Opinion
01 Civ. 9706 (HB).
June 4, 2003.
OPINION ORDER
Following a trial at which the jury returned a verdict in favor of the defendants, plaintiff Bernard Goonewardena, pro se, moves for a judgment as a matter of law pursuant to Rule 50 of the Federal Rules of Civil Procedure, or for a new trial pursuant to Rule 59(e), and for relief from the court's final judgment pursuant to Rule 60(b). For the following reasons, the motion is denied.
Mr. Goonewardena incorrectly invokes Rule 56(e), which governs the making of a motion for summary judgment prior to trial.
I. DISCUSSION
Mr. Goonewardena sued the New York State Insurance Fund ("NYSIF" or "defendant"), where he worked as an underwriter for eighteen years, for employment discrimination. Specifically, Mr. Goonewardena alleged that he was qualified for promotions to senior underwriter in January and October 2000, but was denied these promotions because he was not white. He alleges that he had fifteen years' experience and "outstanding" performance evaluations but on both occasions was passed over in favor of white applicants with six years experience. This matter was begun in October 15 and concluded on October 21, 2002, before a jury, which found in favor of the defendant.
A. Motion for a new trial
Mr. Goonewardena bases his motion for a new trial on several grounds: 1) that he was prevented from introducing certain documentary evidence that would have shown the employer's reasons for not promoting him were pretextual, 2) that the defense counsel was sending signals to the jury, 3) that the defendant's summation was improper, 4) that the jury-selection process was unfair or improper and the entire jury was `prejudicial to the plaintiff' because defendant struck two minority jurors. None of these contentions has merit, and they require only a brief discussion.
The Court has the discretion to grant a new trial where "the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Atkins v. New York City Police Dep't, 143 F.3d 100, 102 (2d Cir. 1998) (quotingLightfoot v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir. 1997)).
As an initial matter, much of what Mr. Goonewardena complains about are questions of fact or determinations of credibility. He may very well be correct that NYSIF discriminates against minorities, but the facts is that the defendant introduced what appeared to be credible evidence that Mr. Goonewardena was denied promotion for reasons other than his race, and he had the opportunity and responsibility to test the defendant's evidence and convince the jury that his view of the facts was the correct one. In the last analysis, the jury found that NYSIF did not fail to promote the plaintiff with any discriminatory animus, and this finding had evidentiary support and was not unreasonable. Defendant presented testimony supporting a legitimate non-discriminatory reason for not promoting plaintiff and whatever the plaintiff did to show it was pretext was not bought by the jury. Even if Mr. Goonewardena is correct that the defendant's witness Michael Rachek provided some credibility concerns, credibility determinations are for the jury, not for me. I gave a lengthy and detailed charge to the jury on just this point without objection by the plaintiff.
He also laments certain errors of his own strategy or errors that arose from his lack of familiarity with the procedures and protocols of trial. For example, he laments his choice to have a jury, his failure to subpoena other minority underwriters at NYSIF who had been passed over for promotions, and his unassertiveness in making objections during trial. I attempted to assist Mr. Goonewardena navigate the intricacies of a trial as much as is fair. However, it would be neither possible nor appropriate to attempt to clarify every misunderstanding and avert ever misstep.
Mr. Goonewardena challenges certain procedural details that pertain to the fairness of the trial and its outcome, Before turning to these allegations, the Court notes that it took great pains to accommodate Mr. Goonewardena. For example, the Court granted his numerous requests for extensions of time, and permitted great latitude in his cross-examination, which was frequently far longer than necessary.
1. Introduction of evidence
With respect to his claim that key evidence was improperly excluded, Mr. Goonewardena complains about the Court's exclusion of 1) letters drafted by two of NYSIF's witnesses about why he was denied one of the promotions, 2) his performance evaluations over the prior twelve years, and 3) his "zip code listings," while allowing NYSIF to introduce its own documents on the zip code listings. First, prior to trial, as is my practice so as to avoid argument before the jury on issues of admissibility and to save time, I reviewed with the parties the exhibits that I planned to exclude; Mr. Goonewardena made no objections to those rulings. Second, Mr. Goonewardena was permitted to testify about his entire work history, including his performance as an underwriter and the evaluations he had received. He also cross-examined the two defense witnesses about the letters they had drafted and their allegedly pretextual explanations for why he was not promoted. Thus, Mr. Goonewardena was permitted to put the substance of these excluded documents before the jury. Finally and most importantly, these items were properly excluded on hearsay or relevance grounds. Parker v. Reda, No. 02-0025, 2003 U.S. App. LEXIS 8011, at *2 (2d Cir. Apr. 28, 2003) ("District courts exercise broad discretion in making evidentiary rulings."); see also Perry v. Ethan Allen, Inc., 115 F.3d 143, 150 (2d Cir. 1997) ("[E]ven an erroneous evidentiary ruling will not lead to reversal unless affirmance would be `inconsistent with substantial justice.'" (quoting Fed.R.Civ.P. 61)).
2. Defense counsel's alleged signaling to the jury
With respect to his claim that the defense counsel was improperly signaling to the jury, Mr. Goonewardena submitted an affidavit of Douglas Goonewardena, who attested that:
I noticed many times that the Lead Attorney for the Defendants and the Assisting second Attorney for the Defendants were either communicating with or prompting certain Witnesses for the Defendants and jurors by shaking the head and hands while the Plaintiff was in the process of questioning the Defense Witnesses.
