Green v. Dep't of Educ.

20-3785-cv
Green v. Dep’t of Educ.
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
AUGUST TERM 2020
No. 20-3785-cv
DR. RUPERT GREEN,
Plaintiff-Appellant,
v.
DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, THE
UNITED FEDERATION OF TEACHERS,
Defendants-Appellees. *
On Appeal from the United States District Court
for the Southern District of New York
ARGUED: JUNE 4, 2021
DECIDED: OCTOBER 29, 2021
Before: POOLER and MENASHI, Circuit Judges, and VYSKOCIL,
District Judge. †
* The Clerk of Court is directed to amend the caption as set forth above.
† Judge Mary Kay Vyskocil of the United States District Court for the
Southern District of New York, sitting by designation.
Plaintiff-Appellant Rupert Green, proceeding pro se, appeals
the judgment of the district court entered on September 30, 2020,
dismissing his First Amendment retaliation claim, procedural due
process claim, and equal protection claim against the Department of
Education of the City of New York and the United Federation of
Teachers for failure to state a claim and dismissing his duty of fair
representation claim under 29 U.S.C. § 185 for lack of subject matter
jurisdiction. The district court also declined to exercise supplemental
jurisdiction over Green’s claims based on New York State law. We
hold that the district court properly dismissed Green’s First
Amendment retaliation claim, procedural due process claim, and
equal protection claim for failure to state a claim pursuant to Rule
12(b)(6). Because Green abandoned his “stigma-plus” due process
claim on appeal by failing to address it in his opening brief, we decline
to address it. With respect to Green’s duty of fair representation claim,
we affirm the district court’s dismissal with prejudice but clarify that
the claim should have been dismissed for failure to state a claim rather
than for lack of subject matter jurisdiction. We AFFIRM the judgment.
RUPERT GREEN, pro se, St. Albans, New York, for Plaintiff-
Appellant.
JONATHAN A. POPOLOW for James E. Johnson,
Corporation Counsel of the City of New York, New York,
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New York, for Defendant-Appellee Department of
Education of the City of New York.
ORIANA VIGLIOTTI, Law Office of Robert T. Reilly, New
York, New York, for Defendant-Appellee United
Federation of Teachers.
PER CURIAM:
Appellant Dr. Rupert Green (“Green”), proceeding pro se,
appeals the judgment of the U.S. District Court for the Southern
District of New York (Torres, J.) entered September 30, 2020,
dismissing his First Amendment retaliation claim, procedural due
process claim, and equal protection claim against the Department of
Education of the City of New York (“DOE”) and the United
Federation of Teachers (“UFT”) for failure to state a claim and
dismissing his duty of fair representation claim under 29 U.S.C. § 185against the UFT for lack of subject matter jurisdiction. The district
court declined to exercise supplemental jurisdiction over Green’s
claims based on New York State law. We affirm.
I
Green, an African-American male, sued his former employer,
the DOE, and his former union, the UFT, after he was fired from his
tenured teaching position for allegedly sending harassing emails. He
alleged that the defendants discriminated against him on the basis of
race, retaliated against him for engaging in protected speech, denied
him due process during his disciplinary proceedings, and denied him
equal protection by imposing different hearing procedures for
teachers working in New York City than for those working elsewhere
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in the state. He also alleged that the UFT violated its duty of fair
representation under the National Labor Relations Act (“NLRA”), 29
U.S.C. § 185 et seq.
As a preliminary matter, while “we liberally construe
pleadings and briefs submitted by pro se litigants, reading such
submissions to raise the strongest arguments they suggest,” McLeod
v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017) (alteration
omitted), pro se appellants must still comply with Federal Rule of
Appellate Procedure 28(a), which “requires appellants in their briefs
to provide the court with a clear statement of the issues on appeal,”
Moates v. Barkley, 147 F.3d 207, 209 (2d Cir. 1998). Accordingly, a pro
se litigant abandons an issue by failing to address it in the appellate
brief. LoSacco v. City of Middletown, 71 F.3d 88, 92–93 (2d Cir. 1995).
Here, Green did not address in his opening brief his “stigma-
plus” due process claim, the district court’s conclusion that he failed
adequately to plead facts showing that the UFT colluded with a state
actor so as to subject it to liability under 42 U.S.C. § 1983, or the district
court’s decision declining to exercise supplemental jurisdiction over
his state-law claims. These issues are therefore abandoned, and we
decline to address them. See LoSacco, 71 F.3d at 93 (“[W]e need not
manufacture claims of error for an appellant proceeding pro se,
especially when he has raised an issue below and elected not to
pursue it on appeal.”).
II
The district court dismissed Green’s claim against the UFT for
violating its duty of fair representation for lack of subject matter
jurisdiction. The district court dismissed the claim with prejudice. Yet
dismissals for lack of subject matter jurisdiction “must be without
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prejudice, rather than with prejudice.” Carter v. HealthPort Techs., LLC,
822 F.3d 47, 54 (2d Cir. 2016). When subject matter jurisdiction is
lacking, “the district court lacks the power to adjudicate the merits of
the case,” and accordingly “Article III deprives federal courts of the
power to dismiss [the] case with prejudice.” Id. at 54–55.
In this case, however, we conclude that the claim should have
been dismissed for failure to state a claim rather than for lack of
subject matter jurisdiction. We therefore affirm the district court’s
dismissal with prejudice.
This court reviews de novo a district court’s decision dismissing
a complaint for lack of subject matter jurisdiction, construing the
complaint liberally and accepting all factual allegations in the
complaint as true. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474
(2d Cir. 2006); Close v. State of New York, 125 F.3d 31, 35 (2d Cir. 1997)
(“When reviewing a district court’s determination of subject matter
jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), we review factual
findings for clear error and legal conclusions de novo.”). Dismissal of
a case for lack of subject matter jurisdiction under Rule 12(b)(1) is
proper “when the district court lacks the statutory or constitutional
power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113
(2d Cir. 2000).
Green asserted a claim against the UFT pursuant to the NLRA,
as amended by the Labor Management Relations Act (“LMRA”). See
29 U.S.C. § 185(b) (providing that a “labor organization may sue or be
sued as an entity and in behalf of the employees whom it represents
in the courts of the United States”). “The duty of fair representation is
a ‘statutory obligation’ under the NLRA, requiring a union ‘to serve
the interests of all members without hostility or discrimination …, to
exercise its discretion with complete good faith and honesty, and to
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avoid arbitrary conduct.’” Fowlkes v. Ironworkers Local 40, 790 F.3d 378,
387 (2d Cir. 2015) (quoting Vaca v. Sipes, 386 U.S. 171, 177 (1967)). “A
union breaches its duty of fair representation if its actions with respect
to a member are arbitrary, discriminatory, or taken in bad faith.” Id.
at 388. The “duty of fair representation arises from the National Labor
Relations Act,” United Steelworkers of Am. v. Rawson, 495 U.S. 362, 373
(1990), specifically from “the grant under [29 U.S.C. § 159(a)] of the
union’s exclusive power to represent all employees in a particular
bargaining unit,” Breininger v. Sheet Metal Workers Int’l Ass’n Local
Union No. 6, 493 U.S. 67, 87 (1989) (internal citation omitted); see also
Schneider Moving & Storage Co. v. Robbins, 466 U.S. 364, 376 n.22 (1984)
(“A union’s statutory duty of fair representation … is coextensive
with its statutory authority to act as the exclusive representative for
all the employees within the unit.”). As the statute makes clear,
however, public employees are not covered by the NLRA. See 29
U.S.C. § 152(2) (exempting from the definition of employer “any State
or political subdivision thereof”); id. § 152(3) (defining “employee” as
one who works for an employer as defined by the statute); id. § 152(5)
(defining “labor organization” as one in which “employees
participate” for the purpose of “dealing with employers”).
We have made this point in a published opinion to “make clear
beyond peradventure that this is the law of our Circuit.” Ford v. D.C.
37 Union Local 1549, 579 F.3d 187, 188 (2d Cir. 2009). We previously
held in summary orders that public employees are not covered by the
NLRA. See, e.g., Baumgart v. Stony Brook Children’s Serv., 249 F. App’x
851, 852 (2d Cir. 2007); Majeske v. Cong. of Conn. Cmty. Colleges, 166
F.3d 1200, 1998 WL 907915, at *2 n.2 (2d Cir. 1998); Smith v. United
Fed’n of Teachers, 162 F.3d 1148, 1998 WL 639756, at *1 (2d Cir. 1998).
And the Supreme Court has similarly recognized that “the National
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Labor Relations Act specifically exempts States and subdivisions (and
therefore cities and their public school boards) from the definition of
‘employer’ within the Act.” Police Dep’t of Chic. v. Mosley, 408 U.S. 92,
102 n.9 (1972); see also NLRB v. Nat. Gas Util. Dist., 402 U.S. 600, 609
(1971).
In this case, Green was an employee of the DOE, which is a
“political subdivision” of New York and thus not subject to the
NLRA. 29 U.S.C. § 152(2). Because Green cannot allege that he is an
employee under the NLRA, his complaint fails to state a claim for a
violation of the statute and should have been dismissed pursuant to
Rule 12(b)(6).
We recognize that we have sometimes referred to the NLRA as
denying “jurisdiction” over claims by public employees. See, e.g.,
Smith, 1998 WL 639756, at *1 (“Because there is no federal jurisdiction
over the employer, there is no jurisdiction over the companion claim
of breach of the duty of fair representation.”). “‘Jurisdiction,’ it has
been observed, ‘is a word of many, too many, meanings,’” and it has
been “commonplace for the term to be used” imprecisely to refer to
statutory limitations that are not strictly jurisdictional. Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 90 (1998) (quoting United States
v. Vanness, 85 F.3d 661, 663 n.2 (D.C. Cir. 1996)). The Supreme Court
has instructed that “when Congress does not rank a statutory
limitation on coverage as jurisdictional, courts should treat the
restriction as nonjurisdictional in character.” Arbaugh v. Y&H Corp.,
546 U.S. 500, 516 (2006). Courts should be especially careful to
distinguish “between two sometimes confused or conflated concepts:
federal-court ‘subject-matter’ jurisdiction over a controversy; and the
essential ingredients of a federal claim for relief.” Id. at 503; see also
Butcher v. Wendt, 975 F.3d 236, 249 (2d Cir. 2020) (Menashi, J.,
7
concurring in part and concurring in the judgment) (“[I]t is important
to recall that it has been ‘commonplace’ in judicial opinions for the
word ‘jurisdiction’ to refer to limitations that are not truly
jurisdictional, such as the elements of a cause of action.”).
In this case, Congress has not limited the subject matter
jurisdiction of the federal courts. It has defined the requirements of a
cause of action under the NLRA to extend only to circumstances in
which the employer is not a state or a political subdivision of a state.
Because Green cannot allege that he worked for an “employer” under
the Act, he fails to state a claim, and his complaint is properly
dismissed under Rule 12(b)(6). 1
Accordingly, we affirm the district court’s dismissal with
prejudice of Green’s duty of fair representation claim.
III
Green also asserts claims under 42 U.S.C. § 1983 against the
DOE for: (1) violations of his procedural due process rights in the
initiation and conduct of the disciplinary proceedings resulting in his
termination; (2) equal protection violations premised on
1 In Ford, we held that the “language of the LMRA makes plain [that] public
employees are not covered by that statute” but then affirmed a dismissal
for lack of subject-matter jurisdiction. 579 F.3d at 188. We did so without
addressing whether the lack of statutory coverage creates a jurisdictional
limitation or, instead, defines the requirements of the cause of action. We
do not believe that Ford established a binding precedent on the
jurisdictional question because “a sub silentio holding is not binding
precedent.” Friends of the E. Hampton Airport, Inc. v. Town of E. Hampton, 841
F.3d 133, 153 (2d Cir. 2016). As the Supreme Court has emphasized, “drive-
by jurisdictional rulings of this sort … have no precedential effect.” Steel
Co., 523 U.S. at 91.
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(a) discrimination against African-American teachers, and
(b) discrimination against teachers working in New York City as
opposed to the rest of the state; and (3) First Amendment retaliation.
The district court properly dismissed these claims for failure to state
a claim pursuant to Rule 12(b)(6).
