Fowlkes v. Ironworkers Local 40, et al. 12-336-cv Fowlkes v. Ironworkers Local 40, et al. 1

12‐336‐cv
Fowlkes v. Ironworkers Local 40, et al.
12‐336‐cv
Fowlkes v. Ironworkers Local 40, et al.
1
United States Court of Appeals 2
FOR THE SECOND CIRCUIT 3
______________ 4
5
August Term, 2014 6
7
(Argued: September 24, 2014 Decided: June 19, 2015) 8
9
Docket No. 12‐336‐cv 10
______________ 11
12
C OLE F OWLKES, 13
14
Plaintiff‐Appellant, 15
16
–v.– 17
18
IRONWORKERS LOCAL 40, D ANNY D OYLE , K EVIN O’R OURKE , 19
20
Defendants‐Appellees.*
21
______________ 22
23
B e f o r e : 24
25
L EVAL , C HIN, and C ARNEY, Circuit Judges. 26
27
______________ 28
29
Plaintiff‐Appellant Cole Fowlkes appeals from a December 20, 2011 30
judgment of the United States District Court for the Southern District of New 31
* The Clerk of Court is respectfully directed to amend the official caption in this case to conform
with the caption above.

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2
York (Preska, Chief Judge) dismissing his in forma pauperis complaint for lack of 1
subject matter jurisdiction. Fowlkes, who self‐identifies as male but was born 2
biologically female, alleges that his labor union, Ironworkers Local 40, and two of 3
its business agents, Danny Doyle and Kevin O’Rourke, discriminated against 4
him on the basis of sex and retaliated against him for filing an earlier action 5
against them. Invoking its authority to screen an in forma pauperis complaint at 6
any time, the District Court, acting sua sponte, held that Fowlkes’s failure to 7
exhaust administrative remedies deprived the court of subject matter jurisdiction 8
over his federal claims. The District Court thus also dismissed Fowlkes’s state‐ 9
and city‐law claims for lack of jurisdiction. 10
11
We conclude that the administrative exhaustion requirement of Title VII, 12
42 U.S.C. § 2000e‐5(e), is not a jurisdictional prerequisite to suit in federal court, 13
but rather is a necessary precondition to suit and is subject to equitable defenses. 14
We therefore VACATE the District Court’s judgment dismissing Fowlkes’s 15
federal claims for lack of jurisdiction and REMAND for the District Court to 16
determine whether any equitable defenses excuse Fowlkes’s failure to exhaust 17
his administrative remedies. On remand, the District Court shall also entertain 18
Fowlkes’s claim under the National Labor Relations Act, 29 U.S.C § 151, et seq., 19
for breach of the duty of fair representation, and shall revisit, in light of the 20
pending federal claims, whether to exercise supplemental jurisdiction over 21
related state‐ and city‐law claims. 22
23
VACATED AND R EMANDED.
______________
24
R OBERT T. S MITH (Tami Kameda Sims and Howard R. 25
Rubin, on the brief), Katten Muchin Rosenman 26
LLP, Washington, DC, and Los Angeles, CA, for 27
Appellant. 28
29
JOHN S. GROARKE (Jennifer D. Weekley, on the brief), 30
Colleran, O’Hara & Mills LLP, Woodbury, NY, 31
for Appellees. 32
______________

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3
S USAN L. C ARNEY, Circuit Judge: 1
Plaintiff‐Appellant Cole Fowlkes appeals from a December 20, 2011 2
judgment of the United States District Court for the Southern District of New 3
York (Preska, Chief Judge), dismissing his in forma pauperis complaint for lack of 4
subject matter jurisdiction. Fowlkes, who self‐identifies as male but was born 5
biologically female, alleges that his union, Ironworkers Local 40 (the “Local”), 6
and two of its business agents, Danny Doyle and Kevin O’Rourke (the Local, 7
Doyle, and O’Rourke, together, “defendants”), discriminated against him on the 8
basis of sex and retaliated against him for filing an earlier action against them. 9
The discrimination and retaliation alleged by Fowlkes primarily consisted of 10
refusing to refer Fowlkes for work through the Local’s hiring hall. 11
The District Court construed Fowlkes’s complaint as stating federal claims 12
under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et 13
seq., and related state‐ and city‐law claims. Invoking its authority pursuant to 28 14
U.S.C. § 1915(e)(2)(B) to screen an in forma pauperis complaint at any time, the 15
District Court, acting sua sponte, held that Fowlkes’s failure to exhaust 16
administrative remedies for his Title VII claims deprived the court of subject 17
matter jurisdiction over those claims. On the understanding that no federal 18

