15-3445 Mace v. Marcus Whitman Centra l School District

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 FILE D WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN EL ECTRONIC 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 Seco nd Circuit, held at 1 the Thurgood Marshall United States Courthou se, 40 Foley Square, in the City of New York, 2 on the 17 th day of February, two thousand seventeen. 3 4 PRESENT: 5 G UIDO C ALABRESI , 6 S USAN L. C ARNEY , 7 Circuit Judges
, 8 J OHN G. K OELTL ,* 9 District Judge. 10

___________________ __________________ 11 12 R EBECCA M ACE , 13 Plaintiff-Appellant
, 14 15 v. No. 15-3445 16 17 M ARCUS W HITMAN C ENTRAL S CHOOL D ISTRICT , 18 M ARCUS W HITMAN C ENTRAL S CHOOL D ISTRICT 19 B OARD OF E DUCATION , M ICHAEL C HIRCO , 20 Superintendent, 21 Defendants-Appellees

. 22

___________________ __________________ 23 24 25 FOR PLAINTIFF-APPELLANT: Rebecca Mace, pro se , Canandaigua, NY. 26 27

* Judge John G. Koeltl, of the United States District Court for the Southern District of New York, sitting by designation.FOR DEFENDANTS-APPELLEES: Charles C. Spagnoli, The Law Firm of 1 Frank W. Miller, East Syracuse, NY. 2 3 Appeal from a judgment of the United States District Court for the Western District of 4 New York (Geraci, C.J .). 5 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 6 ADJUDGED, AND DECREED that the September 28, 2015 judgment of the District 7
Court is AFFIRMED

. 8 Appellant Rebecca Mace, proceeding pro se , appeals the District Court’s judgment 9 dismissing her complaint brought under the Age Discrimination in Employment Act, in which 10 the District Court granted summary judgment in favor of Marcus Whitman Central School 11 District (“the District”), Marcus Whitman Cent ral School District Board of Education (“the 12 Board”), and Michael Chirco, Superintendent of the District. We assume the parties’ 13 familiarity with the underlying facts and the pro cedural history of the case, to which we refer 14 only as necessary to expl ain our decision. 15 We review orders granting summary judgment de novo and focus on whether the district 16 court properly concluded that there was no genu ine dispute as to any material fact and the 17 moving party was entitled to judgment as a matter of law. See Sotomayor v. City of New York , 713 18 F.3d 163, 164 (2d Cir. 2013) (p er curiam). We resolve all ambi guities and draw all reasonable 19 inferences in favor of the nonmovant; the infere nces to be drawn from the underlying facts 20
revealed in materials such as a ffidavits, exhibits, interrogatory answers, and depositions must 21 be viewed in the light most favorable to the nonmoving party. See Nationwide Life Ins. Co. v. 22 Bankers Leasing Ass’n , 182 F.3d 157, 160 (2d Cir. 1999). Summary judgment is appropriate 23 “[w]here the record taken as a whole could not le ad a rational trier of fact to find for the 24 non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). 25

In Delaney v. Bank of America Corp. , 766 F.3d 163 (2d Cir. 2014) (per curiam), we 26 explained as follows how we analyz e age discrimination claims: 27 It is well established that the burden-shifting framework set forth by the 28 Supreme Court in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817, 29 36 L. Ed. 2d 668 (1973) applies to cl aims brought under the ADEA. Under 30 McDonnell Douglas , the plaintiff bears the initial burden of establishing a prima 31 facie case of discrimination. Once this bu rden is met, the de fendant must then 323 articulate some legitimate, nondiscr iminatory reason for its action. The 1 defendant need not persuade the court that it was actually motivated by the 2 proffered reason[ ]. It is sufficient if the defendant’s evidence raises a genuine 3 issue of fact as to whether it discri minated against the plaintiff. When the 4 employer meets its burden, the plaintiff can no longer rely on the prima facie 5 case, but must prove that the employer ’s proffered reason was a pretext for 6 discrimination. 7 8 766 F.3d at 167-68 (internal quota tion marks and citations omitted) (alteration in original). To 9 prove that the employer’s proffered reason was a pretext for age discrimination, the plaintiff 10 must establish that age was a “but for” cause of the employer’s adverse employment action. Id. 11
at 168. 12 Here, review of the record and relevant case law reveals that the District Court properly 13 granted summary judgment against Mace. We affi rm, for reasons substantially in accordance 14 with those stated by the District Court in its thorough decision of September 25, 2015. 15
Mace’s pro se brief, which we construe liberally, al so raises two arguments that she did 16 not present to the District Court: she contends first that the District Court was bound by the 17 conclusions reached by an admini strative panel in her related workers’ compensation case, and 18 second that she was “tenured by estoppel” in January 2010. We generally do not consider 19 arguments raised for the first time on appeal, but we have in the past exercised our discretion 20 to hear such arguments “where necessary to avoi d a manifest injustice or where the argument 21 presents a question of law and there is no need for additional fact-finding.” Bogle-Assegai v. 22
Connecticut , 470 F.3d 498, 504 (2 d Cir. 2006) (internal quotation marks omitted). In this appeal, 23 we decline to consider Mace’s tenure-by-estopp el argument, which would require factual and 24 legal development beyond the record. 25 As to Mace’s argument that the District Co urt was bound by the administrative panel’s 26 conclusions, we address it and fi nd it to be meritless. The administrative panel’s decision 27 suggests that when the Board denied Mace tenure it might have been in fluenced by the views 28 of the Board’s president, who had a prior conflict with Mace. Employer: Marcus Whitman CSD
, 29 No. G041 1847, 2012 WL 585740 1 (N.Y. Work. Comp. Bd. Oct. 30, 2012). That decision was 304 not reviewed by a state court and therefor e may not be accorded preclusive effect. Cortes v. 1
MTA N.Y.C. Transit , 802 F.3d 226, 231 (2d Cir. 2015) (“[W]e do not give preclusive effect to 2 state agency decisions unless they have been revi ewed in a state court proceeding . . . .”). 3 Further, even if the record in this case would permit a rational trier of fact to reach the same 4 conclusion as the administrative panel, the prior conflict between Mace and the Board’s 5 president would not suffice to show that the Board’s stated reason for denying tenure was a 6 pretext for age discrimination. See Vill. of Freeport v. Barrella , 814 F.3d 594, 61 3 (2d Cir. 2016) 7 (“[F]ederal antidiscrimination law does not forb id . . . favoritism, nepotism, or cronyism, so 8 long as it is not premised on animus against a protected class.”). 9
* * * 10 We have considered Mace’s remaining argume nts and find them to be without merit. 11 Accordingly, we AFFIRM the judgment of the District Court. 12
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FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk of Court 15