11-1780-cv
Ercole v. United States Department of Transportation



                           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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 21st day of June, two thousand twelve.

PRESENT:
            GUIDO CALABRESI,
            GERARD E. LYNCH,
            RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
__________________________________________

Joseph R. Ercole,
              Plaintiff-Appellant,

                             v.                                            No. 11-1780-cv

Ray LaHood, Secretary of the Department
of Transportation, AKA Mary E. Peters,
               Defendant-Appellee,

United States Department of Transportation,
               Defendant.
__________________________________________

FOR APPELLANT:                        Joseph R. Ercole, pro se, Ronkonkoma, New York.

FOR APPELLEES:                        Varuni Nelson, Thomas A. McFarland, Assistant United States
                                      Attorneys, for Loretta E. Lynch, United States Attorney, Eastern
                                      District of New York, Central Islip, New York.
       Appeal from a judgment of the United States District Court for the Eastern District of

New York (Joseph F. Bianco, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Joseph R. Ercole, proceeding pro se, appeals from the district court’s judgment

granting the defendant’s motion to dismiss the claims in Ercole’s third amended complaint,

which were brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.

§ 2000e et seq., the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., the

Administrative Procedure Act, 5 U.S.C. § 500 et seq., the Uniformed Services Employment and

Reemployment Rights Act, 38 U.S.C. § 4301 et seq., the Fifth and Fourteenth Amendments of

the federal Constitution, the Freedom of Information Act, 5 U.S.C. § 552, the False Claims Act,

31 U.S.C. § 3729 et seq., and Article 15 of the New York Human Rights Law, N.Y. Exec. Law

§§ 290-301. We assume the parties’ familiarity with the underlying facts, the procedural history

of the case, and the issues on appeal.

       This Court reviews “de novo a district court’s dismissal of a complaint pursuant to Rule

12(b)(6), construing the complaint liberally, accepting all factual allegations in the complaint as

true, and drawing all reasonable inferences in the plaintiff’s favor.” Chambers v. Time Warner,

Inc., 282 F.3d 147, 152 (2d Cir. 2002). To avoid dismissal, the complaint must plead “enough

facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 570 (2007). While pro se complaints must contain sufficient factual allegations to

meet the plausibility standard, a court should look for such allegations by reading pro se

complaints with “special solicitude” and interpreting them to raise the “strongest arguments that


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they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (per

curiam).

       Having conducted an independent and de novo review of the record in light of these

principles, we affirm the district court’s judgment for substantially the same reasons stated by

the district court in its order dated March 29, 2011, which also incorporated, in part, the district

court’s orders dated September 10, 2008, and March 30, 2010.

        We have considered all of Ercole’s remaining arguments, including his arguments that

the district court should have allowed discovery, and found them to be without merit.

Accordingly, the judgment of the district court is hereby AFFIRMED.


                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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