16-115-cv Jones v. International Union of Operating Engineers, et al

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### UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EF FECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELL ATE 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 A SUMMARY ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SE RVE 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 Thurgood Marshall United Stat es Courthouse, 40 Foley Square, in the City of New York, on the 12 th day of December, two thousand sixteen. PRESENT: PETER W. HALL, DEBRA ANN LIVINGSTON, Circuit Judges, NICHOLAS G. GARAUFIS, * District Judge.

_____________________________________ R ANDOLPH J ONES , Plaintiff-Appellant , v. 16-115-cv I NTERNATIONAL U NION OF O PERATING E NGINEERS , AFL-CIO L OCAL 158, 158 C , 158 S AND 158 RA, as Aider and Abettor, D ANIEL M C G RAW , Business Manager, as Aider and Abettor, R ICHARD A. R OSS , President, as Aider and Abettor, J EREMY M ILLSON , Union Steward, as Aider and Abettor, and T HOMAS

* Judge Nicholas G. Garaufis, of the United States District Court for the Eastern District of New York, sitting by designation.2 S CHWEIZER , Business Representative, as Aider and Abettor, Defendants-Appellees

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_____________________________________ FOR APPELLANT: Randolph Jones, pro se , Syracuse, NY. FOR APPELLEES: Frederick K. Reich, Albany, NY. Appeal from a judgment of the United States District Court for the Northern District of New York (McAvoy, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Appellant Randolph Jones, pro se , appeals from the district court’s dismissal of his discrimination, retaliation, and failure-to-grieve claims brought against his union pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 1981 and 1983, and New York state law. On summary judgment , the district court dismissed his claims, reasoning that they failed on the merits or were barred by collateral estoppel and the applicable statute of limitations. We a ssume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We review de novo a district court’s grant of summary judgment. Garcia v. Hartford Police Dep’t , 706 F.3d 120, 126 (2d Cir. 2013) (per curiam). Summary judgment must be granted if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matte r of law.” Fed. R. Civ. P. 56(a). When determining whether a genuine dispute exists, we must “resolve all ambiguities and3 draw all inferences against the moving party.” Garcia , 706 F.3d at 127. A party cannot overcome summary judgment by relyin g on “mere speculation or conjecture as to the true nature of the facts” because “conclusory allegations or denials” are insufficient to create a genuine dispute of material fact. Hicks v. Baines , 593 F.3d 159, 166 (2d Cir. 2010) (citing Fletcher v. Atex, Inc ., 68 F.3d 1451, 1456 (2d Cir. 1995)) (alterations omitted). Additionally, we may affirm the district court’s grant of summary judgment on any basis supported by the record. See Leon v. Murphy , 988 F.2d 303, 308 (2d Cir. 1993). Upon review, we conclude that under the doctrine of collateral estoppel, a decision rendered in a related action that Jones brought against his employer barred Jones’s discrimination claims in this action. See Jones v. Onondaga Cty. Res. Recovery Agency , 973 F. Supp. 2d 159 (N.D.N.Y. 2013), aff’d , 577 F. App’x 19 (2d Cir. 2014) (summary order). Under the doct rine of collateral estoppel (or issue preclusion), a litigant is prevented from “rel itigating in a subsequent action an issue of fact or law that was fully and fairly litigated in a prior proceeding.” Marvel Characters, Inc. v. Simon , 310 F.3d 280, 288 (2d Cir. 2002). Collateral estoppel applies when “(1) the identical issue was rais ed in a previous proceeding; (2) the issue was actually litigated and decided in the pr evious proceeding; (3) the party had a full and fair opportunity to litigate the issue; and (4) the resolution of the issue was necessary to support a valid and fi nal judgment on the merits.” Proctor v. LeClaire , 715 F.3d 402, 414 (2d Cir. 2013) (quoting Ball v. A.O. Smith Corp. , 451 F.3d 66, 69 (2d Cir. 2006)). If these four factors are sa tisfied, collateral estoppel applies even if4 the subsequent action asserts a different cause of action, see id ., or the issue “recurs in the context of a different claim,” Wyly v. Weiss , 697 F.3d 131, 140 (2d Cir. 2012), or there is not “complete id entity” of the parties, see LeBlanc-Sternberg v. Fletcher , 67 F.3d 412, 433 (2d Cir. 1995). Any claim in this case arising from the purported discriminatory nature of the side lette r agreement or Onondaga County Resource Recovery Agency’s (OCRRA’s) selection of Boardway is barred because in Jones’s earlier suit, the court concluded that no reasonable fact-finder could find that the collaborative decision between OCRRA and th e union was motivated by Jones’s race. See Jones , 973 F. Supp. 2d at 169. The issue of discrimina tion was actually and necessarily decided in the earlier suit, an d Jones had a full and fair opportunity to litigate it there. We therefore affirm the dismissal of Jones’s claims brought pursuant to Title VII, § 1981, § 1983, and his state-law discrimination claims. Jones does not specifically challenge th e district court’s dismissal of his claim under the National Labor Relations Act (“NLRA” ). To the extent that Jones seeks to maintain that claim, he has waived appella te review by failing to specifically raise any error committed below. We therefore affirm the dismissal of Jones’s NLRA claim. 1

1 In the alternative, we affirm the district court’s dismissal of the NLRA claim on the merits. This Court lacks subject matter jurisdiction to adjudicate public employees’ claims of NLRA violations, see Ford v. D.C. 37 Union Local 1549 , 579 F.3d 187, 188 (2d Cir. 2009), because the NLRA does not apply to an employer that is a “State or political subdivision thereof,” 29 U.S.C. § 152(2). A political subdivision of a state includes entities “created directly by the state, so as to constitute departments or administrative arms of the government.” N.L.R.B. v. Nat. Gas Util. of Hawkins Cty. , 402 U.S. 600, 604 (1971). Jones’s employer, the Onondaga County Resource Recovery Agency, is a public benefit corporation created by an act of the New York Stat e Legislature. N.Y. Pub. Auth. Law § 2045-c. The district court thus properly dismisse d Jones’s claims fo r NLRA violations.5 Although collateral estoppel did not bar Jones’s retaliation claims or his claims brought under New York’s Taylor Law, New York Civil Service Law § 200 et

seq. (McKinney’s Supp. 1978), we conclude that the district court properly dismissed these claims. We therefore affirm for the reasons stated in the district court’s well-reasoned and thorough order. We have considered Jones’s remaining ar guments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk