14-3901-cv

Muktadir v. Bevacco Inc.

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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

4 on the 20 day of November,two thousand fifteen. th

5

6 PRESENT: DENNIS JACOBS,

7 DEBRA ANN LIVINGSTON,

8 CHRISTOPHER F. DRONEY,

9 Circuit Judges.

10

11 - - - - - - - - - - - - - - - - - - - -X

12 MOHAMMAD MUKTADIR, 

13 Plaintiff-Appellant,

14

15 -v.- 14-3901

16

17 BEVACCO INC., PETER SCLAFANI,

18 individually, 

19 Defendants-Appellees.

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21

22 FOR APPELLANT: Bryan S. Arce, Christopher L,

23 Van De Water, Arcé Law Group,

24 P.C., New York, New York.

25

26 FOR APPELLEES: Daniel R. Swanson, Kevin

27 O’Donoghue, Helbraun Levey &

1
1 O’Donoghue LLP, New York, New York.

2

3 Appeal from a judgment of the United States District

4 Court for the Eastern District of New York (Block, J.).

5

6 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

7 AND DECREED that the judgment of the district court be

8 AFFIRMED. 

9

10 Mohammad Muktadir appeals from the judgment of the

11 United States District Court for the Eastern District of New

12 York (Block, J.), dismissing his discrimination and

13 retaliation claims pursuant to a jury verdict. We assume

1

14 the parties’ familiarity with the underlying facts, the

15 procedural history, and the issues presented for review. 

16

17 Muktadir alleged discrimination under federal, state,

18 and local law on grounds of race, national origin, and

19 religion; hostile work environment; and retaliation, against

20 his former employer Bevacco, Inc. and its owner Peter

21 Sclafani. Muktadir had worked as a busser and food runner

22 at Bevacco, a restaurant in Brooklyn Heights, from October

23 2011 through May 7, 2012. After a three-day trial, the jury

24 rendered a defendants’ verdict. Muktadir challenges two

25 evidentiary rulings and certain comments of the district

26 judge that (Muktadir argues) denied him a fair trial. We

27 affirm.

28

29 1. The district court permitted defendants’ counsel

30 to briefly inquire on cross-examination regarding Muktadir’s

31 concurrent employment at another restaurant, and his similar

32 complaints of discrimination in that workplace. Muktadir

 Muktadir purports to seek a new trial. After

1

Muktadir filed his notice of appeal, the district court

denied Muktadir’s Rule 59 motion for a new trial. Muktadir

v. Bevacco Inc., No. 12-CV-2184 (FB) (RER), 2015 WL 1182128

(E.D.N.Y. Mar. 13, 2015). Muktadir did not amend his notice

of appeal to include the denial of his post-trial motion,

nor did he file a new notice of appeal therefrom. 

Accordingly, while we have appellate jurisdiction over the

judgment, we lack power to review the district court’s posttrial ruling. See Fed. R. App. P. 4(a)(4)(B)(ii); see also,

e.g., Gounden v. Campagna, 487 F. App’x 624, 626 (2d Cir.

2012) (summary order); Pappas v. United States, 362 F. App’x

175, 176-77 (2d Cir. 2010) (summary order). 

2
1 contends that this testimony was inadmissible as evidence of

2 prior bad acts, which should have been analyzed and excluded

3 as impermissible character evidence pursuant to Fed. R.

4 Evid. 404(b). The testimony did not consist of character or

5 “bad acts” evidence, and the district court’s relevancy

6 determination was within its broad discretion. See United

7 States v. Quinones, 511 F.3d 289, 307-08 (2d Cir. 2007);

8 Parker v. Reda, 327 F.3d 211, 213 (2d Cir. 2003) (per

9 curiam); see also Muktadir v. Bevacco Inc., No. 12-CV-2184

10 (FB) (RER), 2015 WL 1182128, at *1 (E.D.N.Y. Mar. 13, 2015)

11 (“That Muktadir claimed that he was subjected to fairly

12 uncommon insults in two unrelated workplaces might suggest

13 that he did not correctly recall at which workplace he heard

14 them or, more nefariously, that they were products of his

15 invention. In either case, a jury could reasonably infer

16 that he was not subjected to the insults at Bevacco.”).

17

18 2. The district court allowed into evidence a

19 redacted copy of the the Dismissal and Notice of Rights

20 issued by the EEOC in connection with Muktadir’s complaint

21 against Bevacco. The document was relevant to Muktadir’s

22 retaliation claims as evidence that Muktadir made a

23 complaint to the EEOC; and the EEOC’s determination was

24 redacted. Muktadir argues that, as redacted, “it was clear 2

25 to everyone in the courtroom what the EEOC’s determination

26 was because the entire box was whited out, leaving a glaring

27 blank space.” Pl.-Appellant’s Br. 22. Assuming this is so,

28 the manner of redaction did not affect Muktadir’s

29 substantial rights. See Fed. R. Civ. P. 61. Furthermore,

30 the document was shown to the jury in that form only

31 briefly. Before the case was submitted to the jury, the

32 document was further redacted, so that all boxes

33 corresponding to potential EEOC determinations were

34 eliminated.

