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.
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DANIEL SMITH,
                       Plaintiff-Appellant,

                       -v.-                                  12-1004-cv

NEW YORK CITY DEPARTMENT OF EDUCATION, ED
GARDELLA, CRAIG SHAPIRO, GERALDINE
AMBROSIO, PATRICIA SQUIRE,
                   Defendants-Appellees.

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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.
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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, 

, 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, 

, 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.
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each of the allegedly retaliatory events was a discrete action,

not an "ongoing policy" of retaliation.     See Harris v. City of

New York, 

, 250 (2d Cir. 1999); see also Nat'l R.R.

Passenger Corp. v. Morgan, 

, 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, 

, 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
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absence of the protected speech."      Anemone v. Metro. Transp.

Auth., 

, 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 

.    Smith

does not dispute that a student alleged that he made

inappropriate sexual comments to her or that discrepancies were
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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., 

, 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., 

, 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
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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., 

, 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."

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., 

, 115 (2d Cir. 2001); Shrader v. CSX Transp.,

Inc., 

, 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



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might reasonably be expected to alter the conclusion reached by

the court."    

.

         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




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