     14-681-cv(L)
     Saeed v. Kreutz

                          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 3rd day of April, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                RAYMOND J. LOHIER, JR.,
 8                              Circuit Judges,
 9                FRANK P. GERACI, JR.,*
10                              District Judge.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       SHOMARI SAEED,
14                Plaintiff-Appellee-Cross-
15                Appellant,
16
17                     -v.-                                              14-681(L)
18                                                                       14-902(XAP)
19       SERGEANT JOSEPH KREUTZ, in his
20       official and individual capacity,
21       INVESTIGATOR DARRYL HENDERSON, in his
22       official and individual capacity,
23       COUNTY OF NASSAU, DEPUTY UNDERSHERIFF


                *
                  Chief Judge Frank P. Geraci, Jr., of the United
         States District Court for the Western District of New York,
         sitting by designation.
                                                  1
 1   LINDA LAGRECA, in her official and
 2   individual capacity, NASSAU COUNTY
 3   SHERIFF’S DEPARTMENT, CAPTAIN PETER
 4   DUDEK, in his official and individual
 5   capacity, SERGEANT THOMAS SAITTA, in
 6   his official and individual capacity,
 7            Defendants-Appellants-Cross-
 8            Appellees.**
 9   - - - - - - - - - - - - - - - - - - - -X
10
11   FOR PLAINTIFF:             STEPHEN BERGSTEIN (Frederick K.
12                              Brewington, Law Offices of
13                              Frederick K. Brewington,
14                              Hempstead, New York, on the
15                              brief), Bergstein & Ullrich,
16                              LLP, Chester, New York.
17
18   FOR DEFENDANTS:            DEANNA PANICO (Michael P.
19                              Siravo, on the brief), Bee Ready
20                              Fishbein Hatter & Donovan, LLP,
21                              Mineola, New York.
22
23        Appeal from a judgment of the United States District
24   Court for the Eastern District of New York (Kuntz, J.).
25
26        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
27   AND DECREED that the judgment of the district court be
28   REVERSED.
29
30        Defendants Sergeant Joseph Kreutz, Sergeant Thomas
31   Saitta, Investigator Darryl Henderson, Captain Peter Dudek,
32   Deputy Undersheriff Linda LaGreca, the Nassau County
33   Sheriff’s Department (the “Department”), and the County of
34   Nassau (the “County”) (collectively, “defendants”) appeal
35   from the judgment of the United States District Court for
36   the Eastern District of New York (Kuntz, J.), awarding
37   damages of $200,000 in favor of plaintiff Shomari Saeed.
38   Saeed cross-appeals and seeks a new trial. We assume the
39   parties’ familiarity with the underlying facts, the
40   procedural history, and the issues presented for review.
41


         **
              The Clerk of Court is respectfully directed to
     amend the official caption in this case to conform with the
     caption above.
                                  2
 1        This case arises out of Saeed’s employment with the
 2   Department. Saeed--who is black, Muslim, and gay--alleges
 3   that he endured harassment, discrimination, and retaliation
 4   from members of the Department on the basis of his race,
 5   color, religion, and sexual orientation. The complaint
 6   asserts a number of claims, principally under federal and
 7   New York anti-discrimination statutes, but also under New
 8   York common law. A jury found for defendants on every claim
 9   except a common law claim for breach of an implied-in-fact
10   contract. On that claim, the jury awarded Saeed damages in
11   the amount of $200,000. The district court entered judgment
12   accordingly.
13
14        On appeal: (I) defendants argue that the judgment must
15   be reversed because the implied-in-fact contract claim
16   should have been dismissed as a matter of law; and
17   (II) Saeed argues that he is entitled to a new trial,
18   because the jury, having found in his favor on the implied
19   contract claim, acted inconsistently by finding for
20   defendants on the other claims. We conclude that the
21   implied contract claim should have been dismissed as a
22   matter of law, and that a new trial is not required.
23
24                                I
25
26        Defendants argue that they were entitled to summary
27   judgment, see Fed. R. Civ. P. 56(a), and judgment as a
28   matter of law, see Fed. R. Civ. P. 50, on the implied-in-
29   fact contract claim. Indeed, Saeed did not oppose
30   defendants’ summary judgment motion to dismiss this claim.
31   We review the district court’s denials of defendants’
32   motions de novo. See Schaefer v. State Ins. Fund, 207 F.3d
33   139, 142 (2d Cir. 2000); Zeno v. Pine Plains Cent. School
34   Dist., 702 F.3d 655, 664 (2d Cir. 2012).
35
36        The district court erred in submitting the implied
37   contract claim to the jury. That claim rests on the theory
38   that the Department and the County were bound--as a matter
39   of contract--to the terms of the County’s Equal Employment
40   Opportunity Policy (“EEO Policy”).1 But under New York law,


