10-3389-cv(L)
Deep v. Clinton 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 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
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 19th day
of December, two thousand and eleven.
Present:
PETER W. HALL,
GERARD E. LYNCH,
DENNY CHIN,
Circuit Judges.
____________________________________________________
Norman P. Deep, Jr.,
Plaintiff-Appellant-Cross-Appellee,
v. Nos. 10-3389-cv(L)
10-3391-cv(Con)
10-3940-cv(Con)
10-3949-cv(Con)
Glenn Coin, et al.,
Defendants-Appellees-Cross-Appellants.
____________________________________________________
FOR APPELLANT: A.J. BOSMAN, Bosman Law Office, Rome, New York.
FOR APPELLEES: FRANK W. MILLER, Law Firm of Frank W. Miller, East Syracuse,
New York.
____________________________________________________
Appeal from a judgment and orders of the United States District Court for the Northern
District of New York (Hurd, J.). ON CONSIDERATION WHEREOF, it is hereby
ORDERED, ADJUDGED, and DECREED that the judgment and orders of the district court
are AFFIRMED.
Plaintiff-Appellant-Cross-Appellee Norman P. Deep, Jr., appeals principally the district
court’s denial of his post-judgment motion under Fed. R. Civ. P. 50 and 59, following a jury
trial, in which the jury found in favor of Defendants-Appellees-Cross-Appellants (“Defendants”)
on Deep’s First Amendment retaliation claims brought pursuant to 42 U.S.C. § 1983.
Defendants cross-appeal the district court’s denial of their application for a bill of costs under
N.D.N.Y. Local Rule 54.1(a). We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal, and discuss these only where necessary
to our decision.
I. Deep’s Arguments on Appeal
“Where, as here, a jury has deliberated in a case and actually returned its verdict, a
district court may set aside the verdict pursuant to Rule 50 only where there is ‘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 there is such an overwhelming amount of evidence in
favor of the movant that reasonable and fair minded men could not arrive at a verdict against
him.’” AMW Materials Testing, Inc. v. Town of Babylon, 584 F.3d 436, 456 (2d Cir. 2009)
(quoting Cross v. NYC Transit Auth., 417 F.3d 241, 248 (2d Cir. 2005)). We review de novo the
denial of a Rule 50 motion, but “are bound by the same stern standards” as the district court.
Cross, 417 F.3d at 248. Thus, we “must give deference to all credibility determinations and
reasonable inferences of the jury, and may not weigh the credibility of witnesses or otherwise
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consider the weight of the evidence.” Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 133 (2d Cir.
2008) (internal quotation marks and citations omitted). By comparison, we review the district
court’s denial of a Rule 59 motion for abuse of discretion, and will reverse only where “(1) its
decision rests on an error of law (such as the application of the wrong legal principle) or a
clearly erroneous factual finding, or (2) its decision–though not necessarily the product of a legal
error or a clearly erroneous factual finding–cannot be located within the range of permissible
decisions.” Manley v. AmBase Corp., 337 F.3d 237, 245 (2d Cir. 2003) (internal quotation
marks omitted); see also AMW Materials Testing, 584 F.3d at 456 (“The standard for ordering a
new trial is therefore somewhat less stern than that for entering judgment as a matter of law, but
our review of a district court’s disposition of a Rule 59 motion is more deferential, and we will
not reverse except for abuse of discretion.”). Under either standard, we review the evidence in
the light most favorable to the nonmoving party. See Medforms, Inc. v. Healthcare Mgmt.
Solutions, Inc., 290 F.3d 98, 106 (2d Cir. 2002); Taylor v. Brentwood Union Free Sch. Dist., 143
F.3d 679, 685 (2d Cir. 1998).
Deep challenges the district court’s denial of his Rule 50 and Rule 59 motions on four
grounds: (1) the district court should have entered judgment against the members of the Clinton
Central School District Board of Education (“Board Members”) in their official capacities
because the trial evidence failed to support their affirmative defense under Mt. Healthy City
School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977); (2) the verdict was inconsistent because
the jury (purportedly) never reached a verdict on the issue of whether the Board Members would
still not have appointed Deep to the Athletic Director positions even if he had not filed his 2006
lawsuit; (3) the district court improperly restricted Deep’s admission of evidence and did not
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hold Defendants to those same restrictions; and (4) the jury instructions on the Mt. Healthy
defense were erroneous. We reject all of these arguments.
