     14-2963
     Hamad v. District Council DC 37

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 1st day of May, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                ROSEMARY S. POOLER,
 8                PETER W. HALL,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       Zakher Hamad,
13                Plaintiff-Appellant,
14
15                    -v.-                                               14-2963
16
17       District Council DC 37; Lilian
18       Roberts, Executive Director DC 37;
19       Thomas Cooke,
20                Defendants-Appellees.
21       - - - - - - - - - - - - - - - - - - - -X
22
23       FOR APPELLANT:                        Rudy A. Dermesropian, New York,
24                                             New York.
25
26       FOR APPELLEES:                        Linda N. Keller, Greenberg
27                                             Burzichelli Greenberg P.C., Lake
28                                             Success, New York.

                                                  1
 1        Appeal from a judgment of the United States District
 2   Court for the Southern District of New York (Buchwald, J.).
 3
 4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 5   AND DECREED that the judgment of the district court be
 6   AFFIRMED.
 7
 8        Zakher Hamad appeals from the judgment of the United
 9   States District Court for the Southern District of New York
10   (Buchwald, J.), granting defendants’ motion to dismiss for
11   failure to state a claim. We assume the parties’
12   familiarity with the underlying facts, the procedural
13   history, and the issues presented for review.
14
15        We review de novo a district court’s grant of a motion
16   to dismiss for failure to state a claim, accepting all
17   factual allegations as true and drawing all reasonable
18   inferences in favor of the plaintiff. Lotes Co., Ltd. v.
19   Hon Hai Precision Indus. Co., 753 F.3d 395, 403 (2d Cir.
20   2014).
21
22        Because Hamad represented himself in the district
23   court, “we read his papers liberally and interpret them to
24   raise the strongest arguments that they suggest.” Brownell
25   v. Krom, 446 F.3d 305, 310 (2d Cir. 2006) (internal
26   quotation marks omitted). At the same time, “[t]o survive a
27   motion to dismiss, a complaint must contain sufficient
28   factual matter, accepted as true, to ‘state a claim for
29   relief that is plausible on its face.’” Ashcroft v. Iqbal,
30   556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
31   Twombly, 550 U.S. 544, 570 (2007)).
32
33        1. The district court, construing Hamad’s pro se
34   filings liberally, considered (and dismissed) a “hybrid”
35   claim under section 301 of the Labor Management Relations
36   Act and the implied duty of fair representation. Hamad’s
37   reply brief, submitted by counsel, disclaims any intent to
38   bring such a claim. See Appellant’s Reply Br. at 1
39   (“[T]here is no hybrid claim.”). So we need not consider
40   this issue on appeal.
41
42        2. Hamad alleges that defendants’ actions “violate the
43   labor union contract.” Compl. at 2. The district court
44   dismissed this claim, reasoning that Hamad had no rights
45   enforceable against defendants under the collective-
46   bargaining agreement between his union, District Council 37


