Barrella v. Vill. of Freeport
| Decision Date | 28 August 2014 |
| Docket Number | No. 12–CV–0348 ADSWDW.,12–CV–0348 ADSWDW. |
| Citation | 43 F.Supp.3d 136 |
| Parties | Christopher BARRELLA, Plaintiff, v. VILLAGE OF FREEPORT and Andrew Hardwick, as both Mayor and in his individual capacity, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Fugazy & Rooney LLP, by: Amanda M. Fugazy, Esq., Adam C. Weiss, Esq., of Counsel, Glen Cove, NY, for the Plaintiff.
Harris Beach PLLC, by: Keith M. Corbett, Esq., of Counsel, Uniondale, NY, for the Defendant Village of Freeport.
Rivkin Radler, LLP, by: Kenneth A. Novikoff, Esq., of Counsel, Uniondale, NY, for the Defendant Andrew Hardwick.
On May 28, 2014, following a trial, the jury returned a verdict in favor of the Plaintiff Christopher Barrella (the “Plaintiff”) against the Defendants Village of Freeport (the “Village”) and its former Mayor, Andrew Hardwick (“Hardwick”) (collectively the “Defendants”) awarding him $150,000 in damages for loss of back pay, $1,000,000 for loss of future pay, and punitive damages in the amount of $200,000 against Hardwick only. Presently pending before the Court are several post-verdict motions brought by the parties, described in more detail below, seeking various forms of relief, including to set aside the verdict and for attorneys' fees.
By way of background, on January 25, 2012, the Plaintiff commenced this action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., 42 U.S.C. § 1981, 42 U.S.C. § 1983, and the New York State Human Rights Law, Executive Law § 290 et seq. (“NYSHRL”). The complaint alleged that the Village and Hardwick failed to promote the Plaintiff to the position of Chief of Police, or another position within the Village Police Department, on the basis of his “race/color” and national origin. The Plaintiff also asserted that, during Hardwick's four years as Mayor of the Village, he systematically hired and promoted less qualified and less experienced African–American and hispanic employees over more qualified and more experienced white employees.
Previously, on August 25, 2011, the Plaintiff filed a charge with the United States Equal Employment Opportunity Commission (the “EEOC”), alleging that he was discriminated against and passed over for promotions as a result of his race, color, and national origin. In this regard, the Court notes that, in fact, an EEOC charge provides for separate causes of action for discrimination based on race versus color.
On November 5, 2012, the Plaintiff filed an amended complaint. At various points throughout the amended complaint, the Plaintiff makes reference to “race/color” and “race and/or color.” The Court notes that “[d]espite the legal distinction between the concepts, many courts, [including the parties and at times the Court in this case], conflate claims of racial and color discrimination.” Salas v. Wisconsin Dep't of Corr., 05–C–399–C, 2006 WL 1049469, at *6 (W.D.Wis. Apr. 17, 2006) (citing Colorable Claims: The Continuing Significance of Color under Title VII Forty Years After Its Passage, 26 Berkeley J. Emp. & Lab. L. 435, 464 (2005) ).
By letter dated December 24, 2013, the Plaintiff withdrew his Title VII claims against Hardwick.
On March 10, 2014, Hardwick moved, pursuant to Federal Rule of Civil Procedure (“Fed.R.Civ.P.”) 56(a), for summary judgment dismissing the amended complaint as against him in his individual capacity only. That same day, the Village moved separately, pursuant to Fed.R.Civ.P. 12(b)(1), to dismiss the Plaintiff's state law claims against it for lack of subject matter jurisdiction and, pursuant to Fed.R.Civ.P. 56(a), for summary judgment dismissing the amended complaint against it.
In the parties' Rule 56.1 statements, while the national origin claims were still in the case, the Plaintiff conceded that Bermudez, the current Chief of Police, is “White” and “Hispanic.” (Rule 56.1 Statement, at ¶ 50.) However, it does not appear that the Plaintiff conceded that Bermudez's race, as opposed to his skin color, was white.
In their respective memoranda in support of their motions for summary judgment, the Defendants maintained that Bermudez's race was white and that his national origin was American. In his opposing memorandum of law, the Plaintiff, in a single section devoted both to his race and national origin claims, stated as follows: “Bermudez is Cuban-born and Hispanic.” (Doc. 118, at 14.)
