     14-3901-cv
     Muktadir v. Bevacco Inc.

                          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 20th day of November,two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                DEBRA ANN LIVINGSTON,
 8                CHRISTOPHER F. DRONEY,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       MOHAMMAD MUKTADIR,
13                Plaintiff-Appellant,
14
15                    -v.-                                               14-3901
16
17       BEVACCO INC., PETER SCLAFANI,
18       individually,
19                Defendants-Appellees.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        Bryan S. Arce, Christopher L,
23                                             Van De Water, Arcé Law Group,
24                                             P.C., New York, New York.
25
26       FOR APPELLEES:                        Daniel R. Swanson, Kevin
27                                             O’Donoghue, Helbraun Levey &


                                                  1
 1                              O’Donoghue LLP, New York, New York.
 2
 3        Appeal from a judgment of the United States District
 4   Court for the Eastern District of New York (Block, J.).
 5
 6        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 7   AND DECREED that the judgment of the district court be
 8   AFFIRMED.
 9
10        Mohammad Muktadir appeals from the judgment of the
11   United States District Court for the Eastern District of New
12   York (Block, J.), dismissing his discrimination and
13   retaliation claims pursuant to a jury verdict.1 We assume
14   the parties’ familiarity with the underlying facts, the
15   procedural history, and the issues presented for review.
16
17        Muktadir alleged discrimination under federal, state,
18   and local law on grounds of race, national origin, and
19   religion; hostile work environment; and retaliation, against
20   his former employer Bevacco, Inc. and its owner Peter
21   Sclafani. Muktadir had worked as a busser and food runner
22   at Bevacco, a restaurant in Brooklyn Heights, from October
23   2011 through May 7, 2012. After a three-day trial, the jury
24   rendered a defendants’ verdict. Muktadir challenges two
25   evidentiary rulings and certain comments of the district
26   judge that (Muktadir argues) denied him a fair trial. We
27   affirm.
28
29        1.  The district court permitted defendants’ counsel
30   to briefly inquire on cross-examination regarding Muktadir’s
31   concurrent employment at another restaurant, and his similar
32   complaints of discrimination in that workplace. Muktadir

         1
           Muktadir purports to seek a new trial. After
     Muktadir filed his notice of appeal, the district court
     denied Muktadir’s Rule 59 motion for a new trial. Muktadir
     v. Bevacco Inc., No. 12-CV-2184 (FB) (RER), 2015 WL 1182128
     (E.D.N.Y. Mar. 13, 2015). Muktadir did not amend his notice
     of appeal to include the denial of his post-trial motion,
     nor did he file a new notice of appeal therefrom.
     Accordingly, while we have appellate jurisdiction over the
     judgment, we lack power to review the district court’s post-
     trial ruling. See Fed. R. App. P. 4(a)(4)(B)(ii); see also,
     e.g., Gounden v. Campagna, 487 F. App’x 624, 626 (2d Cir.
     2012) (summary order); Pappas v. United States, 362 F. App’x
     175, 176-77 (2d Cir. 2010) (summary order).
                                  2
 1   contends that this testimony was inadmissible as evidence of
 2   prior bad acts, which should have been analyzed and excluded
 3   as impermissible character evidence pursuant to Fed. R.
 4   Evid. 404(b). The testimony did not consist of character or
 5   “bad acts” evidence, and the district court’s relevancy
 6   determination was within its broad discretion. See United
 7   States v. Quinones, 511 F.3d 289, 307-08 (2d Cir. 2007);
 8   Parker v. Reda, 327 F.3d 211, 213 (2d Cir. 2003) (per
 9   curiam); see also Muktadir v. Bevacco Inc., No. 12-CV-2184
10   (FB) (RER), 2015 WL 1182128, at *1 (E.D.N.Y. Mar. 13, 2015)
11   (“That Muktadir claimed that he was subjected to fairly
12   uncommon insults in two unrelated workplaces might suggest
13   that he did not correctly recall at which workplace he heard
14   them or, more nefariously, that they were products of his
15   invention. In either case, a jury could reasonably infer
16   that he was not subjected to the insults at Bevacco.”).
17
18        2.  The district court allowed into evidence a
19   redacted copy of the the Dismissal and Notice of Rights
20   issued by the EEOC in connection with Muktadir’s complaint
21   against Bevacco. The document was relevant to Muktadir’s
22   retaliation claims as evidence that Muktadir made a
23   complaint to the EEOC; and the EEOC’s determination was
24   redacted.2 Muktadir argues that, as redacted, “it was clear
25   to everyone in the courtroom what the EEOC’s determination
26   was because the entire box was whited out, leaving a glaring
27   blank space.” Pl.-Appellant’s Br. 22. Assuming this is so,
28   the manner of redaction did not affect Muktadir’s
29   substantial rights. See Fed. R. Civ. P. 61. Furthermore,
30   the document was shown to the jury in that form only
31   briefly. Before the case was submitted to the jury, the
32   document was further redacted, so that all boxes
33   corresponding to potential EEOC determinations were
34   eliminated.
35
36        Muktadir argues that the alleged prejudice caused by
37   the introduction of the EEOC document was reinforced by
38   Sclafani’s improper, unprompted, and incorrect statement on
39   the witness stand that Muktadir’s EEOC Charge “was found
40   baseless.” Trial Tr. 251. The district court immediately


