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United States Court of Appeals, Second Circuit.

Bernard W. GOONEWARDENA, Plaintiff-Appellant, v. NEW YORK STATE WORKERS’ COMPENSATION BOARD, Mr. Winston Farnum, Supervisor, Defendants-Appellees.


Decided: October 11, 2019

PRESENT: DENNIS JACOBS, ROBERT D. SACK, PETER W. HALL, Circuit Judges. FOR PLAINTIFF-APPELLANT: Bernard W. Goonewardena, pro se, New York, NY. FOR DEFENDANTS-APPELLEES: Barbara D. Underwood, Solicitor General, Andrew W. Amend, Senior Assistant Solicitor General, David Lawrence III, Assistant Solicitor General of Counsel, for Letitia James, Attorney General for the State of New York, New York, NY.


Appellant Bernard Goonewardena, proceeding pro se, sued his former employer, the New York Workers’ Compensation Board (“WCB”), and his former supervisor, Winston Farnum, for employment discrimination under Title VII, the New York State Human Rights Law (“NYSHRL”), the New York City Human Rights Law (“NYCHRL”), and 42 U.S.C. § 1983.1 The district court entered judgment for the defendants following a three-day bench trial, and Goonewardena appeals. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal

I. Discrimination Claims

“In reviewing a judgment entered after a bench trial,” we review the district court's findings of fact for clear error and its “conclusions of law, and its application of the law to the facts, de novo.” Krist v. Kolombos Rest. Inc., 688 F.3d 89, 95 (2d Cir. 2012). “Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.” Id. (quoting Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (internal quotation omitted)). Further, we may not “second-guess the bench-trial court's credibility assessments.” Id.

Goonewardena largely challenges the district court's finding that Farnum and Farnum's supervisor, Leonard Frasco, testified credibly. Because this Court may not disturb the district court's credibility assessments, this argument is unavailing. See Krist, 688 F.3d at 95. The remaining factual findings that Goonewardena contests on appeal are all supported by the record. For example, Farnum and Frasco both testified—credibly, in the district court's view—that Goonewardena's work contained errors, that they knew Goonewardena to have an antagonistic relationship with coworkers, and that other South Asians worked at the WCB under Farnum's supervision. The court's conclusion that Goonewardena's performance at the WCB was inadequate was also supported by the trial testimony and the documentary evidence, including Goonewardena's two probationary reports. Although there was contrary evidence on some of these points in the record, the district court's decision to choose the defendants’ view “cannot be clearly erroneous” because “there are two permissible views of the evidence.” Id. (quoting Anderson, 470 U.S. at 574, 105 S.Ct. 1504).

Goonewardena also argues that the evidence showed that the decision to terminate his employment was discriminatory and the proffered reasons for this decision—i.e., his performance issues—were pretext for age and race discrimination. In support of this claim, he notes that he was not given any formal warnings and that he was replaced by employees outside his protected groups. The district court properly concluded that these reasons were not sufficient to establish pretext. Failure to advise an employee of performance issues may suggest that these issues were later asserted pretextually. See Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 116 (2d Cir. 2013) (explaining that a company's failure to confront plaintiff with concerns regarding her performance prior to her protected activity could support an inference that these concerns were pretext for retaliation). But here, Farnum testified that he informally counselled Goonewardena regarding his performance and repeatedly returned his work for corrections. Further, although Goonewardena was replaced by employees outside his protected groups, there was no evidence that he was more qualified than the replacements. See Holt v. KMI-Cont'l, Inc., 95 F.3d 123, 130 (2d Cir. 1996) (plaintiff's “personal belief that she was the most qualified person for the various positions” was not sufficient to establish pretext).

