11-5463
Joiner v. Chartwells




                          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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 25th day of June, two thousand twelve.

     PRESENT:

             GUIDO CALABRESI,
             GERARD E. LYNCH,
             RAYMOND J. LOHIER, JR.,
                               Circuit Judges.
     ______________________________________________________

     David Joiner,

                                      Plaintiff-Appellant,

               -v.-                                                         11-5463-cv

     Chartwells, Compass Group NA,

                               Defendants-Appellees.
     ______________________________________________________

     FOR APPELLANT:                   David Joiner, pro se, West Hartford, Connecticut.

     FOR APPELLEES:                   Ben M. Krowicki, Sara S. Simeonidis, Bingham
                                      McCutchen LLP, Hartford, Connecticut.
       Appeal from a judgment and order of the United States District Court for the District of

Connecticut (Janet C. Hall, J.).

       UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND

DECREED that the July 16, 2009, judgment of the district court and the district court’s October

15, 2009, order are AFFIRMED.

       Plaintiff-appellant David Joiner, pro se, appeals from the district court’s May 7, 2007,

order granting in part defendants-appellees’ (“Chartwells”) motion for summary judgment, the

district court’s July 16, 2009, judgment for the defendants, and the district court’s October 16,

2009, order denying Joiner’s motion for a new trial. More specifically, Joiner argues that (1) the

district court erred by granting in part Chartwells’s motion for summary judgment; (2) the

judgment, following a jury verdict, should be reversed because (a) the district court failed to

notify Joiner of the case’s transfer to Judge Hall, and otherwise refused to rule on his motions for

recusal; (b) the jury pool had only one African-American juror, subsequently stricken from the

pool in violation of the rule set forth in Edmonson v. Leesville Concrete Co., 500 U.S. 614

(1991); and (c) the district court’s supplemental instruction confused the jury as to whether the

jury had to find that Joiner was actually discriminated against on the basis of his race, or merely

believed that he was the victim of discrimination. Finally, Joiner argues that (3) the district court

erroneously denied his Rule 59 motion for a new trial because (a) the verdict was against the

weight of the evidence; (b) Chartwells’s counsel’s inappropriate comment regarding the case’s

procedural history required the declaration of a mistrial; and (c) the district court unfairly

excluded probative evidence regarding Joiner’s knowledge that a Chartwells supervisor had used

a racial epithet against another employee. These arguments are without merit. We assume the

parties’ familiarity with the underlying facts and the procedural history of the case.


                                                  2
          (1) By order dated July 15, 2010, this Court dismissed Joiner’s appeal with respect to his

challenge to the district court’s May 2007 grant of partial summary judgment for Chartwells

because that appeal “lack[ed] an arguable basis in law or fact.” Under the law of the case

doctrine, “this Court will adhere to its own decision at an earlier stage of the litigation.” United

States v. Plugh, 648 F.3d 118, 123 (2d Cir. 2011) (internal quotation marks omitted). Joiner fails

either to present any argument that his case falls within an exception to this principle, or to

identify any reason why we should revisit our earlier order. We therefore decline to reexamine

the merits of this claim. See SCS Commc’ns, Inc. v. Herrick Co., 360 F.3d 329, 336 (2d Cir.

2004) (declining to revisit an earlier decision where the party seeking reconsideration failed to

present cogent or compelling reasons to ignore the law of the case doctrine).

          (2) Joiner’s challenges to the jury’s verdict, offered for the first time on appeal, are also

without merit. (a) Joiner’s claim that he was not notified that the case had been transferred back

to Judge Hall for trial is belied by the docket of the case, which contains an order re-assigning

the case to Judge Hall. Joiner’s counsel did not object to the reassignment, and Joiner has shown

no prejudice from the assignment of the trial to Judge Hall, who had presided over the case since

its inception. Joiner’s claim that the district court refused to rule on his recusal motions is

similarly without merit. The record reveals that Joiner moved not for recusal, but merely for

transfer of the case from Bridgeport to Hartford. In any event, Joiner failed to show any “deep-

seated favoritism or antagonism that would [have] ma[d]e fair judgment impossible,” and thus

did not establish a basis for Judge Hall’s recusal. See Litkey v. United States, 510 U.S. 540, 555

(1994).




                                                     3
       (b) Joiner, who was represented by counsel at trial, failed to raise any challenge to the

racial composition of the jury. As a consequence, the record contains little or no evidence

regarding the racial composition of the jury pool or the reasons for defense counsel’s challenge

to the juror Joiner now alleges was the only African-American in the jury pool. Because Joiner

failed to raise the issue below, and because the record is therefore inadequate to address it here,

we will not now consider the issue. See Bogle-Assegai v. Connecticut, 470 F.3d 498, 504 (2d

Cir. 2006).

       (c) Joiner’s claim that the district court erred in its supplemental instructions to the jury is

also without merit. The district court properly instructed the jury as to the elements of a

retaliation claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 20001 et seq. See

Sanders v. N.Y. City Human Res. Admin., 361 F.3d 749, 758 (2d Cir. 2004); Galdieri-Ambrosini

v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998).

       (3) We also reject Joiner’s attacks on the district court’s denial of his Rule 59 motion for

a new trial. (a) On March 21, 2011, this Court dismissed Joiner’s appeal with respect to his

argument that the jury’s verdict was against the weight of the evidence. For the same reasons

discussed above with respect to the summary judgment appeal, we will not revisit this decision.

       (b) We review the denial of a Rule 59 motion for abuse of discretion. See India.com, Inc.

v. Dalal, 412 F.3d 315, 320 (2d Cir. 2005). “A motion for a new trial ordinarily should not be

granted unless the trial court is convinced that the jury has reached a seriously erroneous result

or that the verdict is a miscarriage of justice.” Lightfoot v. Union Carbide Corp., 110 F.3d 898,

911 (2d Cir. 1997) (internal quotation marks and alterations omitted). Applying this standard,

the district court’s conclusion that defense counsel’s question regarding the earlier dismissal of


                                                  4
Joiner’s discrimination claims – “egregious” though it was, to use the district court’s apt

description – did not deny Joiner a fair trial was well within the court’s discretion. Particularly

given that the district court immediately struck the question, admonished counsel, and gave a

curative instruction to the jury, counsel’s single question cannot be said to have “infect[ed the]

trial with undue prejudice or passion as to require reversal.” Reilly v. Natwest Mkts. Grp., Inc.,

181 F.3d 253, 271 (2d Cir. 1999) (internal quotation marks omitted); see also Marcic v.

Reinauer Transp. Cos., 397 F.3d 120, 125 (2d Cir. 2005) (holding that three series of erroneous

questions did not warrant a new trial); Elliott v. Maggiolo Corp., 525 F.2d 439, 442-43 (2d Cir.

1975) (holding that counsel’s “most reprehensible” reference to excluded evidence after a

warning was not grounds for reversal where the district court issued a “strong reprimand” and

curative instruction).

       (c) Finally, the district court did not abuse its discretion by excluding testimony under

Federal Rule of Evidence 403 regarding another employee’s experiences with alleged

management discrimination, and properly concluded that the testimony’s probative value was

outweighed by its potential prejudice. See Lore v. City of Syracuse, 670 F.3d 127, 173 (2d Cir.

2012) (holding that the district court’s Rule 403 exclusion of testimony regarding another

employee’s experience was not an abuse of discretion).

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

For the foregoing reasons, the July 16, 2009, judgment of the district court and the district

court’s October 15, 2009, order are hereby AFFIRMED.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




                                                  5
