Defense verdict in sexual orientation discrimination case is affirmed

This sexual orientation discrimination case went to trial in the Northern District of New York. The plaintiff is a corrections officer who alleges she suffered retaliation for complaining about discrimination in the workplace. That claim went to trial but the jury found for the State of New York, ruling against plaintiff. The Second Circuit affirms after rejecting plaintiff's claims that the trial court improperly excluded certain evidence that would have bolstered the claim.

The case is Orsaio v. New York State Dept. of Corrections and Community Supervision, a summary order issued on May 12. The decision issued only a few days after the case was argued on appeal, which demonstrates the Court deemed this an easy case. It may have been easy, but it contains some interesting observations about hearsay evidence in cases like this.

Plaintiff wanted the jury to know that a coworker once told her that their supervisor did not like her because she is a lesbian. On its face, this is hearsay. But there are a few dozen exceptions to the hearsay rule. These exceptions are where the action is. Plaintiff argues that this evidence should have come in under Rule 801(d)(2)(D), which allows the jury to hear admissions "made by the party’s agent or employee on a matter within the scope of that relationship." Was this statement made in the scope of the coworker's employment? The Court of Appeals (Sullivan, Carney and Nardini) says "the colleague's personal opinion about the roots of his supervisor's dislike of Orsaio did not relate to a matter within the scope of the colleague's agency." The citation for that is Pappas v. Middle Earth Condo. Assn., 963 F.3d 534 (2d Cir. 1992), the leading case on this issue.

Plaintiff also argued this evidence should have been received under Rule 803(1). That exception covers "present sense impressions." Under the rule, "A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it." A good example of this is someone describing someone entering the room as that individual is entering the room. Or someone stating the coffee is hot while drinking hot coffee. That exception does not apply in this case, the Court says, because it does not address "what the declarant merely conjectures." The case for that is Brown v. Keane, 355 F.3d 82 (2d Cir. 2004).