Jusino v. Fed'n of Catholic Teachers, Inc.

• Decision Date: 23 November 2022
• Docket Number: 21-2081,August Term 2021
• Citation: 54 F.4th 95
• Parties: Ramon K. JUSINO, Plaintiff-Appellant, v. FEDERATION OF CATHOLIC TEACHERS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

54 F.4th 95

Ramon K. JUSINO, Plaintiff-Appellant,

v.FEDERATION OF CATHOLIC TEACHERS, INC., Defendant-Appellee.

No. 21-2081

August Term 2021

United States Court of Appeals, Second Circuit.

Submitted: June 8, 2022

Decided: November 23, 2022

Ramon K. Jusino, pro se, Staten Island, NY, for Plaintiff-Appellant.

Jane Lauer Barker, Andrew D. Midgen, Pitta LLP, New York, NY, for Defendant-Appellee.

Before: Calabresi, Lynch, and Sullivan, Circuit Judges.

Judge Calabresi concurs in a separate opinion.

Richard J. Sullivan, Circuit Judge:

Ramon K. Jusino was suspended from his position as a tenured theology teacher at Notre Dame Academy, a Roman Catholic high school in Staten Island, after giving a controversial lecture on racism and human sin. Jusino's labor union, the Federation of Catholic Teachers (the "FCT"), initiated a formal grievance on his behalf and commenced arbitration proceedings against Notre Dame, asserting that his suspension constituted a breach of the applicable collective bargaining agreement. But when Jusino asked the FCT to raise additional allegations of discrimination and retaliation at the arbitration, it refused. Jusino then sued the FCT for this alleged breach of its duty of fair representation under the National Labor Relations Act of 1935 (the "NLRA"), 29 U.S.C. § 151 et seq. , as amended in relevant part by section 301 of the Taft-Hartley Act of 1947 (commonly known as the Labor Management Relations Act, or the "LMRA"), id. § 185. He also sued the union under the New York State Human Rights Law (the "NYSHRL"), N.Y. Exec. Law § 290 et seq. , and the New York City Human Rights Law (the "NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq . Relying on the Supreme Court's holding in NLRB v. Catholic Bishop of Chicago , 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979), the district court (Donnelly, J. ) dismissed the duty-of-fair-representation claim with prejudice for lack of subject-matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1), reasoning that the NLRA and LMRA are inapplicable to disputes between parochial-school teachers and their labor unions. The district court then declined to exercise supplemental jurisdiction over the state- and municipal-law claims, which it dismissed without prejudice.

On appeal, we are tasked with deciding four questions: first , whether the district court properly concluded that Catholic Bishop precludes a parochial-school teacher's duty-of-fair-representation claim against his labor union under the NLRA as amended by the LMRA; second , if so, whether the inapplicability of the NLRA and LMRA is jurisdictional in character – such that Jusino's duty-of-fair-representation claim was properly dismissed under Rule 12(b)(1) as opposed to Rule 12(b)(6) ; third , if the latter, whether the appropriate appellate remedy is to vacate the dismissal order with instructions to re-dismiss or simply to affirm such order on different grounds; and fourth , whether the district court properly declined to exercise supplemental jurisdiction over Jusino's state- and municipal-law claims. We conclude, as a matter of first impression, that Catholic Bishop does preclude Jusino's duty-of-fair-representation claim here, but that its application requires dismissal under Rule 12(b)(6) for failure to state a claim on which relief could be granted, rather than for lack of federal subject-matter jurisdiction under Rule 12(b)(1). We also conclude, as compelled by our precedents, that affirmance is the proper appellate remedy in this scenario. Finally, we find that Jusino has abandoned any challenge to the dismissal of his state- and municipal-law claims. As a result, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Facts

The FCT is the labor union that serves as the exclusive bargaining agent and labor representative for lay teachers in Catholic schools in New York City and several surrounding counties. Until August of 2018, Jusino was a tenured theology teacher at Notre Dame Academy of Staten Island ("Notre Dame"), a Catholic all-girls high school located within the Roman Catholic Archdiocese of New York. The terms of Jusino's employment at Notre Dame were governed from September 1, 2014 through August 31, 2018 by a collective bargaining agreement (the "CBA") between the FCT and Notre Dame (through its membership in the Association of Catholic Schools). The CBA provided that tenured teachers, such as Jusino, could only be terminated for just cause. It also provided that "the Employer ... shall [not] discriminate against teachers on the basis of ... race, color, national origin[,] or sex" and explicitly incorporated into "the terms of employment of teachers in the member schools ... all ... statutes governing non-discrimination in employment ... and all other applicable legislation, governmental regulations[,] or judicial determinations [thereupon]." J. App'x at 9 ¶¶ 14–15.

In May of 2018, Jusino taught a theology class on the sinfulness of racism, the centerpiece of which was a lecture titled "Racism as Sin." While the record below is somewhat muddy,¹ it appears that the "fallout" of the lecture entailed heated arguments between Jusino and Notre Dame students, parents, and administrators, Dist. Ct. Doc. No. 14 at 2–3, and ultimately resulted in Notre Dame's "suspend[ing]" Jusino "without pay" and "with intent to discharge" as of August 2018, J. App'x at 9, 11 ¶¶ 16, 26 (emphasis omitted).

In September of 2018, FCT informed Notre Dame that it "was instituting formal grievance arbitration procedures on [Jusino's] behalf" to challenge his termination as a tenured teacher. Id. at 8 ¶ 9. In connection with that grievance, Jusino "alleged to [FCT] that [he] had been explicitly suspended" (and ultimately "discharge[d]") by Notre Dame "for complaining about sex, race, and age discrimination against [him] by [Notre Dame], and [about] race discrimination by [Notre Dame] against one of its students." Id. at 9 ¶ 16. A month later, Jusino asserted the same factual allegations in a federal lawsuit against Notre Dame, bringing claims for discrimination and retaliation under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. , the NYSHRL, and the NYCHRL. See Complaint, Jusino v. Notre Dame Acad. High Sch. , No. 18-cv-6027 (MKB) (E.D.N.Y. Oct. 29, 2018), ECF No. 1. Shortly thereafter, Jusino informed the FCT of his lawsuit against Notre Dame and reiterated to the FCT his position that Notre Dame had breached the CBA by violating various employment-discrimination laws incorporated therein by reference.

The FCT, however, responded in a December 2018 email to Jusino that it "was not in favor of making any Title VII discrimination/retaliation claims on [his] behalf" at the upcoming union arbitration with Notre Dame. J. App'x at 10 ¶ 20. Likewise, the FCT's counsel declined to respond to Jusino's suggestion that the FCT might arbitrate the NYCHRL claim on his behalf. Between then and May 17, 2019, when it ultimately commenced formal union arbitration proceedings between Jusino and Notre Dame, the FCT repeatedly reiterated to Jusino that "we are not arbitrating your Title VII claims." Id. at 11 ¶ 24. Indeed, the FCT declined to present Jusino's discrimination claims in either its presentation of his grievances at the pre-hearing conference with the arbitrator in January 2019 or its opening statements at the arbitration hearing itself in May 2019.

At the close of the May 2019 initial arbitration hearing, Notre Dame and the FCT then agreed to adjourn the arbitration to November 2019. In the meantime, Jusino and Notre Dame settled their lawsuit after participating in the Eastern District of New York's pro se mediation program; as part of that settlement, Jusino voluntarily dismissed his discrimination and retaliation claims. See Settlement Letter, Jusino , No. 18-cv-6027 (E.D.N.Y. Aug. 21, 2019), ECF No. 28; Stipulated Order of Dismissal, Jusino , No. 18-cv-6027 (E.D.N.Y. Sept. 27, 2019), ECF No. 33.

B. Procedural History

On November 12, 2019, Jusino commenced this action against the FCT in the Eastern District of New York. In his underlying pro se complaint, Jusino alleged that the FCT had "willful[ly] refus[ed] to investigate [his] Title VII discrimination/retaliation [claims] or any of [his] other [available discrimination claims against Notre Dame] under the CBA," and likewise "refus[ed] to ... meaningfully assert" such claims on his behalf at the union arbitration proceedings with Notre Dame. J. App'x at 18–19 ¶¶ 62, 64, 66. Based on these allegations, Jusino claimed principally that the FCT had breached its duty of fair representation under the NLRA and LMRA. Based on the same allegations, Jusino also claimed that the FCT had discriminated against him in its own right, thereby violating the provisions of the NYSHRL and NYCHRL that apply to "labor organizations." See N.Y. Exec. Law § 296(1)(e) ; N.Y.C. Admin. Code § 8-107(1)(c). For the duty-of-fair-representation claim, Jusino invoked the district court's federal-question and civil-rights jurisdiction under 28 U.S.C. §§ 1331 and 1343, and for the NYSHRL and NYCHRL claims, he invoked the district court's supplemental jurisdiction under 28 U.S.C. § 1367.

The FCT moved to dismiss Jusino's complaint in its entirety. As to Justino's federal duty-of-fair-representation claim, the FCT sought dismissal principally under Rule 12(b)(1), arguing that labor disputes involving parochial-school teachers are excluded from the NLRA's and LMRA's grants of federal subject-matter jurisdiction under Catholic Bishop . In the alternative, the FCT sought dismissal of the duty-of-fair-representation claim under Rule 12(b)(6), arguing that it was time-barred and/or that Jusino had failed to adequately plead the elements of such a claim. As to Jusino's NYSHRL and NYCHRL claims, the FCT argued that the district court should either find that it lacked supplemental jurisdiction under 28 U.S.C. § 1367(a) (in the event that the...