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20-1245

Perez v. County of Rensselaer

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 TO 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 

27th day of May, two thousand twenty-one.

Present:

DEBRA ANN LIVINGSTON,

Chief Judge,

ROBERT D. SACK,

DENNY CHIN,

Circuit Judges.

_____________________________________

NELLIE A. PEREZ, as Administrator of the Estate of

GERARD WIERZBICKI,

Plaintiff-Appellee,

v. 20-1245

COUNTY OF RENSSELAER, NEW YORK, AND LAURA BAUER, 

in her individual and official capacity as Director of 

Probation of Rensselaer County,

Defendants-Appellants.

*

_____________________________________

For Defendants-Appellants: THOMAS J. O’CONNOR (Shawn F. Brousseau, on the 

brief), Napierski, Vandenburgh, Napierski, & 

O’Connor, LLP, Albany, NY.

* The Clerk of Court is respectfully directed to amend the official caption as set forth above. 
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For Plaintiff-Appellee: A.J. BOSMAN, Bosman Law Firm, LLC, Blossvale, NY; 

Stephen Bergstein, Bergstein & Ullrich, New Paltz, 

NY.

Appeal from a judgment of the United States District Court for the Northern District of 

New York (Hurd, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is AFFIRMED.

Defendants-Appellants, the County of Rensselaer, New York and Laura Bauer, Director of 

Probation of Rensselaer County (collectively, the “Defendants”) appeal from a March 9, 2020 

order of the district court denying Defendants’ motion to (1) enter judgment as a matter of law 

under Rule 50(b); (2) enter judgment in accordance with the jury’s specific answers on the verdict 

form under Federal Rule of Civil Procedure 49(b)(3)(A) and Rule 58; (3) alter or amend the 

judgment under Rule 59(e); or, (4) grant a new trial pursuant to Federal Rules of Civil Procedure 

49(b)(3)(c), 50(b)(2), and 59(a). Defendants pursued this post-verdict motion following a jury 

trial and judgment in favor of Plaintiff Nellie A. Perez, as Administrator of the Estate of Gerard 

Wierzbicki, on a claim of gender discrimination under Title VII of the Civil Rights Act of 1964, 

42 U.S.C. § 2000e-2(a) (“Title VII”).1

 We assume the parties’ familiarity with the underlying 

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

i. Rule 50(b) 

Defendants appeal the district court's denial of their request for judgment as a matter of law 

(“JMOL”) in accordance with Rule 50(b). We review a district court’s denial of a Rule 50(b) 

1 Gerard Wierzbicki’s wife, Nellie A. Perez, substituted for Wierzbicki as plaintiff after Wierzbicki 

passed away during the pendency of this litigation. 
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motion de novo. MacDermid Printing Sols. LLC v. Cortron Corp., 833 F.3d 172, 180 (2d Cir. 

2016). 

A defendant “may file a renewed motion for judgment as a matter of law” “no later than 

28 days after the jury was discharged,” if the defendant moved for JMOL “before the case [was] 

submitted to the jury” pursuant to Rule 50(a). Fed. R. Civ. P. 50(a)(2), (b). On review of the 

record, we find that Defendants did not properly move for JMOL under Rule 50(a), which requires 

a defendant to “specify the judgment sought and the law and facts that entitle the movant to the 

judgment.” Fed. R. Civ. P. 50(a)(2). To the extent that Defendants purported to request a 

directed verdict pursuant to Rule 50(a), Defendants failed to articulate any supporting law or facts 

before the district court. 

Even if Defendants’ Rule 50(a) motion were properly raised, Defendants’ Rule 50(b) 

motion does not challenge the sufficiency of the evidence at trial; instead, Defendants appear to 

assert that the court should grant judgment as a matter of law because the jury’s answers on the 

verdict sheet were inconsistent. To the extent Defendants raised a Rule 50(a) motion in the 

district court, it did not do so on this basis (nor could it, as a Rule 50(a) motion must be raised 

before the case is submitted to the jury). Because “a district court may only order a new trial on 

the basis of issues raised in a preverdict Rule 50(a) motion when ruling on a renewed motion under 

Rule 50(b),” Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 405 (2006) (internal 

quotation marks omitted), we discern no error in the district court’s denial of Defendant’s Rule 

50(b) motion. 

ii. Rule 49(b)(3) 

Defendants also appeal the district court's denial of their motion to enter judgment in 

accordance with the verdict form or, in the alternative, to grant a new trial pursuant to Rule 
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49(b)(3). Rule 49(b)(3) permits a court to take either of these actions, or to “direct the jury to 

further consider its answers and verdict,” “[w]hen the answers [on a verdict form] are consistent 

with each other but one or more is inconsistent with the general verdict.” Fed. R. Civ. P. 49(b)(3). 