35

36 Muktadir argues that the alleged prejudice caused by

37 the introduction of the EEOC document was reinforced by

38 Sclafani’s improper, unprompted, and incorrect statement on

39 the witness stand that Muktadir’s EEOC Charge “was found

40 baseless.” Trial Tr. 251. The district court immediately

 The EEOC determination stated that: “Based upon its 2

investigation, the EEOC is unable to conclude that the

information obtained establishes violations of the statutes.

This does not certify that the respondent is in compliance

with the statutes.” App. of Pl.-Appellant 45. 

3
1 reprimanded Sclafani, and informed the jury that “[i]t

2 wasn’t found baseless”; that “it’s not the case”; and that

3 they should “ignore” Sclafani’s comment. Id. Absent

4 evidence to the contrary, we presume the jury followed the

5 district court’s instruction, see United States v. Esso, 684

6 F.3d 347, 352 (2d Cir. 2012), so the comment did not affect

7 Muktadir’s substantial rights. 

8

9 3. The district judge’s initial greeting to the

10 impaneled jury on September 8, 2014, briefly referenced the

11 events of September 11, 2001. Muktadir contends that this

12 evidenced bias against Muslims and prejudiced the jury

13 against Muktadir. Although it may have been prudent to

14 avoid mention of the terrorist attack a few days before the

15 anniversary, we do not agree that the remarks evidenced bias

16 or prejudiced the jury. The judge mentioned the attack as

17 an event that, in his observation, instilled a sense of

18 citizenship in potential jurors and pride about the

19 responsibility of jury service, and he emphasized the

20 importance of diversity and inclusion. The remarks did not

21 bespeak bias against Muslims or any other group.

22 

23 4. Muktadir also cites a brief colloquy during

24 Sclafani’s testimony. Sclafani spontaneously proposed that

25 Judge Block “come to Bevacco after all this”; the judge

26 responded he was “not going to do that. Maybe the

27 jurors. . . . You may have some customers here in the

28 future.” Trial Tr. 247. A review of the trial transcript

29 evidences no reason to believe that this “single jovial

30 exchange . . . distract[ed] the jury from Muktadir’s

31 discrimination and retaliation claims or und[id] the Court’s

32 standard instruction that nothing it says during trial is

33 intended to convey any opinion about the merits of those

34 claims.” Muktadir, 2015 WL 1182128, at *3; see United

35 States v. Salameh, 152 F.3d 88, 128 (2d Cir. 1998)

36 (“Reversal for judicial bias is appropriate only where an

37 examination of the entire record demonstrates that ‘the

38 jurors have been impressed with the trial judge’s partiality

39 to one side to the point that this became a factor in the

40 determination of the jury.’” (quoting United States v.

41 Valenti, 60 F.3d 941, 946 (2d Cir. 1995))).

42 

43 5. Finally, Muktadir challenges the handling of the

44 dismissal of Juror #2. There was a ten-minute break after

45 the close of the defense case and before summations. Upon

46 returning to the courtroom after this break, the district

47 judge informed the parties that a juror had likely overheard

4
1 the judge in the hallway characterize the case to a

2 colleague as a “little stupid trial” or “stupid little

3 trial.” Trial Tr. 301-02. Muktadir’s counsel requested

4 that the court dismiss the juror, and Juror #2 was dismissed

5 over defendants’ objection. Before dismissal, Judge Block

6 questioned Juror #2; the juror stated that he had heard the

7 comment and confirmed that he had not mentioned it to the

8 others. The juror was permitted to sit during summations

9 and then excused; he did not deliberate.

10

11 Muktadir objects that Juror #2 was not excused

12 immediately, and was allowed to return to the jury room,

13 collect his things, and sit for summations; he speculates

14 that the juror may have, subsequent to this questioning,

15 revealed the judge’s remarks to the rest of the panel. As 3

16 an initial matter, Muktadir’s counsel did not object

17 contemporaneously to the juror’s being permitted to briefly

18 return to the jury room and sit for summations. Moreover,

19 Juror #2 was sufficiently warned against repeating the

20 judge’s comments to the rest of the jury. The circumstances

21 support the finding that the judge’s comment did not reach

22 the jury that deliberated. Trial Tr. 303-04, 360-61; see

4

23 Muktadir, 2015 WL 1182128, at *2. 

24

25 For the foregoing reasons, and finding no merit in

26 Muktadir’s other arguments, we hereby AFFIRM the judgment of

27 the district court.

 The district court suggested that Juror #2 would be 3

permitted to stay for summations so that the rest of the

panel would not “think there is anything wrong.” Trial Tr.

304.

 Muktadir argues that the test set forth in Manley v. 4

AmBase Corp., 337 F.3d 237, 252 (2d Cir. 2003), should have

been applied to determine whether the judge’s comment

resulted in juror prejudice. However, Manley governs an

analysis of prejudice when extra-record information

does reach deliberating jurors. See id. (when a

deliberating juror has been exposed to outside influence,

the court should apply an objective test to determine

whether that influence prejudiced deliberations, focusing

on: “(1) ‘the nature’ of the information or contact at

issue, and (2) ‘its probable effect on a hypothetical

average jury’” (quoting United States v. Schwarz, 283 F.3d

76, 99 (2d Cir. 2002))).

5
1 FOR THE COURT:

2 CATHERINE O’HAGAN WOLFE, CLERK

3 By:

4

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