NEW YORK (AP) — A federal appellate court panel expressed skepticism Thursday of umpire Ángel Hernández's attempt to reinstate his race discrimination lawsuit against Major League Baseball.
The Cuba-born Hernández, hired as a big league umpire in 1993, sued in 2017. He alleged he was discriminated against because he had not been assigned to the World Series since 2005 and had been passed over for crew chief.
U.S. District Judge J. Paul Oetken in 2021 granted MLB's motion for a summary judgment, and Hernández last year asked the 2nd U.S. Circuit Court of Appeals to reinstate the case.
Hernández, 61, has been sidelined by a back injury and has not worked on the field since San Francisco's game at the Chicago White Sox on April 3, his only game this season.
Hernández claimed then-MLB executive Joe Torre, who made key decisions over umpires, held animosity toward Hernández dating to Torre’s time as New York Yankees manager. The umpire's lawyer, Nicholas R. Gregg, said MLB should not have given Torre 100% authority to make crew chief decisions.
“Take the decision out of his hands,” Gregg said during a 40-minute hearing. “You have a whole umpire department that’s full of umpire supervisors, observers. You have various umpire executives. Make it a collective decision.”
Thirty minutes of the session were devoted to the three-judge panel questioning Gregg.
Senior Circuit Judge Susan L. Carney posed the question: "If there were a person who was a minority making the decision, it would be all right to vest the authority in that single individual in your view?”
“The case law states that when the sole authority is vested in a non-minority, that that can be the basis of the disparate impact claim,” Gregg said.
“Allowing white people to make employment decisions is an unlawful employment practice?” Circuit Judge Steven Menashi asked.
“No, of course not,” Gregg replied. “It’s vesting sole authority in a non-minority individual and then it’s not using any objective criteria. It’s letting this non-minority exercise his subjective discretion alone.”
Menashi listed factors Torre testified to, including strike zone accuracy, missed calls, leadership and enforcing required procedures.
“Those are objective criteria,” Menashi told Gregg. “You just don’t trust that he’s faithfully applying them.”
“Hustle is one of the factors," Senior Circuit Judge Rosemary S. Pooler added. “I always wanted a job where you got paid for hustle.”
“If we don’t overturn that there were legitimate nondiscriminatory reasons here, doesn’t it mean that your client was not harmed by the practice because he was not denied the promotion because of the practice, he was denied the promotion because of the specific reasons the court found were legitimate and nondiscriminatory?” Menashi said.
Addressing MLB lawyer Neil H. Abramson, Pooler said: "The real problem is that there were so few minority umpires: 7%. How come?”
“We take the umpires who are minor league umpires, and we do not do the hiring for the minor leagues,” Abramson responded.
“Do you think that Major League Baseball is not hiring minority umpires out of prejudice?” Menashi asked Gregg. “Or are you’re just saying. It just so happens there aren’t enough in the pool, therefore, we should look at statistics and they should promote whichever ones they have in the pool?”
Pooler was troubled by comments of Randy Marsh in a May 2019 deposition. A former umpire who was director of major league umpires from 2011-19, Marsh said African-Americans had been sent brochures to get them to attend umpire schools but didn't want to start in the minors. “The problem is, yeah, they want the job, but they want to be in the big leagues tomorrow, and they don’t want to go through all of that,” Marsh said.
“It certainly shows a discriminatory view of the of Black candidates,” Pooler said.
“There are references to comments made in African-American umpires' evaluations that also have racial implications that are under seal,” Gregg said, saying Oetken made the sealing decision because the documents involved non-party job performance evaluations.
Hernández served as an interim crew chief from 2011-16.
Kerwin Danley became the first Black crew chief in 2020 and Alfonso Marquez became the first Hispanic crew chief born outside the United States. Richie Garcia, who was born in Florida, was the first Hispanic crew chief from 1985-89.
Hernández has been at times controversial on the field. He had three calls at first base overturned in video reviews during Game 3 of the 2018 AL Division Series between the New York Yankees and Boston.
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