Peralta v. 32BJ SEIU ( 2022 )

21-1638
Peralta v. 32BJ SEIU
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.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
3 New York, on the 16th day of March, two thousand twenty-two.
4
5 PRESENT:
6 ROBERT D. SACK,
7 MICHAEL H. PARK,
8 WILLIAM J. NARDINI,
9 Circuit Judges.
10 _____________________________________
11
12 Victor Peralta,
13
14 Plaintiff-Appellant,
15
16 v. 21-1638
17
18 32BJ SEIU,
19
20 Defendant-Appellee.
21
22 _____________________________________
23
24
25 FOR PLAINTIFF-APPELLANT: Victor Peralta, pro se, New
26 York, NY.
27
28 FOR DEFENDANT-APPELLEE: Ingrid Nava, Associate
29 General Counsel, SEIU Local
30 32BJ, New York, NY.
1 Appeal from a judgment of the United States District Court for the Southern District of
2 New York (Swain, C.J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
4 DECREED that the judgment of the district court is AFFIRMED.
5 Plaintiff Victor Peralta, proceeding pro se, appeals the district court’s judgment dismissing
6 his complaint, which the district court construed as asserting: (1) claims under 42 U.S.C. § 19837 that his labor union, Defendant 32BJ SEIU, violated his federal constitutional rights; (2) hybrid
8 claims under the Labor Management Relations Act (“LMRA”) and the National Labor Relations
9 Act (“NLRA”) that 32BJ SEIU breached its duty of fair representation; and (3) claims under Title
10 VII of the Civil Rights Act of 1964 that 32BJ SEIU discriminated against him. We assume the
11 parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on
12 appeal.
13 “We review de novo a district court’s sua sponte dismissal under 28 U.S.C. § 1915(e)(2).”
14 Hardaway v. Hartford Pub. Works Dep’t, 879 F.3d 486, 489 (2d Cir. 2018). We may “affirm on
15 any ground with support in the record.” Cox v. Onondaga Cnty. Sheriff’s Dep’t, 760 F.3d 139,
16 145 (2d Cir. 2014). Because Peralta is proceeding pro se, “we liberally construe [his] pleadings
17 and briefs,” reading them “to raise the strongest arguments they suggest.” McLeod v. Jewish
18 Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017) (cleaned up).
19 I. Section 1983 Claims
20 First, 32BJ SEIU may not be sued under section 1983 because it is a private entity. A
21 plaintiff asserting a claim under section 1983 for deprivation of a constitutional right is “required
22 to show state action.” Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003). A
2
1 private entity “can qualify as a state actor in a few limited circumstances,” such as “(i) when the
2 private entity performs a traditional, exclusive public function; (ii) when the government compels
3 the private entity to take a particular action; or (iii) when the government acts jointly with the
4 private entity.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019) (citations
5 omitted). 32BJ SEIU—a labor union—is a private entity, and Peralta did not allege any facts
6 suggesting that 32BJ SEIU should be treated as a state actor. Thus, the district court properly
7 dismissed Peralta’s section 1983 claims.
8 II. LMRA-NRLA Claims
9 Second, Peralta’s hybrid LMRA-NLRA claims are untimely. A union-represented
10 employee may bring an action against his employer, union, or both, in a hybrid claim under section
11 301 of the LMRA, 29 U.S.C. § 185, and the NLRA, 29 U.S.C. §§ 151 et seq. See Carrion v.
12 Enter. Ass’n, Metal Trades Branch Loc. Union 638, 227 F.3d 29, 33 (2d Cir. 2000). To prevail,
13 a plaintiff must show that his employer breached its collective bargaining agreement, and his union
14 breached its duty of fair representation. See Sanozky v. Int’l Ass’n of Machinists & Aerospace
15 Workers, 415 F.3d 279, 282 (2d Cir. 2005). The statute of limitations for a claim of breach of the
16 duty of fair representation is six months, and it begins when the plaintiff “knew or reasonably
17 should have known that such a breach” had occurred. Kalyanaram v. Am. Ass’n of Univ.
18 Professors at the N.Y. Inst. of Tech., Inc., 742 F.3d 42, 46 (2d Cir. 2014) (citation omitted).
19 Peralta’s LMRA-NLRA claims are time barred. 32BJ SEIU and St. Luke’s held a
20 grievance hearing in January 2013, and Peralta was fired in February 2013. At that time, Peralta
21 knew—or should have known—about any breach related to his discharge. Peralta’s claims, filed
22 in 2021, are more than seven years untimely. Further, insofar as Peralta’s claims are based on
3
1 32BJ SEIU’s failure to investigate or remove the allegations from his record, they are still time
2 barred as he wrote letters requesting to meet with 32BJ SEIU’s presidents in March 2017 and
3 August 2019. Therefore, Peralta knew at that time about his claims, but he did not file this action
4 until 2021.
5 III. Title VII Claims
6 Finally, Peralta’s Title VII claims fail because he did not obtain a right-to-sue letter, a
7 “precondition” to filing a Title VII action. Hardaway, 879 F.3d at 489, 491. Although Peralta
8 obtained a right-to-sue letter against St. Luke’s, that letter did not give him a right to sue a separate
9 entity, 32BJ SEIU. See Vital v. Interfaith Med. Ctr., 168 F.3d 615, 619–20 (2d Cir. 1999)
10 (affirming dismissal of a Title VII claim against a labor union where the employee’s EEOC charge
11 named only the employer as a respondent). Further, Peralta has not argued—nor do his
12 allegations show—that any equitable exceptions to this requirement apply. See Hardaway, 879
13 F.3d at 490. Therefore, his Title VII claims are barred.
14 We have considered all of Peralta’s remaining arguments and find them to be without merit.
15 Accordingly, we AFFIRM the judgment of the district court.
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk of Court
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