15-475-cv
Azkour v. Little Rest Twelve, Inc.


                               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 14th day of April, two thousand sixteen.

PRESENT: JOHN M. WALKER, JR.,
                 REENA RAGGI,
                 CHRISTOPHER F. DRONEY,
                         Circuit Judges.
--------------------------------------------------------
HICHAM AZKOUR,
                         Plaintiff-Appellant,

                   v.                                                  No. 15-475-cv

LITTLE REST TWELVE, INC.,
                         Defendant-Appellee.
--------------------------------------------------------
APPEARING FOR APPELLANT:                          HICHAM AZKOUR, pro se, New York,
                                                  New York.

APPEARING FOR APPELLEE:                          ANDREW SAL HOFFMANN, Hoffmann &
                                                 Associates, New York, New York.

         Appeal from a judgment of the United States District Court for the Southern District

of New York (Richard J. Sullivan, Judge; Kevin Nathaniel Fox, Magistrate Judge).


                                                     1
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on February 17, 2015, is AFFIRMED.

       Plaintiff Hicham Azkour, proceeding pro se, appeals from a judgment entered after

trial, awarding Azkour $20,128.32 on his Fair Labor Standards Act (“FLSA”) and New

York Labor Law (“NYLL”) claims against his former employer. On appeal, Azkour

argues that the district court erred in (1) denying summary judgment as to damages;

(2) denying post-trial motions for judgment in his favor as a matter of law, see Fed. R. Civ.

P. 50, or, alternatively, for a new trial, see Fed. R. Civ. P. 59; and (3) failing to appoint pro

bono counsel. We assume the parties’ familiarity with the facts and procedural history of

the case, which we reference only as necessary to explain our decision to affirm.

1.     Summary Judgment

       At the same time the district court granted Azkour summary judgment as to

defendant’s liability under the FLSA and NYLL, it denied him summary judgment on

damages for his retaliation claim. See 29 U.S.C. § 216(b) (providing that employer who

engages in retaliation under FLSA shall be liable for “legal or equitable relief as may be

appropriate,” including, inter alia, “payment of wages lost”). Azkour argues that the

district court erred in identifying his mental illness as a disputed issue of fact material to

assessing damages. See generally Thornley v. Penton Publ’g, Inc., 104 F.3d 26, 31 (2d

Cir. 1997) (explaining that back pay remedy in discriminatory discharge case is intended to

compensate plaintiff “only for losses suffered as a result of defendant’s discrimination, and

does not extend to granting back pay for a period when a plaintiff would have been unable,
                                               2
due to an intervening disability, to continue employment” (internal quotation marks and

alterations omitted)).1

       Azkour’s argument fails because we generally will not review “an order denying

summary judgment after a full trial on the merits.” Ortiz v. Jordan, 562 U.S. 180, 183–84

(2011) (explaining that once case proceeds to trial “full record developed in court

supersedes the record existing at the time of the summary-judgment motion”); accord

Village of Freeport v. Barrella, 814 F.3d 594, 601 n.10 (2d Cir. 2016). Although an

exception applies “where the district court’s error was purely one of law,” Stampf v. Long

Island R.R., 761 F.3d 192, 201 n.2 (2d Cir. 2014) (quoting Schaefer v. State Ins. Fund, 207

F.3d 139, 142 (2d Cir. 2000) (internal quotation marks omitted)), Azkour’s challenge to the

district court’s identification of issues of material fact is inherently fact-based. To the

extent Azkour challenges the admissibility of Little Rest’s evidence on summary judgment

and, thus, raises a pure question of law, those arguments are better addressed in the context

of Azkour’s post-trial motions. See Village of Freeport v. Barrella, 814 F.3d at 601 n.10

(considering legal challenge to summary judgment denial in context of motion for

judgment as a matter of law). Accordingly, Azkour “is precluded from appealing from the




1
 Although Azkour challenges the district court’s conclusion that by September 7, 2011,
his mental illness was so severe that no reasonable factfinder could find defendant liable
for his unemployment after that date, we need not address that point because the district
court subsequently granted reconsideration of that issue and, at trial, instructed the jury to
determine how many weeks of Azkour’s unemployment from February 14, 2010, to the
date of trial, were proximately caused by defendant.
                                              3
denial of [his] summary judgment motion and motion for reconsideration” of that denial.

Stampf v. Long Island R.R., 761 F.3d at 201 n.2.

2.     Judgment as a Matter of Law

       We review de novo the denial of a motion for judgment as a matter of law, applying

the same standard as the district court pursuant to Fed. R. Civ. P. 50(a)(1). See Morse v.

Fusto, 804 F.3d 538, 546 (2d Cir. 2015). Where, as here, a movant seeks a judgment

contrary to a jury verdict, he carries the “particularly heavy” burden, Cross v. New York

City Transit Auth., 417 F.3d 241, 248 (2d Cir. 2005), of showing either “such a complete

absence of evidence supporting the verdict that the jury’s findings could only have been the

result of sheer surmise and conjecture,” or evidence in his favor that is “so overwhelming

that reasonable and fair minded persons could not arrive at a verdict against it,” Morse v.

Fusto, 804 F.3d at 546 (internal quotation marks omitted).

       After an independent review of the record, we conclude, as the district court did,

that Azkour was not entitled to judgment as a matter of law.2 Specifically, trial evidence

indicating that Azkour either (a) failed to make reasonable efforts at re-employment, or (b)

became disabled from employment, was sufficient to allow the jury reasonably to conclude

that defendant’s retaliatory discharge was the cause of 12 weeks of Azkour’s

unemployment, not 231 weeks. See Broadnax v. City of New Haven, 415 F.3d 265, 268



2
  Because Azkour does not here challenge the district court’s grant of defendant’s motion
for judgment as a matter of law on punitive damages, we need not consider the propriety of
that ruling.
                                             4
(2d Cir. 2005); Thornley v. Penton Publ’g, Inc., 104 F.3d at 31. Accordingly, Azkour was

not entitled to any different judgment as a matter of law.

3.     New Trial

       We review Azkour’s challenge to denial of a new trial only for abuse of discretion,

see Harris v. O’Hare, 770 F.3d 224, 231 (2d Cir. 2014), which we do not identify here.

       The challenged exclusion of administrative decisions from the New York State

Office of Temporary and Disability Assistance was not “clearly prejudicial to the outcome

of the trial,” in light of a trial record that included Azkour’s own repeated admissions that a

serious mental impairment prevented him from working or prosecuting his civil case.

Village of Freeport v. Barrella, 814 F.3d at 610–11 (explaining that evidentiary ruling

warrants new trial only if (1) district court error was clear abuse of discretion, and (2)

evidence in light of record as whole manifests clear prejudice to outcome of trial).3 This

conclusion is only reinforced by evidence that, if not mentally ill, Azkour failed reasonably

to mitigate his damages by seeking other employment.

       Nor did the district court abuse its discretion in excluding (1) evidence of Azkour’s

receipt of unemployment benefits, or (2) Azkour’s declaration explaining that his receipt of

such benefits was conditioned on his active search for employment. The former consisted

of unauthenticated records, see Fed. R. Evid. 901, 902, and the latter was hearsay when




3
 Contrary to Azkour’s arguments before the district court and on appeal, his admissions,
offered by defendants, were properly admitted pursuant to Fed. R. Evid. 801(d)(2).
                                              5
offered by Azkour, see Fed. R. Evid. 801(a), (c); United States v. Coplan, 703 F.3d 46, 84

(2d Cir. 2012).

       As for denial of Azkour’s request to appoint a medical expert, that decision is

committed to the sound discretion of the district court. See Fed. R. Evid. 706; Scott v.

Spanjer Bros., Inc., 298 F.2d 928, 930–31 (2d Cir. 1962) (explaining that appointment of

expert is matter committed to “sound discretion” of district court). We identify no abuse

of discretion in the district court’s conclusion that the trial issues did not require expert

testimony and that Azkour was free to testify himself to matters at issue, which he chose

not to do.

       As for Azkour’s remaining challenges to the denial of a new trial, we conclude, for

substantially the reasons stated by the district court in its thorough February 11, 2015

decision, that they are meritless.

4.     Appointment of Pro Bono Counsel

       The record belies Azkour’s contention the district court improperly denied him pro

bono counsel. Indeed, the district court granted Azkour’s request for pro bono counsel

after the withdrawal of his hired attorney, but explained that, in a civil case, the court has

no authority to “‘appoint’ counsel, but instead, may only ‘request’ that an attorney

volunteer to represent a litigant.” Pl. App’x 74 (quoting Mallard v. U.S. Dist. Court for

the S. Dist. of Iowa, 490 U.S. 296, 301–10 (1989)). Thus, counsel’s ultimate decision to

decline the case manifests no error by the district court. See Leftridge v. Conn. State

Trooper Office No. 1283, 640 F.3d 62, 68 (2d Cir. 2011).
                                              6
5.    Conclusion

      We have considered all of Azkour’s arguments and conclude that they are without

merit. Accordingly, we AFFIRM the judgment of the district court.

                                       FOR THE COURT:
                                       Catherine O’Hagan Wolfe, Clerk of Court




                                          7
