Petition for Writ of Certiorari — Robert Joyce, Petitioner v. Consolidated Edison Company of New York, Inc.

TABLE OF CONTENTS

APPENDICES

Appendix A - January 27, 2025, summary order of the United States Court of

Appeals for the Second Circuit.

Appendix B - March 14, 2024, Order of U.S. District Judge Analisa Torres.

Appendix C - September 18, 2023, Report and Recommendation of U.S. Magistrate

Judge James L. Cott.

Appendix D - March 3, 2025, order of the United States Court of Appeals denying

Petitioner’s petition for panel rehearing/rehearing en banc.

Appendix E - September 7, 2022, Order of U.S. District Judge Analisa Torress

Appendix F - September 30, 2021, opinion and award of Arbitrator Arthur A. Riegal

Esq.,

Appendix I - Con Edison’s and the union’s arbitration closing written arguments

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24-931

lei/ce " Ccn.vhdtited Eiiiwit Co of NY

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the

27th day of January, two thousand twenty-five.

Present:

Debra Ann Livingston,

ChiefJudge,

Reena Raggi,

William J. Nardini,

Circuit Judges.

Robert Joyce,

Plaintiff-Appellant,

v.

24-931

Consolidated Edison Company of New

York, Inc.,

Defendant-Appellee.

For Plaintiff-Appellant:

4

Robert Joyce, pro se, Valley Cottage,

NY.

For Defendant-Appellee:

Paul Limmiatis, Consolidated Edison

Company of New York, New York, NY.

Appeal from a judgment of the United States District Court for the Southern

District of New York (Analisa Torres, Judge; James L. Cott, Magistrate Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the March 14,2024 judgment of the district court is AFFIRMED.

Plaintiff-Appellant Robert Joyce, proceeding pro se, appeals from the judgment

of the district court dismissing his lawsuit against Consolidated Edison Company of

New York, Inc. ("ConEd"). Joyce principally seeks vacatur of an arbitration award that

upheld ConEd's decision to terminate him following a failed drug test. The district

court granted ConEd's motion to dismiss, reasoning that Joyce lacked standing to

challenge the arbitration award directly and that he had failed to state a hybrid claim

under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and the duty of

fair representation ("§301/DFR claim"). Joyce v. Consolidated Edison Co. of N.Y., Inc.,

No. 22-CV-801 (AT), 2022 WL 4096177 (S.D.N.Y. Sept. 7, 2022). The district court also

denied Joyce's motion for leave to amend, concluding that the proposed amendments

similarly failed to state a claim. Joyce v. Consolidated Edison Co. ofN.Y., Inc., No. 22-CV-

801 (AT) (JLC), 2023 WL 6098979 (S.D.N.Y. Sept. 18, 2023), report and recommendation

adopted, 2024 WL 1116084 (S.D.N.Y. Mar. 14, 2024). We assume the parties' familiarity

with the underlying facts and the record of prior proceedings, to which we refer only

as necessary to explain our decision to AFFIRM.

"We review de novo a district court's dismissal of a complaint for lack of standing

and for failure to state a claim on which relief can be granted." Soule v. Conn. Ass'n of

Sch., Inc., 90 F.4th 34, 44 (2d Cir. 2023) (en banc). In doing so, we "constru[e] the

complaint liberally, accepting all factual allegations in the complaint as true, and

drawing all reasonable inferences in the plaintiff's favor." Chambers v. Time Warner,

Inc., 282 F.3d 147, 152 (2d Cir. 2002). We generally review denials of leave to amend

for abuse of discretion but exercise de novo review when the denial is premised on a

question of law like futility. Anderson News, L.LC. v. Am. Media, Inc., 680 F.3d 162,185-

86 (2d Cir. 2012).

I.

Standing to Bring Article 75 Petition

In a single sentence, Joyce asserts that the district court erred by dismissing his

direct challenge to the arbitration award under Article 75 of the New York Civil Practice

Laws and Rules, N.Y. C.P.L.R. § 7511, for lack of standing. Although we afford pro se

litigants special solicitude, we normally will not consider issues they raise only

"obliquely and in passing." Gerstenbluth v. Credit Suisse Secs. (USA) LLC, 728 F.3d 139,

142 n.4 (2d Cir. 2013). But even if Joyce had properly developed this argument, it lacks

merit. Under Article 75, a "party" to an arbitration may file an application to vacate

3

an arbitration award.

N.Y. C.P.L.R. § 7511(b)(1).

Joyce was represented in the

arbitration by his union, which initiated the grievance proceeding on his behalf. Thus,

ConEd and the union —not Joyce —were the parties to the arbitration. We therefore

agree with the district court that Joyce lacks standing to seek vacatur of the arbitration

award under Article 75.

See Katir v. Columbia Univ., 15 F.3d 23, 24-25 (2d Cir. 1994)

("[A]n individual employee represented by a union generally does not have standing

to challenge an arbitration proceeding to which the union and the employer were the

only parties."); Matter of Wilson v. Bd. ofEduc. of the City ofN.Y., 261 A.D.2d 409,409 (2d

Dep't 1999) ("[S]ince the petitioner was a 'party' to neither the collective bargaining

agreement nor the arbitration, she lacks standing to seek vacatur of the arbitrator's

award." (citing Chupka v. Lorenz-Schneider Co., 12 N.Y.2d 1 (1962)).

