CHAMBERLAIN v. UNITED STATES POSTAL SERVICE

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CHERYL CHAMBERLAIN, 1:16-cv-04941-NLH-AMD

1:18-cv-01700-JBS-AMD1

Plaintiff, (consolidated)

v. OPINION

UNITED STATES POSTAL SERVICE,

MEGAN J. BRENNAN, POSTMASTER

GENERAL, and NATIONAL

ASSOCIATION OF LETTER

CARRIERS,

Defendants.

APPEARANCES:

DAVID R. CASTELLANI

CASTELLANI LAW FIRM, LLC

450 TILTON ROAD

SUITE 245

NORTHFIELD, NJ 08225

On behalf of Plaintiff

JESSICA ROSE O'NEILL

OFFICE OF THE U.S. ATTORNEY

DISTRICT OF NEW JERSEY

401 MARKET STREET

4TH FLOOR

P.O. BOX 2098

CAMDEN, NJ 08101

On behalf of USPS Defendants

1 Civil action 18-1700 was consolidated for all purposes with civil

action 16-4941 on August 6, 2018. (Docket No. 57.) The first

action was filed against USPS and NALC and alleges violations of

labor laws. The second action was filed against Postmaster

General Megan J. Brennan and alleges gender-based employment

discrimination in violation of Title VII. This Opinion resolves

all claims.

JOSEPH J. VITALE

PETER D. DECHIARA

COHEN WEISS & SIMON LLP

900 THIRD AVENUE

21ST FLOOR

NEW YORK, NY 10022-4869

On behalf of National Association of Letter Carriers

HILLMAN, District Judge

This matter concerns claims by Plaintiff against her

employer, the United States Postal Service (“USPS”), the

Postmaster General, Megan J. Brennan, and Plaintiff’s union,

National Association of Letter Carriers (“NALC”), regarding

Plaintiff’s termination from employment at USPS. Presently before

the Court are the motions of the USPS Defendants and the union for

summary judgment in their favor on all of Plaintiff’s claims. For

the reasons expressed below, Defendants’ motions will be granted.

BACKGROUND

On September 8, 2015, Plaintiff, Cheryl Chamberlain, was

driving a USPS vehicle when she was involved in a motor vehicle

accident. Plaintiff’s driver’s license had been suspended six

days before for unpaid parking tickets. On September 28, 2015,

USPS issued a notice of removal to Plaintiff for operating a

postal vehicle without a valid driver’s license.

Through her union’s Local Branch 370, Plaintiff filed a

grievance, which proceeded through the grievance process under the

collective bargaining agreement between USPS and her union,

Defendant NALC. On December 11, 2015, the dispute resolution team

resolved the grievance by offering Plaintiff a last-chance

agreement, which required her signature by December 24, 2015 or

she would be removed from employment with USPS. Plaintiff signed

the agreement on December 22, 2015, and returned to work the next

day.

During the grievance process and while Plaintiff was in

suspended status, but before she signed the last-chance agreement,

Plaintiff was charged with driving while intoxicated. On November

4, 2015, she pleaded guilty to the charge, which resulted in a

seven-month license suspension. Plaintiff claims that her union

representative, Branch 370 steward Jason Ausborn, who is also a

city letter carrier,2 advised Plaintiff not to reveal her DUI and

the seven-month license suspension to her immediate supervisors at

USPS at that time. Plaintiff claims she followed his advice.3

Plaintiff alleges that a few days before she signed the last-

chance agreement, Ausborn advised Plaintiff’s supervisors of her

DUI, and that Patricia Marin, Officer-in-Charge of the Atlantic

2 Ausborn was a named Defendant in Plaintiff’s complaint. He was

dismissed on March 15, 2018. (Docket No. 48, citing Carino v.

Stefan, 376 F.3d 156, 159–60 (3d Cir. 2004) (“[T]he law is clear

that individual union officers are not personally liable to third

parties for actions taken on behalf of the union in the collective

bargaining process.”).)

3 As discussed in more depth below, Ausborn’s view was that unless

and until USPS was willing to return Plaintiff to work, she had no

reason to inform management of her license suspension.

City office, who executed the agreement on behalf of USPS, knew of

Plaintiff’s license suspension when she met with Plaintiff to sign

the agreement. Thus, Plaintiff alleges that when the September

28, 2015 grievance was resolved by way of the last-chance

agreement, USPS knew of Plaintiff’s license suspension due to the

DUI. Plaintiff also claims that when she returned to work under

the last-chance agreement on December 23, 2015, she informed the

manager of the Margate branch, Carol Threatt, of her license

suspension.

As a result of the November 4, 2015 driver’s license

suspension, USPS issued Plaintiff another notice of removal on

January 4, 2016 for improper conduct. Plaintiff filed a grievance

of that notice, and it was concluded that even though Plaintiff

was not working when her license was suspended on November 4,

2015, she was still an employee of USPS and being paid, and she

was therefore obligated to inform management immediately of her

suspension. Plaintiff’s notice of removal was upheld on February

17, 2016.4

Plaintiff has asserted claims against USPS for breach of the

collective bargaining agreement for her improper termination. She

also alleges that her termination was motivated by her gender in

4 As explained below, Plaintiff’s failure to immediately inform

USPS management about her second driver’s license suspension was

one, but not the only, factor in the ultimate decision to

terminate her.

violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-

16(a). Plaintiff has also asserted claims against NALC for its

violation of its duty of fair representation. All Defendants have

moved for summary judgment in their favor. Plaintiff has opposed

their motions.

