the first photo clearly reveals the truck veering away from him, rather than toward him." The photographic evidence is conclusive enough that it does not matter what plaintiff said at deposition. Under the Supreme Court's ruling in Scott v. Harris, 550 U.S. 372 (2007), conclusive photos and videos can entitle the defendant to summary judgment even if the plaintiff's testimony would otherwise create a factual dispute for trial.
This is a summary order, so we don't know all the facts, but the first thing that comes to mind here is that if the truck is coming at plaintiff on the side of the road, he would not able to protect himself and take a picture at the same time. He would only be able to take the picture when the truck is veering away from him. I know that people use their cell phones all the time these days and will risk death in order to get a good picture for Instagram, but some people still value life over good photographs. I could be wrong on this. The district court ruling, at 97 F. Supp. 2d 198 (EDNY 2015), does show the full color photographs with the judge's reasoning why the photos kill the claim. The moral of the story is that photographic evidence can entitle the defendant to summary judgment even if the plaintiff's deposition testimony might otherwise entitle him to a trial.
The other claim is that plaintiff was traversing his neighbor's property in a bathrobe and slippers when two Village officers told him he was trespassing. They pursued him, and plaintiff sought refuge in the neighbor's house. On appeal, plaintiff says the officer got out his taser, but in deposition, he saw the officer "screwing around" with something on his belt, maybe a cellphone. No officer touched plaintiff. The Court of Appeals says the gadfly has no case for substantive due process, which requires proof that a government actor did something that shocked the conscience.
Under Rule 68, if defendant offers a judgment to the plaintiff for a certain amount, and the plaintiff rejects that offer but goes to trial and wins less money then the Rule 68 offer, then the plaintiff forfeits the attorneys' fees expended after the Rule 68 offer was served. This result is particularly painful for the plaintiff if he is suing under the civil rights laws, which allows him to recover "prevailing party" attorneys fees from the defendant.
Since Rule 68 can be an effective way to settle cases, many judges think defense lawyers do not use them enough. One district court judge in White Plains used to have a notice as you entered the courtroom that urged defendants to serve Rule 68 offers on counsel. This case is one of the few in recent years that looks at how Rule 68 offers should be worded.
The case is Steiner v. Lewmar, Inc., decided on March 7. This is not a civil rights case but an action under the Lanham Act, breach of contract and unfair trade practices. The holding would apply to civil rights cases, though. Defendant served a Rule 68 offer on plaintiff that offered $175,000 provided the case was dismissed, "including all claims that have been made or could have been made concerning the LiteTouch trademark." The offer also covered all claims that could have been made under the parties' Agreement (or contract) that gave one party the exclusive right to make and sell Steiner's products.
Normally, Rule 68 offers say the offer includes the plaintiff's attorneys' fees. This one did not expressly mention fees. So plaintiff moved for attorneys' fees in the amount of $383,000. The district court said the Rule 68 offer included fees, and the Court of Appeals (Katzman, Chin and Castel [D.J.]) agrees, in part. Plaintiff may still get fees if the district court decides to award them on remand.
If Rule 68 offers are ambiguous on the issue of attorneys' fees, then the language is construed against the defendant, and plaintiff can move for fees. With respect to the claims the parties litigated under the Agreement, this offer was not ambiguous because it covered "all claims that have been made or could have been made concerning ... the Agreement." Attorneys' fees would be such a claim. "Any contractual claim for reasonable attorneys' fees brought pursuant to the Agreement necessarily 'concerns' the Agreement." The context supports this holding. The parties intended to include contractual claims for attorneys' fees, as they made reference to them in pre-trial filings.
But the case also involved claims under the Connecticut Unfair Trade Practices Act, which allows for fee-shifting. While Rule 68 offer would cover claims under the Agreement, "the claim for attorneys' fees under CUTPA arguably does not fall within the language of the Offer. The claim for attorneys' fees under CUTPA arguably is not encompassed by the language 'all claims ... concerning the LiteTouch trademark." The Second Circuit reminds us that "courts have held that statutory attorneys' fees claims are not unambiguously encompassed in a Rule 68 offer when the offer refers to substantive claims but does not explicitly refer to attorneys' fees." The Court of Appeals cites case from other circuits for this proposition. It is now the standard in the Second Circuit.
The case is remanded to the district court to take up the fee petition once again.
These plaintiffs brought a wage and hour claim against AT&T Mobility and other defendants. AT&T argued that it was not plaintiffs' employer. Plaintiffs said AT&T was a joint employer with other entities. The district court said AT&T was not a joint employer. The Court of Appeals says the jury may find otherwise.
The case is Grenawalt v. AT&T Mobility, LLC, a summary order issued on March 14. Sometimes plaintiffs want to name more than one entity as the defendant to ensure that someone is able to pay out the judgment. In this FLSA case, plaintiffs provided security for AT&T. They were directly employed by someone else who provided guards to AT&T.
This is a complicated area of law. The Second Circuit (Cabranes, Livingston and Lynch) identifies three separate tests for determining whether an entity is a joint employer. "The first test, derived from Carter v. Dutchess Community College, 735 F.2d 8 (2d Cir. 1984), looks to whether a putative employer exercises 'formal control' over a worker." But this test does not always work in these cases. "Because Carter defines employment more narrowly than FLSA requires, satisfying this test is sufficient, but not necessary, to show joint employment." The second test, set out in Brock v. Superior Care, Inc., 840 F.2d 1054 (2d Cir. 1988), focuses on whether “the workers depend upon someone else’s business . . . or are in business for themselves.” This test does not always apply because it is 'typically more relevant for distinguishing between independent contractors and employees' than for determining by whom workers who are assumed to be employees are employed." So we look to the third test, first developed in Zheng v. Liberty Apparel Co., 355 F.3d 61 (2d Cir. 2013).
Zheng "weighed six factors in determining whether a garment manufacturer exercised 'functional control' over subcontracted workers, and was therefore their employer under FLSA:
(1) whether [the manufacturer’s] premises and equipment were used for the [putative employees’] work;
(2) whether the Contractor[s] . . . had a business that could or did shift as a unit from one putative joint employer to another;
(3) the extent to which [the putative employees] performed a discrete line-job that was integral to [the manufacturer’s] process of production;
(4) whether responsibility under the contracts could pass from one subcontractor to another without material changes;
(5) the degree to which the [manufacturer] or [its] agents supervised [the putative employers’] work; and
(6) whether [the putative employees] worked exclusively or predominantly for the [manufacturer].
These factors are “nonexclusive and overlapping,” and a court “need not decide that every factor weighs against joint employment.” The Second Circuit runs through these factors in finding that plaintiffs could be considered "employees" of AT&T. The analysis in this case is extensive for a summary order, making me wonder why this is a summary order and not a published opinion.
A Rikers Island inmate who claims he was beaten up by the correction officers is getting a new trial because the trial court prevented the jury from viewing evidence that was critical to his case.
The case is Rentas v. City of New York, decided on March 8. Rentas says that officers at Rikers Island beat the hell out of him and fabricated evidence against him, leading to his prosecution and prolonged detention at Rikers. He also sued them for malicous prosecution, but that claim got dismissed pre-trial. The jury instead heard evidence about the excessive use of force and fabricated evidence. At trial, the judge allowed the jury to see some but not all of the officers' reports about the incident; it was those reports that Rentas claimed supported his fabrication-of-evidence claims. Rentas also brought his Intentional Infliction of Emotional Distress claims to trial. The jury liked that claim and awarded him $67,000. While the jury also found in Rentas's favor on the excessive force and fabrication claims, it only gave him nominal damages on those claims.
The Court of Appeals (Parker, Lohier and Carney) issues a slew of rulings. First, on the malicious prosecution claim that got dismissed prior to trial, the Court of Appeals says the trial court got it wrong in finding that plaintiff could not show the charges that the officers filed against him in connection with his altercation with the officers lacked probable cause, an essential element of any malicious prosecution claim. While defendants said probable cause arose from the testimony of other inmates, those statements were merely quoted in an investigation report prepared by one of the defendants, and it is not clear these statements were independent and untainted information which prosecutors could rely in charging plaintiff with assault. In addition, plaintiff testified that the charges against him were false, and other evidence -- like photos which did not show that he suffered the injuries that would have existed had he attacked the officers -- further showed the charges against him lacked probable cause.
