22-1687-cv Gordon Springs v. City of New York, et al.

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 19th day of January, two thousand twenty-four.

Present: DEBRA ANN LIVINGSTON, Chief Judge, AMALYA L. KEARSE, DENNY CHIN, Circuit Judges. _____________________________________

GORDON SPRINGS,

Plaintiff-Appellant,

v. 22-1687-cv

THE CITY OF NEW YORK,

Defendant-Appellee,

FIRE COMMISSIONER DANIEL A. NIGRO (Individually And In His Respective Capacity As The Commissioner of the Fire Department of The City of New York), LIEUTENANT EDWARD VREELAND (Individually And In His Respective Capacity As An Acting Officer of the Fire Department of New York), PEDRO ARISTY, CHARLES SWIFT, AND PETER GRILLO (Individually And In Their Respective Capacities As

1 Members Of The Fire Department Of The City of New York), Defendants. 1 _____________________________________

For Plaintiff-Appellant: KENNETH F. MCCALLION, McCallion & Associates, LLP, New York, NY.

For Defendant-Appellee: AMY MCCAMPHILL (Benjamin H. Pollack, Richard Dearing, Claude S. Platton, Devin Slack on the brief), Assistant Corporation Counsel on behalf of HON. SYLVIA O. HINDS-RADIX, Corporation Counsel, City of New York.

Appeal from a judgment of the United States District Court for the Southern District of

New York (Colleen McMahon, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the case is REMANDED with instructions to amend nunc pro tunc as set forth

below. The judgment, as amended, is AFFIRMED.

1. Nunc Pro Tunc Amendment of the Judgment

Gordon Springs (“Springs”), a former firefighter with the New York City Fire Department

(“FDNY”), filed suit on January 20, 2017 in the Southern District of New York against his previous

employer, Defendant-Appellee the City of New York (“City”), and five individuals at the FDNY,

alleging 19 counts of, inter alia, harassment, discrimination, and retaliation arising under Title VII

of the Civil Rights Act of 1964 (“Title VII”), the New York State Human Rights Law, and the

New York City Human Rights Law. Springs named as defendants the FDNY Commissioner

Daniel Nigro and FDNY Lieutenant Edward Vreeland, along with three individual firefighters

named Charles Swift, Peter Grillo, and Pedro Aristy.

1 The Clerk of the Court is directed to amend the official caption accordingly.

2 In March 2019, then-District Judge Alison Nathan granted summary judgment in favor

of the City on virtually all counts, except those related to Springs’s Title VII retaliation claims.

The court further dismissed all claims against Commissioner Nigro and Lieutenant Vreeland and

terminated them from the litigation. With respect to the individual firefighters, the court

dismissed all federal claims against Swift and Grillo, but allowed Springs’s state-law claims

against them to proceed. 2

Months later, Springs’s lawsuit was assigned to District Judge Donald E. Walter of the

Western District of Louisiana, who sat by designation in the Southern District of New York.

After conferencing with the parties in November 2019, Judge Walter ordered sua sponte that

Springs’s retaliation claims against the City be tried first, separately from his remaining claims

against the three individual firefighters. The following day, Springs moved by letter motion for

a complete and voluntary dismissal of all remaining claims against the individual firefighters.

The letter motion stated that Springs had agreed to “release . . . Aristy from the federal claims

under

, 1983, 1985 and 1986”; that “[a]ll counsel agree[d]” that the claims against

the individual defendants should “be discontinued in the federal court”; that “[w]ith the dismissal

of the federal claims, only the state pendent claims [would] remain” against all defendants; and

that Springs wished to “preserv[e] his rights to proceed on the remaining state causes of action in

state court.” Letter Motion, Springs v. City of New York et al., No. 17-cv-451 (S.D.N.Y. Nov.

12, 2019), ECF No. 131. The court granted Springs’s motion, stating that the federal claims

against Aristy were dismissed with prejudice and that “the remaining state law claims against

2 Pedro Aristy did not move for summary judgment but filed an answer to Springs’s complaint on July 11, 2017. Accordingly, the district court’s ruling on summary judgment did not apply to him, and the federal claims against him remained.

3 individual defendants [were] DISMISSED WITHOUT PREJUDICE.” Order, Springs v. City of

New York et al., No. 17-cv-451 (S.D.N.Y. Nov. 15, 2019), ECF No. 133. As a result of the court’s

order, the sole remaining defendant in the case was the City. The only remaining claims against

the City were the retaliation claims. Trial against the City did not commence until July 6, 2022,

after the case had been reassigned again. Following the four-day trial, the district court

(McMahon, J.) entered a final judgment dismissing Springs’s complaint on the basis that the jury

“returned a verdict in favor of Defendants on all claims.” 3 Judgment, Springs v. City of New York

et al., No. 17-cv-451 (S.D.N.Y. Jul. 28, 2022), ECF No. 192.

