21-1638 Peralta v. 32BJ SEIU

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 3 New York, on the 16th day of March, two thousand twenty-two. 4 5 PRESENT: 6 ROBERT D. SACK, 7 MICHAEL H. PARK, 8 WILLIAM J. NARDINI, 9 Circuit Judges. 10 _____________________________________ 11 12 Victor Peralta, 13 14 Plaintiff-Appellant, 15 16 v. 21-1638 17 18 32BJ SEIU, 19 20 Defendant-Appellee. 21 22 _____________________________________ 23 24 25 FOR PLAINTIFF-APPELLANT: Victor Peralta, pro se, New 26 York, NY. 27 28 FOR DEFENDANT-APPELLEE: Ingrid Nava, Associate 29 General Counsel, SEIU Local 30 32BJ, New York, NY. 1 Appeal from a judgment of the United States District Court for the Southern District of

2 New York (Swain, C.J.).

3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

4 DECREED that the judgment of the district court is AFFIRMED.

5 Plaintiff Victor Peralta, proceeding pro se, appeals the district court’s judgment dismissing

6 his complaint, which the district court construed as asserting: (1) claims under

7 that his labor union, Defendant 32BJ SEIU, violated his federal constitutional rights; (2) hybrid

8 claims under the Labor Management Relations Act (“LMRA”) and the National Labor Relations

9 Act (“NLRA”) that 32BJ SEIU breached its duty of fair representation; and (3) claims under Title

10 VII of the Civil Rights Act of 1964 that 32BJ SEIU discriminated against him. We assume the

11 parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on

12 appeal.

13 “We review de novo a district court’s sua sponte dismissal under

(e)(2).”

14 Hardaway v. Hartford Pub. Works Dep’t,

(2d Cir. 2018). We may “affirm on

15 any ground with support in the record.” Cox v. Onondaga Cnty. Sheriff’s Dep’t,

,

16 145 (2d Cir. 2014). Because Peralta is proceeding pro se, “we liberally construe [his] pleadings

17 and briefs,” reading them “to raise the strongest arguments they suggest.” McLeod v. Jewish

18 Guild for the Blind,

(2d Cir. 2017) (cleaned up).

19 I. Section 1983 Claims

20 First, 32BJ SEIU may not be sued under section 1983 because it is a private entity. A

21 plaintiff asserting a claim under section 1983 for deprivation of a constitutional right is “required

22 to show state action.” Tancredi v. Metro. Life Ins. Co.,

(2d Cir. 2003). A

2 1 private entity “can qualify as a state actor in a few limited circumstances,” such as “(i) when the

2 private entity performs a traditional, exclusive public function; (ii) when the government compels

3 the private entity to take a particular action; or (iii) when the government acts jointly with the

4 private entity.” Manhattan Cmty. Access Corp. v. Halleck,

(2019) (citations

5 omitted). 32BJ SEIU—a labor union—is a private entity, and Peralta did not allege any facts

6 suggesting that 32BJ SEIU should be treated as a state actor. Thus, the district court properly

7 dismissed Peralta’s section 1983 claims.

8 II. LMRA-NRLA Claims

9 Second, Peralta’s hybrid LMRA-NLRA claims are untimely. A union-represented

10 employee may bring an action against his employer, union, or both, in a hybrid claim under section

11 301 of the LMRA,

, and the NLRA,

et seq. See Carrion v.

12 Enter. Ass’n, Metal Trades Branch Loc. Union 638,

(2d Cir. 2000). To prevail,

13 a plaintiff must show that his employer breached its collective bargaining agreement, and his union

14 breached its duty of fair representation. See Sanozky v. Int’l Ass’n of Machinists & Aerospace

15 Workers,

(2d Cir. 2005). The statute of limitations for a claim of breach of the

16 duty of fair representation is six months, and it begins when the plaintiff “knew or reasonably

17 should have known that such a breach” had occurred. Kalyanaram v. Am. Ass’n of Univ.

18 Professors at the N.Y. Inst. of Tech., Inc.,

(2d Cir. 2014) (citation omitted).

19 Peralta’s LMRA-NLRA claims are time barred. 32BJ SEIU and St. Luke’s held a

20 grievance hearing in January 2013, and Peralta was fired in February 2013. At that time, Peralta

21 knew—or should have known—about any breach related to his discharge. Peralta’s claims, filed

22 in 2021, are more than seven years untimely. Further, insofar as Peralta’s claims are based on

3 1 32BJ SEIU’s failure to investigate or remove the allegations from his record, they are still time

2 barred as he wrote letters requesting to meet with 32BJ SEIU’s presidents in March 2017 and

3 August 2019. Therefore, Peralta knew at that time about his claims, but he did not file this action

4 until 2021.

5 III. Title VII Claims

6 Finally, Peralta’s Title VII claims fail because he did not obtain a right-to-sue letter, a

7 “precondition” to filing a Title VII action. Hardaway,

. Although Peralta

8 obtained a right-to-sue letter against St. Luke’s, that letter did not give him a right to sue a separate

9 entity, 32BJ SEIU. See Vital v. Interfaith Med. Ctr.,

, 619–20 (2d Cir. 1999)

10 (affirming dismissal of a Title VII claim against a labor union where the employee’s EEOC charge

11 named only the employer as a respondent). Further, Peralta has not argued—nor do his

12 allegations show—that any equitable exceptions to this requirement apply. See Hardaway, 879

13 F.3d at 490. Therefore, his Title VII claims are barred.

14 We have considered all of Peralta’s remaining arguments and find them to be without merit.

15 Accordingly, we AFFIRM the judgment of the district court.

16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk of Court

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