10-58-cv (L)
Andrew Arnold v. 1199 SEIU et al.
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 twentieth day of April, two thousand eleven.
PRESENT: AMALYA L. KEARSE,
ROGER J. MINER,
DENNY CHIN,
Circuit Judges.
- - - - - - - - - - - - - - - - - - - -x
ANDREW ARNOLD,
Plaintiff-Appellant,
-v.- 10-58-cv(L),
10-262-cv (Con)
1199 SEIU, BETH ABRAHAM HEALTH SERVICES,
INC., YONI KONO, MAUREEN CONNOLLY,
Defendants-Appellees.
- - - - - - - - - - - - - - - - - - - -x
FOR PLAINTIFF-APPELLANT: Andrew Arnold, pro se, Bronx, New
York.
FOR DEFENDANTS-APPELLEES: Richard Dorn, Levy Ratner, P.C., New
York, New York, for 1199 SEIU.
Terri L. Chase, Jones Day, New York,
New York, for Beth Abraham Health
Services, Inc., Yoni Kono, and
Maureen Connolly.
Appeals from judgments of the United States District
Court for the Southern District of New York (Cote, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgments of the district court are AFFIRMED.
In this consolidated appeal, plaintiff-appellant Andrew
Arnold, proceeding pro se, appeals from judgments entered December
23 and 31, 2009. In No. 10-58-cv, Arnold appeals the district
court's December 23 judgment in Arnold v. 1199 SEIU (Arnold I), No.
09 Civ. 5576 (DLC), 2009 WL 4823906 (S.D.N.Y. Dec. 15, 2009),
granting the motions of defendant-appellee 1199 SEIU (the "Union")
(1) for summary judgment with respect to Arnold's "hybrid §
301/breach of the duty of fair representation" claim arising under
§ 301 of the Labor Management Relations Act of 1947 (the "LMRA"),
Pub. L. No. 80-101, 61 Stat. 136, and (2) to dismiss Arnold's
remaining claims for breach of contract and tortious interference
with contract. In No. 10-262-cv, Arnold appeals from the district
court's December 31 judgment in Arnold v. Beth Abraham Health
Services, Inc. (Arnold II), No. 09 Civ. 6049 (DLC), 2009 WL 5171736
(S.D.N.Y. Dec. 30, 2009), granting the motion of
defendants-appellees Beth Abraham Health Services, Inc., Yoni Kono,
and Maureen Connolly (collectively, the "Employer Defendants") to
dismiss Arnold's hybrid § 301/fair representation claim, as well as
his claims for discrimination and retaliation under Title VII,
breach of contract, and tortious interference with contract. We
assume the parties' familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
- 2 -
As an initial matter, by failing to challenge on appeal
the district court's dismissal of his Title VII, breach of
contract, and tortious interference claims, Arnold has abandoned
any such challenge. See LoSacco v. City of Middletown, 71 F.3d 88,
92-93 (2d Cir. 1995).1 In both appeals, however, Arnold challenges
the district court's determinations that his hybrid § 301/fair
representation cause of action was barred by the statute of
limitations.
"[T]o provide individual employees with recourse when a
union breaches its duty of fair representation in a grievance or
arbitration proceeding," an employee may bring a suit, referred to
as a "hybrid § 301/fair representation claim," against his union,
his employer, or both. Carrion v. Enter. Ass'n, Metal Trades
Branch Local Union 638, 227 F.3d 29, 33 (2d Cir. 2000) (per
curiam); see DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151,
163-64 (1983). To succeed on such a claim, the employee must prove
that (1) the employer breached the collective bargaining agreement
(the "CBA") and (2) the union breached its duty of fair
representation in redressing his grievance against the employer.
See id. at 165.
1
In addition, we conclude that the district court
properly dismissed Arnold's breach of contract and tortious
interference with contract claims as preempted by § 301. See
United Steelworkers of Am., AFL-CIO-CLC v. Rawson, 495 U.S. 362,
368 (1990) ("[A]ny state-law cause of action for violation of
collective-bargaining agreements is entirely displaced by federal
law under § 301."); Anderson v. Aset Corp., 416 F.3d 170, 171-72
(2d Cir. 2005) (per curiam) (holding that claim for tortious
interference with a collective bargaining agreement is preempted
by § 301).
