    17-1089-cv
    Greene v. St. Barnabas Hospital


                            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 ASUMMARY ORDER@). A PARTY CITING TO 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 6th day of April, two thousand eighteen.

    PRESENT:
                ROBERT D. SACK,
                PETER W. HALL,
                CHRISTOPHER F. DRONEY,
                      Circuit Judges.
    __________________________________________

    Lisa Greene,

                                Plaintiff-Appellant,

                       v.                                                       17-1089-cv

    St. Barnabas Hospital, 1199SEIU United
    Healthcare Workers East,

                      Defendant-Appellees.
    __________________________________________

    FOR PLAINTIFF-APPELLANT:                               Lisa Greene, pro se, Myrtle Beach, South
                                                           Carolina.




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FOR DEFENDANT-APPELLEES:

       1199SEIU UNITED HEALTHCARE                          DANA E. LOSSIA, Levy Ratner, P.C.,
       WORKERS EAST                                        New York, New York.

       ST. BARNABAS HOSPITAL                               JAMES S. FRANK, Epstein Becker &
                                                           Green, P.C., New York, New York.


       Appeal from a judgment of the United States District Court for the Southern District of

New York (Broderick, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Lisa Greene, proceeding pro se, appeals from the district court’s judgment

dismissing her complaint against her former employer, St. Barnabas Hospital (“the Hospital”), for

firing her without cause in violation of the collective bargaining agreement (“CBA”), and her

union, 1199SEIU United Healthcare Workers East (“the Union”), for breaching the duty of fair

representation. She alleged the following.

       The Union considered her a nuisance because her zealous advocacy on behalf of her

coworkers conflicted with its desire to be more deferential to the Hospital. In November 2014,

the Hospital fired her without cause in violation of the CBA. The CBA set forth a three-step

grievance process, culminating in a “third step meeting” with upper management, which was

typically held within one month (although it was not unheard of for the meetings to take several

months to schedule). Greene filed a grievance, and the Union set up a third step meeting for

February 2015. However, the Union intentionally mailed notification of the meeting to the wrong

address. When Greene discovered the missed meeting, she repeatedly contacted the Union. The


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Union ultimately rescheduled the meeting for October 2015. The rescheduled meeting was

subsequently canceled by the Union because of a death in someone’s family. That meeting had

not been rescheduled as of the commencement of the lawsuit in January 2016.1 Before the district

court, Greene alleged that the delay was arbitrary and that the Union acted in bad faith. The

district court dismissed Plaintiff’s complaint without prejudice for failure to state a claim,

reasoning that the Union’s conduct was not arbitrary or in bad faith and that the claim against the

Hospital also required a showing that the Union breached the duty of fair representation.

       “We review 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 survive a motion to dismiss under Rule 12(b)(6), the complaint

must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A

claim will have “facial plausibility when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,

556 U.S. at 678.

       A union has a duty to represent fairly all members subject to its CBA. Spellacy v. Airline



1
  During oral argument, counsel for the Union represented that the Union remains ready and
willing to schedule a third step meeting with Plaintiff. Oral Argument at 7:37, 8:30, 9:18–9:21.
The Court offered to refer this matter to mediation to set the terms of the third step meeting and to
defer a decision in this appeal until a step three meeting could be scheduled and accomplished.
Plaintiff was also advised she could continue to pursue a decision from this Court at any time.
Plaintiff declined the Union’s offer to set up the third step meeting and this Court’s offer of
mediation, and she asked the Court to make a decision on her appeal. Id. at 18:28–18:40.

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Pilots Assoc.-Int’l, 156 F.3d 120, 126 (2d Cir. 1998). It breaches that duty if its conduct toward

a member is “arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 190 (1967).

Here, Greene argues that the district court erred because the Union’s conduct was both arbitrary

and in bad faith.

       The district court properly concluded that the Union’s actions were not arbitrary. A

union’s actions are arbitrary only if they are “so far outside a wide range of reasonableness as to

be irrational.” Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67 (1991) (internal quotation

marks and citation omitted). Acting negligently is not sufficient. Vaughn v. Air Line Pilots

Ass’n, Int’l, 604 F.3d 703, 709 (2d Cir. 2010). A union may breach its duty when its delays in

processing a meritorious grievance result in prejudice to the plaintiff, such as foreclosing

arbitration. Young v. United States Postal Serv., 907 F.2d 305, 308 (2d Cir. 1990). Here,

although the delay beginning with the missed February 2015 meeting exceeded the typical one-

month timeline for scheduling the third step meeting, Greene admitted that it was not unheard of

for a meeting to take several months to schedule, and the Union did attempt to reschedule the

meeting in October 2015. Although the delay was excessive, it was not “so far outside a wide

range of reasonableness as to be irrational.” O’Neill, 499 U.S. at 67 (internal quotation marks and

citation omitted). Nor like the plaintiff in Young, Greene did not allege any incurable prejudice

resulting from the delay.

       Additionally, the district court properly concluded that the Union did not act in bad faith.

“A union acts in bad faith when it acts with an improper intent, purpose, or motive.” Spellacy,

156 F.3d at 126. Bad faith acts include “fraud, dishonesty, and other intentionally misleading

conduct.” Id. Tactical decisions and mere negligence do not amount to bad faith. Barr v.

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United Parcel Serv., Inc., 868 F.2d 36, 43–44 (2d Cir. 1989). Here, Greene alleged that the Union

sent notice of the February 2015 meeting to the wrong address knowing that she did not reside at

that address. This does not rise to the level of bad faith required under the standard in Vaughn v.

Air Line Pilots Assoc’n Int’l, particularly because the Union rescheduled the meeting for October

of the same year.      604 F.3d at 709–10.       Furthermore, under the circumstances, the later

cancellation of the October 2015 meeting because of a death of a family member constituted a

reasonable decision.

       We noted that the dismissal by the district court was without prejudice; thus, Greene may

file a new action in the future based on additional (and sufficient) allegations of bad faith.

       We have considered Greene’s remaining arguments and find them to be without merit.

We AFFIRM the judgment of the district court.


                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk of Court




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