Barrella v. Village of Freeport et al
MEMORANDUM OF DECISION AND ORDER granting 206 Motion for Attorney Fees; granting in part and denying in part 210 Motion to Amend; denying 214 Motion for Judgment as a Matter of Law or in the alternative for a New Trial; denying 219 Motion for Judgment as a Matter of Law - For the foregoing reasons, the Court denies the Defendants Rule 50 motions for judgment as a matter of law. In this regard, the Court finds, among other things, that (1) a reasonable jury could conclude that race pl ayed a motivating factor in Hardwicks decision to appoint Bermudez instead of the Plaintiff to the position of the Chief of Police; (2) Hardwick cannot prevail on the affirmative defense of qualified immunity; and (3) the evidence supported a Monell claim against the Village. The Court also denies the Defendants Rule 59 motions for a new trial. In particular, the Court finds that although it erred in excluding the 2010 U.S. Census from the evidence, that error did not arise to the level warrant ing a new trial. Stated otherwise, the Court is not convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice. The Court further finds that the jury verdict was not contrary to the weight of the evidence. The Court grants the Plaintiffs motion for attorneys fees and costs to the extent that the Plaintiff is awarded $661,139 in attorneys fees and $26,612.42 in costs. The Court grants in part and denies in part the Plaintiffs motion to amend or mold the jury verdict. The Court grants the motion insofar as the Plaintiff is awarded (1) pre-judgment interest on the back pay award of $150,000 to be calculated by the Clerk of the Court at the rate prescribed in 28 U.S.C. § 1961(a), compounded annually, from August 1, 2012 through the date of the judgment, May 30, 2014; (2) pre-judgment interest on the costs award of $26,612.42, at the rate prescribed by 28 U.S.C. § 1961(a), compounded annually, from August 1 , 2012 through the date of the judgment, May 30, 2014; and (3) post-judgment interest on the judgment amount of $1,350,000, plus costs of $26,612.42 from May 30, 2014, at the rate prescribed by 28 U.S.C. § 1961(a) compounded annually, until paid. The Court denies the motion insofar as the Plaintiff seeks (1) an upward adjustment of the jury award to account for negative tax consequences and (2) post-judgment interest on the attorneys fees award. So Ordered by Judge Arthur D. Spatt on 8/28/2014. C/ECF Judgment Clerk, C.I.. (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DECISION AND ORDER
-againstVILLAGE OF FREEPORT and ANDREW
HARDWICK, as both Mayor and in his
Fugazy & Rooney LLP
Attorneys for the Plaintiff
126 Glen Street
Glen Cove, NY 11542
By: Amanda M. Fugazy, Esq.
Adam C. Weiss, Esq., Of Counsel
Harris Beach PLLC
Attorneys for the Defendant Village of Freeport
333 Earle Ovington Blvd., Suite 901
Uniondale, New York 11553
By: Keith M. Corbett, Esq., Of Counsel
Rivkin Radler, LLP
Attorneys for the Defendant Andrew Hardwick
Uniondale, NY 11556
By: Kenneth A. Novikoff, Esq., Of Counsel
SPATT, District Judge
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
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.
A. The Motions in Limine
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:
They want to introduce evidence of Hispanic employees. Well, that is out,
respectfully. This is a race case. This is a case as to whether or not Mayor
Hardwick has a racial bias against Mr. Barrella on account of the fact that he was
White. Chief Bermudez is the person that they are pointing to  say he is not
White and you hired him.
Well, the evidence is going to suggest that he is White. But the issue here is not
whether Mayor Hardwick favored Hispanics. So therefore to bring in Hispanics
as potential evidence of racial animus in a White-Black case I think is improper.
And I don't believe that that is the subject of this lawsuit in light of your Honor's
summary judgment motion. You knocked out the national origin case. Hispanic
is not a race. Hispanic can be, according to the census and according to all
governmental documentation, those of Hispanic ethnicity can identify themselves
as White or they can identify themselves as black. Hispanic is not an identifiable
Now, the evidence [is] going to suggest from our side that, and it hasn't been
disputed, that Chief B[e]rmudez identifies as White. Your Honor decided in the
summary judgment motion that the perception of Mr. Bermudez and Mr.
Hardwick as to whether he is White is a subject for the jury.
While I may respectfully disagree with that, I understand what the position is of
the court and I understand that it is now a jury question as to whether or not
Hardwick and Bermudez perceived themselves to be White. If they agree, we
win. If they don't agree, then we get to the next level of the McDonnell Douglas
analysis. Whether or not a Hispanic was hired or not is irrelevant from our
(Tr. at 25-26.)
In this same vein, the Village’s counsel argued as follows:
This case is a very simple case, in my mind, your Honor. It comes down to two
people. Two people. Former Mayor Hardwick. Christopher Barrella. That's it.
And I believe when the court sees Miguel Bermudez and he is here, I think you
will see that Mayor Hardwick actually did appoint a White male to a position of
chief of police and I don't think the plaintiff will be able to overcome that fact. I
don't believe they will meet their burden.
(Tr. at 30.) Similarly, in reference to potential evidence regarding Hardwick’s introduction of
Bermudez as “the first Hispanic Chief of Police” of the Village, Hardwick’s counsel argued as
in light of your Honor's decision, the fact that the statement was even made and
made reference to Hispanic is now, in our respectful opinion, off the table.
Now, this is not a Hispanic case anymore. This is a White and Black case.
(Tr. at 37.)
In response to the Defendants’ arguments that hispanic is a type of national origin
and that the evidence would show that Bermudez’s race was, in fact, white, the Plaintiff’s
counsel argued as follows:
By referring to Chief Bermudez as Hispanic – and we respectfully disagree. I
mean, they are confusing the issue of skin color with race. I mean, this is a
question for the jury, but Hispanic is a race as far as I'm concerned. And this is
just a comment to show that the mayor's state of mind in making these decisions
was that he was taking into account the person's race because he was referring to
them in terms of their race.
(Tr. at 38.). The Court denied the Defendants’ motion in limine. (Tr. at 39.)
These arguments foreshadowed the parties’ respective trial strategies, in particular that of
the Defendants. In plain terms, the Defendants intended to argue that, as a matter of law,
hispanic is not a type of race, but rather a type of national origin and therefore, any reference to
the fact that Bermudez is hispanic would be irrelevant and prejudicial to the Defendants because
the national origin claims had been previously dismissed. In this regard, the Defendants
expressed their intention to introduce evidence that Bermudez’s race was, in fact, white.
B. The Court’s Opening Description of the Case
Prior to the opening statements by counsel, the Court briefly described the case to
the jury as follows
Very briefly, I can tell you that the plaintiff, a lieutenant in the
Village of Freeport police department, alleges that the Village of Freeport
and its former mayor, Andrew Hardwick, failed to promote him to
the position of Chief of Police or another command position within the
village police department on the basis of his race, being namely the plaintiff
is a White Caucasian man and the mayor is a Black African-American man.
So that the alleged discrimination is by a Black African-American
mayor against a White Caucasian police lieutenant.
On the other hand, for his part, former Mayor Hardwick contends that
he did not discriminate against the plaintiff on the basis of race.
In addition, former Mayor Hardwick contends that he had legitimate,
nondiscriminatory reasons for not appointing the plaintiff
to the position of Chief of Police.
Also, the Village of Freeport denies that it discriminated against
the plaintiff. The village also asserts that it does not have any
employment policy or custom that is either discriminatory or unconstitutional
or violated the law in any way.
(Tr. at 67-68.) Thus, the Court made no reference to claims based on skin color as opposed to
C. The Opening Statements
Of relevance here, in his opening statement, the Plaintiff’s counsel stated as follows:
the evidence will show at the time the only people that were
being seriously considered for any of these three chief positions were
Blacks and Hispanics.
Blacks and Hispanics also constituted 69 percent of all part-time hires, 61
percent of full-time hires. And on the flip side, Caucasians constituted 67
percent of those terminated or otherwise separated from their employment
with the village in non-seasonal positions.
Now the defendants may also try to cloud the issue by confusing the concepts
of skin color and race. Skin color is not the issue here. Barrella and
Bermudez are both light-skinned. However, evidence will show that it was
Miguel Bermudez’s race, Hispanic, that played the motivating factor in the
mayor's decision to handpick him for that chief job.
(Tr. at 87, 90, 91.)
In the Village’s opening statement, the Village’s counsel stated, in pertinent part:
Lo and behold, the person who does get promoted is Miguel Bermudez. And
unless my eyes deceive me, and unless I'm missing something, I think Miguel
Bermudez's skin color is actually whiter than Mr. Barrella's. There is no question
that if I asked you to describe one of them, I think we would all use the term
White. In fact, I think when police officers – and you will see evidence of
in, actually call in instances of crime, or they call in instances of misconduct they
generally refer to people as White or Black. I'm pretty confident that a sergeant at
the desk when he picks up the phone and hears a call concerning Chief Bermudez,
they would describe him as White. I think we can all see here they're both White.
So the crux of this whole case is that Mayor Hardwick discriminated against him
because of his race. Yet he promoted someone of the same race. Very simple.
You have two White males, and one became chief, one didn't. I implore you to
find the racial animosity, that inference, it doesn't exist.
(Tr. at 95-96, 100.)
Finally, in Hardwick’s opening statement, his counsel stated:
Mr. Bermudez is White. And if you don't believe your own eyes, you will hear
Mr. Bermudez when he testifies that he is White. Merely because you have a
Hispanic or Latino surname doesn't make you non-White. Mr. Bermudez will
testify that he is White. Mr. Hardwick will testify that in the 30 or 35 years that
he has known Mr. Bermudez, he has always considered him to be White.
(Tr. at 102.)
D. The Plaintiff’s Case
1. The Plaintiff
The Plaintiff first testified on his behalf. The Plaintiff stated that, within the Village of
Freeport Police Department, he had held the positions of police officer, sergeant, and lieutenant.
(Transcript “Tr.” 120-21, 23.) The Plaintiff testified that, in 2010, the position of Chief of Police
opened up due to the retirement of Chief Michael Woodward. The Plaintiff applied for that
position and testified that the Hardwick “bypassed [him] for that position and he promoted 
Bermudez because he wanted a minority.” (Tr. at 119.)
At the time of the trial, the Plaintiff served as a lieutenant, having started as an officer in
1990. The Plaintiff testified that the positions that outranked lieutenant were the Deputy Chief,
the Assistant Chief, and the Chief of Police, collectively known as the “command staff.” (Tr. at
The Plaintiff earned a degree of Associate of Science in Criminal Justice at SUNY
Farmingdale in 1988; a Bachelor of Arts with a major in Criminal Justice from C.W. Post in
1990; a Master of Public Administration from C.W. Post in 1993; and a Juris Doctor from the St.
John’s Law School in 1999. (Tr. at 124.)
While working at the Freeport Police Department, the Plaintiff scored first on each of the
civil service promotional exams he took. (Tr. at 130.) The Plaintiff also participated in a 12week training course with the FBI in Quantico, Virginia. The Plaintiff testified that no other
individual in the Police Department had taken the FBI academy course. (Tr. at 131-32.) The
Plaintiff also testified about various accolades he received from the Nassau County Police
Department and the Village of Freeport Police Department and recognition from members of the
community. The Plaintiff further stated that he was a member of the Freeport Police Benevolent
Association (“PBA”) and other community organizations in Freeport.
In May 2010, the Plaintiff sat for the civil service promotional examination for the Chief
of Police position to fill the impending vacancy to be created by the retirement of Michael
Woodward. (Tr. at 148.) In addition to the Plaintiff, the examination was taken by Detective
Lieutenant Wayne Giglio, Lieutenant Bermudez, Ed Thompson, Debbie Zagaja, and Paul
Jurgens. (Tr. at 150.) The Plaintiff explained the “one-in-three” rule, which allows the
appointing authority, Hardwick, to choose one of the top three scoring individuals for the
position under the Civil Service Law. The Plaintiff scored number one, Giglio scored two, and
Bermudez scored three. The results became public in September 2010.
The Court admitted the Plaintiff’s October 2010 letter to Hardwick declaring his interest
in the open position of the Chief of Police. (Tr. at 151.) The October 2010 letter included a letter
of intent, a resume, and references, including one from former Assistant Chief Al Gros, who is
white. However, the Plaintiff was never granted an interview by Hardwick for the position of
Chief of Police nor was the position posted anywhere. (Tr. 153, 179) The Plaintiff testified that
he spoke with Hardwick at a PBA association function to express his interest in the position of
Chief of Police. (Tr. at 154.) According to the Plaintiff, Hardwick told the Plaintiff that he had
“a very impressive resume, and that the interviews would be held in the next couple of weeks.”
(Tr. at 154.)
The Plaintiff testified that Bermudez had previously been appointed by Hardwick to
Deputy Chief in April 2010. (Tr. at 157-58) Similarly, the Plaintiff testified that only
“[r]udimentary” interviews were held for the position of Deputy Chief. (Tr. at 158.) The
Plaintiff testified that he did not bother applying for the position of Deputy Chief because, in his
view, Bermudez was always going to be appointed to that position. (Tr. at 159.) In support of
that assertion, the Plaintiff stated that, at a Hispanic Heritage party gathering in late 2009,
Hardwick referred to Bermudez as “Chief,” even though Bermudez had not yet been appointed
to a Command Staff position. (Tr. at 159.)
The Plaintiff also testified that, as Deputy Chief, Bermudez began a meeting by playing a
“parody of Hitler screaming at his commanders,” which in the Plaintiff’s view reflected “poor
judgment” (Tr. at 161-62.) The Plaintiff stated that, at the end of the meeting, Bermudez stated
“I can be that guy.” (Tr. at 162.) Bermudez also referred to an overtime list as “Schindler’s list.”
(Tr. at 162.)
The Plaintiff also testified regarding a conversation he had with Woodward regarding his
retirement. The Plaintiff stated that Woodward told him that he did not want to leave, but that
Hardwick “made a deal he couldn’t refuse.” (Tr. at 164.) The Plaintiff also testified that thenAssistant Chief Gros also did not want to leave the Command Staff. (Tr. at 165.)
In about July 2010, Bermudez was promoted to Assistant Chief, although there was no
job posting; nobody contacted the Plaintiff about this position; and no interviews were
conducted. (Tr. at 165-66.) The Plaintiff testified that he heard that an “automatic promotion” to
Assistant Chief had been put in Bermudez’s Deputy Chief contract. (Tr. at 166.)
The Plaintiff testified that he believed the decision to appoint Bermudez to the position of
Chief of Police was discriminatory because Bermudez had “[l]ess time as [a] lieutenant, less
education, scored less on the test.” (Tr. at 179.)
The Plaintiff also testified that, during Hardwick’s campaign for Mayor, he watched a
campaign video where Hardwick said “We are no longer the minority. We are the majority. It’s
time we get our share.” (Tr. at 189.)
The Plaintiff testified that he would have expected to stay as Chief of Police for 12 years
and that, in that position, “you’re not getting fired but for cause.” (Tr. at 196-97.) He also
testified regarding lost back pay and future pay, loss of pension, and the “demoralizing” effect of
not being promoted to the Chief of Police. (Tr. at 197.) The Plaintiff testified that he applied for
Chief positions in other departments, but never received a call. (Tr. at 198-199.)
On cross-examination, the Plaintiff conceded that the only person from the Village who
put in a recommendation on his behalf for the position for Chief of Police was Gros. (Tr. at 207.)
When asked if Bermudez was white, the Plaintiff said “yes” while also stating that Bermudez
was a minority person. (Tr. at 211.) The Plaintiff further conceded that one did not need a
college degree or any advanced degree to be considered for the position of Chief of Police. (Tr.
at 217.) The Plaintiff also conceded that he never heard Hardwick make any derogatory
comments about race. (Tr. at 217.) The Plaintiff also testified that Bermudez was qualified to be
Chief of Police, but insisted that he was more qualified than Bermudez. (Tr. at 230.)
The Plaintiff also conceded that, during his tenure, Hardwick appointed a white Village
Clerk, a white Village Attorney, and a white Deputy Chief of Police. (Tr. at 233, 246, 262.) The
Plaintiff further conceded that Bermudez was “running the [Police] Department” when he was
made Deputy Chief in April 2010 until he was made Chief of Police in November 2010. (Tr. at
The Plaintiff also testified that Hardwick, a Democrat, had unseated William Glacken, a
Republican, and was the first Democratic Mayor in Freeport in 25 years. (Tr. at 301.)
The Plaintiff also conceded that before the March 2010 promotional test, he had no
relationship with Hardwick. (Tr. at 321.) The Plaintiff further stated that the Deputy Chief
position and the Assistant Chief position have to be approved by a majority of the Board of
Trustees, which included the Mayor. (Tr. at 324.) Finally, the Plaintiff testified that Woodward
never told him that he felt he was discriminated against because he was white. (Tr. at 331.)
On re-direct examination, the Plaintiff testified that, when Bermudez was Deputy Chief
and Assistant Chief, he delegated certain Command Staff duties to the Plaintiff. (Tr. at 348.) The
Plaintiff stated that, in October 2010, Bermudez told him that Hardwick had chosen him to be the
Chief of Police. (Tr. at 350.) The Plaintiff indicated that he did not ask Woodward to write him a
letter of recommendation for the Chief of Police position because, among other reasons, he did
not want to put Woodward “in the middle of choosing” between the Plaintiff and Bermudez. (Tr.
In addition, the Plaintiff testified about how Hardwick attempted to promote a less
qualified police officer, Zina Leftenant, an Africa-American female, to the position of Assistant
Chief. The Plaintiff also stated that the Command Staff positions and Lieutenants do not receive
the same quantity of overtime pay per year, in that command staff positions garner about 20
hours a year at different rates of pay. (Tr. at 373-374.)
Hardwick admitted that he played a role in the majority of hires during his tenure. (Tr. at
377, 79.) When asked if the Mayor of Freeport is akin to the “CEO of a company,” Hardwick
responded “absolutely” and that he was responsible for the day-to-day operations of the Village
(Tr. at 377.)
Hardwick stated that although the Board of Trustees was ultimately responsible for
making the final hiring decisions of department heads, he made “recommendations” “in most
instances,” “especially for department heads.” (Tr. at 380-82.) For example, Hardwick made
recommendations or appointments to the Board of black and hispanic individuals to replace
white individuals for the position of Superintendent of Buildings, the Buildings Department,
Assessor, and the Secretary to the Mayor. Indeed, Hardwick conceded that eleven of twelve
department heads who retired, resigned, or were not reappointed during his tenure were white
and that he could not remember any other department heads. (Tr. at 417, 422.)
Hardwick conceded that when making a hiring decision for department heads, interviews
were important “[i]n most cases.” (Tr. at 392.)
Through Hardwick, the Plaintiff admitted documentary evidence revealing that, during
Hardwick’s tenure, 191 of 198 seasonal hires were hispanic or black. (Tr. at 401.). Hardwick
admitted that he was involved in some of these hires. (Tr. at 399.) Hardwick explained this
statistic by alluding to the fact that a majority of Freeport were minority races. (Tr. 412.)
Hardwick testified that he knew Bermudez for over 30 years and considered him to be a
white Latino male. (Tr. at 471.) On the other hand, Hardwick did not know the Plaintiff well.
(Tr. at 475.)
As to Bermudez’s appointment to be Chief of Police, Hardwick testified that the Board of
Trustees did not need to approve that appointment. (Tr. at 491.) Hardwick conceded that he
never interviewed the Plaintiff for the position of Chief of Police even after he discovered that
the Plaintiff had scored number “1” on the promotional examination. (Tr. 477.) Hardwick also
did not interview Giglio, who is white. (Tr. at 493.) On the other hand, Hardwick interviewed
Bermudez for this position. (Tr. at 493) In this regard, Hardwick admitted that he reviewed none
of the Plaintiff’s disciplinary records, personnel files, resumes, or police records of any kind in
connection with his decision to appoint Bermudez. (Tr. 496-98.). Hardwick testified that he
accorded “very little” weight to recommendations from people outside the police department.
(Tr. at 507.) Hardwick stated that Bermudez shared his vision for Freeport, but that he did not
know the Plaintiff’s vision for Freeport (Tr. at 514.)