II.

Hybrid § 301/DFR Claim

To successfully plead a § 301/DFR claim, a plaintiff must allege "(1) that the

employer breached a collective bargaining agreement and (2) that the union breached

its duty of fair representation vis-a-vis the union members."

White v. White Rose Food,

237 F.3d 174,178 (2d Cir. 2001). "The plaintiff may sue the union or the employer, or

both, but must allege violations on the part of both." Id. at 179. We agree with the

district court that, even assuming arguendo that ConEd violated the collective

bargaining agreement, Joyce's claim fails because he did not allege sufficient facts

4

showing that the union violated its duty of fair representation.

A plaintiff making a DFR claim must allege that "the union's actions or inactions

are either arbitrary, discriminatory, or in bad faith" and that there is "a causal

connection between the union's wrongful conduct and their injuries." Vaughn v. Air

Line Pilots Ass'n, Inti, 604 F.3d 703, 709 (2d Cir. 2010) (internal quotation marks and

citations omitted). On appeal, Joyce principally argues that the union's conduct in

handling his grievance was arbitrary.1

"[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." Air Line Pilots Ass'n, Inti v. O Neill,

499 U.S. 65, 67 (1991) (internal quotation marks and citation omitted). In contrast,

"(tjactical errors" and "negligence on the union's part do[] not give rise to a breach."

Vaughn, 604 F.3d at 709 (quoting Barr v. United Parcel Serv., Inc., 868 F.2d 36, 43 (2d Cir.

1989)). "Our review of such allegations is 'highly deferential, recognizing the wide

latitude that [unions] need for the effective performance of their bargaining

responsibilities.'" Vaughn, 604 F.3d at 709 (quoting O'Neill, 499 U.S. at 78) (alterations

1 Before the district court, Joyce also alleged that the union's conduct was discriminatory and in

bad faith. Though Joyce mentions discrimination and bad faith in passing in his appellate brief, he never

develops these arguments. Accordingly, we decline to decide these issues. See Gerstenbluth, 728 F.3d

at 142 n.4.

5

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in original).

We agree with the district court that Joyce failed sufficiently to allege that

the union's conduct was arbitrary.

For example, Joyce claims that the union acted arbitrarily because it did not

protest or challenge ConEd's production of incomplete chain-of-custody forms —an

error corrected only the day before the arbitration proceedings began.

But Joyce

himself testified at the arbitration hearing about the incomplete forms, and the union

raised the issue with the arbitrator in its written closing arguments. While the union

may not have addressed delayed completion of the chain-of-custody forms in the way

Joyce preferred, it did not ignore the issue. Similarly, Joyce's allegation that the union

failed to obtain a litigation package that purportedly explained the process that Joyce's

urine sample went through at the testing facility can at most be described as negligence,

not irrationality. See Nicholls v. Brookdale Univ. Hosp. & Med. Ctr., 204 F. App'x 40, 42

(2d Cir. 2006) (summary order) ("The Union... did not breach its duty of

representation by its alleged failure to obtain discovery of potentially exonerating

documentsj.]").

Joyce's other contentions—such as that the union erroneously

stipulated to certain witness testimony, declined to object to certain evidence, and

conducted an inadequate cross-examination —amount to nothing more than challenges

to tactical decisions. See Barr, 868 F.2d at 43-44 ("Tactical errors are insufficient to show

a breach of the duty of fair representation.").

6

k

We have considered Joyce's remaining arguments and find them to be with

merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.

FOR THE COURT;

Catherine O'Hagan Wolfe, Clerk of Court

SECOND

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IB

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------------------X

ROBERT JOYCE,

22 CIVIL 801 (AT)(JLC)

Plaintiff,

JUDGMENT

-against-

CONSOLIDATED edTsoncompany of^

NEW YORK, INC.,

Defendant.

----------------------------------------—x

It is hereby ORDERED, ADJUDGED AND DECREED: That for the reasons

stated in the Court's Order dated March 14, 2024, the Court has OVERRULED Joyce's

objections to the R&R and the R&R is ADOPTED in full. Judgment is entered in favor of

Defendant; accordingly, the case is closed.

Dated: New York, New York

March 14, 2024

RUBY J. KRAJICK

Clerk of Court

BY:

Deputy Clerk

ZB

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ROBERT JOYCE,

USDC SDNY

DOCUMENT

ELECTRONICALLY FILED

DOC#:

DATE FILED: 03/14/2024

Plaintiff.

-againstCONSOLIDATED EDISON COMPANY OF

NEW YORK, INC..

Defendant.

ANALISA TORRES, District Judge:

22 Civ. 801 (AT) (JLC)

ORDER

Plaintiff pro se. Robert Joyce, brings this action against his former employer.

