16-603
Concepcion v. City of New York

                     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 Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 5th day of July, two thousand seventeen.

    PRESENT: DENNIS JACOBS,
             PIERRE N. LEVAL,
             REENA RAGGI,
                           Circuit Judges.

    - - - - - - - - - - - - - - - - - - - -X
    TINA R. CONCEPCION,
             Plaintiff-Appellant,

                 -v.-                                               16-603

    CITY OF NEW YORK,
             Defendant-Appellee,

    NEW YORK CITY DEPARTMENT OF CITYWIDE
    ADMINISTRATIVE SERVICES, NEW YORK
    CITY DEPARTMENT OF HEALTH AND MENTAL
    HYGIENE, NEW YORK CITY DEPARTMENT OF
    TRANSPORTATION, LEGAL AFFAIRS BUREAU
    OF PARKING,
             Defendants.

    - - - - - - - - - - - - - - - - - - - -X

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FOR APPELLANT:             Peter A. Hurwitz, Law Office of
                           Peter A. Hurwitz PLLC, New City,
                           NY.

FOR APPELLEES:             Jane L.   Gordon (Damion K. L.
                           Stodola   on the brief), for
                           Zachary   W. Carter, Corporation
                           Counsel   of the City of New York.

     Appeal from a judgment of the United States District
Court for the Southern District of New York (Peck, M.J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the magistrate judge be
AFFIRMED.

     Tina Concepcion alleges that New York City (“the City”)
failed to reasonably accommodate her disabilities,
discriminated against her based on numerous protected
categories, and retaliated against her for complaining about
those purported violations. The United States District
Court for the Southern District of New York (Peck, M.J.)
dismissed the suit on summary judgment. We assume the
parties’ familiarity with the underlying facts, the
procedural history, and the issues presented for review.

     1. Concepcion alleges errors in discovery. Although
her brief is obscure, its thrust is that the court erred in
denying her motion to compel the City to produce certain
documents. We review a denial of a motion to compel
discovery for abuse of discretion. In re Fitch, Inc., 330
F.3d 104, 108 (2d Cir. 2003).

     Discovery closed on November 10, 2015. At the
discovery conference the day before, the magistrate judge
asked Concepcion if she was satisfied with the City’s
performance of its discovery obligations. Concepcion stated
that she desired additional documents, and (after a somewhat
confusing colloquy) the magistrate judge ordered the City to
produce additional documents relating to the salaries of
City employees that had the same or a similar job title as
Concepcion. The magistrate judge then asked Concepcion
whether she had any additional discovery issues to raise,
reminding her that this was her last opportunity to do so.
Concepcion said, “That’s fine.”



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     On November 20, 2015, Concepcion filed a “motion to
compel,” stating that she had recently realized that the
government had not provided as many documents responding to
Concepcion’s initial request as she had thought. The motion
was vague and conclusory, did not identify the documents she
requested with particularity, and did not explain the
importance of her requested documents. The magistrate judge
summarily denied the motion, but ordered an additional
discovery conference. At the conference, the magistrate
judge declined to compel additional discovery.

     The denial of the motion to compel was well within the
court’s discretion.

     Concepcion suggests that the grant of summary judgment
was precluded by Federal Rule of Civil Procedure 56(d),1
which allows courts to defer consideration of a summary
judgment motion, or to issue other appropriate orders, when
the nonmovant “shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to
justify its opposition” to summary judgment. Concepcion
appears to fall well short of the requirements of this rule
on the merits, but in any event, she did not raise a Rule
56(d) argument before the magistrate judge. We decline to
consider this argument for the first time on appeal. See
Greene v. United States, 13 F.3d 577, 586 (2d Cir. 1994).

     2. Concepcion challenges the dismissal of her
retaliation claims and her claims under the Americans with
Disabilities Act (“ADA”); but her brief is so lacking in
argumentation that we deem the claims abandoned.2 “It is a
settled appellate rule that issues adverted to in a
perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived.” Tolbert v.
Queens Coll., 242 F.3d 58, 75 (2d Cir. 2001) (internal
quotation marks omitted).



    1
      Concepcion cites a previous version of Rule 56(d),
then codified at Rule 56(f). There is no substantive legal
difference between these versions of the Rule. See Fed. R.
Civ. P. 56 advisory committee’s note to 2010 amendment.
    2
      Concepcion asserted several other causes of action
before the magistrate judge that are not raised on appeal,
and are consequently abandoned.
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     The magistrate judge dismissed Concepcion’s ADA claims
after concluding that “[b]eyond the bare allegations in her
complaint, and testimony that her various disabilities cause
pain, Concepcion has presented little evidence as to what
her impairment is, or how it substantially limits a major
life activity.” Special App’x at 30 (citations omitted).
“[V]ague statements about a plaintiff’s difficulties . . . ,
without more, will not suffice to support a finding of an
ADA violation.” Parada v. Banco Industrial de Venezuela,
C.A., 753 F.3d 62, 69 (2d Cir. 2014). Summary judgment was
granted on the independent ground that “Concepcion has not
established that the City failed to provide her with
reasonable accommodations.” Special App’x at 31.
Concepcion’s brief does not contain a sufficient explanation
of how the magistrate judge purportedly erred. Her ADA
claim is therefore deemed abandoned.

     Moreover, Concepcion concedes that she cannot survive
summary judgment on her ADA claim unless she receives the
additional discovery she requested. Accordingly, our
affirmance of the denial of the motion to compel constitutes
an independent ground to affirm the grant of summary
judgment on the ADA claim.

     Concepcion’s retaliation claims are deemed abandoned.
The magistrate judge carefully considered Concepcion’s
numerous allegations of retaliation, and found that they
were conclusory, did not involve protected activities, did
not result in adverse employment actions, and involved non-
discriminatory actions taken by the City for an unrebutted,
legitimate purpose. Concepcion’s brief fails to address
these determinations in a meaningful way, conclusorily
reciting that “competent evidence” showed that the City’s
justifications were not legitimate if every inference is
taken in her favor. Appellant’s Opening Br. at 31. The
lack of a substantial attempt to develop Concepcion’s
arguments dooms her claims. See Tolbert, 242 F.3d at 75.

     For the foregoing reasons, and finding no merit in
Concepcion’s other arguments, we hereby AFFIRM the judgment
of the district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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