Who’s Hispanic? New Trial After White Applicant Receives $1.3 Million for Race Discrimination

March 10, 2016, 8:00AM. By The National Trial Lawyers

The U.S. Second Circuit Court of Appeals in Manhattan overturned a $1.3 million jury verdict and ordered a new trial for a white, non-Hispanic officer who alleged he was passed over for a job as police chief in 2010 in favor of a Hispanic candidate. The federal appeals court also ruled that the village of Freeport and former mayor Andrew Hardwick should get an entirely new trial in the suit by plaintiff Lt. Christopher Barrella due to a number of legal errors made at the 2014 trial.

Impermissible Witness Speculation

Second Circuit Court Judge Jose Cabranes said impermissible opinions may have swayed Barrella’s discrimination suit because two witnesses were allowed to speculate from the witness stand about Hardwick’s motivations without knowing the facts of the case.

The case originally evolved in 2009 after then-Freeport Mayor Hardwick appointed Miguel Bermudez, a Cuban-American man, as the Village of Freeport’s new police chief. Judge Cabranes, who wrote the Second Circuit opinion, was part of the three-judge panel that agreed federal law - since the 1980s - has clearly barred employers from discriminating against applicants or employees based on Hispanic ethnicity or the lack thereof.

Despite confusion in various state and federal statutes combined with the census and the media about whether terms like Hispanic and Latino refer to race, ethnicity or national origin, the court agreed with the plaintiff that the two federal anti-discrimination laws Barrella sued under do recognize the category as a sound basis for suit.

Freeport’s Blurred Lines Argument

The Second Circuit rejected Freeport’s 50-page dissertation on race and ethnicity, which argued that because Hispanics are also white, a white applicant passed over for a Hispanic employee cannot technically claim race discrimination.

“Two people who both appear to be ‘white’ in the vernacular sense of the term, and who both identify as ‘white’ on Census forms and the like may nonetheless belong to different ‘races,’” wrote Second Circuit Judge Jose Cabranes. Categories of race and ethnicity under federal anti-discrimination laws allow multiple variations. Judge Cabranes noted in his opinion that a person of half-Hispanic and half-Irish ancestry could sue if that person was passed over for an Italian-American, a non-Hispanic Irish-American, or a black Hispanic.

While the Second Circuit seemed to agree with plaintiff Barrella’s reasoning in filing the anti-discrimination suit, it is also clear that Barrella will have to jump through the hoops of a new trial regardless. U.S. District Judge Arthur Spatt of Central Islip let several witnesses - including an assistant police chief and Hardwick’s former chief of staff - give impermissible non-expert opinions stating the mayor chose Bermudez due to race.

The two witnesses were even improperly allowed to opine that Hardwick could have personal reasons for hiring Bermudez instead of Barrella, because the two have known each other for a long time.

Attorney Ken Novikoff said Hardwick is confident he will be vindicated at a retrial, and attorney Keith Corbett said he looked forward to “complete vindication of our client’s rights” on behalf of the village. Amanda Fugazy, Barrella’s lawyer, said the appeals ruling “confirms each and every one of our client’s legal claims.

“With this decision squarely in our favor on all legal issues, we are confident that the new jury will find the same as the last jury and will fairly compensate Lieutenant Barrella for the employment discrimination he suffered,” Fugazy said.

The new trial decision may not be quite the slam dunk Fugazy and Barrella are hoping for. The previous jury deliberated for five days in the case, which indicates that it was “difficult until the end” and should be retried without opinions admitted as evidence.