DISCUSSION

A. Subject matter jurisdiction

Plaintiff brings this action pursuant to the Postal

Reorganization Act, 39 U.S.C. § l208(b), the Labor Management

Relations Act, 29 U.S.C. § 301, and Title VII of the Civil Rights

Act, 42 U.S.C. § 2000e-16(a). This Court has jurisdiction over

Plaintiff’s claims under 28 U.S.C. § 1331.

B. Standard for Summary Judgment

Summary judgment is appropriate where the Court is satisfied

that the materials in the record, including depositions,

documents, electronically stored information, affidavits or

declarations, stipulations, admissions, or interrogatory answers,

demonstrate that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of

law. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R.

Civ. P. 56(a).

An issue is “genuine” if it is supported by evidence such

that a reasonable jury could return a verdict in the nonmoving

party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A fact is “material” if, under the governing substantive

law, a dispute about the fact might affect the outcome of the

suit. Id. In considering a motion for summary judgment, a

district court may not make credibility determinations or engage

in any weighing of the evidence; instead, the non-moving party's

evidence “is to be believed and all justifiable inferences are to

be drawn in his favor.” Marino v. Industrial Crating Co., 358

F.3d 241, 247 (3d Cir. 2004)(quoting Anderson, 477 U.S. at 255).

Initially, the moving party has the burden of demonstrating

the absence of a genuine issue of material fact. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met

this burden, the nonmoving party must identify, by affidavits or

otherwise, specific facts showing that there is a genuine issue

for trial. Id. Thus, to withstand a properly supported motion

for summary judgment, the nonmoving party must identify specific

facts and affirmative evidence that contradict those offered by

the moving party. Anderson, 477 U.S. at 256-57. A party opposing

summary judgment must do more than just rest upon mere

allegations, general denials, or vague statements. Saldana v.

Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).

C. Analysis

1. Plaintiff’s claims against USPS and NALC for

violation of the CBA and duty of fair

representation

Plaintiff’s claims against USPS and NALC are considered a

“hybrid suit,” in which an employee sues the employer under

section 301 of the Labor Management Relations Act (“LMRA”), 29

U.S.C. § 185, for breach of the collective bargaining contract

(“CBA”),5 and the union for breach of its duty of fair

representation (“DFR”), which is implied from section 9(a) of the

National Labor Relations Act (the “NLRA”), 29 U.S.C. § 159(a).

Vadino v. A. Valey Engineers, 903 F.2d 253, 260 (3d Cir. 1990).

The “Supreme Court has viewed the hybrid suit as consisting of two

independent, albeit related, causes of action, and has stated that

‘[t]he employee may, if he chooses, sue one defendant and not the

other; but the case he must prove is the same whether he sues one,

the other, or both.’” Id. (quoting DelCostello v. International

Brotherhood of Teamsters, 462 U.S. 151, 165 (1983), and citing

United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 73 n.2

(1981)). To prevail against the employer, the union, or both, the

employee “must not only show that their discharge was contrary to

the contract but must also carry the burden of demonstrating a

breach of duty by the Union.” DelCostello, 462 U.S. at 165

(citation omitted).

5 USPS is not an “employer” within the meaning of 29 U.S.C. §

152(2) (“Definitions” section of NLRA), but § 1208(b) of the

Postal Reorganization Act gives the Court jurisdiction over this

claim against USPS. 39 U.S.C. § 1208(b) (“Suits for violation of

contracts between the Postal Service and a labor organization

representing Postal Service employees, or between any such labor

organizations, may be brought in any district court of the United

States having jurisdiction of the parties, without respect to the

amount in controversy.”).

Thus, in order to be successful on her breach of CBA claim

against USPS, Plaintiff must also show that NALC breached its DFR.

The same holds true for Plaintiff’s DFR claim against NALC - to be

successful on that claim, Plaintiff must also prove that USPS

breached the CBA. Failure to prove one claim is fatal to

Plaintiff’s hybrid suit against both. See Ahmad v. United Parcel

Service, 281 F. App’x 102, 104 (3d Cir. 2008) (citing Felice v.

Sever, 985 F.2d 1221, 1226 (3d Cir. 1993) (explaining in a § 301

hybrid action, “the plaintiff will have to prove that the employer

breached the collective bargaining agreement in order to prevail

on the breach of duty of fair representation claim against the

union, and vice versa”)).

a. Plaintiff’s breach of CBA claim against USPS

The relationship between letter carriers such as Plaintiff

and USPS is governed by a CBA called the National Association of

Letter Carriers National Agreement (“National Agreement”). NALC

negotiates that agreement with USPS and makes it available to its

members. The National Agreement establishes a binding grievance

procedure consisting of multiple steps: informal (Step A), formal

(Step A), and a final stage entailing submission of the grievance

to a “Step B” team.