The judgment’s language could be read as a dismissal on the merits after trial of all

Springs’s claims against all the defendants. Accordingly, we instruct the district court to enter

an amended final judgment, nunc pro tunc, reflecting (a) the merits dismissals of all claims against

Nigro and Vreeland with prejudice, (b) the merits dismissals of the federal claims against Swift,

Grillo, and Aristy with prejudice, (c) the merits dismissals of the claims against the City, whether

on summary judgment or after trial, all with prejudice, and (d) the voluntary dismissals of the non-

federal claims against Swift, Grillo, and Aristy without prejudice. Roman Catholic Archdiocese

of San Juan, Puerto Rico v. Acevedo Feliciano,

, 700–701 (2020) (explaining that

federal courts may issue nunc pro tunc orders to correct inadvertent errors in the record).

3 The district court made clear in its charge to the jury that “[t]he only defendant [in the case] is the City of New York,” and that “[Springs’s] case concerns only allegations that [he] was subjected to retaliation by his employer, the New York Fire Department.” Tr. Transcript, Springs, No. 17-cv-452 (S.D.N.Y. Jul. 14, 2022), ECF No. 190. At the same time, the court’s final judgment states that the jury found in favor of “the Defendants” on all claims and dismisses Springs’s complaint.

4 2. Plaintiff-Appellant’s Appeal

On appeal, Springs does not challenge the dismissal of the claims asserted against any of

the individual firefighters, but urges that his right to a fair trial against the City was prejudiced due

to (1) the November 2019 order bifurcating trial of his claims against the City and individual

firefighters Swift, Grillo, and Aristy, and (2) the trial judge’s jury instructions and remarks made

in the presence of the jury that allegedly created an impression of partiality against Springs. As

to these claims, we set forth the underlying facts, the procedural history, and the issues on appeal

below only insofar as necessary to explain our decision to affirm the judgment, as amended nunc

pro tunc.

I. Bifurcation

We review a district court’s decision to deny or grant a motion to bifurcate trials for abuse

of discretion. Amato v. City of Saratoga, N.Y.,

, 316 (2d Cir. 1999). Springs

mounts several challenges related to the bifurcation order. For the following reasons, we

conclude that none are meritorious.

Springs first contends that Judge Nathan had previously determined that the retaliation

claims against the City were “logically related” to the claims against Swift, Grillo and Aristy, and

that Judge Walter’s sua sponte order bifurcating the claims into separate trials was error that

“contradicted the sound reasoning” of the prior judge. Appellant Br. at 21–22. We disagree.

When a case is reassigned to another judge, “[t]here is no imperative duty to follow [an] earlier

[interlocutory] ruling.” In re United States,

(2d Cir. 1984) (internal quotation

marks omitted); see also Fed. R. Civ. P. 54(b) (stating that interlocutory orders “may be revised at

any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and

liabilities”). And in any event, Judge Nathan’s determination that the harassment and retaliation

5 claims were “logically related” to each other was made in the context of addressing the City’s

argument that the claims should be severed pursuant to Federal Rule of Civil Procedure 21, which

concerns misjoinder. Judge Nathan separately denied the City’s request for bifurcation, pursuant

to Rule 42(b), but Judge Walter was entitled to revisit that determination and order separate trials

to “further convenience, avoid prejudice, or promote efficiency.” Amato, 170 F.3d at 316 (noting

that separate trials may be appropriate “where, for example, the litigation of the first issue might

eliminate the need to litigate the second issue” and “where one party will be prejudiced by evidence

presented against another party”); see also Fed. R. Civ. P. 42(b). We discern no abuse of

discretion in the district court’s decision to order separate trials on its own accord.

Springs further asserts that the November 2019 bifurcation order was highly prejudicial

because it “effectively forced” Springs to “try a severed case only against the City on the retaliation

claims,” and deprived the jury of “the benefit of having evidence of the underlying discriminatory

conduct of the Individual Defendants.” Appellant Br. at 19. We again disagree. As Springs

concedes in his reply brief, the trial judge did, in fact, permit him to testify, over the objection of

opposing counsel, “to the actions taken by the Individual Defendants that led him to file the EEOC

complaints triggering the retaliatory actions against him,” Appellant Reply Br. at 4, and the trial

record reflects that the court permitted “general description[s]” of the incidents that precipitated

Springs’s EEOC complaints. App’x 497. Springs may now claim that this allowance was

“insufficient,” Appellant Reply Br. at 4, but he cannot claim that the jury was deprived of factual

background in assessing his retaliation claims against the City.

We similarly see no basis for disturbing the jury verdict on the ground that Springs was

initially denied a continuance when the bifurcation order was entered on the eve of the originally

scheduled joint trial. At the start, the claims against the City did not proceed to trial for two and

6 a half years. Any argument of disadvantage as to his retaliation claims against the City is, thus,

without merit. See Dow Chem. Pac. Ltd. v. Rascator Mar. S.A.,

, 341–42 (2d Cir.

1986) (noting that party challenging denial of an adjournment must establish that “it substantially

impaired presentation of [the party’s] case”). Springs argues that he was prejudiced by the

court’s denial of his request to adjourn the trial against Swift, Grillo and Aristy after his counsel

received 750 pages of discovery only the weekend before trial. He contends that his counsel was

left with the “Hobson’s choice” of either going to trial in 48 hours without the opportunity to fully

consider the new material or dismissing his surviving claims against these individual firefighters.

