VILLARREAL v. UNITED AIRLINES, INC.

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

VERONICA VILLARREAL, Civil Action No.: 2:19-10580

Plaintiff,

v. OPINION

UNITED AIRLINES, INC and ASSOCIATION

OF FLIGHT ATTENDANTS-CWA, AFL-CIO,

Defendants.

CECCHI, District Judge.

This matter comes before the Court on two motions to dismiss pro se Plaintiff Veronica

Villareal’s (“Plaintiff”) Amended Complaint (ECF No. 41 (“AC”)): (1) Defendant United

Airlines, Inc.’s (“United”) motion to dismiss (ECF No. 48) pursuant to Federal Rules of Civil

Procedure 12(b)(1) and 12(b)(6); and (2) Defendant Association of Flight Attendants-CWA, AFL-

CIO’s (“AFA”) motion to dismiss (ECF No. 49) pursuant to Rule 12(b)(6). This matter is decided

without oral argument pursuant to Rule 78(b). For the reasons set forth below, both motions are

granted, and the Amended Complaint is dismissed.

I. BACKGROUND1

A. Summary

Plaintiff is a woman of Mexican descent, who was employed by United as a flight

attendant. The instant action arises out of her termination in 2014 for missing a scheduled flight.

Plaintiff alleges that she suffered ethnic discrimination at the hands of her supervisor from

approximately 2008 to 2013, and that her union (AFA) failed to adequately represent her during

various employment disputes in that timeframe and subsequent termination hearings. After failing

1 The following facts are accepted as true for purposes of the instant motions.

to overturn her termination through United’s internal measures, in 2016, Plaintiff sued United and

her ex-supervisor in state court, asserting discrimination. Plaintiff’s state court action was

dismissed in 2018. In 2019, Plaintiff initiated the instant action, asserting the same claims of

discrimination against United but now joining AFA. United maintains that Plaintiff was

terminated for just cause and argues that discrimination claims against it are barred by preclusion

doctrines. AFA contends that it made a good-faith effort to defend Plaintiff, timely filed her

termination grievance, and closed her case after determining that it lacked merit to proceed to

arbitration.

B. Background

Plaintiff was first hired as a flight attendant in June 1997 by Continental Airlines, which

later merged into United. See AC at 1. In mid-2008, Plaintiff attempted to intervene in United’s

investigation of another employee as a witness, but United did not allow her to do so. Id. Plaintiff

thereafter filed a complaint of discrimination at United’s headquarters. Id. Plaintiff alleges that,

after filing the complaint, her then-supervisor, Margaret Komar-Kasnowski, (“Komar-

Kasnowski”) retaliated and discriminated against her. Plaintiff specifically alleges that Komar-

Kasnowski: (1) investigated Plaintiff; (2) issued pretextual disciplinary and tardiness warnings;

(3) made fun of Plaintiff’s accent; (4) called Plaintiff “Charo,” the nickname of a famous Spanish-

American actress; and (5) announced Plaintiff’s private medical information to other employees.

Id. at 1–2.

On April 24, 2013, Plaintiff filed a complaint against Komar-Kasnowski with her base

manager. Id. at 2. The day after filing the complaint, Plaintiff received a termination warning

from Komar-Kasnowski for missing her assigned flights, which Plaintiff alleges was retaliatory.

Id.; ECF No. 2-1, Exhibit to Original Complaint (“Exh.”), at 9. After receiving the warning,

Plaintiff contacted AFA to file a grievance against Komar-Kasnowski, but it is unclear whether

AFA responded to Plaintiff’s requests. AC at 2.

Sometime between April 2013 and July 2014, Plaintiff communicated with AFA

representative Trisha Williams (“Williams”), hoping to remove the termination warning from her

record. Id. Williams received a written statement from Plaintiff and informed her that she would

schedule a grievance hearing. Id. at 3. Williams eventually reported to Plaintiff that ‘step 1’ of

the termination warning grievance was denied and transferred for appeal. Id. Plaintiff did not

receive any further information from Williams or AFA with regards to her termination warning

grievance. Id. Plaintiff alleges that she was improperly denied a hearing on the issue and that

United failed to produce scheduling tapes essential to her scheduling dispute. Id. at 3–4.

