         11-1947
         Jenkins v. Collins Building Services

                           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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 17th day of October, two thousand twelve.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                CHESTER J. STRAUB,
10                CHRISTOPHER F. DRONEY,
11                     Circuit Judges.
12       _____________________________________
13
14       Frank Jenkins,
15
16                           Plaintiff-Appellant,
17
18                    v.                                          11-1947
19
20       Collins Building Services, SEIU
21       Local 32BJ,
22
23                           Defendants-Appellees.
24
25       _____________________________________
26
27


                                                  1
 1   FOR PLAINTIFF-APPELLANT:           Frank Jenkins, pro se,
 2                                      Bronx, New York.
 3
 4   FOR DEFENDANTS-APPELLEES:          Samantha Abeysekera, Daniel
 5                                      D. Schudroff, Jackson Lewis
 6                                      LLP, New York, NY.
 7
 8                                      Lyle D. Rowen, Office of
 9                                      the General Counsel, SEIU
10                                      Local, New York, NY.

11          Appeal from a judgment of the United States District

12   Court for the Southern District of New York (Hellerstein,

13   J.).

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

15   AND DECREED that the judgment of the district court is

16   VACATED and the case is REMANDED to the district court for

17   further proceedings.

18          Appellant Frank Jenkins, pro se, appeals from a

19   judgment entered on the pleadings, dismissing his employment

20   discrimination complaint against Collins Building Services

21   (“Collins”).    We assume the parties’ familiarity with the

22   underlying facts, the procedural history of the case, and

23   the issues on appeal.

24          We review de novo a district court’s decision granting

25   a motion for judgment on the pleadings.    Desiano v.

26   Warner-Lambert & Co., 467 F.3d 85, 89 (2d Cir. 2006).       In

27   doing so, “we apply the same standard as that applicable to

28   a motion under Rule 12(b)(6), accepting the allegations

                                    2
1    contained in the complaint as true and drawing all

2    reasonable inferences in favor of the nonmoving party.”         Id.

3    (internal quotation marks omitted).     “To survive a Rule

4    12(c) motion, the complaint must contain sufficient factual

5    matter, accepted as true, to state a claim to relief that is

6    plausible on its face.”     Bank of New York v. First

7    Millenium, Inc., 607 F.3d 905, 922 (2d Cir. 2010) (internal

8    quotation marks omitted).     We review a district court’s

9    denial of leave to amend for abuse of discretion.       In re

10   Tamoxifen Citrate Antitrust Litig., 466 F.3d 187, 220 (2d

11   Cir. 2006).

12   I.   Jenkins’s Discrimination Claims

13        The district court concluded that Jenkins’s statutory

14   discrimination claims against Collins were precluded under

15   14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009).        However,

16   the Supreme Court there expressly declined to decide whether

17   a CBA “operates as a substantive waiver of [a plaintiff’s]

18   ADEA rights because it not only precludes a federal lawsuit,

19   but also allows the Union to block arbitration of these

20   claims.”   Id. at 273-74.    For that reason, Pyett did not

21   mandate the dismissal of Jenkins’s discrimination claims.




                                     3
1    The district court therefore abused its discretion in

2    issuing a summary dismissal referencing only that case.1

3    II. Jenkins’s Hybrid Claim

4        Although Jenkins’s pro se complaint was somewhat

5    incoherent, his counseled memorandum of law (in opposition

6    to Collins’s motion for judgment on the pleadings and the

7    Union’s motion to dismiss) clarified that he had intended to

8    bring a “hybrid § 301/fair representation claim” consisting

9    of (1) a claim against Collins under § 301 of the Labor

10   Management Relations Act, 29 U.S.C. § 185, for breaching the

11   collective bargaining agreement (the “CBA”) between the

12   Union and the Realty Advisory Board, a multi-employer

13   bargaining group of which Collins is a member; and (2) a

14   claim against the Union under the National Labor Relations

15   Act, 29 U.S.C. § 159(a), for breaching its duty of fair

16   representation.   Jenkins’s memorandum requested leave to



         1
          Collins requests that we affirm the district court’s
     judgment based on the contents of a February 2010
     supplemental collective bargaining agreement between the
     Union and the Realty Advisory Board that explicitly permits
     an individual employee to compel arbitration in the event
     that the Union declines to do so on the employee’s behalf.
     This agreement was not before the district court, and we
     decline to decide its effect on Jenkins’s claims (if any).
     See Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It is the
     general rule . . . that a federal appellate court does not
     consider an issue not passed upon below.”). The district
     court may decide whether to consider the supplemental
     agreement on remand.
                                   4
1    file an amended complaint to that effect and noted that the

2    general rule requiring a plaintiff to exhaust the

3    contractual remedies in a CBA does not apply to hybrid

4    § 301/fair representation claims.   See DelCostello v. Int’l

5    Bhd. of Teamsters, 462 U.S. 151, 164 (1983).

6        A district court enjoys “broad discretion” to consider

7    a request for leave to amend which is informally raised in

8    an opposing memorandum and may (as here) deny such a request

9    by not addressing it.   See Tamoxifen, 466 F.3d at 220.

10       The district court will need to reconsider the denial

11   of the request to replead, given our vacatur of its decision

12   on the basis of Jenkins’s discrimination claims, and the

13   lower threshold for amendment when (as here) a plaintiff

14   retains counsel after filing a complaint pro se.    See

15   DeCarlo v. Fry, 141 F.3d 56, 62 (2d Cir. 1998).

16       The district court’s judgment is VACATED and the case

17   is REMANDED for further proceedings consistent with this

18   order.
19
20                               FOR THE COURT:
21                               Catherine O’Hagan Wolfe, Clerk
22
23




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