Appellant Reply Br. at 6. But to the extent Springs asserts that his would-be trial against the

individual firefighters was prejudiced by a combination of the bifurcation order and the denial of

a continuance, that claim is moot. An “intentional relinquishment or abandonment of a known

right” constitutes a “waiver” that extinguishes the right. United States v. Olano,

(1993) (internal quotation marks omitted); Ali v. Federal Insurance Co.,

(2d

Cir. 2013) (“[P]arties cannot appeal a joint stipulation to voluntary dismissal, entered

unconditionally by the court pursuant to a settlement agreement” (internal quotation marks

omitted)). Springs voluntarily dismissed his claims against Swift, Grillo and Aristy after “great

deliberation and research” and consultation with opposing counsel. App’x 445. Accordingly,

none of Springs’s appellate contentions regarding any defendant other than the City are cognizable.

II. The Jury Instructions and Trial Judge’s Comments

Springs next contends that the district court’s jury instructions and certain of the district

court’s statements during trial exhibited judicial bias, depriving him of a fair trial. During a

sidebar with the parties, the trial judge admonished Springs’s counsel for permitting Springs to

testify to matters that the court had previously ruled inadmissible. The judge subsequently

7 instructed the jury to disregard that part of the testimony because it concerned a different lawsuit

“[t]hat . . . was dismissed.” App’x 617–18. Springs asserts that this instruction was factually

inaccurate and highly prejudicial because it suggested to the jury “that plaintiff was a serial filer

of baseless federal claims and that they should do what a federal judge had already done, which

was to summarily dispose of plaintiff’s claims in this case.” Appellant Br. at 37–38. In

addition, Springs argues that the trial judge’s efforts to instruct him to answer questions on cross

examination crossed the line of impartiality when the judge told him not to “play games” in

responding to a question and repeatedly ordered him to answer questions “yes or no” and not seek

to “outsmart” opposing counsel. App’x 621, 627–28. For the following reasons, we disagree

that these interactions deprived Springs of a fair trial.

First, because Springs did not object to the jury instruction at trial, we review for

fundamental error. DeFalco v. Bernas,

, 317 (2d Cir. 2001). 4 An error is

fundamental when it is “so serious and flagrant that it goes to the very integrity of the trial.”

Travelers Indem. Co. v. Scor Reinsurance Co.,

(2d Cir. 1995) (internal quotation

marks omitted). Because Springs’s prior lawsuit was dismissed with prejudice for failure to state

a claim, the judge’s instruction, contrary to Springs’s argument, was factually correct. We see

no basis for concluding, moreover, that the instruction in any way draws into question the integrity

of the trial. Further to the point, the trial judge provided a curative instruction, after the defense’s

case-in-chief, disavowing any view on the evidence.

4 The fundamental error standard “is narrower than the plain error doctrine applicable to criminal cases.” DeFalco, 244 F.3d at 317 (quoting Travelers Indem. Co. v. Scor Reinsurance Co.,

(2d Cir. 1995)); see also United States v. Salameh,

(2d Cir. 1998) (“When a defendant fails to object to the curative instruction at trial, we review the court’s instruction for plain error.”).

8 Second, as to the comments made during testimony by Springs, while we recognize that a

judge should strive to create an “atmosphere of perfect impartiality,” Shah v. Pan Am. World

Services, Inc.,

, 98 (2d Cir. 1998) (internal quotation marks omitted), the law assures

litigants a fair trial, not a perfect one, Zinman v. Black & Decker (U.S.), Inc.,

(2d Cir. 1993). Thus “[i]n reviewing a challenge to a trial judge’s conduct, we determine not

whether the trial judge’s conduct left something to be desired, or even whether some comments

would have been better left unsaid[, but] . . . whether the judge’s behavior was so prejudicial that

it denied [a party] a fair, as opposed to a perfect, trial.” Shah, 148 F.3d at 98 (internal quotation

marks omitted, second and third alterations in original). We are not persuaded that the record

evinces judicial bias against Springs, much less so as to draw into question the fairness of the

proceeding. Throughout the four-day trial, Judge McMahon made evidentiary rulings sometimes

in favor of Springs and other times in favor of the City. The trial judge was mindful to provide

an instruction denying any view of the evidence or the credibility of the witnesses. We have no

reason to believe that the jury would disregard this instruction. See United States v. White,

(2d Cir. 2009) (noting that “[w]e ordinarily presume that the jury adheres to curative

instructions and see no reason to depart from that general rule”).

In sum, we conclude that the trial judge’s jury instruction and comments made during

Springs’s testimony did not deprive him of a fair trial. His argument to the contrary is without

merit.

* * *

We have considered Springs’s remaining arguments and find them to be without merit.

Accordingly, we REMAND with instructions to amend the final judgment nunc pro tunc in a

manner consistent with this summary order. As to the challenge by Springs on appeal to the

9 dismissal of his retaliation claims against the City, we AFFIRM the judgment of the district court,

as amended.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

10