Hardwick also testified that, at the time he appointed Bermudez to the position of Deputy
Chief, he had already decided that he was later going to be promoted to Assistant Chief. (Tr. at
Hardwick explained that he did not appoint the Plaintiff primarily because he did not
receive “any real noticeable encouragement” from any of the members of the Board of Trustees
or anybody else regarding the Plaintiff’s candidacy. (Tr. at 513.)
On cross-examination, Hardwick testified that although he had sole authority to appoint
Bermudez as Chief of Police, the Board of Trustees had the sole authority to appoint the other
various department heads to their respective positions. (Tr. at 544.) Hardwick stated that the
other four members of the Board were white. (Tr. at 544)
Hardwick reiterated that he knew Bermudez for over 40 years; that they grew up
together; and that they served in the Village Fire Department together. (Tr. at 545-46.) Hardwick
also stated that he loved Freeport and that Bermudez loved Freeport as well.
Hardwick also testified that, prior to the promotional examination for Chief of Police,
Woodward recommended Bermudez and Zajaga for the position of Chief of Police. (Tr. at 549550.) After the results of the examination, with regard to Bermudez and Zajaga, only Bermudez
was qualified for the position, per the rule of three.
Hardwick also stated that between February 2010 and April 2010, Bermudez was in fact
running the day-to-day operations of the Police Department and that he performed that task in an
excellent manner during that time period. (Tr. at 556-57.) Bermudez was also the de facto leader
of the Police Department from April 2010 through his November 2010 appointment to Chief of
Police. His performance during this period “weighed heavily” in Hardwick’s decision to
ultimately appoint Bermudez to the position of Chief of Police. (Tr. at 559.)
Hardwick also accorded a “good amount of weight” to the fact that Bermudez was still a
volunteer firefighter for Freeport. (Tr. at 580.) Hardwick also stated that, after he received the
test results, he had a conversation with Woodward who described the Plaintiff as “abrasive.” (Tr.
at 583.) Hardwick also considered the fact that the Plaintiff lived 31 miles outside of Freeport,
which he referred to as a “long haul.” (Tr. at 583.)
On re-direct examination, Hardwick conceded that did not ascertain whether the Plaintiff
loved Freeport, nor did he ask Giglio whether he loved Freeport. (Tr. at 587.) Hardwick also
acknowledged that the Freeport census indicated that Freeport is one-third white, one-third black,
and one-third hispanic. (Tr. at 591.) Hardwick also stated that Woodward never told him that
Bermudez was a better candidate than the Plaintiff. (Tr. at 595-96.)
3. Alfred Gros
Former Assistant Chief, Al Gros, testified about his contract not being renewed by
Hardwick; that he was essentially forced to retire; and he described the manner in which
Hardwick dismantled the Command Staff of the Village Police Department in “not an orderly
fashion.” (Tr. at 653-54, 58.) Gros expressed his belief that race was a motivating factor in
Hardwick’s personnel decisions and that the Plaintiff was a stronger candidate for the Command
Staff than Bermudez as a result of his experience working with both individuals for many years.
(Tr. at 611, 613-21.)
Gros stated that he and Woodward often had conversations about the future of the Police
Department and that the Plaintiff “was a definite person in consideration to be brought up” to the
Command Staff. (Tr. at 630.) Bermudez was never so mentioned. (Tr. at 648.) According to
Gros, the Plaintiff was the strongest Lieutenant candidate for Chief of the Police. (Tr. at 633.)
Indeed, Gros provided the Plaintiff with a letter of recommendation for the position of the Chief
of Police. However, Hardwick never discussed the letter of recommendation with Gros, or asked
Gros for his opinion on any of the candidates. (Tr. at 645.)
Gros testified that he thought “there might been a component of race involved in the
decision” to not promote the Plaintiff. (Tr. at 613.) In support of this assertion, Gros pointed to
“promotions that were going on at the time with the Mayor’s office.” (Tr. at 613.)
On cross-examination, Gros conceded that he never served in any official capacity in the
Human Resources Department of the Village (Tr. 659.), nor did he have any personal knowledge
as to what criteria or information Hardwick used in determining how to make his appointments.
Gros also acknowledged that he served effectively as Assistant Chief of Police, even
though he did not have a Master’s Degree or a Law Degree. (Tr. at 664.) Gros also noted that,
although his contract expired in February 2010, the Village allowed him to stay on through June
2010 so he could accrue time for certain pension credits. (Tr. at 665.) Gros also stated that
Bermudez performed adequately; was a good officer; and had the personality and temperament
to deal with the public effectively. (Tr. at 667.) Gros also testified that Bermudez looked white
to him. (Tr. at 673.) Gros also conceded that the Mayor needs department heads that are loyal to
him and committed to his vision. (Tr. at 685.)
On re-direct examination, Gros asserted that six months is not sufficient time to prepare
oneself to become the Chief of Police. (Tr. at 719.) Gros also stated that, at the time of his
retirement, Bermudez was not ready to become Chief. (Tr. at 720.) Gros also stated that the
Plaintiff possessed the temperament and personality to be Chief of Police. (Tr. at 721-22.)
4. John Maguire
John Maguire served in the early part of 2009 as Hardwick’s Chief of Staff. Maguire was
charged with meeting regularly with the Village Department heads and confirmed that the Mayor
made all the decisions as to the department head selections.
Maguire expressed his belief that race was a motivating factor in Hardwick’s personnel
decisions. (Tr. at 750-51.) Indeed, Maguire testified as to at least 10 department head decisions,
including assessor, that Maguire personally witnessed. He voiced disagreement with Hardwick
because the candidates selected by Hardwick, who were minorities, had inferior credentials to
the persons they were replacing and other eligible candidates who were white. (Tr. 751-60.)
Maguire further stated that, although in many circumstances Hardwick replaced a white person
with a minority, in no case did he replace a minority with a white person. (Tr. 782.). Finally,
Maguire testified that Hardwick often made comments that he wanted the Village government to
“look like the Village.” (Tr. 789-90.)
Maguire stated that his interactions with the Plaintiff were “[v]ery professional” and there
was nothing negative Maguire would say about the Plaintiff. (Tr. at 800.)
On cross-examination, Maguire conceded that, under Hardwick, the Superintendent of
the Electric Department, the Village Attorney, and the Village Clerk were white. Maguire also
stated that he lacked first-hand knowledge with regard to Hardwick’s selection criteria for the
position of Chief of Police. (Tr. at 827-28.) Hardwick eventually relieved Maguire of his duties
as Chief of Staff.
On re-direct examination, Maguire stated that, in his experience, there never came a time
that anyone was able to convince Hardwick to not appoint someone that he wanted to appoint in
that position. (Tr. at 849.) The basis for Maguire’s position that Hardwick engaged in race-based
personnel decision-making was that the individuals actually promoted were not qualified for the
relevant jobs. (Tr. at 851.)
Shawn Randall, a police officer in the Village and the President of the PBA, also
testified. Randall stated that although the Chief of Police usually recommended the Deputy
Chief and Assistant Chief, during Hardwick’s tenure, Hardwick made the recommendations.
(Tr. at 858-59.) Randall testified that members of the Command Staff earn more holiday
overtime throughout the year. (Tr. at 874.) Randall also stated that that the Chief of Police
remains in that position until 65 years of age; that Woodward was not 65 years of age when
Hardwick became mayor; and that thus Hardwick needed to incentivize Woodward to leave. (Tr.
at 877.) Randall stated that nobody on the Command Staff “wanted to leave” when Hardwick
became mayor. (Tr. at 878.) When Hardwick initially appointed Bermudez as the Deputy Chief,
he referred to Bermudez as the “first male Hispanic” chief of the Freeport police department. (Tr.
On cross-examination, Randall conceded that he was not involved in most of Hardwick’s
decisions relating to personnel in the police department. (Tr. at 910.) Randall testified that
between 2011 and 2013, the PBD did not get along with Hardwick and that it did not support his
reelection. (Tr. at 917.) Randall also conceded that he never communicated to Hardwick that the
Plaintiff should be considered for a Command Staff position. (Tr. at 921-22.) Randall also stated
that Bermudez was qualified to be the Chief of Police. (Tr. at 923.)
6. Bruce Jonas
Bruce Jonas, C.P.A., testified as the Plaintiff’s expert on damage calculations. Jonas was
employed by Jonas & Welsch and practiced litigation support services. (Tr. at 954.) Jonas
testified that he had no financial stake in the outcome of the case. (Tr. at 959.) The Court
admitted into evidence Jonas’s expert report dated December 2013, which calculated all past and
future monies to which the Plaintiff allegedly would have been entitled to but for Hardwick’s
allegedly discriminatory decision. Jonas considered the amended complaint; the Freeport Detail
Check history of Bermudez from April 14, 2011 through March 28, 2013; the memorandum of
agreement dated September 2010 between the Village of Freeport and the PBA; the terms of
Employment for Chief of Police Bermudez from 11/26/2010 through 11/26/2012; the New York
State and Local Police and Fire Retirement System; the PBA contract, March 1, 2004, through
February 28, 2010; the VFPD purchase order for Bermudez for plain clothes; allowances as well
as maintenance for uniform and equipment; tax forms; W-2 and 1040 for the Plaintiff from 2008
through 2012; and other publications of a scholarly nature from the United States Department of
Bureau of Labor Statistics. (Tr. at 961.)
Jonas explained that his role as a damages expert is find out “what would have – what
compensation would the plaintiff have earned and what perks would he gotten had the alleged
wrongdoing not occurred.” (Tr. at 962.) Jonas further described the manner in which he
computed the damages figures, including but not limited to accounting for past and future wages
and benefits, and reducing all for net present value. Jonas calculated that, in his opinion to a
reasonable degree of certainty, the Plaintiff’s past lost compensation that resulted from the
Village’s failure to promote him to the Chief of Police was $148,419. (Tr. at 966.)
Jonas used the year 2022 as the end of the damage period, when the Plaintiff would have
been 55. (Tr. at 969.) Jonas estimated, to a reasonable degree of certainty, that $414,125
represented the net present value of the Plaintiff’s future wages lost due to the Village’s failure to
promote him to the position of the Chief of Police. (Tr. at 973.) Jonas further estimated, to a
reasonable degree of certainty, that $529,767 represented the Plaintiff’s lost pension benefits.
(Tr. at 974.) Adding in unused sick pay and other perks, according to Jonas, the total economic
damage amounted to $1,259,078 after accounting for net present value. (Tr. at 982.)
On cross-examination, Jonas conceded that he had received the Plaintiff’s counsel’s
estimate of damages, which exceeded 2 million dollars. (Tr. at 983.) Jonas also stated that
Bermudez’s contract as Chief of Police expired after a two-year term. (Tr. at 985.) Ultimately,
Jonas conceded that “[n]one of us had a crystal ball.” (Tr. at 986.)
7. Anthony Miller
Anthony Miller, a current Village employee, had known Hardwick since Miller’s
childhood. Miller testified that, on one occasion, Hardwick confronted him saying “You are
going to let these white folks kill me like this at these board meetings?” (Tr. at 1019.). Miller
also overheard Hardwick refer to Bermudez as the “first Latino Police Chief” at various
gatherings and events. Similarly, Miller stated that he heard Hardwick refer to Deputy Mayor,
Carmen Pinero, as the first “Latina Deputy Mayor” many times. (Tr. at 1014-15.)
On cross-examination, Miller conceded that he was not involved with any personnel
decision by Hardwick nor was he privy to any conversations that Hardwick had with other
Village employees concerning personnel decisions. (Tr. at 1032.) However, Miller insisted that
Hardwick often said he wanted the Village government to look more like the Village. (Tr. at
On re-direct examination, Miller testified that he was concerned when Hardwick
appointed Scott Richardson, an African-American male, as Superintendent of Public Works,
because Miller considered him unqualified for the position. (Tr. at 1075-77.)
8. Michael Woodward
Michael Woodward, the former Chief of Police for the Village of Freeport, testified by
deposition because he no longer resided in the New York metropolitan area. Woodward, who is
white, testified that Hardwick forced his retirement. Woodward also stated that the non-renewal
of the contract of Gros, also white, and the demotion of Deputy Chief Debbie Zagaja, also white,
occurred within the first year of Hardwick’s term of office. (Tr. at 1140-42.)
Woodward further testified that he did not believe Bermudez was the most qualified
individual at the time of his promotion to Deputy Chief. (Tr. at 1150.). Woodward lauded the
Plaintiff’s qualifications and experience. Woodward stated that he was aware that Hardwick
wanted to promote a black female, Leftenant, to Assistant Chief and testified that the Plaintiff
was “much more qualified” than Leftenant. (Tr. at 1156.)
Indeed, Woodward testified as follows:
Q. Do you believe that during the course of his term as mayor, Andrew Hardwick
consistently terminated, demoted, and refused to promote non-Hispanic white
employees in favor of Black and Hispanic employees?
(Tr. at 1158.) Woodward also stated that a number of personnel decisions by Hardwick were
racially motivated, including the hiring of, among others, Richardson for Superintendent of
Public Works, Richard Brown for Superintendent of Buildings, James Smith for Assessor, and
Dianna Torres for Human Resources.
Woodward agreed with Maguire that it was not a good idea for Hardwick to replace the
entire Command Staff at the beginning of his term, stating “you just can’t take the whole head of
the organization and wipe it out,” stressing the need for “continuity” (Tr. at 1132, 1140.)
Woodward confirmed that Gros was not ready to retire and that he was upset about being forced
to retire. (Tr. at 1140.) Woodward also felt that Zagaja was more qualified than Bermudez. (Tr.
at 1150.) Woodward further stated that Hardwick never asked him who he would recommend
for any Command Staff position. (Tr. at 1152.) Woodward disagreed with Hardwick’s attempts
to promote Zena Leftenant to a Command Staff position, labeling her “unqualified.” (Tr. at
1156.) Woodward testified that he believed Hardwick wanted Leftenant on the Command Staff
because she was black. (Tr. at 1156)
9. Howard Colton
Howard Colton, the current Village Attorney, who served in a similar capacity during
Hardwick’s tenure as Mayor, also testified. Colton confirmed that the Mayor exclusively
appoints persons to department head positions in the first instance and that an appointee may
remain in his or her position as a “holdover” for successive terms until a replacement is voted in
by the Board of Trustees. Hardwick, as the Mayor, was a voting member of the Board of
Notably, Colton testified at his deposition that Isamaela Hernandez and Dianna Torres,
two Village employees, were of the hispanic race. (Tr. 1260). However, at the trial, Colton
reversed himself and declared that both persons were actually of the white race. (Tr. 1259-60.).
Colton described Asians as “white.” (Tr. 1294.) Finally, although every other witness at the trial
considered the Plaintiff to be more qualified than Leftenants for a Command Staff position,
Colton contradicted his deposition testimony and asserted that Leftenant was more qualified than
the Plaintiff. (Tr. 1272-73.)
On cross-examination of Colton, Hardwick’s counsel attempted to offer into evidence the
2010 United States Census. The Plaintiff’s counsel objected, and this Court sustained the
objection on the ground of relevancy. (Tr. at 1352.)
The following day, Hardwick’s counsel renewed his objection, explaining that:
The census is relevant to this case in my opinion since this entire case is about
race discrimination. We spent the better part of two weeks going back and forth
over who is white, who is not white, what is Hispanic, what isn’t Hispanic.
In fact, plaintiff’s counsel in opening statement told the jury that Hispanic is [a]
race. He said that specifically. And I presume he will be arguing that on closing.
The United States census, your Honor, provides five categories of race, and they
are as follows:
White, black or African American, American Indian, and Alaska native, Asian,
native Hawaiian, or other Pacific Islander.
Hispanic under the United States census, the government’s view, is not a race.
In fact, according to the census, it provides a separate category for Hispanic or
Latino. And so there is no confusion it says: Hispanic or Latino, and race. And
then it breaks out by Freeport the population.
So I would respectfully submit, your Honor, the issue – and we will be arguing
this on our motion for a directed verdict at the end of plaintiffs case.
(Tr. at 1370.)
The Plaintiff’s counsel maintained that this Court should continue to sustain the
Plaintiff’s objection, and that whether hispanic is a race different from the white or black race
was an issue of law. In particular, the Plaintiff’s counsel stated:
My proposition is, your Honor, that as your Honor previously ruled
yesterday, the census figures are irrelevant as to the issues in this case. The issue
is whether the plaintiff was discriminated because of his race. So whatever
the population of Freeport is not relevant here.
And I would submit that they are claiming that being Hispanic is not a race.
And they want that position submitted to the jury.
We are entitled as part of our jury instructions, and it is an issue of law, and
it is for the Court to determine and not the jury.
And it is very clear in this Circuit, and I cite Cassanova, C-A-S-S-A-N-O-V-A,
versus General Mills Restaurants, Inc. That is 94-VV 4386, an Eastern District
of New York from 1997. And it says very clearly that although the plaintiff
intends to discriminate against here on the basis of Hispanic origin, the Court
construes that that complaint is racial rather than national origin discrimination.
So I believe it is an issue of law and not an issue of fact for the jury to determine.
There are many other cases citing that.
There is an often cited case on this issue that says in terms of race or racial
discrimination, there may be such doubt sociological validity as to be
scientifically meaningless that these terms nonetheless are subject to commonly
accepted, albeit sometimes vague understanding, on this admittedly unscientific
basis whites are claiming a race susceptible to race discrimination. Hispanic
persons and Indians, like blacks, have been traditional victims of group discrimination.
And however inaccurately or stupidly are frequently and even commonly
subject to racial, in quotes, identification as non-whites. And that is cited from
Dubinsky, D-U-B-I-N-S-K-Y, versus Corning Glass Works, 425
Supp. 786, Western District of Pennsylvania, 1977.
That case, your Honor, has been well-cited for this proposition, that being Hispanic is a
race as a matter of law, it is not treated as national origin.
I would also submit that it appears that the defendants in this case, because your
Honor dismissed the national origin claims that were brought initially, we had
alleged that because the plaintiff is American and the person who was promoted
was Cuban, that that alleged national origin discrimination. That was the basis of
our national origin claim.
Your Honor said there wasn't sufficient evidence in the record to support that claim and
dismissed it. Now the defendants are claiming that our claim that he was
promoted because he was Hispanic is national origin discrimination in order to
use your decision as a sword and a shield at the same time.
I would submit this whole discussion is inappropriate for the jury and it is a matter of
law. Therefore, whether the census lists Hispanic as being separate from race is really
irrelevant because it is a question of law.
(Tr. at 1372-74.)
The Court sustained the objection, stating:
This case is a simple case. Everyone is making it very complicated, but it
really isn't. Did the former mayor discriminate by not selecting a white
candidate for chief of police? And he instead
appointed number three on the list, a Hispanic candidate. That is the alleged
discrimination, period. It is very simple.
All of this other business is just clouding all the issues in my view.
(Tr. at 1375.)
10. Debbie Zagaja
Debbie Zagaja, the former Deputy Chief, who was not re-appointed by Hardwick, was
the Plaintiff’s final witness. At the time of her testimony, Zagaja was a Lieutenant in the Village
Police. (Tr. at 1387.) Zagaja testified that she became Deputy Chief in 2007 and served in that
position until March 2010, after which she was “demoted” to Lieutenant. (Tr. at 1388.)
Zagaja testified that she knew the Plaintiff for approximately 20 years from the time he
became a police officer. (Tr. at 1389.) As the Deputy Chief, Zagaja supervised the Plaintiff, both
when he was Sergeant and Lieutenant. Zagaja praised the Plaintiff’s leadership, dedication to his
job, and his experience handling functions typically reserved to the Command Staff. (Tr. at
Zagaja testified that the Plaintiff was more qualified than Bermudez for the position of
Chief of Police, yet the Plaintiff was not interviewed for this position. (Tr. at 1411, 1464.)
On cross-examination, Zagaja admitted that she was not happy about her demotion. (Tr.
at 1453.) Zagaja also admitted that she never publicly voiced concern about Bermudez’s
appointment to the Command Staff. (Tr. at 1456.)
