17-446-cv 

Barrella v. Village of Freeport, et al.

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 13th day of March, two thousand eighteen. 

PRESENT: JOSÉ A. CABRANES,

REENA RAGGI, 

Circuit Judges,

LAWRENCE J. VILARDO,

District Judge.

 

CHRISTOPHER BARRELLA, 

Plaintiff-Appellant, 17-446-cv 

 v. 

VILLAGE OF FREEPORT and ANDREW HARDWICK, 

Defendants-Appellees.

 

FOR PLAINTIFF-APPELLANT: PAUL P. ROONEY, Amanda M. Fugazy, 

Ellenoff Grossman & Schole LLP, New York, 

NY. 

 

 Judge Lawrence J. Vilardo, of the United States District Court for the Western District of New York, 

sitting by designation.

The Clerk of Court is ordered to amend the caption of this case as shown herein.
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FOR DEFENDANT-APPELLEE KEITH M. CORBETT, Harris Beach PLLC, 

VILLAGE OF FREEPORT: Uniondale, New York 

FOR DEFENDANT-APPELLEE KENNETH A. NOVIKOFF, Rivkin Radler LLP 

ANDREW HARDWICK: Uniondale, New York 

Appeal from an order of the United States District Court for the Eastern District of New 

York (Leonard D. Wexler, Judge). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the order of the District Court is AFFIRMED. 

Plaintiff-Appellant Christopher Barrella (“Barrella”) appeals from a final judgment of the 

District Court, following a trial in which the jury found for Defendants-Appellees Village of 

Freeport (“the Village”) and Andrew Hardwick (“Hardwick”). Barrella seeks reversal and remand to 

the District Court for a new trial. We assume the parties’ familiarity with the underlying facts, the 

procedural history of the case, and the issues on appeal.1

Barrella, a Lieutenant in the Freeport Police Department, alleges that he was passed over by 

the village’s mayor at the time, Andrew Hardwick, for the position of police chief. He brought a civil 

rights action against the Village and Hardwick, alleging violation of Title VII of the Civil Rights Act 

of 1964, 42 U.S.C. § 2000e, and § 1981, 42 U.S.C. § 1981. The first trial of this matter resulted in a 

verdict for Barrella. Barrella v. Village of Freeport, 43 F.Supp. 3d 136 (2014). We affirmed in part and 

vacated and remanded in part. Village of Freeport v. Barrella, 814 F.3d 594 (2d Cir. 2016). On January 

30, 2017, following a new trial, the jury found for Freeport and Hardwick. 

Barrella argues on appeal: that the District Court committed reversible error when it (1) 

allowed the Village and Hardwick to question Barrella about a 1994 class action race discrimination 

lawsuit he joined; (2) it excluded evidence of Hardwick’s statements; (3) it excluded evidence related 

to Hardwick’s treatment of other Caucasian employees of the Village; (4) it did not give a curative 

instruction after Hardwick’s counsel allegedly made a “golden rule” argument in closing; and (5) it 

did not give curative instructions based on what Barrella claims were misstatements of law in closing 

argument by the Village and Hardwick as to “motivating factor.” 

Taking these claims seriatim, Barrella argues that the District Court prejudiced the jury by 

admitting evidence that he joined a 1994 class action lawsuit alleging race discrimination in Nassau 

County’s administration of a police hiring examination. According to Barrella, Outley v. City of New 

York, 837 F.2d 587 (2d Cir. 1988)—which held that improper questioning about a plaintiff’s past 

litigation in violation of Fed. R. Evid. 404(b), combined with reference to that questioning in 

summation, require a new trial—entitles him to a reversal of the jury verdict. We review a district 

court’s evidentiary rulings for abuse of discretion. Freeport, 814 F.3d at 610. If there was an abuse of 

 

1 For a recitation of the background in this case, see Village of Freeport v. Barrella, 814 F.3d 594 (2d Cir. 

2016). 
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discretion, we are required to determine whether the errors “were clearly prejudicial to the outcome 

of the trial, where prejudice is measured by assessing the error in light of the record as a whole.” Id.

(internal citation omitted). Upon a review of the record, we conclude that Outley does not require us 

to reverse the jury verdict, and that the District Court’s admission of this evidence was not clearly 

erroneous. 

Barrella contends that the District Court erred when it excluded evidence of Hardwick’s 

statements allegedly demonstrating his discriminatory intent with respect to Barrella and with respect 

to other Village employees. Reviewing these evidentiary claims for abuse of discretion, we conclude 

that the District Court’s decision to exclude the evidence at issue was not clearly erroneous. 

Barrella argues that Hardwick’s counsel engaged in “golden rule” argumentation during 

closing, which asks jurors to place themselves in the position of a party. He invites us to change our 

precedent regarding such arguments, requesting that we extend our prohibition on golden rule 

arguments beyond the context of damages (the only context in which they are forbidden) to any 

kind of liability. See Johnson v. Celotex Corp., 899 F.2d 1281 (2d Cir. 1990). We decline to do so. 

Regardless of whether Hardwick’s counsel in fact made a “golden rule” argument during closing, his 

argument was not made in the context of damages, and a new trial is not warranted. 

Last, Barrella claims that Hardwick’s counsel misstated the law during closing as to whether 

race was a “motivating factor” in Hardwick’s decision to promote someone above Barrella for police 

chief. We review whether counsel’s conduct caused prejudice for abuse of discretion. Pappas v. Middle 

Earth Condominium Ass’n, 963 F.2d 534, 540 (2d Cir. 1992). In doing so, “we recognize the trial 

court’s superior vantage point when evaluating the possible impact of the alleged prejudicial 

conduct.” Id. Upon review of the record, we conclude that the District Court’s decision not to issue 

curative instructions regarding Hardwick’s discussion of “motivating factor” was not clearly 

erroneous. 

CONCLUSION

 We have reviewed all the arguments raised by Barrella on appeal and find them to be without 

merit. Accordingly, we AFFIRM the judgment of the District Court. 

FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk of Court