Smith v. New York City Department of Education , 524 F. App'x 730 ( 2013 )

12-1004-cv
Smith v. N.Y.C. Dep't of Educ.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 2nd day of May, two thousand thirteen.
PRESENT: AMALYA L. KEARSE,
JOHN M. WALKER, JR.,
DENNY CHIN,
Circuit Judges.
- - - - - - - - - - - - - - - - - - - - -x
DANIEL SMITH,
Plaintiff-Appellant,
-v.- 12-1004-cv
NEW YORK CITY DEPARTMENT OF EDUCATION, ED
GARDELLA, CRAIG SHAPIRO, GERALDINE
AMBROSIO, PATRICIA SQUIRE,
Defendants-Appellees.
- - - - - - - - - - - - - - - - - - - - -x
FOR PLAINTIFF-APPELLANT: Daniel Smith, pro se, Suffern, New
York.
FOR DEFENDANTS-APPELLEES: Pamela Seider Dolgow, Dona B.
Morris, Christopher A. Seacord,
for Michael A. Cardozo,
Corporation Counsel of the City of
New York, New York, New York.
Appeal from the United States District Court for the
Southern District of New York (Cote, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment and orders of the
district court are AFFIRMED.
Plaintiff-appellant Daniel Smith, proceeding pro se,
appeals the district court's October 28, 2011 judgment and
October 28, 2011 opinion and order granting defendants-
appellees' motion for summary judgment dismissing his complaint
and denying him leave to amend, as well as the district court's
February 6, 2012 memorandum opinion and order denying his motion
for reconsideration.1 Smith has also filed a motion to withdraw
his appeal without prejudice. Smith alleged that defendants
retaliated against him, in violation of the First Amendment,
after he complained about funding disparities between girls' and
boys' sports programs and other forms of discrimination at
DeWitt Clinton High School. We assume the parties' familiarity
1
Smith's appellate brief does not challenge the
district court's dismissal of his claims under Title IX of the
Education Amendments of 1972, the New York State Human Rights
Law, and the New York City Human Rights Law. Accordingly, we
deem those claims abandoned.
- 2 -
with the underlying facts, the procedural history, and the
issues on appeal.
1. Motion for Summary Judgment
We review de novo a district court's award of summary
judgment, construing the evidence and drawing all reasonable
inferences in favor of the non-moving party. See Garcia v.
Harford Police Dep't, 706 F.3d 120, 126 (2d Cir. 2013) (per
curiam). Summary judgment is appropriate only "if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(a).
Upon de novo review of the record, we affirm the
district court's award of summary judgment for substantially the
reasons stated in the district court's October 28, 2011 opinion
and order.
Smith's claims of First Amendment retaliation arising
out of acts occurring prior to November 6, 2006 are barred by
the three-year statute of limitations.2 See Pearl v. City of
Long Beach, 296 F.3d 76, 79 (2d Cir. 2002) (three-year statute
of limitations applies to claims arising in New York under 42
U.S.C. § 1983). Smith's reliance on the continuing violation
doctrine to avoid dismissal of these claims is misplaced, as
2
Smith filed his complaint on November 6, 2009.
- 3 -
each of the allegedly retaliatory events was a discrete action,
not an "ongoing policy" of retaliation. See Harris v. City of
New York, 186 F.3d 243, 250 (2d Cir. 1999); see also Nat'l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002) ("Discrete
acts such as termination, failure to promote, denial of
transfer, or refusal to hire are easy to identify. Each
incident of discrimination and each retaliatory adverse
employment decision constitutes a separate actionable 'unlawful
employment practice.'").
Further, Smith's claim that defendants retaliated
against him in 2007 by referring him for disciplinary
proceedings also fails. To survive summary judgment on a First
Amendment retaliation claim, a plaintiff must demonstrate that:
(1) he engaged in protected First Amendment activity; (2) he
suffered an adverse employment action; and (3) there was a
causal connection "sufficient to warrant the inference that the
protected speech was a substantial motivating factor in the
adverse employment action." Cotarelo v. Vill. of Sleepy Hollow
Police Dep't, 460 F.3d 247, 251 (2d Cir. 2006) (citation and
internal quotation marks omitted). "[E]ven if there is evidence
that the adverse employment action was motivated in part by
protected speech, the government can avoid liability if it can
show that it would have taken the same adverse action in the
- 4 -
absence of the protected speech." Anemone v. Metro. Transp.