                                  2
 1   (“the Union”), and his former employer, the Metropolitan
 2   Museum of Art (“the Museum”).
 3
 4        Hamad’s briefs barely mention any contract, so it is
 5   not clear whether Hamad intends to challenge this portion of
 6   the district court’s ruling on appeal. In any event, even
 7   assuming the claim is preserved, we agree with the district
 8   court that it is meritless. Hamad does not allege breach of
 9   any particular provision of any particular contract.
10   Instead, he offers nothing more than a legal conclusion:
11   that defendants “violate[d] the labor union contract.”
12   Compl. at 2. This bare and conclusory allegation is
13   insufficient. See Iqbal, 556 U.S. at 678-79.
14
15        Assuming (as the district court did) that Hamad is
16   referring to the collective-bargaining agreement, the claim
17   still fails: Hamad does not “point to language in the
18   collective-bargaining agreement specifically indicating an
19   intent to create obligations enforceable against the union
20   by the individual employees.” United Steelworkers of Am.,
21   AFL-CIO-CLC v. Rawson, 495 U.S. 362, 374 (1990). Nor can we
22   find any such language.
23
24        3. The gist of Hamad’s complaint (and briefing) is
25   that defendants violated the implied duty of fair
26   representation in the National Labor Relations Act.
27
28        A union “has a duty to represent fairly all employees
29   subject to the collective bargaining agreement.” Spellacy
30   v. Airline Pilots Ass’n–Int’l, 156 F.3d 120, 126 (2d Cir.
31   1998). To state a claim for a breach of the duty of fair
32   representation, the union member plaintiff must adequately
33   allege two elements: (1) “that the union’s actions or
34   inactions are either arbitrary, discriminatory, or in bad
35   faith”; and (2) “a causal connection between the union’s
36   wrongful conduct and their injuries.” Vaughn v. Air Line
37   Pilots Ass’n, Int’l, 604 F.3d 703, 709 (2d Cir. 2010)
38   (internal quotation marks and citation omitted).
39
40        “[A] union’s actions are arbitrary only if, in light of
41   the factual and legal landscape at the time of the union’s
42   actions, the union’s behavior is so far outside a wide range
43   of reasonableness as to be irrational.” Air Line Pilots
44   Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67 (1991) (internal
45   quotation marks and citation omitted). In other words,
46   “[t]actical errors are insufficient to show a breach of the
47   duty of fair representation; even negligence on the union’s

                                  3
 1   part does not give rise to a breach.” Barr v. United Parcel
 2   Serv., Inc., 868 F.2d 36, 43 (2d Cir. 1989).
 3
 4        Even accepting all of Hamad’s factual allegations as
 5   true, he fails to state a claim for the breach of the duty
 6   of fair representation. Hamad alleges that the Union should
 7   have challenged an arbitration decision because it granted
 8   him only partial relief. The arbitrator agreed with the
 9   Union that Hamad had been wrongfully terminated, and ordered
10   his reinstatement as a security officer at the Museum (on a
11   “last chance” basis). On the other hand, the award also
12   converted his time away from work to a suspension without
13   pay.
14
15        At most, the Union’s decision not to challenge the
16   arbitration award was a “tactical error,” or “negligence”--
17   Hamad makes no plausible allegation of bad faith or
18   irrational behavior. To the contrary: any challenge would
19   have had little chance of success, given the deference owed
20   even to “barely colorable” arbitration decisions.
21   STMicroelectronics, N.V. v. Credit Suisse Sec. (USA) LLC,
22   648 F.3d 68, 79 (2d Cir. 2011). Moreover, given the Union’s
23   victory in overturning Hamad’s termination (notwithstanding
24   Hamad’s long history of confrontations with museum patrons),
25   Hamad’s fair representation claim was appropriately
26   dismissed.
27
28        4. For the first time on appeal, Hamad directly
29   challenges the arbitration award as irrational, violative of
30   public policy, and ultra vires. This argument is forfeited,
31   because Hamad did not present it to the district court.
32   See, e.g., Merck Eprova AG v. Gnosis S.p.A., 760 F.3d 247,
33   266-67 (2d Cir. 2014) (arguments raised for the first time
34   on appeal are forfeited). Hamad’s pro se status earlier in
35   the litigation does not defeat our traditional forfeiture
36   rule. See, e.g., LoSacco v. City of Middletown, 71 F.3d 88,
37   92-93 (2d Cir. 1995). (Hamad makes no reference to this
38   claim in his reply brief, which was filed by counsel. Cf.
39   Carlisle Ventures, Inc. v. Banco Espanol de Credito, S.A.,
40   176 F.3d 601, 609-10 (2d Cir. 1999).)
41
42        In any event, the argument is meritless: Hamad offers
43   no reason to think that the arbitration award is irrational,
44   contrary to public policy, or beyond the scope of the
45   arbitrator’s authority. Nor can we find one, after our
46   review of the arbitration materials in the appellate record.
47

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1                             *    *   *
2
3        For the foregoing reasons, and finding no merit in
4   Hamad’s other arguments, we hereby AFFIRM the judgment of
5   the district court.
6
7                                 FOR THE COURT:
8                                 CATHERINE O’HAGAN WOLFE, CLERK
9




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