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4
claim remained after the Title VII claims’ dismissal, the District Court declined to 1
exercise supplemental jurisdiction over the related state‐ and city‐law claims, and 2
entered a judgment dismissing Fowlkes’s complaint in toto. 3
For the reasons stated below, we conclude that the District Court erred in 4
its determination that Fowlkes’s failure to exhaust administrative remedies 5
deprived it of subject matter jurisdiction over his Title VII claims. In addition, 6
we conclude that Fowlkes has stated a federal claim under the National Labor 7
Relations Act (“NLRA”), 29 U.S.C. § 151, et seq., for the Local’s breach of its duty 8
of fair representation. Accordingly, we vacate the judgment dismissing 9
Fowlkes’s amended complaint and remand the cause to the District Court. On 10
remand, the District Court shall: (1) consider whether any equitable defenses 11
excuse Fowlkes’s failure to exhaust his administrative remedies for his Title VII 12
claims; (2) conduct further proceedings on Fowlkes’s duty of fair representation 13
claim; and (3) reevaluate whether to exercise supplemental jurisdiction over 14
Fowlkes’s pendent state‐ and city‐law claims and conduct any further 15
proceedings on those claims as it determines may be warranted. 16
17
18
19

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5
1
BACKGROUND 2
I. Factual Background1 3
Fowlkes is a journeyman ironworker and a member of Local 40. As a 4
journeyman ironworker, Fowlkes would (in his words) detonate “caps/blow 5
cement from steel/use torch to cut/burn steel[,] preparing it for the welder.” 2011 6
Am. Compl. at 15. Although Fowlkes was born biologically female and was 7
named “Colette,” he now self‐identifies as a man, preferring to be called “Cole” 8
and to be referred to in the masculine. Id. at 1; Appellant’s Br. at 3. 9
To place its members at job sites, the Local ran a hiring hall, and Doyle 10
and O’Rourke, as business agents for the Local, participated in the placement 11
process. Fowlkes alleges that, beginning as early as 2005, the Local refused to 12
refer him to jobs for which he was qualified, “[i]ntentionally passing over 13
[Fowlkes] by choosing other men to receive [the] construction work” that he 14
sought. 2011 Am. Compl. at 17. Fowlkes further alleges that O’Rourke received 15
calls specifically requesting him for particular jobs for which he had the requisite 16
skills, but that O’Rourke and Doyle passed him over in favor of others “with 17
1 On review of this dismissal for lack of subject matter jurisdiction, we construe the facts in the
light most favorable to Fowlkes. See TradeComet.com LLC v. Google, Inc., 647 F.3d 472, 475 (2d Cir.
2011).

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6
lesser skill level.” Id. at 19. The Local’s failure to refer Fowlkes for assignments 1
allegedly continued through 2011; in that year, Fowlkes claims to have worked a 2
total of only sixty‐seven hours as a journeyman, again as a result of defendants’ 3
“refusal to refer and give [him] work.” Id. at 21. 4
Fowlkes alleges that defendants failed to refer him for work for two 5
primary reasons. First, he asserts that defendants discriminated against him on 6
the basis of sex: Fowlkes claims that if he had “acted with a femin[in]e character 7
or worked with less musc[le], he might [have] not [incurred] [i]ntentional 8
passing over.” Id. at 16; see also id. at 25 (alleging that defendants told him that he 9
“would get a good job if [he] would act like a girl”). Second, Fowlkes recounts 10
that Doyle and O’Rourke each told him that they refused to refer him for work 11
because he had previously filed a suit against the Local.2 He explains that, when 12
he inquired why he was not receiving work despite his position at the “top of the 13
out of work list,” O’Rourke allegedly responded by saying “well you’re sueing 14
[sic] us,” and Doyle similarly replied that Fowlkes “should[n’t] [have] tried to 15
sue us.” Id. at 17. 16
Beyond defendants’ alleged refusal to refer him for work, Fowlkes also 17
claims that he was subjected to discriminatory treatment at job sites on account 18
2 As discussed infra, Fowlkes filed a discrimination charge against the Local in 2007.

