12-1369-cv
Llanos v. Brookdale Univ. Hosp. & Med. Ctr.

                      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 28th day of February, two thousand thirteen.
PRESENT:       DENNY CHIN,
               CHRISTOPHER F. DRONEY,
                         Circuit Judges,
               JANE A. RESTANI,*
                         Judge.
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RICARDO LLANOS,
                              Plaintiff-Appellant,

                      -v-                                         12-1369-cv

THE BROOKDALE UNIVERSITY HOSPITAL AND
MEDICAL CENTER, SODEXHO MARRIOT HEALTH
CARE SERVICES, SERVICE EMPLOYEES
INTERNATIONAL UNION LOCAL 1199 AFL-CIO,
                    Defendants-Appellees.
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FOR PLAINTIFF-APPELLANT:                      Regina Felton, Felton & Associates,
                                              Brooklyn, New York.

FOR DEFENDANT-APPELLEE                        Arjay G. Yao, Steven M. Berlin,
BROOKDALE UNIVERSITY                          Martin Clearwater & Bell LLP, New
HOSPITAL AND MEDICAL                          York, New York.
CENTER:

FOR DEFENDANT-APPELLEE                        Stanley L. Goodman, Donia F.
SODEXHO MARRIOT HEALTH                        Sawwan, Fox Rothschild LLP, New
CARE SERVICES:                                York, New York.
*
     The Honorable Jane A. Restani, of the United States Court of
International Trade, sitting by designation.
FOR DEFENDANT-APPELLEE          Richard Dorn, Levy Ratner, P.C.,
SERVICE EMPLOYEES               New York, New York.
INTERNATIONAL UNION
LOCAL 1199 AFL-CIO:

          Appeal from the United States District Court for the

Eastern District of New York (Irizarry, J.).
          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

          Plaintiff-appellant Ricardo Llanos appeals from a

judgment entered March 14, 2012, dismissing his amended complaint

for failure to state a claim.   In a memorandum and order filed

March 11, 2012, the district court dismissed Llanos's claims that

(1) he was wrongfully discharged by defendant-appellee Brookdale

University Hospital and Medical Center ("Brookdale"), in

violation of the collective bargaining agreement (the "CBA"); (2)

defendant-appellee Service Employees International Union Local

1199 AFL-CIO ("Local 1199") breached its duty of fair

representation by failing to properly represent him in the

grievance process; and (3) his civil rights were violated.     On

appeal, Llanos argues that the district court erred in dismissing

his claims.   We assume the parties' familiarity with the facts,

procedural history, and specification of issues for review.

          On appeal from a dismissal pursuant to Federal Rule of

Civil Procedure 12(b)(6), we review de novo whether the complaint

"'contain[s] sufficient factual matter, accepted as true, to

state a claim to relief that is plausible on its face.'"   Gibbons
v. Malone, 703 F.3d 595, 599 (2d Cir. 2013) (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009)).

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            First, Llanos has failed to plausibly plead that

Brookdale breached the CBA.1   Even assuming the CBA prohibited

Brookdale from delegating its discretion to fire employees for

cause to defendant-appellee Sodexho Marriot Health Care Services

("Sodexho") -- a point on which the CBA is silent -- Brookdale

implicitly ratified Sodexho's decision, retroactively making the

decision to terminate its own.    See Hamm v. United States, 483

F.3d 135, 140 (2d Cir. 2007) ("'Ratification is the affirmance by

a person of a prior act which did not bind him . . . whereby the

act, as to some or all persons, is given effect as if originally

authorized by him.'" (quoting Restatement (Second) of Agency § 82

(1958))).    While Llanos alleges that Sodexho employee Peter Ortiz

falsely accused him of urinating in public, he does not allege

that such conduct would be insufficient "cause" for termination,

nor does he allege that Local 1199 failed to contest Ortiz's

factual allegations in the grievance proceedings.    He only

alleges that Local 1199 failed to raise the legal argument that

Ortiz, as a Sodexho employee, could not exercise Brookdale's

authority to fire him.    Thus, the only plausible inference is


1
     Because Llanos did not exhaust all of the grievance and
arbitration remedies available to him in the CBA, he actually
pled his claim as a "hybrid" claim -- alleging both Brookdale's
violation of the CBA, in violation of the Labor Management
Relations Act § 301, 29 U.S.C. § 185, and the union's breach of
its duty of fair representation, in violation of the National
Labor Relations Act § 9(a), 29 U.S.C. § 159(a). See DelCostello
v. Int'l Bhd. of Teamsters, 462 U.S. 151, 164 (1983); White v.
White Rose Food, 237 F.3d 174, 178-79 & n.3 (2d Cir. 2001).
Because, as explained below, both of the underlying claims fail
on their own merits, the hybrid claim also fails. See
DelCostello, 462 U.S. at 164 ("[T]he two claims are inextricably
interdependent." (citation and internal quotation marks
omitted)).
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that Local 1199 did contest Ortiz's allegations in the grievance

proceedings and both appeals boards found them to be credible.

            Second, Llanos's complaint does not plausibly plead a

claim for breach of Local 1199's duty of fair representation.      To

prove a breach of the duty of fair representation, the plaintiff

must show that (1) the union engaged in arbitrary,

discriminatory, or bad faith conduct, and (2) the conduct caused

plaintiff's injuries.    See White v. White Rose Food, 237 F.3d

174, 179 (2d Cir. 2001).    "A union's actions are arbitrary only

if, in light of the factual and legal landscape at the time of

the union's actions, the union's behavior is so far outside a

'wide range of reasonableness,' as to be irrational."    Id.
(internal quotation marks, citation, and alteration omitted).      "A

showing of bad faith requires a showing of fraudulent, deceitful,

or dishonest action."    Id. (internal quotation marks, citation,

and alteration omitted).    Because the complaint does not

plausibly allege a breach of the CBA, we conclude that the

complaint also fails to allege that Local 1199 acted arbitrarily

or in bad faith by declining to pursue a meritless legal

argument.

            Finally, Llanos raised an unspecified civil rights

claim in his amended complaint, and he appears to argue, for the

first time on appeal, that this was an age discrimination claim.

This argument is waived because it was never raised before the

district court.    See In re Nortel Networks Corp. Secs. Litig.,
539 F.3d 129, 132 (2d Cir. 2008) (per curiam).    Even if we were

to consider it, this claim would fail on the merits because the


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complaint fails to plead any facts giving rise to a plausible

inference of discrimination.

          We have considered Llanos's remaining arguments and
find them to be without merit.    Accordingly, we AFFIRM the

judgment of the district court.

                                 FOR THE COURT:
                                 Catherine O'Hagan Wolfe, Clerk




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