“We review de novo a district court’s dismissal of a complaint
pursuant to Rule 12(b)(6), construing the complaint liberally,
accepting all factual allegations in the complaint as true, and drawing
all reasonable inferences in the plaintiff’s favor.” Chambers v. Time
Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). 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). A complaint
is “deemed to include any written instrument attached to it as an
exhibit or any statements or documents incorporated in it by
reference.” Chambers, 282 F.3d at 152.
The district court correctly concluded that Green failed to allege
sufficient facts to support the inference that the alleged racial
discrimination and First Amendment retaliation resulted from an
official custom or policy. Municipalities are liable under § 1983 only
if the challenged conduct occurred “pursuant to a municipal policy or
custom.” Patterson v. Cty. of Oneida, 375 F.3d 206, 226 (2d Cir. 2004)
(citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 692–94 (1978)). To
satisfy the policy-or-custom requirement, a plaintiff may challenge an
“express rule or regulation,” or the plaintiff may allege that the
challenged practice “was so persistent or widespread as to constitute
a custom or usage with the force of law” or that the facts “imply the
constructive acquiescence of senior policy-making officials.” Littlejohn
v. City of New York, 795 F.3d 297, 315 (2d Cir. 2015). However, a
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“general and conclusory allegation” of a municipal policy or custom
fails to state a plausible claim. Id.Here, Green alleged generally that the DOE “target[s]” African-
American male teachers “who speak out” and that these teachers are
“almost always terminated” at disciplinary hearings whereas two
non-African-American teachers received lesser sanctions for similar
conduct. App’x 68. We agree with the district court that these
allegations are insufficient to plausibly plead an official policy or
custom. Green does not allege the existence of a formal policy of
retaliation or disparate treatment, and the allegation that the DOE
“target[s]” African-American male teachers who engage in certain
speech is too conclusory to amount to a plausible allegation that this
conduct amounts to an official policy or custom. See Littlejohn, 795
F.3d at 315.
With respect to Green’s procedural due process claim, under
the Due Process Clause, a “tenured public employee is entitled to oral
or written notice of the charges against him, an explanation of the
employer’s evidence, and an opportunity to present his side of the
story” prior to the termination of his employment. Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 546 (1985). The procedures outlined
in New York Education Law § 3020-a exceed this standard by
requiring “notice and a full-blown adversarial hearing” prior to the
termination of a tenured teacher. Strong v. Bd. of Educ., 902 F.2d 208,
211 (2d Cir. 1990); see also N.Y. Educ. Law § 3020-a(2), (3). Although
Green argues that the DOE deviated from the § 3020-a procedures
because a school principal made the initial probable cause
determination, such a deviation does not amount to a federal
constitutional due process violation; it is undisputed that Green
received notice of the charges.
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Green’s argument that the arbitrator was biased also fails
because due process does not require that pre-termination hearings
occur before a neutral adjudicator. See Locurto v. Safir, 264 F.3d 154,
174 (2d Cir. 2001). Even if Green’s pre-termination hearing was
imperfect, the availability of a state-court proceeding to challenge the
arbitration decision provided “a wholly adequate post-deprivation
hearing for due process purposes.” Id. at 175.
The district court also properly dismissed Green’s claim of
discrimination against public school teachers in New York City based
on different procedures for selecting disciplinary hearing arbitrators.
Because the relevant distinction—between teachers in New York City
and teachers elsewhere in the state—does not implicate a suspect class
or a fundamental right, it is subject to rational basis review and will
be upheld if it “bears some rational relationship to a legitimate state
interest.” Hayden v. Paterson, 594 F.3d 150, 169 (2d Cir. 2010). The
procedures satisfy this standard given the relative size of New York
City’s public school system.
To the extent that Green asserts a new equal protection claim
on appeal due to treatment of public school employees represented
by a different union, that claim is not properly before us. “It is a well-
established general rule that an appellate court will not consider an
issue raised for the first time on appeal.” In re Nortel Networks Corp.
Sec. Litig., 539 F.3d 129, 132 (2d Cir. 2008) (alteration omitted).
***
The judgment of the district court is AFFIRMED.
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