Goonewardena's argument that the district court should have focused on whether his performance was actually inadequate, rather than how his employers perceived his performance, is meritless. First, his employer's view of his performance, and not the accuracy of that view, is the proper focus of the pretext injury. See McPherson v. New York City Dep't of Educ., 457 F.3d 211, 216 (2d Cir. 2006) (explaining that, in a discrimination case, the Court is “interested in what motivated the employer,” and is “decidedly not interested in the truth of the allegations against plaintiff” (internal quotation marks omitted)). Second, the district court in any event found that the evidence showed Goonewardena's performance was deficient. As discussed above, the court's ruling on this point was not clearly erroneous. Goonewardena similarly argues that the district court should have admitted, and given greater weight to, evidence concerning his prior work history, which he contends would demonstrate his competence. Because the accuracy of his employer's perception of his performance is not at issue, and because this evidence concerns Goonewardena's ability to meet expectations of different employers while completing different tasks years earlier, evidence of Goonewardena's prior work performance does not undermine the district court's decision. See id.; Rodriguez-Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15, 20 (1st Cir. 1999) (prior positive performance reviews, issued when the plaintiff was “working in different capacities at different stores, under different supervisors with different expectations,” did not establish that a subsequent negative evaluation was pretextual).

Goonewardena's argument that the presence of other South Asian employees does not refute his discrimination claim is also unavailing. The district court identified the diversity of the WCB's staff as one of several reasons that Goonewardena failed to demonstrate pretext. Although this factor does not conclusively establish that an employer's action was not “discriminatorily motivated,” a court is “entitled to consider the racial mix of the work force when trying to make the determination as to motivation.” Furnco Const. Corp. v. Waters, 438 U.S. 567, 580, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978).

Goonewardena also argues that Farnum's decision to inform him that his employment was terminated in the main area of the office demonstrated his racial animosity. But Farnum testified that he complied with the WCB Human Resources Office's instructions regarding the manner in which he terminated Goonewardena's employment. In the absence of additional evidence of pretext, this incident does not support Goonewardena's claim that Farnum discriminated against him. And Goonewardena's additional allegations that other probationary employees who made errors were not terminated, that less-qualified applicants were hired before him, and that South Asians suffer discrimination in all New York State agency hiring, are not supported by the trial record.

Finally, to the extent that Goonewardena argues that his trial counsel was ineffective, this claim is meritless because, “except when faced with the prospect of imprisonment, a litigant has no legal right to counsel in civil cases”—and, by extension, no right to effective counsel. Guggenheim Capital, LLC v. Birnbaum, 722 F.3d 444, 453 (2d Cir. 2013).

II. Discovery Sanctions

“We review a district court's decision on a motion for discovery sanctions for abuse of discretion.” Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002). A district court has abused its discretion “if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Id. (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990)).

Goonewardena challenges the factual finding underlying the district court's decision to deny his motion for discovery sanctions, asserting that Farnum was not credible as to the reasons failed to preserve certain documents. This argument fails because, as discussed above, the district court's assessment of Farnum's testimony was not clearly erroneous.

III. Motions

Goonewardena moves in this Court for an extension of time to amend and supplement his brief and reply brief, to introduce new evidence on appeal, to adjourn the submission date, for oral argument, and for reconsideration of this Court's prior denials similar relief. This Court has already denied his previous requests for extensions of time to amend and supplement his briefs and for oral argument. To the extent he repeats requests for relief that this Court has previously denied, the law of the case doctrine generally requires the Court to adhere to its prior rulings on an issue in the same case “unless cogent and compelling reasons militate otherwise,” and such reasons are not present here. Johnson v. Holder, 564 F.3d 95, 99 (2d Cir. 2009) (internal quotation marks omitted). Further, Goonewardena has not shown that the new evidence that he seeks to introduce into the record on appeal was erroneously or accidentally omitted from the record, or that it is material to the case. See Fed. R. App. P. 10(e)(2); Leibowitz v. Cornell Univ., 445 F.3d 586, 592 n.4 (2d Cir. 2006) (per curiam) (declining to supplement the record in the absence of “evidence of an erroneous or accidental omission of material evidence”). Finally, we see no basis to adjourn the submission date in light of our denial of Goonewardena's other requests.

We have considered all of Goonewardena's remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court and DENY the motions for an extension of time, to expand the record, to adjourn the submission date, for oral argument, to hold this appeal in abeyance, and for reconsideration.


1.   Goonewardena does not challenge on appeal the district court's dismissal of his additional claims on the defendants’ motions to dismiss and for summary judgment. Nor does he address the district court's disposition of his retaliation claims following trial. These claims are thus abandoned. See LoSacco v. City of Middletown, 71 F.3d 88, 93 (2d Cir. 1995) (pro se litigant abandons issue by failing to address it in his appellate brief).

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