Zarda v. Altitude Express, No. 15-3775 (2d Cir. 2017)Annotate this Case
Plaintiff, a skydiver, filed suit against his former employer, Altitude Express, under Title VII of the Civil Rights Act, 42 U.S.C. 2000e et seq., and New York law, alleging that he was terminated from his position as a skydiving instructor based on his sexual orientation. The district court found a triable issue of fact as to whether plaintiff faced discrimination because of his sexual orientation in violation of New York law, but otherwise granted summary judgment for the employer. Specifically, the district court held that defendants were entitled to summary judgment on plaintiff's Title VII claim because Second Circuit precedent holds that Title VII does not protect against discrimination based on sexual orientation. A jury found for defendants on the state-law claims. The court declined plaintiff's request that it reconsider its interpretation of Title VII in order to hold that Title VII's prohibition on discrimination based on "sex" encompasses discrimination based on "sexual orientation" because a three-judge panel lacks the power to overturn Circuit precedent. See Simonton v. Runyon. The court also concluded that plaintiff's assertions that he is entitled to a new trial on his state-law, sexual-orientation discrimination claim have no merit. The court rejected plaintiff's claims of evidentiary errors and unfair discovery practices, and defense counsel did not improperly influence the jury by appealing to prejudice of homosexuals. Accordingly, the court affirmed the judgment.