         11-3053
         Rosendale v. Mahoney


                           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
 2       the Second Circuit, held at the Daniel Patrick Moynihan United
 3       States Courthouse, 500 Pearl Street, in the City of New York, on
 4       the 13th day of September, two thousand twelve.
 5
 6       PRESENT:
 7                 DENNIS JACOBS,
 8                      Chief Judge,
 9                 GUIDO CALABRESI,
10                 SUSAN L. CARNEY,
11                      Circuit Judges.
12       _____________________________________
13
14       Donald P. Rosendale,
15
16                              Plaintiff-Appellant,
17
18                    v.                                        11-3053
19
20       W. Michael Mahoney, individually
21       and as superintendent of the
22       Millbrook, N.Y. School District,
23       Millbrook Central School District,
24
25                              Defendants-Appellees,
26
27       Office of School Personnel Review and
28       Accountability of the State Education
29       Department,
30
31                      Defendant.
32       _____________________________________
33
 1
 2   FOR PLAINTIFF-APPELLANT:       Donald P. Rosendale, pro se,
 3                                  Amenia, NY.
 4
 5   FOR DEFENDANTS-APPELLEES:      Mark Craig Rushfield, Shaw,
 6                                  Perelson, May & Lambert LLP,
 7                                  Poughkeepsie, NY.

 8        Appeal from a judgment of the United States District Court

 9   for the Southern District of New York (Seibel, J.).

10

11        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

12   DECREED that (1) the judgment of the district court be AFFIRMED,

13   and (2) Plaintiff-Appellant’s appeal be DISMISSED insofar as it

14   seeks review of the district court’s order denying

15   reconsideration of Plaintiff-Appellant’s First Amendment

16   retaliation claim.

17        Plaintiff-Appellant Donald P. Rosendale, pro se, appeals

18   from a judgment granting summary judgment for Defendants-

19   Appellees on his claim, brought pursuant to 42 U.S.C. § 1983,

20   that he was terminated without due process from his position as a

21   per diem substitute teacher.   We assume the parties’ familiarity

22   with the underlying facts, the procedural history of the case,

23   and the issues on appeal.

24        We review an order granting summary judgment de novo and ask

25   whether the district court properly concluded that there were no

26   genuine issues of material fact and that the moving party was

27   entitled to judgment as a matter of law.   See Miller v. Wolpoff &

                                      2
1    Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003).    In

2    determining whether there are genuine issues of material fact, we

3    are “required to resolve all ambiguities and draw all permissible

4    factual inferences in favor of the party against whom summary

5    judgment is sought.”    Terry v. Ashcroft, 336 F.3d 128, 137 (2d

6    Cir. 2003) (internal quotation marks omitted).   We review for

7    abuse of discretion a district court’s denial of a motion for

 8   reconsideration.    See Johnson v. Univ. of Rochester Med. Ctr.,

 9   642 F.3d 121, 125 (2d Cir. 2011) (per curiam).

10        Rosendale’s notice of appeal lists only the June 3, 2011

11   order denying his motion for reconsideration; but it recites his

12   intention to appeal from the order “confirming a Magistrate’s

13   [sic].”    Since the order confirming the magistrate judge’s report

14   was issued in April 2011--not in June 2011--we construe

15   Rosendale’s notice to appeal both the April 2011 and June 2011

16   orders.    See Shrader v. CSX Trans., Inc., 70 F.3d 255, 256 (2d

17   Cir. 1995) (“[W]e construe notices of appeal liberally, taking

18   the parties’ intentions into account.”).   However, this Court

19   lacks jurisdiction to consider Rosendale’s argument on appeal

20   that the district court erred (in its February 2009 order) in

21   failing to reinstate his First Amendment retaliation claim

22   because Rosendale did not identify the February 2009 order in his

23   notice of appeal.    See Fed. R. App. P. 3(c)(1)(B); New Phone Co.

24   v. City of New York, 498 F.3d 127, 130-31 (2d Cir. 2007) (per

25   curiam).


                                       3
1         An independent review of the record and the relevant case

2    law confirms that the district court properly granted summary

3    judgment for the Defendants-Appellees on Rosendale’s procedural

4    due process claim and denied Rosendale’s motion for

5    reconsideration.    As the district court concluded, New York law

6    conferred on Rosendale no protected property interest in his

 7   employment as a per diem substitute teacher.    The form letter

 8   provided to him by the Defendants-Appellees--which notified him

 9   of his wage, the procedure for placement on the “Substitute

10   Calling Service” list, and the grounds for automatic removal from

11   that list--was not a contract.    Therefore, Rosendale was an at-

12   will employee.     See In re Bonnie L. Barkley, Decision No. 14,

13   912, 2003 N.Y. Educ. Dept. LEXIS 177, at *6 (N.Y. Educ. Dep’t

14   July 28, 2003); In re Barbara Martin, Decision No. 11,484, 25

15   Educ. Dep’t Rep. 21 , 22 (N.Y. Educ. Dep’t July 12, 1985).    As

16   the district court further concluded, the oral assurances

17   allegedly given to Rosendale--that (inter alia) he “would always

18   have a home in the school”--did not give rise to a contractual

19   relationship that would alter Rosendale’s at-will employment

20   status.   See Cucchi v. N.Y. City Off-Track Betting Corp., 818

21   F.Supp. 647, 652 (S.D.N.Y. 1993) (collecting New York cases and

22   concluding that “an employer’s oral assurances that induce a

23   person to work for the employer are not by themselves sufficient

24   evidence of an express agreement to alter the [employee’s] at-

25   will status.”).

                                        4
 1        We have considered Rosendale’s other arguments on appeal and

 2   find them to be without merit.    Accordingly, (1) the judgment of

 3   the district court is AFFIRMED, and (2) Plaintiff-Appellant’s

 4   appeal is DISMISSED insofar as it seeks review of the district

 5   court’s order denying reconsideration of Plaintiff-Appellant’s

 6   First Amendment retaliation claim.
 7
 8
 9                                    FOR THE COURT:
10                                    Catherine O’Hagan Wolfe, Clerk
11
12
13
14




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