# CHAMBERLAIN v. UNITED STATES POSTAL SERVICE

> District Court, D. New Jersey · January 17, 2020

URL: https://www.frixlaw.com/law-library/cases/10267339

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** January 17, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10267339

## How later opinions describe it (automated extraction)

- 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
- 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”

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10267339. Public record. Not legal advice.