15-3775
Zarda v. Altitude Express


                             UNITED STATES COURT OF APPEALS

                                     FOR THE SECOND CIRCUIT

                                           August Term, 2016


                     (Argued: January 5, 2017        Decided: April 18, 2017)

                                           Docket No. 15-3775

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MELISSA ZARDA, co-independent executor of the estate of Donald Zarda, and
WILLIAM ALLEN MOORE, JR., co-independent executor of the estate of Donald
Zarda,

                           Plaintiffs-Appellants,

                  - v.-

ALTITUDE EXPRESS, doing business as SKYDIVE LONG ISLAND, and RAY
MAYNARD,

                           Defendants-Appellees.

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         Before:           JACOBS, SACK, and LYNCH, Circuit Judges.

       Donald Zarda, a skydiver, sued his former employer in the United States
District Court for the Eastern District of New York (Bianco, J.), asserting (inter
alia) sexual-orientation discrimination in violation of New York state law and sex
discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. § 2000e et seq. The district court, relying on our decision in Simonton v.
Runyon, 232 F.3d 33 (2d Cir. 2000), declined to hold that discrimination based on
sexual orientation constituted discrimination based on sex for purposes of Title
VII. The state-law claim for sexual-orientation discrimination went to trial where
a jury found for the defendants. On appeal, Zarda argues that Simonton should
be overturned. We do not entertain that argument because a panel of this Court
could not overturn another panel’s decision. Moreover, we reject Zarda’s
argument that he is entitled to a new trial on his state-law claim because of
alleged evidentiary errors, unfair discovery practices, and prejudicial arguments
to the jury based on gay stereotypes. Consequently, we AFFIRM the judgment
of the district court in all respects.

                                        GREGORY ANTOLLINO, New York, NY,
                                        for Appellants.

                                        Stephen Bergstein, Bergstein & Ullrich,
                                        LLP, Chester, NY, for Appellants.

                                        SAUL D. ZABELL, Zabell & Associates,
                                        P.C., Bohemia, NY, for Appellees.

                                        Lenora M. Lapidus, Gillian L. Thomas, Ria
                                        Tabacco Mar, and Leslie Cooper, American
                                        Civil Liberties Union Foundation, New
                                        York, NY; Erin Beth Harrist, Robert
                                        Hodgson, and Christopher Dunn, New
                                        York Civil Liberties Union Foundation,
                                        New York, NY, for Amici Curiae American
                                        Civil Liberties Union; New York Civil
                                        Liberties Union; 9to5; National Association
                                        of Working Women; A Better Balance;
                                        Coalition of Labor Union Women; Equal
                                        Rights Advocates; Gender Justice; Legal
                                        Voice; National Women’s Law Center;


                                          2
                                      Southwest Women’s Law Center; Women
                                      Employed; Women’s Law Center of
                                      Maryland; Women’s Law Project, in
                                      support of Plaintiffs-Appellants.

                                      Michael D.B. Kavey, LGBTQ Rights Clinic,
                                      New York, NY; Omar Gonzalez-Pagan,
                                      Lambda Legal Defense and Education
                                      Fund, Inc., New York, NY; Gregory R.
                                      Nevins, Lambda Legal Defense and
                                      Education Fund, Inc., Atlanta, GA, for
                                      Amicus Curiae Lambda Legal, in support
                                      of Plaintiffs-Appellants.

PER CURIAM:

       Plaintiff Donald Zarda, a skydiver, alleges that he was fired from his job as
a skydiving instructor because of his sexual orientation.1 He sued his former
employer, Altitude Express (doing business as Skydive Long Island) and its
owner Raymond Maynard (collectively “Altitude Express”), asserting that he
was discriminated against in violation of Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. § 2000e et seq., and New York law.2 The United States
District Court for the Eastern District of New York (Bianco, J.), found a triable
issue of fact as to whether Zarda faced discrimination because of his sexual
orientation in violation of New York law, but otherwise granted summary
judgment to Altitude Express on Zarda’s discrimination claims. In particular, the
district court held that the defendants were entitled to summary judgment on
Zarda’s Title VII claim because Second Circuit precedent holds that Title VII does


  1
    Zarda died in a skydiving accident before the case went to trial, and two
executors of his estate have replaced him as plaintiff. Zarda and his estate’s
executors are collectively referred to as “Zarda.”
  2
   Zarda also alleged violations of state and federal laws relating to overtime
and minimum wage. Those claims are not before us on appeal.

