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$1.3M Freeport discrimination verdict overturned by appeals court

Freeport Mayor Andrew Hardwick, left, and Freeport

Freeport Mayor Andrew Hardwick, left, and Freeport Village police Lt. Christopher Barrella. A federal appeals court in Manhattan has overturned a $1.3 million jury verdict in a suit Barrella filed claiming racial discrimination because he was passed over for the police chief position that went to a Hispanic candidate. Credit: Howard Schnapp; Danielle Finkelstein

A federal appeals court in Manhattan has overturned a $1.3 million jury award a white non-Hispanic officer won in a discrimination suit against the village of Freeport after he was passed over for police chief in 2010 in favor of a Hispanic candidate.

The U.S. Second Circuit Court of Appeals in Manhattan said Freeport and black ex-mayor Andrew Hardwick should get a new trial in the suit by Lt. Christopher Barrella, an Italian-American, over the naming of Cuban-American Miguel Bermudez as chief, because of legal errors at the first trial in 2014.

The court did, however, uphold the basis for the suit, rejecting in a 50-page dissertation on race and ethnicity Freeport’s argument that because Hispanics are white, a white person passed over for a Hispanic cannot claim that it is race discrimination.

Despite confusion in statutes, the census and the media about whether terms like Hispanic and Latino refer to race, ethnicity or national origin, the court said, the two federal anti-discrimination laws Barrella sued under recognize the category as a sound basis for a legal action.

“Two people who both appear to be ‘white’ in the vernacular sense of the term, and who would both identify as ‘white’ on Census forms and the like, may nonetheless belong to different ‘races,’ ” wrote Second Circuit Judge Jose Cabranes.

Cabranes also noted that categories of race and ethnicity under federal anti-discrimination laws allow multiple variations, noting that a person of half-Hispanic and half-Irish ancestry could sue if he was passed over for an Italian-American, a non-Hispanic Irish-American, or a black Hispanic.

While ruling that the suit can proceed, the Second Circuit reversed the award and ordered a new trial because U.S. District Judge Arthur Spatt in Central Islip let non-expert witnesses — including an assistant police chief and Hardwick’s former chief of staff — give their opinions that the mayor chose Bermudez due to race.

The court said that although Barrella and another non-Hispanic white had outscored Bermudez on a test, it was a close case that may have been swayed by the impermissible opinions because Hardwick had nondiscriminatory ground for his decision — he had known Bermudez for a long time, and Bermudez lived in Freeport while Barrella did not.

Although Hardwick repeatedly referred to Bermudez as the village’s first Hispanic or Latino police chief, the court said, that alone didn’t establish discrimination.

“An employer’s stated desire for diversity in the workplace does not, without more, establish discriminatory intent with respect to any particular employment decision,” Cabranes wrote.

He also noted that the jury deliberated for five days in the case, indicating that it was “difficult until the end” and should be retried without opinions admitted as evidence.

Lawyers for the village, Hardwick and Barrella all cited their partial victories and indicated they were ready for a retrial.

“We’re confident the new jury will find the same as the last jury,” said Barrella attorney Amanda Fugazy.

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