-
14-681-cv(L) Saeed v. Kreutz UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 3rd day of April, two thousand fifteen. 5 6 PRESENT: DENNIS JACOBS, 7 RAYMOND J. LOHIER, JR., 8 Circuit Judges, 9 FRANK P. GERACI, JR.,* 10 District Judge. 11 12 - - - - - - - - - - - - - - - - - - - -X 13 SHOMARI SAEED, 14 Plaintiff-Appellee-Cross- 15 Appellant, 16 17 -v.- 14-681(L) 18 14-902(XAP) 19 SERGEANT JOSEPH KREUTZ, in his 20 official and individual capacity, 21 INVESTIGATOR DARRYL HENDERSON, in his 22 official and individual capacity, 23 COUNTY OF NASSAU, DEPUTY UNDERSHERIFF * Chief Judge Frank P. Geraci, Jr., of the United States District Court for the Western District of New York, sitting by designation. 1 1 LINDA LAGRECA, in her official and 2 individual capacity, NASSAU COUNTY 3 SHERIFF’S DEPARTMENT, CAPTAIN PETER 4 DUDEK, in his official and individual 5 capacity, SERGEANT THOMAS SAITTA, in 6 his official and individual capacity, 7 Defendants-Appellants-Cross- 8 Appellees.** 9 - - - - - - - - - - - - - - - - - - - -X 10 11 FOR PLAINTIFF: STEPHEN BERGSTEIN (Frederick K. 12 Brewington, Law Offices of 13 Frederick K. Brewington, 14 Hempstead, New York, on the 15 brief), Bergstein & Ullrich, 16 LLP, Chester, New York. 17 18 FOR DEFENDANTS: DEANNA PANICO (Michael P. 19 Siravo, on the brief), Bee Ready 20 Fishbein Hatter & Donovan, LLP, 21 Mineola, New York. 22 23 Appeal from a judgment of the United States District 24 Court for the Eastern District of New York (Kuntz, J.). 25 26 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 27 AND DECREED that the judgment of the district court be 28 REVERSED. 29 30 Defendants Sergeant Joseph Kreutz, Sergeant Thomas 31 Saitta, Investigator Darryl Henderson, Captain Peter Dudek, 32 Deputy Undersheriff Linda LaGreca, the Nassau County 33 Sheriff’s Department (the “Department”), and the County of 34 Nassau (the “County”) (collectively, “defendants”) appeal 35 from the judgment of the United States District Court for 36 the Eastern District of New York (Kuntz, J.), awarding 37 damages of $200,000 in favor of plaintiff Shomari Saeed. 38 Saeed cross-appeals and seeks a new trial. We assume the 39 parties’ familiarity with the underlying facts, the 40 procedural history, and the issues presented for review. 41 ** The Clerk of Court is respectfully directed to amend the official caption in this case to conform with the caption above. 2 1 This case arises out of Saeed’s employment with the 2 Department. Saeed--who is black, Muslim, and gay--alleges 3 that he endured harassment, discrimination, and retaliation 4 from members of the Department on the basis of his race, 5 color, religion, and sexual orientation. The complaint 6 asserts a number of claims, principally under federal and 7 New York anti-discrimination statutes, but also under New 8 York common law. A jury found for defendants on every claim 9 except a common law claim for breach of an implied-in-fact 10 contract. On that claim, the jury awarded Saeed damages in 11 the amount of $200,000. The district court entered judgment 12 accordingly. 13 14 On appeal: (I) defendants argue that the judgment must 15 be reversed because the implied-in-fact contract claim 16 should have been dismissed as a matter of law; and 17 (II) Saeed argues that he is entitled to a new trial, 18 because the jury, having found in his favor on the implied 19 contract claim, acted inconsistently by finding for 20 defendants on the other claims. We conclude that the 21 implied contract claim should have been dismissed as a 22 matter of law, and that a new trial is not required. 23 24 I 25 26 Defendants argue that they were entitled to summary 27 judgment, see Fed. R. Civ. P. 56(a), and judgment as a 28 matter of law, see Fed. R. Civ. P. 50, on the implied-in- 29 fact contract claim. Indeed, Saeed did not oppose 30 defendants’ summary judgment motion to dismiss this claim. 31 We review the district court’s denials of defendants’ 32 motions de novo. See Schaefer v. State Ins. Fund,
207 F.3d 33139, 142 (2d Cir. 2000); Zeno v. Pine Plains Cent. School 34 Dist.,
