10-1242-cv Guerra v. Jones 

## 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 TO 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 1 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on 2 the 28 thday of April, two thousand eleven. 3 4 PRESENT: 5 ROBERT D. SACK, 6 DEBRA ANN LIVINGSTON, 7 GERARD E. LYNCH, 8 Circuit Judges. 9

_____________________________________ 10 11 DOMINGO P. GUERRA, 12 13 Plaintiff-Appellant , 14 15 v. 10-1242-cv 16 17 STEPHEN C. JONES, SCSD Superintendent for 18 2004-2005 School Year, et al. , 19 20 Defendants-Appellees

. 21 22

_____________________________________ 23 24 25 FOR PLAINTIFF-APPELLANT: Domingo P. Guerra, pro se , DeWitt, New York. 26 27 FOR DEFENDANTS-APPELLEES: Miles Gerard Lawlor, Ferrara, Fiorenza, Larrison, 28 Barrett & Reitz, P.C., East Syracuse, New York. 29 Appeal from a judgment of the United States Dist rict Court for the Northern District of New 30 York (McCurn, J.). 31

### 2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 1 DECREEDthat the judgment of the district court is AFFIRMED. 2 Plaintiff-Appellant Domingo Guerra (“Guerra”), proceeding pro se , appeals from the district 3 court’s grant of summary judgment to the Defendants-Appellees (“the Defendants”) with respect 4 to his “stigma-plus” claims and his employment discrimination and retaliation claims under Title 5 VII of the Civil Rights Ac t of 1964, 42 U. S.C. § 2000e et seq. (“Title VII”), and the Age 6 Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq . We assume the 7 parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on 8 appeal. 9 This Court reviews orders granting summary judgment de novo, focusing on whether the 10 district court properly concluded that there was no genuine issue as to any material fact and that the 11 moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, LLP , 12 321 F.3d 292, 300 (2d Cir. 2003). We are required to resolve all ambiguities and draw all factual 13 inferences in favor of the non-moving party. See Nationwide Life Ins. Co. v. Bankers Leasing Ass’n , 14 182 F.3d 157, 160 (2d Cir. 1999) (citing Cronin v. Aetna Life Ins. Co. , 46 F.3d 196, 202 (2d Cir. 15 1995)). Summary judgment is appropriate “[w]here the record taken as a whole could not lead a 16 rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio 17 Corp. , 475 U.S. 574, 587 (1986). 18 After an independent review of the record and the relevant cas e law, we conclude that the 19 district court properly granted summary judgment with respect to the Title VII and ADEA claims 20 substantially for the reasons stated in its March 2010 decision. See Guerra v. Jones, No. 5:08-CV21 0028, 2010 WL 986403, at *6-*8 (N .D.N.Y. March 17, 2010). As the district court concluded, 22 dismissal of the Title VII and ADEA claims agai nst the individual Defendants was appropriate as 23

### 3 neither statute subjects individuals, even those with supervisory liability over the plaintiff, to 1 personal liability. See Tomka v. Seiler Corp. , 66 F.3d 1295, 1313 (2d Cir. 1995), abrogated on other 2 grounds by Burlington Indus., Inc. v. Ellerth , 524 U.S. 742 (1998). Moreover, we agree with the 3 district court that Guerra failed to file suit within ninety days of receiving a right-to-sue letter from 4 the EEOC regarding his retaliation claims, as required to bring suit on those claims. See42 U.S.C. 5 § 2000e-5(f)(1) (Title VII claim); 29 U.S.C. § 626(e) (ADEA claim). Further, the plaintiff failed 6 to demonstrate any extraordinary circumstances meriting application of equitable tolling with 7 respect to that limitations period. See, e.g., Boos v. Runyon , 201 F.3d 178, 185 (2d Cir. 2000). 8 In addition, we conclude that the district court did not abuse its discretion in denying 9 Guerra’s motion to amend his complaint to add the Syracuse City School District as a defendant. 10 Noting that the motion had already been denied by the magistrate judge and that the request came 11 a full sixteen months after Guerra filed his comp laint, the district court further proceeded to 12 determine that amending the complaint would be futilein light of the absence of any evidence that 13 the plaintiff’s age or race was a motivating factor in his dismissal. While leave to amend should of 14 course be freely granted and, in particular, a pro se plaintiff “should be afforded every reasonable 15 opportunity to demonstrate that he has a valid claim,” Matima v. Celli , 228 F.3d 68, 81 (2d Cir. 16 2000) (quoting Satchell v. Dilworth , 745 F.2d 781, 785 (2d Cir. 1984)), here we cannot say the 17 district court abused its discretion in denying the motion in light of the undue delay and futility of 18 the proposed amendment. See Dluhos v. Floating and Abandoned Vessel, Known as New York , 162 19 F.3d 63, 69-70 (2d Cir. 1998). 20 Guerra also asserts that the grant of summary judgment was improper because he was 21 afforded an insufficient opportunity to conduct di scovery prior to the motion for summary judgment. 22 Guerra referenced Rule 56(f) of the Federal Rules of Civil Procedure in opposing summary 23

