Domnister v. Exclusive Ambulette Inc

607 F.3d 84

Gennadiy M. DOMNISTER, Vladslav Sitnikov, Vladimir Michenko, Eduard Lerner, Eduard Murkametdinov, Aleusandr Yuldashev, on behalf of themselves and others similarly situated, Plaintiffs-Appellants,v.EXCLUSIVE AMBULETTE, INC., doing business as Exclusive Transportation Services, Exclusive Transportation Services, YMF Limited Liability Corp., Susan Edelman, Michael Edelman, David H. Greenbaum, Defendants-Appellees.

Docket No. 08-4387-cv.

United States Court of Appeals Second Circuit.

Argued: Friday, July 17, 2009.

Decided: Friday, June 4, 2010.

Anthony C. Ofodile, Ofodile & Associates, P.C., Brooklyn, NY, for Plaintiffs-Appellants.

Richard M. Howard, Jonathan D. Farrell, Meltzer, Lippe, Goldstein & Breitstone, LLP, Mineola, N.Y. for Defendants-Appellees.

Before: SACK and B.D. PARKER, Circuit Judges, and GOLDBERG, Judge. ^*

B.D. PARKER, JR., Circuit Judge:

Plaintiffs-appellants are Russian immigrants who allege that their former employer discriminated and retaliated against them based on their national origin. All are former employees of YMF Limited Liability Company, a Brooklyn, New York company, doing business as Exclusive Transportation Services (“ETS”), that is engaged in the business of transporting elderly persons. Def. R. 56.1 Statement ¶¶ 7, 12, 16, Doc. No. 46 Domnister v. Exclusive Ambulette, No. 03-cv-1666 (E.D.N.Y. Aug. 5, 2005). Defendant-appellee Exclusive Ambulette (“EA”), located in Far Rockaway, New York, engages in the same work, but most of its employees are American-born. Defendant-appellee Susan Edelman owns both companies (collectively the “Exclusive Defendants”). Id. ¶¶ 3, 9. The ETS and EA employees were covered by separate collective bargaining agreements with the Service Employees International Union, Local 455, AFL-CIO.

In a complaint filed in federal court on September 5, 2003, the Russian-born ETS employees alleged that, notwithstanding the separate collective agreements, ETS and EA were, in fact, the same company and the drivers did the same work, but that the EA agreement contained more favorable terms than ETS's agreement with its Russian workers, principally higher wages and a shorter work-week. Am. Compl. ¶ 27, Doc. No. 7 Domnister v. Exclusive Ambulette, No. 03-cv-1666 (E.D.N.Y. Sept. 5, 2003). The EA agreement contained a provision that it would “apply to all establishments now or hereafter owned, operated or controlled by” EA Domnister v. Exclusive Ambulette, No. 03-cv-1666, 2007 WL 4244151, at *10 (E.D.N.Y. Nov. 29, 2007) (“ Domnister I ”). Appellants alleged that, by virtue of this provision, the EA agreement applied to them too, and therefore they were entitled to the same wages and benefits enjoyed by EA's American-born workers. The Russian-born drivers also claimed that after they challenged these discrepancies with their employer and the union, they were “terminated on pretextual reasons in retaliation for their Union activities and for seeking to have defendants' discriminatory practices stopped.” Am. Compl. ¶¶ 30, 32, Doc. No. 7, Domnister v. Exclusive Ambulette, No. 03-cv-1666 (E.D.N.Y. Sept. 5, 2003).

Plaintiffs' federal complaint raised six claims: one claim alleging that their union failed to fairly represent them (Claim I), two claims of national origin discrimination under state law and city law (Claims III and V), two claims of retaliation under state law and city law (Claims IV and VI), and one claim of retaliation under the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et. seq. (Claim II).

Exclusive moved for summary judgment, initially arguing that because plaintiffs' federal claims were, in essence, labor claims, they were preempted by the NLRA, and, consequently, the District Court lacked subject-matter jurisdiction. The District Court denied the motion in part and granted it in part. Domnister I, 2007 WL 4244151, at *1. The court first found that it did have subject-matter jurisdiction because it concluded that plaintiffs' two claims of national origin discrimination (Claims III and V) were preempted by Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185 et seq., which provides for federal jurisdiction over “suits for violation of contracts between an employer and a labor organization representing employees.” 29 U.S.C. § 185(a). The court reasoned that because plaintiffs complained of differences between their agreement and that of EA's American-born employees, LMRA preemption was triggered. The Court therefore found that it had jurisdiction to consider the claims as “hybrid” LMRA claims even though they had been brought under state and city law. See Carrion v. Enter. Ass'n, Metal Trades Branch Local Union 638, 227 F.3d 29, 33 (2d Cir.2000) (“[A] suit, which alleges that the employer breached the CBA and that the union breached its duty of fair representation, is known as a hybrid § 301/fair representation claim.”). On the other hand, the District Court agreed with the defendants that it lacked jurisdiction over Claim II (alleging retaliation under the NLRA), because that claim was plainly preempted by the NLRA itself, Section 8 of which grants exclusive jurisdiction over such claims to the National Labor Relations Board. See 29 U.S.C. § 158.