         1
              Although Saeed does not explain to us how the
     written EEO Policy can form the basis for an implied
     contract claim, we assume that what is “implied” is not the
     policy itself, but defendants’ promise to comply with it.
     See Watts v. Columbia Artists Mgmt. Inc., 591 N.Y.S.2d 234,
                                  3
 1   “[a] contract cannot be implied in fact where there is an
 2   express contract covering the subject matter involved.”
 3   Julien J. Studley, Inc. v. N.Y. News, Inc., 512 N.E.2d 300,
 4   301 (N.Y. 1987); see also Ludemann Elec., Inc. v. Dickran,
 5   903 N.Y.S.2d 532, 534 (2d Dep’t 2010).
 6
 7        At summary judgment, defendants correctly pointed out
 8   that the terms and conditions of Saeed’s employment were
 9   governed by an express contract: the collective bargaining
10   agreement (“CBA”) to which Saeed and the County were bound.2
11   Because the CBA and the alleged implied-in-fact contract
12   concerned the same subject matter--i.e., the terms and
13   conditions of employment--the implied contract claim fails
14   as a matter of law. The denial of the Rule 56 motion was
15   legally erroneous.3
16
17        Saeed argues that the CBA and the EEO Policy did not
18   cover the same “subject matter” because the EEO Policy set
19   forth anti-discrimination procedures that do not appear in
20   the CBA. We are not persuaded. The whole premise of
21   Saeed’s implied contract claim is that the EEO Policy
22   established certain terms and conditions of his employment.
23   But the CBA governed “rates of pay, salaries, hours,
24   grievances and other terms and conditions of employment [of
25   officers including Saeed].” (CBA § 3.) The CBA and the EEO
26   Policy therefore covered the same “subject matter”: the
27   terms under which Saeed agreed to work. It does not matter
28   that (on Saeed’s theory) the EEO Policy created additional
29   contractual obligations on that subject. See Ludemann
30   Elec., Inc., 903 N.Y.S.2d at 534 (“[A]n express contract
31   . . . requiring that the plaintiff be paid on a fixed rate


     236 (3d Dep’t 1992) (“A contract implied in fact rests upon
     the conduct of the parties and not their verbal or written
     words.”).
         2
              The text of the CBA was introduced into the
     summary judgment record by Saeed himself.
         3
              “Although normally where summary judgment is
     denied and the movant subsequently loses after a full trial
     on the merits, the denial of summary judgment may not be
     appealed, this rule does not apply where the district
     court’s error was purely one of law.” Schaefer, 207 F.3d at
     142 (internal quotation marks omitted). Because the denial
     of the Rule 56 motion was error, we need not decide whether
     it was also error to deny the Rule 50 motion.
                                  4
 1   basis for certain electrical service, work, equipment, and
 2   materials provided, . . . preclud[es] the existence of a
 3   contract implied in fact for payment of all electrical
 4   service, work, equipment, and materials on a time and
 5   materials basis.” (emphases added)).
 6
 7        In light of the foregoing, Saeed’s claim would fail
 8   even if the CBA had been entirely silent on the County’s
 9   anti-discrimination policy. However, the CBA was not
10   silent. The following language appeared at the end of the
11   CBA:
12
13       The following represents the County’s official
14       policy with regard to anti-discrimination. This
15       policy is not, nor shall it be construed to be a
16       provision of the preceding Collective Bargaining
17       Agreement.
18
19       “Employees are advised that Nassau County’s policy
20       with respect to discrimination is as follows:
21
22       The County adheres to all required Federal and
23       State employment laws relating to race, color,
24       religion, national origin, sex, sexual
25       orientation, physical disability, marital or
26       parental status and age.”
27
28   (CBA at 59 (emphasis added).) As this language
29   demonstrates, the parties did not simply fail to bargain for
30   the inclusion of the anti-discrimination policy as a term
31   and condition of employment; they specifically bargained for
32   its exclusion. The reason is unimportant, though it is easy
33   to see why a union would not want to be involved in
34   grievances that could often pit one union member against
35   another.
36
37        It is evident from the CBA that the parties did not
38   intend to convert Saeed’s undoubted statutory right to be
39   free of discrimination and retaliation into a contractual
40   term or condition of employment. Thus, the implied contract
41   claim must fail. See Miller v. Schloss, 113 N.E. 337, 339
42   (N.Y. 1916) (“A contract cannot be implied in fact . . .
43   against the intention or understanding of the parties.”);
44   Ludemann Elec., Inc., 903 N.Y.S.2d at 534.
45
46        For the foregoing reasons, we conclude that Saeed’s
47   implied contract claim--the sole claim on which he prevailed

