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 5 day of July, two thousand seventeen. th

PRESENT: DENNIS JACOBS,

PIERRE N. LEVAL,

REENA RAGGI,

Circuit Judges.

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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.

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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. “It is a 2

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). 

 Concepcion cites a previous version of Rule 56(d),

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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.

 Concepcion asserted several other causes of action

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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 nondiscriminatory 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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