On re-direct examination, Zagaja stated that after Bermudez was promoted to the
position of Deputy Chief in 2010, Chief Woodward still performed many functions, including
finalizing discipline. (Tr. at 1461.) Zagaja also expressed her belief that if she did voice
opposition to Bermudez and he was ultimately appointed to the position of Chief of Police, he
might retaliate against her in some way. (Tr. at 1467.)
Zagaja also related the following as to a supervisors meeting held by Bermudez in 2010:
At the very first supervisors meeting in early 2010, I think shortly after
he was made deputy chief, he played a video, a parody on the movie
Valkyrie, the actual scenes from the movie. But had a lot of curse words,
vulgarity, and told all his supervisors he could turn into Hitler and
referred to an overtime list as “Schindler's List.” And I was taken aback by that.
(Tr. at 1468.)
E. The Motions at the Close of Plaintiff’s case
At the close of the Plaintiff’s case, the Defendants each moved pursuant to Fed. R. Civ.
P. 50 for judgment as a matter of law, arguing that there was not a legally sufficient basis for a
verdict in the Plaintiff’s favor. (Tr. at 1473.)
The Village’s counsel argued, among other matters, that (1) “plaintiff himself testified
that Bermudez is white, that  Bermudez is qualified, that there is no documentary evidence to
point to or show any inference of discrimination on the part of former Mayor Hardwick;” (2) the
evidence of other personnel decisions was irrelevant because the ultimate authority to appoint
individuals to those positions rested with the Board of Trustees rather than the Mayor; (3) the
Plaintiff failed to proffer any evidence regarding a policy, practice, or custom of discrimination
as required by Monell. (Tr. at 1473-76.)
In opposition, the Plaintiff’s counsel argued, among other things, that (1) the evidence
indicated that Hardwick made the recommendations in the first instance with regard to the other
personnel decisions, thereby establishing their relevance; (2) Hardwick repeatedly filled the open
positions with unqualified “minority” candidates; (3) and the Plaintiff had “superior”
qualifications to Bermudez. (Tr. at 1476-78.)
Hardwick’s counsel argued on behalf of his own motion for judgment as a matter of law.
Hardwick’s counsel urged, among other things, that (1) the evidence set forth was a “parade of
personal opinion based on nothing,” (2) “there is not a piece of evidence to suggest that Chief
Bermudez, who is white, was picked over Mr. Barella, who is white, for any reason based on
race;” (3) Hardwick was entitled to qualified immunity; (4) the Court should take judicial notice
of the 2010 United States Census; (5) while the Plaintiff’s maintained that hispanic was a race,
“[t]hey provided no evidence to support that being a Hispanic is also a race.”(Tr. at 1482-85.)
In opposition, the Plaintiff’s counsel argued that (1) “there is no qualified immunity
under any statute or any case or anything that says that the civil service law allows the
municipality to violate Title VII, 1981, or 1983;” (2) Bermudez’s race was an “issue of law, not
of fact” and therefore no expert was necessary on the issue; (3) under Albert versus Carovano,
851 F.2d 561 (2d Cir. 1988), “race for the purpose of 1981, comprehend[s] ethnicity.” (Tr. at
Of relevance here, in denying the motions for judgment as a matter of law, the Court
stated as follows:
First of all, as far as the village is concerned – and really we have a
village and we have the chief executive officer of the village. We have
the man who speaks for the village. We have the man who makes the
decisions for the village, the mayor. The mayor really, in fact, is almost like the
village. He is the village.
So he speaks certainly for the village, and he spoke here. He made the decision
involving this case. It is like the village making the decision because the
village said to the mayor, you make the decision. We authorize you to make the
The policy, practice and custom stated by counsel?
The policy, practice and custom is to say to the mayor, you
make the decision and we're responsible for it. That’s what in fact happened.
Now, as far as the Chief of Police Bermudez being a white person and
that his Hispanic background does not lay the foundation for this kind
of case, I disagree I think his Hispanic background is a difference. Even
though he’s a white, he's a white man of Hispanic background.
And one case among others talked about that. The case is Serrano
against The New York State Department of Environmental Conservation.
It has one of these crazy titles, 2013 WL 6816787. It’s in the Northern
District of New York, and it was decided December 20, 2013, less than
a year ago. This is what it says:
While national origin and race are often distinct elements, the term
Hispanic may trigger the concept of race.
Boy, that's right on the ball. “The term ‘Hispanic’ may trigger the
concept of race,” citing Alonzo against Chase Manhattan Bank, 25
Fed. Supp 2d 455 (Southern District of New York 1998). That case
determined that there's a reasonable relationship between race and
national origin when an employee described as Hispanic checked the
national origin box and not the race box in an EEOC charge. And they
held, no, Hispanic is not only national origin, it is race as well.
So – so here we have a case where there is some evidence that Mayor
Hardwick's decision-making tended toward race rather than competency,
some evidence of that with his appointments; enough, I think, to go to the jury.
And as far as qualified immunity is concerned, this is certainly a
discrimination case which is classic of a violation of a clearly
established constitutional and statutory right. I don’t think there could be any
more clearly established violations, if there is a violation, if the jury finds a
So, here it is clear that there is sufficient evidence to go to the jury, and Rule
50 is not a basis for a dismissal of this case.
(Tr. at 1490-1493.)
F. The Village’s case
1. Miguel Bermudez
The Village called Miguel Bermudez as its first and only fact witness. Bermudez held
the title of Sergeant from 1993 to 2008 and Lieutenant from August 2008 until April 2010. (Tr.
at 1496-97.) In April 2010, Bermudez was elevated to the rank of Deputy Chief. (Tr. at 1497.)
Bermudez stated that he grew up in Freeport and knew the Mayor well as they were
growing up. (Tr. at 1500.) Bermudez testified about various volunteer organizations, including
the PBA, that he was involved with in Freeport. He also described the commendations that he
Prior to being appointed as Deputy Chief, Bermudez served as “interim chief” for less
than a month. (Tr. at 1514.) In that role, Bermudez ran the daily operations of the police
department, without the pay and benefits that go with that position. (Tr. at 1515.)
Bermudez stated that Hardwick never discussed race with him or promised him in March
2010 that he would become the Chief of Police. (Tr. at 1516.)
Bermudez testified that he belonged to the white race. (Tr. at 1516.)
Asked if Freeport is one-third black, one-third white, and one-third hispanic, Bermudez
stated that “[i]t’s a black and white community with a third of the members of that community
identifying themselves of Hispanic origin.” (Tr. at 1528.)
Asked to explain the Hitler video, Bermudez stated:
Based on a movie called “The Underground.” It deals with Adolph Hitler’s
last ten days in the bunker. It is all German. The movie is done in German
and English subtitles.
The movie I showed at the supervisors meeting was a parody where
the subtitles change with the theme of the movie to the New York
Giants beating the Dallas Cowboys at a playoff game.
During the movie, Adolph Hitler is ranting and raving: How can the
Cowboys possibly lose to the New York Giants?
The purpose of showing the movie, this is my first supervisors
meeting, and I wanted to start off light, with a little bit of humor,
to talk about a biblical subject about expecting things to be done,
and it wasn’t done in a proper fashion. And I had to read to the
supervisor two or three times to do the correct chore they were
tasked to do. During the movie I had it shown as a parody Adolph
Hitler ranting and raving.
The idea is sometimes I feel like this person inside, that I have that much
rage, to go to a seasoned supervisor to explain to them two or three times.
This is something they should get the concept once and do it correctly.
(Tr. at 1537-1538.)
Bermudez stated that there was nothing sexual about that clip or derogatory of the Jewish
faith in the clip; denied ever mentioning “Schindler’s List”; and expressed regret for this attempt
at humor. (Tr. at 1538-1539.)
Bermudez further stated it was important for the Chief of Police, like him, to be a resident
of the Village of Freeport, and that Hardwick agreed. (Tr. at 1545-46.)
On cross-examination, Bermudez somewhat contradicted his prior deposition testimony
where he conceded that his race was hispanic and testified at the trial that he now considered his
race to be “White.” (Tr. at 1551.) Bermudez also conceded that for a 16-year period when he
was a police officer, he did not reside in the Village, and that this did not affect his ability to
perform his functions as an officer. (Tr. at 1552.)
Bermudez testified that he never approached Hardwick to apply for the Deputy Chief,
Assistant Chief, or Chief of Police positions and that Hardwick simply promoted him on his own
to Assistant Chief and Chief of Police. (TR. at 1558-1559.) Hardwick never asked Bermudez
for a resume or letters of recommendation. (Tr. at 1560.) Bermudez admitted that he was tied for
the lowest ranked Lieutenant at the time of his promotion to the Command Staff and that
Hardwick did not interview him for the position of Chief of Police. (Tr. 1572-73.) Bermudez
also conceded that, in October 2009, Hardwick called him “Chief” even though he was still a
Lieutenant at that time. (Tr. at 1565.) Bermudez also confirmed prior testimony by Miller that
Hardwick referred to Bermudez as the “first Hispanic Police Chief” on more than one occasion.
(Tr. at 1574.) Bermudez also conceded that he told Hardwick that Zina Leftenant was unfit for
the position of Deputy Chief. (Tr. at 1578.)
2. Josafina Tranfa-Abboud
The Village called Josafina Tranfa-Abboud, Ph.D. as a damages expert. (Tr. at 1597.)
She testified that she is an economist who consults in litigation matters for the accounting firm of
Marks Paneth. (Tr. at 1599.) The Court admitted into evidence Tranfa-Abboud’s expert report
on damages prepared in connection with this case. (Tr. at 1607.)
Tranfa-Abboud calculated that the total potential compensation lost if the Plaintiff
established liability was $204,500. (Tr. at 1616.) Asked why her calculation of the Plaintiff’s
potential damages was significantly less than that in the Jonas & Welsch report, Tranfa-Abboud
stated as follows:
The main difference is the fact that Mr. Barrella continues to be
employed with the Village of Freeport Police Department, and if
there is a finding of liability – because he is still employed. He hasn’t
retired. He’s there. If there is a finding of liability, his compensation can
be remediated and be adjusted going forward. So future damages in this
case are untimely to be calculated.
One thing that I would like to explain is the fact that when we look
at economic damages – the claim here is a claim of alleged failure
to promote to a certain level. But when it comes to the damages, it
really has to do with the financial aspect of it, with an income that
plaintiff would have allegedly derived or earned for that position.
So what I’m analyzing is how much money Mr. Barrella would have
lost if indeed it was found there was liability in this case.
Because he’s still employed, if there is liability, his salary, his compensation,
can be remediated going forward. So beyond today’s date there is no reason
to calculate damage. That is one reason for the difference.
The other reason for the difference is because there are certain elements that Mr.
Jonas and Mr. Welsch included in their calculation of damages that are not
really categories of damages.
The third reason is Mr. Jonas and Mr. Welsch conducted a calculation
of the pension. But Mr. Barrella has not lost a pension yet because
he's still working, still employed, hasn’t retired. And if his compensation is
remediated, if there is a finding of liability, his pension will be automatically
adjusted, which is something that would happen a few years in the future.
Based on the records that I’ve reviewed, Mr. Barrella is still employed.
Damages are about whether someone in a case like this has suffered a loss
in compensation. That loss of compensation can be remediated, the damages
are limited to the past, meaning through the date of trial.
For ease of calculation I’ve extended the damages to the end of the
current contract of the chief of police, which is November of this
year, so it's a little bit into the future for now, just for convenience
of calculation. But it's really to the past, limited to the past.
(Tr. at 1608-11.)
Tranfa-Abboud also testified that the calculation by Jonas and Welsh for certain items,
like the clothing allowance; the use of a department vehicle; and the loss of a cell phone – should
not have been considered lost income because it was not an expense incurred by not being the
Chief of Police. (Tr. at 1612-13.)
On cross-examination, Tranfa-Abboud stated that she was not a C.P.A. (Tr. at 1617.)
Tranfa-Abboud also stated that she attributed zero dollars for future damages because if liability
were established, the Plaintiff’s salary could be “remediated” going forward. (Tr. at 1618-20.)
However, Tranfa-Abboud conceded that it was not her belief that salaries as provided for in the
collective bargaining agreement could be altered without bargaining with the union. (Tr. at
Following Tranfa-Abboud’s testimony, the Village rested.
G. Hardwick’s Case
Hardwick’s case consisted of reading certain portions of Woodward’s deposition
testimony. Hardwick then rested.
H. The Motions at the Close of the Case
At the close of all evidence, the Village renewed its motion under Fed. R. Civ. P. 50 for
judgment as a matter of law. The Court denied that motion. (Tr. 1638.)
Hardwick, in his individual capacity, also renewed his motion for judgment as a matter of
law. Hardwick’s counsel refined his defense of qualified immunity, arguing as follow:
On the qualified immunity issue, while I don’t think there is any debate
that Title VII, 1981, is the only one applicable to Mayor Hardwick in
addition to the state law claim, that it is well established that you
can’t discriminate on the basis of race, qualified immunity purposes, 1981
specifically refers to white citizens.
What I don’t think is clearly established, your Honor, is that if the jury
comes back with a finding of race discrimination because of the Hispanic
origin, because Mr. Bermudez's last name is Bermudez, that it is
clearly established under the case law – because I don't think there is
any Second Circuit or Supreme Court ruling – that the mayor knew it
was clearly established that race would constitute also Hispanic ethnicity;
that if the jury comes back and finds liability, then what they are saying,
Mayor Hardwick, in his individual capacity, discriminated on the basis
of race because the chief is Hispanic.
I think there's one thing that is clear here, that the law is somewhat unclear
on the interrelationship between race and national origin.
So on that basis I renew my motion.
(Tr. at 1638-39.)
In response, the Court stated as follows:
Plaintiff disagrees that that issue is not well settled. There is a
Second Circuit case I previously cited, Albert versus Carovano,
851 F.2d 561 (2d Cir. 1988), stating that, finding that
“in accordance with the understanding of the statute's drafters,
race, for the purposes of Section 1981, comprehends ethnicity.”
(Tr. at 1639-40.) Ultimately, the Court denied the motions “for the same reasons [it]
gave at the end of the plaintiff’s case.” (Tr. at 1640.)
I. The Charge Conference
Of relevance here, during the charge conference, the Plaintiff “object[ed] altogether” to
the use of the McDonell Douglas test on the following basis:
as the courts have said in the Second Circuit, that that is appropriate
for the purpose of summary judgment, but that the prevailing test in
jury charging is just whether race was a motivating factor in the
decision. End of story.
That is the prevailing test for the purposes of establishing race discrimination
in this circuit. So we object altogether to the use of McDonnell Douglas in this
(Tr. at 1687.)
The Plaintiff also argued
it is an issue of law for the courts to state that a person of Hispanic heritage or
background is to be considered of a difference race.
Based on the cases in this circuit, it is not an open question as to whether
being Hispanic is race discrimination or not. Therefore, we want a jury
instruction that they should understand that being of Hispanic heritage
or background is to be considered a different race from White or Black people.
I was just going to state further that the defendants have thoroughly tried to
confuse the as regards the issue of what is race. And because it is an issue
of law, I think it is appropriate for the court to instruct them in that regard.
(Tr. at 1694-95.)
The Court responded:
I think you are right. And I think that I prepared something which as an
alternative I might or might not use. And that is because the cases seem
to indicate that whether Hispanic is a race or national origin is something for
the court to decide. It is a question of law.
I gave one case previously, the Serrano case, which is at 2013 WL6816787,
Northern District of New York, December 20, 2013.
“In the present matter the court finds that since plaintiff asserted an
EEOC national origin charge and described herself as Hispanic, the
national origin charges are reasonably related to racial claims and
therefore the plaintiff has sufficiently exhausted her administrative
remedies in regard to her claims of race discrimination.”
And also, as plaintiff cited in their supplemental memorandum, the
Eastern District has treated Hispanic as a racial category in the case
of Casanova v General Mills Restaurants, 1997 WL473840, Eastern
District of New York, explaining that:
“Although the plaintiff contends that she was discriminated against on
the basis of her Hispanic origin, the court construes the complaint as
stating a claiming for racial rather than national origin discrimination
since none of the papers submitted to the court indicate the plaintiff's
Another case cited by the plaintiff, Elias v New York City Transit
Authority, 1997 WL214968, decided by the Southern District of
New York, the court wrote: “I need not decide whether bias against
Hispanics better fits within the rubric of race or national origin
discrimination. I will refer to this claim as one of racial discrimination
as the plaintiff does in his complaint.”
Also, in the case cited by plaintiff in their supplemental memorandum,
Ridgeway v International Brotherhood of Electrical Workers,
466 F. Supp. 595, Northern District Illinois in 1979, the court noted
That Hispanics are often thought of as being a different race than
Whites, citing Gomez v Pima County, 426 F. Supp. 816 District Court
in Arizona 1976.
I agree with the plaintiff. The burden of deciding whether it is a race
or a national origin is on the court. It is a question of law, apparently.
And I think these cases show that it is a race rather than
national origin. So therefore, I am going to add to the charge the following.
Throughout this trial you have heard evidence that the nonparty Miguel
Bermudez is both White and Hispanic. At this time I instruct you that
for purposes of the discrimination laws, Hispanic is a type of race that
is a different race from White or Black. However, in making your
ultimate determination of whether race played a motivating factor in
the defendant’s decision to appoint him as Chief of Police instead of
Lieutenant Barrella, you may consider whether others perceived Bermudez
to belong to a different race.
That is what I'm going to charge the jury.
(Tr. at 1695-97.)
Not surprisingly, the Defendants’ counsel objected to this proposed instruction regarding
the use of the term “hispanic.” First, the Village’s counsel stated:
I do not believe the court'’ instant ruling agreeing with the
plaintiff is in conformity with the law of this district or the federal courts
in general. And, if you would, just let me explain.
In each of the cases your Honor has cited, they dealt with a plaintiff
who complained he was Hispanic. The plaintiff claimed he was Hispanic.
The defendants tried to get those cases dismissed saying: No. I'm
sorry. You are not a race. You are a national origin. And the court said:
Well, he can determine what he is and the court can finally go forward on
the Title VII 81 and the 1981 and 1983.
That is nowhere near what we have here. The only issue of
Hispanic, or Hispanicity, I think is what plaintiff’s counsel used at
one point, is an nonparty witness who is not a member of the case.
He is a nonparty witness who has clearly testified in his deposition and
here that he is White. The mayor, an African-American
man, a Black man for this case, I would argue, says he was
White. Who is a court, any court, in the United States to
determine the race of someone who says he is another race?
And it is an issue that our society has. And I think the
courts acknowledge it and we all dance around it. It is a
grey area of the law. Our society likes to classify
people. We do. Hispanic happens to be anyone who has any
heritage that may speak the language Spanish. Or Irish
people: Are they an Irish race or are they a national
We are always putting things in categories. If we are going to now let
the jury decide. We made motions at the end of their trial. We made motions
that were denied by this court. And the court I think said they are
going to let the jury decide the issues.
That is fine. If the jury is going to decide all the issues, then let them
decide all the issues. The word that should be used is race. Race. Race.
They heard enough from plaintiff's counsel and defendants’
counsel for them to determine what race is at issue in this case.
It is for the jury to determine whether or not a nonparty who claims he is
White, national origin comes into play. This is completely distinguishable
from every case that was read in by the court. It is distinguishable
on the facts from the very case that plaintiff read in on
Thursday and read in today. We are talking about a nonparty.
We are talking about an individual that has clearly testified under oath
that he is White. And we are going to tell him he is not White?
We are going to tell him he is Hispanic? Or the jury should consider him as
Hispanic when he doesn’t even consider himself Hispanic?
This is a stretch under the federal law and under the case
law. More importantly, your Honor, it goes down to a grey
area. I think everyone here would agree that when you get
to this issue of race, especially in the case law in this
Circuit or any circuit, it gets into a gray area.
It started out when McDonnell Douglas first came into. Can
White People be a protected class? And we can
argue that. And can different races come in? And
religions. And national origin. It is the way we
I submit to this court the very instance of what
society deems a race is a fact. And it is a fact to be
decided by a jury in the context of this case.
Every single case cited was distinguishable.
Plaintiff’s side and the court’s side. We are not dealing
with a party who is trying to get his day in court. We
are not dealing with a party who is trying to get pushed
out of court by a defendant’s counsel getting creative.