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7
of his sex, and he suggests that the defendants’ response to that treatment reflects 1
their discriminatory stance towards him. For example, he alleges that in 2008, a 2
welder at a job site told him, “I always thought you would be a girl that would 3
work and make the man happy.” Id. at 15. The welder became angry at 4
Fowlkes’s response and began “throwing welding leads around,” endangering 5
Fowlkes, who then reported the incident to a superior at the job site. Id. at 16. 6
The superior informed Doyle and O’Rourke of Fowlkes’s report and the welder’s 7
behavior. Fowlkes complains that “there were no attempts . . . to correct or 8
remove the situation” and that Doyle and O’Rourke “found the actions of the 9
welder . . . amus[]ing” and “told [Fowlkes] to just keep working.” Id. 10
II. Procedural Background 11
a. Fowlkes’s Prior Action 12
On May 29, 2007, Fowlkes initiated proceedings before the Equal 13
Employment Opportunity Commission (“EEOC”), charging the Local with 14
discrimination and alleging that the Local subjected him to retaliation and sex‐ 15
based discrimination in violation of Title VII.3 The EEOC issued Fowlkes a 16
“Right to Sue” letter dated July 10, 2007: The letter notified him that, after 17
3 At that time, Fowlkes self‐identified as a female in formal documents and referred to himself
as “Ms. Cole Fowlkes.” The substance of his claims, however, mirrored that presented in the
current suit.

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8
concluding its investigation, the EEOC had decided not to take further action 1
against the Local. It advised that Fowlkes was free to pursue his Title VII claims 2
by filing a federal suit against the Local within ninety days of his receipt of the 3
letter. It was not until more than 180 days later, however—on January 25, 2008— 4
that Fowlkes filed a complaint against defendants in the United States District 5
Court for the Southern District of New York. 6
Proceeding pro se in that 2008 action, Fowlkes made essentially the same 7
allegations as he had in his EEOC charge. Defendants moved for summary 8
judgment. In early 2010, Magistrate Judge Freeman issued a Report and 9
Recommendation (“R&R”) concluding, on the ground that Fowlkes’s action was 10
untimely, that defendants’ motion should be granted. Shortly thereafter, Judge 11
Kaplan granted defendants’ motion for substantially the reason given in the 12
R&R. 13
b. Fowlkes’s Second Action 14
In July 2011, Fowlkes filed a second complaint, again in the Southern 15
District of New York and again proceeding pro se, alleging that defendants 16
violated his “Civil Rights (involving Employment)” by subjecting him to 17
harassment and refusing to refer him for work based on his sex.4 2011 Compl. at 18
4 In this complaint, Fowlkes referred to himself as “Mr. Cole Fowlkes.”

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9
2. The allegations in this 2011 complaint covered the period from 2005 through 1
2011. Concurrently, Fowlkes sought permission to proceed in forma pauperis. 2
In October 2011, the District Court granted Fowlkes’s request to proceed in 3
forma pauperis and directed Fowlkes to submit an amended complaint within 4
sixty days. In the same order, the District Court, citing its authority under 28 5
U.S.C. § 1915(e)(2)(B) “to screen sua sponte an in forma pauperis complaint at any 6
time,”5 considered its jurisdiction over the matter. J.A. 17. It first construed 7
Fowlkes’s complaint as raising claims under three statutes: Title VII; the New 8
York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290, et seq.; and the 9
New York City Human Rights Law (“NYCHRL”), N.Y. City Admin. Code § 8‐ 10
101, et seq. The District Court then observed, “Before a federal court may review 11
a claim under Title VII, a plaintiff must first exhaust his administrative remedies 12
by filing a charge with the EEOC or an appropriate state agency within 300 days 13
of the unlawful discriminatory act.” Id. at 22. Because Fowlkes did not allege 14
that he had filed a complaint with the EEOC or any New York agency relating to 15
conduct occurring after May 29, 2007, 6 the District Court’s subject matter 16
5 Under 28 U.S.C. § 1915(e)(2)(B)(ii), a court must dismiss “at any time” an in forma pauperis
complaint that “fails to state a claim on which relief may be granted.” See also Giano v. Goord,
250 F.3d 146, 149 (2d Cir. 2001).
6 As noted above, Fowlkes filed a charge with the EEOC on May 29, 2007, and the federal suit
based on the conduct alleged in that charge was dismissed on timeliness grounds in early 2010.

