Fowlkes v. Ironworkers Local 40

• Decision Date: 19 June 2015
• Docket Number: Docket No. 12–336–cv.
• Citation: 790 F.3d 378
• Parties: Cole FOWLKES, Plaintiff–Appellant, v. IRONWORKERS LOCAL 40, Danny Doyle, Kevin O'Rourke, Defendants–Appellees.
• Court: U.S. Court of Appeals — Second Circuit

790 F.3d 378

Cole FOWLKES, Plaintiff–Appellant

v.IRONWORKERS LOCAL 40, Danny Doyle, Kevin O'Rourke, Defendants–Appellees.^*

Docket No. 12–336–cv.

United States Court of Appeals, Second Circuit.

Argued: Sept. 24, 2014.

Decided: June 19, 2015.

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, N.Y., for Appellees.

Before: LEVAL, CHIN, and CARNEY, Circuit Judges.

Opinion

SUSAN L. CARNEY, Circuit Judge:

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 pauperis 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”), 42 U.S.C. § 2000e, et seq., and related state- and city-law claims. Invoking its authority pursuant to 28 U.S.C. § 1915(e)(2)(B) 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 for his Title VII claims deprived the court of subject matter jurisdiction over those claims. On the understanding that no federal claim remained after the Title VII claims' dismissal, the District Court declined to 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”), 29 U.S.C. § 151, et seq., for the Local's breach of its duty 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.

BACKGROUND

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 lesser skill level.”

Id. at 19. The Local's failure to refer Fowlkes for assignments 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 alleges 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 position 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 of his sex, and he suggests that the defendants' response to that treatment reflects 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 proceedings 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 concluding its investigation, the EEOC had decided not to take further action 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 to harassment and refusing to refer him for work based on his sex.⁴ 2011 Compl. at 2. The allegations in this 2011 complaint covered the period from 2005 through 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 28 U.S.C. § 1915(e)(2)(B) “to screen sua sponte an in forma pauperis complaint at any 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”), N.Y. Exec. Law § 290, et seq.; and the New York City Human Rights Law (“NYCHRL”), N.Y. City Admin. Code § 8–101, et seq. The District 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 jurisdiction over Fowlkes's Title VII claim was uncertain, it warned. In light of 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 28 U.S.C. § 1915(e)(2)(B), the District Court held that Fowlkes's Title VII claim “must be dismissed because he does not...