- 3 -
A hybrid § 301/fair representation claim is subject to a
six-month statute of limitations, see Carrion, 227 F.3d at 32,
which "governs the claims against both the employer and the union,"
King v. N.Y. Tel. Co., 785 F.2d 31, 33 (2d Cir. 1986). Where a
union member sues his union alleging a breach of the union's duty
of fair representation, "the cause of action accrues no later than
the time when the union member[] knew or reasonably should have
known that a breach has occurred." Ramey v. Dist. 141, Int'l Ass'n
of Machinists & Aerospace Workers, 378 F.3d 269, 278 (2d Cir. 2004)
(brackets, ellipsis, and internal quotation marks omitted).
Additionally, an employee "'cannot circumvent the six-month
limitations period for hybrid actions by choosing to sue only [his]
employer'"; instead, the "'law is clear that regardless of who is
named as a defendant, a hybrid claim is presented [where] an
employee has a cause of action against both the employer and the
union, where the two claims are inextricably linked, and where the
case to be proved is the same against both.'" Carrion, 227 F.3d at
34 (quoting McKee v. Transco Prods., Inc., 874 F.2d 83, 86 (2d Cir.
1989)). The statute of limitations can be tolled until the
plaintiff discovers the breach "[w]hen a union's action or inaction
rises to the level of fraudulent concealment." Cohen v. Flushing
Hosp. & Med. Ctr., 68 F.3d 64, 69 (2d Cir. 1995). "Fraudulent
concealment is predicated on a union deliberately misleading the
plaintiff about a breach which he failed to discover during the
limitations period despite the exercise of due diligence." Id.
Because it was undisputed that Arnold filed the
- 4 -
complaints that initiated these actions on March 26, 2009, the
primary issues in these appeals are whether Arnold's hybrid § 301
cause of action accrued in the six months prior to March 26, 2009,
and, if not, whether he was entitled to equitable tolling.
1. Arnold I
In Arnold I, the district court properly granted the
Union's summary judgment motion. The court correctly concluded
that Arnold's hybrid § 301 cause of action accrued in June 2007,
approximately 21 months before Arnold filed suit on March 26, 2009,
well outside the six-month limitations period. Arnold's complaint
alleged that the Union breached its "statutory duty of fair
representation by the manner in which it handled [Arnold's]
grievance." Thus, Arnold's hybrid claim accrued when he "knew or
reasonably should have known" that the Union failed to fairly
"handle" his grievance. Ramey, 378 F.3d at 278. In Arnold I, the
district court properly determined that the claim accrued in early
June 2007, based upon Arnold's receipt in June 2007 of a May 30,
2007 letter from the Union to Arnold, in which the Union stated
that it would not pursue the grievance to arbitration. See Arnold
I, 2009 WL 4823906, at *1, 4.
Arnold, however, argues that he is entitled to equitable
tolling because the Union concealed from him its knowledge that he
had been assigned a disproportionately greater workload. We are
not persuaded. Arnold's own complaint stated that the issue of
disproportionate workload had been raised during the grievance
proceedings in May 2007. Thus, because Arnold was aware of his
- 5 -
purportedly disproportionate workload at the latest in May 2007,
any concealment of his disproportionate workload cannot supply a
basis for tolling the statute of limitations. We have considered
all of Arnold's remaining equitable tolling arguments and conclude
that they are without merit. Thus, the district court properly
granted the Union's summary judgment motion.