                                         3
not protect against discrimination based on sexual orientation. At trial, the jury
found for the defendants on Zarda’s state-law claims.

       On appeal, Zarda requests that we reconsider our interpretation of Title
VII in order to hold that Title VII’s prohibition on discrimination based on “sex”
encompasses discrimination based on “sexual orientation.” Since a three-judge
panel of this Court lacks the power to overturn Circuit precedent, we decline
Zarda’s invitation.

      Separately, Zarda asserts that several errors infected the trial on his state-
law discrimination claim, warranting a new trial. Finding no abuse of discretion
by the district court, we affirm the judgment in all respects.

                                          I

       In 2010, Rosanna Orellana and her boyfriend David Kengle went skydiving
at Altitude Express. Each purchased tandem skydives, in which the instructor is
tied to the back of the client so that the instructor can deploy the parachute and
supervise the jump. Zarda was Orellana’s instructor.

      At some point, Zarda informed Orellana that he was homosexual and he
had recently experienced a break-up. Zarda often informed female clients of his
sexual orientation--especially when they were accompanied by a husband or
boyfriend--in order to mitigate any awkwardness that might arise from the fact
that he was strapped tightly to the woman.

      When Orellana and Kengle compared notes on their respective skydives,
and Kengle learned that Zarda had disclosed his sexual orientation, Kengle called
Altitude Express to complain about Zarda’s behavior. Zarda was fired shortly
thereafter. Predictably, the parties dispute why Zarda was terminated. Altitude
Express observes that Orellana had various complaints about Zarda’s behavior,
and the company contends that Zarda was fired because he failed to provide an
enjoyable experience for a customer. For his part, Zarda asserts that he acted
appropriately at all times and was fired because of his sexuality: either because of



                                          4
his supervisor’s prejudice against homosexuals or because he informed a client
about his sexuality.3

                                        II

       The district court determined that there was a genuine dispute of material
fact regarding the reason for Zarda’s termination. However, the district court
concluded that Zarda was entitled to a trial only with respect to his state-law
cause of action. See N.Y. Exec. Law § 296(1)(a) (defining discrimination on the
basis of sexual orientation as “an unlawful discriminatory practice”). Zarda’s
Title VII claim, by contrast, was dismissed at summary judgment.

       That outcome ultimately resulted from longstanding tension in Title VII
caselaw. While this Court has stated that Title VII does not prohibit
discrimination based on sexual orientation, Simonton v. Runyon, 232 F.3d 33, 36
(2d Cir. 2000), the Supreme Court has held that Title VII does forbid
discrimination based on a failure to conform to “sex stereotypes,” Price
Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989). See also Dawson v. Bumble &
Bumble, 398 F.3d 211, 217-19 (2d Cir. 2005) (reaffirming Simonton). In light of
these precedents, Zarda premised his Title VII cause of action on the ground that
he had been terminated for failing to conform to sex stereotypes. Specifically,
Zarda alleged that his employer “criticized [Zarda’s] wearing of the color pink at
work” and his practice of painting his toenails pink, notwithstanding Zarda’s
“typically masculine demeanor.” J. App’x at 30. Accordingly, the district court,
granted summary judgment in favor of defendants without analyzing whether
Zarda could rely on a “sex stereotype” that men should date women. Instead,
the district court limited its analysis to the “sex stereotypes” alleged by Zarda,
including “what you may wear or how you may behave.” Special App’x at 26.
Determining that Zarda failed to establish the requisite proximity between his
termination and his proffered instances of gender non-conformity (not including
the fact that he dated other men), the district court granted summary judgment to
defendants on Zarda’s Title VII claim.


  3
    Zarda alleged that another skydiving instructor had disclosed that he was
heterosexual but was not punished.

                                        5
       During these proceedings, the Equal Employment Opportunity
Commission (“EEOC”) issued a decision setting forth the agency’s view that
discrimination based on sexual orientation constitutes sex discrimination in
violation of Title VII. See Baldwin v. Foxx, E.E.O.C. Decision No. 0120133080,
2015 WL 4397641, at *5 (July 16, 2015). Relying on Baldwin, Zarda moved the
district court to reconsider its grant of summary judgment on his Title VII claim.
The district court denied the motion, holding that Simonton was contrary to the
EEOC’s decision, and that it barred Zarda from recovering on a theory that
discrimination based on sexual orientation violated Title VII.