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jurisdiction over Fowlkes’s Title VII claim was uncertain, it warned. In light of 1
Fowlkes’s pro se status, the District Court granted him leave to amend his 2
complaint to “(1) detail his Title VII and New York State and City Human Rights 3
Law claims of discrimination that were not already raised in the Prior [Action] as 4
set forth above, and (2) allege whether he received a Determination or Right to 5
Sue Letter or whether he otherwise attempted to exhaust his administrative 6
remedies.” Id. at 26. 7
In November 2011, Fowlkes filed an amended complaint, as directed. On 8
December 20, 2011, again acting sua sponte pursuant to its authority under 28 9
U.S.C. § 1915(e)(2)(B), the District Court held that Fowlkes’s Title VII claim “must 10
be dismissed because he does not allege that he exhausted his administrative 11
remedies.” Id. at 73 (citing 42 U.S.C. § 2000e‐5(e)(1)). The District Court 12
elaborated that “because Plaintiff has not exhausted his Title VII claim, the Court 13
does not have jurisdiction over that Title VII claim.” Id. Having dismissed the 14
Title VII claims, the District Court then determined that only state‐ and city‐law 15
claims remained and concluded that it lacked subject matter jurisdiction to 16
adjudicate those claims standing alone. It therefore dismissed the case in toto. 17

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11
Fowlkes timely appealed.7 1
DISCUSSION8 2
On appeal, Fowlkes argues that the District Court erred in dismissing his 3
amended complaint because exhaustion of administrative remedies before filing 4
a Title VII action in federal court is a not a jurisdictional requirement, but rather a 5
precondition of suit that may be subject to equitable defenses. On the merits, 6
Fowlkes asserts that he has adequately pleaded claims for both violations of Title 7
VII and breach of the duty of fair representation under the NLRA. He further 8
argues that, assuming he sufficiently pleaded at least one federal claim, the 9
District Court erroneously declined to exercise supplemental jurisdiction over his 10
pendent state‐ and city‐law claims. 11
For the reasons discussed below, we agree with Fowlkes that a plaintiff’s 12
failure to exhaust administrative remedies available for Title VII claims does not 13
pose a jurisdictional bar to a district court’s consideration of those claims. We 14
also conclude that he has pleaded an NLRA claim that survives § 1915(e) review. 15
7 Although he proceeded in the District Court pro se, Fowlkes is now ably represented by court‐
appointed counsel.
8 We review de novo a district court’s sua sponte dismissal of an in forma pauperis complaint
pursuant to 28 U.S.C. § 1915(e)(2)(B). McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004).

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12
We therefore vacate the judgment of the District Court and remand for further 1
proceedings. 2
I. Subject Matter Jurisdiction and the Failure to Exhaust Administrative 3
Remedies for Title VII Claims 4
It is well established that Title VII requires a plaintiff to exhaust 5
administrative remedies before filing suit in federal court. See, e.g., Ragone v. Atl. 6
Video at Manhattan Ctr., 595 F.3d 115, 126 (2d Cir. 2010) (citing 42 U.S.C. § 2000e‐ 7
5(e) and (f)); Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 8
2001) (same). “The purpose of this exhaustion requirement is to give the 9
administrative agency the opportunity to investigate, mediate, and take remedial 10
action.” Brown v. Coach Stores, Inc., 163 F.3d 706, 712 (2d Cir. 1998) (internal 11
quotation marks omitted). The administrative exhaustion requirement applies to 12
pro se and counseled plaintiffs alike. See Pikulin v. City Univ. of N.Y., 176 F.3d 598, 13
599–600 (2d Cir. 1999) (per curiam). 14
“Exhaustion of administrative remedies through the EEOC is an essential 15
element of the Title VII . . . statutory scheme[]”; accordingly, it is “a precondition 16
to bringing such claims in federal court.” Legnani, 274 F.3d at 686 (internal 17
quotation marks omitted); see also Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003) 18
(“As a precondition to filing a Title VII claim in federal court, a plaintiff must first 19
pursue available administrative remedies . . . .”). The weight of precedent 20