We are deciding to tell the jury that a nonparty to this
action is a race that that nonparty says it is not. That
is essentially the ruling of this court. I take issue
with it. It is a fact to be decided by the jury.
To go one step further. In your Honor’s
presentation of the instructions, you mentioned the word
White a few times. I would argue that the word White
should not even be used. Take the word right out. I
think that was confusing to the jury. You consistently
said race, race, race. We all agree we are here on a race
charge. Race-based discrimination. That is what we
should be telling the jury. We can’t lead them to believe
that someone is White. We can't lead them to believe that
someone is Black. We can't even focus on someone who’s
It is a simple case. Your Honor said it. All
we should be telling them is racial discrimination. They
heard enough from plaintiff’s counsel to draw their own
conclusions as to whether he is Hispanic or is White.
They heard enough from plaintiff’s counsel that
Plaintiff’s white. They heard enough that Mayor
Hardwick’s Black. They don’t dispute that. If we’re
going to put it on the jury, let’s put it all on the jury.
We use the word race. We don’t mention White. We don’t
mention Black. We don’t mention Hispanic. And let the
jurors come back.
To do anything other in this case where we are
trying to get into the race of someone who is not a party
who claims they are not that race, it is not American, it
truly isn’t. And it is against the very essence of what
we are as a culture. I mean, it can’t be done. He is a
White male. I don’t even think the jury should be told
that Miguel Bermudez is White. They shouldn’t be told
Mayor Hardwick is Black. They should be told it is a race
case. Decide it on the evidence of race. That is it.
That is the jury's prerogative. That is what the jury is
(Tr. at 1697-1701.)
Hardwick’s counsel agreed with the Village’s counsel:
Mr. Bermudez testified that he is not a minority. Plaintiff’s entire case,
the allegations in the case and their presentation of the case is that Mayor
Hardwick wanted, and the first question out of the box:
Mayor Hardwick selected Chief Bermudez because he wanted a
minority in that place.
Chief Bermudez testified clearly and without any
rebuttal from plaintiff's counsel: I am not a minority.
I have never been a minority. I was here from Cuba when I
was nine months old. And essentially I am as American as
anybody else. My race is White. And I don't consider
myself any more or less of a minority than the plaintiff.
And counsel is correct, the cases that were
cited are not in the context of reverse discrimination
cases where a White plaintiff is asserting that a
nonparty, nonwhite is being – was elevated. This is this
case. And there is in case law, and we looked at it over
the weekend, there is no case law that addresses this
Now, also, your Honor, with all due respect, we
made motions for summary judgment. And your Honor knocked
out as a matter of law the national origin discrimination
case. There was no hidden words in those motions. The
plaintiff says: He is Hispanic, therefore I have been
discriminated against on the basis of my national origin
because he is Hispanic. Your Honor knocked that out as a
matter of law.
And further in your decision, your Honor I
thought highlighted what the issue would be to the jury:
The perception issue. To us I have tried this case
entirely that this issue is an issue of fact for the jury
to determine. And now, quite frankly, I think it is
prejudicial for this court to put its imprint on the jury
charge by saying I have ruled that a Hispanic is a racial
category merely because a few district courts within the
Second Circuit have addressed it in an entirely different
context than this case. I think it unfair and prejudicial
to my client in the way we presented this case, your
So with regard on that issue, I concur. I take exception to
the new charge that your Honor has just read into the record.
Also, to the extent that charge stays in, it shouldn't be others perceive
that Mr. Bermudez –
It shouldn't be others perceive Mr. Bermudez as White. It should be,
following your Honor's decision, that Mayor Hardwick and Chief
Bermudez perceive themselves to be White. What others may have
perceived them as really isn't relevant. The only
relevance is whether Hardwick perceived him to be White
and Bermudez perceived himself to be White.
(Tr. at 1702-1703.)
The Plaintiff’s counsel responded
First of all, Miguel Bermudez said he was Hispanic. He
testified that he was Hispanic. The semantics here is
whether being Hispanic is a national origin category or a
racial category. That is the question that we believe
should be determined as a matter of law, that being
Hispanic is a racial category. Whether he perceives
himself to be White, we are not asking for a jury
instruction that Miguel Bermudez is Hispanic. All we are
saying is that being Hispanic is a category of racial
discrimination. If they want to say that he is White,
that is fine.
Secondly, they are taking an issue that he perceives
himself to be Hispanic or he perceives himself to be White.
That, again, is not his determination to make.
(Tr. at 1704-1705.)
The Village’s counsel then stated:
This is a simple case. It all comes down to what Mayor Hardwick believed.
Mayor Hardwick clearly testified at a deposition and again here before
this court under oath he believes him to be White. Believed him to be White.
Knew him for over 30 years. Knew the family. Went to school with his
own sister. Knew him to be White.
Just a few things to go through. Again, to
race, race. We shouldn't bring up White. We shouldn't
bring up Black. We shouldn’t bring up Hispanic. If we
are going to put it all on the jury, then I think we should legitimately
put it all in the jury. And I think that is permissible in the case law.
(Tr. at 1705-1706.)
After recess, the Court stated as follows:
I have looked at the cases. I am not convinced
that it is the right thing to do. I think I'm going to
leave it to the jury.
(Tr. at 1722.) The Court noted the Plaintiff’s objection.
The following day, the Court reverted to its original view, stating as follows:
After considerable reflection and research, I came to the conclusion that I’m
going to have to say something about Hispanic race.
Upon further review of the cases, I’m going to include an additional charge which
I’ll give you in a minute. No party here cites to a failure to promote case, where
as, here a relevant issue was the race of the nonparty who was, in fact, promoted.
The defendants argue that the cases that I cited, the Hispanic Individual was the
party bringing the suit. I don’t know why this distinction should make a
I think that the race of Bermudez is a relevant issue in this case, a very important
issue in this case. It’s been raised by all the parties time and time again. This
issue of race is initially one for the court, not the jury, and in the court’s view, if I
do not give this determination, the jury will be thoroughly confused about the law,
and would likely ask the court to clarify, and so that I believe that this instruction
should be part of the initial charge. Therefore, I’m going to give the following
additional charge, and this is the charge:
Throughout this trial you have heard evidence that the nonparty, Miguel
Bermudez, is both White and Hispanic. At this time I instruct you that for
purposes of the discrimination laws, Hispanic is a type of race that is different
from White or Black. However, in making your ultimate determination as to
whether race played a motivating factor in the defendant’s decision to appoint him
as chief of police, you may consider whether others perceived Bermudez to
belong to a different race, namely, the White race.
(Tr. at 1754-55.)
The Village’s Counsel objected:
I believe there is no confusion to the jury if the court simply states national origin
claims had been dismissed by the court already. Let them know that they are not
deciding national origin. That’s what the court said in its decision before we
started the trial. That allows them now to focus on race.
If they want to find Hispanic’s a race, White’s a race, Black’s a race, that’s their
prerogative. To now – now I think the court has a procedural problem. I don’t
know if the court procedurally declare as a matter of law someone who is a
nonparty, not properly before the court, is of a certain race even when that very
person claims he is not of the race the courts wants everyone to view him as.
He is not a party to this action, and it’s a big, big distinguishing factor, as the
court acknowledges, the cases cited by the court, the cases cited by the plaintiff,
those who plaintiff openly tells you he is Hispanic and the court allows them. We
don’t have here anybody openly Hispanic and we definitely don’t have a party
before the court that claims he is Hispanic. He is White of Cuban descent. If the
court would just tell them national origin was dismissed, there is no confusion.
They know they are deciding a race-based case.
The other issue, your Honor, and it kind of leaves us defendants in a catch-22.
Your motion for summary judgment which was decided the Monday before we
started here in court, I’m going to paraphrase a paragraph from there:
To the extent the defendants argue that neither Hardwick nor Bermudez perceived
Bermudez to be a member of a minority group and that Bermudez had the same
color complexion of the plaintiff, the court finds that this evidence simply raises
factual disputes appropriately reserved for the fact finder.
So we have a motion that we all used as guidance for this case which said that
issue, minority race, we are going to leave that for the fact finder, not a matter of
law. Now we go through an entire trial. We present our defenses. They present
their claims, and now we find at the end of the road, sorry. As a matter of law we
are going to find someone who’s a nonparty is a race he says he’s not.
It is completely, highly prejudicial to the defendants.
Your Honor, again, it’s very simple. National origin was dismissed by the court.
That’s true. It’s a factual statement. It was. They decide race.
I went through a long list yesterday. This is very different than the cases you are
relying upon. You are going to now declare that someone is a race they say they
are not because society classifies everyone with a Hispanic tongue as Hispanic?
No. His national origin is Cuban.
(Tr. at 1755-58.)
The Court responded:
The first question that I’m going to get if I don’t charge this, and what you say has
some impact, no question, on my decision, and it gives me thought about it, but
the first question I’m going to get is; is Hispanic a race.
(Tr. at 1758.)
To this, the Village’s counsel responded:
I think the appropriate answer is that’s a decision for the fact finder to make.
You, the jury, heard what everyone said. You heard them. Test his credibility.
He claims he’s white. More importantly, as I have always said, it doesn’t matter
what race he is. That’s not why we are here. We are here because of his race, and
the only time he comes into being is when it’s the way he perceived him.
He’s not even a party to this case. He perceives him as White. He is White. This
is an issue when it comes to you I think the court can properly and I think it would
withstand any judicial scrutiny fact finder, you heard the evidence going to
credibility your determination as to what race is.
Society hasn’t even made that determination yet, and for a court of law –
(Tr. at 1758-59.)
On this topic, Hardwick’s counsel stated:
Suffice it to say we tried this case believing that this was an issue of fact. Now
we are telling the jury it’s an issue of law. I think it’s prejudicial. In addition to
the mayor’s perception, let’s not forget that the record reflects, and I will mention
in my closing arguments, that the plaintiff perceived Mr. Bermudez to be White,
while he struggled to –
And fought me on this, when he stated on direct examination how they identified
people as cops, White male, White female – I’m sorry – White male, White
Black, White Hispanic, on cross-examination he was forced to admit that based
on nothing else, if you just looked at Mr. Bermudez, he would identify him as a
White male and I’m going to raise that to the jury.
I think your Honor, though, if you are going to make this now an issue of law, as I
said in my motion to a directed verdict, I do think your Honor should take judicial
notice of the census. But even beyond that, I think this brings to head a more
fundamental question which I also raised on my motion for [a] directed verdict.
If the jury’s going to be charged that they can consider what Mayor Hardwick
perceived to be the race, then doesn’t that then beg the question again of qualified
immunity? If Mayor Hardwick believed that Bermudez was White, how could he
held liable – yes, and I’ll go back, clearly Title VII is out there, clearly the mayor
knew that he couldn’t discriminate on any protected class.
But if the mayor perceived the plaintiff to be White, and the mayor, as he
testified, believes that race and White and Black, he can he be held liable, and
therefore I would renew my motion for the directed verdict on that point.
(Tr. at 1760-61.)
The Plaintiff’s counsel then stated as follows:
It is well settled that being Hispanic is not a form of national origin. We cited
cases. They have not cited one case that being Hispanic is a question of fact. We
have cited five or six cases that your Honor mentioned yesterday that even where
a plaintiff checked the box for national origin under Hispanic, the court found that
that stated a claim for race discrimination.
If the defendants didn’t fully research this issue before the trial in order to prepare
themselves for this, then that’s at their own risk that they did that. And I think we
need to make it clear that we are not asking the court to declare him, nor do I
think your instruction declares that Miguel Bermudez is Hispanic. It’s up to the
jury to determine how he was perceived by others.
The issue here is that the question of whether Hispanic falls into the category of
race or national origin is decided by the court.
(Tr. at 1761-1762.) After recess, the Court stated the following:
None of the cases made the statement that as a matter of law, Hispanic people
belong to a separate race. There is no such case that says that. The cases are in
between, and avoid making statement that as a matter of law Hispanics are a
If I tell this jury, as I propose to do, that for the purpose of discrimination laws
Hispanic is a type of race that is a different race from White or Black, and also tell
them that others perceived Bermudez to belong to a different race, I think I’m
getting involved in a determination that the jury should make. This is a very
difficult question, but looking at the cases they are in between whether it’s race or
national origin, and there is no appellate case that I saw that helps me in any way.
(Tr. at 1764.) The Plaintiff noted his exception. (Tr. at 1765.)
J. The Closing Arguments
During the closing arguments, the Plaintiff’s counsel stated as follows:
People who are Hispanic have said I’m White. People have testified that other
people who other people have referred to as Hispanic are White. Howard Colton,
the village attorney, went so far [as] to say that Asian people are White.
You have to use your good judgment. You have to use your life experience. Are
people that are Hispanic not Hispanic? Are they only Black and White?
I can’t believe that Howard Colton said that people are only Black and White. I
think that it’s actually insulting to the one-third of Freeport’s population. We had
testimony even by Mayor Hardwick that the population is one-third Hispanic,
one-third Black, one-third White, but according to Howard Colton, one-third of
the population of Freeport is wrong. They are not actually Hispanic, and the
Asians are White people?
The defendants want you to believe that the only thing that makes Bermudez
Hispanic is that his name sounds Hispanic, but that he’s really White. I ask you,
please, use your common sense. Use your good judgment. Use your life
experience. Even Miguel Bermudez at his deposition admitted to being Hispanic.
(Tr. at 1766-1798.)
The Village’s counsel stated as follows:
Christopher Barella, he’s White. Look at him. You can all see him. Miguel
Bermudez, I think he may be whiter than Christopher Barella. You can all see him.
Race is why we are here. We are not here for national origin. As a matter of fact,
you are going to get jury charges and you are going to listen to the judge, national
origin won’t come up. We are here for race, and whose race are we really here
for? Plaintiff spent a lot of time in this trial going after Miguel Bermudez, God
bless the American jury system, right? He’s not even a party to the case. He is
not a party.
How are we arguing that a White man was discriminated against if they are both
white? Again, I remind you national origin is not the issue in this case. You will
hear it in your instructions. Race is, race.
Now, I think plaintiff tried to indicate we are saying Hispanics don’t exist. We
never said that, never once. We are just saying we are here for race. White,
Black, Asian, American, races, commonly defined races. That’s racial
discrimination. National origin discrimination is something else, and that’s not
why we are here.
(Tr. 1799 -1811.)
During Hardwick’s closing argument, his counsel stated:
Chief Bermudez is White and this is a race discrimination case and plaintiff’s
counsel made reference to Howard Colton, the only question that I’m going to
ask, plaintiff’s counsel asked him he testified there are two different types of
lawsuits, one is race and one is national origin, ethnicity.
Well, I don’t think it’s going out on the limb that Mr. Bermudez does have an
Hispanic or Latin sounding name so he is an ethnic Latino or ethnic Hispanic,
whatever the terms are, but he is White. Plaintiff in his opening statement said to
you, and I recall it vividly, ethnicity equals race. Okay. I sat back and was
expecting some type of evidence to be put in on that issue. He put nothing in. He
doesn’t call an expert, he didn’t call anybody. It’s for you to determine
respectfully whether race played a factor, whether Bermudez is White or not. He
says he’s White, he looks White. Even Mr. Barella, if you remember the
testimony on direct examination he says well, the way we identify people is male
White, male black or male Hispanic. Okay. What do I do? I asked him a simple
question, knowing nothing about Mr. Bermudez, how would you identify him and
he fought me and he fought me a little bit but then he had to concede, Mr.
Bermudez is white. More importantly, Mayor Hardwick perceived Mr. Bermudez
to be White. Had he known him for 30 or 35 years, he didn’t think of him as
anything other than White. Yes, his last name is Bermudez. That doesn’t make
him not white.
And you heard Mr. Bermudez. This entire case, the first question that plaintiff’s
counsel asked why are we here? And what did Mr. Barella say, I’m sorry, yes,
what did Mr. Barella say, we are here because Mayor Hardwick wanted to appoint
Well, you heard Chief Bermudez. He has been in this country since he was nine
months old. You heard him speak. You see everything about him. And what did
he say on this question? I am not a minority, and I have never been a minority.
He doesn’t consider himself to be a minority.
And ladies and gentlemen, I would suggest that we can all use our common sense
that they are minorities in this country, but if your color is White, unless your
ancestors came from the Mayflower, we are all in the same boat.
(Tr. at 1813-1837.)
In rebuttal, the Plaintiff’s counsel stated:
First of all in this case  Miguel Bermudez’s race does matter. It matter’s that
he’s Hispanic. It matters that Mayor Hardwick referred to him as the first Latino
Police Chief. That shows intent.
I want to address the issue of national origin versus race discrimination here. The
defendants want to cloud the issues on that subject.
We’re not claiming here national origin discrimination. We’re not claiming
because Christopher Barella is American that he didn’t get this job. The Mayor,
African-American, chose Miguel Bermudez because his race is Hispanic. Has
nothing to do with national origin discrimination.
K. The Jury Charge, Deliberations and Verdict
During the Jury Charge, the Court instructed the jury on the elements of a discrimination
claim based on race as set forth in McDonnell–Douglas Corp. v. Green, 411 U.S. 792, 802–03,
93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
Also, in accordance with the Court’s ultimate decision to treat the question of whether,
for purposes of the anti-discrimination statutes, hispanic is a race different from the white or
black race, as an issue of fact, the Court made no specific reference to this issue. In accordance
with the summary judgment decision, the Court made no reference to and thus reserved for the
jury the question of what race Bermudez, Hardwick, and others perceived Bermudez to be.
The Verdict Sheet simply asked: “Based on all the evidence presented, did the plaintiff
Christopher Barella prove that his race was a motivating factor for the decision by former Mayor
Andrew Hardwick to decline to appoint him to the position of Chief of Police of the Village of
Freeport Police Department.” (Exh. 19.) Neither the Jury Charge nor the Verdict Sheet provided
a separate claim for skin color. In so doing, the Court implicitly dismissed any claims based on
The Court also implicitly dismissed any claims against Hardwick in his official capacity.
Davis v. Stratton, 360 F. App’x 182, 183 (2d Cir. 2010)(“The suit against the mayor and police
chief in their official capacities is essentially a suit against the City of [New York], because in a
suit against a public entity, naming officials of the public entity in their official capacities ‘add[s]
nothing to the suit.’”)(citation omitted); accord Davis v. Town of Hempstead, CV 09–
1129(JFB)(ARL), 2013 WL 1623741 at *3 (E.D.N.Y. Feb. 6, 2013), report and recommendation
adopted, 2013 WL 1623644 (E.D.N.Y. Apr.15, 2013); see also Coon v. Town of Springfield, Vt.,
404 F.3d 683, 687 (2d Cir. 2005)(“[A] § 1983 suit against a municipal officer in his official
capacity is treated as an action against the municipality itself.”).
On May 28, 2014, after five days of deliberations, a declaration of an “unresolvable
impasse” or deadlock (Ct. Exh. 12.), and the issuance of an Allen charge, the jury returned a
verdict in favor of the Plaintiff – in effect, finding that Hardwick engaged in intentional race
discrimination in violation of42 U.S.C. § 1981, 42 U.S.C. § 1983, Title VII, and the NYSHRL
when he selected Bermudez, instead of the Plaintiff, to be the Village’s Chief of Police. The jury
rendered a verdict against 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.
Judgment was entered on May 30, 2014.
L. The Post-Verdict Motions
On June 11, 2014, the Plaintiff moved pursuant to Fed. R. Civ. P. 45(d) and 28 U.S.C.
§ 120 for an award of his attorneys’ fees and costs.
On June 25, 2014, the Plaintiff moved for an order (1) upwardly adjusting the back pay
and front pay award to account for the negative tax consequences he would suffer as a result of
receiving the damages award in a lump sum; (2) awarding pre-judgment interest on his back pay
and costs; and (3) awarding post-judgment interest on the entire award he ultimately receives,
including his attorneys’ fees and costs.
On June 25, 2014, Hardwick filed a notice of appeal from the May 30, 2014 judgment.
On June 27, 2014, the Village filed a separate appeal from the May 30, 2014 judgment. Those
appeals are currently pending before the United States Court of Appeals for the Second Circuit.