Consolidated Edison Company of Neu York. Inc. (■’('onEd’’i. seeking to vacate an arbitration

award that upheld his termination. See ECF Nos. 1. 1-1. The Court granted ConEd’s motion to

dismiss on September 7, 2022. Order, ECF No. 16. Joyce moved for leave to amend his petition

on January 6. 2023. and filed a proposed amended petition ("PAP")- ECF No. 33-1. By order

dated November 29, 2022, the Court referred the motion to the Honorable James L. Cott for a

report and recommendation. ECF No. 28.

Before the Court is Judge Cott's Report and Recommendation (the "R&R"), dated

September 1 8. 2023. which recommends that Joyce's motion to amend be denied and that the

case be dismissed with prejudice. R&R at 1. 12. ECF No. 50. Joyce filed timely objections to

the R&R. Pl. Obj.. ECF No. 51: see also Def. Resp . ECF No. 52.

For the reasons stated below, the Court OVERRULES Joyce's objections and ADOPTS

the R&R in its entirety.

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DISCUSSION'

Standard of Review

1

A district court “may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). When a party

makes specific objections, the court reviews de novo those portions of the R&R to which

object ion is made. W.;Fed. R Civ. P. 72(b)(3). However, “when a party makes only conclusory

or general objections, or simply reiterates [their] original arguments,” the court reviews the R&R

strictly for clear error. Wallace v. Superintendent <.f Clinton Corr. Facility, No. 13 Civ. 3989,

2014 WL 2854631, at *1 (S.D.N.Y. June 20, 2014) (citation omitted); see also Bailey v. U.S.

Citizenship & Immigr. Servs.. No. 13 Civ. 1064, 2014 WL 2855041, at *1 (S.D.N.Y. June 20,

2014) (“[Ojbjections that are not clearly aimed at particular findings ... do not trigger de novo

review ”) Moreover, “a district judge will not consider new arguments raised in objections to a

magistrate judge’s report and recommendation that could have been raised before the magistrate

but were not.” United States v. Gladden, 394 F. Supp. 3d 465, 480 (S.D.N. Y. 2019) (citation

omitted).

Hie Court may adopt those portions of the R&R to which no objection is made “as long

as no clear error is apparent from the face of the record.” Oquendo v. Colvin, No. 12 Civ. 4527,

2014 WL 4160222, at *2 (S.D.N.Y. Aug. 19, 2014) (citation omitted). A finding is clearly

erroneous if the reviewing court is “left with the definite and firm conviction that a mistake has

been committed.” Easley v. Cromartie, 532 U.S. 234, 242 (2001) (citation omitted).

“Pro se parties are generally accorded leniency when making objections.” Pinkney v.

Progressive Home Health Servs., No. 06 Civ. 5023, 2008 WL 2811816, at * 1 (S.D.N.Y. July 21,

1 The Court presumes familiarity with the facts and procedural history as detailed in the R&R, see R&R at 1 4, and

does not summarize them here.

2

Case 1.22-cv 00801-AT-JLC Document 54 Filed 03,14/24 ?aye 3 of 4

2008) (citation omitted), “Nonetheless, even a pro se party's objections to a [r]eport and

[r]ecommendation must be specific and clearly aimed at particular findings in the magistrate’s

proposal, such that no party be allowed a ‘second bite at the apple’ by simply relitigating a prior

argument.” Id. (citation omitted).

II.

Joyce’s Objections

Joyce objects to Judge Cott’s findings that the PAP does not establish that the Utility

Workers Union of America, AFL-CIO, Local 1-2 (the “Union”) acted arbitrarily,

discriminatorily, or in bad faith in representing Joyce at the arbitration. First, Joyce argues that

the R&R “fail[s] to acknowledge Plaintiffs claim of his due process rights being violated.” Pl.

Obj. at 5. But, the R&R does acknowledge Joyce’s contention that "the Union ‘in bad faith’

allowed ConEd to deny him his due process rights,” and concludes that the PAP does not

adequately allege bad faith. R&R at 11-12. This objection is meritless.

Second, Joyce “objects to the Magistrate Judge’s interpretation of a hybrid § 301/[duty of

fair representation] claim,” contending that such a claim “is not just a claim against a Union

failing to represent a Plaintiff.” Pl. Obj. at 7. Joyce is correct that a hybrid § 301/fair

representation claim “alleges that the employer breached the [collective bargaining agreement]

and that the union breached its duty of fair representation.” Carrion v. Enter. Ass 'n, Metal

Trades Branch Loc. Union 638, 227 F.3d 29, 33 (2d Cir. 2000). To prevail on a hybrid claim,

however, “the employee ‘must not only show that [his] discharge was contrary to the contract,

but must also carry the burden of demonstrating breach of duty by the Union.’” Id. (quoting

DelCostello v. Int'l Bhd. cf Teamsters, 462 U.S. 151, 165 (1983)). The R&R did not err in

focusing, therefore, on whether the PAP adequately established a breach of duty by the Union.