702 F.3d 655, 664 (2d Cir. 2012). 35 36 The district court erred in submitting the implied 37 contract claim to the jury. That claim rests on the theory 38 that the Department and the County were bound--as a matter 39 of contract--to the terms of the County’s Equal Employment 40 Opportunity Policy (“EEO Policy”).1 But under New York law, 1 Although Saeed does not explain to us how the written EEO Policy can form the basis for an implied contract claim, we assume that what is “implied” is not the policy itself, but defendants’ promise to comply with it. See Watts v. Columbia Artists Mgmt. Inc.,
591 N.Y.S.2d 234, 3 1 “[a] contract cannot be implied in fact where there is an 2 express contract covering the subject matter involved.” 3 Julien J. Studley, Inc. v. N.Y. News, Inc.,
512 N.E.2d 300, 4 301 (N.Y. 1987); see also Ludemann Elec., Inc. v. Dickran, 5
903 N.Y.S.2d 532, 534 (2d Dep’t 2010). 6 7 At summary judgment, defendants correctly pointed out 8 that the terms and conditions of Saeed’s employment were 9 governed by an express contract: the collective bargaining 10 agreement (“CBA”) to which Saeed and the County were bound.2 11 Because the CBA and the alleged implied-in-fact contract 12 concerned the same subject matter--i.e., the terms and 13 conditions of employment--the implied contract claim fails 14 as a matter of law. The denial of the Rule 56 motion was 15 legally erroneous.3 16 17 Saeed argues that the CBA and the EEO Policy did not 18 cover the same “subject matter” because the EEO Policy set 19 forth anti-discrimination procedures that do not appear in 20 the CBA. We are not persuaded. The whole premise of 21 Saeed’s implied contract claim is that the EEO Policy 22 established certain terms and conditions of his employment. 23 But the CBA governed “rates of pay, salaries, hours, 24 grievances and other terms and conditions of employment [of 25 officers including Saeed].” (CBA § 3.) The CBA and the EEO 26 Policy therefore covered the same “subject matter”: the 27 terms under which Saeed agreed to work. It does not matter 28 that (on Saeed’s theory) the EEO Policy created additional 29 contractual obligations on that subject. See Ludemann 30 Elec., Inc.,
903 N.Y.S.2d at 534(“[A]n express contract 31 . . . requiring that the plaintiff be paid on a fixed rate 236 (3d Dep’t 1992) (“A contract implied in fact rests upon the conduct of the parties and not their verbal or written words.”). 2 The text of the CBA was introduced into the summary judgment record by Saeed himself. 3 “Although normally where summary judgment is denied and the movant subsequently loses after a full trial on the merits, the denial of summary judgment may not be appealed, this rule does not apply where the district court’s error was purely one of law.” Schaefer, 207 F.3d at 142 (internal quotation marks omitted). Because the denial of the Rule 56 motion was error, we need not decide whether it was also error to deny the Rule 50 motion. 4 1 basis for certain electrical service, work, equipment, and 2 materials provided, . . . preclud[es] the existence of a 3 contract implied in fact for payment of all electrical 4 service, work, equipment, and materials on a time and 5 materials basis.” (emphases added)). 6 7 In light of the foregoing, Saeed’s claim would fail 8 even if the CBA had been entirely silent on the County’s 9 anti-discrimination policy. However, the CBA was not 10 silent. The following language appeared at the end of the 11 CBA: 12 13 The following represents the County’s official 14 policy with regard to anti-discrimination. This 15 policy is not, nor shall it be construed to be a 16 provision of the preceding Collective Bargaining 17 Agreement. 18 19 “Employees are advised that Nassau County’s policy 20 with respect to discrimination is as follows: 21 22 The County adheres to all required Federal and 23 State employment laws relating to race, color, 24 religion, national origin, sex, sexual 25 orientation, physical disability, marital or 26 parental status and age.” 27 28 (CBA at 59 (emphasis added).) As this language 29 demonstrates, the parties did not simply fail to bargain for 30 the inclusion of the anti-discrimination policy as a term 31 and condition of employment; they specifically bargained for 32 its exclusion. The reason is unimportant, though it is easy 33 to see why a union would not want to be involved in 34 grievances that could often pit one union member against 35 another. 36 37 It is evident from the CBA that the parties did not 38 intend to convert Saeed’s undoubted statutory right to be 39 free of discrimination and retaliation into a contractual 40 term or condition of employment. Thus, the implied contract 41 claim must fail. See Miller v. Schloss,
