22-1715-cv Tenemille v. Town of Ramapo
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 15th day of September, two thousand twenty-five.
PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, JOSÉ A. CABRANES, BARRINGTON D. PARKER, Circuit Judges. _____________________________________
Ernst Theodore Tenemille,
Plaintiff-Appellant,
v. 22-1715
Town of Ramapo, Christopher St. Lawrence, Ex-Town Supervisor, Patrick Withers, Councilman, Town of Ramapo Police Department, Bradley R. Weidel, Chief of Police, Thomas Cokeley, Chief of Staff, David Holmes, Police Lieutenant, William Gravina, Ex- Administrative Lieutenant, Daniel Hyman, Squad Lieutenant, Brian Corbett, Detective Sergeant, Salomon Matos, Squad Sergeant, Christopher Franklin, Desk Sergeant, Al Gumbs, Police Sergeant,
Defendants-Appellees. _____________________________________
FOR PLAINTIFF-APPELLANT: Ernst T. Tenemille, pro se, New City, NY.
FOR DEFENDANTS-APPELLEES: Steven C. Stern, Sokoloff Stern LLP, Carle Place, NY.
Appeal from a judgment and order of the United States District Court for
the Southern District of New York (Kenneth M. Karas, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment and June 7, 2022 order of the
district court are AFFIRMED.
Ernst Theodore Tenemille, pro se, appeals from the district court’s dismissal
of his employment discrimination action and the denial of his Federal Rule of Civil
2 Procedure 60(b) motion for reconsideration. Tenemille commenced this action
against the Town of Ramapo (the “Town”), the Town of Ramapo Police
Department (the “Department”) (his former employer), and Town and
Department officials, alleging discrimination, harassment, and retaliation,
culminating in his December 2016 termination, allegedly in violation of Title VII,
42 U.S.C. § 1983, and several state law provisions.
Tenemille’s pro se fourth amended complaint alleged that he was employed
by the Department as a police officer from August 2002 until December 2016. In
November 2015, Tenemille was investigated by the Police Department for
submitting allegedly improper sick notes for absences due to a minor injury,
culminating in his termination on December 16, 2016. Tenemille alleged that the
investigation and his termination were due to discrimination based on his national
origin and/or his race, and as retaliation for his protected activity of questioning
the Defendants’ access of his private medical information.
The defendants moved, under Federal Rule of Civil Procedure 12(b)(6), to
dismiss the fourth amended complaint as time-barred and for failure to state a
claim. In January 2022, the district court granted the defendants’ motion to
dismiss, reasoning that some of Tenemille’s allegations were time-barred, and that
3 his timely allegations failed to state a claim. The court granted Tenemille 30 days
to file a fifth amended complaint.
In lieu of amending, Tenemille moved for reconsideration. The district court
construed the motion under Rule 60(b) and denied it, concluding that relief was
not warranted. Tenemille timely appealed the district court’s judgment and the
denial of his motion for reconsideration.
We assume the parties’ familiarity with the remaining facts, the procedural
history, and the issues on appeal.
I. Dismissal of the Fourth Amended Complaint
“We review a dismissal for failure to state a claim de novo.” Sharikov v. Philips
Med. Sys. MR, Inc., 103 F.4th 159, 166 (2d Cir. 2024). “A complaint survives a Rule
12(b)(6) motion to dismiss if the facts, taken as true and with all reasonable
inferences drawn in the plaintiff’s favor, state a plausible claim to relief.” Id.
“While we are required to assume the truth of the ‘well-pleaded factual
allegations’ in the complaint, that obligation is ‘inapplicable to legal conclusions,’
such as ‘[t]hreadbare recitals of the elements of a cause of action’ that are
‘supported by mere conclusory statements.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678–79 (2009)).
4 “[T]o properly assert a claim of discrimination against an employer under
Title VII, a plaintiff must allege two elements: (1) the employer discriminated
against [him] (2) because of [his] race, color, religion, sex, or national origin.” Buon
v. Spindler, 65 F.4th 64, 78 (2d Cir. 2023) (internal quotation marks and citation
omitted). “To state a claim under § 1983, a plaintiff must allege the violation of a
right secured by the Constitution and laws of the United States, and must show
that the alleged deprivation was committed by a person acting under color of state
law.” Id. (citation omitted). “A state employee acting in his official capacity is
acting under color of state law,” and “[o]nce the color of law requirement is met,
a plaintiff’s equal protection claim parallels his Title VII claim, except that a § 1983
claim, unlike a Title VII claim, can be brought against an individual.” Id. (citations
omitted).
