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 2

nd 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, 
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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 defendantsappellees' 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, 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.
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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, 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 
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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 
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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., 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 
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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., 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
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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