Third. Tnvcc ohiects to “the Magistrate not addressing fConFd’s] a’tornev’s offering of a

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new argument”, nanieiy, that Department of Transportation drug-testing regulations did not

apply to Joyce’s drug test. Pl. Ob j. at 9 Even if this argument is “new,” however, ConEd's

defense does not bear on whether the allegations in the PAP are sufficient. The R&R was not

required to address it.

In his fourth, sixth, and seventh objections, Joyce contends that the PAP adequately

alleges that the Union failed to help him obtain certain evidence and conduct specific

investigations in preparation for the arbitration. Pl. Obj. at 10-11, 13-16. As the Court has

(already held, however, “allegations that a union failed to present certain arguments or obtain

certain evidence are insufficient to show a breach of the duty of fair representation.” Order at 6.

The R&R did not err in declining to deem the Union’s actions irrational on this ground.

Joyce’s fifth, eighth, ninth, and tenth objections are otherwise general, conclusory, or

restate his original arguments. Pl. Obj. at 11-13, 17-18; Wallace, 2014 WL 285463 1, at * I;

Pinkney, 2008 WL 281 1816, at * 1. The Court has, therefore, reviewed the remainder of the

thorough and well-reasoned R&R for clear error and finds none.

CONCLUSION

For the foregoing reasons, the Court OVERRULES Joyce’s objections to the R&R and

ADOPTS the R&R in full. The Clerk of Court is directed to (I) terminate the motion at ECF No.

33, (2) enter judgment in favor of Defendant, (3) close the case, and (4) mail a copy of the R&R

and this order to Joyce.

SO ORDERED.

Dated: March 14, 2024

New York, New York

~

4

4

ANALISA TORRES

United States District Judge

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IC

USDC SDM

DOCUMENT

ELECTRONICALLY FILED

DOC DA I I I II I’D i I s, 2023

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

*

ROBERT JOYCE.

REPORT AND

RECOMMENDATION

Plaintiff,

22-CV-801 (AT) (JLC)

-V.-

CONSOLIDATED EDISON COMPANY

OF NEW YORK, INC.,

Defendant.

JAMES L. COTT, United States Magistrate Judge.

To The Honorable Analisa Torres, United States District Judge:

Robert Joyce, now proceeding pro se, brought this action against his former

employer, Consolidated Edison Company of New York, Inc. (“ConEd”), seeking to

vacate an arbitration award entered on September 30. 2021, that upheld his

termination. After the Court granted ConEd's motion to dismiss. Joyce has moved

to amend his petition. For the reasons set forth below, Joyce’s motion should be

denied.

I. BACKGROUND

A. Factual Background1

This action arises out of an arbitration between Joyce, represented by the

Utility Workers Union of America, AFL-CIO, Local 1-2 (“Utility Workers Union” or

1 Familiarity with the prior proceedings in this case, including the Court’s Order

dated September 7, 2022, Dkt. No. 16, granting ConEd’s dismissal motion with

leave to amend the petition, is assumed. Additional information is included here to

provide context for consideration of the pending motion.

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"Union") and ConEd. Spp Verified Petition to Vacate Arbitrator's Opinion & Award

I ursuant to CPLR Article 75 ( Petition”)

7-27. Dkt. No. 1-1. Joyce alleges in his

Petition the following events leading up to the arbitration:

Joyce was a “Distribution Splicer” for ConEd from on or about July 4, 2009,

until his termination on March 5, 2021, during which time he was represented by

the Utility Workers Union. Id.

7, 9-10. On January 29, 2021, Joyce submitted

to an employer-mandated drug screening. Id. On February 8, 2021, ConEd’s

Medical Review Officer ("MRO”) informed him that the sample he provided was

positive for methamphetamine. Id.

11—12. Joyce denied ingesting any illicit

substances and requested that the sample be sent to another lab for testing. Id.

13. On February 22, 2021, he was informed that the results of the sample again

confirmed the presence of methamphetamine. Id.

14. As a result of the drug test,

Joyce was terminated, and the Union then filed a grievance on his behalf on March

24, 2021, pursuant to its collective bargaining agreement ("CBA") with ConEd, Id.

’ill 8, 15.

An arbitration on the Union’s grievance was held on August 3 and 17, 2021,

to determine whether ConEd terminated Joyce’s employment without reasonable

cause, id.

16, and, after the arbitrator upheld Joyce’s termination^ the Union did

not pursue any other proceedings to vacate the award. Id.

75.

B. Procedural History

On December 29, 2021, Joyce, represented by counsel, filed his petition

seeking to vacate the arbitration award. Dkc. No. 1-1, On February 17, 2022,

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ConEd moved to dismiss the petition, see Dkt Nos 7-9. 12- 14 and the Court

granted the motion by Order dated September 7, 2022 (“Order"). Dkt. No. 1.6. Joyce

was given permission to file a motion for leave to amend his petition, but onlv with

respect to a proposed hybrid § 301/duty of fair representation (“DFR”) claim. Order

at 9-10.