         2
           The EEOC determination stated that: “Based upon its
     investigation, the EEOC is unable to conclude that the
     information obtained establishes violations of the statutes.
     This does not certify that the respondent is in compliance
     with the statutes.” App. of Pl.-Appellant 45.
                                  3
 1   reprimanded Sclafani, and informed the jury that “[i]t
 2   wasn’t found baseless”; that “it’s not the case”; and that
 3   they should “ignore” Sclafani’s comment. Id. Absent
 4   evidence to the contrary, we presume the jury followed the
 5   district court’s instruction, see United States v. Esso, 684
 6   F.3d 347, 352 (2d Cir. 2012), so the comment did not affect
 7   Muktadir’s substantial rights.
 8
 9        3.  The district judge’s initial greeting to the
10   impaneled jury on September 8, 2014, briefly referenced the
11   events of September 11, 2001. Muktadir contends that this
12   evidenced bias against Muslims and prejudiced the jury
13   against Muktadir. Although it may have been prudent to
14   avoid mention of the terrorist attack a few days before the
15   anniversary, we do not agree that the remarks evidenced bias
16   or prejudiced the jury. The judge mentioned the attack as
17   an event that, in his observation, instilled a sense of
18   citizenship in potential jurors and pride about the
19   responsibility of jury service, and he emphasized the
20   importance of diversity and inclusion. The remarks did not
21   bespeak bias against Muslims or any other group.
22
23        4.  Muktadir also cites a brief colloquy during
24   Sclafani’s testimony. Sclafani spontaneously proposed that
25   Judge Block “come to Bevacco after all this”; the judge
26   responded he was “not going to do that. Maybe the
27   jurors. . . . You may have some customers here in the
28   future.” Trial Tr. 247. A review of the trial transcript
29   evidences no reason to believe that this “single jovial
30   exchange . . . distract[ed] the jury from Muktadir’s
31   discrimination and retaliation claims or und[id] the Court’s
32   standard instruction that nothing it says during trial is
33   intended to convey any opinion about the merits of those
34   claims.” Muktadir, 2015 WL 1182128, at *3; see United
35   States v. Salameh, 152 F.3d 88, 128 (2d Cir. 1998)
36   (“Reversal for judicial bias is appropriate only where an
37   examination of the entire record demonstrates that ‘the
38   jurors have been impressed with the trial judge’s partiality
39   to one side to the point that this became a factor in the
40   determination of the jury.’” (quoting United States v.
41   Valenti, 60 F.3d 941, 946 (2d Cir. 1995))).
42
43        5.  Finally, Muktadir challenges the handling of the
44   dismissal of Juror #2. There was a ten-minute break after
45   the close of the defense case and before summations. Upon
46   returning to the courtroom after this break, the district
47   judge informed the parties that a juror had likely overheard

                                  4
 1   the judge in the hallway characterize the case to a
 2   colleague as a “little stupid trial” or “stupid little
 3   trial.” Trial Tr. 301-02. Muktadir’s counsel requested
 4   that the court dismiss the juror, and Juror #2 was dismissed
 5   over defendants’ objection. Before dismissal, Judge Block
 6   questioned Juror #2; the juror stated that he had heard the
 7   comment and confirmed that he had not mentioned it to the
 8   others. The juror was permitted to sit during summations
 9   and then excused; he did not deliberate.
10
11        Muktadir objects that Juror #2 was not excused
12   immediately, and was allowed to return to the jury room,
13   collect his things, and sit for summations; he speculates
14   that the juror may have, subsequent to this questioning,
15   revealed the judge’s remarks to the rest of the panel.3 As
16   an initial matter, Muktadir’s counsel did not object
17   contemporaneously to the juror’s being permitted to briefly
18   return to the jury room and sit for summations. Moreover,
19   Juror #2 was sufficiently warned against repeating the
20   judge’s comments to the rest of the jury. The circumstances
21   support the finding that the judge’s comment did not reach
22   the jury that deliberated.4 Trial Tr. 303-04, 360-61; see
23   Muktadir, 2015 WL 1182128, at *2.
24
25        For the foregoing reasons, and finding no merit in
26   Muktadir’s other arguments, we hereby AFFIRM the judgment of
27   the district court.


         3
           The district court suggested that Juror #2 would be
     permitted to stay for summations so that the rest of the
     panel would not “think there is anything wrong.” Trial Tr.
     304.
         4
           Muktadir argues that the test set forth in Manley v.
     AmBase Corp., 337 F.3d 237, 252 (2d Cir. 2003), should have
     been applied to determine whether the judge’s comment
     resulted in juror prejudice. However, Manley governs an
     analysis of prejudice when extra-record information
     does reach deliberating jurors. See id. (when a
     deliberating juror has been exposed to outside influence,
     the court should apply an objective test to determine
     whether that influence prejudiced deliberations, focusing
     on: “(1) ‘the nature’ of the information or contact at
     issue, and (2) ‘its probable effect on a hypothetical
     average jury’” (quoting United States v. Schwarz, 283 F.3d
     76, 99 (2d Cir. 2002))).
                                  5
1   FOR THE COURT:
2   CATHERINE O’HAGAN WOLFE, CLERK
3   By:
4
5
6




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