The Step B team, which is composed of one member from NALC

and one member from USPS management, considers the submissions of

both sides. If the two members of the Step B team agree, they

issue a binding decision that resolves the grievance. Given the

binding nature, there can be no appeal and no further ability to

proceed to arbitration. If the Step B team does not agree on the

resolution and is at an impasse, then further process, including

arbitration, is potentially available to either side. As set

forth in Article 16 of the National Agreement, USPS is permitted

to remove an employee for “just cause,” which includes a

“violation of the terms of this Agreement.”

The timeline of events leading to Plaintiff’s termination is

as follows. In 2015, Plaintiff was assigned to the United States

Post Office in Margate, New Jersey, and specifically assigned to a

driving route delivering mail. On September 8, 2015, Plaintiff

was involved in a rear-end motor vehicle accident while driving a

USPS vehicle. Plaintiff had deviated from her route to go to a

convenience store without authorization and ran into the back of a

privately owned vehicle.

The manager of the Margate branch, Carol Threatt, and a

police officer arrived at the scene, and the officer informed

Plaintiff and Threatt that Plaintiff’s driver’s license was

suspended. The suspension, which was effective as of September 2,

2015, had arisen from an unpaid parking ticket issued in Ocean

City, New Jersey on May 24, 2015. The Ocean City Municipal Court

sent Plaintiff notices in addition to the original ticket on June

23, 2015 and July 25, 2015 informing her that if she did not pay

the ticket, her license would be suspended. Plaintiff had called

the Ocean City Municipal Court the morning of the accident in

efforts to make arrangements to pay the ticket, and she admitted

she was aware her license had been suspended. Later that day or

the next, Plaintiff was placed on administrative leave with pay,

and Plaintiff paid the restoration fee and had her New Jersey

driver’s license restored.

On September 21, 2015, Plaintiff appeared in Margate

Municipal Court and pled guilty to Operating without a

License/Unlicensed Driver as a result of the September 8, 2015

accident. On September 25, 2015, USPS issued Plaintiff a notice

of removal, which was signed by Threatt and Patricia Marin,

Officer-in-Charge of the Atlantic City office, which covers the

Margate branch office. The notice of removal charged Plaintiff

with improper conduct based on her operation of a postal vehicle

without a valid driver’s license and her failure to inform her

management that her driver’s license was suspended under Article

29 of the CBA. It stated that Plaintiff operated her postal

vehicle on multiple days, delivering mail, without notifying her

immediate supervisor that she did not possess a valid driver’s

license. It also noted Plaintiff’s repeated attempts to deny

knowledge of her driver’s license suspension even after her

knowledge of her suspension was confirmed by the installation head

and local law enforcement, which further demonstrated Plaintiff’s

lack of integrity and “quite simply renders Chamberlain

unqualified to work as a FTR City Carrier.”

The notice of removal further noted four other disciplinary

actions issued within the prior two years:6

October 24, 2014 - Letter of Warning for unsatisfactory

attendance (AWOL)

November 20, 2014 - 7-day suspension for unsatisfactory job

performance

April 3, 2015 - 7-day suspension for unsatisfactory job

performance

June 10, 2015 - 14-day suspension for unsatisfactory

attendance

Plaintiff asked Branch 370 to grieve the notice of removal,

and on October 8, 2015, the union complied with her request. In

support of the grievance, Branch 370 steward Jason Ausborn argued,

among other things, that “management issued the removal without

just cause” because Plaintiff was unaware at the time of the

accident that her license had been suspended.

The grievance was denied at Informal Step A and Formal Step

6 Plaintiff was also subject to discipline not recorded on the

notice of removal. USPS issued her a fourteen-day suspension on

November 18, 2011 for failure to follow instructions and improper

conduct; a letter of warning on April 13, 2012 for failing to meet

attendance requirements; a fourteen-day suspension on May 2, 2012

for failing to meet attendance requirements; another fourteen-day

suspension on August 6, 2012 for failing to maintain regular

attendance; a letter of warning on April 22, 2013 for

unsatisfactory job performance; a seven-day suspension on January

31, 2014 for failure to perform assigned duties; and another

seven-day suspension on February 3, 2014 for failure to

satisfactorily perform assigned duties.

A, and Branch 370 appealed it to Step B. In addition to issuing

her a notice of removal, USPS management offered Plaintiff the

opportunity to sign a last-chance agreement, but Plaintiff refused

to sign it at that time. Management also offered her a job as a

custodian. Plaintiff rejected this offer.

While on administrative leave during the grievance process,

on November 4, 2015, Plaintiff appeared in Upper Township

Municipal Court and pled guilty to Operating Under the Influence

of Liquor/Drugs arising from an August 26, 2015 summons, a date

before the collision in September 2015. Plaintiff’s driver’s

license was suspended for 210 days, and she was issued a fine of

$700.00.

On December 11, 2015, the formal decision on the grievance

regarding the September 25, 2015 notice of removal was issued by

the Step B team pursuant to the CBA. The Step B team determined

that USPS had “just cause” to issue the September 25, 2015 notice

of removal, but the Step B team concluded that because local USPS

management had offered Plaintiff a last-chance agreement, that

offer would remain on the table until December 24, 2015.

Prior to the December 11, 2015 Step B decision, Plaintiff

consulted Ausborn about her DUI and driver’s license suspension.