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13
demonstrates that administrative exhaustion is not a jurisdictional requirement; 1
rather, it is merely a precondition of suit and, accordingly, it is subject to 2
equitable defenses. 3
The distinction has been effectively drawn by the Supreme Court. In Zipes 4
v. Trans World Airlines, Inc., 455 U.S. 385 (1982), a group of flight attendants 5
brought a class action alleging that TWA unlawfully discriminated against them 6
on the basis of sex in violation of Title VII, id. at 388. Approximately 92% of the 7
plaintiffs had not timely filed claims with the EEOC before the suit was brought 8
in federal court. Id. at 390. After the Seventh Circuit Court of Appeals held that 9
these claims were “jurisdictionally barred,” the plaintiffs appealed, asking the 10
Supreme Court to address the “single question . . . whether the timely filing of an 11
EEOC charge is a jurisdictional prerequisite to bringing a Title VII suit in federal 12
court or whether the requirement is subject to waiver and estoppel.” Id. at 390, 13
392. The Supreme Court sided with the plaintiffs, holding that “filing a timely 14
charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit 15
in federal court, but a requirement that . . . is subject to waiver, estoppel, and 16
equitable tolling.” Id. at 393 (emphasis added). According to the Court, this 17
conclusion was dictated by “[t]he structure of Title VII, the congressional policy 18
underlying it, and the reasoning of [its] cases.” Id. Particularly relevant here, the 19

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14
Court cited in support of its conclusion two cases in which at least some of the 1
plaintiffs seeking relief in federal court—like Fowlkes with regard to his 2
allegations of post–May 29, 2007 misconduct—had never filed an EEOC charge at 3
all. See id. at 396–97 (citing Franks v. Bowman Transportation Co., 424 U.S. 747 4
(1976), and Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)). 5
In line with Zipes, our Court has previously ruled that the exhaustion of 6
administrative remedies “is a precondition to bringing a Title VII claim in federal 7
court, rather than a jurisdictional requirement.” Francis v. City of New York, 235 8
F.3d 763, 768 (2d Cir. 2000) (internal quotation marks omitted); see also Boos v. 9
Runyon, 201 F.3d 178, 182 (2d Cir. 2000) (analyzing the statutory structure of Title 10
VII to conclude that “the exhaustion requirement, while weighty, is not 11
jurisdictional”). For example, in Francis, we held that the district court had 12
subject matter jurisdiction to hear the plaintiff’s Title VII failure‐to‐promote 13
claim, even though his proper exhaustion of the claim was “not free from 14
uncertainty,” because failure to exhaust was merely a defense subject to waiver. 15
Id. at 766. Similarly here, the question whether Fowlkes properly exhausted his 16
claims is “not free from uncertainty,” id., but this ambiguity has no bearing on 17
the subject matter jurisdiction of the District Court. 18

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15
Occasionally, passing descriptions of the exhaustion requirement as 1
“jurisdictional” can be found in our Circuit’s jurisprudence. See, e.g., Fitzgerald v. 2
Henderson, 251 F.3d 345, 359 (2d Cir. 2001) (“If a [Title VII] claimant has failed to 3
pursue a given claim in administrative proceedings, the federal court generally 4
lacks jurisdiction to adjudicate that claim.”); Shah v. N.Y.S. Dep’t of Civil Serv., 168 5
F.3d 610, 613 (2d Cir. 1999) (“The federal courts generally have no jurisdiction to 6
hear claims not alleged in an employee’s EEOC charge.”). But “when our 7
decisions have turned on the question . . . whether proper administrative 8
exhaustion [of a Title VII claim] is a jurisdictional prerequisite . . . to bringing 9
suit,” we have “consistently” held that it is not. Francis, 235 F.3d at 768. We 10
therefore take this opportunity to underscore that the failure of a Title VII 11
plaintiff to exhaust administrative remedies raises no jurisdictional bar to the 12
claim proceeding in federal court. 13
As suggested above, the mischaracterization of a Title VII plaintiff’s 14
administrative exhaustion requirement as “jurisdictional” has practical effect. A 15
“[c]ourt has no authority to create equitable exceptions to jurisdictional 16
requirements.” Bowles v. Russell, 551 U.S. 205, 214 (2007). In contrast, a 17
mandatory but nonjurisdictional prerequisite to suit may be subject to equitable 18
defenses. See id. at 216 (Souter, J., dissenting); see also Fernandez v. Chertoff, 471 19

