Hernandez’s lawyers made the claim in a filing Tuesday to the 2nd U.S. Circuit Court of Appeals, trying to overturn the summary judgment U.S. District Judge J. Paul Oetken granted to MLB in March 2021.
The Cuba-born Hernández was hired as a big league umpire in 1993. He sued in 2017, alleging he was discriminated against because he had not been assigned to the World Series since 2005 and had been passed over for crew chief.
Hernández served as an interim crew chief from 2011-16, at the start of the pandemic-delayed 2020 season and for part of the 2021 season but has not been made a permanent crew chief.
Citing the 2011-16 seasons, Hernández’s attorneys said in the brief to the appellate court that “MLB manipulated Mr. Hernandez’s year-end evaluations in order to make his job performance appear worse than it actually was. Mr. Hernández’s year-end evaluations for the 2011-2016 seasons do not even come close to accurately summarizing Mr. Hernández’s actual performance in those seasons.”
In an August 2020 brief responding to a similar allegation, MLB called the claim “devoid of merit.”
Hernández’s lawyers wrote “the District Court failed to follow existent precedent applicable to discrimination cases in which the pool of minority individuals eligible for promotion is too small to yield a statistically significant conclusion as to disparate impact.”
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.
Oetken wrote, “Hernández attempts to rely on the inexorable zero,’ or the notion that courts should set aside statistical analyses in circumstances where few minorities or women have been employed. While the inexorable zero may be compelling in the case of a larger employer who has hired or promoted no minority candidates, it is less compelling in the present context, where both the pool of umpires and the number of available promotions are small.”
Oetken in January denied Hernández’s motion to alter, amend or vacate his decision, leaving an appeal to the circuit court as the next step,
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.