11-1413-cv
Falso v. Rochester City 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
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 27th day of February, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 GUIDO CALABRESI,
10 ROSEMARY S. POOLER,
11 Circuit Judges.
12 _____________________________________
13
14 ANTHONY FALSO
15
16 Plaintiff-Appellant,
17
18 v. 11-1413-cv
19
20 ROCHESTER CITY SCHOOL DISTRICT,
21
22 Defendant-Appellee.
23 _____________________________________
24
25 FOR PLAINTIFF-APPELLANT: Anthony Falso, pro se,
26 Rochester, N.Y.
27
28 FOR DEFENDANT-APPELLEE: Michael E. Davis, for Charles G.
29 Johnson, General Counsel,
30 Rochester, N.Y.
1 Appeal from a judgment of the United States District
2 Court for the Western District of New York (Larimer, J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
4 AND DECREED that the judgment of the district court is
5 AFFIRMED.
6 Anthony Falso, pro se, appeals from the district
7 court’s judgment dismissing his employment discrimination
8 complaint on the Defendant’s motion for summary judgment.
9 We assume the parties’ familiarity with the underlying
10 facts, the procedural history, and the issues presented for
11 review.
12 We review a grant of summary judgment de novo and
13 consider whether the district court properly concluded that
14 there was no genuine issue as to any material fact and the
15 moving party was entitled to judgment as a matter of law.
16 See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300
17 (2d Cir. 2003). “In determining whether there are genuine
18 issues of material fact, we are required to resolve all
19 ambiguities and draw all permissible factual inferences in
20 favor of the party against whom summary judgment is sought.”
21 Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)
22 (internal quotation marks omitted). Summary judgment is
2
1 appropriate “[w]here the record taken as a whole could not
2 lead a rational trier of fact to find for the non-moving
3 party.” Matsushita Electric Indus. Co. v. Zenith Radio
4 Corp., 475 U.S. 574, 587 (1986).
5 Having conducted an independent and de novo review of
6 the record in light of these principles, we affirm the
7 district court’s decision for substantially the same reasons
8 stated by the district court in its March 31, 2011,
9 decision. Falso advances no specific facts or admissible
10 evidence that he was terminated on the basis of his Italian-
11 American national origin or evidence disputing the
12 Defendant’s showing that he was fired from his substitute
13 teaching position because of complaints about his
14 performance received from four different schools. Instead,
15 Falso simply relied on his allegation that a school
16 administrator told him “we don’t need your kind in our
17 school,” that this remark was directed at his Italian-
18 American heritage, and offered an alternative theory--
19 unsupported by any evidence--that the Defendant’s automated
20 telephone calling system discriminated against him and other
21 ethnic minorities. These assertions were insufficient to
22 satisfy Falso’s burden of opposing the Defendant’s motion
3
1 for summary judgment. See Bickerstaff v. Vassar Coll., 196
2 F.3d 435, 452 (2d Cir. 1999) (“Statements that are devoid of
3 any specifics, but replete with conclusions, are
4 insufficient to defeat a properly supported motion for
5 summary judgment.”); Kulak v. City of N.Y., 88 F.3d 63, 71
6 (2d Cir. 1996) (“[C]onclusory statements, conjecture, or
7 speculation by the party resisting the motion will not
8 defeat summary judgment.”).
9 Falso also argues that he was not afforded adequate
10 discovery prior to summary judgment. The Federal Rules of
11 Civil Procedure permit a party to “obtain discovery
12 regarding any nonprivileged matter that is relevant to any
13 party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). Under
14 this rule, “[a] party must be afforded a meaningful
15 opportunity to establish the facts necessary to support his
16 claim.” In re “Agent Orange” Prod. Liab. Litig., 517 F.3d
17 76, 103 (2d Cir. 2008). Falso received just that--he served
18 the Defendant with a list of interrogatories seeking, inter
19 alia, the number of substitute teachers and other employees
20 of the Defendant who were Italian-American, and the
21 Defendant disclaimed knowledge because it did not maintain
22 records of employee ethnicity according to that
4
1 classification. Although Falso now asserts on appeal that
2 the Defendant’s discovery responses were inadequate, he
3 never moved in the district court to compel further
4 discovery under Fed. R. Civ. P. 37(a). Though he mentioned
5 the need for additional discovery in his opposition to
6 summary judgment, Falso did not submit an affidavit in the
7 district court setting forth the additional facts he sought
8 to discover under Fed. R. Civ. P. 56(d). That omission “is
9 itself sufficient grounds to reject a claim that the
10 opportunity for discovery was inadequate.” Paddington
11 Partners v. Bouchard, 34 F.3d 1132, 1137 (2d Cir. 1994)
12 (addressing former Fed. R. Civ. P. 56(f)).
13 We have considered Falso’s remaining arguments and find
14 them to be without merit. Accordingly, we AFFIRM the
15 judgment of the district court.
16
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
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