11-1057-cv
Hunt v. Klein
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 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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 17th day of April, two thousand twelve.
PRESENT:
JON O. NEWMAN,
ROBERT A. KATZMANN,
BARRINGTON D. PARKER,
Circuit Judges.
______________________________________________
Sheldon Lamar Hunt,
Plaintiff-Appellant,
v. 11-1057-cv
Joel Klein, Chancellor, New York City Department
of Education,
Defendant-Appellee.
______________________________________________
FOR PLAINTIFF-APPELLANT: Sheldon Lamar Hunt, pro se, New York, N.Y.
FOR DEFENDANT-APPELLEE: Alyse Fiori, Special Assistant Corporation Counsel
(Pamela Seider Dolgow, Assistant Corporation
Counsel, on the brief), for Michael A. Cardozo,
Corporation Counsel of the City of New York, New
York, N.Y.
Appeal from the judgment of the United States District Court for the Southern District of
New York (Daniels, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Sheldon Hunt, proceeding pro se, appeals from the district court’s
judgment dismissing his complaint brought pursuant to the Uniformed Services Employment and
Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301 et seq. We assume the
parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on
appeal.
“We review the district court’s grant of a Rule 12(b)(6) motion to dismiss de novo,
accepting all factual claims in the complaint as true, and drawing all reasonable inferences in the
plaintiff’s favor.” Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010).
To survive a Rule 12(b)(6) motion to dismiss, 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, 129 S. Ct. 1937, 1949 (2009). Although all
allegations contained in the complaint are assumed to be true, this tenet is “inapplicable to legal
conclusions.” Iqbal, 129 S. Ct. at 1949. 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.” Id. Additionally, while pro se complaints must contain
sufficient factual allegations to meet the plausibility standard, see Harris v. Mills, 572 F.3d 66,
72 (2d Cir. 2009), we look for such allegations by reading the complaint with “special
solicitude” and interpreting it to raise the strongest claims it suggests, Triestman v. Fed. Bureau
of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (quoting Routolo v. I.R.S., 28 F.3d 6, 8 (2d Cir.
1994)).
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We have conducted a de novo review of the record in light of these standards and now
affirm for substantially the reasons set forth in the district court’s memorandum decision and
order. See Hunt v. Klein, 10 Civ. 2778 (GBD), 2011 WL 651876 (S.D.N.Y. Feb. 10, 2011). The
district court properly concluded that Hunt lacked standing to assert individual claims on the
basis of alleged violations of the collective bargaining agreement between his union and the New
York City Department of Education. See United States v. Brennan, 650 F.3d 65, 123 (2d Cir.
2011) (“Unless there is a breach of the duty of fair representation, ‘an individual union member
normally lacks standing to enforce the terms of a collective bargaining agreement between the
union and the employer.’”) (quoting Spano v. Kings Park Cent. Sch. Dist., 877 N.Y.S.2d 163,
167 (N.Y. App. Div. 2009)). Moreover, Hunt’s conclusory allegations that various employment
actions taken against him violated USERRA were insufficient to state a claim under that statute
because he provided no supporting facts upon which it could plausibly be inferred that his
military service or any protected activity was a “substantial or motivating factor in the adverse
[employment] action[s].” NLRB v. Transportation Management, 462 U.S. 393, 401 (1983).
Although we generally disfavor the dismissal of pro se complaints without leave to
replead, an opportunity to amend is not required if amendment would be futile. See Ellis v.
Chao, 336 F.3d 114, 127 (2d Cir. 2003). Here, we have independently determined that providing
Hunt with an opportunity to amend his complaint would be futile in light of the August 2010
decision rendered in his N.Y. Educ. Law § 3020-a proceeding. In that decision, the hearing
officer determined that Hunt was guilty of each of the allegations of misconduct that formed the
basis of his removal from the classroom and his ultimate termination. We have previously held
that the “Section 3020-a hearing is an administrative adjudication that must be given preclusive
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effect” by federal courts. Burkybile v. Bd. of Educ., 411 F.3d 306, 311-12 (2d Cir. 2005).
Although Hunt was informed of the pendency of the proceedings and given an opportunity to
respond to the allegations, he specifically informed the hearing officer that he did not wish to
contest the proceedings. He was provided with a full and fair opportunity to litigate the
misconduct charges, but he did not take advantage of that opportunity. See Curry v. City of
Syracuse, 316 F.3d 324, 332 (2d Cir. 2003) (holding that collateral estoppel applied when the
litigant had the opportunity to call witnesses, testify, present evidence, and cross-examine
adverse witnesses at the prior hearing, but chose not to exercise all of these options); see also
Kremer v. Chem. Constr. Corp., 456 U.S. 461, 485 (1982) (consideration whether a state
judgment should have preclusive effect on a subsequent federal action and concluding that
plaintiff’s “fail[ure] to avail himself of the full procedures provided by state law does not
constitute a sign of their inadequacy”); Creinis v. Hanover Ins. Co., 872 N.Y.S. 2d 544, 548 (2d
Dep’t 2009) (holding that collateral estoppel applied where a plaintiff was made a party to a
proceeding to stay arbitration and “inexcusably failed to participate in that proceeding”). It is
thus clear that a remand to provide Hunt an opportunity to amend his complaint would be futile
because he would be precluded from arguing that the adverse employment actions he suffered
were motivated by his membership in the armed forces, rather than his actual misconduct. See
Staub v. Proctor Hosp., 131 S. Ct. 1186, 1193 (2011) (“[I]f the employer’s investigation results
in an adverse action for reasons unrelated to the supervisor’s original biased action . . . , then the
employer will not be liable [under USERRA].”)).
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Finally, in his reply brief, Hunt attempts to raise a 42 U.S.C. § 1983 due process claim
regarding the procedures utilized in his N.Y. Educ. Law § 3020-a hearing. Although Hunt
argued in the district court that the § 3020-a proceeding was improper because he was never
afforded a probable cause hearing and was forced to appear at one hearing without an attorney,
he never cast these arguments in terms of a freestanding constitutional due process violation.
Instead, he asserted only that the proceedings violated § 3020-a itself and provisions of his
collective bargaining agreement, and that his ultimate termination following the § 3020-a
proceeding supported his USERRA claim. Accordingly, it was not error for the district court to
dismiss Hunt’s challenge to the § 3020-a proceeding on the ground that the only statutory avenue
to appeal the hearing officer’s decision was via an Article 75 petition filed in the New York
Supreme Court. See N.Y. Educ. Law § 3020-a(5) (“Not later than ten days after receipt of the
hearing officer’s decision, the employee or the employing board may make an application to the
New York state supreme court to vacate or modify the decision of the hearing officer pursuant to
[N.Y. C.P.L.R. § 7511].”). Moreover, because his § 1983 claim was not raised below, we
decline to consider the issue on appeal. See Virgilio v. City of N.Y., 407 F.3d 105, 116 (2d Cir.
2005) (“In general we refrain from passing on issues not raised below.” (internal quotation
marks omitted)).
We have considered all of Hunt’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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