First, in Mt. Healthy, the Supreme Court held that with respect to an employee’s First
Amendment retaliation claim, “even if there is evidence that the adverse employment action was
motivated in part by protected speech, the government can avoid liability if it can show that it
would have taken the same adverse action in the absence of the protected speech.” Heil v.
Santoro, 147 F.3d 103, 110 (2d Cir. 1998) (citing Mt. Healthy, 429 U.S. at 287). Here,
Defendants asserted at trial that even if Deep had not filed his earlier lawsuit against Defendants,
he still would not have been appointed to the Interim Athletic Director position in October 2007,
or to the Permanent Athletic Director position in July 2008, because of (1) his aggressive
management style and poor relationships with administrators in the Clinton Central School
District (the “District”) and other coaching staff, and (2) the fact that Douglas Fiore, who did not
exhibit these qualities, was a superior candidate. Construing, as we must, all of the trial evidence
in Defendants’ favor, the jury appropriately determined that Defendants had produced sufficient
evidence to prove their Mt. Healthy defense. See Cash v. Cnty of Erie, 654 F.3d 324, 333 (2d
Cir. 2011) (holding that for a movant to prevail on a Rule 50 motion, a “court, viewing the
evidence in the light most favorable to the non-movant, [must] conclude[] that ‘a reasonable
juror would have been compelled to accept the view of the moving party’” (quoting Zellner v.
Summerlin, 494 F.3d 344, 371 (2d Cir. 2007) (emphasis in Zellner))).
Then District Superintendent Jeffrey Roudebush and Principal Richard D. Hunt testified
unequivocally that a successful Athletic Director should have strong adult-to-adult interpersonal
skills and should be able to interact and communicate effectively with District administrators,
coaches, and other Athletic Directors. As to the three candidates who applied, Roudebush and
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Hunt confirmed that Fiore, not Deep, best exemplified these qualities, and on that basis,
Roudebush recommended Fiore to the Board Members for selection. In addition, those Board
Members who testified confirmed that for both the Interim Athletic Director position and the
Permanent Athletic Director position, the only person Roudebush recommended was Fiore, and
that the Board voted on that recommendation and appointed Fiore to the positions. We conclude
this evidence was more than sufficient to support the jury’s verdict as to Defendants’ Mt.
Healthy defense.
Second, even assuming that Deep has preserved his argument that the jury’s verdict was
inconsistent, we identify no error with the jury’s answer to Question Two of the verdict sheets.
That question provided: “Do you find that defendant Jeffrey Roudebush would not have
recommended Norman P. Deep, Jr. as [Interim Athletic Director in October 2007, and as
Permanent Athletic Director in July 2008], even if plaintiff had not filed a lawsuit in July 2006?”
Deep asserts, in essence, that because this question did not ask whether the Board–in addition to
Roudebush–would not have appointed him even if he had not filed his earlier lawsuit, the jury
did not reach the issue of whether the Board had proven its Mt. Healthy defense. We disagree.
The trial evidence showed that the Board had no discretion in choosing candidates for
appointments. Instead, Superintendent Roudebush would recommend a single candidate to the
Board for a particular position, and the Board could either approve or reject that candidate; the
Board could not, for example, select an alternative candidate. This is not to say that the Board
was unaware of any other candidates who applied. Indeed, Roudebush testified that Board
Members would typically ask him about other candidates that he had considered. He affirmed,
however, that any such discussion was merely to provide comparative information to the Board
concerning the recommended candidate and others who had interviewed for the position. For
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this reason, it is immaterial whether the Board would have approved Deep’s appointment to the
Athletic Director positions even if Deep had not filed his 2006 lawsuit. Because Roudebush did
not recommend Deep for those positions, the Board had no occasion to vote on his appointment.
Deep’s arguments to the contrary are unavailing. He asserts that as a factual matter, the
Board was not bound by Roudebush’s recommendation and could have chosen him for the
positions, but he fails to identify any trial evidence supporting this proposition. Moreover, while
Deep points to testimony from Roudebush that the Board did not always approve his
recommended candidate, and relies on his own testimony at trial that Hunt told him that three
candidates were presented to the Board for the two positions in question, none of this evidence is
dispositive. That the Board did not always accept Roudebush’s recommendation does not refute
the fact that the Board could not have chosen Deep absent a recommendation from Roudebush; it
shows only that the Board would, on occasion, decline to appoint the candidate Roudebush
recommended. And while Deep did testify to Hunt’s alleged statement, that testimony was
directly contradicted by Roudebush and Hunt, and it is not our role to weigh the credibility of
their testimony or to otherwise consider the weight of the evidence. See Brady, 531 F.3d at 133.