Joyce, now proceeding pro se, moved for leave to amend his petition on

January 6, 2023, and filed a proposed amended petition (“PAP”).2 Dkt. No. 33 &

33-1.1 Joyce also filed a memorandum of law and declaration in support of his

motion. See Plaintiffs Memorandum of Law, Dkt. No. 35: Declaration of Robert

Joyce dated January 6, 2023, Dkt. No. 34.4 ConEd filed its opposition papers on

February 3, 2023. Memorandum of Law in Opposition to Plaintiffs Motion to

Amend (“Def. Mem.”), Dkt. No. 40; Declaration of Paul Limmiatis dated February 2,

2023 ( Limmiatis Decl. ), Dkt. No. 41. Joyce filed reply papers on February 17.

2023, and a supporting declaration on February 20, 2023. Memorandum of Law

(“Pl. Mem.”), Dkt. No. 44; Declaration of Robert Joyce filed February 20, 2023

(“Joyce Decl.”), Dkt. No. 45.

On February 22, 2023, ConEd requested the Court strike Joyce’s February 17

2 Although the parties appear to use the words “complaint” and “petition”

interchangeably in their submissions, the Court will refer to the proposed amended

pleading as a “petition.”

3 lhe Court had previously denied without prejudice Joyce’s prior motion to amend

as both premature and as failing to comply with Rule 8 of the Federal Rules of Civil

Procedure. Dkt. No. 32.

4 On January 9, 2023, the Court directed Joyce to refile his memorandum of law due

to a misfiling, Dkt. No. 37, which he refilled on January 12, 2023. Dkt. No. 39.

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memorandum because it exceeded the required page limits, which the Court denied

Dkt. Nos. 46-47. However, the Court permitted ConEd to file sur-reply papers,

Dkt. No. 47, which ConEd filed on March 3, 2023. Defendant’s Sur-Reply

Memorandum of Law in Opposition to Plaintiffs Motion (“Def. Sur-Reply”), Dkt. No.

48.

II. DISCUSSION

A. Legal Standards

1. Leave to Amend

Rule 15(a) ol the federal Rules of Civil Procedure, which governs the

amendment of pleadings before trial, provides, in relevant part, that leave to amend

a pleading shall be freely given “when justice so requires.” Fed. R. Civ. P. 15(a)(2).

In the Second Circuit, a pro se complaint should not be dismissed without the

Court granting leave to amend at least once when a liberal reading of the complaint

gives any indication that a valid claim might be stated.” Dolan v. Connollv. 794

K3d 290, 295 (2d Cir. 2015) (cleaned up); see also Loreley Fin. (Jersey) No. 3 Ltd. u.

Wells Fargo Sec., LLC, 797 F.3d 160, 190 (2d Cir. 2015) (“hew[ing] to the liberal

standard set forth in Rule 15 and acknowledging how the “'permissive standard’

is consistent with [the Circuit s] strong preference for resolving disputes on the

merits” (first quoting Williams v. Citigroup Inc., 659 F.3d 208, 212-13 (2d Cir.

2011); then citing Foman v. Davis, 371 U.S. 178, 182 (1962))).

[A] pro se litigant in particular ‘should be afforded every reasonable

opportunity to demonstrate that he has a valid claim.’” Dluhos v. Floating &

Abandoned Vessel, Known as New York, 162 F.3d 63, 69 (2d Cir. 1998) (quoting

4

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Sa/cW/ ? Dilworth .7 45 F 2d 78] 785 (2d Cm 19^1)1 "[Ilf t h<* part,• * •••kin- » ■ ■

amend has at least colorable grounds for relief, justice requires that its motion be

granted." McBeth f Gabrielli Truck Sales. Ltd., 731 F. Supp. 2d 316, 319 (E.D.N.Y

2010) (first quoting Randolph-Rand Corp. v. Tidy Handbags, No. 96-CV-1829

(LMM) (DCF), 2001 WL 1286989, at *5 (S.D.N.Y. Oct. 24, 2001); then citing Ryder

Energy Distrib. Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 783 (2d

Cir. 1.984)). Leave should be denied, however, “if there is an ‘apparent or declared

reason—such as undue delav bad faith or dilatnrv motive

, repeated failure to

cure deficiencies by amendments previously allowed, undue prejudice to the

opposing party by virtue of the allowance of the amendment, [or] futility of

amendment.” Dluhos, 162 F.3d at 69 (alterations in original) (quoting Foman, 371

U.S. at 182): see also Keitt v. New York City, 882 F. Supp. 2d 412, 460 (S.D.N.Y.

201.1). Even under the "liberal standard" applicable to pro se pleadings, "[granting

leave to amend is futile if it appears that plaintiff cannot address the deficiencies

identified by the court and allege facts sufficient to support the claim.” Joyner v.

Alston & Bird LLP, No. 20-CV-10093 (AT) (GWG), 2021 WL 4296433, at *3

(S.D.N.Y. Sept. 21, 2021) (quoting Panther Partners Inc. v. Ikanos Commc’ns, Inc.,

347 F. App x 617, 622 (2d Cir. 2009)). “The futility of a proposed amendment is

evaluated on a motion to dismiss standard.” Id. (citing Anderson News, L.L.C, v.