2. Arnold II
We affirm the district court's dismissal of the hybrid §
301 claim against the Employer Defendants in Arnold II, although we
rely on grounds different from those relied on by the district
court. As the district court recognized, the two complaints giving
rise to Arnold I and Arnold II were identical for all practical
purposes. See Arnold II, 2009 WL 5171736, at *3. Yet, the
district court arrived at two inconsistent conclusions as to
whether the complaint itself showed the accrual date of the hybrid
§ 301 claim. In its Arnold I decision, the district court
correctly explained that it could not grant the Union's motion to
dismiss the hybrid § 301 claim on time-bar grounds because it was
"not evident on the face of the complaint when [Arnold] knew, or
reasonably should have known, of the union's alleged 'failure to
represent [him] fairly.'" Arnold I, 2009 WL 4823906, at *4 (second
alteration in original). Then, in its Arnold II decision, the
district court explained that it was granting the Employer
Defendants' motion to dismiss the hybrid § 301 claim on time-bar
grounds because "[t]he complaint makes plain that '[p]laintiff's
grievance hearing was held May 24, 2007[.]' . . . Thus, no later
than May 24, 2007, [Arnold] knew or reasonably should have known
- 6 -
about Beth Abraham's alleged breach of the CBA." Arnold II, 2009
WL 5171736, at *3 (second alteration in original).
Notwithstanding this inconsistency, we affirm the
dismissal of Arnold II. Given the circumstances of these parallel
actions -- in particular, the order in which the district court
decided the cases and the intertwined nature of a hybrid § 301
claim -- the district court could have dismissed sua sponte the
hybrid § 301 claim against the Employer Defendants on the basis of
issue preclusion.
"The preclusive effect of a federal-court judgment is
determined by federal common law" and "is defined by claim
preclusion and issue preclusion, which are collectively referred to
as 'res judicata.'" Taylor v. Sturgell, 553 U.S. 880, 891-92
(2008). Issue preclusion "applies when (1) the issues in both
proceedings are identical, (2) the issue in the prior proceeding
was actually litigated and actually decided, (3) there was [a] full
and fair opportunity to litigate in the prior proceeding, and (4)
the issue previously litigated was necessary to support a valid and
final judgment on the merits." United States v. Hussein, 178 F.3d
125, 129 (2d Cir. 1999) (internal quotation marks omitted). "These
four factors are required but not sufficient. In addition, a court
must satisfy itself that application of the doctrine is fair."
Bear, Stearns & Co. v. 1109580 Ontario, Inc., 409 F.3d 87, 91 (2d
Cir. 2005).
Although res judicata is an affirmative defense that must
ordinarily be raised in a party's answer or else is waived, a
district court may raise the issue sua sponte in appropriate
- 7 -
circumstances. See Salahuddin v. Jones, 992 F.2d 447, 449 (2d Cir.
1993) (per curiam); see also Arizona v. California, 530 U.S. 392,
412 (2000) (recognizing that sua sponte dismissal on res judicata
grounds "might be appropriate in special circumstances").
In Arnold II, all four of the requirements for issue
preclusion were satisfied. See Hussein, 178 F.3d at 129. First,
the issues -- Arnold's hybrid § 301 claim and its timeliness --
were identical in both Arnold I and Arnold II because he made the
same allegations in both complaints, he was litigating each branch
of a single hybrid § 301 claim in each action, and the time-bar
analysis is the same for the Union and the Employer Defendants.
Second, Arnold and the Union actually litigated the timeliness of
the hybrid § 301 claim, and the district court actually decided it.
Third, Arnold had a full and fair opportunity to litigate in Arnold
I, because Arnold not only litigated the issue but his interests in
doing so were identical to his interests in Arnold II as the same
timeliness, accrual, and tolling analysis applied to both actions.
Fourth, the issue previously litigated was necessary to support a
valid and final judgment on the merits because the district court's
determination in Arnold I that the hybrid § 301 claim was
time-barred was the district court's sole basis for disposing of
the hybrid § 301 claim against the Union. In addition, the
circumstances demonstrate that applying issue preclusion in Arnold
II would have been fair, given the intertwined nature of a hybrid §
301 claim. See Bear, Stearns & Co., 409 F.3d at 91.
- 8 -
We have considered all of Arnold's remaining arguments
and find them to be without merit. Accordingly, we AFFIRM the
judgments of the district court.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
- 9 -