It was Ausborn’s view was that unless and until USPS was going to

take Plaintiff back to work, she had no reason to inform

management of her license suspension. Ausborn was aware that

Article 29 of the CBA provides that “[a]n employee must inform the

supervisor immediately of the revocation or suspension of such

employee’s State driver’s license,” but he had never seen that

rule applied to a letter carrier who had already been issued a

notice of removal from employment and was on administrative leave

and no longer performing any driving or other duties for USPS.

Ausborn reached out to David Napadano, who at the time was a

Regional Administrative Assistant in NALC Region 12, the region

that includes Branch 370, and Napadano concurred with Ausborn’s

view.

Ausborn advised Plaintiff not to notify her management unless

and until the pending grievance associated with the September 2015

removal concluded in her favor. Plaintiff claims she followed his

advice. Plaintiff does not indicate whether she consulted anyone

else.

Ausborn notified Plaintiff immediately of the Step B

decision. Plaintiff then agreed to sign the last-chance

agreement, and as a result Ausborn told Plaintiff that USPS

management should now be notified of her November 4, 2015 license

suspension because she would be returning to work. Plaintiff

agreed to let Ausborn notify management.

According to Ausborn, he informed Marin about Plaintiff’s

second license suspension prior to Plaintiff signing the last

chance agreement. Marin disputes that Ausborn told her about the

suspension. As set forth in more detail below, while there is

some dispute as to what Ausborn told Marin, the dispute is not as

stark as Plaintiff portrays it and to the extent there is a

factual dispute at all it is not a material one precluding summary

judgment.

On December 22, 2015, Plaintiff signed the last-chance

agreement. Plaintiff herself did not inform Threatt or anyone at

USPS of the November 4, 2015 driver’s license suspension before

signing the last-chance agreement. When Plaintiff returned to the

Margate Post Office on December 23, 2015, she had a conversation

with Threatt in which she informed Threatt that her license was

suspended. USPS thereafter conducted a pre-disciplinary interview

(“PDI”) with Plaintiff. Plaintiff did not inform management that

she was following the union’s advice by not informing them of her

November 4, 2015 suspension.

On January 4, 2016, USPS issued a second notice of removal,

which was signed by Threatt and Marin. It found that Plaintiff’s

admitted failure to notify management of her November 4, 2015

license suspension was inconsistent with the last-chance

agreement, and violated Article 29. The notice found that

Plaintiff was aware of her obligation to report the suspension and

that she again failed to report her license suspension to USPS

management. The notice also noted her past record of discipline.

The union filed a grievance, which followed the CBA’s

grievance process. The Step B dispute resolution team issued its

unanimous decision on February 17, 2016, finding:

Our review of the file indicates the grievant failed once

again to inform management as required that her state

driver's license had been suspended on November 4, 2015.

While the grievant was not working as she was awaiting the

outcome of a grievance filed for another Notice of Removal

for a similar charge, she was still an employee of the USPS

and was clearly obligated to inform management immediately of

her November 4, 2015 license suspension following her arrest

for driving under the influence. Despite her claims to the

contrary, the very fact the grievant was off work for a

similar charge indicates she was aware of that obligation.

Furthermore, the fact the LCA was signed after her November

4, 2015 license suspension is irrelevant since news of the

suspension was purposely being withheld. Had that

significant information been available, the LCA wouldn't have

been on the table. Therefore, based on the case file

provided, management had just cause to issue the Notice of

Removal to the grievant dated January 4, 2016 for “Improper

Conduct.”

The Step B decision also considered Plaintiff’s disciplinary

record, including that Plaintiff was working pursuant to the last-

chance agreement, in issuing its decision on her grievance.

Because the Step B team’s decision was unanimous, pursuant to the

National Agreement, NALC did not, and could not, appeal it to

arbitration.

The burden of proving that USPS’s actions constituted a

breach of its contractual obligations under the CBA rests squarely

with Plaintiff. Heffron v. Adamar of New Jersey, Inc., 270 F.

Supp. 2d 562, 575 (D.N.J. 2003) (citing United Steelworkers of

America, AFL–CIO–CLC v. North Bend Terminal Co., 752 F.2d 256, 261

(6th Cir. 1985) (“[T]he whole burden of proof is on the party

alleging breach of a collective bargaining agreement under section

301 of the [LMRA].”) (other citations omitted). The Court finds

that Plaintiff has not demonstrated the requisite disputed issues

of material fact on her breach of CBA claim against USPS to defeat

USPS’s motion for summary judgment.

Plaintiff presents three arguments to support her claim that

USPS breached the CBA. First, Plaintiff argues that USPS breached

the CBA because it did not terminate her for “just cause” as

required under the CBA. Plaintiff’s first notice of removal on

September 24, 2015 and her second notice of removal on January 4,

2016, disciplined Plaintiff pursuant to Article 16 and Article 29

in the CBA. Article 16 provides in relevant part, “In the

administration of this Article, a basic principle shall be that

discipline should be corrective in nature, rather than punitive.

