MLB, Latino Umpire Probed by 2d Cir. About Minority Promotions

Ángel Hernández’s bid to revive his discrimination lawsuit challenging the Major League Baseball’s promotion process may hinge on whether he can rely on historical evidence of a lack of crew chiefs in the league’s umpire ranks, judging from questions by Second Circuit judges Thursday.

At issue is whether the small pool of active MLB umpires and the even smaller pool of available crew chief positions left Hernández incapable of proving bias based on his race, color, or national origin.

The three-judge panel focused on whether a lower court’s rejection of the Cuban-born umpire’s intentional discrimination claim undercuts his claim based on the biased effects of Joe Torre’s promotion practices during the years he served as the league’s chief baseball officer. Whether an employer’s vesting sole authority in a non-minority decision-maker—like Torre—can support a bias claim without proof of discriminatory intent was on the judges’ minds as well.

The US District Court for the Southern District of New York decided in March 2021 that the veteran umpire lacked evidence worthy of review by a jury, because he didn’t produce statistically significant proof that the MLB’s promotion practices caused a disparity that adversely affected minority umpires.

‘Recipe for Discrimination’

Torre relied on subjective factors that he believed should determine who was promoted, Hernández’s attorney Nicholas R. Gregg told the US Court of Appeals for the Second Circuit. He did so despite the MLB having a list of objective factors to be considered.

The US Supreme Court has stated that placing in the hands of a non-minority the unchecked power to apply subjective views when making employment decisions can be a recipe for discrimination, Gregg said.

Gregg pushed back on the judges’ asking if the lower court’s rejection of Hernández’s separate intentional bias claim was fatal to his disparate impact bias claim. The lower court ruled that that the league presented legitimate performance-based reasons for regularly passing over Hernández for a permanent crew chief post between 2011 and 2017, one of the judges said.

Disparate treatment claims have different requirements than disparate impact claims, Gregg said. He is with Murphy Landen Jones PLLC.

According to Hernández, the MLB in its 150-year history had just one permanent crew chief who was a minority before he sued.

That doesn’t matter because Hernández alleged in his suit and later testified that Torre harbored a personal animus toward him stemming from his days managing the New York Yankees, the MLB’s attorney Neil H. Abramson told the judges. Hernández also admitted that he wasn’t aware of any evidence that a protected trait like race played a role in Torre’s decision-making, Abramson said.

There is no legal authority for the idea that vesting decision-making power in one employee supports a disparate impact claim just because the employee isn’t a minority, Abramson said. Such claims are established with statistical evidence, and the expert evidence showed that the the decision’s Torre made in choosing crew chiefs were statistically likely, he said. Abramson is with Proskauer Rose LLP.

Hernández doesn’t get to ignore the need for statistical proof just because the sample size was small, Abramson said. There is a test specifically designed for such situations and the league’s expert used that test, he said.

The panel reviewing the case is Judges Rosemary S. Pooler, Susan L. Carney, and Steven J. Menashi.

Peckar & Abramson PC also represents Hernández.

The case is Hernández v. Office of Comm’r of Baseball, 2d Cir., No. 22-00343, oral argument 6/8/23.