However, at no point did any of the parties expressly argue that this Court should treat the Plaintiff's claims based on race and color separately.
On April 26, 2014, the Court granted in part and denied in part the motions for summary judgment. In particular, the Court granted the motions as to the Plaintiff's claims based on national origin discrimination and dismissed those claims. The Court denied the motions as to the Plaintiff's claims based on race discrimination. Finally, in tracking the parties' briefs, the Court did not directly address any claim based on the Plaintiff's color as opposed to race.
Specifically, in its decretal paragraph, the Court stated as follows:
the Court grants the motions as to the Plaintiff's claims based on national origin discrimination and dismisses those claims. Otherwise, the Court denies the Defendants' motions for summary judgment.
(Memorandum and Order, at 33–34.) (emphasis added). Therefore, to the extent the Plaintiff brought any independent claims based on the color of the Plaintiff's skin, those claims survived the Defendants' motions for summary judgment.
In the fact and discussion sections of the decision, the Court noted that the Plaintiff described Bermudez as a “Cuban-born, Hispanic” while the Defendants described him as a “white latino male.” (Id. at 7.) At various points throughout the decision, the Court referred to certain individuals, including the Plaintiff, as “non-Hispanic whites.” However, in doing so, the Court did not credit the Defendants' later argument that hispanic is a type of national origin, as opposed to race, for purposes of the anti-discrimination statutes. Fairly read, the Court was referring to certain individuals' skin color, rather than race, as white. In any event, the Court did not nor was it in a position to make any findings of fact as to any individual's race or skin color.
Ultimately, in denying the motion for summary judgment on the race discrimination claims and granting the motion for summary judgment on the national origin claims, the Court assumed, as a matter of law, that hispanic is a type of race for purposes of the anti-discrimination statutes notwithstanding how any individuals self-identify their race in other contexts. Indeed, in finding that the Plaintiff raised a triable issue of fact as to whether Hardwick's decision to promote Bermudez, and his concomitant failure to consider the Plaintiff for any Command Staff position, resulted from discrimination on the basis of race, the Court relied in part on evidence indicating that Hardwick publicly referred to Bermudez as the “first Hispanic Chief of Police.” To be sure, the Court found that “[t]o the extent the Defendants argue[d] that neither Hardwick nor Bermudez perceived Bermudez to be a member of the minority group and that Bermudez had the ‘same color complexion’ as the Plaintiff ... this evidence simply raises factual disputes appropriately reserved for a fact-finder.” (Id. at 26) (emphasis added).
With regard to the Plaintiff's national origin claims, the Court noted as follows:
Aside from the fact that Bermudez was born in Cuba and the Plaintiff was born in America, the Plaintiff fails to set forth any evidence of discrimination on account of national origin. The Court also notes that Hardwick and the Plaintiff are both American in nationality.
(Id. at 29.) Although the Court may have inartfully used the terms “national origin” and “nationality” interchangeably, it is clear that the Court assumed that Cuban—as opposed to hispanic—was a type of national origin.
In sum, for an analysis under the anti-discrimination statutes, the Court assumed as a matter of law that Hispanic was a type of race. What is clear is that had the Court concluded, for an analysis under the anti-discrimination statutes, that Hispanic is a type of national origin, the Court likely would have permitted the national origin claims to proceed on the basis that a factual question existed as to whether Hardwick promoted Bermudez rather than the Plaintiff because Bermudez was of an hispanic national origin.
On April 30, 2014, this case proceeded to a jury trial. The Court heard testimony from twelve witnesses over a three-week time period. Following five days of deliberation, the jury returned a verdict against both the Defendants for the sum of $150,000 in back pay damages, $1,000,000 in front pay damages, and $200,000 in punitive damages as against Hardwick only. Before reviewing the testimonial and documentary evidence adduced at the trial, the Court will discuss some of the issues involved in the motions in limine and the arguments made by counsel in the opening statements insofar as they are relevant to the present motions before the Court. The Court cites certain lengthy excerpts of the record to shed light on the litigating positions taken by the parties.
Prior to the trial, the Defendants moved for, among other matters, an order precluding the Plaintiff from offering at the trial any evidence concerning any national origin-based terminations, retirements, hiring, and promotions in the Village during Hardwick's term as Mayor. (Tr. 19–20.) Portending disputes to come—Hardwick's counsel noted the following:
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