No employee may be disciplined or discharged except for just

cause, such as, but not limited to, insubordination, pilferage,

intoxication (drugs or alcohol), incompetence, failure to perform

work as requested, violation of the terms of this Agreement, or

failure to observe safety rules and regulations.” Article 29 of

the CBA provides in relevant part that “[a]n employee must inform

the supervisor immediately of the revocation or suspension of such

employee’s State driver’s license.”

Plaintiff argues that “just cause” does not support her

termination because her union representative, Jason Ausborn, told

Patricia Marin, Officer-in-Charge of the Atlantic City office,

which covers the Margate branch office, of Plaintiff’s November 5,

2015 DUI license suspension prior to Plaintiff signing the last-

chance agreement on December 22, 2015. Plaintiff argues that even

though Marin disputes that Ausborn told her this information,

Marin testified that if she had been aware of the second license

suspension prior to Plaintiff signing the last-chance agreement,

Plaintiff would not have been terminated. Plaintiff contends that

this disputed fact as to whether Plaintiff failed to “immediately

inform the supervisor” of her license suspension, which was the

basis for her “just cause” termination, warrants the denial of

summary judgment.

The problem with this argument is three-fold. One, Marin did

not testify as described by Plaintiff. When asked whether Ausborn

notified her of Plaintiff’s second license suspension before

Plaintiff signed the last chance agreement, Marin stated that she

did not recall that conversation with him. When asked, “Would you

be surprised if he testified that he definitely notified you

beforehand?”, Marin answered, “Yes.” When asked, “Would it have

made a difference?”, Marin responded, “Yes. . . Because she would

have fulfilled her responsibilities in advising us that her

license was suspended before she signed the Last Chance

Agreement.” Marin was then asked, “And then she would not have

been disciplined or terminated?”, and Marin responded, “That, I

don’t know.” (Docket No. 91 at 21.) Contrary to Plaintiff’s

representation, Marin did not affirmatively state that Plaintiff

would not have been terminated if Marin knew of Plaintiff’s second

license suspension prior to the signing of the last chance

agreement.

Second, Plaintiff admits she did not inform her supervisors

or anyone at USPS directly about her November 5, 2015 license

suspension until after she signed the last-chance agreement and

returned to work. Thus, whether Ausborn informed USPS management

is of no import, because Plaintiff, and not Ausborn, had the

obligation to abide by Article 29 in the CBA. That Marin thought

differently as to whether Ausborn’s pre-signing notice might have

been sufficient notice does not change the plain language of the

CBA. The duty to notify was personal as to Plaintiff.

Third, as the second Step B decision explained, “the fact the

LCA was signed after her November 4, 2015 license suspension is

irrelevant since news of the suspension was purposely being

withheld. Had that significant information been available, the

LCA wouldn't have been on the table.” Thus, timing is important.

It is clear from the record that if Plaintiff had informed USPS of

her second license suspension as it happened, Plaintiff would not

have been offered a last-chance agreement at all.

This analysis also negates Plaintiff’s second argument that

USPS violated the CBA because the CBA failed to provide a

definition of “immediate” in Article 29. Plaintiff argues that

Ausborn’s notification to Marin of her second license suspension

qualifies as “immediate.” Plaintiff also argues that Plaintiff

informing her branch manager, Threatt, of her second license

suspension on her first day back at work pursuant to the last

chance agreement qualifies as “immediate.”

The Court has no difficulty determining as a matter of law

that waiting seven weeks does not qualify as immediate

notification within the fair meaning of either the word or

agreement.7 This is especially so since it is obvious that

Plaintiff withheld the suspension for fear it would torpedo any

7 See Morro v. DGMB Casino LLC, 112 F. Supp. 3d 260, 277 (D.N.J.

2015) (quoting Contrans, Inc. v. Ryder Truck Rental, Inc., 836

F.2d 163, 169 (3d Cir. 1987)) (other citation omitted) (rejecting

as a matter of law the plaintiff’s argument that a provision in a

CBA should be given no effect, and noting, “a contract should be

read so as to give meaning to all of its terms when read as an

entirety”); Utility Workers Union of America, Local 601 v. Public

Service Elec. and Gas Co., 2009 WL 331421, at *8 (D.N.J. 2009)

(citing Teamsters Indus. Employees Welfare Fund v. Rolls–Royce

Motor Cars, Inc., 989 F.2d 132, 135 (3d Cir. 1993) and Bethlehem

Steel Corp. v. United States, 270 F.3d 135, 139 (3d Cir. 2001)

(“As the CBA is an agreement between PSE&G and the Union, its

meaning should be construed using contract principles. Where the

terms of a contract are clear and unambiguous, it is proper for

the court to determine the contract's meaning as a matter of

law.”); Passaic County Bd. of Social Services v. Communications

Workers of America, AFL-CIO, 2007 WL 1827245, at *4 (N.J. Super.

Ct. App. Div. 2007) (citing M.J. Paquet, Inc. v. New Jersey Dept.

of Transp., 794 A.2d 141, 152 (N.J. 2002) (other citations

omitted) (explaining that a contract, such as a CBA, is a legal

issue for the court to decide in the first instance, and contract

terms are to be given their plain and ordinary meaning in accord

with justice and common sense and the probable intention of the

parties).

chance of her reinstatement and authorizing Ausborn’s disclosure

and making her own disclosure only after the USPS had committed to

the last-chance agreement. Plaintiff attempted to game the

grievance process, not act in good faith compliance with the CBA.

Even if this construction is wrong, the second driver’s

license suspension was not the sole factor in her termination.

The first and second notices of removal documented Plaintiff’s

noncompliance with Article 29, but they also considered

Plaintiff’s disciplinary history over the previous two years as a

factor in her termination. Plaintiff focuses solely on USPS’s

view of how her driver’s license suspensions violated the CBA, but

she fails to address these other reasons cited to support her

termination and explain how these reasons do not provide an

adequate and independent basis for the termination. See Article

16, Section 1 (“No employee may be disciplined or discharged

except for just cause such as, but not limited to,

insubordination, pilferage, intoxication (drugs or alcohol),

incompetence, failure to perform work as requested, violation of

the terms of this Agreement, or failure to observe safety rules

and regulations.”); Article 16, Section 10 (inferring that the

disciplinary records for the prior two years may be considered in

an employee’s disciplinary action: “The records of a disciplinary

action against an employee shall not be considered in any

subsequent disciplinary action if there has been no disciplinary

action initiated against the employee for a period of two

years.”); see, e.g., Professional Emergency Medical Services Ass'n

of New Jersey, IAFF Local 4610, PFANJ, AFL-CIO v. Monmouth Ocean

Hosp. Services Corp., 2015 WL 4024386, at *6 (D.N.J. 2015), aff’d,

680 F. App’x 100 (3d Cir. 2017) (noting that the CBA provided that

the accrual of twelve or more active disciplinary units resulted

in termination of employment, and it was undisputed by that the

employee accumulated twelve or more disciplinary units, and

granting summary judgment to the employer on the employee’s claim

that his termination violated the CBA because all of the union’s

asserted reasons in support of its position that just cause was

lacking did not negate the employee’s accumulation of disciplinary

units, and they also did not negate an additional, independent

basis for termination regarding the employee’s fault with regard

to an accident).

Plaintiff finally argues that USPS breached the CBA because

it did not comply with Article 29’s requirement that “every

reasonable effort will be made to reassign the employee in non-

driving duties in the employee’s craft or other crafts.”

Plaintiff argues that she was terminated rather than reassigned in

violation of this requirement, which demonstrates a disputed issue

of material fact that must go to a jury.

This argument is also without merit. Other than Plaintiff’s

conclusory statement that she should have been afforded a non-

driving job alternative based solely on the language of Article

29, Plaintiff cites to no record evidence to support the viability

of this option. Plaintiff fails to address USPS’s offer in

September 2015 during the grievance of her first notice of removal

that Plaintiff serve as a custodian, which she rejected.

Plaintiff further fails to mention that in January 2016 before the

issuance of the second Step B decision the Margate branch

attempted to provide alternative work that did not involve

driving, but not enough work was available.

Moreover, as stated before, Plaintiff’s termination was not

solely based on the license suspension issue but also multiple

prior disciplinary actions that did not trigger the alternative

work option. Thus, Plaintiff has not provided any support for her

argument that USPS failed to provide her with alternative work in

violation of the CBA.

In sum, Plaintiff has failed to present disputed issues of

material fact to support her claim that USPS violated the CBA.

USPS is entitled to summary judgment in its favor on Plaintiff’s

breach of contract claim.

b. Plaintiff’s breach of DFR claim against NALC

Because the Court has determined that Plaintiff has failed to

support her CBA violation claim against USPS, Plaintiff’s claim

against NALC also fails. Ahmad, 281 F. App’x at 104 (explaining

that a plaintiff’s failure to prove one claim against her employer

is fatal to a plaintiff’s hybrid suit against her employer and

union). NALC is therefore entitled to summary judgment in its

favor on Plaintiff’s claim that NALC breached its duty to provide

her with fair representation. The Court will briefly address

Plaintiff’s DFR claim, however, in the posture of whether it would

be viable if Plaintiff had been successful on her breach of CBA

claim against USPS.

Plaintiff has the burden of showing that NALC breached its

DFR to Plaintiff. DelCostello, 462 U.S. at 165. A union is

authorized to act as the exclusive bargaining agent for its

members, and it has a duty to provide fair representation in the

negotiation, administration, and enforcement of the collective

bargaining agreement. Findley v. Jones Motor Freight, Division

Allegheny Corp., 639 F.2d 953, 957 (3d Cir. 1981) (citing Vaca v.

Sipes, 386 U.S. 171, 190 (1967)). A breach of that duty occurs

when a union’s conduct toward a member is “arbitrary,

discriminatory, or in bad faith.” Id. The union must be accorded

a “wide range of reasonableness” to enable it to perform

effectively, but this discretion is subject to good faith and

honesty of purpose.” Id. (quoting Hines v. Anchor Motor Freight,

Inc., 424 U.S. 554, 563-64 (1976) (citations omitted)).

Plaintiff argues that NALC violated its DFR when (1) it

provided her with “bad advice” - i.e., advising her not to inform

USPS of her November 4, 2015 driver’s license suspension, and (2)

it failed to tell USPS during the grievance process that the

reason Plaintiff did not inform USPS of her second license

suspension was based on the advice of NALC.

