Frank JENKINS, Plaintiff-Appellant, v. COLLINS BUILDING SERVICES, SEIU Local 32BJ, Defendants-Appellees, 500 F. App'x 54

SUMMARY ORDER Appellant Frank Jenkins, pro se, appeals from a judgment entered on the pleadings, dismissing his employment discrimination complaint against Collins Building Services (“Collins”). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We review de novo a district court’s decision granting a motion for judgment on the pleadings. Desiano v. Warner-Lambert & Co., 467 F.3d 85, 89 (2d Cir.2006).

In doing so, “we apply the same standard as that applicable to a motion under Rule 12(b)(6), accepting the allegations contained in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.” Id. (internal quotation marks omitted). “To survive a Rule 12(

c) motion, the complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Bank of New York v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir.2010) (internal quotation marks omitted). We review a district court’s denial of leave to amend for abuse of discretion. In re Tamoxifen Citrate Antitrust Litig., 466 F.3d 187, 220 (2d Cir.2006). I. Jenkins’s Discrimination Claims The district court concluded that Jenkins’s statutory discrimination claims against Collins were precluded under 14 Penn Plaza LLC v.

Pyett, 556 U.S. 247, 129 S.Ct. 1456, 173 L.Ed.2d 398 (2009). However, the Supreme Court there expressly declined to decide whether a CBA “operates as a substantive waiver of [a plaintiffs] ADEA rights because it not only precludes a federal lawsuit, but also allows the Union to block arbitration of these claims.” Id. at 273-74, 129 S.Ct. 1456. For that reason, Pyett did not mandate the dismissal of Jenkins’s discrimination claims. The district court therefore abused its discretion in issuing a

summary dismissal referencing only that case. II.

Jenkins’s Hybrid Claim Although Jenkins’s pro se complaint was somewhat incoherent, his counseled memorandum of law (in opposition to Collins’s motion for judgment on the pleadings and the Union’s motion to dismiss) clarified that he had intended to bring a “hybrid § 301/fair representation claim” consisting of (1) a claim against Collins under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, for breaching the collective bargaining agreement (the “CBA”) between the Union and the Realty Advisory Board, a multi-employer bargaining group of which Collins is a member; and (2) a claim against the Union under the National Labor Relations Act, 29 U.S.C. § 159(a), for breaching its duty of fair representation.

Jenkins’s memorandum requested leave to file an amended complaint to that effect and noted that the general rule requiring a plaintiff to exhaust the contractual remedies in a CBA does not apply to hybrid § 301/fair representation claims. See DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). A district court enjoys “broad discretion” to consider a request for leave to amend which is informally raised in an opposing memorandum and may (as here) deny such a request by not addressing it. See Tamoxifen, 466 F.3d at 220.

The district court will need to reconsider the denial of the request to replead, given our vacatur of its decision on the basis of Jenkins’s discrimination claims, and the lower threshold for amendment when (as here) a plaintiff retains counsel after filing a complaint pro se. See DeCarlo v. Fry, 141 F.3d 56, 62 (2d Cir.1998). The district court’s judgment is VACATED and the case is REMANDED for further proceedings consistent with this order. .

Collins requests that we affirm the district court’s judgment based on the contents of a February 2010 supplemental collective bargaining agreement between the Union and the Realty Advisory Board that explicitly permits an individual employee to compel arbitration in the event that the Union declines to do so on the employee’s behalf. This agreement was not before the district court, and we decline to decide its effect on Jenkins's claims (if any). See Singleton v.

Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (‘‘It is the general rule ... that a federal appellate court does not consider an issue not passed upon below.”). The district court may decide whether to consider the supplemental agreement on remand.