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- 1004

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Smith v. N.Y.C. Dep ' t of Educ. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER
R ULINGS BY SUMMARY OR DER DO NOT HAVE PREC EDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ' S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORD ER IN A DOCUMENT FIL ED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTR ONIC DATABASE ( WITH THE NOTATION " SUMMARY ORDER " ). A PARTY CITING A SUMMA RY ORDER MUST SERVE A COPY OF IT ON A NY PARTY NOT REPRESENTE D 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 thirte en . PRESENT: AMALYA L. KEARSE,

JOHN M. WALKER, JR. , DENNY CHIN,

Circuit Judges
.

- - - - - - - - - - - - - - - - - - - - - x DANIEL SMITH , P laintiff

- Appellant ,

- v. - 1 2

- 1004

- cv NEW YORK CITY DEPARTMENT OF EDUCATION, ED GARDELLA, CRAIG SHAPIRO, GERALDINE AMBROSI O , 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,- 2

- 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 ( Cot e, J. ).

UPON DUE CONSIDERATION, I T 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 o pinion and o rder 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 th e district court's dismissal of his claims under Title IX of the E ducation Amendments of 1972, the New York State Human Rights Law, and the New York City Human Rights Law
. Accordingly, we deem those claims abandoned.- 3

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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 co urt'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 b y 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.- 4

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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
N ew York , 186 F.3d 243, 2 50 (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 t o 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 in ternal 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- 5

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absence of the protected speech ." Anemone v. Metro. Transp. Auth. , 629 F.3d 97, 114 (2d Cir. 2011) (citation and int ernal quotation marks omitted)
.

As the district court properly concluded , e ven 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 constitute d protected speech, Smith did not demonstrate the requisite causal connection between that protected speech and the disciplinary proceedings
. T he 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 pre ced e d the initiation of disciplinary proceedings against him , defendants were still entitled to summary judgment because they demonstrate d 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- 6

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discovered in his time records
. Accordingly, we conclude that , on this record, a reasonable jury c ould 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 Amend ed 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 distric t court ' s denial of leave to amend
. See Presbyterian Church of Sudan v. Talisman Energy , Inc. , 5 82 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, t he 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- 7

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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, S mith 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 o f 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). T o warrant reconsideration, a party must "point to controlling decisions or data that the court overlooked

-- matters, in other words, that- 8

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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 proc eedings 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 order s of the district court. Further, Smith's motion to withdraw his appeal without prejudice is DENIED . FOR THE COURT: Catherine O ' Hagan Wolfe , C lerk