On August 7, 2014, United informed Plaintiff that she was terminated due to an

unsatisfactory work record, including attendance infractions that Plaintiff contests. Exh. at 14–15;

AC at 3. Plaintiff objected to her firing during a termination meeting and noted Komar-

Kasnowski’s acts of discrimination against her. Id. AFA’s Steve Brooks (“Brooks”) represented

Plaintiff at the termination meeting, although Plaintiff alleges that “Brooks did not respond or act[]

in conforming the plaintiff’s rights.” Id.

Subsequently, AFA filed a grievance over Plaintiff’s termination. In September 2014, a

‘step 1’ grievance hearing was conducted before Janie Devito, a supervisor at United. Id. at 4.

Plaintiff alleges that her termination was overturned at the step 1 hearing, but that AFA––through

Brooks and another representative, Lynn Barnett (“Barnett”)––falsely informed her that the

grievance was denied at step 1. Id. Despite Plaintiff’s assertion that her termination was

overturned at the step 1 hearing, she also alleges that, sometime in November 2014, a ‘step 2’

grievance hearing took place. At this stage, the handling of the grievance was assigned to AFA

representative Cindy Commander-Stegemoller (“Commander-Stegemoller”). Id. at 6, ¶¶ 5–6.2

Plaintiff was notified that United denied the grievance at step 2. Id. at 6, ¶ 6. She subsequently

requested records of the grievance hearings but AFA told her it is not required to create records of

any grievance process. Id. at 4.

On December 23, 2014, Commander-Stegemoller informed Plaintiff that AFA’s grievance

committee had determined that her grievance did not have sufficient merit to proceed to arbitration.

Exh. at 33. In January 2015, AFA transferred her case to AFA Counsel Scott Goodman

(“Goodman”). Exh. at 36; see AC at 7. On March 16, 2015, Goodman reported to Plaintiff that

AFA had decided not to arbitrate her grievance, but that the option to proceed to arbitration on her

own remained open if she agreed to pay $5,000 to an arbitrator. Exh. at 39; AC at 7, ¶ 7. Plaintiff

alleges that, on about March 16, 2015, she emailed Goodman stating that she was interested in

pursuing arbitration but received no response from him or AFA. Id. However, AFA contends that

Plaintiff did not take any steps to initiate the arbitration or provide payment for arbitration. ECF

No. 49-2 at 11.

Sometime thereafter, Plaintiff repeatedly emailed Goodman requesting access to the

records of her grievance hearing and eventually, she received records relating to the step 1 hearing.

Id. at 4. Plaintiff believes these records “proved [] [her] termination was overturned including

documents supporting the reason for overturning the termination.” Id. at 4. Plaintiff alleges that

she discovered this “new evidence” of her termination being rescinded in January 2018. ECF No.

55 at 2. She attached to her initial complaint one of the documents that allegedly establishes

rescission (labeled “Formal Notice”). ECF No. 2 at 24; ECF No. 2-1 at 57–58. In her opposition

2 On November 21, 2014, Commander-Stegemoller explained to Plaintiff that the grievant is never

present at step 2 hearings because the hearing is between the company and the union only, an

assertion that Plaintiff claims is false. Exh. at 25; see AC at 6, ¶ 6.

to the motions to dismiss, Plaintiff attaches the same document (now labeled “Exhibit A”) and

again claims that the document is evidence of “Devito[’s] decision to overturn [the] termination of

Plaintiff.” ECF No. 55 at 11; see also id. at 18 (Plaintiff states that Exhibit A is a “document

showing termination overturned”). However, this document does not appear to show that her

termination was overturned, it merely states the relief that Plaintiff sought from the grievance

committee: “Remedy Sought: Grievance upheld. Termination overturned and the grievant be

returned to wo[r]k and made whole as it applies to all aspects of their job.” ECF No. 55-1 at 6,

Exh. A (emphasis added, entire excerpt highlighted in original).3

C. Equal Employment Opportunity Commission Investigation

On February 26, 2015, Plaintiff filed a complaint with the Equal Employment Opportunity

