14-4414-cv
Cancel v. New York City Human Resources Administration

                                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 23rd day of December, two thousand fifteen.

PRESENT: REENA RAGGI,
           RICHARD C. WESLEY,
           CHRISTOPHER F. DRONEY,
                 Circuit Judges.
_____________________________________

FRANKIE CANCEL,
              Plaintiff-Appellant,

                    v.                                                           14-4414-cv

NEW YORK CITY HUMAN RESOURCES
ADMINISTRATION/DEPARTMENT OF
SOCIAL SERVICES, et al.,
                 Defendants-Appellees.
_____________________________________

APPEARING FOR APPELLANT:                                 FRANKIE CANCEL, pro se, New York, New
                                                         York.

APPEARING FOR APPELLEES:                                 TAHIRIH      M.     SADRIEH,        Assistant
                                                         Corporation Counsel, for Zachary W. Carter,
                                                         Corporation Counsel of the City of New York,
                                                         New York, New York.
       Appeal from a judgment of the United States District Court for the Southern District

of New York (P. Kevin Castel, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment deemed to have been entered on July 6, 2015, is

AFFIRMED.1

       Plaintiff Frankie Cancel appeals pro se from an award of summary judgment in

favor of defendants on Cancel’s claim that defendants violated his federal right to

procedural due process and parallel state law rights in rescinding an offer of employment

based on his criminal record. Cancel further appeals from the denial of his motion for

reconsideration.   We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

       We review an award of summary judgment de novo and will affirm only if the

record, viewed in favor of the non-moving party, shows no genuine issues of material fact

and the moving party’s entitlement to judgment as a matter of law. See Jackson v. Federal

Express, 766 F.3d 189, 193−94 (2d Cir. 2014). We review for abuse of discretion the

denial of reconsideration and the district court’s decision not to exercise supplemental

jurisdiction over state law claims. See Smith v. Hogan, 794 F.3d 249, 253 (2d Cir. 2015)



1
 Because no separate judgment was entered in this matter as required by Fed. R. Civ. P.
58(a), a judgment is deemed to have been entered 150 days after the February 6, 2015 entry
of the district court’s dispositive order. See Fed. R. Civ. P. 58(c)(2)(B); Fed. R. App. P.
4(a)(7)(A)(ii).
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(reconsideration); Federal Treasury Enter. Sojuzplodoimport v. SPI Spirits Ltd., 726 F.3d

62, 84 (2d Cir. 2013) (supplemental jurisdiction).

       Upon such review, we conclude that the district court correctly granted defendants

summary judgment on Cancel’s procedural due process claim because, under New York

law, Cancel’s appointment would have been probationary and New York does not afford

probationary employees property rights in their positions protected by due process. See

Finley v. Giacobbe, 79 F.3d 1285, 1297−98 (2d Cir. 1996) (collecting cases). Insofar as

Cancel claims that his interviewers appointed him to a non-probationary position, such an

action would have been unauthorized and, thus, insufficient to bind defendants or to confer

a property interest in the position on Cancel.         See Safway Steel Prods. v. Craft

Architectural Metals Corp., 183 A.D.2d 452, 452, 583 N.Y.S.2d 844, 845 (1st Dep’t 1992).

       Further, on the record presented, we identify no abuse of discretion in the district

court’s decision not to exercise supplemental jurisdiction over the state law claims. See

Delaney v. Bank of Am. Corp., 766 F.3d 163, 170 (2d Cir. 2014) (“In general, where the

federal claims are dismissed before trial, the state claims should be dismissed as well.”

(internal quotation marks omitted)). We also identify no abuse of discretion in the

decision not to grant reconsideration. See Analytical Surveys, Inc. v. Tonga Partners,

L.P., 684 F.3d 36, 52 (2d Cir. 2012) (“It is well-settled that [a motion for reconsideration]

is not a vehicle for relitigating old issues, presenting the case under new theories, securing




                                              3
a rehearing on the merits, or otherwise taking a second bite at the apple . . . .” (ellipses

original) (internal quotation marks omitted)).

       We therefore affirm for substantially the reasons stated by the district court in its

thorough October 31, 2014 and February 6, 2015 decisions. We have considered all of

Cancel’s remaining 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




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