Am. Media, Inc., 680 F.3d 162, 185 (2d Cir. 2012)).

2. Standards Applicable to Pro Se Litigants

In evaluating motions made by pro se litigants, including motions to amend,

i

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6c

submissions made hr pro <e plaintiffs are held "to less stringent standards than

formal pleadings drafted by lawyers.” Hughes u. Rowe, 449 U.S. 5. 9 (1980)

(internal quotations omitted); see also Harris v. Mills. 572 F.3d 66. 72 (2d Cir 2009)

(courts are "obligated to construe a pro se complaint liberally”). As a result, the

Court may consider allegations that appear in a pro se plaintiffs motion papers or

other submissions to the Court as well as in his pleadings. See, e.g., Freud v. N. Y.C.

Dep’t ofEduc., No. 21-CV-2281 (MKV), 2022 WL 889213, at *4 (S.D.N.Y. Mar. 25,

2022) (courts "may also consider factual statements made in the pro se Plaintiffs

opposition to the motion to dismiss” (citing Walker v. Schult, 717 F.3d 119, 122 n.l

(2d Cir. 2013))). Nevertheless, pro se plaintiffs are not excused from the normal

rules of pleading; “dismissal ... is proper if the complaint lacks an allegation

regarding an element necessary to obtain relief.” Geldzahler v. N. Y. Med. Coll.. 663

f. Supp. 2d 379, 387 (S.D.N.Y. 2009) (cleaned up).

B. Analysis

1. Joyce Should Be Denied Leave to Amend

Joyce seeks permission to amend his petition on the grounds that (1) the

proposed amended petition establishes ConEd violated the CBA; (2) the Union

breached its duty of fair representation; (3) the arbitrator erred in disregarding

evidence of deliberate misstatements and fraud”; and (4) the causal connection

between the Union s failure and the harm to him is well established and caused him

to be denied a full and fair hearing. Pl. Mem. at 5—25. ConEd counters that

amendment would be futile as the proposed amended petition both fails to allege

6

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anv new fm-ts establishing that the Union's conduct was arbitrarv. discriminatorv.

or m bad faith, and does not sufficiently allege causation, as required for hybrid

§ 30UDFK. claims. Dei. Mem. at 7 -24. The Court agrees with ConEd. •

a. Joyce Fails to State a Hybrid Section 301/Breach Of

Duty Of Fair Representation Claim

•Joyce’s proposed amended petition falls short of alleging any new facts that

would properly establish that the Union’s conduct was “arbitrary, discriminatory, or

in had faith ’’ Vaughn v A’r Line Pilots Ass’n. Int’l. 604 F.3d 703. 709 (2d Cir.

2010). As discussed in the order dismiomig tnc original petition, the dut> of fu.ii

representation ("DFR”) theory “recognizes that unions ‘ha[ve] a duty to represent

fairly all employees subject to the collective bargaining agreement.”’ Order at 5

(alteration in original) (quoting Vaughn, 604 F.3d at 709). A breach of this duty

occurs when a union’s conduct towards a member is ■‘arbitrary, discriminatory, or in

hud faith.’’ Id. (citation omitted). Courts reviewing allegations of such a breach

must be “highly deferential" given the “wide latitude that [unions] need for the

effective performance of their bargaining responsibilities.’’ Air Line Pilots Ass’n,

Int’l v. O’Neill, 499 U.S. 65, 78 (1991); Order at 5 (quoting same).

The Second Circuit has held that

.

[a] union’s actions are “arbitrary only if, in light of the

factual and legal landscape at the time of trie union’s

actions, the union’s behavior is so far outside a wide range

of reasonableness as to be irrational." O’Neill ', 4§9 U.S.' at

5 Because Joyce was directed to request leave to amend his petition only with

rfespdcl td'his'hybrid § 301/DFR'c.lairh. Dkt. Nh. 16. this Repdrt arid

Recommendation addresses only the parties’ arguments related to this claim {i.e.,

Point II of Joyce’s Memorandum).

Sc

67) ('-Station and quotation marks omitted). Moreover,

•■ifi j■ tii • jI i-:rs»rs are insuffb-ient t<> dmw , !>>•' v-h <4 tie­

duty of fair representation; even negligence on the union s

part does not give rise to a breach.” Barr r United Pared

Seri;., Inc.. 868 F.2d 36, 43 (2d Cir. 1989). A unions acts

are discriminatory when "substantial evidence indicates

that it engaged in discrimination that was "intentional,

severe, and unrelated to legitimate union objectives.

Amalgamated Ass’n of St., Elec. Ry. & Motor Coach

Employees of Am. v. Lockridge, 403 U.S. 274, 301 (1971).

Bad faith, which “encompasses fraud, dishonesty, and

other intentionally misleading conduct,” requires proof

that the union acted with “an improper intent, purpose, or

motive.” Spellacy v. Airline Pilots Assoc.-fnt’I. 156 F.3d

120. 126 (2d Cir. 1988) (citations omitted).

Vaughn, 604 F.3d at 709-10 (emphasis added). “Given these standards, a plaintiff

bears an ‘enormous burden’ in establishing that his union breached this duty.”