“[F]or a discrimination claim to survive a motion to dismiss, absent direct
evidence of discrimination, what must be plausibly supported by facts alleged in
the complaint is that the plaintiff (1) is a member of a protected class, (2) was
qualified, (3) suffered an adverse employment action, and (4) has at least minimal
support for the proposition that the employer was motivated by discriminatory
intent.” Id. (alterations, internal quotation marks, and citation omitted).
5 We agree with the district court that Tenemille’s allegations related to his
doctors’ notes failed to plausibly allege discriminatory intent, as necessary to
survive a motion to dismiss.
To establish an inference of discrimination through the use of comparators,
Tenemille was required to show “a reasonably close resemblance of the facts and
circumstances of [his] and [his] comparator’s cases.” Radwan v. Manuel, 55 F.4th
101, 132 (2d Cir. 2022) (internal quotation marks and citation omitted). Here,
Tenemille asserted that there were numerous “similarly situated” white officers
who “turned in doctor’s notes identical to Plaintiff’s without legal challenge or
investigation based on wording.” App’x 7 (Compl. ¶ 35). However, Tenemille
failed to allege any further detail about these purportedly “identical” doctors’
notes or about the other officers that would suffice to show that he was “similarly
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22-1715-cv Tenemille v. Town of Ramapo
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 15th day of September, two thousand twenty-five.
PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, JOSÉ A. CABRANES, BARRINGTON D. PARKER, Circuit Judges. _____________________________________
Ernst Theodore Tenemille,
Plaintiff-Appellant,
v. 22-1715
Town of Ramapo, Christopher St. Lawrence, Ex-Town Supervisor, Patrick Withers, Councilman, Town of Ramapo Police Department, Bradley R. Weidel, Chief of Police, Thomas Cokeley, Chief of Staff, David Holmes, Police Lieutenant, William Gravina, Ex- Administrative Lieutenant, Daniel Hyman, Squad Lieutenant, Brian Corbett, Detective Sergeant, Salomon Matos, Squad Sergeant, Christopher Franklin, Desk Sergeant, Al Gumbs, Police Sergeant,
Defendants-Appellees. _____________________________________
FOR PLAINTIFF-APPELLANT: Ernst T. Tenemille, pro se, New City, NY.
FOR DEFENDANTS-APPELLEES: Steven C. Stern, Sokoloff Stern LLP, Carle Place, NY.
Appeal from a judgment and order of the United States District Court for
the Southern District of New York (Kenneth M. Karas, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment and June 7, 2022 order of the
district court are AFFIRMED.
Ernst Theodore Tenemille, pro se, appeals from the district court’s dismissal
of his employment discrimination action and the denial of his Federal Rule of Civil
2 Procedure 60(b) motion for reconsideration. Tenemille commenced this action
against the Town of Ramapo (the “Town”), the Town of Ramapo Police
Department (the “Department”) (his former employer), and Town and
Department officials, alleging discrimination, harassment, and retaliation,
culminating in his December 2016 termination, allegedly in violation of Title VII,
42 U.S.C. § 1983, and several state law provisions.
Tenemille’s pro se fourth amended complaint alleged that he was employed
by the Department as a police officer from August 2002 until December 2016. In
November 2015, Tenemille was investigated by the Police Department for
submitting allegedly improper sick notes for absences due to a minor injury,
culminating in his termination on December 16, 2016. Tenemille alleged that the
investigation and his termination were due to discrimination based on his national
origin and/or his race, and as retaliation for his protected activity of questioning
the Defendants’ access of his private medical information.
The defendants moved, under Federal Rule of Civil Procedure 12(b)(6), to
dismiss the fourth amended complaint as time-barred and for failure to state a
claim. In January 2022, the district court granted the defendants’ motion to
dismiss, reasoning that some of Tenemille’s allegations were time-barred, and that
3 his timely allegations failed to state a claim. The court granted Tenemille 30 days
to file a fifth amended complaint.
In lieu of amending, Tenemille moved for reconsideration. The district court
construed the motion under Rule 60(b) and denied it, concluding that relief was
not warranted. Tenemille timely appealed the district court’s judgment and the
denial of his motion for reconsideration.
We assume the parties’ familiarity with the remaining facts, the procedural
history, and the issues on appeal.
I. Dismissal of the Fourth Amended Complaint
“We review a dismissal for failure to state a claim de novo.” Sharikov v. Philips
Med. Sys. MR, Inc., 103 F.4th 159, 166 (2d Cir. 2024). “A complaint survives a Rule
12(b)(6) motion to dismiss if the facts, taken as true and with all reasonable
inferences drawn in the plaintiff’s favor, state a plausible claim to relief.” Id.
“While we are required to assume the truth of the ‘well-pleaded factual
allegations’ in the complaint, that obligation is ‘inapplicable to legal conclusions,’
such as ‘[t]hreadbare recitals of the elements of a cause of action’ that are
‘supported by mere conclusory statements.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678–79 (2009)).
4 “[T]o properly assert a claim of discrimination against an employer under
Title VII, a plaintiff must allege two elements: (1) the employer discriminated
against [him] (2) because of [his] race, color, religion, sex, or national origin.” Buon
v. Spindler, 65 F.4th 64, 78 (2d Cir. 2023) (internal quotation marks and citation
omitted). “To state a claim under § 1983, a plaintiff must allege the violation of a
right secured by the Constitution and laws of the United States, and must show
that the alleged deprivation was committed by a person acting under color of state
law.” Id. (citation omitted). “A state employee acting in his official capacity is
acting under color of state law,” and “[o]nce the color of law requirement is met,
a plaintiff’s equal protection claim parallels his Title VII claim, except that a § 1983
claim, unlike a Title VII claim, can be brought against an individual.” Id. (citations
omitted).
“[F]or a discrimination claim to survive a motion to dismiss, absent direct
evidence of discrimination, what must be plausibly supported by facts alleged in
the complaint is that the plaintiff (1) is a member of a protected class, (2) was
qualified, (3) suffered an adverse employment action, and (4) has at least minimal
support for the proposition that the employer was motivated by discriminatory
intent.” Id. (alterations, internal quotation marks, and citation omitted).
5 We agree with the district court that Tenemille’s allegations related to his
doctors’ notes failed to plausibly allege discriminatory intent, as necessary to
survive a motion to dismiss.
To establish an inference of discrimination through the use of comparators,
Tenemille was required to show “a reasonably close resemblance of the facts and
circumstances of [his] and [his] comparator’s cases.” Radwan v. Manuel, 55 F.4th
101, 132 (2d Cir. 2022) (internal quotation marks and citation omitted). Here,
Tenemille asserted that there were numerous “similarly situated” white officers
who “turned in doctor’s notes identical to Plaintiff’s without legal challenge or
investigation based on wording.” App’x 7 (Compl. ¶ 35). However, Tenemille
failed to allege any further detail about these purportedly “identical” doctors’
notes or about the other officers that would suffice to show that he was “similarly
situated” to these other officers “in all material respects.” Radwan, 55 F.4th at 132.
Tenemille’s conclusory assertion was not enough to “nudg[e] [his] claims across
the line from conceivable to plausible.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007).
6 II. Denial of the Motion for Reconsideration
“A denial of a motion to vacate a judgment under Rule 60(b) is reviewed for
abuse of discretion.” Mandala v. NTT Data, Inc., 88 F.4th 353, 359 (2d Cir. 2023)
(citation omitted). “Under this standard, we must affirm the denial of vacatur,
unless the ruling is based on an erroneous view of the law or on a clearly erroneous
assessment of the evidence.” Id. (alteration and citation omitted).
The district court did not abuse its discretion by denying Tenemille’s Rule
60(b) motion. On appeal, Tenemille primarily argues that his motion for
reconsideration alleged fraud warranting relief under Rule 60(b)(3). “To prevail
on a Rule 60(b)(3) motion, a movant must show that the conduct complained of
prevented the moving party from fully and fairly presenting his case.” State St.
Bank & Trust Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158, 176 (2d Cir. 2004)
(internal quotation marks and citation omitted). Here, Tenemille’s allegations of
fraud related solely to the alleged events underlying his fourth amended
complaint. Because Tenemille did not show that the defendants prevented him
from fully and fairly presenting his case, and instead merely reiterated his
previous allegations, the district court did not abuse its discretion by denying Rule
60(b) relief.
7 We have considered Tenemille’s remaining arguments and conclude they
are without merit. Accordingly, we AFFIRM the judgment and June 7, 2022 order
of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court