### 4 judgment before the district court and he raises a number of challenges to discovery rulings on 1 appeal. We review discovery rulings generally and a district court’s denial of a motion under Rule 2 56(f) specifically for abuse of discretion. See In re Agent Orange Prod. Liab. Litig. , 517 F.3d 76, 3 102 (2d Cir. 2008) (discovery rulings); Paddington Partners v. Bouchard, 34 F.3d 1132, 1138 (2d 4 Cir. 1994) (Rule 56(f) motions). As a general matter, a district court has “wide latitude” in 5 determining the scope of discovery. In re Agent Orange , 715 F.3d at 103. Here, we cannot say that 6 Guerra demonstrated that the district court failed to afford him “a meaningful opportunity to 7 establish the facts necessary to support his claim,” id. , or that its rulings in resolving the numerous 8 motions and objections raised by Guerra in the c ourse of discovery otherwise constituted an abuse 9 of discretion. 10 Moreover, in opposing summary judgment pursuant to Rule 56(f), a party is required to 11 submit an affidavit which includes “the nature of the uncompleted discovery; how the facts sought 12 are reasonably expected to create a genuine issue of material fact; what efforts the affiant has made 13 to obtain those facts; and why those efforts were unsuccessful.” Paddington Partners , 34 F.3d at 14 1138. For both Guerra’s Title VII and ADEA clai ms against the individual Defendants and his 15 retaliation claims, it is clear that no amount of further discovery would permit him to avoid a grant 16 of summary judgment in the Defendants’ favor, given the unresolvable defects of both sets of 17 claims. Even accounting for Guerra’s pro se status and considering whether he demonstrated an 18 entitlement to additional discovery on claims he s ought to add against the sc hool district, he simply 19 failed to identify to the distri ct court — as he failed to do in this Court — any additional 20 discoverable facts that could “reasonably [be] expected to create a genuine issue of material fact” 21 so as to preclude summary judgment. As a result, the court did not abuse its discretion in granting 22 summary judgment in the face of Guerra’s Rule 56(f)-based objection. 23