     After his state-law sexual-orientation claim proceeded to trial and a jury
found for the defendants, Zarda appealed.

                                        III

      Zarda asserts that Simonton’s holding that “Title VII does not proscribe
discrimination because of sexual orientation” is incorrect and should be
overturned. 232 F.3d at 36. As a threshold matter, Altitude Express contends
that we need not consider this argument in light of the jury verdict in favor of the
defendants on Zarda’s state-law discrimination claim. Essentially, Altitude
Express argues that the scope of Title VII’s protections are irrelevant to Zarda’s
appeal because the jury found that Altitude Express had not discriminated.

       Altitude Express is incorrect; Zarda’s sex-discrimination claim is properly
before us because the district court held him to a higher standard of causation
than required by Title VII. Under Title VII, a plaintiff must demonstrate that sex
“was a ‘substantial’ or ‘motivating’ factor contributing to the employer’s decision
to take the [adverse employment] action.” Vega v. Hempstead Union Free Sch.
Dist., 801 F.3d 72, 85 (2d Cir. 2015). Accordingly, to show causation for sex
discrimination under Title VII, “[i]t suffices . . . to show that the motive to
discriminate was one of the employer’s motives, even if the employer also had
other, lawful motives that were causative in the employer’s decision.” Univ. of
Tx. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2523 (2013).




                                         6
       At trial, the district court instructed the jury that Zarda could prevail on his
state-law sexual-orientation discrimination claim only if he could prove that “he
would have continued to work for Altitude Express . . . except for the fact that he
was gay.”4 J. App’x at 1771. In other words, the jury charge required Zarda to
prove but-for causation, which is a higher standard of causation than is necessary
for Title VII sex-discrimination claims. See Vega, 801 F.3d at 86 (“[A] plaintiff in a
Title VII case need not allege ‘but-for’ causation.”).

        If Zarda is correct that discrimination based on sexual orientation is
equivalent to prohibited sex discrimination under Title VII, then he would have
been entitled to a jury instruction on the less stringent “motivating-factor” test for
causation. See Gordon v. N.Y. City Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000)
(indicating that an instruction that advises the jury on an erroneously high
burden of proof warrants a new trial). It is entirely possible that a jury thought
that Zarda’s sexual orientation was “one of the employer’s motives” (i.e. a
“motivating factor”) in its termination decision, but was not a “but-for cause” of
his firing. In sum, if Title VII protects against sexual-orientation discrimination,
then Zarda would be entitled to a new trial.

        Zarda’s request that we overturn Simonton is therefore not mooted by the
jury verdict on his state-law claim. Nonetheless, we decline Zarda’s invitation to
revisit our precedent. A separate panel of this Court recently held that Simonton
can only be overturned by the entire Court sitting in banc, see Christiansen v.
Omnicom Grp., No. 16-478, 2017 WL 1130183, at *2 (2d Cir. Mar. 27, 2017), and
the same is true in the case at bar, see United States v. Wilkerson, 361 F.3d 717,
732 (2d Cir. 2004); cf. Hively v. Ivy Tech Comm. Coll., No. 15-1720, 2017 WL
1230393, at *1-2 (7th Cir. Apr. 4, 2017) (in banc) (overturning, as an in banc court,
prior Seventh Circuit precedent holding that Title VII did not prohibit
discrimination based on sexual orientation).

      In Christiansen, the panel nonetheless remanded to the district court after
concluding that the plaintiff had stated a plausible claim of “gender


   4
    We express no view as to whether the district court correctly instructed the
jury on New York law.

                                          7
stereotyping,” which is actionable under Title VII. 2017 WL 1130183, at *4. That
route is unavailable to Zarda, since, as explained above, the district court found
that Zarda failed to establish the requisite proximity between his termination and
his failure to conform to gender stereotypes, and Zarda did not challenge that
determination on appeal. Consequently, Zarda may receive a new trial only if
Title VII’s prohibition on sex discrimination encompasses discrimination based
on sexual orientation--a result foreclosed by Simonton.