Defendants assert that such an inconsistency occurred here.2

 

Defendants waived their Rule 49(b) motion, however, by “fail[ing] to make known its 

complaint before the jury was discharged.” Lavoie v. Pac. Press & Shear Co., a Div. of Canron 

Corp., 975 F.2d 48, 55 (2d Cir. 1992). We have explained that this “timely objection requirement 

[for Rule 49(b) motions] is ‘not merely a technicality,’” but rather “serves ‘to give the court and 

the opposing party the opportunity to correct an error in the conduct of the trial.’” Anderson Grp., 

LLC v. City of Saratoga Springs, 805 F.3d 34, 46 (2d Cir. 2015) (quoting Kosmynka v. Polaris 

Indus., Inc., 462 F.3d 74, 83 (2d Cir. 2006)). Because “counsel fail[ed] to seize the opportunity 

to raise an appropriate objection” before the jury was discharged, id. at 47 (quoting U.S. Football 

League v. Nat’l Football League, 842 F.2d 1335, 1367 (2d Cir. 1988)), we decline to further 

consider Defendants’ Rule 49(b)(3) objection now. 

iii. Rule 59

Ultimately, the Defendants’ challenge to the inconsistency of the verdict form is, in fact, a 

challenge to the phrasing of the verdict form itself. A plaintiff is not entitled to a compensatory 

2 In particular, the verdict form asked the jurors two questions regarding Wierzbicki’s Title VII gender 

discrimination claim. First, the form asked: “Did Nellie Perez prove by a preponderance of the evidence 

that Gerard Wierzbicki’s gender was a motivating factor in one or more of Defendant the County of 

Rensselaer’s decisions not to promote him to the Senior Probation Officer position or the Probation 

Supervisor position?” App’x 540. If the jurors answered “yes,” they were instructed to proceed to 

Question 2, which asked: “Did the County of Rensselaer nevertheless prove by a preponderance of the 

evidence that even if Mr. Wierzbicki’s gender was a motivating factor in any of its decisions not to promote 

him, that it nevertheless would have made the same decision even absent gender discrimination?” Id. 

Despite answering “yes” to Questions 1 and 2, the jury proceeded to award compensatory damages on 

Wierzbicki’s Title VII claim in the amount of $130,000. Defendants allege that the award of damages 

was inconsistent with the jury’s affirmative response to Question 2.
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damage award under Title VII if the defendant succeeds on a mixed-motive defense, meaning that 

the defendant proves by a preponderance of the evidence that it “would have taken the same action 

in the absence of the impermissible motivating factor.” 42 U.S.C. § 2000e-5(g)(2)(B). The 

verdict form asked jurors in Question 1 whether Perez had proven that gender was a motivating 

factor in any of the County’s promotion decisions regarding Mr. Wierzbicki, and in Question 2 

whether the County had nonetheless “prove[n] by a preponderance of the evidence that even if Mr. 

Wierzbicki’s gender was a motivating factor in any of its decisions not to promote him, that it 

nevertheless would have made the same decision even absent gender discrimination.” App’x 

540. Under the “Damages” section of the verdict form, the jury was instructed to award damages 

“if, and only if, you answered YES to Question 1 . . . .” App’x 542. The “Damages” section 

omitted any reference to Question 2. 

