15‐3110‐cv Becker v. Buffalo Public Schools

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.

1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 28th day of September, two thousand 4 sixteen. 5 6 PRESENT: PIERRE N. LEVAL, 7 RAYMOND J. LOHIER, JR., 8 Circuit Judges, 9 EDWARD R. KORMAN, 10 District Judge.* 11 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 12 KEVIN BECKER, 13 14 Plaintiff‐Appellant, 15 16 v. No. 15‐3110‐cv 17 18 BUFFALO PUBLIC SCHOOLS, 19 20 Defendant‐Appellee.** 21 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐

* The Honorable Edward R. Korman, United States District Court for the Eastern District of New York, sitting by designation. ** The Clerk of Court is directed to amend the case caption as set forth above.

1 1 FOR PLAINTIFF‐APPELLANT: HARVEY P. SANDERS, Sanders & 2 Sanders, Cheektowaga, NY. 3 4 FOR DEFENDANT‐APPELLEE: DAVID M. LEE, Assistant Corporation 5 Counsel, for Timothy A. Ball, 6 Corporation Counsel, Buffalo, NY. 7 8 Appeal from a judgment of the United States District Court for the Western

9 District of New York (Richard J. Arcara, Judge).

10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

11 ADJUDGED, AND DECREED that the judgment is AFFIRMED.

12 Plaintiff‐appellant Kevin Becker appeals from a judgment of the District

13 Court (Arcara, J.) granting in part a motion for judgment as a matter of law filed

14 by defendant‐appellee Buffalo Public Schools (the “District”) pursuant to Rule

15 50(a) of the Federal Rules of Civil Procedure. Specifically, Becker challenges the

16 dismissal of his retaliation claim under the Age Discrimination in Employment

17 Act,

et seq. We assume the parties’ familiarity with the facts and

18 record of the prior proceedings, to which we refer only as necessary to explain our

19 decision to affirm.

20 Becker concedes and the record confirms that the District “initially decided

21 not to hire [him] in April 2006.” Appellant’s Br. 16. At trial, Becker introduced

22 an interview report dated April 4, 2006 that designated him as a “no hire” before

23 he filed a charge with the Equal Employment Opportunity Commission on April

2 1 17, 2006, the earliest filed charge in this case. But Becker claims that the trial

2 evidence demonstrated “that a teacher could be hired at any time before, or even

3 during, the school year.” Pointing to evidence that other teachers were laid off

4 on September 3, 2006, and then re‐hired on September 4, 2006, he argues that a

5 reasonable jury therefore could find that the District’s decision to not hire him to a

6 full‐time position was not final as of April 2006. Appellant’s Br. 16.

7 We disagree. No reasonable jury could conclude from this evidence,

8 which pertains to teachers who were already hired in 2004, that the District

9 waited until the beginning of the 2006 school year to finalize Becker’s no‐hire

10 decision. Becker points to no evidence suggesting that the District reconsidered

11 “no hire” (as opposed to layoff) decisions with respect to full‐time openings, or

12 that it could have reconsidered the decision in his case. As the decision not to

13 hire Becker to a full‐time position occurred before he engaged in any protected

14 activity, he cannot sustain the claim that the decision was motivated by his

15 protected activity. We therefore agree with the District Court that Becker failed

16 to establish that his protected activity either motivated or otherwise caused the

17 District’s decision.

3 1 Becker also argues that the District Court’s mid‐trial grant of the District’s

2 Rule 50(a) motion violated the law of the case. There is no merit to his argument.

3 The law‐of‐the‐case doctrine, which is a “discretionary rule of practice and

4 generally does not limit a court’s power to reconsider an issue,” In re PCH

5 Assocs.,

, 592 (2d Cir. 1991), does not change our analysis.

6 We have considered all of Becker’s remaining arguments and conclude that

7 they are without merit. For the foregoing reasons, the judgment of the District

8 Court is AFFIRMED.

9 FOR THE COURT: 10 Catherine O=Hagan Wolfe, Clerk of Court

4