Cecil BELL, Plaintiff-Appellant, v. CONSTRUCTION AND GENERAL BUILDING LABORERS' LOCAL 79, Frank Noviello, Defendants-Appellees, 510 F. App'x 39

SUMMARY ORDER UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the August 26, 2011 Memorandum Opinion and Order of the District Court denying plaintiff’s motion for a new trial is AFFIRMED. Plaintiff Cecil Bell brought this action against Construction and General Building Laborers’ Local 79 (“Local 79”) and Frank Noviello, Local 79’s then-president, alleging that defendants retaliated against him for filing complaints of racial discrimination against Local 79 with the National Labor Relations Board and the Equal Employment Opportunity Commission.

The action was tried before a jury, and after a three-day trial, the jury returned a verdict in favor of Local 79 and Noviello on January 20, 2011. The District Court entered judgment dismissing the complaint on February 7, 2011. On March 10, 2011, Bell filed a motion for a new trial pursuant to Federal Rule of Civil Procedure 59(

a) on the ground that, during the trial, the District Court excluded a recording and transcript of a taped conversation between Bell and Jack Klein, a vice president of Silverstein Development Corporation. The District Court denied Bell’s motion on August 26, 2011, and this appeal followed. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

DISCUSSION After careful review, we find it unnecessary to determine whether the District Court erred by excluding the recording of the Bell-Klein phone conversation because any such error was completely harmless. See United States v. Garcia, 413 F.3d 201, 217 (2d Cir.2005) (evidentiary ruling was harmless where it “had no substantial and injurious effect or influence on the jury verdict”) (internal quotation marks omitted). Indeed, virtually every relevant statement in the phone conversation was presented to the jury — almost verbatim— during Klein’s redirect-examination.

A simple comparison of the Bell-Klein phone call transcript and Klein’s testimony at trial reveals this fact and is fatal to Bell’s argument. In the relevant portion of the recording, Klein states: I went to your president, the president of your union and asked him to put you on your job, on, on my job. And he says, ‘Look Jack, I’m not a real big fan of this guy; he’s got issues.’ I don’t know what that means, right?

He said, ‘but he’s got issues with the union.’ And I don’t know what that means, but I went to the president of your union and I’m tellin’ ya, under normal circumstances Frankie [Noviello] would have done whatever I asked him to do. JA 112. And Klein’s redirect-examination by Bell’s counsel proceeded as follows: Q: My question to you, sir, is did you tell Mr. Bell during a conversation that you had with him that you went to the president of Mr. Bell’s union and asked the president of Mr. Bell’s union to put him on a job and Mr. Noviello told you, look, Jack, I’m not a real big fan of this guy. He’s got issues.

Did you tell that to Mr. Bell? A: I did tell that to Mr. Bell. Q: Did you also tell Mr. Bell during that conversation that you didn’t know what that meant about issues? A: Yes, I did. Q: And did you tell Mr. Bell that you went to the president of his union and that under normal circumstances, Frankie Noviello would have done what you asked for? A: Yes, I did. Id. CONCLUSION We have considered all of Bell’s arguments on appeal and find them to be without merit. Accordingly, we AFFIRM the District Court’s August 26, 2011 Memorandum Opinion and Order.