A “court may, on [a Rule 59] motion, grant a new trial on all or some of the issues . . . after 

a jury trial,” Fed. R. Civ. P. 50(a)(1), if “verdict sheet errors deprived both defendant and plaintiff 

of a fair trial,” Armstrong ex rel. Armstrong v. Brookdale Univ. Hosp. and Med. Ctr., 425 F.3d 

126, 130 (2d Cir. 2005). A challenge to the content of the verdict sheet, however, “must be raised 

before the jury retires to deliberate.” Anderson Grp. LLC, 805 F.3d at 49. Because Defendants 

also did not timely object to the verdict sheet, this Court will only overlook Defendants’ waiver of 

this objection upon a finding of “fundamental error.” See Jarvis v. Ford Motor Co., 283 F.3d 33, 

62 (2d Cir. 2002).

This high standard of review dictates the outcome of this case. “Fundamental error is 

more egregious than the ‘plain’ error that can excuse a procedural default in a criminal trial and is 

‘so serious and flagrant that it goes to the very integrity of the trial.’” Id. (internal citation 

omitted) (quoting Shade v. Housing Auth. of New Haven, 251 F.3d 307, 313 (2d Cir. 2001)); see 
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also Fabri v. United Techs. Int’l, Inc., 387 F.3d 109, 121 (2d Cir. 2004). The fundamental error 

standard thus requires us to tolerate inconsistences in a verdict caused by errors on a verdict form 

unless they are particularly “egregious.” Shade, 251 F.3d at 313. 

No such error occurred in this case. First, “a jury verdict will be reversed only when an 

appellant can show that the instructions as a whole prejudiced it.” SCS Commc’ns, Inc. v. Herrick 

Co., Inc., 360 F.3d 329, 343 (2d Cir. 2004) (quoting Medforms, Inc. v. Healthcare Mgmt. Sols., 

Inc., 290 F.3d 98, 115 (2d Cir. 2002)). Here, the judge’s instructions to the jury, separate from 

the verdict form itself, correctly informed the jury that “Ms. Perez [was] not entitled to damages 

for any decision not to promote Mr. Wierzbicki for which the County of Rensselaer ha[d] proven 

by a preponderance of the evidence that it would have made the same decision even if 

discrimination based on gender had not been a motivating factor.” App’x 530. The jury 

therefore did not lack guidance on when it could appropriately award compensatory damages. Cf.

Rodick v. City of Schenectady, 1 F.3d 1341, 1348 (2d Cir. 1993) (“Without instruction on these 

important rules of damage calculation, the verdict form was an invitation to the jury to come up 

with an erroneous damage calculation.”). Nor did the verdict form wholly contradict the court’s 

instructions. Indeed, the verdict form’s instruction to “state the amount of compensatory 

damages” “[i]f, and only if, [the jury] answered YES to Question 1,” did not explicitly preclude 

the jury from factoring their response to Question 2 into the damage consideration. Cf. 

Armstrong ex rel. Armstrong, 425 F.3d at 136 (noting that an error on a verdict form turned what 

should have been a “prohibition” on recovery into a “prerequisite to recovery”). 

Second, in determining fundamental error, the Court should strive to adopt “a view of the 

case that makes the jury’s answers to special interrogatories consistent.” SCS Commc’ns, Inc., 

360 F.3d at 343 (quoting Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Inc., 369 U.S. 355, 
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364 (1962)). For reasons set forth by the district court in its February 2020 and March 2020 

memoranda, the jury’s award of compensatory damages in this case may have indicated that the 

jury acted on a different reading of Question 2 than the Defendants propose. Specifically, the 

jury may have interpreted Question 2 of the verdict form as asking whether the County had proven 

a mixed-motive defense in “any of its decisions not to promote” Wierzbicki. App’x 540. In 

answering “yes,” the jury may have found that Defendants successfully established a mixedmotive defense on one or more of its promotion decisions, but not all of its promotion decisions 

for which gender was a motivating factor. For these latter decisions, damages would still be 

appropriate. 

Finally, we decline to find fundamental error where, in addition to the facts above, the 

Defendants repeatedly failed to timely object to the verdict form or the inconsistency of the verdict. 

Defendants can hardly object to the “integrity of the trial,” when the jury “faithfully followed [the] 

. . . verdict form” to which Defendants did not lodge a relevant objection, Shade, 251 F.3d at 313,

and when the district court otherwise properly instructed the jury of the relevant law. 

* * *

We have considered Defendants’ remaining arguments and find them to be without merit. 

Accordingly, we AFFIRM the judgment of the district court. 

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk