Fowlkes v. Ironworkers Local 40
12-336-cv
United States Court of Appeals, Second Circuit
June 19, 2015
FOR THE SECOND CIRCUIT
______________
August Term, 2014
(Argued: September 24, 2014 Decided: June 19, 2015)
Docket No. 12-336-cv
______________
COLE FOWLKES,
Plaintiff-Appellant,
–v.–
IRONWORKERS LOCAL 40, DANNY DOYLE, KEVIN O’ROURKE,
Defendants-Appellees.*
______________
B e f o r e :
LEVAL, CHIN, and CARNEY, Circuit Judges.
______________
Plaintiff-Appellant Cole Fowlkes appeals from a December 20, 2011
judgment of the United States District Court for the Southern District of New
subject matter jurisdiction. Fowlkes, who self-identifies as male but was born
biologically female, alleges that his labor union, Ironworkers Local 40, and two of
its business agents, Danny Doyle and Kevin O’Rourke, discriminated against
him on the basis of sex and retaliated against him for filing an earlier action
against them. Invoking its аuthority to screen an in forma pauperis complaint at
any time, the District Court, acting sua sponte, held that Fowlkes’s failure to
exhaust administrative remedies deprived the court of subject matter jurisdiction
over his federal claims. The District Court thus also dismissed Fowlkes’s state-
and city-law claims for lack of jurisdiction.
We conclude that the administrative exhaustion requirement of Title VII,
but rather is a necessary precondition to suit and is subject to equitable defenses.
We therefore VACATE the District Court’s judgment dismissing Fowlkes’s
fedеral claims for lack of jurisdiction and REMAND for the District Court to
determine whether any equitable defenses excuse Fowlkes’s failure to exhaust
his administrative remedies. On remand, the District Court shall also entertain
Fowlkes’s claim under the National Labor Relations Act,
for breach of the duty of fair representation, and shall revisit, in light of the
pending federal claims, whether to exercise supplemental jurisdiction over
related state- and city-law claims.
VACATED AND REMANDED.
______________
ROBERT T. SMITH (Tami Kameda Sims and Howard R.
Rubin, on the brief), Katten Muchin Rosenman
LLP, Washington, DC, and Los Angeles, CA, for
Appellant.
JOHN S. GROARKE (Jennifer D. Weekley, on the brief),
Colleran, O’Hara & Mills LLP, Woodbury, NY,
for Appellees.
______________
Plaintiff-Appellant Cole Fowlkes appeals from a December 20, 2011
judgment of the United States District Court for the Southern District of New
York (Preska, Chief Judge), dismissing his in forma paupеris complaint for lack of
subject matter jurisdiction. Fowlkes, who self-identifies as male but was born
biologically female, alleges that his union, Ironworkers Local 40 (the “Local”),
and two of its business agents, Danny Doyle and Kevin O’Rourke (the Local,
Doyle, and O’Rourke, together, “defendants”), discriminated against him on the
basis of sex and retaliated against him for filing an earlier action against them.
The discrimination and retaliation alleged by Fowlkes primarily consisted of
refusing to refer Fowlkes for work through the Local’s hiring hall.
The District Court construed Fowlkes’s complaint as stating federal claims
under Title VII of the Civil Rights Act of 1964 (“Title VII”),
seq., and related state- and city-law claims. Invoking its authority pursuant to
District Court, acting sua sponte, held that Fowlkes’s failure to exhaust
administrative remedies for his Title VII claims deprived the court of subject
matter jurisdiction over those claims. On the understanding that no federal
exercise supplemental jurisdiction over the related state- and city-law claims, and
entered a judgment dismissing Fowlkes’s complaint in toto.
