17-3512
Zhou v. State University of New York

                               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
10th day of September, two thousand nineteen.

Present:    RALPH K. WINTER,
            ROSEMARY S. POOLER,
            REENA RAGGI,
                        Circuit Judges.
_____________________________________________________

XU-SHEN ZHOU, aka JASON ZHOU,

                                  Plaintiff-Appellant,

                         v.                                                  17-3512-cv

STATE UNIVERSITY OF NEW YORK POLYTECHNIC INSTITUTE,
fka STATE UNIVERSITY OF NEW YORK INSTITUTE OF TECHNOLOGY,
DR. LISA BERARDINO, personally and in their professional capacity,
DR. STEPHEN HAVLOVIC, personally and in their professional capacity,
and DR. WILLIAM LANGDON, personally and in their professional capacity,

                        Defendants-Appellees.1
_____________________________________________________

Appearing for Appellant:          Xu-Shen Zhou, pro se, Utica, N.Y.

Appearing for Appellee:           Laura Etlinger, New York State Office of the Attorney General,
                                  Albany, N.Y.


1
    The Clerk of the Court is directed to amend the caption as above.
      Appeal from the United States District Court for the Northern District of New York
(Suddaby, C.J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Xu-Shen Zhou, appearing pro se on appeal, sued the State University of New York,
Polytechnic Institute (“SUNY”), as well as individual defendants Dr. Lisa Berardino, Dr.
Stephen Havlovic, and Dr. William Langdon under Title VII, 42 U.S.C. § 1981, and state law,
alleging that they did not reappoint him to his teaching position in retaliation for his complaints
of discrimination. After a four-day trial, the jury returned a verdict in favor of the defendants.
Zhou appeals from the district court’s judgment and denial of his motion for a new trial pursuant
to Federal Rule of Civil Procedure 59. We assume the parties’ familiarity with the underlying
facts, procedural history, and specification of issues for review.

       I.      Pretrial Rulings

        A district court’s evidentiary rulings are reviewed for abuse of discretion. See Manley v.
AmBase Corp., 337 F.3d 237, 247 (2d Cir. 2003). “Unless justice requires otherwise, no error in
admitting or excluding evidence—or any other error by the court or a party—is ground for
granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise
disturbing a judgment or order. At every stage of the proceeding, the court must disregard all
errors and defects that do not affect any party’s substantial rights.” Fed. R. Civ. P. 61.

        Applying this deferential standard of review, we find the district court did not exceed the
bounds of its discretion in admitting Zhou’s teaching evaluations from his previous university for
two purposes: (1) to impeach Zhou’s credibility given his representation that he generally
received good teaching evaluations; and (2) to provide after-acquired evidence of
misrepresentations that could mitigate damages. See McKennon v. Nashville Banner Publ’g Co.,
513 U.S. 352, 362–63 (1995) (holding that employer in discrimination case may limit damages
with after-acquired evidence of employee wrongdoing); United States v. Garcia, 900 F.2d 571,
575 (2d Cir. 1990) (holding extrinsic evidence admissible to demonstrate falsity of trial
testimony). Here, the district court reasonably determined that the probative value of such
evidence for impeachment purposes outweighed any potential prejudicial effect because Zhou’s
credibility was critical to his retaliation claim. See Fed. R. Evid. 403.

         The district court also acted within its discretion in admitting after-acquired evidence of
Zhou’s wrongdoing in connection with his poor teaching evaluation to mitigate damages. See
McKennon, 513 U.S. at 362–63 (holding that employer has burden to “establish that the
wrongdoing was of such severity that the employee in fact would have been terminated on those
grounds alone if the employer had known of it at the time of the discharge”). Zhou mistakenly
argues that the after-acquired evidence rule does not apply because the evidence concerned
misconduct that occurred outside of and prior to his employment relationship with SUNY.
However, the evaluations were not introduced for to establish Zhou’s misconduct at his prior job,
but, rather, to establish his misconduct during his initial hiring by SUNY and during the
reappointment process by failing to disclose his poor teaching record. To the extent that Zhou



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also challenges the jury instruction concerning after-acquired evidence, he waived that argument
by failing to object during trial. See Local Union No. 38, Sheet Metal Workers’ Int’l Ass’n v.
Pelella, 350 F.3d 73, 87 (2d Cir. 2003) (holding that party who fails to object to a jury
instruction at trial waives the right to make that instruction the basis for an appeal) (internal
quotation marks omitted)). Even assuming that Zhou had objected to this instruction, any error
would be harmless because it relates only to the calculation of damages. Here, the jury found for
the defendants and, thus, never calculated damages.

