16-1071-cv
Balu v. City of New York



                                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
9th day of March, two thousand seventeen.

Present:    ROSEMARY S. POOLER,
            BARRINGTON D. PARKER,
            DEBRA ANN LIVINGSTON,
                        Circuit Judges.
_____________________________________________________

AUGUSTINA BALU,

                                  Plaintiff-Appellant,

                           v.                                                 16-1071-cv

CITY OF NEW YORK, DENIS McAULIFFE, individually
and in his official capacity as an employee of the New York
City of Department of Police,

                        Defendants-Appellees.1
_____________________________________________________

Appearing for Appellant:          Nicholas M. Wooldridge, Las Vegas, NV.

Appearing for Appellee:           MacKenzie Fillow, of counsel (Jane L. Gordon, of counsel, on the
                                  brief), for Zachary W. Carter, Corporation Counsel for the City of
                                  New York, New York, NY.



1
    The Clerk of the Court is directed to amend the caption as above.
         Appeal from the United States District Court for the Southern District of New York
(Failla, J.).
         ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the (judgment/order) of said District Court be and it hereby is
AFFIRMED.

        Augustina Balu appeals from the March 8, 2016 judgment of the United States District
Court for the Southern District of New York (Failla, J.) incorporating the district court’s prior
decisions denying her motions to retry her Title VII retaliation claim, to amend the joint pretrial
order, and to admit medical evidence. We assume the parties’ familiarity with the underlying
facts, procedural history, and specification of issues for review.

         We review the district court's denial of a motion for mistrial for abuse of discretion.
United States v. Canova, 412 F.3d 331, 348 (2d Cir. 2005). On appeal, Balu argues that defense
counsel’s statement during opening argument improperly referenced the results of an internal
investigation by the New York Police Department’s Office of Equal Employment Opportunity
that concluded Balu’s claims of sexual harassment were unsubstantiated. Balu argues this
reference was highly prejudicial, such that the district court erred in not ordering a mistrial.The
district court acted well within its discretion in declining to declare a mistrial. It was a single
statement made during opening and the district court immediately issued a curative instruction
reminding the jury that statements by attorneys were not evidence. Balu’s counsel declined the
district court’s offer to issue a second curative instruction before the jury began deliberating,
acknowledging the issue was likely not fresh in the jurors’ minds by the end of trial.2

         We also find no error in the district court’s jury instructions regarding Balu’s retaliation
claim. We review de novo challenges to jury instructions in civil cases, “and will grant a new
trial if we find an error that is not harmless.” Rasanen v. Doe, 723 F.3d 325, 331 (2d Cir. 2013)
(citation omitted). However, if the challenging party failed to object to the charge at trial, we
review for “plain error.” Id. at 332 & n. 2. Balu failed to object to the charge at trial. Balu now
argues that the district court failed to instruct the jury as to the burden shifting and rebuttable
presumptions on her retaliation claims. However, in Gordon v. New York City Board of
Education, our Court noted that including such language in jury instructions is unwise, “because
such language—developed by appellate courts for use by judges—is at best irrelevant, and at
worst misleading to a jury.” 232 F.3d 111, 118 (2d Cir. 2000) (internal quotations, brackets and
ellipses omitted). “In an employment discrimination or retaliation case, the job of the jury is
simply to decide whether an impermissible factor was a motivating factor in the adverse
employment action. The jury therefore does not need to be lectured on the concepts that guide a


2
 Balu’s appellate counsel misconstrues a number of the facts in his brief. For example, he argues
that the district court elected to issue curative instructions “[o]ver Plaintiff’s counsel’s objection”
when the record shows that Balu’s trial counsel in fact asked the court not to issue a curative
instructions. See Appellant’s Br. at 5, but cf App’x at 556. Counsel also argues that the district
court failed to allow in findings by the Pension Board regarding Balu’s disability. See
Appellant’s Br. at 21-23. However, the record show s that Balu’s trial counsel specifically asked
for the contrary—that the district court require her pension proceedings not be mentioned at trial.
See App’x at 83.

                                                  2
judge in determining whether a case should go to the jury.” Id. The district court did not err by
not explicitly referencing the burden shifting or rebuttable presumptions in its jury instructions.

        We have considered the remainder of Balu’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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