                                         IV

      Zarda asserts that he is entitled to a new trial on his state-law, sexual-
orientation discrimination claim for several reasons. None has merit.

                                          A

       Evidentiary Rulings. Zarda contends that the district court improperly
admitted two types of prejudicial evidence. He suggests that the probative value
of the evidence was substantially outweighed by its resulting prejudice. See Fed.
R. Evid. 403. We review the district court’s decision to admit this evidence for
abuse of discretion. Harris v. O’Hare, 770 F.3d 224, 231 (2d Cir. 2014).

      Zarda contends that the district court improperly admitted evidence
concerning an occasion, nine years earlier, on which Zarda had been terminated
from Altitude Express. As an initial matter, Zarda does not clearly identify the
evidence he believes was improperly admitted, or why it was prejudicial. In any
event, as the district court observed, evidence relating to the circumstances of an
employee’s previous termination is relevant to determining the circumstances of
the same employee’s later termination. Zarda has not shown that any prejudice
substantially outweighed the relevance of this evidence. Accordingly, we see no
abuse of discretion.

      The district court also admitted deposition testimony in which Zarda
acknowledged that there was a (small) possibility that the cause of his
termination in 2001 was his filing for Worker’s Compensation benefits.
Assuming that this statement was prejudicial, any prejudice was negligible.


                                          8
Zarda stated at deposition that Worker’s Compensation might have played no
more than a minimal role in his firing; moreover, Zarda’s supervisor testified that
he knew it would be illegal to fire someone for seeking Worker’s Compensation
benefits, and that he did not fire Zarda for this reason.

                                         B

       Witness List. Zarda argues that the defendants hindered Zarda’s trial
preparation by listing dozens more proposed witnesses in the parties’ joint pre-
trial order than the defendants intended to call. Zarda apparently argues that the
district court should have precluded the defense witnesses from testifying,
pursuant to Rules 26 and 37(c)(1) of the Federal Rules of Civil Procedure.

       Even when Rule 37(c)(1) allows for witness preclusion, preclusion is not
mandatory. Design Strategy, Inc. v. Davis, 469 F.3d 284, 297-98 (2d Cir. 2006).
Here the district court had good reason to allow the testimony. The court found
that the evidence was important, that Zarda had some notice regarding the
potential testimony, and that there was no indication that the defendants had
engaged in improper gamesmanship. We review a district court’s decision to
preclude testimony based on Rule 37(c)(1) for abuse of discretion, and we see
none here. Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006).

                                         C

       Appeals to Prejudice. Zarda contends that defense counsel improperly
influenced the jury by appealing to prejudice against homosexuals. On review,
we consider whether the district court abused discretion by failing to grant relief.
Marcic v. Reinauer Transp. Cos., 397 F.3d 120, 124 (2d Cir. 2005). Zarda is
entitled to a new trial “only if [opposing] counsel’s conduct created undue
prejudice or passion which played upon the sympathy of the jury.” Id. at 127
(quoting Matthews v. CTI Container Transp. Int’l, Inc., 871 F.2d 270, 278 (2d Cir.
1989)).

      Although Zarda complains of several allegedly offensive remarks, the
context of each comment suggests that the statements were not improper


                                         9
references to stereotypes. For example, Zarda argues that counsel’s description
of the relationship between Zarda and one of his witnesses as “odd” is
prejudicial. However, the witness was testifying in support of Zarda’s claim for
emotional damages, and defense counsel made this comment while trying to
downplay the closeness of Zarda’s relationship with the witness in order to make
the jury skeptical of the witness’s knowledge of Zarda’s emotional state. The
district court held that the characterization of the relationship as “odd” was a fair
argument that went to the credibility of the witness. Zarda has not shown that
the district court’s ruling was an abuse of discretion or an “error[] . . . that w[as]
‘clearly prejudicial to the outcome of the trial;’” consequently, he is not entitled to
a new trial. Marcic, 397 F.3d at 124 (quoting Pescatore v. Pan Am. World
Airways, Inc., 97 F.3d 1, 17 (2d Cir. 1996)).

                                 CONCLUSION
      For the foregoing reasons, we affirm the judgment of the district court.




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