In any event, even if we accept Deep’s argument that the phraseology of Question Two
was unclear, any ambiguity was eliminated by the district court’s supplemental instructions to
the jury. In response to the second jury note, the district court expressly charged the jury that
with respect to Question Two, Defendants had the burden of proving “by a preponderance of the
evidence that Defendant Roudebush would still not have recommended [Deep] as the athletic
director, and the Board of Education still would not have appointed him in either or both 2007 or
2008, regardless . . . of the 2006 lawsuit.” (emphasis added). Based on these instructions, it was
made clear to the jury that to answer “yes” to Question Two, it must determine that both
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Roudebush and the Board had successfully proved their Mt. Healthy defense. Deep’s assertion
that the jury never found that the Board had proved its Mt. Healthy defense must therefore fail.
Third, the district court did not abuse its discretion by denying Deep’s motion for a new
trial on grounds that the court made a number of erroneous evidentiary rulings at trial. Deep
argues that the court erred by preventing him from introducing evidence concerning the merits of
his 2006 lawsuit because, he asserts, such evidence would have undermined Defendants’ Mt.
Healthy defense. We disagree. As already noted, Defendants’ Mt. Healthy defense turned on
their ability to convince the jury that Deep would not have been appointed for the Athletic
Director positions because of certain non-protected grounds or, put differently, that Deep’s 2006
lawsuit was not the “but for” cause of his non-appointment. See Brock v. Casey Truck Sales,
Inc., 839 F.2d 872, 877 (2d Cir. 1988) (observing that under Mt. Healthy, an employer was
“entitled to prevail if the fact-finder concluded that the [plaintiff] would have been discharged
even if the protected conduct had not occurred, i.e., that the improper reason was not the ‘but
for’ cause of the discharge”). Evidence concerning the merits of Deep’s 2006 lawsuit does not
bear on this issue. Instead, such evidence was relevant only to whether the lawsuit was a
motivating factor in Roudebush’s and the Board’s decision, and based on its answer to Question
One of the verdict forms, the jury found that was true. To the extent Deep argues that a specific
comment by Roudebush was relevant to assessing his or the Board’s motivations in 2007 and
2008, notwithstanding that it was made before July 2006, we decline to address this argument
because Deep never asserted below that this particular piece of evidence, as distinguished from
general testimony about the facts underlying the 2006 lawsuit, was admissible on that issue.
In addition, the district court did not err by allowing Defendants to introduce evidence
concerning events that fell outside the designated July 2006 to July 2008 time period. Although
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Hunt was allowed to testify about events that occurred prior to July 2006, that testimony was
clearly relevant because those events influenced Hunt’s state of mind in determining whether
Deep was an appropriate candidate for the Athletic Director positions. In fact, the district court
explicitly instructed the jury on this point, reminding them that this background information was
“not part of the lawsuit” but came in “for the limited purpose of Hunt testifying as to the basis of
his recommendation to the superintendent.” Finally, based on our review of the trial evidence,
the district court did not exceed its allowable discretion by preventing Deep from calling
character witnesses.
Fourth, Deep argues that the jury instructions as to the Mt. Healthy defense were
erroneous, and that a new trial is warranted, because the district court refused to give a pretext
charge. The legal framework governing First Amendment retaliation claims under Mt. Healthy
is well-established. To prevail, a plaintiff must demonstrate: (1) the speech at issue was
protected; (2) he suffered an adverse employment action; and (3) there was a causal connection
between the protected speech and the adverse action. Blum v. Schlegel, 18 F.3d 1005, 1010 (2d
Cir. 1994) (citing Mt. Healthy, 429 U.S. at 283-87); accord Cotarelo v. Village of Sleepy Hollow
Police Dep’t, 460 F.3d 247, 251 (2d Cir. 2006) (citing on Blum). However, “[s]hould a plaintiff
demonstrate these factors, the defendant has the opportunity to demonstrate by a preponderance
of the evidence that it would have undertaken the same adverse employment action ‘even in the
absence of the protected conduct.’” Blum, 18 F.3d at 1010 (quoting Mt. Healthy, 429 U.S. at
287). Pretext forms no part of this analysis. In fact, unlike the traditional burden-shifting
framework under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas
Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), we have never identified
pretext as a relevant factor in considering a First Amendment retaliation claim under Mt.