For the reasons stated below, we conclude that the District Court erred in
its determination that Fowlkes’s failure to exhaust administrative remedies
deprived it of subject matter jurisdiction over his Title VII claims. In addition,
we conclude that Fowlkes has stated a federal claim under the National Labor
Relations Act (“NLRA”),
of fair representation. Accordingly, we vacate the judgment dismissing
Fowlkes’s amended complaint and remand the cause to the District Court. On
remand, the District Court shall: (1) consider whether any equitable defenses
excuse Fowlkes’s failure to exhaust his administrative remedies for his Title VII
claims; (2) conduct further proceedings on Fowlkes’s duty of fair representation
claim; and (3) reevaluate whether to exercise supplemental jurisdiction over
Fowlkes’s pendent state- and city-law claims and conduct any further
proceedings on those claims as it determines may be warranted.
I. Factual Background1
Fowlkes is a journeyman ironworker and a member of Local 40. As a
journeyman ironworker, Fowlkes would (in his words) detonate “caps/blow
cement from steel/use torch to cut/burn steel[,] preparing it for the welder.” 2011
Am. Compl. at 15. Although Fowlkes was born biologically female and was
named “Colette,” he now self-identifies as a man, preferring to be called “Cole”
and to be referred to in the masculine. Id. at 1; Appellant’s Br. at 3.
To place its members at job sites, the Local ran a hiring hall, and Doyle
and O’Rourke, as business agents for the Local, participated in the placement
process. Fowlkes alleges that, beginning as early as 2005, the Local refused to
refer him to jobs for which he was qualified, “[i]ntentionally passing over
[Fowlkes] by choosing other men to receive [the] construction work” that he
sought. 2011 Am. Compl. at 17. Fowlkes further alleges that O’Rourke received
calls specifically requesting him for particular jobs for which he had the requisite
skills, but that O’Rourke and Doyle passed him over in favor of others “with
allegedly continued through 2011; in that year, Fowlkes claims to have worked a
total of only sixty-seven hours as a journeyman, again as a result of defendants’
“refusal to refer and give [him] work.” Id. at 21.
Fowlkes allеges that defendants failed to refer him for work for two
primary reasons. First, he asserts that defendants discriminated against him on
the basis of sex: Fowlkes claims that if he had “acted with a femin[in]e character
or worked with less musc[le], he might [have] not [incurred] [i]ntentional
passing over.” Id. at 16; see also id. at 25 (alleging that defendants told him that he
“would get a good job if [he] would act like a girl”). Second, Fowlkes recounts
that Doyle and O’Rourke each told him that they refused to refer him for work
because he had previously filed a suit against the Local.2 He explains that, when
he inquired why he was not receiving work despite his positiоn at the “top of the
out of work list,” O’Rourke allegedly responded by saying “well you’re sueing
[sic] us,” and Doyle similarly replied that Fowlkes “should[n’t] [have] tried to
sue us.” Id. at 17.
Beyond defendants’ alleged refusal to refer him for work, Fowlkes also
claims that he was subjected to discriminatory treatment at job sites on account
their discriminatory stance towards him. For example, he alleges that in 2008, a
welder at a job site told him, “I always thought you would be a girl that would
work and make the man happy.” Id. at 15. The welder became angry at
Fowlkes’s response and began “throwing welding leads around,” endangering
Fowlkes, who then reported the incident to a superior at the job site. Id. at 16.
The superior informed Doyle and O’Rourke of Fowlkes’s report and the welder’s
behavior. Fowlkes complains that “there were no attempts . . . to correct or
remove the situation” and that Doyle and O’Rourke “found the actions of the
welder . . . amus[]ing” and “told [Fowlkes] to just keep working.” Id.
II. Procedural Background
a. Fowlkes’s Prior Action
On May 29, 2007, Fowlkes initiated proceеdings before the Equal
Employment Opportunity Commission (“EEOC”), charging the Local with
discrimination and alleging that the Local subjected him to retaliation and sex-
based discrimination in violation of Title VII.3 The EEOC issued Fowlkes a
“Right to Sue” letter dated July 10, 2007: The letter notified him that, after
against the Local. It advised that Fowlkes was free to pursue his Title VII claims
by filing a federal suit against the Local within ninety days of his receipt of the
letter. It was not until more than 180 days later, however—on January 25, 2008—
that Fowlkes filed a complaint against defendants in the United States District
Court for the Southern District of New York.
