         12-1655
         Lunts v. Rochester City School Dist.


                                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
 2       at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
 3       York, on the 20th day of March, two thousand thirteen.
 4
 5       PRESENT:
 6                   DENNIS JACOBS,
 7                         Chief Judge,
 8                   JOSÉ A. CABRANES,
 9                   RICHARD C. WESLEY,
10                         Circuit Judges.
11       _____________________________________
12
13       Ellen Lunts, Alexander Lunts,
14
15                                  Plaintiffs-Appellants,
16
17                         v.                                                      12-1655-cv
18
19       Rochester City School District, SUNY Empire
20       State College, State University of New York
21       (SUNY),
22
23                                  Defendants-Appellees.
24
25       _____________________________________
26
27       FOR PLAINTIFFS-APPELLANTS:                          Ellen Lunts, Alexander Lunts, pro se, Rochester,
28                                                           NY.
29
30       FOR DEFENDANTS-APPELLEES:                           Edwin Lopez-Soto, General Counsel; Cara M.
31                                                           Briggs, Associate General Counsel, for Appellee
32                                                           Rochester City School District; Rochester, NY.
 1                                                  Eric T. Schneiderman, Attorney General of the
 2                                                  State of New York; Barbara D. Underwood,
 3                                                  Solicitor General; Denise A. Hartman, Assistant
 4                                                  Solicitor General; Zainab A. Chaudhry, Assistant
 5                                                  Solicitor General, for the State University of New
 6                                                  York Appellees; Albany, NY.

 7          Appeal from a judgment of the United States District Court for the Western District of

 8   New York (Telesca, J.).

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

10   DECREED that the judgment of the district court is AFFIRMED.

11          Appellants Ellen and Alexander Lunts, proceeding pro se, appeal the district court’s

12   judgment granting the Defendants-Appellees summary judgment and dismissing their claims

13   brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title

14   VII”), and the Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1) (“EPA”). We assume the parties’

15   familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

16          We review a district court’s grant of summary judgment de novo, construing the evidence

17   in the light most favorable to the non-moving party. See Tenenbaum v. Williams, 193 F.3d 581,

18   593 (2d Cir. 1999). Summary judgment is appropriate where “there is no genuine dispute as to

19   any material fact and the movant is entitled to a judgment as a matter of law,” Fed. R. Civ. P.

20   56(a), i.e., “[w]here the record taken as a whole could not lead a rational trier of fact to find for

21   the nonmoving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

22   (1986). Although the evidence is viewed in favor of the non-moving party, “‘the mere existence

23   of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be

24   evidence on which the jury could reasonably find for the plaintiff.’” Jeffreys v. City of New

25   York, 426 F.3d 549, 554 (2d Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

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 1   252 (1986)) (internal alterations and emphasis omitted). It is insufficient to “‘rely on conclusory

2    allegations or unsubstantiated speculation’” to defeat a motion for summary judgment. Id. at 554

 3   (quoting Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir. 2001)). We review for

 4   abuse of discretion a district court’s denial of more time to conduct discovery. Paddington

 5   Partners v. Bouchard, 34 F.3d 1132, 1137 (2d Cir. 1994).

 6          Here, an independent review of the record and relevant case law confirms that the district

 7   court properly granted the defendants summary judgment and did not abuse its discretion in

 8   declining to afford the Luntses more time for discovery. We affirm for substantially the same

 9   reasons stated by the district court in its thorough September 13, 2011 decision and order.

10          First, the district court properly granted summary judgment to the Rochester City School

11   District (“RCSD”) on the ground that Ms. Lunts was not an employee of the RCSD, nor could

12   the RCSD be viewed as her “joint employer.” See United States v. City of New York, 359 F.3d

13   83, 91-92 (2d Cir. 2004) (stating that an employee must prove that “she was hired by the putative

14   employer” by establishing that “she received remuneration in some form for her work”); NLRB

15   v. Solid Waste Services, Inc., 38 F.3d 93, 94 (2d Cir. 1994) (per curiam) (holding that “[a] joint

16   employer relationship may be found to exist where there is sufficient evidence that [one entity]

17   had immediate control over the other company’s employees,” and identifying “commonality of

18   hiring, firing, discipline, pay, insurance, records, and supervision” as relevant factors (citing

19   Clinton’s Ditch Coop. Co. v. NLRB, 778 F.2d 132, 138-139 (2d Cir. 1985)).

20          Second, insofar as Ms. Lunts argues that the district court failed to address her claim that

21   she suffered retaliation for complaining to her direct supervisor about offensive remarks made by

22   one of her students, she did not raise this claim in the complaint. See Greenidge v. Allstate Ins.


                                                       3
 1   Co., 446 F.3d 356, 361 (2d Cir. 2006) (declining to reach the merits of an argument raised for the

 2   first time in opposition to summary judgment).

 3          Finally, the district court did not abuse its discretion in denying the Luntses additional

 4   discovery to oppose summary judgment. A party resisting summary judgment on the ground that

 5   it needs additional discovery in order to defeat the motion must submit an affidavit pursuant to

 6   Federal Rule of Civil Procedure 56(d) (formerly Rule 56(f)), showing: “‘(1) what facts are

 7   sought and how they are to be obtained, (2) how those facts are reasonably expected to create a

 8   genuine issue of material fact, (3) what effort affiant has made to obtain them, and (4) why the

 9   affiant was unsuccessful in those efforts.’” Meloff v. N.Y. Life Ins. Co., 51 F.3d 372, 375 (2d Cir.

10   1995) (quoting Hudson River Sloop Clearwater, Inc. v. Dep’t of Navy, 891 F.2d 414, 422 (2d

11   Cir. 1989)). The failure to file a Rule 56(d) affidavit sufficiently explaining the need for

12   additional discovery “is itself sufficient grounds to reject a claim that the opportunity for

13   discovery was inadequate.” See Paddington Partners, 34 F.3d at 1137 (concluding that a

14   reference to the need for additional discovery in a memorandum in opposition to summary

15   judgment was not an adequate substitute for the required affidavit). The Luntses’ sworn

16   affidavit in opposition to summary judgment did not meet the requirements of Rule 56(d)

17   because it contained only conclusory allegations of incomplete discovery. Although the Luntses

18   set forth more detailed allegations in an October 2010 letter to the district court, that letter was

19   filed prior to the commencement of summary judgment proceedings in November 2010 and

20   therefore could not reasonably have been construed as a sufficient Rule 56(d) affidavit. Finally,

21   in their brief, the Luntses have not identified any potentially discoverable evidence that would

22   have raised a genuine issue of material fact as to any of their claims.


                                                       4
1           We have considered all of the Luntses’ remaining arguments and find them to be without

 2   merit. Accordingly, we AFFIRM the judgment of the district court.

 3                                              FOR THE COURT:
 4                                              Catherine O’Hagan Wolfe, Clerk
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