Friday, June 7, 2019

Court of Appeals upholds national origin discrimination claim against the State of New York

The Second Circuit has upheld a jury verdict finding that a state agency discriminated against a financial analyst because of his national origin. The Court rejects the argument that the plaintiff did not produce enough evidence to support his discrimination. It also rejects the state's argument that the verdict form demonstrated jury confusion.

The case is Saber v. State of New York, a summary order issued on June 5. I helped defend the verdict on appeal. Doris G. Traub and Margaret McIntyre tried the case before Judge Schofield. I wrote about this case at these links, discussing the trial court's post-trial ruling that reduced the $2.5 million pain and suffering award to $125.000.

The state appealed from Judge Schofield's rulings, claiming plaintiff's Iranian heritage had nothing to do with its refusal to promote him, and that it did not retaliate against plaintiff with a series of adverse actions after he filed a charge of discrimination with the EEOC. The Iranian connection derives in part from the financial agency's mandate to crack down on banks that do business with Iran. Without much discussion, the Second Circuit (Lohier, Calabresi and Donnelly [D.J.]) says the trial court got it right in finding the record contains enough evidence of intentional discrimination. Some of that evidence included slurs about  Plaintiff hiding "yellow cake" in his workspace. We normally associate "yellow cake" with nuclear weapons. Iran's alleged nuclear ambitions were in the news at the time. The jury probably figured that plaintiff is a distinguished financial analyst; why should he put up with this?

The state also argued that the jury was confused because the trial court had it answer a question on the verdict form asking when it was clear plaintiff was first denied the promotion. That was actually an advisory question to help the trial court calculate lost wages. The jury's answer was October 2011, when the agency was first created. While the state said that answer made no sense because the actual decision to deny plaintiff the promotion took place afterwards, the trial court said (and the Second Circuit agreed) that October 2011 was a good answer because the jury was stating plaintiff never had a chance with the agency from the outset. Plus, this was an advisory verdict question; the answer was not binding on the court.

The trial court did award plaintiff lost wages, but the state challenged that on appeal as well, claiming the calculations ran afoul of guidelines in the state's Personnel Management Manual. The Court of Appeals deals with that argument this way: "But DFS failed to make the District Court aware of the Manual and relies on it for the first time only on appeal, and in any event the District Court had some discretion in using the salaries of comparators to determine backpay in this case." The Circuit cites Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 166 (2d Cir. 1998), for the proposition that "salaries of comparators may be used to calculate backpay 'only insofar as the plaintiff lays a sufficient foundation to permit the reasonable inference that his salary would have matched…the salaries of others.”

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