Ricardo LLANOS, Plaintiff-Appellant, v. The BROOKDALE UNIVERSITY HOSPITAL AND MEDICAL CENTER, Sodexho Marriot Health Care Services, Service Employees International Union Local 1199 AFL-CIO, Defendants-Appellees, 513 F. App'x 25

SUMMARY ORDER Plaintiff-appellant Ricardo Llanos appeals from a judgment entered March 14, 2012, dismissing his amended complaint for failure to state a claim.

In a memorandum and order filed March 11, 2012, the district court dismissed Llanos’s claims that (1) he was wrongfully discharged by defendant-appellee Brookdale University Hospital and Medical Center (“Brookdale”), in violation of the collective bargaining agreement (the “CBA”); (2) defendant-appellee Service Employees International Union Local 1199 AFL-CIO (“Local 1199”) breached its duty of fair representation by failing to properly represent him in the grievance process; and (3) his civil rights were violated. On appeal, Llanos argues that the district court erred in dismissing his claims.

We assume the parties’ familiarity with the facts, procedural history, and specification of issues for review. On appeal from a dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), we review de novo whether the complaint “ ‘contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’” Gibbons v. Malone, 703 F.3d 595, 599 (2d Cir.2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). First, Llanos has failed to plausibly plead that Brookdale breached the CBA.

Even assuming the CBA prohibited Brook-dale from delegating its discretion to fire employees for cause to defendant-appellee Sodexho Marriot Health Care Services (“Sodexho”) — a point on which the CBA is silent — Brookdale implicitly ratified Sodex-ho’s decision, retroactively making the decision to terminate its own. See Hamm v.

United States, 483 F.3d 135, 140 (2d Cir.2007) (“ ‘Ratification is the affirmance by a person of a prior act which did not bind him ... whereby the act, as to some or all persons, is given effect as if originally authorized by him.’ ” (quoting Restatement (Second) of Agency § 82 (1958))). While Llanos alleges that Sodexho employee Peter Ortiz falsely accused him of urinating in public, he does not allege that such conduct would be insufficient “cause” for termination, nor does he allege that Local 1199 failed to contest Ortiz’s factual allegations in the grievance proceedings.

He only alleges that Local 1199 failed to raise the legal argument that Ortiz, as a Sodex-ho employee, could not exercise Brook-dale’s authority to fire him. Thus, the only plausible inference is that Local 1199 did contest Ortiz’s allegations in the grievance proceedings and both appeals boards found them to be credible. Second, Llanos’s complaint does not plausibly plead a claim for breach of Local 1199’s duty of fair representation.

To prove a breach of the duty of fair representation, the plaintiff must show that (1) the union engaged in arbitrary, discriminatory, or bad faith conduct, and (2) the conduct caused plaintiffs injuries. See White v.

White Rose Food, 237 F.3d 174, 179 (2d Cir.2001). “A union’s actions are arbitrary only if, in light of the factual and legal landscape at the time of the union’s actions, the union’s behavior is so far outside a ‘wide range of reasonableness,’ as to be irrational.” Id. (internal quotation marks, citation, and alteration omitted). “A showing of bad faith requires a showing of fraudulent, deceitful, or dishonest action.” Id. (internal quotation marks, citation, and alteration omitted).

Because the complaint does not plausibly allege a breach of the CBA, we conclude that the complaint also fails to allege that Local 1199 acted arbitrarily or in bad faith by declining to pursue a meritless legal argument. Finally, Llanos raised an unspecified civil rights claim in his amended complaint, and he appears to argue, for the first time on appeal, that this was an age discrimination claim. This argument is waived because it was never raised before the district court. See In re Nortel Networks Corp. Secs. Litig., 539 F.3d 129, 132 (2d Cir.2008) (per curiam).

Even if we were to consider it, this claim would fail on the merits because the complaint fails to plead any facts giving rise to a plausible inference of discrimination. We have considered Llanos’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court. .

Because Llanos did not exhaust all of the grievance and arbitration remedies available to him in the CBA, he actually pled his claim as a "hybrid” claim — alleging both Brook-dale’s violation of the CBA, in violation of the Labor Management Relations Act § 301, 29 U.S.C. § 185, and the union’s breach of its duty of fair representation, in violation of the National Labor Relations Act § 9(a), 29 U.S.C. § 159(a). See DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983); White v. White Rose Food, 237 F.3d 174, 178-79 & n. 3 (2d Cir.2001).

Because, as explained below, both of the underlying claims fail on their own merits, the hybrid claim also fails. See Del-Costello, 462 U.S. at 164, 103 S.Ct. 2281 (”[T]he two claims are inextricably interdependent.” (citation and internal quotation marks omitted)).