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Healthy. Cf. Holo-Krome Co. v. N.L.R.B., 954 F.2d 108, 110 (2d Cir. 1992) (identifying the
former as “pretext cases” and the latter as “dual-motivation cases”). At any rate, the jury’s
finding under the trial court’s Mt. Healthy instruction that Deep would not have been hired based
on independent and legitimate reasons, even if he had never filed the 2006 lawsuit, is
incompatible with any possibility (1) that those reasons were in fact a mere pretext and (2) that
Roudebush’s and the Board’s true reason for not hiring Deep was based on retaliatory animus.
Accordingly, it was entirely appropriate for the district court to decline to give a pretext charge
as part of its Mt. Healthy instruction.
Finally, Deep asserts that the district court erred by dismissing, prior to trial, his state law
claims in his second federal action, N.D.N.Y. Dkt. No. 08-cv-930, as well as his individual-
capacity claims against the Board Members in both of the underlying actions. We review the
first claim de novo, see Chase Grp. Alliance v. City of N.Y. Dep’t of Fin., 620 F.3d 146, 150 (2d
Cir. 2010), and the second claim for abuse of discretion, see Dickerson v. Napolitano, 604 F.3d
732, 740 (2d Cir. 2010). Following a thorough examination of the record, we identify no error
with the court’s dismissal of these claims, and thus affirm substantially for the reasons identified
by the district court.
II. Defendants’ Cross-Appeal
Defendants challenge the district court’s denial of their application for a bill of costs
under N.D.N.Y. Local Rule 54.1(a). We ordinarily “accord substantial deference to a district
court’s interpretation of its own local rules,” Goldberg v. Danaher, 599 F.3d 181, 183 (2d Cir.
2010) (internal quotation marks omitted), and have held that a decision to award costs under
Rule 54 “rests within the sound discretion of the district court,” Dattner v. Conagra Foods, Inc.,
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458 F.3d 98, 100 (2d Cir. 2006) (internal quotation marks omitted). However, we will still
“review questions of law, including the interpretation of the relevant rules, de novo.” Id.
Local Rule 54.1(a) provides: “The party entitled to recover costs shall file, within thirty
(30) days after entry of judgment, a verified bill of costs on the forms that the Clerk provides.”
It clarifies, however, that “[p]ost-trial motions shall not serve to extend the time within which a
party may file a verified bill of costs as provided in this Rule, except on an order extending
time.” Id. Here, the district court denied Defendants’ application as untimely, noting that
judgment was entered in December 2009, and that Defendants failed to file their application until
August 2010. Defendants assert this was error because the word “judgment” in Rule 54.1(a)
should be interpreted to mean the district court’s “final judgment”–i.e., the order or decision that
resolves all outstanding issues, including any post-judgment motions. Thus, they assert, the
underlying “judgment” for purposes of Rule 54.1(a) was the district court’s July 2010 order
disposing of Deep’s post-judgment motions, and because they filed their application within thirty
days of that order, it was timely.
We disagree. Although post-judgment motions pursuant to Fed. R. Civ. P. 50(b) and 59
will ordinarily toll any applicable time period that turns on the date of the entry of judgment, see,
e.g., Fed. R. App. P. 4(a)(4)(A) (providing that if a party files one or a number of enumerated
post-judgment motions, the time period for filing a notice of appeal from the judgment runs from
the date on which the order disposing of such motion is entered), in adopting its local rule, the
district court has decided, within its discretion, that for purposes of an application for a bill of
costs, the filing of a post-judgment motion will not extend the applicable thirty-day time period
beginning on the date of entry of judgment except where the party moves for an order extending
time. Admittedly, the Northern District’s rule on bill of costs differs from that applicable in
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other districts within this Circuit, see E.D.N.Y. Local Rule 54.1(a); S.D.N.Y. Local Rule 54.1(a);
W.D.N.Y. Local Rule 54.1(a), but there is no conflict between that rule and the Federal Rules or
our precedent. Under the circumstances presented, Defendants should have, but failed to, file a
motion under Local Rule 54.1(a) to extend the time period for filing an application for costs.
That they chose not to does not make the rule invalid. Accordingly, we identify no abuse of
discretion with the district court’s denial of their application.
The judgment and orders of the district court are AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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