Nonetheless, after dismissing only Claim II for lack of jurisdiction, the District Court granted defendants summary judgment on the merits with respect to Claims I, III, and V. The Court found for defendants on the breach of fair representation claim (Claim I) because it concluded that plaintiffs had “failed to produce any evidence to the court regarding steps the Union could have taken, but did not, to attempt to have Plaintiffs covered by the more favorable terms of the EA 1998 CBA.” Domnister I, 2007 WL 4244151, at *15. Because plaintiffs' “hybrid” LMRA claims (Claims III and V) also required a showing that the union had breached its duty of fair representation, the Court granted summary judgment on those two claims as well. See Sanozky v. Int'l Ass'n of Machinists & Aerospace Workers, 415 F.3d 279, 282 (2d Cir.2005) (“To prevail on a hybrid § 301/duty of fair representation claim, [a plaintiff] must demonstrate both (1) that [an employer] breached its collective bargaining agreement and (2) that [a union] breached its duty of fair representation.”).

Once these four claims had been dismissed, the District Court declined to exercise pendent jurisdiction over plaintiffs' state-law and city-law retaliation claims (Claims IV and VI). The Court dismissed them without prejudice, and “referred” them to state court for adjudication. Domnister I, 2007 WL 4244151, at *1; see WWBITV, Inc. v. Village of Rouses Point, 589 F.3d 46, 52 (2d Cir.2009) (“[G]iven the eventual dismissal of all of plaintiffs' federal claims, we find that the district court acted well within its discretion in declining to assert supplemental jurisdiction over plaintiffs' state-law claim.”).

At this point the procedural posture of the litigation became more complicated. On December 6, 2007, well before the 28 days for filing a motion for reconsideration under Rule 59(e) had expired, the Exclusive Defendants moved for reconsideration, arguing that the District Court should have dismissed the retaliation claims (Claims IV and VI) with prejudice because those claims were preempted by the NLRA.

On December 27, 2007, before the District Court ruled on the motion for reconsideration, plaintiffs filed a new case in state court alleging national-origin discrimination claims (one under state law, one under city law) and retaliation claims (one under state law, one under city law). This state complaint-whose eventual dismissal plaintiffs are now appealing-contains no references to collective bargaining agreements. It alleges that “the American-born/non-Russian workers at Far Rockaway office are accorded better terms and conditions of employment for doing similar, if not less, work as plaintiffs do.” Compl. ¶ 17. It lists the same specific disparities, such as higher pay and better hours, that plaintiffs' earlier federal complaint had attributed to the American-born workers' CBA. The state complaint, however, does not identify a CBA as the source of these disparities, and plaintiffs do not claim to be entitled to be covered by the EA CBA, or any other collective agreement. Compl. ¶ 18. The state complaint also charges retaliation. It alleges that employees who “have protested the discrimination or questioned the corporation regarding the disparity in the terms and conditions of their employment ... have been terminated for pretextual reasons in retaliation for their seeking to have defendants' discriminatory practices stopped.” Compl. ¶ 19.

Defendants promptly removed the newly-filed state case to the District Court, invoking federal question jurisdiction pursuant to 28 U.S.C. § 1331, the LMRA, and the NLRA, arguing that all the claims asserted in the state-court complaint were preempted by federal law.

Subsequently, on May 28, 2008, the District Court granted defendants' motion for reconsideration in the federal lawsuit, and dismissed, this time with prejudice, plaintiffs' original city-law and state-law retaliation claims (Claims IV and VI). Domnister v. Exclusive Ambulette, No. 03-cv-1666, 2008 WL 2157115 (E.D.N.Y. May 21, 2008) ( Domnister II ). The Court concluded that these claims were preempted by the NLRA because they invoked a collective bargaining agreement, and that therefore dismissal was required by San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). The District Court noted that it was compelled to address the preemption issue raised by the motion for reconsideration because preemption is a question of subject-matter jurisdiction that cannot be waived. Domnister II, 2008 WL 2157115, at *2 n.1; see Zhong v. Dep't of Justice, 489 F.3d 126, 129 (2d Cir.2007).

In its May 2008 opinion, the District Court noted that it had also reviewed plaintiffs'...