The "fair trial" claim arising from the officers' fabricated reports against plaintiff went to trial. Rentas won on this claim, but the jury gave him only nominal damages. The trial court allowed the jury to see some but not all the officers' reports. That was wrong, the appellate court says. While the City argues the reports were cumulative of other testimony, that misses the point. The reports themselves were a central part of Rentas's claim that the officers had falsified the reports. The reports also supported his excessive force claims. Even the jury wanted to see the reports during deliberations, to no avail. Rentas gets a new trial on his federal claims.
Rentas did spend three years in jail awaiting trial on his criminal charges which were dismissed, leading to his malicious prosecution claim. He wants the Court of Appeals to tell the trial court that it must allow the jury to award him compensatory damages for this, not nominal damages, which typically amount to a dollar. The Court of Appeals finds that nominal damages were permissible because the jury could have found that Rentas's detention was not caused by the fake evidence but "rather by whatever independent, untainted evidence supported probable cause." The jury found that some defendants fabricated evidence but that others did not. "The jury could have also found that the submission of the non-fabricated evidence would have resulted in Rentas's loss of liberty even in the absence of fabricated evidence." Were that the case, the jury could award only a dollar. On retrial, the jury will again be charged that they could give plaintiff compensatory damages or nominal damages.
Finally, the Court of Appeals says the jury was able to award plaintiff money on his state law IIED claim. Even assuming medical evidence is needed for this claim, plaintiff had that evidence in the form of hospital records showing anxiety, loss of sleep and PTSD. For those of you who want the big bucks in police misconduct cases, remember that this guy only got $67,000 for this.
In civil rights cases, the winning plaintiff recovers her attorneys' fees from the losing defendant. So if the plaintiff's lawyer spent 100 hours on the case and is entitled to $300 per hour, the defendant pays out $30,000 in addition to whatever damages the jury awarded. This is mostly a one-way street, though. As a general rule, winning defendants get bubkis from the losing plaintiff.
The case is Nicholas v. City of Binghamton, a summary order decided on March 10. This police misconduct went to trial, and Nicholas lost. Here is the rule governing reverse attorneys' fees:
A prevailing defendant should not be awarded fees unless a court finds that the plaintiff’s claim was “frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.” “The fact that a plaintiff may ultimately lose [her] case is not in itself a sufficient justification for the assessment of fees” in favor of a defendant. Courts should not “engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.”
In other words, if the plaintiff fought the good fight, she does not get penalized for losing. As the Court of Appeals says in this case, "Ordinarily, a claim should not be deemed “groundless where the plaintiff has made a sufficient evidentiary showing to forestall summary judgment and has presented sufficient evidence at trial to prevent the entry of judgment against him as a matter of law. As the decisions of this Court demonstrate, it is very rare that victorious defendants in civil rights cases will recover attorneys’ fees.” In other words, bupkis.
The district court calculated defendants' attorneys' fees entitlement as $31,865. But since plaintiff is out of work and has little money, the court reduced her fee liability by two-thirds, to about $10,000.
The district court awarded the City attorneys' fees, but the Court of Appeals (Winter, Hall and Droney) vacates that award. Plaintiff may have lost, but her claims were not frivolous. There is a difference. Here is how the Second Circuit reasons through it:
A large portion of the district court’s fee award was attributable to Appellant’s excessive
force claim, which was not deemed unsuccessful until it was litigated at trial. Although several of the witnesses disputed Appellant’s version of events, the mere fact that the jury ultimately chose to disbelieve Appellant did not render her claim frivolous. Moreover, contrary to Appellees’ arguments as to the medical evidence, Appellant’s trial evidence, including conclusions rendered by her treating doctors, supported her claim that the trauma of the handcuffs could have exacerbated the underlying arthritis in her wrists. Even though Appellant’s excessive force claim was not particularly strong, it was not frivolous, unreasonable, or groundless.
