        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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