Auth., 629 F.3d 97, 114 (2d Cir. 2011) (citation and internal
quotation marks omitted).
As the district court properly concluded, even
assuming Smith's complaints about funding disparities in girls'
and boys' sports programs and his interviews with the Daily News
in April 2007 and April 2008 constituted protected speech, Smith
did not demonstrate the requisite causal connection between that
protected speech and the disciplinary proceedings. The record
shows that the events leading to the disciplinary hearings
occurred in March 2007, and the district court noted that
defendants had referred those matters to the disciplinary body
"promptly," a characterization that Smith does not dispute. The
first publication of Smith's statements in the first Daily News
article did not occur until April 2007.
Moreover, even if Smith could establish that his
protected speech preceded the initiation of disciplinary
proceedings against him, defendants were still entitled to
summary judgment because they demonstrated that they would have
initiated disciplinary proceedings even if Smith had not engaged
in the protected speech. See Anemone, 629 F.3d at 114. Smith
does not dispute that a student alleged that he made
inappropriate sexual comments to her or that discrepancies were
- 5 -
discovered in his time records. Accordingly, we conclude that,
on this record, a reasonable jury could find only that
defendants would have initiated disciplinary proceedings against
Smith even if he had not engaged in any protected activity.
2. Application to File Amended Complaint
Smith argues that the district court erred by denying
his application to amend his complaint to include additional
causes of action based on allegedly wrongful acts taken after
the original complaint was filed.
We review for abuse of discretion a district court's
denial of leave to amend. See Presbyterian Church of Sudan v.
Talisman Energy, Inc., 582 F.3d 244, 267 (2d Cir. 2009). A
district court "does not abuse its discretion in denying leave
to amend the pleadings where the moving party has failed to
establish good cause, as required by Rule 16(b), to amend the
pleadings after the deadline set in the scheduling order."
Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 243 (2d
Cir. 2007); see also Fed. R. Civ. P. 16(b)(3)(A), (4).
Here, the record indicates that Smith first sought to
amend his complaint on May 31, 2011 -- six months after the
November 5, 2010 deadline for amended pleadings, one month after
the April 22, 2011 deadline for fact discovery, and two weeks
after defendants filed their motion for summary judgment. Smith
- 6 -
failed to establish good cause for the delay. Accordingly, we
discern no abuse of discretion in the district court's denial of
Smith's application for leave to amend.
3. Motion for Reconsideration
Finally, Smith argues that the district court erred by
denying his motion for reconsideration because it misunderstood
the facts and evidence presented. We review for abuse of
discretion a district court's denial of a motion for
reconsideration. See Johnson ex rel. United States v. Univ. of
Rochester Med. Ctr., 642 F.3d 121, 125 (2d Cir. 2011). A
district court abuses it discretion when its decision (1) "rests
on an error of law or a clearly erroneous factual finding"; or
(2) "cannot be found within the range of permissible decisions."
Id.A motion for reconsideration is not the appropriate
mechanism for a party to relitigate an issue already decided or
to advance new facts, issues, or arguments not previously
presented to the court. See Nat'l Union Fire Ins. Co. v. Stroh
Cos., 265 F.3d 97, 115 (2d Cir. 2001); Shrader v. CSX Transp.,
Inc., 70 F.3d 255, 257 (2d Cir. 1995). To warrant
reconsideration, a party must "point to controlling decisions or
data that the court overlooked -- matters, in other words, that
- 7 -
might reasonably be expected to alter the conclusion reached by
the court." Shrader, 70 F.3d at 257.
Here, Smith's motion for reconsideration failed to
identify any legal or factual material that the court
overlooked. Instead, he simply rehashed his prior arguments
that had been considered by the court, speculating that if his
former counsel would turn over certain unspecified files to him,
he would find evidence to support a causal relationship between
his protected activity and the disciplinary proceedings brought
against him. Smith also sought to supplement the record, which
is inappropriate on a motion for reconsideration. Therefore, we
conclude that the district court did not abuse its discretion by
denying Smith's motion for reconsideration.
We have considered Smith's remaining arguments and
conclude they are without merit. Accordingly, we AFFIRM the
judgment and orders of the district court. Further, Smith's
motion to withdraw his appeal without prejudice is DENIED.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
- 8 -