                                  5
 1   and the basis for the $200,000 judgment--should have been
 2   dismissed as a matter of law. Accordingly, the judgment
 3   must be reversed.
 4
 5                                II
 6
 7        Saeed argues that the district court should have
 8   granted his motion for a new trial based on inconsistency in
 9   the jury verdicts. In Saeed’s view, the jury could not have
10   found in his favor on the implied contract claim without
11   also finding in his favor on the statutory claims.4
12
13        “This Court reviews the denial of a motion for new
14   trial under Federal Rule of Civil Procedure 59(a) for abuse
15   of discretion.” SEC v. DiBella, 587 F.3d 553, 563 (2d Cir.
16   2009). We conclude that the district court did not abuse
17   its discretion.
18
19        “[I]neluctably inconsistent” jury responses to special
20   interrogatories require retrial, see Munafo v. Metro.
21   Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004) (internal
22   quotation marks and emphasis omitted); but the same is not
23   true for inconsistent general verdicts on separate claims,
24   Cash v. Cnty. of Erie, 654 F.3d 324, 343 (2d Cir. 2011)
25   (citing cases). The verdicts in this case were general
26   verdicts. Id. (explaining that a general verdict “appl[ies]
27   legal principles and assign[s] liability” (citation and
28   internal quotation marks omitted)). Accordingly, even if
29   those verdicts were irreconcilably inconsistent, the
30   inconsistency would not require retrial. Globus v. Law
31   Research Serv., Inc., 418 F.2d 1276, 1290 n.17 (2d Cir.
32   1969) (“It has been said again and again . . . that
33   consistent jury verdicts are not, in themselves, necessary
34   attributes of a valid judgment.”).
35
36        Second, the verdicts were not irreconcilably
37   inconsistent. The jury was instructed that Saeed should
38   prevail on the implied contract claim if defendants
39   “breached the contract by discriminating against the


         4
              Because the district court should have dismissed
     the implied contract claim as a matter of law, a powerful
     argument could be made that the verdict on that claim should
     be disregarded altogether. We need not address that
     argument because Saeed’s position fails on other, even more
     fundamental grounds.
                                  6
 1   plaintiff or treating the plaintiff unfairly” (emphasis
 2   added).5 The jury could have understood this instruction to
 3   mean that defendants had a contractual obligation to treat
 4   Saeed “fairly” that was not based on any obligation to
 5   abstain from discrimination and retaliation. If the jury
 6   interpreted the instruction this way, it could have found
 7   for Saeed on the implied contract claim without also finding
 8   for him on the statutory claims. See Brooks v. Brattleboro
 9   Mem’l Hosp., 958 F.2d 525, 529 (2d Cir. 1992) (“[A]
10   reviewing court must adopt a view of the case, if there is
11   one, that resolves any seeming inconsistency.” (internal
12   quotation marks omitted)).
13
14        Accordingly, the district court did not abuse its
15   discretion in denying Saeed’s motion for a new trial.
16
17        For the foregoing reasons, and finding no merit in
18   Saeed’s other arguments, we hereby REVERSE the judgment of
19   the district court.
20
21                              FOR THE COURT:
22                              CATHERINE O’HAGAN WOLFE, CLERK
23




         5
              There was no inconsistency in the usage of “and”
     and “or” in the section of the jury charge describing the
     contract claim. The conjunctive “and” was used to explain
     Saeed’s theory that defendants had multiple contractual
     obligations and breached those obligations in multiple ways;
     the disjunctive “or” was used to explain that Saeed could
     prevail if defendants breached the contract in any of the
     ways described.
                                  7
