MELISSA ZARDA, co-independent executor of the estate of Donald Zarda, and WILLIAM ALLEN MOORE, JR., co-independent executor of the estate of Donald Zarda, Plaintiffs-Appellants,
ALTITUDE EXPRESS, doing business as SKYDIVE LONG ISLAND, and RAY MAYNARD, Defendants-Appellees.
Argued: January 5, 2017
Zarda, a skydiver, sued his former employer in the United
States District Court for the Eastern District of New York
(Bianco, J.), asserting (inter alia)
sexual-orientation discrimination in violation of New York
state law and sex discrimination in violation of Title VII of
the Civil Rights Act of 1964 ("Title VII"), 42
U.S.C. § 2000e et seq. The district court,
relying on our decision in Simonton v. Runyon, 232
F.3d 33 (2d Cir. 2000), declined to hold that discrimination
based on sexual orientation constituted discrimination based
on sex for purposes of Title VII. The state-law claim for
sexual-orientation discrimination went to trial where a jury
found for the defendants. On appeal, Zarda argues that
Simonton should be overturned. We do not entertain
that argument because a panel of this Court could not
overturn another panel's decision. Moreover, we reject
Zarda's argument that he is entitled to a new trial on
his state-law claim because of alleged evidentiary errors,
unfair discovery practices, and prejudicial arguments to the
jury based on gay stereotypes. Consequently, we AFFIRM the
judgment of the district court in all respects.
GREGORY ANTOLLINO, New York, NY, for Appellants.
Stephen Bergstein, Bergstein & Ullrich, LLP, Chester, NY,
D. ZABELL, Zabell & Associates, P.C., Bohemia, NY, for
M. Lapidus, Gillian L. Thomas, Ria Tabacco Mar, and Leslie
Cooper, American Civil Liberties Union Foundation, New York,
NY; Erin Beth Harrist, Robert Hodgson, and Christopher Dunn,
New York Civil Liberties Union Foundation, New York, NY, for
Amici Curiae American Civil Liberties Union; New York Civil
Liberties Union; 9to5; National Association of Working Women;
A Better Balance; Coalition of Labor Union Women; Equal
Rights Advocates; Gender Justice; Legal Voice; National
Women's Law Center; Southwest Women's Law Center;
Women Employed; Women's Law Center of Maryland;
Women's Law Project, in support of Plaintiffs-Appellants.
Michael D.B. Kavey, LGBTQ Rights Clinic, New York, NY; Omar
Gonzalez-Pagan, Lambda Legal Defense and Education Fund,
Inc., New York, NY; Gregory R. Nevins, Lambda Legal Defense
and Education Fund, Inc., Atlanta, GA, for Amicus Curiae
Lambda Legal, in support of Plaintiffs-Appellants.
Before: JACOBS, SACK, and LYNCH, Circuit Judges.
Donald Zarda, a skydiver, alleges that he was fired from his
job as a skydiving instructor because of his sexual
orientation. He sued his former employer, Altitude
Express (doing business as Skydive Long Island) and its owner
Raymond Maynard (collectively "Altitude Express"),
asserting that he was discriminated against in violation of
Title VII of the Civil Rights Act of 1964 ("Title
VII"), 42 U.S.C. § 2000e et seq., and New
York law. The United States District Court for the
Eastern District of New York (Bianco, J.), found a
triable issue of fact as to whether Zarda faced
discrimination because of his sexual orientation in violation
of New York law, but otherwise granted summary judgment to
Altitude Express on Zarda's discrimination claims. In
particular, the district court held that the defendants were
entitled to summary judgment on Zarda's Title VII claim
because Second Circuit precedent holds that Title VII does
not protect against discrimination based on sexual
orientation. At trial, the jury found for the defendants on
Zarda's state-law claims.
appeal, Zarda requests that we reconsider our interpretation
of Title VII in order to hold that Title VII's
prohibition on discrimination based on "sex"
encompasses discrimination based on "sexual
orientation." Since a three-judge panel of this Court
lacks the power to overturn Circuit precedent, we decline
Zarda asserts that several errors infected the trial on his
state-law discrimination claim, warranting a new trial.
Finding no abuse of discretion by the district court, we
affirm the judgment in all respects.
2010, Rosanna Orellana and her boyfriend David Kengle went
skydiving at Altitude Express. Each purchased tandem
skydives, in which the instructor is tied to the back of the
client so that the instructor can deploy the parachute and
supervise the jump. Zarda was Orellana's instructor.
point, Zarda informed Orellana that he was homosexual and he
had recently experienced a break-up. Zarda often informed
female clients of his sexual orientation--especially when
they were accompanied by a husband or boyfriend--in order to
mitigate any ...