Vill. of Freeport v. Barrella

• Decision Date: 16 February 2016
• Docket Number: 14–4287–cv,14–2349–cv,Nos. 14–2270–cv,14–3615–cv.,14–4324–cv,s. 14–2270–cv
• Citation: 814 F.3d 594
• Parties: VILLAGE OF FREEPORT and Andrew Hardwick, as Mayor and in his individual capacity, Defendants–Appellants–Cross–Appellees, v. Christopher BARRELLA, Plaintiff–Appellee–Cross–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

814 F.3d 594

VILLAGE OF FREEPORT and Andrew Hardwick, as Mayor and in his individual capacity, Defendants–Appellants–Cross–Appellees,
v.
Christopher BARRELLA, Plaintiff–Appellee–Cross–Appellant.^*

Nos. 14–2270–cv
14–2349–cv
14–4287–cv
14–4324–cv
14–3615–cv.

United States Court of Appeals, Second Circuit.

Argued: Dec. 9, 2015.
Decided: Feb. 16, 2016.

814 F.3d 598

Keith M. Corbett, Harris Beach PLLC, Uniondale, NY, for Defendant–Appellant–Cross–Appellee Village of Freeport.

Kenneth A. Novikoff (Evan H. Krinick, Cheryl F. Korman, Scott R. Green, on the brief), Rivkin Radler LLP, Uniondale, NY, for Defendant–Appellant–Cross–Appellee Andrew Hardwick.

Amanda M. Fugazy (Adam C. Weiss, Paul P. Rooney, on the brief), Ellenoff Grossman & Schole LLP, New York, NY, for Plaintiff–Appellee–Cross–Appellant Christopher Barrella.

Before: LEVAL, CABRANES, and LOHIER, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge.

This case asks us to resolve a vexed and recurring question: what does it mean to be Hispanic? Specifically, it presents the question of whether "Hispanic" describes a race for purposes of § 1981 and Title VII.

Defendants the Village of Freeport, N.Y. ("Freeport" or "the Village") and its former mayor, Andrew Hardwick ("Hardwick"), appeal from a judgment of the United States District Court for the Eastern District of New York (Arthur D. Spatt, Judge ) following a jury verdict for plaintiff Christopher Barrella ("Barrella"). Barrella had sued under 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq., alleging that Hardwick had not appointed him chief of police because Barrella was a white Italian–American, and that Hardwick had instead appointed a less-qualified Hispanic.

Based on longstanding Supreme Court and Second Circuit precedent, we reiterate that "race" includes ethnicity for purposes of § 1981, so that discrimination based on Hispanic ancestry or lack thereof constitutes racial discrimination under that statute. We also hold that "race" should be defined the same way for purposes of Title VII. Accordingly, we reject defendants' argument that an employer who promotes a white Hispanic candidate over a white non-Hispanic candidate cannot have engaged in racial discrimination, and we AFFIRM the judgment of the District Court insofar as it denied defendants' motions for judgment as a matter of law pursuant to Rule 50 of the Federal Rules of Civil Procedure.

814 F.3d 599

We also hold that the District Court erred in permitting lay opinion testimony that speculated as to Hardwick's reasons for not appointing Barrella, in violation of Rule 701(b) of the Federal Rules of Evidence. Because this case was factually close, we conclude that the District Court's error was not harmless. We therefore VACATE the judgment of the District Court and REMAND for a new trial consistent with this opinion.

I. BACKGROUND¹

In 2009, the Village elected its first black mayor, Andrew Hardwick. Once in office, Hardwick sought to replace the Freeport Police Department's all-white "command staff"—its chief, assistant chief, and deputy chief—with officers who "shared his vision for Freeport"² and would help him "achieve his vision of community unity."³

Hardwick quickly identified Lieutenant Miguel Bermudez ("Bermudez") as his preferred candidate for the command staff and, ultimately, for chief of police. Bermudez—"who identifies as a member of the White race" and was born in Cuba⁴ —had grown up in Freeport and, after living for some time in nearby Massapequa Park, had moved back to the Village in 2006. Bermudez and Hardwick had known each other for more than 25 years,⁵ primarily through their shared service in the Freeport Fire Department.