Proceeding pro se in that 2008 action, Fowlkes made essentially the same
allegations as he had in his EEOC charge. Defendants moved for summary
judgment. In early 2010, Magistrate Judge Freeman issued a Report and
Recommendation (“R&R”) concluding, on the ground that Fowlkes’s action was
untimely, that defendants’ motion should be granted. Shortly thereafter, Judge
Kaplan granted defendants’ motion for substantially the reason given in the
R&R.
b. Fowlkes’s Second Action
In July 2011, Fowlkes filed a second complaint, again in the Southern
District of New York and again proceeding pro se, alleging that defendants
violated his “Civil Rights (involving Employment)” by subjecting him tо
harassment and refusing to refer him for work based on his sex.4 2011 Compl. at
2011. Concurrently, Fowlkes sought permission to proceed in forma pauperis.
In October 2011, the District Court granted Fowlkes’s request to proceed in
forma pauperis and directed Fowlkes to submit an amended complaint within
sixty days. In the same order, the District Court, citing its authority under
time,”5 considered its jurisdiction over the matter. J.A. 17. It first construed
Fowlkes’s complaint as raising claims under three statutes: Title VII; the New
York State Human Rights Law (“NYSHRL”),
New York City Human Rights Law (“NYCHRL”),
101, et seq. The Distriсt Court then observed, “Before a federal court may review
a claim under Title VII, a plaintiff must first exhaust his administrative remedies
by filing a charge with the EEOC or an appropriate state agency within 300 days
of the unlawful discriminatory act.” Id. at 22. Because Fowlkes did not allege
that he had filed a complaint with the EEOC or any New York agency relating to
conduct occurring after May 29, 2007,6 the District Court’s subject matter
Fowlkes’s pro se status, the District Court granted him leave to amend his
complaint to “(1) detail his Title VII and New York State and City Human Rights
Law claims of discrimination that were not already raised in the Prior [Action] as
set forth above, and (2) allege whether he received a Determination or Right to
Sue Letter or whether he otherwise attempted to exhaust his administrative
remedies.” Id. at 26.
In November 2011, Fowlkes filed an amended complaint, as directed. On
December 20, 2011, again acting sua sponte pursuant to its authority under
be dismissed because he does not allege that he exhausted his administrative
remedies.” Id. at 73 (citing
elaborated that “because Plaintiff has not exhausted his Title VII claim, the Court
does not have jurisdiction over that Title VII claim.” Id. Having dismissed the
Title VII claims, the District Court then determined that only state- and city-law
claims remained and concluded that it lacked subject matter jurisdiction to
adjudicate those claims standing alone. It therefore dismissed the case in toto.
DISCUSSION8
On appeal, Fowlkes argues that the District Court erred in dismissing his
amended complaint because exhaustion of administrative remedies before filing
a Title VII action in federal court is a not a jurisdictional requirement, but rather a
precondition of suit that may be subject to equitable defenses. On the merits,
Fowlkes asserts that he has adequately pleaded claims for both violations of Title
VII and breach of the duty of fair representation under the NLRA. He further
argues that, assuming he sufficiently pleaded at least one federal claim, the
District Court erroneously declined to exercise supplemental jurisdiction over his
pendent state- and city-law claims.
For the reasons discussed below, we agree with Fowlkes that a plaintiff’s
failure to exhaust administrative remedies available for Title VII claims does not
pose a jurisdictional bar to a district court’s consideration of those claims. We
also conclude that he has pleaded an NLRA claim that survives § 1915(e) review.
proceedings.
I. Subject Matter Jurisdiction and the Failure to Exhaust Administrative
Remedies for Title VII Claims
It is well established that Title VII requires a plaintiff to exhaust
administrative remedies before filing suit in federal court. See, e.g., Ragone v. Atl.
