     15-3445
     Mace v. Marcus Whitman Central School District

                                      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 Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 3   on the 17th day of February, two thousand seventeen.
 4
 5   PRESENT:
 6              GUIDO CALABRESI,
 7              SUSAN L. CARNEY,
 8                    Circuit Judges,
 9              JOHN G. KOELTL,*
10                    District Judge.
11   _____________________________________
12
13   REBECCA MACE,
14                                Plaintiff-Appellant,
15
16                      v.                                                 No. 15-3445
17
18   MARCUS WHITMAN CENTRAL SCHOOL DISTRICT,
19   MARCUS WHITMAN CENTRAL SCHOOL DISTRICT
20   BOARD OF EDUCATION, MICHAEL CHIRCO,
21   Superintendent,
22                    Defendants-Appellees.
23   _____________________________________
24
25
26   FOR PLAINTIFF-APPELLANT:                                 Rebecca Mace, pro se, Canandaigua, NY.
27

             * Judge John G. Koeltl, of the United States District Court for the Southern District of New
     York, sitting by designation.
 1   FOR DEFENDANTS-APPELLEES:                           Charles C. Spagnoli, The Law Firm of
 2                                                       Frank W. Miller, East Syracuse, NY.
 3
 4          Appeal from a judgment of the United States District Court for the Western District of
 5   New York (Geraci, C.J.).
 6          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
 7   ADJUDGED, AND DECREED that the September 28, 2015 judgment of the District
 8   Court is AFFIRMED.
 9          Appellant Rebecca Mace, proceeding pro se, appeals the District Court’s judgment
10   dismissing her complaint brought under the Age Discrimination in Employment Act, in which
11   the District Court granted summary judgment in favor of Marcus Whitman Central School
12   District (“the District”), Marcus Whitman Central School District Board of Education (“the
13   Board”), and Michael Chirco, Superintendent of the District. We assume the parties’
14   familiarity with the underlying facts and the procedural history of the case, to which we refer
15   only as necessary to explain our decision.
16          We review orders granting summary judgment de novo and focus on whether the district
17   court properly concluded that there was no genuine dispute as to any material fact and the
18   moving party was entitled to judgment as a matter of law. See Sotomayor v. City of New York, 713
19   F.3d 163, 164 (2d Cir. 2013) (per curiam). We resolve all ambiguities and draw all reasonable
20   inferences in favor of the nonmovant; the inferences to be drawn from the underlying facts
21   revealed in materials such as affidavits, exhibits, interrogatory answers, and depositions must
22   be viewed in the light most favorable to the nonmoving party. See Nationwide Life Ins. Co. v.
23   Bankers Leasing Ass’n, 182 F.3d 157, 160 (2d Cir. 1999). Summary judgment is appropriate
24   “[w]here the record taken as a whole could not lead a rational trier of fact to find for the
25   non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
26           In Delaney v. Bank of America Corp., 766 F.3d 163 (2d Cir. 2014) (per curiam), we
27   explained as follows how we analyze age discrimination claims:
28          It is well established that the burden-shifting framework set forth by the
29          Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817,
30          36 L. Ed. 2d 668 (1973) applies to claims brought under the ADEA. Under
31          McDonnell Douglas, the plaintiff bears the initial burden of establishing a prima
32          facie case of discrimination. Once this burden is met, the defendant must then
 1             articulate some legitimate, nondiscriminatory reason for its action. The
 2             defendant need not persuade the court that it was actually motivated by the
 3             proffered reason[ ]. It is sufficient if the defendant’s evidence raises a genuine
 4             issue of fact as to whether it discriminated against the plaintiff. When the
 5             employer meets its burden, the plaintiff can no longer rely on the prima facie
 6             case, but must prove that the employer’s proffered reason was a pretext for
 7             discrimination.
 8
 9   766 F.3d at 167-68 (internal quotation marks and citations omitted) (alteration in original). To
10   prove that the employer’s proffered reason was a pretext for age discrimination, the plaintiff
11   must establish that age was a “but for” cause of the employer’s adverse employment action. Id.
12   at 168.
13             Here, review of the record and relevant case law reveals that the District Court properly
14   granted summary judgment against Mace. We affirm, for reasons substantially in accordance
15   with those stated by the District Court in its thorough decision of September 25, 2015.
16             Mace’s pro se brief, which we construe liberally, also raises two arguments that she did
17   not present to the District Court: she contends first that the District Court was bound by the
18   conclusions reached by an administrative panel in her related workers’ compensation case, and
19   second that she was “tenured by estoppel” in January 2010. We generally do not consider
20   arguments raised for the first time on appeal, but we have in the past exercised our discretion
21   to hear such arguments “where necessary to avoid a manifest injustice or where the argument
22   presents a question of law and there is no need for additional fact-finding.” Bogle-Assegai v.
23   Connecticut, 470 F.3d 498, 504 (2d Cir. 2006) (internal quotation marks omitted). In this appeal,
24   we decline to consider Mace’s tenure-by-estoppel argument, which would require factual and
25   legal development beyond the record.
26             As to Mace’s argument that the District Court was bound by the administrative panel’s
27   conclusions, we address it and find it to be meritless. The administrative panel’s decision
28   suggests that when the Board denied Mace tenure it might have been influenced by the views
29   of the Board’s president, who had a prior conflict with Mace. Employer: Marcus Whitman CSD,
30   No. G041 1847, 2012 WL 5857401 (N.Y. Work. Comp. Bd. Oct. 30, 2012). That decision was


                                                       3
 1   not reviewed by a state court and therefore may not be accorded preclusive effect. Cortes v.
 2   MTA N.Y.C. Transit, 802 F.3d 226, 231 (2d Cir. 2015) (“[W]e do not give preclusive effect to
 3   state agency decisions unless they have been reviewed in a state court proceeding . . . .”).
 4   Further, even if the record in this case would permit a rational trier of fact to reach the same
 5   conclusion as the administrative panel, the prior conflict between Mace and the Board’s
 6   president would not suffice to show that the Board’s stated reason for denying tenure was a
 7   pretext for age discrimination. See Vill. of Freeport v. Barrella, 814 F.3d 594, 613 (2d Cir. 2016)
 8   (“[F]ederal antidiscrimination law does not forbid . . . favoritism, nepotism, or cronyism, so
 9   long as it is not premised on animus against a protected class.”).
10                                                  ***
11          We have considered Mace’s remaining arguments and find them to be without merit.
12   Accordingly, we AFFIRM the judgment of the District Court.
13
14                                                        FOR THE COURT:
15                                                        Catherine O’Hagan Wolfe, Clerk of Court




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