ANSWER: A JURY AWARDED $1.35 MILLION TO “A WHITE NON-HISPANIC MALE BORN IN THE UNITED STATES” BASED ON REVERSE DISCRIMINATION.
A White police officer named Christopher Barella was passed over for the open position of chief of police of the Village of Freeport, New York in favor of a Hispanic officer. Officer Barella sued the village and the mayor for discriminating against him on the basis of his race and national origin. The jury found that Freeport and its mayor discriminated against Officer Barella and awarded him $150,000 in back pay, $1 million in “front pay” and $200,000 in punitive damages. See, Barella v. Village of Freeport, __ F.Supp.2d __ (E.D.N.Y. 2014).
According to the court, Officer Barella, “a White Non-Hispanic male born in the United States, is currently employed by the Village of Freeport Police Department as a Lieutenant.” Lieutenant Barella started with the police force in October 1990 and worked his way through the ranks to become a lieutenant.
Andrew Hardwick was elected mayor of Freeport in April 2009. Mayor Hardwick is Black. Lieutenant Barella argued to the jury that “Hardwick’s primary goal upon taking office was aimed at hiring and promoting African-Americans and Hispanics rather than Non-Hispanic Whites, regardless of merit.” Lieutenant Barella argued that “Hardwick systematically terminated and demoted qualified, experienced Non-Hispanic White employees, and replaced them with less qualified and less experienced Hispanic and African-American employees.” Lieutenant Barella presented the court and jury with many specific examples to prove this allegation.
At trial, Lieutenant Barella showed that during Mayor Hardwick’s term, 96% of those rehired by the Village of Freeport were African-Americans and Hispanics. During the same time, over “90% of the Department heads who retired, resigned, or were not reappointed were White persons.” In the area from which the Village of Freeport drew its employees, African-Americans totaled 11% and Hispanics were 14.5% of the eligible workers, while White persons made up 66.1% of the eligible workers.
In November, 2010 Mayor Hardwick promoted Lieutenant Miguel Bermudez to Chief of Police. Chief Bermudez is a “Cuban-born, Hispanic.” In March 2010, the Village of Freeport had some employees participate in the Chief of Police examination. Lieutenant Barella received the highest score and Lieutenant Wayne Giglio, “a Non-Hispanic White lieutenant received the second highest score….” Lieutenant Bermudez finished in third place on the test.
Lieutenant Barella filed a charge with the United States Equal Employment Opportunity Commission alleging that he was passed over for promotions and discriminated against because of his race and national origin. Lieutenant Barella received a “Notice of Right to Sue” letter from the EEOC. Lieutenant Barella then filed his lawsuit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, 42 U.S.C. § 1983, and the New York State Human Rights Law.
So, how did Lieutenant Barella get a $1.35 million jury verdict? Discrimination cases can be based upon circumstantial evidence. Under McDonnell-Douglas Corp v. Green, 411 U.S. 792 (1973) a plaintiff can shift the burden on the issue of discrimination to the defendant by establishing “a prima facie case by showing that ‘(1) at the relevant time the plaintiff was a member of the protected class; (2) the plaintiff was qualified for the job; (3) the plaintiff suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination.’”
The court noted that the plaintiff’s burden of establishing a prima facie case is de minimis. Once the plaintiff establishes a prima facie case the employer has the burden of establishing legitimate non-discriminatory reasons for its actions.
The court noted that the laws “are not limited to discrimination against members of any particular race.” The court found that a White, American-born police officer belonged to protected classes based upon race and nationality under the terms of the Civil Rights Act of 1964. The jury believed that Lieutenant Barella was qualified for the job and had suffered an adverse employment action because of discrimination.
The Village of Freeport had plenty of testimony and evidence that Chief Bermudez was promoted instead of Lieutenant Barella for legitimate, non-discriminatory reasons. Nevertheless, the jury found that the alleged legitimate, non-discriminatory reasons were pretexts for discrimination.
As we celebrate the 50th anniversary of the passage of the Civil Rights Act of 1964, we need to remember that the law outlaws discrimination based upon race, color, religion, national origin, sex, marital status, or age. Employers need to conduct annual training of all managers and employees to ensure compliance with the laws. Illegal discrimination is wrong and it can cost you a lot of money!
If you need assistance complying with non-discrimination or other employment laws, please call me.
Mike King
Gammage & Burnham
602-256-4405