Filling the positions of deputy chief and assistant chief required approval by the Village Board of Trustees, of which the mayor was a member. In April 2010, Hardwick recommended to the Trustees that Bermudez be named deputy chief (the most junior of the three command staff positions), and the Trustees unanimously approved his appointment. Three months later, the mayor recommended, and the Board confirmed, Bermudez's promotion to assistant chief. That promotion made Bermudez the de facto chief of police because the nominal chief, Michael Woodward, was often absent from Freeport, as he used up his accrued leave in preparation for his pending retirement.

Unlike the positions of deputy chief and assistant chief, the Freeport Chief of Police is a civil service position for which candidates must take a promotional examination. The three highest scorers are eligible for selection by the mayor, who exercises sole control over the appointment.

After the Village announced that it would be appointing a new chief, six Freeport police lieutenants sat for a promotional examination, in March 2010. Plaintiff Christopher Barrella, a white Italian–American born in the United States, scored highest. Lieutenant Wayne Giglio, also white, earned the second-highest score. Bermudez came in third.

Barrella testified that he considered himself more qualified than Bermudez to

814 F.3d 600

serve as chief. Unlike Bermudez, who had not completed college, Barrella had earned a master's degree in criminal justice and a law degree. Barrella also had more "time in rank" as a lieutenant than Bermudez. And Barrella out-scored Bermudez on the promotional examination. At the same time, Barrella faced three obstacles: he did not know Hardwick; he lacked any influential political allies; and he was not, and never had been, a Freeport resident. The parties dispute the relevance of these considerations.

In November 2010, Hardwick promoted Bermudez to chief without interviewing Barrella or reviewing his resume, personnel file, or other materials related to his candidacy for the position.⁶

In August 2011, Barrella filed a charge with the U.S. Equal Employment Opportunity Commission ("EEOC"), alleging that he had not been promoted because of his race (non-Hispanic white) and national origin (American). After the EEOC sent Barrella a "Notice of Right to Sue," he commenced this action on January 25, 2012, against Hardwick⁷ and the Village, alleging violations of 42 U.S.C. §§ 1981 and 1983,⁸ Title VII, and NYSHRL.

After extensive discovery, defendants filed motions for summary judgment. On April 26, 2014, the District Court denied the motions except with respect to Barrella's claim of national-origin discrimination. The case then proceeded to trial, during which the jury heard testimony from twelve witnesses over a period of three weeks. At the conclusion of the trial, and after five days of deliberation, the jury rendered a verdict against both defendants on May 28, 2014, finding that Hardwick had intentionally discriminated against Barrella on the basis of race. The jury awarded Barrella $150,000 for lost back pay, $1,000,000 for lost future pay, and (against Hardwick only) $200,000 in punitive damages. The District Court denied defendants' motions for judgment as a matter of law under Rule 50 of the Federal Rules of Civil Procedure and for a new trial or remittitur under Rule 59. The Court also awarded attorneys' fees and costs to Barrella, but denied his motion to augment his damages to offset the negative tax consequences of receiving his lost income as a lump sum. This appeal followed.

II. DISCUSSION

A. Is "Hispanic" a "Race"?

Defendants' principal argument is that "Hispanics" do not constitute a

814 F.3d 601

distinct "race" as a matter of law. As a result, defendants argue, Barrella and Bermudez are both white in the estimation of federal antidiscrimination statutes, and Hardwick's decision to promote one white candidate rather than another could not have constituted racial discrimination.⁹ Defendants raised this argument in their motions for summary judgment, motions in limine, and at trial. They renew the same argument here in challenging the District Court's denial of their Rule 50 motions for judgment as a matter of law.¹⁰

814 F.3d 602

In addressing this argument, we need not answer the vexed question posed by the Village's brief: "What is Race?"¹¹ We do, however, need to resolve a narrower issue: whether "Hispanic" is a "race" for purposes of § 1981 and Title VII.

1. "Hispanic" in Common Usage

The parties and the District Court experienced some confusion in unraveling the legal definitions of "race" and "Hispanic," thanks partly to the federal government's less-than-straightforward use of those terms.¹² The Census Bureau, following standards issued by the Office of Management and Budget ("OMB"), treats "Hispanic or Latino" as an ethnicity, the members of which may belong to any race.¹³ This bureaucratic definition, however, often fails to resonate with Hispanics themselves, who may hail from societies with quite different notions of racial identity.¹⁴ Nor is this definition entirely intuitive to the mainstream media, which...