On June 27, 2014, Hardwick moved pursuant to Fed. R. Civ. P. 50(b) for judgment as a
matter of law on all claims for which the jury rendered a verdict in favor of the Plaintiff.
Alternatively, Hardwick moved pursuant to Fed. R. Civ. P. 59(a) for a new trial. That same day,
the Village moved pursuant to Fed. R. Civ. P. 50 for judgment as a matter of law, and
alternatively, pursuant to Fed. R. Civ. P. 59(a) for a new trial or reducing the jury’s award
against the Village. The motions are fully briefed.
A. The Defendants’ Rule 50 Motions
1. The Standard for Evaluating A Motion Under Rule 50
Rule 50(a) provides for the entry of a judgment as a matter of law on any issue, before
submitting the matter to a jury, where “the court finds that a reasonable jury would not have a
legally sufficient evidentiary basis to find for the party on that issue.” Such a motion may, as
here, be renewed after trial under subsection (b) of that Rule. A court may grant a motion under
Rule 50(b) “only if after viewing the evidence in the light most favorable to the non-moving
party and drawing all reasonable inferences in favor of the non-moving party, it finds that there
is insufficient evidence to support the verdict.” Fabri v. United Technologies Int'l, Inc., 387 F.3d
109, 119 (2d Cir. 2004). Importantly, the trial court “cannot set aside the jury's credibility
findings and cannot find for the movant based on evidence the jury was entitled to discredit.” Id.
Here, applying the McDonnell Douglas burden-shifting framework, the Defendants – in
particular, the Village – contend that the Plaintiff failed to establish a prima facie case of race
discrimination on the ground that no reasonable jury could find that the Hardwick’s failure to
promote the Plaintiff to the position of Chief of Police occurred under circumstances giving rise
an inference of race discrimination.
However, as an initial matter, upon further review of the case law, the Court finds that it
erred by including in the jury charge the elements of the McDonnell Douglas burden-shifting
framework. Henry v. Wyeth Pharm., Inc., 616 F.3d 134 (2d Cir. 2010). In Henry, the Second
Circuit addressed a challenge to a district court's inclusion of elements of the McDonnell
Douglas burden-shifting framework into its jury charge. See id. at 153. Although it ultimately
held that the jury charge was not reversible error, the Henry Court cautioned that the McDonnell
Douglas framework was formulated for use by judges in determining whether a case should go to
a jury and would not be helpful to the fact-finder in making its ultimate determination of whether
plaintiff had “proved by a preponderance of the credible evidence that his race or color was a
motivating factor in certain employment actions.” Id. at 154 (citation and internal quotation
However, here, the Court concludes that the “inclusion of this superfluous language [did
not] obscure the jury’s ultimate task – to determine whether race was a motivating factor in an
adverse employment action.” Id. at 154. Further, as in Henry, the verdict sheet directed the jury
to the correct question – whether the Plaintiff did “prove that his race was a motivating factor for
the decision by former Mayor Andrew Hardwick to decline to appoint him to the position of
Chief of Police of the Village of Freeport Police Department.”
The Court also notes that it was the Plaintiff, rather than the Defendants, who sought to
exclude the McDonnell Douglas framework from the jury charge. In this regard, the Court finds
that the erroneous instruction of the McDonnell Douglas framework did not materially prejudice
the Defendants, but in fact, worked in their favor. Further, the Court finds no prejudice to the
Defendants in acknowledging this error at this juncture of the ligation. In the Court’s view, the
result here would be the same under either standard – that is, a reasonable jury could have
concluded that, to the extent a substantive difference exists between the two standards,
(1) under McDonnell Douglas, Hardwick’s failure to promote the Plaintiff occurred under
circumstances giving rise an inference of race discrimination and (2) under Henry, race played a
motivating factor in this decision.
In this regard, the essential thrust of the Defendants’ respective Rule 50 motions is that
no reasonable jury could have found that Hardwick’s failure to promote the Plaintiff rather than
Bermudez, who has a white skin color, was motivated by unlawful racial considerations.
However, the Defendants’ entire argument presupposes that, given Bermudez’s skin color and
certain testimony suggesting that Bermudez belonged to the white race, no reasonable jury could
find that Bermudez belonged to any race other than the white race for purposes of the antidiscrimination laws.
Indeed, as noted above, throughout the trial, the parties repeatedly clashed over whether
hispanic is a race that is a different race than white, and whether this question should resolved as
a matter of law or matter of fact. Upon extensive consideration of the issue, the Court declined
to instruct the jury that hispanic is a race, rather than a national origin, for purposes of the antidiscrimination statutes, and therefore reserved this question for the jury.
“Laying aside the contentious debate regarding social and anthropological constructions
of ‘race’ and how it should be defined,” Salas, 2006 WL 1049469, at *5 (citing Saint Francis
College v. Al-Khazraji, 481 U.S. 604, 610, 107 S. Ct. 2022, 95 L. Ed. 2d 582 (1987), the Court
notes that the New Oxford American Dictionary 806 (2001) defines the word “Hispanic” as “of
or related to Spanish-speaking countries, especially those of Latin America.” The American
Heritage Dictionary 832 (4th ed. 2000) defines the word similarly and explains its usage as
Though often used interchangeably in American English, Hispanic and Latino are
not identical terms, and in certain contexts the choice between them can be
significant. Hispanic, from the Latin word for “Spain,” has the broader reference,
potentially encompassing all Spanish-speaking peoples in both hemispheres and
emphasizing the common denominator of language among communities that
sometimes have little else in common . . . In practice, however, this distinction is
of little significance when referring to residents of the United States, most of
whom are of Latin American origin and can theoretically be called by either word
. . . Hispanic, the term used by the U.S. Census Bureau and other government
agencies, is said to bear the stamp of an Anglo establishment far removed from
the concerns of the Spanish-speaking community.
The EEOC defines “national origin discrimination broadly as including, but not limited
to, the denial of equal employment opportunity because of an individual’s, or his or her
ancestor's, place of origin; or because an individual has the physical, cultural or linguistic
characteristics of a national origin group,” thus lending credence to the assertion that hispanic
may be a form of national origin. 29 C.F.R. § 1606.1 (emphasis added).
That said, the Court recognizes “the uncertainty among [other] courts as to whether
‘Hispanic’ is better characterized as a race or a national origin.” Alonzo v. Chase Manhattan
Bank, N.A., 25 F. Supp. 2d 455, 460 (S.D.N.Y. 1998). Courts have come down on both sides of
the question, compare Serrano v. New York State Dep't of Envtl. Conservation, 12-CV-1592
(MAD)(CFH), 2013 WL 6816787, at *4 (N.D.N.Y. Dec. 20, 2013)(“while national origin and
race are often distinct elements, the term ‘Hispanic’ may trigger the concept of race.”)(citing
Alonzo); Casanova v. Gen. Mills Restaurants, Inc., 94-CV-4386 (FB), 1997 WL 473840, at *1 n.
1 (E.D.N.Y. Aug. 15, 1997)(“Although Casanova contends that she was discriminated against on
the basis of her ‘Hispanic origin,’ the Court construes the complaint as stating a claim for racial
rather than national origin discrimination since none of the papers submitted to the Court indicate
Casanova's national origin.”) with Salas, 2006 WL 1049469, at *6 (“Because the term Hispanic
relates to language and culture, it is an ethnic designation more than a racial classification, used
to refer to individuals of Spanish-speaking descent, whether from Spain itself or from Spanishspeaking Latin-American countries.”), sometimes simultaneously. Lopez v. Texas State Univ.,
368 S.W.3d 695, 703 (Tex. App. 2012)(“the term ‘Hispanic’ does not literally designate either
race or national origin and is instead commonly understood as implying both.”), review denied
(Jan. 18, 2013); Torres v. City of Chicago, No. 99 C 6622, 2000 WL 549588, at *2 (N.D. Ill.
May 1, 2000)(race discrimination claim was related to EEOC charge alleging discrimination
based on plaintiff’s Hispanic ancestry because the term Hispanic encompasses the concepts of
race and national origin)(citing Alonzo).
Where possible, courts have declined to answer the question. Elias v. New York City
Transit Auth., 95 CIV. 1083 (CSH), 1997 WL 214968, at *1 n. 1 (S.D.N.Y. Apr. 28, 1997)(“I
need not decide whether bias against Hispanics better fits within the rubric of ‘race’ or ‘national
origin’ discrimination. I will refer to this claim as one of race discrimination, as Elias does in his
complaint.”) Welch v. U.S. Cellular Corp., 07 C 3465 (WTH), 2008 WL 4088797, at *1 n. 1
(N.D. Ill. Aug. 21, 2008)(“For purposes of considering plaintiff's Title VII claims, it is
unnecessary to resolve whether Hispanic is a racial, color, or some other classification.”).
However, in this failure to promote case, given that the Court dismissed the national
origin claims at the summary judgment stage on the legal assumption that hispanic is a race for
purpose of the anti-discrimination laws, this case could not proceed to judgment without again
addressing that assumption. In other words, the question whether hispanic is a race for purposes
of the anti-discrimination laws was squarely presented here, and could not go unanswered. Nor,
as the Village’s counsel argued vehemently during the jury charge conference, did Bermudez’s
non-party status absolve this Court of the duty to address in some form the question of whether
hispanic is a race for purposes of the anti-discrimination laws. Where, as here, Bermudez’s race
is a critical issue and repeatedly brought up by the Defendants, Bermudez’s non-party status is,
with respect to the above-cited cases, a distinction without a difference.
As noted above, at the Defendants’ request, this Court treated the issue of whether
hispanic is a race for purposes of the antidiscrimination laws as one of fact, and not of law. Also,
as noted above, regardless of the answer, the courts appear to generally treat the question as one
of law, rather than fact. However, whatever the propriety of this Court’s decision to treat the
question as one of fact, at this stage of the litigation, the Court declines to revisit that
determination and, not surprisingly, the Defendants do not seek reconsideration of that
This is presumably because the Court signaled on more than one occasion on the record
that, were it necessary to decide this question as a matter of law, it would decide in favor of the
Plaintiff that hispanic is a race rather than a national origin for purposes of the antidiscrimination statutes. Cognizant of the Court’s leanings on the issue, the Village’s counsel
argued that it would be “not American” to decide this question as a matter of law, although they
failed to point to one case where such an issue was decided as a matter of fact. (Tr. at 1701.)
Indeed, the Court pauses to note the breadth of that astounding argument. Contrary to the
Defendants’ contention, to find as matter of law that hispanic is a race for purposes of the antidiscrimination laws is no more objectionable than to say that “White” or “Black” is a race for
purposes of the anti-discrimination laws. Nor would the Court have been telling any individual
that his or her perception of his or her race in other contexts was somehow misguided or wrong.
The Court further notes that the decision to treat this question as an issue of fact was not,
as the Defendants continually insisted at the trial, required by the Court’s summary judgment
finding that what race Bermudez and Hardwick perceived Bermudez was itself an issue of fact.
The Defendants conflate the questions of Bermudez’s race – which the Defendants’ continually
invoked during the trial as foreclosing the Plaintiff’s claim – under the anti-discrimination laws
versus the perception of his race by him and other individuals.
Circling to the Defendants’ Rule 50 motions, the Defendants essentially argue that no
reasonable jury could have found race discrimination here. The Court disagrees. The
Defendants’ argument rests on the debatable assumption that no reasonable jury could have
found that that Bermudez, the non-party ultimately appointed to the position of Chief of Police,
belonged to any race other than the white race, the same race as the Plaintiff.
If that assumption were true, the Defendants’ motion would likely be meritorious.
Indeed, a number of courts have held that a plaintiff fails to state a prima facie case of intentional
racial discrimination where the position the plaintiff sought was filled by another individual of
the same race as the plaintiff. See e.g., Babcock v. New York State Office of Health, 2009 U.S.
Dist. LEXIS 47594 (S.D.N.Y. 2009)(dismissing a failure to promote claim where promotions
were given to individuals in the same protected class); Constance v. Pepsi Bottling Co., No. 03CV-5009 (CBA)(MDG), 2007 WL 2460688, at *20 (E.D.N.Y. 2007)(“As two of the four
positions were given to black individuals, members of plaintiff's protected group, any inference
of race discrimination is removed.”); Nash v. New York State Executive Dep't, No. 96 Civ. 8354
(LBS), 1999 WL 959366, at *13 (S.D.N.Y. 1999)(same); Pointer v. Columbia Univ., No. 95 Civ.
8418(JFK), 1998 WL 898313, at *5 (S.D.N.Y. 1998)(dismissing race and gender discrimination
claims where another black female was given the position the plaintiff sought); Samuels v. N.Y.
Dep't of Correctional Services, No. 94 CIV. 8645 (SAS), 1997 WL 253209, at *5 (S.D.N.Y.
1997)(the black female plaintiff failed to establish a claim of race discrimination where two of
the four promotions she complained of were given to black males); Scott v. Potter, 134 Fed.
Appx. 989, 989 (8th Cir. 2005)(“Furthermore, with regards to her race discrimination claim,
[plaintiff] did not make out a prima facie case because the employee who was ultimately
promoted was of the same race.”); Kraemer v. Luttrell, 189 Fed. Appx. 361, 368 (6th Cir.
2006)(“However, reading his claim as one for denial for promotion to lieutenant, we conclude
that [plaintiff] would fail on the fourth element of the prima facie case because three other
members of the same protected class did receive promotions to lieutenant. Therefore, [plaintiff]
has failed to set forth a prima facie case, and summary judgment was properly granted on his
claim.”); see also Harmon v. Runyon, No. 96 CIV. 6080 (SAS), 1997 WL 786383, at *5
(S.D.N.Y. 1997)(the plaintiff could not show she was treated differently than similarly situated
individuals outside her protected class where three members of her protected class were not
subjected to the same adverse employment action as was plaintiff); Smith v. Planas, 975 F. Supp.
303, 308 (S.D.N.Y. 1997)(the plaintiff could not state a discrimination claim where five of the
seven individuals identified by plaintiff as having received higher paying assignments were
members of plaintiff’s protected class); but see Carroll v. City of Mount Vernon, 707 F. Supp. 2d
449, 454 n. 8 (S.D.N.Y. 2010)(“it appears that the dispositive question may be whether the
decision not to promote was race-based, regardless of who was eventually awarded the
position.”), aff'd, 453 F. App'x 99 (2d Cir. 2011); Sonpon v. Grafton Sch., Inc., 181 F. Supp. 2d
494, 500 (D. Md. 2002)(“the fourth prong of the [McDonnell Douglas prima facie] test is not
whether the job was given to someone outside of the protected class, but whether discrimination
could be inferred from the circumstances.”). Thus, the Defendants argue that in a failure to
promote case where, as here, the person promoted belonged to the same race as the Plaintiff, no
reasonable jury could find race discrimination.
However, given the record as a whole, the Court finds that a reasonable jury could have
concluded that (1) hispanic is a race for purposes of the anti-discrimination laws; and (2) that
Bermudez’s race was hispanic. In this regard, the Village of Freeport census indicated that
Freeport is one-third white, one-third black, and one-third hispanic. The Village of Freeport
census thus implied that hispanic is a type of race. (Tr. at 591.) Further, the jury could have
reasonably concluded that Colton contradicted his deposition testimony that hispanic is a race as
opposed to a national origin. (Tr. at 1259-60.) Also, the jury had heard Bermudez somewhat
contradict his prior deposition testimony where he conceded that his race was hispanic and
testified at trial that he now considered his race to be “white.” (Tr. at 1551.)
Put simply, having repeatedly urged the Court to treat the issue of whether hispanic is a
race for purposes of the anti-discrimination laws as a question of fact, the Defendants cannot
now be heard to complain when the jury implicitly found against the Defendants on that factual
To be sure, the Defendants contend that, given that the Court ultimately determined that
the issue of Bermudez’s race was a factual issue for the jury, the Court erred in sustaining the
Plaintiff’s objection to the attempt by Hardwick’s counsel to introduce the 2010 United States
Census into evidence for the jury’s consideration of whether hispanic is a race. The Court
agrees. At the juncture during the trial when the Court excluded this evidence, the Court
expressed its intention to treat the question of whether hispanic is a race for purposes of the antidiscrimination laws, consistent with the summary judgment decision, as one of law. However,
having ultimately treated this issue as one of fact, the exclusion of the 2010 United States
Census, it turns out, was inconsistent with the Court’s prior evidentiary rulings concerning the
Plaintiff’s counsel’s questioning of numerous witnesses about a Village of Freeport Census. In
other words, regardless of whether the Court erred in reversing its prior determination that the
issue of whether hispanic is a race for purposes of the anti-discrimination laws was one of law,
having ultimately submitted the question to the jury, it becomes clear that, in hindsight, the Court
should have admitted in evidence the 2010 United States Census proffered by Hardwick.
However, as explained later, this evidentiary error does not warrant granting the
Defendants’ motion for a new trial under Rule 59. Nor, the Court finds, does it warrant granting
the Defendants’ motion for judgment as a matter of law. Indeed, properly framed, the crux of the
Defendants’ motion for judgment as a matter of law is that based on the evidence admitted into
the record, no reasonably jury could find for the Plaintiff. This argument is conceptually distinct
from the argument – advanced in connection with the Defendants’ motion for a new trial – that
this Court erred in excluding certain evidence from the record and such exclusion was
sufficiently prejudicial as to justify a new trial.
Separately, the Court anticipates the Defendants’ argument that, given that even the
Plaintiff admitted that Bermudez’s skin color was white, no reasonable jury could have found
racial discrimination on the part of the Defendants. However, parsed closely, the Plaintiff said
that Bermudez “look[s]” white and answered yes to the question, “is Chief Bermudez White?”
(Tr. at 211-12.) The Plaintiff did not, as the Defendants suggest, characterize Bermudez as
belonging to the white race as opposed having a white skin color.
Again, as they did throughout the trial, the Defendants conflate skin color and race,
which are legally distinct concepts. Howell v. Rush Copley Medical Group NFP, No. 11 C 2689,
2012 WL 832830, at *3 (N.D. Ill. Mar. 12, 2012)(plaintiff’s charge stating “I believe that I have
been discriminated against because of my race, Black, in violation of Title VII” insufficient to
allow federal suit alleging color discrimination because plaintiff “made no mention of the hue of
her skin color,” an EEOC investigation into her race discrimination charges “would not
reasonably lead to an investigation into [the defendant's] conduct toward light-skinned
individuals within her race,” and “to the extent [she] intended to equate race with color in her
charge, her color claim is duplicative of her race claim”).
The reason for this confusion is clear:
People often confuse skin color and race because skin color is used to assign
people to racial categories. Indeed, color is commonly used to describe the
difference between racial categories (i.e., Black is used to describe AfricanAmericans and White is used to describe Caucasians).
Trina Jones, Shades of Brown, The Law of Skin Color, 49 Duke L.J. 1488, 1497-98 (2000).
“Although color may be a factor in racial discrimination (for example, when an employer prefers
a white job candidate over an equally qualified black candidate), color discrimination refers
specifically to preferring an individual because of the hue of his skin (for example, treating a
light-skinned African woman more favorably than a dark-skinned African woman).” Salas, 2006
WL 1049469, at *6 (citing Nance, at 438-39.).
However, although courts often confuse the two, both Title VII and the NYSHRL treat
claims for race as distinct from claims based on skin color. See 42 U.S.C.A. § 2000e-2 (“[i]t
shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to
discharge any individual, or otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual's race,
color, religion, sex, or national origin)(emphasis added); New York Executive Law §
296(1)(McKinney’s 2010)(“It shall be an unlawful discriminatory practice . . . [f]or an employer
or licensing agency, because of the age, race, creed, color, national origin, sexual orientation,
military status, sex, disability, predisposing genetic characteristics, or marital status of any
individual, to refuse to hire or employ or to bar or to discharge from employment such individual
or to discriminate against such individual in compensation or in terms, conditions or privileges of
employment.”)(emphasis added); compare Hyunmi Son v. Reina Bijoux, Inc., 823 F. Supp. 2d
238, 242 (S.D.N.Y. 2011) (“Only suits based on racial discrimination may be maintained under”
Section 1981)(citation and quotation marks omitted).