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16
F.3d 45, 58 (2d Cir. 2006) (“Because [the] failure to exhaust [one’s] administrative 1
remedies is not a jurisdictional defect, it is subject to equitable defenses.”). By 2
treating the issue of subject matter jurisdiction as a threshold matter here, the 3
District Court did not consider any potential equitable defenses that Fowlkes 4
might present to excuse his failure to exhaust his administrative remedies. 5
It is not clear from the record, at this stage, whether an equitable principle 6
may excuse Fowlkes’s failure to exhaust before filing his 2011 complaint. As 7
Fowlkes has urged in his brief on appeal—and defendants have challenged—two 8
equitable doctrines that the District Court will be called on to consider on 9
remand are futility and “reasonable relatedness.” Because of their direct bearing 10
on the facts as alleged, we discuss aspects of each of these possible defenses 11
below. 12
When an agency has previously “taken a firm stand” against a plaintiff’s 13
position, the plaintiff’s failure to exhaust administrative remedies may be 14
excused on the ground that exhaustion would be futile. Skubel v. Fuoroli, 113 F.3d 15
330, 334 (2d Cir. 1997) (internal quotation marks omitted); cf. Kirkendall v. 16
Halliburton, Inc., 707 F.3d 173, 179 (2d Cir. 2013) (noting that the exhaustion 17
requirement for ERISA claims “is not absolute” and may be excused when a 18
plaintiff demonstrates that pursuing administrative remedies would be futile). 19

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17
Though our Circuit has not had occasion to consider this particular 1
equitable defense in the context of EEOC Title VII exhaustion, Fowlkes may have 2
a colorable argument that filing a charge alleging discrimination based on his 3
transgender status would have been futile. When Fowlkes filed his 2011 4
complaint, the EEOC had developed a consistent body of decisions that did not 5
recognize Title VII claims based on the complainant’s transgender status. See, 6
e.g., Kowalczyk v. Dep’t of Veterans Affairs, No. 01942053, 1994 WL 744529, at *2 7
(E.E.O.C. Dec. 27, 1994) (concluding that an “appellant’s allegation of 8
discrimination based on her acquired sex (transsexualism) is not a basis 9
protected under Title VII”); Campbell v. Dep’t of Agriculture, No. 01931730, 1994 10
WL 652840, at *1 n.3 (E.E.O.C. July 21, 1994) (recognizing precedent holding that 11
“gender dysphoria or transsexualism is not protected under Title VII under the 12
aegis of sex discrimination”); Casoni v. U.S. Postal Serv., No. 01840104, 1984 WL 13
485399, at *3 (E.E.O.C. Sept. 28, 1984) (“[A]ppellant’s allegation of sex 14
discrimination on account of being a male to female preoperative transsexual . . . 15
[is] not cognizable . . . under the provisions of Title VII.”). It was not until Macy 16
v. Holder, No. 0120120821, 2012 WL 1435995 (E.E.O.C. Apr. 20, 2012), published 17
after Fowlkes filed his 2011 complaint, that the EEOC altered its position and 18
concluded that discrimination against transgender individuals based on their 19

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18
transgender status does constitute sex‐based discrimination in violation of Title 1
VII. Id. at *11 & n.16. Thus, Fowlkes’s failure to exhaust could potentially be 2
excused on the grounds that, in 2011, the EEOC had “taken a firm stand” against 3
recognizing his Title VII discrimination claims. 4
A second equitable defense potentially available to Fowlkes is that his 5
more recent allegations of discrimination may be “reasonably related” to the 6
discrimination about which he had filed an earlier charge with the EEOC. 7
“[W]here the complaint is one alleging retaliation by an employer against an 8
employee for filing an EEOC charge,” or “where the complaint alleges further 9
incidents of discrimination carried out in precisely the same manner alleged in 10
the EEOC charge,” the failure to raise the allegations in the complaint before the 11
EEOC may not bar federal court proceedings. Terry v. Ashcroft, 336 F.3d 128, 151 12
(2d Cir. 2003) (internal quotation marks omitted). 13
Here, Fowlkes alleges in his amended complaint that he was not referred 14
for work as retaliation for having previously sued defendants. In addition, the 15
District Court may reasonably determine that Fowlkes was discriminated against 16
by defendants “in precisely the same manner” in the years leading up to the 17
amended complaint as was alleged in the earlier EEOC charge. Given the 18
contents of Fowlkes’s amended complaint and the close resemblance that it bore 19