The defense counsel counters that she was merely trying to understand or hear the question that Mr. Goonewardena was asking and unconsciously made a gesture.
Mr. Goonewardena complained of these gestures once during the trial, after which I made it clear it was not to happen again. In any case, there were very few instances when the defense counsel made such gestures. Also, the perception that these gestures were "signals" to the witnesses and the jurors were never my perception. At times it was difficult to hear Mr. Goonewardena's questions and understand what he was asking and defense counsel's gestures merely reflected her inability to hear or understand the question. Hardly a miscarriage of justice such as to warrant a new trial.
3. Defendant's summation
With respect to his contention that the defendant's summation was improper, Mr. Goonewardena takes issue with defendant's statements that Mr. Goonewardena was not promoted because he tended to get bogged down in work and because in 1996-1997 he had excessive absences from work. As noted, Mr. Goonewardena had ample opportunity and did inform the jury of his work history and his performance evaluations. More fundamentally, I charged the jury on this point — namely, that what an attorney says in a summation is argument not evidence and that it is for the jury to decide what the evidence is, what it means, and what inferences may be drawn from it.
4. Unfair jury-selection process and biased jury
Finally, Mr. Goonewardena contends that the selection of jurors was tainted or unfair. Mr. Goonewardena takes issue with several jurors who were seated despite his challenge for cause. He also raises a potential Batson issue — namely that the defendant's peremptory challenges of two minorities was racially motivated and unfair. I disagree.
Neither party requested a transcript of the voir dire, and therefore none was made.
One juror that the plaintiff challenged for cause stated that several years earlier she testified on behalf of her employer before the EEOC. No further inquiry on this topic was pursued, and the prospective juror told us that this fact would not impair her ability to be fair and impartial. Mr. Goonewardena's challenge for cause was properly denied. Of course, Mr. Goonewardena was entitled to, but did not, exercise a peremptory challenge against this potential juror. He now intimates that he was unfamiliar with his ability to exercise such challenges. However, this is not a valid basis for disturbing the result of this trial, besides which, I believe I told him the procedure and certainly did if he asked.
On the other hand, a potential juror whose daughter worked for NYSIF was excused for cause.
To the extent that Mr. Goonewardena makes a Batson challenge, I similarly find that this contention is without merit, and note that Mr. Goonewardena waived this issue by failing to raise it before the jury was sworn. See McCrory v. Henderson, 82 F.3d 1243, 1245 (2d Cir. 1996) ("We hold that the failure to object to an adversary's use of peremptory challenges until after the completion of jury selection waives the right to do so."); cf. Galarza v. Keane, 252 F.3d 630, 638 (2d Cir. 2001) ("[W]e agree . . . that a party must raise his or herBatson challenges in a manner that would allow a trial court to remedy the problem at trial. . . ."). Although I granted the defendant's challenge to a female juror of Chinese ancestry and a man with the surname of Acevedo, there were two African-Americans on the panel of eight jurors. Thus, to the extent that Mr. Goonewardena belatedly suggests a Batson challenge, it is without merit.
B. Motion for a judgment as a matter of law
The burden necessary to grant judgment as a matter of law is very heavy. The jury's verdict can be overturned and Mr. Goonewardena granted judgment as a matter of law only if there is "such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or there is such an overwhelming amount of evidence in favor of [Mr. Goonewardena] that reasonable and fair minded [persons] could not arrive at a verdict against [him]." Galdieri-Ambrosini v. Nat'l Realty Development Corp., 136 F.3d 276, 289 (2d Cir. 1998) (quotingCruz v. Local Union No. 3 of Int'l Brotherhood of Electrical Workers, 34 F.3d 1148, 1154 (2d Cir. 1994)). Furthermore, the Court must view the evidence in the light most favorable to the defendant and grant the defendant all reasonable inferences.See Galdieri-Ambrosini, 136 F.3d at 289; Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 367 (2d Cir. 1988). Where, as here, the movant has failed to satisfy the standard for a new trial, the movant has failed a fortiori to meet the heavier standard for judgment as a matter of law. As noted above, whatever misgivings Mr. Goonewardena may have had about defendant's witnesses, the role of weighing the evidence and making credibility determinations is for the jury. The defendant introduced evidence showing non-discriminatory reasons as the touchstone for why he was passed over for the promotions he sought, and the jury credited this evidence. There was no lack of evidence to support the jury's finding, nor an overwhelming amount of evidence in favor of Mr. Goonewardena.
C. Motion to annul final judgment
Finally, Mr. Goonewardena seeks relief under Fed.R.Civ.P. 60(b) which authorizes the Court to relieve a party from a final judgment in certain situations, such as "(1) mistake, inadvertence, surprise, excusable neglect; . . . (3) fraud . . ., misrepresentation, or other misconduct of an adverse party; . . . or (6) any other reason justifying relief from the operation of a judgment." Fed.R.Civ.P. 60(b). However, this "extraordinary judicial relief" is appropriate in only exceptional circumstances. See Employers Mut. Casualty Co. v. Key Pharmaceuticals, 75 F.3d 815, 824-25 (2d Cir. 1996);Paddington Partners v. Bouchard, 34 F.3d 1132, 1142 (2d Cir. 1994). As discussed above, this case does not present any exceptional circumstances so as to warrant such extraordinary relief.
III. CONCLUSION
For the foregoing reasons, Mr. Goonewardena's motion for post-trial relief is denied. The Clerk of the Court is ordered to close any pending motions and remove the matter from my docket.