Felton v. Loc. Union 804, Int’l Bhd. of Teamsters, No. 17-CV-2309 (AMD) (RML),

2020 WL 3104048, at *2 (E.D.N.Y. June 11, 2020) (citation omitted).

Although Joyce need not establish that the Union acted arbitrarily,

discriminatorily. and in bad faith, Joyce does not allege any new facts that would

establish any of these elements. Indeed, while Joyce’s proposed amended petition

provides more specificity than his original petition, it still fails to meet the

requirements for a hybrid § 301/DFR claim.

i.

Joyce Fails to Establish that the Union’s Conduct

Was Arbitrary

Despite the Court’s rejection of his prior arguments concerning the Union’s

arbitrariness, Joyce nonetheless repeats them in this motion. Compare, e.g., Pl.

Mem. at 2, 8, 11-12, 14, 16-21, 24, with Order at 6-7. Further, while Joyce

contends that his allegations in the proposed amended petition are “not the same

8

case 1 ZZ-cV-UUOUi-M Iuuvuiueui

■*-'>’ --

. —3

-• --

(_ in his original pleading. PI Mem at 19 he not onlv rehashes much of the same

allegations from the original petition but also fails to provide any additional detail

that would suggest ‘'irrational behavior hv the Union. See’ () heill. 499 U.S, at 6»

(arbitrariness must be "so far outside a wide range of reasonableness as to be

irrational”). Instead, Joyce merely characterizes the Union’s conduct as “arbitrary

in a conclusory fashion, without addressing ConEd’s proffered evidence to the

contrary. Compare, e.g., Pl. Mem. at 4-5 (“The proposed amended [petition] . . .

proves how the Union's failure to represent [Jovcel denied [him] his statutory right

to have a fair and meaningful hearing regarding his termination. ), with Limmiatis

Deel. Ex. B at 2-4 (closing argument of Union) (arguing, inter alia, that Joyce did

not use illegal substance he was accused of taking, citing testimony describing false

positives as well as Joyce’s prescription for Adderall, which can produce a positive

result for methamphetamine.” and attacking the verification process surrounding

Joyce’s drug test).K Joyce thus fails to sufficiently allege that the Union's conduct

was arbitrary for purposes of his DFR claim.

ii.

Joyce Also Fails to Establish that the Union

Acted Discriminatorily or in Bad Faith, or that It

Caused Him to be Denied a Fair Hearing

Joyce alleges in the proposed amended petition that the Union acted

“discriminatorily” because the Union and ConEd were “bias[ed] towards employees

recovering from substance abuse.” See, e.g., PAP

29-30. He does not, however,

<> In deciding a motion for leave to amend, the Court may take judicial notice of

filings in an arbitration proceeding. See, e.g., Purjes u. Plausteiner, No. 15-CV-2515

(VEC), 2016 WL 552959, at *4 (S.D.N.Y. Feb. 10, 2016).

<^ase i:z^-cv-uuoui-M i-juv, uucuiiicih j-j

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nllegp anv specific fact-: <>r advance anv arguments showing how the Union s

conduct demonstrated bias against him or employees recovering from substance

abuse. See, e.g,. PI. Mem. at 4 (listing only the requirement that plaintiff establish

that the union’s (in)actions were arbitrary, discriminatory, or in bad faith) (quoting

Vaughn. 604 F.3d at 709—10). As ConEd correctly observes, Joyce “asserts no

plausible allegations of fact to establish that he was subjected to any discriminatory

treatment by the Union, much less discriminatory treatment ‘that was intentional,

severe, and unrelated to legitimate union objectives.”’ Def. Mem. at 27 (internal

quotation marks omitted); Def. Sur-Reply at 6—7 (“[Joyce] makes no legally-valid

argument to support any claim that the Union’s conduct was discriminatory or in

bad faith, and thus, essentially abandons those points. ’).

Because Joyce fails to advance any arguments or provide “substantial

evidence” establishing that the Union ”intentional[ly] ’ and "severely] engaged in

discrimination "unrelated to legitimate union objectives,” Vaughn, 604 F.3d at 709

(citation omitted), he cannot be said to have met the discrimination requirement for

his DFR claim. Similarly, because he fails to allege that the Union engaged in any

“fraud, dishonesty, and other intentionally misleading conduct” or “acted with an

improper intent, purpose, or motive,” id. (quotation marks omitted), he has failed to

establish bad faith for purposes of his DFR claim.

