SABER v. NEW YORK STATE DEPARTMENT OF FINANCIAL SERVICES (2019)

SUMMARY ORDER

The New York State Department of Financial Services (DFS) appeals from the denial by the District Court (Schofield, J.) of its post-verdict motion for judgment as a matter of law, or, alternatively, for a new trial, after a jury found DFS liable under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. for discriminating against Nasser Saber based on his national origin when it failed to promote him. The jury also found that DFS had retaliated against Saber in violation of Title VII for filing a complaint with the federal Equal Employment Opportunity Commission (EEOC). We assume the parties’ familiarity with the underlying facts and the record of prior proceedings, to which we refer only as necessary to explain our decision to affirm.

On liability, DFS argues that the jury’s answer to a special interrogatory on the verdict form demonstrates a level of jury confusion that warrants a new trial. DFS also argues that the trial evidence was insufficient to support Saber’s claims. Upon review of the record on appeal, we reject these arguments and affirm the judgment substantially for reasons stated by the District Court in its July 20, 2018 opinion and order. Saber v. N.Y. State Dep’t of Fin. Servs., No. 15-cv-5944 (LGS), 2018 WL 3491695, at *5–6, 8–9 (S.D.N.Y. July 20, 2018).

As for damages, DFS argues that the District Court erred in calculating Saber’s damages award using a comparator hired from outside of the civil service. On appeal, DFS points us to the New York State Department of Civil Service’s State Personnel Management Manual (the Manual), which states that § 131.1-a of the state civil service law applies only to external candidates who are hired from outside the New York civil service. See N.Y. State Dep’t of Civ. Serv., State Personnel Mgmt. Manual, § 870(F).122; but see id. § 870(F).221 (suggesting “[e]xceptions may be allowed”). But DFS failed to make the District Court aware of the Manual and relies on it for the first time only on appeal, and in any event the District Court had some discretion in using the salaries of comparators to determine backpay in this case. We therefore affirm the District Court’s damages award. See Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 166 (2d Cir. 1998) (noting that salaries of comparators may be used to calculate backpay “only insofar as the plaintiff lays a sufficient foundation to permit the reasonable inference that his salary would have matched ․ the salaries of others”).

We have considered DFS’s remaining arguments and conclude that they are without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED.