#### Christopher BARRELLA, Plaintiff-Appellant, v. VILLAGE OF FREEPORT and Andrew Hardwick, Defendants-Appellees.*

17-446-cv

United States Court of Appeals, Second Circuit.

March 13, 2018

*79FOR PLAINTIFF-APPELLANT: PAUL P. ROONEY, Amanda M. Fugazy, Ellenoff Grossman & Schole LLP, New York, NY.

FOR DEFENDANT-APPELLEE KEITH M. CORBETT, Harris Beach PLLC, VILLAGE OF FREEPORT: Un-iondale, New York

FOR DEFENDANT-APPELLEE KENNETH A. NOVIKOFF, Rivkin Ra-dler LLP ANDREW HARDWICK: Un-iondale, New York

PRESENT: José A. Cabranes, Reena Raggi, Circuit Judges, Lawrence J. Vilardo, District Judge.*

*

 The Clerk of Court is ordered to amend the caption of this case as shown herein.

*

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

SUMMARY ORDER

Plaintiff-Appellant Christopher Barrella (“Barrella”) appeals from a final judgment of the District Court, following a trial in which the jury found for Defendants-Ap-pellees Village of Freeport (“the Village”) and Andrew Hardwick (“Hardwick”). Bar-rella 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,*48 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 Hard-wick to question Barrella about a 1994 class action race discrimination lawsuit he joined; (2) it excluded evidence of Hard-wick’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 plaintiffs 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 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 *80record 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 evi-dentiary 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.

1

. For a recitation of the background in this case, see *Village of Freeport v. Barrella,*814 F.3d 594 (2d Cir. 2016).