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19
to his earlier EEOC charge, his more recent allegations may be “reasonably 1
related” to those included in his earlier administrative filing with the EEOC. 2
As we have mentioned, the District Court has not yet had an opportunity 3
to consider whether futility is a cognizable equitable defense in the context of 4
EEOC Title VII exhaustion and, in this particular case, whether futility, 5
“reasonable relatedness,” or any other equitable doctrine excuses Fowlkes’s 6
failure to exhaust his administrative remedies. We therefore remand to the 7
District Court to address these questions in the first instance, on full briefing by 8
the parties. 9 9
II. Duty of Fair Representation Claim 10
The District Court construed Fowlkes’s complaint as raising claims under 11
only one federal statute: Title VII. Fowlkes contends on appeal that he also 12
stated a claim against the Local under the NLRA for breach of the duty of fair 13
representation. Although he articulated that claim less than plainly, we are 14
inclined to agree with Fowlkes on appeal. 15
9 We further decline to consider the merits of Fowlkes’s Title VII claims at this juncture. If the
District Court determines that Fowlkes’s failure to exhaust his administrative remedies cannot
be excused, then Fowlkes has not satisfied a necessary predicate for his Title VII claims, and
those claims may be dismissed without examining his substantive allegations. Thus, our
consideration of the merits of Fowlkes’s Title VII claims would be premature.

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20
Because Fowlkes appeared pro se before the District Court, he is “entitled 1
to special solicitude,” and we will read his pleadings “to raise the strongest 2
arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 3
477 (2d Cir. 2006) (internal quotation marks omitted). “[D]ismissal of a pro se 4
claim as insufficiently pleaded is appropriate only in the most unsustainable of 5
cases.” Boykin v. KeyCorp, 521 F.3d 202, 216 (2d Cir. 2008). At the same time, a pro 6
se complaint must allege “enough facts to state a claim to relief that is plausible 7
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 8
The duty of fair representation is a “statutory obligation” under the NLRA, 9
requiring a union “to serve the interests of all members without hostility or 10
discrimination . . . , to exercise its discretion with complete good faith and 11
honesty, and to avoid arbitrary conduct.” Vaca v. Sipes, 386 U.S. 171, 177 (1967). 12
This duty applies in the hiring hall setting because, there, “members of the 13
[union] have entrusted the union with the task of representing them” and it is 14
essential that work be assigned “in a nonarbitrary and nondiscriminatory 15
fashion.” Breininger v. Sheet Metal Workers Int’l Ass’n Local Union No. 6, 493 U.S. 16
67, 88 (1989). A union breaches its duty of fair representation if its actions with 17

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21
respect to a member are arbitrary, discriminatory, or taken in bad faith. Air Line 1
Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67 (1991).10 2
Although Fowlkes’s amended pro se complaint did not flag the NLRA, we 3
nonetheless are persuaded, with the benefit of a counseled brief on Fowlkes’s 4
behalf, that Fowlkes has stated a plausible claim for a breach of the duty of fair 5
representation. In his amended complaint, Fowlkes alleges that the Local 6
refused to refer him for work for which he was qualified because of his 7
transgender status and in retaliation for instituting legal proceedings against the 8
Local. Allegations that a union abused its hiring hall procedures to undermine a 9
member’s employment opportunities warrant particularly close scrutiny when a 10
union wields special power as the administrator of a hiring hall. Breininger, 493 11
U.S. at 89; see also Gilbert v. Country Music Ass’n, Inc., 432 F. App’x 516, 521 (6th 12
Cir. 2011). Assuming, as we must, that Fowlkes’s allegations are true, the Local’s 13
conduct was at the very least arbitrary, if not discriminatory or indicative of bad 14
faith. 15
In urging us to sustain the dismissal of this claim, too, defendants assert 16
that a six‐month statute of limitations applies to duty of fair representation 17
10 A duty of fair representation cause of action does not lie against the individual defendants
Doyle and O’Rourke. See Morris v. Local 819, Int’l Bhd. of Teamsters, 169 F.3d 782, 784 (2d Cir.
1999) (per curiam). Such a claim may be stated only against a union. Id.