       II.     Denial of Venue Transfer

        Zhou faults the district court for denying his motion to transfer venue to the Southern
District of New York, made more than seven years after he commenced this proceeding in the
Northern District of New York and on the eve of his second trial. To successfully challenge the
denial of a motion to transfer of venue after entry of a final judgment, a party must demonstrate
that the outcome of the trial would have been different had the case been transferred. See Bank
of N.Y. v. First Millennium, Inc., 607 F.3d 905, 921 (2d Cir. 2010). Zhou fails to meet this
burden, because he does not argue that the outcome would have been different in the Southern
District. His suggestion that a Title VII retaliation claim cannot get a fair hearing in the Northern
District is belied by the fact that a jury found in his favor at the first trial. In any event, a party
cannot meet the high burden imposed with “speculative concerns about the likely predisposition
of local judges and juries[.]” Songbyrd, Inc. v. Estate of Grossman, 206 F.3d 172, 179 (2d Cir.
2000). The district court did not abuse its discretion in denying Zhou’s venue motion more than
seven years after he commenced the proceeding in the Northern District and on the eve of his
second trial. See N.Y. Marine & Gen. Ins. Co. v. Lafarge N. Am., Inc., 599 F.3d 102, 112 (2d Cir.
2010) (“We review a district court’s denial of a motion to transfer venue for abuse of
discretion.”).

       III.    Discovery Rulings

         We review discovery rulings for abuse of discretion. See DG Creditor Corp. v. Dabah,
151 F.3d 75, 79 (2d Cir. 1998). Under this deferential standard, both of Zhou’s challenges to the
district court’s discovery rulings are clearly meritless. First, the court reasonably directed Zhou
to provide defense counsel with seven-days’ notice of his intention to proceed with scheduled
depositions. This order was issued at defense counsel’s request when it appeared that Zhou might
decide at the last minute not to proceed with scheduled depositions. The resulting order
represented a reasonable exercise of the court’s discretion, particularly in light of the degree of
court oversight of the discovery process required in this case when Zhou was proceeding pro se.
The district court also reasonably directed the defendants to provide Zhou with the teaching
evaluations of only one, rather than all, other SUNY professors considered for reappointment at
the same time as Zhou, as opposed to all professors seeking reappointment. While Zhou now
complains that he was prejudiced by the court’s limitation on his discovery request, he failed to
seek any additional discovery from the court despite the court’s express invitation to do so. The
district court did not abuse its discretion in issuing either of the discovery orders Zhou challenges
on appeal.




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          Zhou also broadly challenges his lack of access to discovery materials. First, he
challenges the adequacy of the defendants’ responses to certain discovery requests before the
first trial. However, the docket reflects that Zhou never objected to the defendants’ compliance
with the court orders until after his second trial resulted in a verdict against him, when he raised
it for the first time as a ground for a new trial. Zhou also claims that his second trial was
impeded by his lack of access to discovery materials contained in his former counsel’s case file.
Here too, the district court had issued an order addressing the issue, directing former counsel to
provide Zhou “copies of any documents that are not in his possession and that have an arguable
relevance to a new trial[.]” Again, Zhou did not seek modification of the order or raise further
objection on the issue until after the conclusion of the second trial. Zhou has not suggested any
reason he could not have brought his purported concerns regarding access to the court’s attention
earlier. Having failed to reserve these issues below, Zhou cannot now pursue them on appeal,
and we deem them waived. In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 132 (2d Cir.
2008) (explaining that party waives argument “by failing to present it below.”).

       IV.     Sufficiency Challenge

        Finally, Zhou challenges the district court’s denial of his motion for a new trial on the
ground that the jury’s verdict was against the weight of the evidence. It is well established that
“[a] district court’s denial of a motion for a new trial on weight-of-the-evidence grounds, is not
reviewable on appeal.” Rasanen v. Doe, 723 F.3d 325, 330 (2d Cir. 2013). His argument is
unavailing.

       We have considered the remainder of Zhou’s arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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