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Cecil Bell v. Construction and General Building Laborers' Local 79

August 26, 2011

CECIL BELL, PLAINTIFF,
v.
CONSTRUCTION AND GENERAL BUILDING LABORERS' LOCAL 79, AND FRANK NOVIELLO, DEFENDANTS.



The opinion of the court was delivered by: Richard J. Holwell, District Judge:

MEMORANDUM OPINION AND ORDER

Plaintiff Cecil Bell brought this action in New York State Supreme Court on July 2, 2004, alleging that defendants Construction and General Building Laborers' Local 79 ("Local 79") and Frank Noviello, Local 79's president at the time, retaliated against him for filing charges of racial discrimination with the National Labor Relations Board and the Equal Employment Opportunity Commission against Local 79. Defendants removed the action to this Court on August 12, 2004. After a three-day jury trial, the jury found in favor of defendants. Plaintiff Cecil Bell now moves for a new trial based on the Court's exclusion of the recording and transcript of a taped conversation between Bell and non-party Jack Klein (the "Klein-Bell Recording"). For the following reasons, that motion is DENIED.

It is well established that "[i]n order for the Court 'to order a new trial under Rule 59(a), it must conclude that the jury has reached a seriously erroneous result or . . . [that] the verdict is a miscarriage of justice, i.e., it must view the jury's verdict as against the weight of the evidence.'"

Mugavero v. Arms Acres, Inc., 680 F. Supp. 2d 544, 558 (S.D.N.Y. 2010) (quoting Manley v. AmBase Corp., 337 F.3d 237, 245 (2d Cir. 2003)). "Thus, a court should grant a new trial if it finds that the verdict is 'against the weight of the evidence,' or 'if the trial was not fair to the moving party.'" In re Vivendi Universal, S.A. Sec. Litig., 765 F. Supp. 2d 512, 573 (S.D.N.Y. 2011) (quoting Manley, 337 F.3d at 245; United States v. Greer, 285 F.3d 158, 170 (2d Cir. 2002)). "A trial may be unfair to the moving party if substantial errors were made in admitting or excluding evidence, or in charging the jury, or if misconduct by counsel during the course of the trial causes unfair prejudice to the moving part." Id. "The Rule 59 standard is less stringent than the Rule 50 standard for judgment as a matter of law in two respects: '(1) a new trial under Rule 59(a) may be granted even if there is substantial evidence supporting the jury's verdict, and (2) a trial judge is free to weigh the evidence himself, and need not view it in the light most favorable to the verdict winner.'" Id. (quoting Manley, 337 F.3d at 244-45). "In weighing the evidence, however, the Court should not ordinarily ignore the jury's role in resolving factual disputes and assessing witness credibility." Mugavero, 680 F. Supp. 2d at 558-59 (internal quotation marks omitted).

By way of background, a central issue at trial was whether defendants Noviello or Local 79 retaliated against Bell in 2004 by convincing Jack Klein, a Vice President of Silverstein Development Corporation ("Silverstein"), to drop efforts that he was making to get Bell hired as a laborer on the World Trade Center 7 ("WTC 7") reconstruction project because of complaints of racial discrimination Bell filed against Local 79 in 2003. Bell was attempting to secure employment with Tishman Construction ("Tishman"), the general contractor at the WTC 7 site. Silverstein was the developer who had retained Tishman at the WTC 7 site. Frank Noviello was the president of Local 79, Bell's union, and spoke with Klein about Bell in 2004.

The relevant portion of the disputed recording contains this quote from Klein: [Klein]: I went to your president, the president of your union and asked him to put you on your job, on, on my job. And he says, "Look Jack, I'm not a real big fan of this guy; he's got issues." I don't know what that means, right? He said, "but he's got issues with the union." And I don't know what that means, but I went to the president of your union and I'm tellin' ya, under normal circumstances Frankie [Noviello] would have done whatever I asked him to do. (Pl.'s Exs. 5, 6 (emphasis in original).)

At trial, counsel for Local 79 and Klein had this exchange: Q: . . . Did Mr. Noviello at any time say anything to you or do anything that made you or caused you to stop making an effort to get Mr. Bell a job?

A: No. (Trial Tr. at 102:21-24.)

Counsel for Bell, on cross-examination, asked Klein about the recorded conversation, although the recording itself was not mentioned:

Q: My question to you, sir, is did you tell Mr. Bell during a conversation that you had with him that you went to the president of Mr. Bell's union and asked the president of Mr. Bell's union to put him on a job and Mr. Noviello told you, look, Jack, I'm not a real big fan of this guy. He's got issues. Did you tell that to Mr. Bell?

A: I did tell that to Mr. Bell.

Q: Did you also tell Mr. Bell during that conversation that you didn't know what that meant about issues?

A: Yes, I did.

Q: And did you tell Mr. Bell that you went to the president of his union and that under normal circumstances, Frankie Noviello would ...


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