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claims, arguing that, to survive, Fowlkes’s claim must arise out of events 1
occurring in the six months prior to the filing of his 2011 complaint.11 See Coureau 2
v. Granfield, 556 F. App’x 40, 41 (2d Cir. 2014). Because Fowlkes’s allegations 3
regarding their conduct during the relevant six‐month period—from January 29, 4
2011 through July 29, 2011—fail to plausibly state a claim, they say, his suit on 5
this ground is barred. 6
Even assuming the applicability of a six‐month statute of limitations, 7
defendants are incorrect that Fowlkes has failed to plausibly state a claim. 8
Fowlkes asserts in his amended complaint that the Local would not provide him 9
employment throughout 2011. 2011 Am. Compl. at 3. He alleges that he received 10
only 67 hours of work in all of 2011, “less than a two week period” in total, and 11
that he was told in May and June of that year that he “could forget about getting 12
any work.” Id. at 21. Based on the foregoing, Fowlkes plausibly stated a duty of 13
fair representation claim based on conduct occurring within the six‐month 14
statute of limitations period. 15
Second, defendants contend that Fowlkes’s claim for breach of the duty of 16
fair representation is irretrievably undermined by the complaint’s own 17
11 As previously discussed, Fowlkes originally filed his complaint in the District Court in July
201l. At the instruction of the court, he amended the complaint and refiled in November 2011.
The parties do not dispute that the statute of limitations period for Fowlkes’s duty of fair
representation claim would run from the date of the original pleading—here, July 29, 2011.

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allegations, which reflect that Fowlkes was, in fact, referred for work in May and 1
June 2011. This argument rests on an obvious fallacy: the mere fact that Fowlkes 2
was referred for some work during the relevant period does not defeat a claim 3
that he was subjected to arbitrary, discriminatory, or bad‐faith treatment by the 4
Local’s overall distribution of work. A union need not completely eliminate a 5
member’s employment opportunities before the member may be entitled to 6
relief. 7
Finally, defendants argue that Fowlkes may not pursue a duty of fair 8
representation claim in court because he failed to demonstrate that he exhausted 9
his remedies within the union. This argument, too, is unavailing. The union, not 10
the member, bears the burden of demonstrating that the member failed to 11
exhaust intra‐union grievance procedures, see Johnson v. Gen. Motors, 641 F.2d 12
1075, 1079 (2d Cir. 1981), and “courts have discretion to decide whether to 13
require exhaustion of internal union procedures,” Clayton v. Int’l Union, United 14
Auto., Aerospace, and Agric. Implement Workers of Am., 451 U.S. 679, 689 (1981). 15
Defendants may attempt to meet this burden before the District Court on 16
remand, but a cursory invocation of an intra‐union exhaustion requirement in 17
their appellate brief certainly does not suffice to bar the duty of fair 18
representation claim from proceeding past the pleadings stage. 19

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In sum, we conclude that Fowlkes has stated a claim for breach of the duty 1
of fair representation against the Local. We vacate the District Court’s 2
determination that Fowlkes stated federal claims under only Title VII, and we 3
remand for further proceedings on his duty of fair representation claim. 4
III. Pendent State‐ and City‐Law Claims 5
Fowlkes also appeals the District Court’s dismissal of his pendent state‐ 6
and city‐law claims under the NYSHRL and NYCHRL. This decision is reviewed 7
for abuse of discretion. Fed. Treasury Enter. Sojuzplodoimport v. SPI Spirits Ltd., 726 8
F.3d 62, 84 (2d Cir. 2013). To find an abuse of discretion, “we must conclude that 9
a challenged ruling rests on an error of law, a clearly erroneous finding of fact, or 10
otherwise cannot be located within the range of permissible decisions.” United 11
States v. Certified Envtl. Servs., Inc., 753 F.3d 72, 99 (2d Cir. 2014). 12
Here, the District Court dismissed the state‐ and city‐law claims based on 13
the premise that Fowlkes did not plead a federal claim for which there exists 14
subject matter jurisdiction. Because we have now concluded that (1) Fowlkes’s 15
failure to exhaust administrative remedies did not deprive the District Court of 16
jurisdiction over his Title VII claims, and (2) Fowlkes has stated a claim under the 17
NLRA for breach of the duty of fair representation, we vacate the dismissal of 18
Fowlkes’s pendent state‐ and city‐law claims to allow the District Court to 19

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reconsider on remand whether exercising supplemental jurisdiction is 1
appropriate given our conclusions regarding his federal claims. 2
CONCLUSION 3
For the foregoing reasons, we VACATE the judgment of the District Court 4
and REMAND for further proceedings consistent with this opinion. 5

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