Finally, Joyce has failed to plausibly allege causation. Indeed, as ConEd

argues, see. Def. Mem. at 24, Joyce includes virtually nothing related to causation in

his proposed amended petition. All he says, in the most conclusory fashion in his

10

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memorandum of law i< that "the l'ninn'< failure to represent him tainted the

arbitration proceeding.” Pl. Mem. at 3-4. This, without more, is insufficient to

plead the causation element of a dutv ot fair representation claim.

b. Dismissal of Joyce’s Petition is Warranted

Because he has failed to sufficiently allege a valid DFR claim in the

proposed amended petition, Joyce’s motion should be denied and his petition

dismissed with prejudice. A court may dismiss a pro se litigant’s claims without

leave to amend when, inter alia. "the problem with [the plaintiff s] causes of action

is substantive” such that “[b]etter pleading will not cure it.” Cuoco v. Moritsugu,

222 F.3d 99, 112 (2d Cir. 2000). Likewise, “where the proposed amendments have

no merit,” Harnett v. Barr, 538 F. Supp. 2d 511, 514 (N.D.N.Y. 2008) (citing HealthChem Corp. u. Baker, 91.5 F.2d 805, 810 (2d Cir. 1990), or where “plaintiff persists in

attempting to restate [the] complaint." the court may deny leave to amend. Guney

v. Cowan, Liebowitz & Latman, P.C.. No. 06-CV-1202 (LGS) (HBP), 2015 WL

4460859, at *9 (S.D.N.Y. July 21, 2015).7

Such is the case here. Despite Joyce’s representations that his ‘ argument in

the proposed amended petition is not the same,” Pl. Mem. at 16, the proposed

amended petition is nonetheless very similar to his original petition. Joyce, for

instance, claims that the proposed amended petition will “quite easily’ demonstrate

that ConEd violated the CBA by terminating his employment and that the Union

7 Similar to Gurvey, the Harnett court granted in part plaintiffs motion for leave

where new facts and claims were alleged but denied leave to amend as futile w'here

“most of the facts” in the proposed amended complaint “remain[ed] the same” as in

the original pleading. 538 F. Supp. 2d at 518, 523—28.

case i:ZZ-CV-UUOUl-« i-JLk>

uuuiinem JU

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I2.C

"in bad faith" allowed ConEd to deny Him his due process rights, see PI. Mem. at 5,

but as discussed above, the only mention of bad faith in the proposed amended

petition (besides stating the legal standard) is one paragraph alleging in conclusory

fashion that the Union acted in bad faith by pushing back the arbitration a month.

See PAP

45. While this allegation is not set forth in the original petition, it hardly

“nudgefs] [Joyce’s] claims across the line from conceivable to plausible.

Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Accordingly, Joyces proposed

amendments fail to withstand the "motion to dismiss standard, see Joyner, 2021

WL 4296433, at *3; Anderson News, 680 F.3d at 185; as he does not allege any new

facts that would establish a “colorable” basis for relief. See McBeth, 731 F. Supp. 2d

at 319. Having been given an opportunity to amend, Joyce should have his case

dismissed with prejudice, as he should not be given what would now be a third

chance to assert plausible allegations of fact. See, e.g.,.Forkin u. Loc. 804 Union

(IB'T), 394 F. Supp. 3d 287, 310 (E.D.N.Y. 2019) (denying leave to amend where

proposed amended complaint “would be futile’ because it “adds no new allegations

that would establish a plausible claim against [union] for breach of the duty of fair

representation”).

III. CONCLUSION

For the reasons stated herein, Joyce’s motion for leave to amend should be

denied and the case dismissed with prejudice.

PROCEDURE FOR FILING OBJECTIONS

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil

12

Case i:zz-cv-uu»<ji-m i-jlvz uuiumeiit w rucu

iul£.u ,

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Proei.-durr. the pnrtii’< have fourteen <141 davs (including weekends and holidavs)

from service of this Report and Recommendation to file any objections. See Fed. R.

Civ, P. 6(a). (bi. (d). A party mav respond to any objections within fourteen (14)

days after being served. Such objections, and any responses to objections, shall be

filed with the Clerk of Court, with courtesy copies delivered to the chambers of the

Honorable Analisa Torres, United States Courthouse, 500 Pearl Street, New York,

New York 10007. Any requests for an extension of time for filing objections must be

directed to -Judge Torres

FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS

WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE

APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. See Thomas v.

Am, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis,

Brittingham, Gladd & Carte He, P.C., 596 F.3d 84, 92 (2d Cir. 201.0).

If Joyce does not have access to cases cited herein that are reported on

Westlaw, he should request copies from counsel for ConEd. See Lebron v. Sanders,

557 F.3d 76, 79 (2d Cir. 2009); Local Civil Rule 7.2, Local Rules of the United States

District Courts for the Southern and Eastern Districts of New York.

Dated: New York, New York

September 18, 2023

/AMES L. COTT

United States Magistrate Judge

13

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a staled term of the United States Court of Appeals for the Second Circuit. held at th<

I hurgood Marshall United States Courthouse. 40 Foley Square, in the C ity 01 Sew \ ork, on ths

3rd day of March, two thousand twenty-five.

Robert Joyce,

Plaintiff - Appellant,

ORDER

Docket No: 24-931

Consolidated Edison Company of New York, Inc.,

Defendant - Appellee.

Appellant, Robert Joyce, filed a petition for panel rehearing, or. in the alternative, for

rehearing en banc. The panel that determined the appeal has considered the request for panel

rehearing, and the active members of the Court have considered the request tor rehearing en banc

IT IS HEREBY ORDERED that the petition is denied.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk