Augustina BALU, Plaintiff-Appellant, v. CITY OF NEW YORK, Denis McAuliffe, individually and in his official capacity as an employee of the New York City of Department of Police, Defendants-Appellees, 679 F. App'x 84

SUMMARY ORDER Augustina Balu appeals from the March 8, 2016 judgment of the United States District Court for the Southern District of New York (Failla, J.) incorporating the district court’s prior decisions denying her motions to retry her Title VII retaliation claim, to amend the joint pretrial order, and to admit medical evidence. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review. We review the district court’s denial of a motion for mistrial for abuse of discretion. United States v. Canova, 412 F.3d 381, 348 (2d Cir. 2005).

On appeal, Balu argues that defense counsel’s statement during opening argument improperly referenced the results of an internal investigation by the New York Police Department’s Office of Equal Employment Opportunity that concluded Balu’s claims of sexual harassment were unsubstantiated. Balu argues this reference was highly prejudicial, such that the district court erred in not ordering a mistrial. The district court acted well within its discretion in declining to declare a mistrial.

It was a single statement made during opening and the distinct court immediately issued a curative instruction reminding the jury that statements by attorneys were not evidence. Balu’s counsel declined the district court’s offer to issue a second curative instruction before the jury began deliberating, acknowledging the issue was likely not fresh in the jurors’ minds by the end of trial. We also find no error in the district court’s jury instructions regarding Balu’s retaliation claim.

We review de novo challenges to jury instructions in civil cases, “and will grant a new trial if we find an error that is not harmless.” Rasanen v. Doe, 723 F.3d 325, 331 (2d Cir. 2013) (citation omitted). However, if the challenging party failed to object to the charge at trial, we review for “plain error.” Id. at 332 & n. 2. Balu failed to object to the charge at trial. Balu now argues that the district court failed to instruct the jury as to the burden shifting and rebuttable presumptions on her retaliation claims. However, in Gordon v.

New York City Board of Education, our Court noted that including such language in jury instructions is unwise, “because such language—developed by appellate courts for use by judges—is at best irrelevant, and at worst misleading to a jury.” 232 F.3d 111, 118 (2d Cir. 2000) (internal quotations, brackets and ellipses omitted). “In an employment discrimination or retaliation case, the job of the jury is simply to decide whether an impermissible factor was a motivating factor in the adverse employment action.

The jury therefore does not need to be lectured on the concepts that guide a judge in determining whether a case should go to the jury.” Id. The district court did not err by not explicitly referencing the burden shifting or rebuttable presumptions in its jury instructions. We have considered .the remainder of Balu’s arguments and find them to be without merit. Accordingly, the order of the district court hereby is AFFIRMED. . Balu’s appellate counsel misconstrues a number of the facts in his brief.

For example, he argues that the district court elected to issue curative instructions "[o]ver Plaintiff’s counsel’s objection” when the record shows that Balu’s trial counsel in fact asked the court not to issue a curative instructions. See Appellant’s Br. at 5, but of App’x at 5S6. Counsel also argues that the district court failed to allow in findings by the Pension Board regarding Balu’s disability. See Appellant’s Br. at 21-23. However, the record show s that Balu’s trial counsel specifically asked for the contrary—that the district court require her pension proceedings not be mentioned at trial.

See App’x at 83.