Although the amended complaint could be construed as asserting a separate claim for
color discrimination as opposed to race discrimination, the Court did not nor did the parties
request the Court to submit such a claim to the jury. Rather, as noted above, the Court implicitly
dismissed any such claims prior to jury deliberations. Therefore, although even the Plaintiff in
his testimony referred to Bermudez as “white,” it does not follow that the Plaintiff conceded that
Bermudez belonged to the “white” race. Rather, the jury could have inferred that the Plaintiff
was referring to Bermudez’s skin color as opposed to his race.
Further, the fact that both Bermudez and Hardwick testified that they perceived
Bermudez to belong to the white race and, therefore, could not have discriminated against the
Plaintiff by promoting Bermudez, instead of the Plaintiff, presented, consistent with the
summary judgment decision, a factual question for the jury. In other words, the jury was entitled
to credit or discredit the testimony of Bermudez and Hardwick in this respect. In this regard, the
Defendants cite no authority for the proposition that, as a matter of law, an individual is the final
arbiter of his or her own race for purposes of the anti-discrimination laws. To hold otherwise
could sanction a viable discrimination claim in almost every employment situation, provided the
plaintiff testifies that he belongs to a different race that the individual actually promoted.
In sum, the Court finds that a reasonable jury could have concluded that (1) hispanic is a
race for purposes of the anti-discrimination laws; and (2) Bermudez’s race was hispanic.
Drawing these reasonable inferences and considering the remainder of the evidence in the
record, the Court finds that a reasonable jury could have concluded that Hardwick’s decision not
to appoint the Plaintiff to the position of the Chief of Police was, in fact, driven by unlawful
race-based considerations. In addition to the fact that the jury could have reasonably concluded
that Hardwick appointed an individual outside of the Plaintiff’s protected class, the evidence
indicated that: (1) the Plaintiff scored number one on the Police Chief Examination, while
Bermudez scored number three; (2) the Plaintiff had a law degree and a Master’s Degree, while
Bermudez only had a high school diploma; (3) the Plaintiff had over 20 years of experience as a
decorated member of the Village Police Department and had been promoted to Lieutenant before
Bermudez, while Bermudez was tied for the least-tenured Lieutenant in the Village Police
Department; (4) Hardwick did not interview the Plaintiff or review any of his personnel files.
Further supporting the Plaintiff’s case were certain contemporaneous personnel decisions
during Hardwick’s tenure as Mayor. In this regard, the Court admitted into evidence two charts
portraying the persons appointed for department head positions and those replaced. The first
chart showed that 11 of 12 persons who “retired, resigned, or not reappointed” were white, which
Hardwick confirmed, while the latter chart showed a majority of hispanic and black
replacements. (Pl.’s Exhs. 17-18.)
The Defendants contend, as they did in their closing arguments (Tr. at 1810.), that Exh.
18 shows that 12 of 18 department heads appointed by Hardwick were white. Again, however,
the Defendants conflate race and skin color. The jury could reasonably have concluded that, for
those individuals indicated as white or black plus hispanic, the white/black designation referred
to skin color rather than race.
Viewed this way, 10 of the 18 department heads appointed by Hardwick belonged to the
black or hispanic race, while 8 belonged to the white race. Although this evidence is not
overwhelming by itself, coupled with the other circumstantial evidence in the record, the Court
finds that a reasonable jury could have reached this verdict. Moreover, on a Rule 50 motion, it is
not the proper role of the Court to weigh the evidence. Pouncy v. Danka Office Imaging Co., 393
F. App’x 770, 772-73 (2d Cir. 2010)(“Pouncy's motion consisted largely of a challenge to the
jury’s determination concerning the proper weight afforded to the trial evidence, which is not a
proper basis for a Rule 50(b) motion.”); Zellner v. Summerlin, 494 F.3d 344, 370 (2d Cir.
2007)(“In considering a motion for judgment as a matter of law, the district court must draw all
reasonable inferences in favor of the nonmoving party, and it may not make credibility
determinations or weigh the evidence.”)(citations omitted).
Among Hardwick’s personnel decisions that suggest he sometimes took race into account
in personnel decisions was his attempt to promote Zina Leftenant to the Command Staff instead
of the Plaintiff. Each witness asked about the subject, save for Colton, agreed that the Plaintiff
was more qualified than Leftenant. (Tr. at 1156, 1273, 1329, 1578.) There was also evidence
that Hardwick replaced, Lou DiGrazia, a white individual in the position of Superintendent of the
Department of Public Works, with Scott Richardson, a less qualified African-American. (Tr. at
616-18, 1075-77) Finally, there was evidence that Hardwick replaced Joe Madigan, a white
Superintendent of the Buildings Department, with Richard Brown, a less qualified AfricanAmerican. (Tr. at 620-21.)
As the Defendants did in moving for summary judgment and during the trial, they argue
that that none of the witnesses who testified about the contemporaneous personnel decisions
possessed first-hand knowledge of the events or circumstances surrounding Hardwick’s failure to
promote the Plaintiff to Chief of Police. However, an inference of discrimination “is a ‘flexible
[standard] that can be satisfied differently in differing factual scenarios.’” Howard v. MTA
Metro–N. Commuter R.R., 866 F. Supp. 2d 196, 204 (S.D.N.Y. 2011)(quoting Chertkova v.
Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996)). “No one particular type of proof is
required to show that Plaintiff’s termination occurred under circumstances giving rise to an
inference of discrimination.” Ofoedu v. St. Francis Hosp. & Med. Ctr., No. 04–CV–1707 (PCD),
2006 WL 2642415, at *14 (D. Conn. Sept. 13, 2006). An inference of discrimination can be
drawn from circumstances such as “the employer's criticism of the plaintiff's performance in
ethnically degrading terms; or its invidious comments about others in the employee's protected
group; or the more favorable treatment of employees not in the protected group; or the sequence
of events leading to the plaintiff’s [adverse employment action].” Abdu–Brisson v. Delta Air
Lines, Inc., 239 F.3d 456, 468 (2d Cir. 2001)(quoting Chambers v. TRM Copy Centers Corp., 43
F.3d 29, 37 (2d Cir. 1994)); see also Abdul–Hakeem v. Parkinson, 523 F. App'x 19, 20 (2d Cir.
2013)(finding that an inference of discrimination can be raised by “showing that an employer
treated [an employee] less favorably than a similarly situated employee outside his protected
group” (quoting Ruiz v. Cnty. of Rockland, 609 F.3d 486, 493 (2d Cir. 2010)).
Further, even if, as the Defendants argued throughout trial, many or all of these
contemporaneous personnel decisions required approval by the Board of Trustees, those
decisions were relevant to the Plaintiff’s claims insofar as Hardwick made the recommendations,
in the first instance, to the Board of Trustees. The weight accorded this evidence rested within
the province of the factfinder.
Contrary to the Defendants’ contention, the cases of Cummings-Fowler v. Suffolk Co.
Community College, 981 F. Supp. 2d 124 (E.D.N.Y. 2013)(Spatt, J.) and Levitant v. City of
N.Y., Human Resources Admin., 914 F. Supp. 2d 281 (S.D.N.Y. 2012) are distinguishable.
In Cummings-Fowler, an African-American female claimed that she was discriminated
against by her employer based upon her race. The Plaintiff accused her former supervisors of (1)
often referring to African–Americans as “you people”; (2) expressing skepticism that the
Plaintiff completed her doctorate in three years; (3) calling the Plaintiff “young lady” or
“Michelle” instead of her professional title; (4) suggesting that African–Americans were “taking
over” Suffolk County Community College (“SCCC”), in reference to SCCC’s African–American
President, Vice President and two executive deans; (5) remarking that Green was smart but “just
happened to be black”; (6) suggesting to the Plaintiff that although Manning “looked like you
people,” he was “one of us”; (7) indicating that Caucasians “got the hell out of” Mount Vernon,
New York when African–Americans moved in; (8) implying that a “fat black woman” would be
threatened by “a skinny black woman” and (9) making negative comments about the President of
SCCC, who was an African–American woman.
Nevertheless, the Court held that the Plaintiff failed to satisfy her prima facie burden of
establishing circumstances giving rise to an inference of discrimination. However, unlike here,
the racially-charged comments were not directly implicated in the promotion at issue and were
not made by decision-makers who made the promotion decision that the plaintiff alleged to be
In Levitant, the Court granted the defendant judgment as a matter of law after a jury
verdict on the plaintiff’s failure to promote claim. In that case, two candidates had higher scores
than the plaintiff and “[t]he only evidence plaintiff presented was his testimony that the interview
was short and was asked ‘routine questions.’” 914 F. Supp. 2d at 305-06. Here, by contrast, the
Plaintiff had higher test scores than Bermudez, yet he was not interviewed.
2. As to “Qualified Immunity”
Hardwick also argues that he is entitled to judgment as a matter of law based on the
affirmative defense of qualified immunity.
“Qualified immunity shields government officials performing discretionary functions
‘from liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.’” Zellner, 494
F.3d at 367 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396
(1982)). This analysis “must be undertaken in light of the specific context of the case, not as a
broad general proposition.” Brosseau v. Haugen, 543 U.S. 194, 198, 125 S. Ct. 596, 160 L. Ed.
2d 583 (2004).
Here, Hardwick submits that it was not “clearly established” at the time he selected
Bermudez to be the Chief of Police that hispanic was a race different than the white race for
purposes of the anti-discrimination statutes. However, Hardwick fails to specify whether what is
not “clearly established” is a question of law or a question of fact. Importantly, qualified
immunity turns on whether the law is well-settled, not on whether factual determinations are
well-settled in some sense. Here, the law is well-settled that intentional discrimination is illegal.
Hill v. Taconic Developmental. Disabilities Servs. Office, 283 F. Supp. 2d 955, 958 (S.D.N.Y.
2003)(“There can be no doubt that the law barring discrimination against a person on the basis of
race — including via a hostile work environment is ‘well-settled.’”); Griffin v. New York, 122
Fed. App’x 533, 533 (2d Cir. 2004)(“Griffin's right to be free from these alleged adverse
employment actions based on race was therefore clearly established, and the district court
properly refused to grant qualified immunity at this time on defendants-appellants' summary
What is not well settled is – the issue of whether hispanic is a race different from the
white or black race for purposes of the anti-discrimination statutes – the Court chose to treat this
issue as a question of fact, at the Defendants’ request. Again, at this stage of the litigation, the
Court declines to revisit that holding.
Here, the fact-finder concluded that Hardwick intentionally discriminated against the
Plaintiff on the basis of his race by failing to promote him to the position of the Chief of police, a
violation of a clearly-established right. Thus, Hardwick cannot avoid liability on the basis of
3. The Monell Issue
Finally, the Village argues that it is entitled to judgment as a matter of law in that the
Plaintiff failed to establish that the Village had a policy, custom, or practice of discrimination as
set forth in Monell v. New York City Department of Social Services, 436 U.S. 378, 109 S. Ct.
1197, 56 L. Ed. 2d 611 (1978).
To “prevail on a claim against a municipality under section 1983 [or section 1981] based
on acts of a public official, a plaintiff is required to prove: (1) actions taken under color of law;
(2) deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5) that an
official policy of the municipality caused the constitutional injury.” Roe v. City of Waterbury,
542 F.3d 31, 36 (2d Cir. 2008). There must be a “direct causal link between a municipal policy
or custom and the alleged constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378,
385, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989); see Cash v. Cnty. of Erie, 654 F.3d 324, 333 (2d
Cir. 2011)(a plaintiff asserting Monell claim must prove that action taken pursuant to official
municipal policy caused the alleged injury). “Official municipal policy [ ] includes the decisions
of a government's lawmakers, the acts of its policymaking officials, and practices so persistent
and widespread as to practically have the force of law.” Connick v. Thompson, __ U.S. __ , __,
131 S. Ct. 1350, 1359, 179 L. Ed. 2d 417 (2011)(citing Monell).
Here, the Court previously rejected this argument at the close of the Plaintiff’s case, (Tr.
at 1491-92.) and the Court identifies no reason to disturb that decision. Here, Hardwick
conceded that he was the decision-maker as to the Chief of Police position. (Tr. at 490-91.)
Under these circumstances, the record supported the jury’s implicit conclusion that Hardwick
served in a final policy-making position for the Village.
The Village’s reliance on Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012) cert.
denied, 134 S. Ct. 125, 187 L. Ed. 2d 255 (2013) is misplaced. In that case, the Second Circuit
found that there was insufficient evidence at the trial to support a reasonable finding that
Plaintiff’s loss was attributable to a custom, policy, or usage of the Town of East Haven. Unlike
this case, the complained-of-acts were perpetrated by non-policy-makers and there were
questions whether the acts were brought to the attention of any supervisory persons. By contrast,
here, the record indicates that Hardwick, as a policymaker, engaged in the discriminatory act.
4. As to Title VII
In any event, even if there were insufficient evidence to support municipal liability under
Sections 1981 and 1983, the Court notes that the District would still be liable for Hardwick’s
unlawful discrimination under Title VII. Indeed, although employment discrimination claims
brought under Title VII and § 1983 are both analyzed under “the burden-shifting framework of
Title VII claims,” Annis v. County of Westchester, 136 F.3d 239, 245 (2d Cir. 1998), Title VII
and § 1983 diverge in that a Title VII claim can be based upon respondeat superior liability,
whereas a § 1983 claim cannot. See Gierlinger v. New York State Police, 15 F.3d 32, 33 (2d Cir.
1994)(“a Title VII sex discrimination claim . . . carries respondeat superior liability, and a 42
U.S.C. § 1983 damage claim . . . does not impose respondeat liability”).
In sum, the Court finds that (1) a reasonable jury could conclude that race played a
motivating factor in Hardwick’s decision to appoint Bermudez instead the Plaintiff to the
position of the Chief of Police; (2) Hardwick cannot prevail on the affirmative defense of
qualified immunity; and (3) the evidence supported a Monell claim against the Village.
Therefore, the Court denies the Defendants’ Rule 50 motions for judgment as a matter of law.
B. The Defendants’ Rule 59 Motions
1. The Standard for Evaluating a Rule 59 Motion
A motion for a new trial pursuant to Rule 59 should be granted only if “the jury has
reached a seriously erroneous result or its verdict is a miscarriage of justice.” Nimely v. City of
New York, 414 F.3d 381, 392 (2d Cir. 2005)(citation and quotation marks omitted). A new trial
is necessary if “the introduction of inadmissible evidence was a clear abuse of discretion and was
so clearly prejudicial to the outcome of the trial that . . . that the jury . . . reached a seriously
erroneous result or . . . the verdict [was] a miscarriage of justice.” Id. at 399 (internal quotation
omitted). Evidentiary errors by the trial court are deemed harmless unless they render the jury's
verdict “contrary to the interests of ‘substantial justice.”’ Id. (quoting Fed. R. Civ. P. 61).
2. The 2010 United States Census
Here, Hardwick argues that this Court erred in sustaining the Plaintiff’s objection to the
attempt by Hardwick’s counsel to introduce the 2010 United States Census into evidence for the
jury’s consideration of whether hispanic is a race. As noted above, this ruling was inconsistent
with the Court’s prior evidentiary rulings concerning the Plaintiff’s counsel’s questioning of
numerous witnesses concerning a Village of Freeport Census. In this regard, over the
Defendants’ objection, the Court allowed the Plaintiff’s counsel to question Hardwick on
whether the Village of Freeport Census defined and/or treated hispanic as a race. (Tr. at 591.)
Under these circumstances, the Court recognizes some degree of prejudice suffered by the
Nonetheless, the Court finds that the error in failing to admit the 2010 United States
Census was harmless for purposes of Fed. R. Civ. P. 59. In the Court’s view, the Defendants
were able to effectively contest the issue of hispanic as a race versus national origin. In this
regard, the Defendants continually argued that hispanic is not considered a race. Indeed, there
was testimony by Bermudez and Hardwick, among others, that Bermudez belonged to the white
Also, the Plaintiff’s Exh. 18 indicated that certain new appointees during Hardwick’s
term were both “white” and “Hispanic.” Although the Court previously noted that the jury could
reasonable construe this document as referring to skin color and race, respectively, it also could
have reasonably construed this document as referring to race and national origin, respectively.
The jury was free to draw competing, yet reasonable, conclusions based on the evidence.
In sum, the prejudice the Defendants suffered by not being allowed to introduce the 2010
United States Census to defend against the Plaintiff’s assertion that hispanic is a race for
purposes of the anti-discrimination statutes did not render the jury verdict in favor of the Plaintiff
“contrary to the interests of substantial justice.”
Any argument that the shift by the Court in view of the question – namely, whether
hispanic is a race for purposes of the antidiscrimination laws – from one of law to one of fact
does not, under these circumstances, constitute reversible error warranting a new trial. The
Court notes it was the Defendants that sought to have this question decided as a matter of fact,
even though such was not demanded by the Court’s summary judgment decision. Further, the
record indicates that, were this Court to decide the issue as a matter of law, it likely would have
decided it in the Plaintiff’s favor. Under these circumstances, this shift, which could constitute
reversible error in other contexts, does not constitute reversible error here because the error
plainly worked in the Defendants’ favor.
Nor can the Defendants be heard to argue that the shift in treating the question of whether
hispanic is a race for purposes of the anti-discrimination laws as one of law to one of fact was
unduly prejudicial in that the Defendants had relied on that issue being resolved as a matter of
law. Rather, the Defendants represented at the trial that they based their trial strategy on the
assumption – which was faulty – that the summary judgment decision mandated that the question
of whether hispanic is a race for purposes of the anti-discrimination laws was one of fact. To the
contrary, as noted above, the summary judgment decision treated this question as one of law.
Given that the Court ultimately treated this question, as the Defendants repeatedly asked, as one
of fact – a finding the Defendants concededly used to craft their trial strategy – there is no
discernible prejudice to them.
To clarify, the Court could conceive of an alternative scenario which would have been
prejudicial to the Defendants. If, for example, the Defendants had represented at the trial that
they relied on the fact that the Court, in its summary judgment decision, treated the question of
whether hispanic is a race for purposes of the anti-discrimination laws as one of law, the
Defendants would have been prejudiced by this Court’s later decision after the close of evidence
to treat the question as one of fact. However, such is not the case here. Rather, the Defendants
represented during the jury charge conference that they based their trial strategy in part on the
assumption that whether hispanic is a race for purposes of the anti-discrimination laws was a
question of fact.
3. The Weight of the Evidence
The Village argues that it is entitled to a new jury trial under Fed. R. Civ. P. 59 because
the verdict was against the weight of the evidence. The Court disagrees.
“Unlike judgment as a matter of law, a new trial may be granted even if there is
substantial evidence supporting the jury's verdict. Moreover, a trial judge is free to weigh the
evidence [her]self, and need not view it in the light most favorable to the verdict winner.” DLC
Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 133 (2d Cir. 1998). “A new trial must be
granted if the court determines that the verdict is against the weight of the evidence, that the
damages are excessive, or that, for other reasons, the trial was not fair to the party moving.”
Santa Maria v. Metro–North Commuter R.R., 81 F.3d 265, 273 (2d Cir. 1996). The grant of a
new trial is also appropriate when, “in the opinion of the district court, the jury has reached a
seriously erroneous result or . . . the verdict is a miscarriage of justice.” DLC Mgmt. Corp., 163
F.3d at 133.
In this case, although no witness other than Hardwick or Colton had personal knowledge
concerning the appointment of the Chief of Police or the appointment of various department
heads in the Village and Hardwick never made any disparaging comments about any race, the
Defendants are well aware that “direct evidence of an employer's discriminatory intent is rare
and ‘must often be inferred from circumstantial evidence.’” Serby v. New York City Dep't of
Educ., No. 09–CV–2727 (RRM)(VVP), 2012 WL 928194, at *5 (E.D.N.Y. Mar. 19, 2012)
(quoting Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006)).
Framed in these terms, the Court concludes that the cumulative circumstantial evidence
supports the jury verdict. The record indicates that the Plaintiff was qualified for the position of
Chief of Police, having, among other things, attained the top score on the qualifying examination
and the requisite rank of Lieutenant. There was also evidence that Hardwick had a pattern and
practice of making personnel decisions whereby he replaced qualified white employees with
candidates of other races with inferior credentials. Woodward, the former Police chief, credibly
testified that Hardwick discriminated against certain employees in the Village. (Tr. at 1158.) In
the Court’s view, particularly detrimental to Hardwick was his admission that he did not
interview the Plaintiff or review any of his personnel files.
