1 11-1947 Jenkins v. Collins Building Services 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED ON OR AFTER**  **J ANUARY**  **1, 2007,**  **IS PERMITTED AND IS GOVERNED BY F**  **EDERAL R** **ULE OF A** **PPELLATE P**  **ROCEDURE 32.1**  **AND THIS COURT ’**  **S L** **OCAL R** **ULE 32.1.1.**  **W HEN CITING A SUMMARY ORDER IN A**  **DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 17 th** **day of October, two thousand twelve.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 Chief Judge, 8 **CHESTER J. STRAUB,** 9 **CHRISTOPHER F. DRONEY,** 10 Circuit Judge **s.** 11

**_____________________________________** 12 13 **Frank Jenkins,** 14 15 Plaintiff-Appellant **,** 16 17 **v. 11-1947** 18 19 **Collins Building Services, SEIU** 20 **Local 32BJ,** 21 22 Defendants-Appellees **.** 23 24

**_____________________________________** 25 26 272 **FOR PLAINTIFF-APPELLANT:** Frank Jenkins, pro se , 1 Bronx, New York. 2 3 **FOR DEFENDANTS-APPELLEES:** Samantha Abeysekera, Daniel 4 D. Schudroff, Jackson Lewis 5 LLP, New York, NY. 6 7 Lyle D. Rowen, Office of 8 the General Counsel, SEIU 9 Local, New York, NY. 10 Appeal from a judgment of the United States District 11 Court for the Southern District of New York (Hellerstein, 12

J .). 13 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,** 14

**AND DECREED**that the judgment of the district court is 15

**VACATED**and the case is **REMANDED**to the district court for 16 further proceedings. 17 Appellant Frank Jenkins, pro se , appeals from a 18 judgment entered on the pleadings, dismissing his employment 19 discrimination complaint against Collins Building Services 20 (“Collins”). We assume the parties’ familiarity with the 21 underlying facts, the procedural history of the case, and 22 the issues on appeal. 23 We review de novo a district court’s decision granting 24 a motion for judgment on the pleadings. Desiano v. 25 Warner-Lambert & Co. , 467 F.3d 85, 89 (2d Cir. 2006). In 26 doing so, “we apply the same standard as that applicable to 27 a motion under Rule 12(b)(6), accepting the allegations 283 contained in the complaint as true and drawing all 1 reasonable inferences in favor of the nonmoving party.” Id

. 2 (internal quotation marks omitted). “To survive a Rule 3 12(c) motion, the complaint must contain sufficient factual 4 matter, accepted as true, to state a claim to relief that is 5 plausible on its face.” Bank of New York v. First 6 Millenium, Inc. , 607 F.3d 905, 922 (2d Cir. 2010) (internal 7 quotation marks omitted). We review a district court’s 8 denial of leave to amend for abuse of discretion. In re 9 Tamoxifen Citrate Antitrust Litig. , 466 F.3d 187, 220 (2d 10 Cir. 2006). 11 **I. Jenkins’s Discrimination Claims** 12 The district court concluded that Jenkins’s statutory 13 discrimination claims against Collins were precluded under 14 14 Penn Plaza LLC v. Pyett , 556 U.S. 247 (2009). However, 15 the Supreme Court there expressly declined to decide whether 16 a CBA “operates as a substantive waiver of [a plaintiff’s] 17 ADEA rights because it not only precludes a federal lawsuit, 18 but also allows the Union to block arbitration of these 19 claims.” Id . at 273-74. For that reason, Pyett did not 20 mandate the dismissal of Jenkins’s discrimination claims. 211 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 The district court therefore abused its discretion in 1 issuing a summary dismissal referencing only that case. 1 2 **II. Jenkins’s Hybrid Claim** 3 Although Jenkins’s pro secomplaint was somewhat 4 incoherent, his counseled memorandum of law (in opposition 5 to Collins’s motion for judgment on the pleadings and the 6 Union’s motion to dismiss) clarified that he had intended to 7 bring a “hybrid § 301/fair representation claim” consisting 8 of (1) a claim against Collins under § 301 of the Labor 9 Management Relations Act, 29 U.S.C. § 185, for breaching the 10 collective bargaining agreement (the “CBA”) between the 11 Union and the Realty Advisory Board, a multi-employer 12 bargaining group of which Collins is a member; and (2) a 13 claim against the Union under the National Labor Relations 14 Act, 29 U.S.C. § 159(a), for breaching its duty of fair 15 representation. Jenkins’s memorandum requested leave to 165 file an amended complaint to that effect and noted that the 1 general rule requiring a plaintiff to exhaust the 2 contractual remedies in a CBA does not apply to hybrid 3 § 301/fair representation claims. See DelCostello v. Int’l 4 Bhd. of Teamsters , 462 U.S. 151, 164 (1983). 5 A district court enjoys “broad discretion” to consider 6 a request for leave to amend which is informally raised in 7 an opposing memorandum and may (as here) deny such a request 8 by not addressing it. See Tamoxifen , 466 F.3d at 220. 9 The district court will need to reconsider the denial 10 of the request to replead, given our vacatur of its decision 11 on the basis of Jenkins’s discrimination claims, and the 12 lower threshold for amendment when (as here) a plaintiff 13 retains counsel after filing a complaint pro se . See 14 DeCarlo v. Fry , 141 F.3d 56, 62 (2d Cir. 1998). 15 The district court’s judgment is **VACATED** and the case 16 is **REMANDED** for further proceedings consistent with this 17
order. 18 19 FOR THE COURT: 20 Catherine O’Hagan Wolfe, Clerk 21 22 23