Video at Manhattan Ctr., 595 F.3d 115, 126 (2d Cir. 2010) (citing
2001) (same). “The purpose of this exhaustion requirement is to give the
administrative agency the opportunity to investigate, mediate, and take remedial
action.” Brown v. Coach Stores, Inc., 163 F.3d 706, 712 (2d Cir. 1998) (internal
quotation marks omitted). The administrative exhaustion requirement applies to
pro se and counseled plaintiffs alike. See Pikulin v. City Univ. of N.Y., 176 F.3d 598,
599–600 (2d Cir. 1999) (per curiam).
“Exhaustion of administrative remedies through the EEOC is an essential
element of the Title VII . . . statutory scheme[]”; accordingly, it is “a precondition
to bringing such claims in federal court.” Legnani, 274 F.3d at 686 (internal
quotation marks omitted); see also Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003)
(“As a precondition to filing a Title VII claim in federal court, a plaintiff must first
pursue available administrative remedies . . . .”). The weight of precedent
rather, it is merely a precondition of suit and, accordingly, it is subject to
equitable defenses.
The distinction has been effectively drawn by the Supreme Court. In Zipes
v. Trans World Airlines, Inc., 455 U.S. 385 (1982), a group of flight attendants
brought a class action alleging that TWA unlawfully discriminated against them
on the basis of sex in violation of Title VII, id. at 388. Approximately 92% of the
plaintiffs had not timely filed claims with the EEOC before the suit was brought
in federal court. Id. at 390. After the Seventh Circuit Court of Appeals held that
these claims were “jurisdictionally barred,” the plaintiffs appealed, asking the
Supreme Court to address the “single question . . . whether the timely filing of an
EEOC charge is a jurisdictional prerequisite to bringing a Title VII suit in federal
court or whether the requirement is subject to waiver and estoppel.” Id. at 390,
392. The Supreme Court sided with the plaintiffs, holding that “filing a timely
charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit
in federal court, but a requirement that . . . is subject to waiver, estoppel, and
equitable tolling.” Id. at 393 (emphasis added). According to the Court, this
conclusion was dictated by “[t]he structure of Title VII, the congressional policy
underlying it, and the reasoning of [its] cases.” Id. Particularly relevant here, the
plaintiffs seeking relief in federal court—like Fowlkes with regard to his
allegations of post-May 29, 2007 misconduct—had never filed an EEOC charge at
all. See id. at 396–97 (citing Franks v. Bowman Transportation Co., 424 U.S. 747
(1976), and Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)).
In line with Zipes, our Court has previously ruled that the exhaustion of
administrative remedies “is a precondition to bringing a Title VII claim in federal
court, rather than a jurisdictional requirement.” Francis v. City of New York, 235
F.3d 763, 768 (2d Cir. 2000) (internal quotation marks omitted); see also Boos v.
Runyon, 201 F.3d 178, 182 (2d Cir. 2000) (analyzing the statutory structure of Title
VII to conclude that “the exhaustion requirement, while weighty, is not
jurisdictional”). For example, in Francis, we held that the district court had
subject matter jurisdiction to hear the plaintiff’s Title VII failure-to-promote
claim, even though his proper exhaustion of the clаim was “not free from
uncertainty,” because failure to exhaust was merely a defense subject to waiver.
Id. at 766. Similarly here, the question whether Fowlkes properly exhausted his
claims is “not free from uncertainty,” id., but this ambiguity has no bearing on
the subject matter jurisdiction of the District Court.
“jurisdictional” can be found in our Circuit’s jurisprudence. See, e.g., Fitzgerald v.