### 5 We also conclude that the grant of summaryjudgment on Guerra’s stigma-plus claims was 1 proper, albeit relying on a different basis than that offered by the district court. This Court has 2 recognized that “[l]oss of one’s reputation can . . . invoke the protections of the Due Process Clause 3 if that loss is coupled with the deprivation of a more tangible interest, such as government 4 employment.” Patterson v. City of Utica , 370 F.3d 322, 330 (2d Cir. 2004). While, as the district 5 court noted, a probationary teacher in Guerra’s position — an at-will government employee — has 6 no Fourteenth Amendment property interest in continued employment, see Segal v. City of New 7 York , 459 F.3d 207, 212 (2d Cir. 2006), for such an employee, “a cause of action under § 1983 for 8 deprivation of a liberty interest without due process of law may arise when an alleged government 9 defamation occurs in the course of dismissal from government employment,” Patterson , 370 F.3d 10 at 330 (emphasis added). 11 To state a stigma-plus claim in connection w ith the termination of government employment, 12 then, a plaintiff must first show that the government made stigmatizing statements about the plaintiff 13 that “denigrate the employee’s competence as a professional and impugn the employee’s 14 professional reputation in such a fashion as toeffectively put a significant roadblock in that 15 employee’s continued ability to practice his or her profession.” Donato v. Plainview-Old Bethpage 16 Cent. Sch. Dist. , 96 F.3d 623, 630-31 (2d Cir. 1996). “A plaintiff generally is required only to raise 17 the falsity of these stigmatizing statements as an issue, not prove they are false.” Patterson , 370 18 F.3d at 330. Second, a plaintiff must prove these stigmatizing statements were made public. See id. 19 “This requirement is ‘satisfied where the stigmatizing charges are placed in the discharged 20 employee’s personnel file and are likely to be disclosed to prospective employers.’” Donato , 96 F.3d 21 at 631-32 (quoting Brandt v. Board of Coop. Educ. Servs. , 820 F.2d 41, 45 (2d Cir. 1987)). Third, 22 a plaintiff must show the stigmatizing statements were made contemporaneously with the plaintiff’s 23

### 6 dismissal from government employment. See Patterson , 370 F.3d at 330. 1 Here, the district court erred when it held th at Guerra’s probationary status prevented him 2 from establishing the “plus” element of a stigma -plus claim. As Guerra correctly points out, he 3 premised his claims upon a deprivation of a libertyinterest, not a property interest. The district 4 court further held that “no defamatory or stigmatizing statements were made in reference to Guerra” 5 and that the complained of statements “were in no way ‘published’” and “not concurrent in time 6 with Guerra’s dismissal,” albeit without specifyi ng the factual bases for each of these conclusions 7 with respect to the various statements identified by Guerra as supporting his stigma-plus claim. See 8 Guerra, 2010 WL 986403, at *10. However, even if we assume that for at least some statements 9 Guerra could satisfy each of the three elements necessary to establish a “stigma-plus” claim, we 10 must nonetheless conclude that the claim would fail. “The appropriate remedy for a stigma-plus 11 claim premised on a plaintiff’s terminati on from at-will government employment is a 12 post-deprivation name-clearing hearing.” Patterson , 370 F.3d at 335; see also Segal , 459 F.3d at 13 212-13. “This hearing gives the plaintiff an opportunity to hear and answer first-hand any 14 stigmatizing charges, clearing his name of any false statements made about him, and curing the 15 injury to his reputation.” Patterson , 370 F.3d at 335. 16 Here, Guerra had available to him adequate process in the form of a post-deprivation Article 17 78 hearing in state court. Under New York law, to establish a due process liberty interest entitling 18 one to a name-clearing hearing pursuant to Article 78, one must show the same three elements 19 needed to establish a stigma-plus claim: an alle gedly defamatory governmental action together with 20 a loss of employment and the dissemination of the stigmatizing material. See Swinton v. Safir , 93 21 N.Y.2d 758, 764 (1999); see also id. at 765 (“[W]here the discharged employee is seeking only 22 expungement of stigmatizing material in a personnel file . . . a likelihood of dissemination is 23

### 7 sufficient to trigger one’s right to a departmental name-clearing hearing.”). As a result, we have no 1 reason to believe that Guerra could not have pursued such a hearing in this case. For an at-will 2 government employee — which Guerra was given his status as a probationary teacher at the time 3 the relevant events occurred — “[a]n Article 78 hearing provides the requisite post-deprivation 4 process — even if [Guerra] failed to pursue it.” Anemone v. Metro. Transp. Auth. , 629 F.3d 97, 121 5 (2d Cir. 2011). We therefore affirm the grant of summary judgment on Guerra’s stigma-plus claims. 6 We have considered all of Guerra’s remaini ng arguments and find them to be without merit. 7 Accordingly, the judgment of the district court is hereby AFFIRMED. 8
9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, Clerk 11 12 13