Thus, based on the record, the Court finds that the weight of the evidence supported the
jury verdict in favor of the Plaintiff.
The Village also requests a reduction for each category of damages awarded by the jury
Fed. R. Civ. P. 59 permits a court to reduce the amount of damages awarded by a jury on
a particular claim. See e.g., Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 50 (2d Cir. 1998);
see also Minshall v. McGraw Hill Broadcasting Co., 323 F.3d 1273, 1287 (10th Cir. 2003). “It is
[the court's] function, while appropriately respecting the jury's crucial role, to guard against [ ]
speculative damage awards.” McIntosh v. Irving Trust Co., 887 F. Supp. 662, 665 (S.D.N.Y.
1995)(granting the defendant’s motion under Rule 59 and reducing the award in a retaliation
case). “It does not follow that simply because there was [a violation], there must be an award of
compensatory damages; rather, the compensatory damages must be proven and not presumed.”
McIntosh, 887 F. Supp. at 665.
In the present case, the Village argues that the front pay award is speculative because the
term of Chief of Police is only two years. However, the Village fails to consider that, as a civil
service position, the Chief of Police may not be removed from office, except for “cause.” (Tr. at
532-33.) Indeed, the evidence at the trial established that the prior Chief of Police, Woodward,
held his position for more than 12 years. (Tr. at 1091.)
The Village also seeks a reduction of the punitive damages awarded against Hardwick,
although, curiously, this argument was not raised by Hardwick himself.
As the Second Circuit has recognized, “[a]wards of punitive damages are by nature
speculative, arbitrary approximations. No objective standard exists that justifies the award of
one amount, as opposed to another, to punish a tortfeasor appropriately for his misconduct. Nor
is there any formula to show the dollar amount needed to effectuate deterrence.” Payne v. Jones,
696 F.3d 189, 196 (2d Cir. 2012) opinion amended and superseded, 711 F.3d 85 (2d Cir. 2013).
However, “[e]ven if there is no such thing as a correct amount of punitive damages, however, a
legal system has an obligation to ensure that such awards for intangibles be fair, reasonable,
predictable, and proportionate. Id. at 196-97.
The Court considers three “guideposts” in determining the validity of a punitive damages
award: “(1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity
between the actual or potential harm suffered by the plaintiff and the punitive damages award;
and (3) the difference between the punitive damages awarded by the jury and the civil penalties
authorized or imposed in comparable cases.” State Farm Mutual Auto. Ins. Co. v. Campbell, 538
U.S. 408, 418, 123 S. Ct. 1513, 155 L. Ed. 2d 585 (2003).
“Perhaps the most important indicium of the reasonableness of a punitive damages award
is the degree of reprehensibility of the defendant’s conduct.” BMW of N. Am., Inc. v. Gore, 517
U.S. 559, 575, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996). “[I]n assessing the degree of
reprehensibility of defendants’ conduct, the court must consider whether certain ‘aggravating
factors’ generally associated with highly reprehensible conduct are present. Those factors
include ‘(1) whether a defendant's conduct was violent or presented a threat of violence, (2)
whether a defendant acted with deceit or malice as opposed to acting with mere negligence, and
(3) whether a defendant has engaged in repeated instances of misconduct.’” Thomas v. iStar Fin.,
Inc., 508 F. Supp. 2d 252, 262 (S.D.N.Y. 2007)(quoting Lee v. Edwards, 101 F.3d 805, 809 (2d
“This is not a case involving violence or the threat of violence. However, the jury, in
order to find punitive damages were warranted, had to find that defendants’ conduct was more
than merely negligent.” Thomas, Inc., 508 F. Supp. 2d at 262. In addition, here evidence was
presented at the trial that Hardwick was influenced by unlawful racial considerations in making
other personnel decisions. “Thus, there is certainly sufficient evidence of reprehensible conduct
to warrant a punitive damage award. However, the reprehensibility should not be overstated.”
With respect to the second State Farm guide post, although there is no “bright-line ratio
which a punitive damages award cannot exceed,” the Supreme Court has held that “[s]ingle digit
multipliers are more likely to comport with due process, while still achieving the State’s goals of
deterrence and retribution.” State Farm, 538 U.S. at 425, 123 S. Ct. 1513. Furthermore, “[w]hen
compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory
damages, can reach the outermost limit of the due process guarantee.” Id. Of course, “[t]he
precise award in any case . . . must be based upon the facts and circumstances of the defendant’s
conduct and the harm to the plaintiff.” Id.
Here, the ratio of punitive to compensatory damages awarded by the jury is 1:5.75.
“Such a ratio falls within acceptable limits.” Anderson v. Aparicio, CV 09-1913 (GRB), 2014
WL 2619062, at *7 (E.D.N.Y. June 12, 2014)(declining to disturb a punitive damages award
where the ratio of punitive award to compensatory award was more than four to one). Here, the
jury’s award of punitive damages was significantly less than the total compensatory damages the
jury awarded. “The [C]ourt finds all of the punitive damages awards to be clearly within the
bounds of constitutional propriety and the realm of reason.” Barkley v. United Homes, LLC, 04CV-875 (KAM)(RLM), 2012 WL 2357295, at *16 (E.D.N.Y. June 20, 2012) aff'd sub nom.
Barkley v. Olympia Mortgage Co., 557 F. App'x 22 (2d Cir. 2014), as amended (Jan. 30, 2014).
The final State Farm factor involves comparing the award to “civil and criminal penalties
for comparable misconduct.” DiSorbo v. Hoy, 343 F.3d 172, 187 (2d Cir. 2003). Title VII
imposes a $300,000 cap on punitive damages. 42 U.S.C. § 1981a(b)(3)(d). In addition, Title VII
only allows for an award of punitive damages “if the complaining party demonstrates that the
respondent engaged in a discriminatory practice . . . with malice or reckless indifference.” 42
U.S.C. § 1981a(b)(1). There are no such caps under Sections 1981 or 1983. Bogle v. McClure,
332 F.3d 1347, 1362 (11th Cir. 2003)(“Congress has not seen fit to impose any recovery caps in
cases under § 1981 (or § 1983), although it has had ample opportunity to do so since the 1991
amendments to Title VII.”). Finally, “[t]he NYSHRL does not provide for punitive damages.”
Syrnik v. Polones Const. Corp., 918 F. Supp. 2d 262, 265 (S.D.N.Y. 2013).
Although “most ‘comparable cases’ (that is, New York State and Title VII discrimination
claims) have allowed punitive damages of only $300,000 or less,” Zakre v. Norddeutsche
Landesbank Girozentrale, 541 F. Supp. 2d 555, 566 (S.D.N.Y. 2008)(quotation marks omitted),
the Second Circuit has upheld a punitive damages award of $600,000 in an action brought under
Title VII and the NYSHRL, the Title VII cap notwithstanding, see Zakre v. Norddeutsche
Landesbank Girozentrale, 344 Fed. Appx. 628, 631 (2d Cir. 2009).
Given the State Farm factors as applicable to this action, the Court finds that the jury’s
$200,000 punitive damages award to the Plaintiff is not excessive.
C. Enhanced Damages for Excess Tax Liability
The Plaintiff also seeks to enhance his economic damages award to compensate him for
the increased tax liability he will incur from the projected lump sum damages award. “Although
there is precedent for such an award, the [C]ourt declines to award the plaintiff an additional
monetary amount to offset the increased tax consequences of the economic damages award he
will receive.” Morgenstern v. Cnty. of Nassau, CV 04-58 (ARL), 2009 WL 5103158, at *6
(E.D.N.Y. Dec. 15, 2009); see Hukkanen v. International Union of Operating Eng'rs, Hoisting &
Portable Local No. 101, 3 F.3d 281, 287 (8th Cir. 1993)(refusal to enhance monetary award for
increased tax liability); Belleville v. United Food and Commercial Workers Int'l Union Indus.
Pension Fund, 620 F. Supp. 2d 277, 281 (D.R.I. 2008)(damages for increased tax liability denied
in ERISA case); Kelley v. City of Albuquerque, 2006 U.S. Dist. LEXIS 28785, at *21–22, 2006
WL 1304954 (D.N.M. Mar. 31, 2006)(declining to exercise discretion to award additional money
for tax liability in Title VI case); Best v. Shell Oil, Co., 4 Supp.2d 770 (N.D. Ill. 1998)(denial of
request for enhanced monetary award); cf. Eshelman v. Agere Sys., 554 F.3d 426, 440 (3d Cir.
2009)(awarding supplemental monetary award for increased tax liability).
D. As to the Attorneys’ Fees Award
The Plaintiff seeks attorneys’ fees in the amount of $825,927.50, based on the following
hourly rates: $400 for partners Amanda M. Fugazy, Adam C. Weiss, and Paul P. Rooney; $325
for Senior Associate Holly Froum, $300 for Senior Associate Jordan Wolff, $250 for Associates
Sheryl Maltz and Justin Weitzman; and $115 for paralegals Allison Vieyra, Kim Myers, and
“In the United States, parties are ordinarily required to bear their own attorney’s fees —
the prevailing party is not entitled to collect from the loser. . . . Congress, however, has
authorized the award of attorney’s fees to the ‘prevailing party’ in numerous statutes.”
Buckhannon Bd. & Care Home, Inc., v. West Virginia Dept. Of Health & Human Res., 532 U.S.
598, 602, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001). 42 U.S.C. § 1988(b) provides:
In any action or proceeding to enforce a provision of [Section 1983] . . . the court,
in its discretion, may allow the prevailing party . . . a reasonable attorneys’ fee as
part of the costs.
42 U.S.C. § 1988(b). The Defendants do not dispute that the Plaintiff is a prevailing party whose
reasonable attorneys’ fees and costs are compensable. However, the Defendants do argue that
the fee request is unreasonable.
Courts assess the reasonableness of attorney’s fees using a variation on the “lodestar”
method that generates a “presumptively reasonable fee.” Arbor Hill Concerned Citizens
Neighborhood Assoc. v. Cnty. of Albany, 522 F.3d 182, 183 (2d Cir.2008); McDaniel v. Cnty. of
Schenectady, 595 F.3d 411, 420 (2d Cir. 2010). While Arbor Hill eschews the term “lodestar” in
favor of the term “presumptively reasonable fee,” 522 F.3d at 189, “the Court does not believe
that Arbor Hill holds that there is a substantive distinction between the two terms.” Orient
Overseas Container v. Crystal Cove Seafood, 10 CIV 3166 (PGG)(GWG), 2012 WL 6720615, at
*2 n.1 (S.D.N.Y. Dec. 28, 2012). The Court uses the term “lodestar” herein because it is the
term used by the Supreme Court, see e.g., Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551,
130 S. Ct. 1662, 1672, 176 L. Ed. 2d 494 (2010), and because it is nomenclature used by the
Second Circuit even after Arbor Hill, see e.g., Millea v. Metro–North R.R. Co., 658 F.3d 154,
166–69 (2d Cir. 2011).
The “lodestar” is “the product of a reasonable hourly rate and the reasonable number of
hours required by the case.” Millea, 658 F.3d at 166; see also McDaniel, 595 F.3d at 420.
A reasonable rate is the rate that a “reasonable, paying client would be willing to pay.”
Id. at 184, 190. “To assist courts in ‘stepping into the shoes of the reasonable, paying client,’ the
Second Circuit has outlined a number of ‘case-specific variables’ for courts to consider.”
Broad. Music, Inc. v. Pamdh Enterprises, Inc., 13-CV-2255 (KMW), 2014 WL 2781846, at *6
(S.D.N.Y. June 19, 2014).
These variables include the twelve factors set forth in Johnson v. Georgia Highway
Express, Inc., 488 F.2d 714, 717–19 (5th Cir. 1974), which are:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3)
the level of skill required to perform the legal service properly; (4) the preclusion
of employment by the attorney due to acceptance of the case; (5) the attorney's
customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time
limitations imposed by the client or the circumstances; (8) the amount involved in
the case and the results obtained; (9) the experience, reputation, and ability of the
attorneys; (10) the “undesirability” of the case; (11) the nature and length of the
professional relationship with the client; and (12) awards in similar cases.
Arbor Hill, 522 F.3d at 186 n. 3. Other variables are:
the complexity and difficulty of the case, the available expertise and capacity of
the client's other counsel (if any), the resources required to prosecute the case
effectively (taking account of the resources being marshaled on the other side but
not endorsing scorched earth tactics), the timing demands of the case, whether an
attorney might have an interest (independent of that of his client) in achieving the
ends of the litigation or might initiate the representation himself, whether an
attorney might have initially acted pro bono (such that a client might be aware
that the attorney expected low or non-existent remuneration), and other returns
(such as reputation, etc.) that an attorney might expect from the representation.
Id. at 184.
However, “‘the most critical factor’ in a district court’s determination of what constitutes
reasonable attorney’s fees in a given case ‘is the degree of success obtained’ by the plaintiff.”
Barfield v. New York City Health and Hospitals Corp., 537 F.3d 132, 151–52 (2d Cir. 2008)
(quoting Farrar v. Hobby, 506 U.S. 103, 114, 113 S. Ct. 566, 121 L. Ed. 2d 494 (1992)). “A
district court’s assessment of the ‘degree of success’ achieved in a case is not limited to inquiring
whether a plaintiff prevailed on individual claims.” Barfield, 537 F.3d at 152. “Both ‘the
quantity and quality of relief obtained,’ as compared to what the plaintiff sought to achieve as
evidenced in [his or] her complaint, are key factors in determining the degree of success
achieved.” Id.; see also Farrar, 506 U.S. at 114, 113 S. Ct. 566, 121 L. Ed. 2d 494 (“Where
recovery of private damages is the purpose of . . . civil rights litigation, a district court, in fixing
fees, is obligated to give primary consideration to the amount of damages awarded as compared
to the amount sought.” (quotations and citation omitted)).
Here, the Plaintiff’s supporting affidavit indicates that attorney Fugazy, Weiss, and
Rooney, have 15, 11, and 19, years of experience practicing labor and employment law
respectively. The Court notes that this was a three-week trial preceded by 27 months of intense
litigation, in which the Plaintiffs were required to bring six motions to compel; undertake eight
depositions, oppose to two motions for summary judgment, and respond to several motions in
limine. As to the novelty and difficulty of the questions involved, the Court notes that, although
“reverse discrimination” cases are common, this case involved extensive litigation over whether
hispanic is a race different than the white or black race for purposes of the anti-discrimination
statutes, and whether such a question needed to be resolved before jury deliberation. Although
the Court ultimately declined to make any determinations regarding this issue as a matter of law,
the Court received helpful guidance regarding the case law on the issue from the Plaintiff’s
The rates that the partners request are at the high end, but in line with market rates.
“Courts have awarded rates of $200 to $400 per hour for partners in this district.” Capone v.
Patchogue–Medford Union Free Sch. Dist., No. 04–CV–2947 (JS)(MLO), 2011 WL 743573, at *
2 (E.D.N.Y. Feb. 23, 2011); see also Konits v. Valley Stream Cent. High Sch. Dist., No. 01–CV–
6763 (LDW), 2010 WL 2076949, at *2 (E.D.N.Y. May 19, 2010)(“The Court finds that the
range of $300–400 per hour is an appropriate range for experienced attorneys in employment
discrimination actions in this district.”), aff'd sub nom. Konits v. Karahalis, 409 F. App’x 418
(2d Cir. 2011); Todaro v. Siegel Fenchel & Peddy, P.C., 697 F. Supp. 2d 395, 399 (E.D.N.Y.
2010)(holding that $400 per hour was a reasonable rate for a partner with seventeen years of
employment discrimination litigation experience). The Plaintiff bolsters his fee request with
numerous affidavits from other experienced civil rights attorneys who practice in the Eastern
District; each attests to the reasonableness of the Plaintiff’s requested rate. Lastly, the Village
concedes that the Plaintiff’s counsel’s customary rates are within the normal range.
Accordingly, the Court finds that $400 per hour is appropriate here for the partners,
particularly given the degree of success obtained by the Plaintiff. Indeed, the Plaintiff’s expert
witness testified at the trial that as a result of the Defendants’ failure to promote the Plaintiff, he
suffered economic damages of $1,258,000. The jury ultimately found in favor of the Plaintiff for
$1,150,000 in economic damages, or nearly 92% of that which was sought. The Plaintiff also
obtained $200,000 in punitive damages.
The Court further finds that the requested rates for the Senior and Junior Associates to be
reasonable in light of market rates. Olsen v. County of Nassau, No. CV 05-3623(ETB), 2010 WL
376642, at *3 (E.D.N.Y. Jan.26, 2010)(noting that the range of appropriate billing rates in the
Eastern District “is $200–$375 per hour for partners and $100–$295 per hour for associates”);
Gutman v. Klein, No. 03 Civ. 1570(BMC), 2009 WL 3296072, at *2 (E.D.N.Y. 2009)(awarding
between $300 -$400 for partners, between $200 - $300 for senior associates, $100 - $200 for
However, the Court finds that $115 an hour for paralegal services is excessive. Compare
Todaro v. Siegel Fenchel & Peddy, P.C., 697 F. Supp. 2d 395, 400 (E.D.N.Y. 2010)($85/hr for
paralegal); Finkel v. Jones Lang LaSalle Americas, Inc., 08–CV–2333 (RRM)(RML), 2009 WL
5172869, at *5 (E.D.N.Y. 2009)($80/hr for paralegals); Morgenstern v. County of Nassau, 2009
WL 5103158, at *9 ($100/hr for paralegals). Accordingly, the Court reduces the paralegals’
hourly rate to $100 per hour.
Having determined the hourly rates to be used, the Court now turns to the reasonableness
of the hours billed in this matter. As required by New York State Ass’n for Retarded Children,
Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983), the Plaintiff’s counsel has submitted
contemporaneous billing records setting forth the date and amount of time when services were
rendered, along with the name of the attorney and/or paralegals, and a description of the services
performed. Those billing records reflect that the attorneys and paralegals spent a total of 2594
hours on this matter. The Village points to various figures in these billing records which it
contends constitute excessive, unnecessary, and duplicate billing.
However, the Second Circuit has stated that the district court is not required to “set forth
item-by-item findings concerning what may be countless objections to individual billing items.”
Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir.1994); see also Daiwa Special Asset Corp. v.
Desnick, No. 00 CV 385 (SHS), 2002 WL 31767817, at *5 (S.D.N.Y. Dec. 3, 2002)(reducing fee
award by 50% due in part to excessive billing). Particularly where, as here, the billing records
are voluminous, “it is less important that judges attain exactitude, than that they use their
experience with the case, as well as their experience with the practice of law, to assess the
reasonableness of the hours spent.” Amato v. City of Saratoga Springs, 991 F. Supp., 62, 65
(N.D.N.Y. 1998)(citing Clarke v. Frank, 960 F.2d 1146, 1153 (2d Cir. 1992).
Here, the Court is satisfied that the Plaintiff’s billing records are reasonable and sufficient
except as follows: the billing records indicate that the Plaintiff’s attorneys billed $422,532.50
over a two-year period from October 2011 through November 2013, and then billed $403,395.00
from December 2013 to May 2014, a five-month period after the close of discovery. Although
this latter five-month period directly preceded the trial and was the subject of significant motion
practice, the Court finds this disparity to be unreasonable.
Based on an overall assessment of the entire billing record, the Court will apply a 40%
reduction in the number of hours expended from December 2013 to May 2014. See Francois v.
Mazer, 523 F. App'x 28, 29 (2d Cir. 2013)(upholding forty percent across-the-board reduction in
hours following a jury trial). Taking into account the reduced rate awarded for paralegal
services, $100/hr, the adjusted total is $419,480 for the period from October 2011 to November
2013, plus $241,659 for the period from December 2013 to May 2014, totaling $661,139.
Even with this downward adjustment, the Court anticipates the Village’s argument that
no reasonable client would pay $661,139 to litigate a case seeking damages of $1,350,000.
