Zarda v. Altitude Express, 041817 FED2, 15-3775

Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
Attorney:GREGORY ANTOLLINO, New York, NY, for Appellants. Stephen Bergstein, Bergstein & Ullrich, LLP, Chester, NY, for Appellants. SAUL D. ZABELL, Zabell & Associates, P.C., Bohemia, NY, for Appellees. Lenora M. Lapidus, Gillian L. Thomas, Ria Tabacco Mar, and Leslie Cooper, American Civil Liberties Unio...
Judge Panel:Before: JACOBS, SACK, and LYNCH, Circuit Judges.
Opinion Judge:PER CURIAM:
Party Name:MELISSA ZARDA, co-independent executor of the estate of Donald Zarda, and WILLIAM ALLEN MOORE, JR., co-independent executor of the estate of Donald Zarda, Plaintiffs-Appellants, v. ALTITUDE EXPRESS, doing business as SKYDIVE LONG ISLAND, and RAY MAYNARD, Defendants-Appellees.
Case Date:April 18, 2017
Docket Nº:15-3775
 
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MELISSA ZARDA, co-independent executor of the estate of Donald Zarda, and WILLIAM ALLEN MOORE, JR., co-independent executor of the estate of Donald Zarda, Plaintiffs-Appellants,

v.

ALTITUDE EXPRESS, doing business as SKYDIVE LONG ISLAND, and RAY MAYNARD, Defendants-Appellees.

No. 15-3775

United States Court of Appeals, Second Circuit

April 18, 2017

          Argued: January 5, 2017

         Donald Zarda, a skydiver, sued his former employer in the United States District Court for the Eastern District of New York (Bianco, J.), asserting (inter alia) sexual-orientation discrimination in violation of New York state law and sex discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. The district court, relying on our decision in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), declined to hold that discrimination based on sexual orientation constituted discrimination based on sex for purposes of Title VII. The state-law claim for sexual-orientation discrimination went to trial where a jury found for the defendants. On appeal, Zarda argues that Simonton should be overturned. We do not entertain that argument because a panel of this Court could not overturn another panel's decision. Moreover, we reject Zarda's argument that he is entitled to a new trial on his state-law claim because of alleged evidentiary errors, unfair discovery practices, and prejudicial arguments to the jury based on gay stereotypes. Consequently, we AFFIRM the judgment of the district court in all respects.

          GREGORY ANTOLLINO, New York, NY, for Appellants.

          Stephen Bergstein, Bergstein & Ullrich, LLP, Chester, NY, for Appellants.

          SAUL D. ZABELL, Zabell & Associates, P.C., Bohemia, NY, for Appellees.

          Lenora M. Lapidus, Gillian L. Thomas, Ria Tabacco Mar, and Leslie Cooper, American Civil Liberties Union Foundation, New York, NY; Erin Beth Harrist, Robert Hodgson, and Christopher Dunn, New York Civil Liberties Union Foundation, New York, NY, for Amici Curiae American Civil Liberties Union; New York Civil Liberties Union; 9to5; National Association of Working Women; A Better Balance; Coalition of Labor Union Women; Equal Rights Advocates; Gender Justice; Legal Voice; National Women's Law Center; Southwest Women's Law Center; Women Employed; Women's Law Center of Maryland; Women's Law Project, in support of Plaintiffs-Appellants.

          Michael D.B. Kavey, LGBTQ Rights Clinic, New York, NY; Omar Gonzalez-Pagan, Lambda Legal Defense and Education Fund, Inc., New York, NY; Gregory R. Nevins, Lambda Legal Defense and Education Fund, Inc., Atlanta, GA, for Amicus Curiae Lambda Legal, in support of Plaintiffs-Appellants.

          Before: JACOBS, SACK, and LYNCH, Circuit Judges.

          PER CURIAM:

         Plaintiff Donald Zarda, a skydiver, alleges that he was fired from his job as a skydiving instructor because of his sexual orientation.1 He sued his former employer, Altitude Express (doing business as Skydive Long Island) and its owner Raymond Maynard (collectively "Altitude Express"), asserting that he was discriminated against in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and New York law.2 The United States District Court for the Eastern District of New York (Bianco, J.), found a triable issue of fact as to whether Zarda faced discrimination because of his sexual orientation in violation of New York law, but otherwise granted summary judgment to Altitude Express on Zarda's discrimination claims. In particular, the district court held that the defendants were entitled to summary judgment on Zarda's Title VII claim because Second Circuit precedent holds that Title VII does not protect against discrimination based on sexual orientation. At trial, the jury found for the defendants on Zarda's state-law claims.

         On appeal, Zarda requests that we reconsider our interpretation of Title VII in order to hold that Title VII's prohibition on discrimination based on "sex" encompasses discrimination based on "sexual orientation." Since a three-judge panel of this Court lacks the power to overturn Circuit precedent, we decline Zarda's invitation.

         Separately, Zarda asserts that several errors infected the trial on his state-law discrimination claim, warranting a new trial. Finding no abuse of discretion by the district court, we affirm the judgment in all respects.

         I

         In 2010, Rosanna Orellana and her boyfriend David Kengle went skydiving at Altitude Express. Each purchased tandem skydives, in which the instructor is tied to the back of the client so that the instructor can deploy the parachute...

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