11-790-cv
         Hoffmann v. Airquip Heating & Air Conditioning


                                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
 2       the Second Circuit, held at the Daniel Patrick Moynihan United
 3       States Courthouse, 500 Pearl Street, in the City of New York, on
 4       the 15th day of May, two thousand twelve.
 5
 6       PRESENT:
 7                 RICHARD C. WESLEY,
 8                 RAYMOND J. LOHIER, JR.,
 9                      Circuit Judges,
10                 J. GARVAN MURTHA,*
11                      District Judge.
12       _____________________________________
13
14       Ward Hoffmann,
15
16                                 Plaintiff-Appellant,
17
18                        v.                                             11-790-cv
19
20       Airquip Heating & Air Conditioning,
21
22                      Defendant-Appellee.
23       _____________________________________
24
25       FOR PLAINTIFF-APPELLANT:                         WARD HOFFMANN, pro se, Fairport,
26                                                        NY.
27


                      *
                   The Honorable J. Garvan Murtha, of the United States
             District Court for the District of Vermont, sitting by
             designation.

                                                            1
1    FOR DEFENDANTS-APPELLEES:     Peter C. Nelson, Esq., Pittsford,
2                                  NY.
3
4         Appeal from the judgment of the United States District

 5   Court for the Western District of New York (Larimer, J.).

 6        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 7   AND DECREED that the judgment of the district court is

 8   AFFIRMED.

 9        Plaintiff-Appellant Ward Hoffmann, pro se, appeals from

10   an award of summary judgment in favor of his former

11   employer, Airquip Heating & Air Conditioning (“Airquip”), in

12   his employment discrimination action brought pursuant to the

13   Age Discrimination in Employment Act, 29 U.S.C. § 621 et

14   seq., the Americans with Disabilities Act (“ADA”), 42 U.S.C.

15   § 12101 et seq., and the New York State Human Rights Law,

16   N.Y. Exec. Law §§ 290, 296.    We assume the parties’

17   familiarity with the underlying facts, the procedural

18   history of the case, and the issues on appeal.

19        Hoffmann first challenges the district court’s denial

20   of his motion for further discovery pursuant to Rule 56(d)

21   of the Federal Rules of Civil Procedure.      In opposing a

22   summary judgment motion on the ground that there was an

23   insufficient opportunity to conduct discovery, a litigant is

24   required to submit an affidavit that includes: “[(1)] the


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 1   nature of the uncompleted discovery; [(2)] how the facts

 2   sought are reasonably expected to create a genuine issue of

 3   material fact; [(3)] what efforts the affiant has made to

 4   obtain those facts; and [(4)] why those efforts were

 5   unsuccessful.”   Paddington Partners v. Bouchard, 

   1132, 1138 (2d Cir. 1994).

 7       Hoffmann’s attorney’s Rule 56(d) affidavit lacked any

 8   particularity as to how the facts sought would create an

 9   issue of material fact and made no attempt to explain the

10   efforts Hoffmann made to obtain those facts during the time

11   provided for discovery.   Indeed, there is no indication in

12   the record that Hoffmann made any effort to request

13   documents from Airquip or schedule depositions of Airquip

14   employees.   Accordingly, given Hoffmann’s failure to conduct

15   any discovery in the time provided, we find no abuse of

16   discretion in the district court’s denial of his motion for

17   further discovery.   See Paddington Partners, 34 F.3d at

18   1137.

19       Turning to the merits of the action, we review de novo

20   a district court’s grant of summary judgment, with the view

21   that “[s]ummary judgment is appropriate only if the moving

22   party shows that there are no genuine issues of material

23   fact and that the moving party is entitled to judgment as a


                                   3
 1   matter of law.”   Miller v. Wolpoff & Abramson, L.L.P., 321

 

, 300 (2d Cir. 2003).

 3       Upon such review, we affirm for substantially the same

 4   reasons set forth in the district court’s January 27, 2011

 5   memorandum decision and order.      The district court correctly

 6   concluded that, even assuming that Hoffmann had established

 7   a prima facie case of age and disability discrimination, he

 8   failed to present any evidence suggesting that Airquip’s

 9   legitimate reason for his termination—his August 28, 2008

10   outburst during which he kicked over several office garbage

11   cans and then abandoned a company vehicle in a mall parking

12   lot with its headlights on—was a pretext for discrimination.

13       We have considered all of Appellant’s remaining

14   arguments and find them to be without merit.      Accordingly,

15   we AFFIRM the judgment of the district court.
16
17                               FOR THE COURT:
18                               Catherine O’Hagan Wolfe, Clerk
19
20




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