However, there is no requirement that the amount of an award of attorneys’ fees be proportional
to the amount of damages. The Second Circuit has held: “‘[W]e have repeatedly rejected the
notion that a fee may be reduced merely because the fee would be disproportionate to the
financial interest at stake in the litigation.’” Barbour v. City of White Plains, 700 F.3d 631, 635
(2d Cir. 2012)(quoting Kassim v. City of Schenectady, 415 F.3d 246, 252 (2d Cir. 2005)). Last
year, the Second Circuit held that “[t]he proportionality of the $3.42 million fee award is not to
be judged, as Gristede's urges, against the dollar value of the $3.53 million settlement.” Torres v.
Gristede’s, 519 Fed. Appx. 1, 5 (2d Cir. 2013).
Nor is the Court required to reduce the fee award because certain of the Plaintiff’s claims
were unsuccessful. Indeed, courts need not reduce a fee award where the “successful and the
unsuccessful claims were interrelated and required essentially the same proof.” Murphy v. Lynn,
118 F.3d 938, 952 (2d Cir. 1997)(collecting cases); Green v. Torres, 361 F.3d 96, 98 (2d Cir.
2004)(noting that when claims contain “common core facts” they are not severable and attorneys
fees are properly awarded).
As a general matter,
unrelated claims are unlikely to arise with great frequency. Many civil rights
cases will present only a single claim. In other cases the plaintiff's claims for
relief will involve a common core of facts or will be based on related legal
theories. Much of counsel’s time will be devoted generally to the litigation as a
whole, making it difficult to divide the hours expended on a claim-by-claim basis.
Such a lawsuit cannot be viewed as a series of discrete claims. Instead the district
court should focus on the significance of the overall relief obtained by the
plaintiff in relation to the hours reasonably expended on the litigation.
Hensley v. Eckhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983).
In this case, needless to say, given the extended dispute over whether hispanic is
properly considered a race or a national origin coupled with the fact the claims arise from the
same core set of facts, the Court declines to reduce the fee award because the Plaintiff
unsuccessfully pursued certain claims.
The Village cites, among other cases, a § 1983 retaliation case, Konits v. Valley Stream
Cent. High Sch. Dist., CV 01-6763 (LDW), 2010 WL 2076949 (E.D.N.Y. May 19, 2010) aff'd
sub nom. Konits v. Karahalis, 409 F. App'x 418 (2d Cir. 2011) for language from Judge Leonard
Wexler that “$500,123 is at the upper end of what constitutes a reasonable attorney's fee.”
However, the Village selectively quotes from Konits. Judge Wexler stated that $500,123
approached the limits of a reasonable fee “considering the degree of success and result in this
action.” There, the jury returned a verdict for the Plaintiff for $400,000. After the individual
defendant moved to set aside the verdict, the parties settled for $175,000. Here, by contrast, the
Plaintiff’s counsel obtained a verdict for $1,150,000, plus $200,000 in punitive damages.
E. As to Costs
The Plaintiff also seeks costs of $28,238.67. A prevailing party is also entitled to
compensation for “those reasonable out-of-pocket expenses incurred by attorneys and ordinarily
charged to their clients.” LeBlanc–Sternberg, 143 F.3d at 763 (internal quotation marks omitted).
Under federal civil rights law, costs awarded to successful parties may “include not only
those ordinarily recoverable pursuant to 28 U.S.C. § 1920 and Rule 54(d)(1) of the Federal Rules
of Civil Procedure, but also any additional expenses ordinarily charged in the particular legal
marketplace.” Robinson, 2009 WL 3109846, at *34–35 (citing U.S. Football League v. Nat'l
Football League, 887 F.2d 408, 416 (2d Cir. 1989)(holding that reasonable, identifiable out-ofpocket disbursements ordinarily charged to clients are recoverable); see also Kuzma v. I.R.S.,
821 F.2d 930, 933–34 (2d Cir. 1987)(providing a non-exclusive list of recoverable costs,
including photocopying, travel and telephone costs); Anderson v. City of New York, 132 F.
Supp. 2d 239, 245 (S.D.N.Y. 2001).
However, the Plaintiff’s itemized list of costs includes a charge for miscellaneous
supplies for trial, binders, and exhibit tabs, expenses that are considered non-compensable
general office overhead. Manzo v. Sovereign Motor Cars, Ltd., 08-CV-122 (JG)(SMG), 2010
WL 1930237, at *11 (E.D.N.Y. May 11, 2010) aff'd, 419 F. App'x 102 (2d Cir. 2011).
In addition, Plaintiff’s seeks reimbursement for $175.98 in secretarial overtime, which is
also considered non-recoverable overhead. Marisol A. ex rel. Forbes v Giuliani, 111 F. Supp. 2d
381, 390 (S.D.N.Y. 2000)(“clerical and secretarial services are part of overhead and are not
generally charged to clients”).
The Court also declines to tax the costs of a “memory stick to download research from 2d
Cir library.” It is well-established that “computer research is merely a substitute for an
attorney’s time that is compensable under an application for attorneys’ fees and is not a
separately taxable cost.” United States ex rel. Evergreen Pipeline Constr. Co. v. Merritt Meridian
Constr. Corp., 95 F.3d 153, 173 (2d Cir. 1996).
Nor does the Court find that the Plaintiff’s claimed cost of $1,250 for press releases
should be included. In this regard, the Plaintiff has not established that such a cost would
normally be charged to the fee-paying client.
With the exception of the above-mentioned non-taxable costs, which have been deducted,
the Plaintiff’s request for costs is granted in the amount of $26,612.42.
F. Pre-Judgment Interest on Back Pay Award
As the Second Circuit has made clear, where “damages awarded to the plaintiff [in a Title
VII action] represent compensation for lost wages, ‘it is ordinarily an abuse of discretion not to
include pre-judgment interest.” Gierlinger v. Gleason, 160 F.3d 858, 873–74 (2d Cir.
1998)(citation omitted). No federal statute specifies the rate at which pre-judgment interest
should be calculated, and courts in this district have utilized a number of different rates. See
Hollie v. Korean Air Lines Co., Ltd., 834 F. Supp. 65, 69 (S.D.N.Y. 1993)(citing cases applying
various rates). Most commonly, courts have borrowed the statutory post-judgment interest rate
specified in 28 U.S.C. § 1961(a) in order to calculate prejudgment interest. See Cioffi v. N.Y.
Cmty. Bank, 465 F. Supp. 2d 202, 222 (E.D.N.Y. 2006)(“In cases where the judgment is based
on violations of both state and federal law, it is common practice in the Second Circuit to apply
the federal interest rate pursuant to 28 U.S.C. § 1961(a).”).
The Court observes no reason to depart from this ordinary practice. In accordance with
other district courts in this Circuit, the Court will direct the Clerk to calculate pre-judgment
interest based on the United States 52–week treasury bill rate referred to in 28 U.S.C. § 1961,
compounded annually. Luciano v. Olsten Corp., 912 F. Supp. 663, 676–77 (E.D.N.Y. 1996)
(using 28 U.S.C. § 1961 to award prejudgment interest on plaintiffs back-pay award under Title
VII of the Civil Rights Act of 1964), aff’d 110 F.3d 210 (2d Cir.1997). Also, the Court finds that
pre-judgment interest runs from August 1, 2012, which is roughly the midpoint between when
Bermudez was promoted and the date of the motion for pre-judgment interest on the back pay
award, through the date the judgment was entered. Indeed, “[w]here prejudgment interest is
given, it should be assessed upon damages only as they become due.” Chandler v. Bombardier
Capital, Inc., 44 F.3d 80, 84 (2d Cir. 1994). “Utilizing the midpoint date is a practical method of
accounting for the fact that [the Plaintiff]’s damages accrued over a period of time while
‘avoiding the need for numerous calculations establishing a separate interest figure for each lost
monthly payment.’” Manzo, 2010 WL 1930237, at *12 n. 21 (quoting Chandler).
The Plaintiff does not appear to request pre-judgment interest on the punitive damages
award or the front pay award. However, for the sake of a complete record, the Court notes that
as a matter of federal law, the Plaintiff cannot recover pre-judgment interest on the punitive
damages award because punitive damages are penalties. See Wickham Contracting Co., Inc. v.
Local Union No. 3, Int'l Bhd. of Elec. Workers, 955 F.2d 831, 833–34 (2d Cir. 1992)(noting that
because punitive damages are a penalty and not awarded as compensation, pre-judgment interest
is not necessary to make a party whole and would in fact result in over-compensation); Cioffi v.
New York Cmty. Bank, 465 F. Supp. 2d 202, 223 (E.D.N.Y. 2006)(“Since punitive damages are
not intended to provide full compensation to plaintiff, there is no basis for applying pre-judgment
interest to the punitive damage award in this case.”).
Similarly, the rationale for awarding pre-judgment interest – to make the Plaintiff whole –
only applies to back pay, not front pay. Scarfo v. Cabletron Systems, Inc., 54 F.3d 931, 961 (1st
Cir. 1995)(affirming district court's denial of pre-judgment interest on front pay award); Ranquist
v. M & M Indus., Inc., 2:11-CV-387 (DBH), 2012 WL 1899540, at *9 (D. Me. May 2,
2012)(“An award of prejudgment interest is appropriate with respect to back pay and
compensatory damages only.”); report and recommendation adopted, 2:11-CV-387 (DBH), 2012
WL 1899438 (D. Me. May 23, 2012).
G. Post-Judgment Interest on the Full Judgment Award
Under 28 U.S.C. § 1961(a), a plaintiff is entitled to post-judgment interest on “any money
judgment in a civil case recovered in a district court.” The rate of post-judgment interest is
governed by 28 U.S.C. § 1961(a) & (b), which direct that interest be calculated from the date
judgment is entered, at a rate equal to the weekly average 1–year constant maturity Treasury
yield, compounded annually.
“Postjudgment interest is designed to compensate the plaintiff for the delay it suffers
from the time damages are reduced to an enforceable judgment to the time the defendant pays the
judgment.” Andrulonis v. United States, 26 F.3d 1224, 1230 (2d Cir. 1994). “The postjudgment
amount upon which the interest accrues includes compensatory damages [and] punitive
damages.” Koch v. Greenberg, 07 CIV. 9600 (JPO), 2014 WL 1284492, at *30 (S.D.N.Y. Mar.
H. Pre and Post-Judgment Interest on the Fee Award
The Plaintiff seeks post-judgment interest on the fee award, but apparently not prejudgment interest on the fee award. “[P]ost-judgment interest is available for an award of
attorneys’ fees arising out of a judgment in the district court.” Brady v. Wal-Mart Stores, Inc.,
03-CV-3843 (JO), 2010 WL 4392566, at *9 (E.D.N.Y. Oct. 29, 2010). Rule 54(d)(2)(B)
requires that a motion for attorney’s fees be filed within fourteen days after entry of judgment.
Here, the Plaintiff filed his request for post-judgment interest on the fee award on June
25, 2014, more than 14 days after the entry of judgment, on May 30, 2014. Therefore, the
request is untimely and is denied. Id. (the plaintiff forfeited his right to post-judgment interest on
attorneys’ fees after not requesting the same in his initial fee application and failing to crossappeal a challenge). Although the Plaintiff filed his initial motion for attorneys’ fees on June 11,
2014, the Plaintiff did not include in that motion any request for post-judgment interest on the
I. Pre and Post-Judgment Interest on Costs
The Plaintiff also seeks pre-judgment interest on the costs award. “Courts in this Circuit
have awarded interest on the costs incurred during litigation.” Tatum v. City of New York, 06CV-4290 (PGG)(GWG), 2010 WL 334975, at *14 (S.D.N.Y. Jan. 28, 2010). Indeed, an award
of interest on costs is appropriate “since counsel have been out-of-pocket for those costs for a
substantial period of time.” Rozell v. Ross-Holst, 576 F. Supp. 2d 527, 548 (S.D.N.Y. 2008).
The Plaintiff also seeks post-judgment interest on costs.
The Defendants contend that the Plaintiff’s requests in this regard are untimely as filed
more than 14 days after entry of the judgment. However, the Defendants conflate the timing of
an application for attorneys’ fees versus the timing of an application for costs. Local Rule 54.1
governs the timing and mechanics of an application for costs:
(a) Request to Tax Costs. Within thirty (30) days after the entry of final judgment,
or, in the case of an appeal by any party, within thirty (30) days after the final
disposition of the appeal, unless this period is extended by the Court for good
cause shown, any party seeking to recover costs shall file with the Clerk a request
to tax costs annexing a bill of costs and indicating the date and time of taxation.
Costs will not be taxed during the pendency of any appeal. Any party failing to
file a request to tax costs within the applicable thirty (30) day period will be
deemed to have waived costs. The request to tax costs shall be served upon each
other party not less than seven (7) days before the date and time fixed for taxation.
The bill of costs shall include an affidavit that the costs claimed are allowable by
law, are correctly stated and were necessarily incurred. Bills for the costs claimed
shall be attached as exhibits.
In any event, “[t]he local rule, however, transparently pertains to ‘costs,’ and postjudgment interest is not a ‘cost.’” AIG Global Sec. Lending Corp. v. Banc of Am. Sec. LLC, 01
CIV 11448 (JGK), 2011 WL 102715, at *3 (S.D.N.Y. Jan. 6, 2011). Thus, “[t]he [P]laintiff
ha[s] not waived their right to an award of such interest by failing to request it within the thirtyday period prescribed for requests for costs.” Id. Nor, the Court finds, is pre-judgment interest
on costs a “cost” within the meaning of Local Rule 54.1.
With respect to pre-judgment interest on costs, the Plaintiff requests that the Court apply
the interest rate specified in 28 U.S.C. § 1961(a), which provides in relevant part:
Interest shall be allowed on any money judgment in a civil case recovered in a
district court. . . . Such interest shall be calculated from the date of the entry of the
judgment, at a rate equal to the weekly average 1–year constant maturity Treasury
yield, as published by the Board of Governors of the Federal Reserve System, for
the calendar week preceding the date of the judgment.
28 U.S.C. § 1961(a). The Defendants have made no objection to the Plaintiff’s request.
Accordingly, this Court will award pre-judgment interest on the costs award of $26,612.42, at the
rate specified in 28 U.S.C. § 1961(a), compounded annually.
As to post-judgment interest on costs, case law is inconsistent on when the interest
accrues and there is no controlling law in this circuit. Again, post-judgment interest on costs is
governed by 28 U.S.C. § 1961(a). As relevant here, the statute reads: “Interest shall be allowed
on any money judgment in a civil case recovered in a district court. . . . Such interest shall be
calculated from the date of the entry of the judgment.” 28 U.S.C. § 1961(a).
“Determining whether § 1961 postjudgment interest should accrue from the date of
judgment establishing the right to an award of attorneys’ fees and costs or from the date of the
judgment ‘establishing its quantum’ has resulted in a split amongst the Circuits that have
addressed it and remains an open issue for both the Supreme Court and the Second Circuit.”
Natural Organics, Inc. v. Nutraceutical Corp., 01 CIV. 0384 (GBD)(RLE), 2009 WL 2424188, at
*10 (S.D.N.Y. Aug. 6, 2009)(internal citation omitted). The Court's research found no binding
precedent addressing solely the issue of post-judgment interest on taxable costs. “Other Circuits
have treated the question of postjudgment interest for such costs similarly to the treatment of
attorneys’ fees, and the Court looks to these cases for possible analysis.” Natural Organics, Inc.,
2009 WL 2424188, at 10 n. 9; see also Forest Labs., Inc. v. Abbott Labs., 96-CV-159S (WMS),
2006 WL 7077571, at *4 (W.D.N.Y. May 17, 2006)(“While the parties have not cited, nor has
the Court found, any cases on point with respect to awarding postjudgment interest on costs, the
Court has found cases addressing the analogous issue of postjudgment interest on an attorneys'
The “majority approach” followed by the Fifth, Sixth, Eighth, Ninth, Eleventh, and
Federal Circuits uses the date “the party becomes entitled to the award even if that award is not
quantified until a later point.” Fresh Meadow Food Servs., LLC v. RB 175 Corp., 04-CV-4767
(TLM), 2013 WL 527199, at *13 (E.D.N.Y. Feb. 11, 2013)(quotation marks and citations
omitted), aff'd, 549 F. App'x 34 (2d Cir. 2014). Many district courts from the Second Circuit,
and particularly from the Eastern District of New York, have adopted the majority approach,
which is now considered the dominant standard within the Second Circuit.” Id. (quotation marks
and citations omitted). The rationale of those cases is that the fee-paying party “suffers no
prejudice from any delay in quantifying the award because it has use of the money in the interim
and because the statutory interest rate is tied to the U.S. Treasury Bill rate.” Jenkins by Agyei v.
Missouri, 931 F.2d 1273, 1277 (8th Cir. 1991), cert. denied, 502 U.S. 925, 112 S. Ct. 338, 116 L.
Ed. 2d 278 (1991).
The “minority approach” reasons that interest should only run from the date the fee award
is quantified “since before then the [prevailing party's] claim for unpaid attorney's fees is
unliquidated and therefore is not a ‘money judgment’ for purposes of Section 1961.” Albahary v.
City & Town of Bristol, Conn., 96 F. Supp. 2d 121, 123 (D. Conn. 2000); Auto. Club of New
York, Inc. v. Dykstra, 04 CIV 2576 (SHS), 2010 WL 3529235, at *5 (S.D.N.Y. Aug. 24,
2010)(“other circuits have held — correctly, in this Court's view — that prior to the date the
amount of attorneys’ fees is actually quantified, the damages are unliquidated and therefore are
not a ‘money judgment’ within the meaning of section 1961.”)
In determining the date on which post-judgment interest on costs accrues, the Court
adopts the approach followed by the majority of the circuits and adopted by the district court in
Albahary. Therefore, the Plaintiff is awarded post-judgment interest on costs from the date he
became entitled to that award at the U.S. Treasury Bill rate, as specified in 28 U.S.C. § 1961,
until the award is paid. That date is determined to be May 30, 2014, the date the Court entered
judgment. “Post-judgment interest on federal judgments is compounded annually.” Fendi Adele
S.R.L. v. Burlington Coat Factory Warehouse Corp., 689 F. Supp. 2d 585, 625 (S.D.N.Y. 2010).
For the foregoing reasons, the Court denies the Defendants’ Rule 50 motions for
judgment as a matter of law. In this regard, the Court finds, among other things, that (1) a
reasonable jury could conclude that race played a motivating factor in Hardwick’s decision to
appoint Bermudez instead of the Plaintiff to the position of the Chief of Police; (2) Hardwick
cannot prevail on the affirmative defense of qualified immunity; and (3) the evidence supported a
Monell claim against the Village.
The Court also denies the Defendants Rule 59 motions for a new trial. In particular, the
Court finds that although it erred in excluding the 2010 U.S. Census from the evidence, that error
did not arise to the level warranting a new trial. Stated otherwise, the Court is not convinced that
the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.
The Court further finds that the jury verdict was not contrary to the weight of the evidence.
The Court grants the Plaintiff’s motion for attorney’s fees and costs to the extent that the
Plaintiff is awarded $661,139 in attorneys’ fees and $26,612.42 in costs.
The Court grants in part and denies in part the Plaintiff’s motion to amend or “mold” the
jury verdict. The Court grants the motion insofar as the Plaintiff is awarded (1) pre-judgment
interest on the back pay award of $150,000 to be calculated by the Clerk of the Court at the rate
prescribed in 28 U.S.C. § 1961(a), compounded annually, from August 1, 2012 through the date
of the judgment, May 30, 2014; (2) pre-judgment interest on the costs award of $26,612.42, at
the rate prescribed by 28 U.S.C. § 1961(a), compounded annually, from August 1, 2012 through
the date of the judgment, May 30, 2014; and (3) post-judgment interest on the judgment amount
of $1,350,000, plus costs of $26,612.42 from May 30, 2014, at the rate prescribed by 28 U.S.C. §
1961(a) compounded annually, until paid. The Court denies the motion insofar as the Plaintiff
seeks (1) an upward adjustment of the jury award to account for negative tax consequences and
(2) post-judgment interest on the attorneys’ fees award.
Dated: Central Islip, New York
August 28, 2014
_ Arthur D. Spatt
ARTHUR D. SPATT
United States District Judge
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