Henderson, 251 F.3d 345, 359 (2d Cir. 2001) (“If a [Title VII] claimant has failed to
pursue a given claim in administrative proceedings, the federal court generally
lacks jurisdiction to adjudicate that claim.”); Shah v. N.Y.S. Dep’t of Civil Serv., 168
F.3d 610, 613 (2d Cir. 1999) (“The federal courts generally have no jurisdiction to
hear claims not alleged in an employee’s EEOC charge.”). But “when our
decisions have turned on the question . . . whether proper administrative
exhaustion [of a Title VII claim] is a jurisdictional prerequisite . . . to bringing
suit,” we have “consistently” held that it is not. Francis, 235 F.3d at 768. We
therefore take this opportunity to underscore that the failure of a Title VII
plaintiff to exhaust administrative remedies raises no jurisdictional bar to the
claim proceeding in federal court.
As suggested above, the mischaracterization of a Title VII plaintiff’s
administrative exhaustion requirement as “jurisdictional” has practical effect. A
“[c]ourt has no authority to create equitable exceptions to jurisdictional
requirements.” Bowles v. Russell, 551 U.S. 205, 214 (2007). In contrast, a
mandatory but nonjurisdictional prerequisite to suit may be subject to equitable
defenses. See id. at 216 (Souter, J., dissenting); see also Fernandez v. Chertoff, 471
remedies is not a jurisdictional defect, it is subject to equitable defenses.”). By
treating the issue of subject matter jurisdiction as a threshold matter here, the
District Court did not consider any potential equitable defenses that Fowlkes
might present to excuse his failure to exhaust his administrative remedies.
It is not clear from the record, at this stage, whether an equitable principle
may excuse Fowlkes’s failure to exhaust before filing his 2011 complaint. As
Fowlkes has urged in his brief on appeal—and defendants have challenged—two
equitable doctrines that the District Court will be called on to consider on
remand are futility and “reasonable relatedness.” Because of their direct bearing
on the facts as alleged, we discuss aspects of each of these possible defenses
below.
When an agency has previously “taken a firm stand” against a plaintiff’s
position, the plaintiff’s failure to exhaust administrative remedies may be
excused on the ground that exhaustion would be futile. Skubel v. Fuoroli, 113 F.3d
330, 334 (2d Cir. 1997) (internal quotation marks omitted); cf. Kirkendall v.
Halliburton, Inc., 707 F.3d 173, 179 (2d Cir. 2013) (noting that the exhaustion
requirement for ERISA claims “is not absolute” and may be excused when a
plaintiff demonstrates that pursuing administrative remedies would be futile).
equitable defense in the context of EEOC Title VII exhaustion, Fowlkes may have
a colorable argument that filing a charge alleging discrimination based on his
transgender status would have been futile. When Fowlkes filed his 2011
complaint, the EEOC had developed a consistent body of decisions that did not
recognize Title VII claims based on the complainant’s transgender status. See,
e.g., Kowalczyk v. Dep’t of Veterans Affairs, No. 01942053, 1994 WL 744529, at *2
(E.E.O.C. Dec. 27, 1994) (concluding that an “appellant’s allegation of
discrimination based on her acquired sex (transsexualism) is not a basis
protected under Title VII”); Campbell v. Dep’t of Agriculture, No. 01931730, 1994
WL 652840, at *1 n.3 (E.E.O.C. July 21, 1994) (recognizing precedent holding that
“gender dysphoria or transsexualism is not protected under Title VII under the
aegis of sex discrimination”); Casoni v. U.S. Postal Serv., No. 01840104, 1984 WL
485399, at *3 (E.E.O.C. Sept. 28, 1984) (“[A]ppellant’s allegation of sex
discrimination on account of being a male to female preoperative transsexual . . .
[is] not cognizable . . . under the provisions of Title VII.”). It was not until Macy
v. Holder, No. 0120120821, 2012 WL 1435995 (E.E.O.C. Apr. 20, 2012), published
after Fowlkes filed his 2011 complaint, that the EEOC altered its positiоn and
concluded that discrimination against transgender individuals based on their
VII. Id. at *11 & n.16. Thus, Fowlkes’s failure to exhaust could potentially be
excused on the grounds that, in 2011, the EEOC had “taken a firm stand” against
recognizing his Title VII discrimination claims.
