15-3843-cv
Abrams v. Dep’t of Pub. Safety, 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
23rd day of February, two thousand seventeen.

Present:    JOHN M. WALKER, JR.,
            ROSEMARY S. POOLER,
            DENNY CHIN,
                        Circuit Judges.
_____________________________________________________

FREDERICK M. ABRAMS,

                                    Plaintiff-Appellant,

                           v.                                                  15-3843-cv

DEPARTMENT OF PUBLIC SAFETY, STATE OF
CONNECTICUT, STEVEN FIELDS, MAJOR, I/O, PATRICK
O’HARA, LIEUTENANT, I/O, JOHN TURNER, SERGEANT, I/O,
BARBARA LYNCH, AFFIRMATIVE ACTION OFFICER, I/O,

                        Defendants-Appellees.1
_____________________________________________________

Appearing for Appellant:            Frederick M. Abrams, pro se, Manchester, CT.

Appearing for Appellees:            Ann E. Lynch, Assistant Attorney General, for George Jepsen,
                                    Attorney General of the State of Connecticut, Hartford, CT.



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    The Clerk of Court is respectfully instructed to amend the official caption as above.
      Appeal from a judgment of the United States District Court for the District of
Connecticut (Chatigny, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Appellant Frederick M. Abrams, proceeding pro se, appeals from the district court’s
judgment dismissing his race-discrimination claims under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1983 after a jury verdict in favor of the
Connecticut Department of Public Safety (“DPS”) and several of its employees. Abrams alleged
that the defendants discriminated against him by passing him over for a transfer into the district’s
Major Crimes Unit’s crime van. We assume the parties’ familiarity with the underlying facts,
procedural history, and specification of issues for review. We address Abrams’s challenges in
turn.

        First, Abrams challenges the district court’s instructions to the jury on the value of report
writing. The “instructions” given to the jury, however, were merely the introduction of the court
reporter who would be making a record of the trial. In addition to being unpreserved, this
challenge is frivolous.

       Second, Abrams challenges the district court’s supposed limiting of the testimony of one
of Abrams’s witnesses because of attorney-client privilege. This challenge is factually
inaccurate. The witness’s testimony was never so limited.

        Third, Abrams challenges the district court’s preclusion of evidence about a 1982
settlement by DPS and testimony about ongoing discrimination by DPS, rulings we review for
abuse of discretion. See Arlio v. Lively, 474 F.3d 46, 51 (2d Cir. 2007). These rulings were not an
abuse of discretion; we held on Abrams’s previous appeal that the district court properly
determined on summary judgment that this evidence failed to “pass[] muster” and “did not
establish pretext.” See Abrams v. Dep’t of Pub. Safety, 764 F.3d 244, 253 & n.8 (2d Cir. 2014).

        Fourth, Abrams challenges testimony elicited by defense counsel at trial regarding an
individual whom the district court had precluded from testifying. The district court, however, sua
sponte gave a corrective instruction directing the jury to disregard the testimony, and later gave a
second corrective instruction. “It is a fundamental proposition that a jury is presumed to follow
the instructions of the trial judge.” Britt v. Garcia, 457 F.3d 264, 272 (2d Cir. 2006) (citation
omitted). Abrams’s challenge accordingly fails.

        Fifth, Abrams argues that the district court erred by failing to grant a continuance to
allow him to depose newly added witnesses. “The decision to deny a continuance rests within the
sound discretion of the trial court and will be overturned only for an abuse of discretion.” Farias
v. Instructional Sys., Inc., 259 F.3d 91, 99-100 (2d Cir. 2001). To succeed on such a challenge,
Abrams must demonstrate both arbitrariness and prejudice. Id. at 100. He can show neither.
Abrams never asked for a continuance, and, therefore, the district court’s failure to sua sponte
grant one could not be arbitrary. Even were Abrams to demonstrate arbitrariness, he cannot
demonstrate prejudice. Abrams knew of the identity of two of the witnesses well before


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discovery closed (each was named in his first amended complaint), but did not seek to depose
them. Moreover, the remaining witnesses were identified in the parties’ joint trial memorandum,
which was filed more than two months before trial began. See Fed. R. Civ. P. 26(a)(3) (requiring
trial witnesses to be disclosed 30 days before trial).

        Finally, Abrams challenges the district court’s decision to preclude a payroll clerk’s
testimony about additional overtime Abrams would have received had he been promoted to the
position he sought. Even assuming arguendo this was error, it was harmless. The jury found for
the defendants on the issue of liability and therefore had no need to consider evidence on
damages. See Fed. R. Civ. P. 61 (“At every stage of the proceeding, the court must disregard all
errors and defects that do not affect any party’s substantial rights.”).

        We have considered the remainder of Abrams’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED.


                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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