NALC argues that the duty of fair representation is not

applicable to these circumstances because it is a broader duty

that arises in its obligations to negotiate with the employer on

behalf of employees to enforce a CBA, and not where the union is

merely providing advice to an individual employee. NALC further

argues that even if the DFR applied in this situation, Plaintiff

made her own choice to rely on advice she was not obligated to

follow.

NALC also contends that regardless of whether the union’s

advice was “bad,” its agent acted in good faith and with

Plaintiff’s best interests in mind. NALC argues that at every

step of the way the union, through Ausborn, vigorously and

comprehensively advocated for Plaintiff and facilitated the entire

grievance processes on both notices of removal. NALC points out

that it helped facilitate Plaintiff’s last-chance agreement, and

it had successfully reduced the penalties of several of

Plaintiff’s prior disciplinary actions.

Finally, NALC contends that Ausborn’s failure to argue that

he caused the delay in Plaintiff not reporting the November 4,

2015 license suspension “immediately” during the grievance process

does not demonstrate bad faith because he cannot be faulted for

raising a novel argument he had never made on behalf of a union

member before. Moreover, NALC contends that it cannot be faulted

for failing to make that argument when Plaintiff herself admits

she never raised NALC’s advice as a defense.

The Court is not convinced that the union’s “bad advice” in

this context rises to the level of a DFR violation. The Court

need not resolve that issue, however, because as discussed at

length above, Plaintiff’s two notices of removal and termination

were not based solely on the Article 29 violations, but also

several prior disciplinary actions, including the fact that

Plaintiff had returned to work under a last-chance agreement.

NALC’s advice, while ultimately ill-advised, was not the reason

USPS terminated Plaintiff. Indeed, the Step B team explicitly

noted that even if Plaintiff had informed USPS of her November 4,

2015 suspension prior to her signing the last-chance agreement,

that agreement would have been rescinded.

The purpose of the last-chance agreement was to provide

Plaintiff “with a firm choice between rehabilitation and removal,”

and that “any failure to adhere to these provisions will result in

removal.” One provision in the last-chance agreement was that

Plaintiff “follow all rules and regulations involving safety” and

“follow all Postal regulations.” As a result of her first notice

of removal, Plaintiff was well aware of her obligation under the

CBA to inform USPS of a driver’s license suspension. It is

undisputed that regardless of the reasons behind her decision to

withhold from USPS the information regarding her November 4, 2015

driver’s license suspension, Plaintiff herself never informed USPS

of the license suspension until after she signed the last-chance

agreement and returned to work. It was Plaintiff’s obligation,

not NALC’s, to do so.

Consequently, even if the Court did not find that USPS had

“just cause” to terminate Plaintiff’s employment in violation of

the CBA, Plaintiff’s hybrid claim would still fail. The

undisputed evidence shows that the union’s “bad advice” and its

failure to share during the grievance process that it had provided

such advice to Plaintiff did not cause her injury - i.e.,

termination - which is a required element of her breach of DFR

claim against the union. See International Broth. of Elec.

Workers v. Foust, 442 U.S. 42, 48–49 (1979) (“The fundamental

purpose of unfair representation suits is to compensate for

injuries caused by violations of employees’ rights.”); see also

Bowen v. U.S. Postal Service, 459 U.S. 212, 218 (1983) (citing

Vaca v. Sipes, 386 U.S. 171, 197 (1967)) (explaining that an

employee who proves that his employer violated the labor agreement

and his union breached its duty of fair representation may be

entitled to recover damages from both the union and the employer,

apportioned according to fault).

Instead, the undisputed evidence shows that it was

Plaintiff’s lack of candor surrounding her first driver’s license

suspension, the sheer existence of - and not necessarily her

failure to reveal - her second driver’s license suspension, and

her numerous other disciplinary actions that served as the basis

for the unanimous Step B determination that upheld her

termination. NALC is entitled to summary judgment in its favor on

Plaintiff’s breach of the duty of fair representation claim

against it.

2. Plaintiff’s Title VII claim against USPS

Plaintiff claims that she was terminated because she is

female.8 Under Title VII, it is unlawful for an employer “to

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual's . . . sex.” 42 U.S.C. § 2000e-

2(a)(1).

To establish a prima facie case of sex discrimination under

Title VII, a plaintiff must first establish that: (1) she is a

member of a protected class; (2) she was qualified for the

8 Plaintiff claims she was discriminated against because of her

gender, which is female. Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq., only refers to a person's “sex,”

not “gender”: employers are prohibited from discriminating

“against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such

individual's race, color, religion, sex, or national origin.” 42

U.S.C. § 2000e–2(a)(1). The Court construes Plaintiff’s Title VII

discrimination claim to be based on her sex.

position in question; (3) she suffered an adverse employment

action; and (4) that adverse employment action gives rise to an

inference of unlawful discrimination. Tourtellotte v. Eli Lilly

and Co., 636 F. App’x 831, 842 (3d Cir. 2016) (citing Jones v.

Sch. Dist. of Phila., 198 F.3d 403, 410–11 (3d Cir. 1999)) (other

citations omitted).