A second equitable defense potentially available to Fowlkes is that his
more recent allegations of discrimination may be “reasonably related” to the
discrimination about which he had filed an earlier charge with the EEOC.
“[W]here the complaint is one alleging retaliation by an employer against an
employee for filing an EEOC charge,” or “where the complaint alleges further
incidents of discrimination carried out in precisely the same manner alleged in
the EEOC charge,” the failure to raise the allegations in the complaint before the
EEOC may not bar federal court proceedings. Terry v. Ashcroft, 336 F.3d 128, 151
(2d Cir. 2003) (internal quotation marks omitted).
Here, Fowlkes alleges in his amended complaint that he was not referred
for work as retaliation for having previously sued defendants. In addition, the
District Court may reasonably determine that Fowlkes was discriminated against
by defendants “in рrecisely the same manner” in the years leading up to the
amended complaint as was alleged in the earlier EEOC charge. Given the
contents of Fowlkes’s amended complaint and the close resemblance that it bore
related” to those included in his earlier administrative filing with the EEOC.
As we have mentioned, the District Court has not yet had an opportunity
to consider whether futility is a cognizable equitable defense in the context of
EEOC Title VII еxhaustion and, in this particular case, whether futility,
“reasonable relatedness,” or any other equitable doctrine excuses Fowlkes’s
failure to exhaust his administrative remedies. We therefore remand to the
District Court to address these questions in the first instance, on full briefing by
the parties.9
II. Duty of Fair Representation Claim
The District Court construed Fowlkes’s complaint as raising claims under
only one federal statute: Title VII. Fowlkes contends on appeal that he also
stated a claim against the Local under the NLRA for breach of the duty of fair
representation. Although he articulated that claim less than plainly, we are
inclined to agree with Fowlkes on appeal.
to special solicitude,” and we will read his pleadings “to raise the strongest
arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
477 (2d Cir. 2006) (internal quotation marks omitted). “[D]ismissal of a pro se
claim as insufficiently pleaded is appropriate only in the most unsustainable of
cases.” Boykin v. KeyCorp, 521 F.3d 202, 216 (2d Cir. 2008). At the same time, a pro
se complaint must allege “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).
The duty of fair representation is a “statutory obligation” under the NLRA,
requiring a union “to sеrve the interests of all members without hostility or
discrimination . . . , to exercise its discretion with complete good faith and
honesty, and to avoid arbitrary conduct.” Vaca v. Sipes, 386 U.S. 171, 177 (1967).
This duty applies in the hiring hall setting because, there, “members of the
[union] have entrusted the union with the task of representing them” and it is
essential that work be assigned “in a nonarbitrary and nondiscriminatory
fashion.” Breininger v. Sheet Metal Workers Int’l Ass’n Local Union No. 6, 493 U.S.
67, 88 (1989). A union breaches its duty of fair representation if its actions with
Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67 (1991).10
Although Fowlkes’s amended pro se comрlaint did not flag the NLRA, we
nonetheless are persuaded, with the benefit of a counseled brief on Fowlkes’s
behalf, that Fowlkes has stated a plausible claim for a breach of the duty of fair
representation. In his amended complaint, Fowlkes alleges that the Local
refused to refer him for work for which he was qualified because of his
transgender status and in retaliation for instituting legal proceedings against the
Local. Allegations that a union abused its hiring hall procedures to undermine a
member’s employment opportunities warrant particularly close scrutiny when a
union wields special power as the administrator of a hiring hall. Breininger, 493
U.S. at 89; see also Gilbert v. Country Music Ass’n, Inc., 432 F. App’x 516, 521 (6th
Cir. 2011). Assuming, as we must, that Fowlkes’s allegations are true, the Local’s
conduct was at the very least arbitrary, if not discriminatory or indicative of bad
faith.
In urging us to sustain the dismissal of this claim, too, defendants assert
that a six-month statute of limitations applies to duty of fair representation
occurring in the six months prior to the filing of his 2011 complaint.11 See Coureau
v. Granfield, 556 F. App’x 40, 41 (2d Cir. 2014). Because Fowlkes’s allegations
regarding their conduct during the relevant six-month period—from January 29,
2011 through July 29, 2011—fail to plausibly state a claim, they say, his suit on
this ground is barred.
Even assuming the applicability of a six-month statute of limitations,
defendants are incorrect that Fowlkes has failed to plausibly state a claim.
Fowlkes asserts in his amended complaint that the Local would not provide him
employment throughout 2011. 2011 Am. Compl. at 3. He alleges that he received
only 67 hours of work in all of 2011, “less than a two week period” in total, and
that he was told in May and June of that year that he “could forget about getting
any work.” Id. at 21. Based on the foregoing, Fowlkes plausibly stated a duty of
fair representation claim based on conduct occurring within the six-month
statute of limitations period.
Second, defendants contend that Fowlkes’s claim for breach of the duty of
fair representation is irretrievably undermined by the complaint’s own
June 2011. This argument rests on an obvious fallacy: the mere fact that Fowlkes
was referred for some work during the relevant period does not defeat a claim
that he was subjected to arbitrary, discriminatory, or bad-faith treatment by the
Local’s overall distribution of work. A union need not completely eliminate a
member’s employment opportunities before the member may be entitled to
relief.
Finally, defendants argue that Fowlkes may not pursue a duty of fair
representation claim in court because he failed to demonstrate that he exhausted
his remedies within the union. This argument, too, is unavailing. The union, not
the member, bears the burden of demonstrating that the member failed to
exhaust intra-union grievance procedures, see Johnson v. Gen. Motors, 641 F.2d
1075, 1079 (2d Cir. 1981), and “courts have discretion tо decide whether to
require exhaustion of internal union procedures,” Clayton v. Int’l Union, United
Auto., Aerospace, and Agric. Implement Workers of Am., 451 U.S. 679, 689 (1981).
Defendants may attempt to meet this burden before the District Court on
remand, but a cursory invocation of an intra-union exhaustion requirement in
their appellate brief certainly does not suffice to bar the duty of fair
representation claim from proceeding past the pleadings stage.
of fair representation against the Local. We vacate the District Court’s
determination that Fowlkes stated federal clаims under only Title VII, and we
remand for further proceedings on his duty of fair representation claim.
III. Pendent State- and City-Law Claims
Fowlkes also appeals the District Court’s dismissal of his pendent state-
and city-law claims under the NYSHRL and NYCHRL. This decision is reviewed
for abuse of discretion. Fed. Treasury Enter. Sojuzplodoimport v. SPI Spirits Ltd., 726
F.3d 62, 84 (2d Cir. 2013). To find an abuse of discretion, “we must conclude that
a challenged ruling rests on an error of law, a clearly erroneous finding of fact, or
otherwise cannot be located within the range of permissible decisions.” United
States v. Certified Envtl. Servs., Inc., 753 F.3d 72, 99 (2d Cir. 2014).
Here, the District Court dismissed the state- and city-law claims based on
the premise that Fowlkes did nоt plead a federal claim for which there exists
subject matter jurisdiction. Because we have now concluded that (1) Fowlkes’s
failure to exhaust administrative remedies did not deprive the District Court of
jurisdiction over his Title VII claims, and (2) Fowlkes has stated a claim under the
NLRA for breach of the duty of fair representation, we vacate the dismissal of
Fowlkes’s pendent state- and city-law claims to allow the District Court to
appropriate given our conclusions regarding his federal claims.
CONCLUSION
For the foregoing reasons, we VACATE the judgment of the District Court
and REMAND for further proceedings consistent with this opinion.