A pro-Israel organization that hates Jihad wanted to place a public service advertisement on the MTA buses in New York City. The City said the mobile billboard could not be posted because it would incite violence. A federal court then struck down the regulation that allowed the City to quash the sign. After the City amended its signage rules, the federal court dissolved the injunction as moot. The Court of Appeals agrees with that mootness finding.
The case is American Freedom Defense Initiative v. MTA, decided on March 3. The advertisement portrayed Muslims in a negative light and made reference to killing Jews and Jihad. Like I said, a federal judge said the provision invoked by the MTA in rejecting the sign violated the First Amendment. But that injunction went out the window when the City rewrote the signage rules. The signs can be seen at this link. The plaintiffs want the injunction to continue because, they say, the new rules are similar and also violate the First Amendment in that they prohibit advertisements that are "political in nature." The Court of Appeals (Katzmann, Kearse and Schofield [D.J.[) finds the district court it right. This case is moot.
Cities and other municipalities are given the benefit of the doubt when they change the rules that people challenge in court. If the court finds there is no likelihood that the old rules will return, then the case is moot. If the new rules are too dissimilar from the old rules, then the case is moot. If the case is moot, we all go home and look for another municipality to kick around. Mootness can kill off even the most interesting lawsuits.
The City convinced the Second Circuit that the old rule is gone for good. The current rule -- which prohibits political advertisements -- is too different from the incitement prohibition. If the plaintiffs want to sue the City again, they will have to find a way to challenge the rules that prohibit political signage on MTA buses. k here to edit.
The Family and Medical Leave Act was passed in 1993, but it remains one of the more recent civil rights laws. It requires employers to give certain employees up to four months' unpaid leave to deal with family and personal illnesses and medical emergencies. This case looks at an obscure provision in the FMLA.
The case is Oliveria v. Cairo-Durham Central School District, a summary order decided on February 23. Under FMLA, employees who take medical leave of some kind will return to work when the crisis is over. The regulations state that employers have to let employees know how they will return to an equivalent position upon their return to work. In particular, the employer's policies "must clearly explain the employee's restoration rights upon return from leave."
The employer violated that regulation here. Its return to work policy says that employees will return to an equivalent position but they would not continue to accrue service credit during unpaid FMLA leave. "The District therefore had a duty under [the regulation] to inform plaintiff in writing about the policy before she took FMLA leave. Having failed to do so, it violated the notice requirements" under the regulations.
What this violation means for the case is that the jury may find that the employer's failure to properly apprise the plaintiff of the District's policy may "constitute an interference with, restraint, or denial of plaintiff's FMLA rights." This would be significant if plaintiff "would have taken FMLA leave had she been properly notified about the policy regarding restoration of tenure." In other words, the employer's failure to advise plaintiff about the consequences of unpaid FMLA leave could constitute an "interference" under the law. More specifically, this is how the district court characterized plaintiff's interference claim:
Plaintiff asserts that defendants interfered with her FMLA rights by: (1) failing to restore her to an "equivalent position", deducting twenty-three days from her seniority and rendering her status "inferior" to the status she held prior to taking leave, in violation of 29 U.S.C. 2614(3)(B) and 29 C.F.R. § 825.215(a); (2) failing to inform her "in writing or otherwise, that upon her return from FMLA leave, her seniority status would be reduced by the amount of unpaid FMLA-protected leave she took"; (3) "deducting the time that plaintiff was out on unpaid FMLA leave from [her] seniority status" and using it as a negative factor resulting her in her termination; and (4) "discourag[ing] employees from exercising their FMLA rights" by deducting the leave from their seniority status.
This is a summary order, so we don't know all the details, but since the Court of Appeals (Cabranes, Pooler and Chin) is reversing summary judgment, this decisions means the FMLA interference case goes to trial. As plaintiff did not lose her job or suffer any demotion, I don't know what the damages would be for a claim like this. All of that will have to be sorted out on remand.
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.
here to edit.
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.