113 N.E. 337, 339 42 (N.Y. 1916) (“A contract cannot be implied in fact . . . 43 against the intention or understanding of the parties.”); 44 Ludemann Elec., Inc.,
903 N.Y.S.2d at 534. 45 46 For the foregoing reasons, we conclude that Saeed’s 47 implied contract claim--the sole claim on which he prevailed 5 1 and the basis for the $200,000 judgment--should have been 2 dismissed as a matter of law. Accordingly, the judgment 3 must be reversed. 4 5 II 6 7 Saeed argues that the district court should have 8 granted his motion for a new trial based on inconsistency in 9 the jury verdicts. In Saeed’s view, the jury could not have 10 found in his favor on the implied contract claim without 11 also finding in his favor on the statutory claims.4 12 13 “This Court reviews the denial of a motion for new 14 trial under Federal Rule of Civil Procedure 59(a) for abuse 15 of discretion.” SEC v. DiBella,
587 F.3d 553, 563 (2d Cir. 16 2009). We conclude that the district court did not abuse 17 its discretion. 18 19 “[I]neluctably inconsistent” jury responses to special 20 interrogatories require retrial, see Munafo v. Metro. 21 Transp. Auth.,
381 F.3d 99, 105 (2d Cir. 2004) (internal 22 quotation marks and emphasis omitted); but the same is not 23 true for inconsistent general verdicts on separate claims, 24 Cash v. Cnty. of Erie,
654 F.3d 324, 343 (2d Cir. 2011) 25 (citing cases). The verdicts in this case were general 26 verdicts.
Id.(explaining that a general verdict “appl[ies] 27 legal principles and assign[s] liability” (citation and 28 internal quotation marks omitted)). Accordingly, even if 29 those verdicts were irreconcilably inconsistent, the 30 inconsistency would not require retrial. Globus v. Law 31 Research Serv., Inc.,
418 F.2d 1276, 1290 n.17 (2d Cir. 32 1969) (“It has been said again and again . . . that 33 consistent jury verdicts are not, in themselves, necessary 34 attributes of a valid judgment.”). 35 36 Second, the verdicts were not irreconcilably 37 inconsistent. The jury was instructed that Saeed should 38 prevail on the implied contract claim if defendants 39 “breached the contract by discriminating against the 4 Because the district court should have dismissed the implied contract claim as a matter of law, a powerful argument could be made that the verdict on that claim should be disregarded altogether. We need not address that argument because Saeed’s position fails on other, even more fundamental grounds. 6 1 plaintiff or treating the plaintiff unfairly” (emphasis 2 added).5 The jury could have understood this instruction to 3 mean that defendants had a contractual obligation to treat 4 Saeed “fairly” that was not based on any obligation to 5 abstain from discrimination and retaliation. If the jury 6 interpreted the instruction this way, it could have found 7 for Saeed on the implied contract claim without also finding 8 for him on the statutory claims. See Brooks v. Brattleboro 9 Mem’l Hosp.,
958 F.2d 525, 529 (2d Cir. 1992) (“[A] 10 reviewing court must adopt a view of the case, if there is 11 one, that resolves any seeming inconsistency.” (internal 12 quotation marks omitted)). 13 14 Accordingly, the district court did not abuse its 15 discretion in denying Saeed’s motion for a new trial. 16 17 For the foregoing reasons, and finding no merit in 18 Saeed’s other arguments, we hereby REVERSE the judgment of 19 the district court. 20 21 FOR THE COURT: 22 CATHERINE O’HAGAN WOLFE, CLERK 23 5 There was no inconsistency in the usage of “and” and “or” in the section of the jury charge describing the contract claim. The conjunctive “and” was used to explain Saeed’s theory that defendants had multiple contractual obligations and breached those obligations in multiple ways; the disjunctive “or” was used to explain that Saeed could prevail if defendants breached the contract in any of the ways described. 7
Document Info
Docket Number: 14-681-cv(L)
Citation Numbers: 606 F. App'x 595
Filed Date: 4/3/2015
Precedential Status: Non-Precedential
Modified Date: 1/13/2023