United States District Court, E.D. New York
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August 28, 2014, Filed
For the Plaintiff: Amanda M. Fugazy, Esq., Adam C. Weiss, Esq., Of Counsel, Fugazy & Rooney LLP, Glen Cove, NY.
For Village of Freeport, Defendant: Keith M. Corbett, Esq., Of Counsel, Harris Beach PLLC, Uniondale, New York.
For Andrew Hardwick, Defendant: Kenneth A. Novikoff, Esq., Of Counsel, Rivkin Radler, LLP, Uniondale, NY.
ARTHUR D. SPATT, United States District Judge.
MEMORANDUM OF DECISION AND ORDER
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 Hardwick.
On March 10, 2014, Hardwick moved, pursuant to Federal Rule of Civil Procedure (" Fed. R. Civ. P." ) 56(a), for summary judgment dismissing the amended complaint as against him in his individual capacity only. That same day, the Village moved separately, pursuant to Fed.R.Civ.P. 12(b)(1), to dismiss the Plaintiff's state law claims against it for lack of subject matter jurisdiction and, pursuant to Fed.R.Civ.P. 56(a), for summary judgment dismissing the amended complaint against it.
In the parties' Rule 56.1 statements, while the national origin claims were still in the case, the Plaintiff conceded that Bermudez, the current Chief of Police, is " White" and " Hispanic." (Rule 56.1 Statement, at ¶ 50.) However, it does not appear that the Plaintiff conceded that Bermudez's race, as opposed to his skin color, was white.
In their respective memoranda in support of their motions for summary judgment, the Defendants maintained that Bermudez's race was white and that his national origin was American. In his opposing memorandum of law, the Plaintiff, in a single section devoted both to his race and national origin claims, stated as follows: " Bermudez is Cuban-born and Hispanic." (Doc. 118, at 14.)
However, at no point did any of the parties expressly argue that this Court should treat the Plaintiff's claims based on race and color separately.
On April 26, 2014, the Court granted in part and denied in part the motions for summary judgment. In particular, the Court granted the motions as to the Plaintiff's claims based on national origin discrimination and dismissed those claims. The Court denied the motions as to the Plaintiff's claims based on race discrimination. Finally, in tracking the parties' briefs, the Court did not directly address
any claim based on the Plaintiff's color as opposed to race.
Specifically, in its decretal paragraph, the Court stated as follows:
the Court grants the motions as to the Plaintiff's claims based on national origin discrimination and dismisses those claims. Otherwise, the Court denies the Defendants' motions for summary judgment.
Memorandum and Order, at 33-34.)(emphasis added). Therefore, to the extent the Plaintiff brought any independent claims based on the color of the Plaintiff's skin, those claims survived the Defendants' motions for summary judgment.
In the fact and discussion sections of the decision, the Court noted that the Plaintiff described Bermudez as a " Cuban-born, Hispanic" while the Defendants described him as a " white latino male." (Id. at 7.) At various points throughout the decision, the Court referred to certain individuals, including the Plaintiff, as " non-Hispanic whites." However, in doing so, the Court did not credit the Defendants' later argument that hispanic is a type of national origin, as opposed to race, for purposes of the anti-discrimination statutes. Fairly read, the Court was referring to certain individuals' skin color, rather than race, as white. In any event, the Court did not nor was it in a position to make any findings of fact as to any individual's race or skin color.
Ultimately, in denying the motion for summary judgment on the race discrimination claims and granting the motion for summary judgment on the national origin claims, the Court assumed, as a matter of law, that hispanic is a type of race for purposes of the anti-discrimination statutes notwithstanding how any individuals self-identify their race in other contexts. Indeed, in finding that the Plaintiff raised a triable issue of fact as to whether Hardwick's decision to promote Bermudez, and his concomitant failure to consider the Plaintiff for any Command Staff position, resulted from discrimination on the basis of race, the Court relied in part on evidence indicating that Hardwick publicly referred to Bermudez as the " first Hispanic Chief of Police." To be sure, the Court found that " [t]o the extent the Defendants argue[d] that neither Hardwick nor Bermudez perceived Bermudez to be a member of the minority group and that Bermudez had the 'same color complexion' as the Plaintiff . . . this evidence simply raises factual disputes appropriately reserved for a fact-finder." (Id. at 26)(emphasis added).
With regard to the Plaintiff's national origin claims, the Court noted as follows:
Aside from the fact that Bermudez was born in Cuba and the Plaintiff was born in America, the Plaintiff fails to set forth any evidence of discrimination on account of national origin. The Court also notes that Hardwick and the Plaintiff are both American in nationality.
Id. at 29.) Although the Court may have inartfully used the terms " national origin" and " nationality" interchangeably, it is clear that the Court assumed that Cuban -- as opposed to hispanic -- was a type of national origin.
In sum, for an analysis under the anti-discrimination statutes, the Court assumed as a matter of law that Hispanic was a type of race. What is clear is that had the Court concluded, for an analysis under the anti-discrimination statutes, that Hispanic is a type of national origin, the Court likely would have permitted the national origin claims to proceed on the basis that a factual question existed as to whether Hardwick promoted Bermudez rather than the Plaintiff because Bermudez was of an hispanic national origin.
On April 30, 2014, this case proceeded to a jury trial. The Court heard testimony from twelve witnesses over a three-week time period. Following five days of deliberation, the jury returned a verdict against both the Defendants for the sum of $150,000 in back pay damages, $1,000,000 in front pay damages, and $200,000 in punitive damages as against Hardwick only. Before reviewing the testimonial and documentary evidence adduced at the trial, the Court will discuss some of the issues involved in the motions in limine and the arguments made by counsel in the opening statements insofar as they are relevant to the present motions before the Court. The Court cites certain lengthy excerpts of the record to shed light on the litigating positions taken by the parties.
I. THE TRIAL
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 race.
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 standpoint.
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 follows:
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 race.
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 121-22.)
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 12-week 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 then-Assistant 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 249.)
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. at 359.)
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 479.)
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 549-550.) 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.)
5. Shawn Randall
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. at 889.)
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 1063.)
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 Trustees.
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 ...