A plaintiff can prove her discrimination claims through

direct or circumstantial evidence. Under the framework of

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the

plaintiff must first establish a prima facie case of

discrimination, which creates an inference of unlawful

discrimination. Willis v. UPMC Children's Hosp. of Pittsburgh,

808 F.3d 638, 643–45 (3d Cir. 2015). Once the plaintiff has

successfully established a prima facie case creating an inference

of discrimination, the burden shifts to the employer who must

articulate a legitimate nondiscriminatory reason for the adverse

employment action. Id. (citations omitted). This second step of

McDonnell Douglas does not require that the employer prove that

the articulated legitimate, nondiscriminatory reason was the

actual reason for the adverse employment action, but instead the

employer must provide evidence that will allow the factfinder to

determine that the decision was made for nondiscriminatory

reasons. Id. (citations omitted).

If the employer satisfies this second step, the burden shifts

back once more to the plaintiff to show, by a preponderance of the

evidence, that the employer's proffered legitimate,

nondiscriminatory reason was pretextual – that not only was the

employer's proffered reason false, but the real reason was

impermissible discrimination. Id. This can be done in two ways:

(1) by pointing to evidence that would allow a factfinder to

disbelieve the employer's reason for the adverse employment action

by showing such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer's proffered

legitimate reasons, or (2) by pointing to evidence that would

allow a factfinder to believe that an invidious discriminatory

reason was more likely than not a motivating or determinative

cause of the employer's action, which can be shown by (1) the

defendant having previously discriminated against the plaintiff;

(2) the defendant having discriminated against others within the

plaintiff's protected class; or (3) the defendant has treated

similarly situated, male individuals more favorably. Id.

(citations and quotations omitted).

Plaintiff argues that six male USPS employees in the Atlantic

City region whose driver’s licenses had been suspended for DUI but

were ultimately treated differently from Plaintiff prove she was

terminated because of her sex, rather than the articulated reasons

that Plaintiff failed to abide by Article 29 in the CBA and had

several other disciplinary issues.

Even accepting that Plaintiff has established her prima facie

case, Plaintiff has failed to show that Defendant’s proffered non-

discriminatory reason for her termination was pretextual. More

specifically, Plaintiff’s group of proffered comparators do not

support Plaintiff’s claim that her sex motivated USPS’s

termination of Plaintiff. In the context of personnel actions,

the plaintiff is not required to show that she is identical to the

comparator, but she must show substantial similarity. Taylor-Bray

v. Delaware Dept. of Services for Children, Youth and their

Families, 627 F. App’x 79, 82–83 (3d Cir. 2015) (citing Radue v.

Kimberly–Clark Corp., 219 F.3d 612, 618 (7th Cir. 2000)).

“Relevant factors include, but are not limited to, whether the

comparators 1) had the same job description, 2) were subject to

the same standards, 3) were subject to the same supervisor, and 4)

had comparable experience, education, and other qualifications.”

Id. (quoting Salas v. Wisconsin Dep't of Corrections, 493 F.3d

913, 923 (7th Cir. 2007)).

“In determining whether similarly situated nonmembers of a

protected class were treated more favorably than a member of the

protected class, the focus is on the particular criteria or

qualifications identified by the employer as the reason for the

adverse action. . . . [T]he plaintiff must point to evidence from

which a factfinder could reasonably infer that the plaintiff

satisfied the criterion identified by the employer or that the

employer did not actually rely upon the stated criterion.” Ewell

v. NBA Properties, Inc., 94 F. Supp. 3d 612, 624–25 (D.N.J. 2015)

(quoting Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d

639, 647 (3d Cir. 1998) (internal citations and quotations

omitted).

Plaintiff provides scant information about her male

comparators. It appears that all six had their driver’s licenses

suspended because of a DUI, and one, J.G., was supervised by

Threatt and worked in the Margate branch. These are the only

similarities between those male USPS employees and Plaintiff. As

for J.G., his first DUI suspension occurred eight years before

Plaintiff’s, and when he received a second DUI suspension, he

resigned rather than face termination. Plaintiff does not provide

any information as to whether any of the six male employees failed

to report their infractions “immediately,” whether they had any

other disciplinary issues, or what kind of discipline, if any,

they faced as a result of their driver’s license suspensions.

In short, other than working for USPS and having their

driver’s licenses suspended for DUI, Plaintiff has not provided

any evidence that these six purported comparators are comparable

in any way that would suggest an invidious discriminatory reason -

Plaintiff’s sex - was more likely than not a motivating factor in

her termination. USPS is entitled to summary judgment in its

favor on Plaintiff’s Title VII discrimination claim.

CONCLUSION

Plaintiff has failed to show material issues of disputed fact

to support her breach of the collective bargaining agreement claim

against USPS. That finding is fatal to Plaintiff’s breach of the

duty of fair representation claim against NALC. But even if

Plaintiff was successful on her breach of the collective

bargaining claim against USPS, USPS and NALC would still be

entitled to summary judgment in their favor because Plaintiff does

not present material issues of disputed fact to support her breach

of the duty of fair representation claim against NALC.

Plaintiff’s Title VII claim also fails because she has not

provided sufficient issues in material dispute as to her claim

that her status as a female caused the adverse employment actions.

The motions for summary judgment filed by USPS, the

Postmaster General, and NALC must be granted. An appropriate

Order will be entered.

Date: January 17, 2020 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.