Commission (the “EEOC”) alleging that United engaged in discrimination based on Plaintiff’s

race, ethnicity, and/or national origin in violation of Title VII of the Civil Rights Act and

retaliation. Exh. at 92. On January 15, 2016, the EEOC recommended that the case be closed for

lack of reasonable cause. Id. On January 30, 2016, the EEOC sent Plaintiff a notice dismissing

Plaintiff’s EEOC complaint because the EEOC was unable to conclude that United had violated

federal law. Id. at 46. The notice provided Plaintiff a right-to-sue, which stated that Plaintiff “may

only pursue this matter by filing suit against the Respondent named in the charge [United] within

90 days of receipt of said notice. Otherwise, [the] right to sue will be lost.” Id.

3 On an unspecified date, Plaintiff contacted AFA’s headquarters, namely AFA’s International

Secretary Treasurer Kevin Creighan (“Creighan”), to appraise them of her “discovery.” AC at 4.

She received little help besides being informed that Goodman no longer works for AFA. AC at 4;

Exh. at 74.

D. State Court Action

On August 4, 2016, Plaintiff filed an action against United and Komar-Kasnowski in New

Jersey Superior Court, County of Essex captioned Villarreal v. United Airlines and Komar-

Kasnowski bearing docket number ESX-L-5461-16 (the “State Court Action”). Plaintiff claimed

that she was subjected to discrimination based on her race, ethnicity, and/or national origin during

her employment with United and was wrongfully terminated in violation of the New Jersey Law

Against Discrimination (“NJLAD”). Exh. at 54–56; ECF No 48-3 at 7–9. Plaintiff made virtually

the same allegations against United and Komar-Kasnowski in her State Court Action as she does

in the instant action. See Exh. at 54–56

On September 28, 2018, the Court granted United and Komar-Kasnowski’s unopposed

motion for summary judgment and dismissed Plaintiff’s state court complaint with prejudice. ECF

No. 48-3 at 12–13.4 Plaintiff did not appeal the September 2018 order. Hall Decl., ¶ 15.

E. Procedural History of the Instant Action

On April 5, 2019, Plaintiff initiated the instant action in the United States District Court

for the Southern District of New York against United and AFA (“Defendants”), alleging: (1)

violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), the Fair Labor Standards Act

(the “FLSA”), and the Railway Labor Act (“RLA”); (2) breach of contract; and (3) negligence.

ECF No. 2. The case was transferred to this Court on April 22, 2019. ECF No. 5. On October 1,

4 In her opposition to the motions to dismiss, Plaintiff alleges that she was not allowed to submit

an opposition to the motion for summary judgment because her ex-counsel was still the attorney

on file despite withdrawing from the case earlier on. ECF No. 55 at 3. United asserts that Plaintiff

knowingly appeared in the State Court Action pro se, following her former counsel’s request to

withdraw, and that nothing restricted her ability to respond to the motion for summary judgment

or appeal the order granting dismissal. ECF No. 59 at 8.

2019, AFA filed a motion for a more definite statement pursuant to Federal Rule of Civil Procedure

12(e) (ECF No. 12), which the Court granted on May 5, 2020 (ECF No. 37).

On June 2, 2020, Plaintiff filed a response to the Court’s order for a more definite

statement. AC at 1. Defendants and the Court accept Plaintiff’s filing as her Amended Complaint.

See ECF Nos. 48-1 at 13, 49-2 at 12. The Amended Complaint is difficult to follow, as it contains

many conclusory statements, spelling and grammatical errors, and the allegations are at times out

of order or incoherent. See generally AC. Although Plaintiff does not number her claims, the

Court discerns five causes of action: (1) a violation of Title VII by AFA and United (AC at 5–8);

(2) breach of contract by United and AFA (id. at 8); (3) breach of the duty of fair representation

by AFA (id. at 8); (4) violation of section 204 of the RLA by AFA (id. at 9); and (5) negligence

by AFA and United (id. at 9). Plaintiff seeks immediate reinstatement of employment,

compensatory damages (backpay and pain and suffering) and punitive damages. Id. at 9.

On June 16, 2020, United filed its motion to dismiss pursuant to Federal Rules of Civil

Procedure 12(b)(1) and 12(b)(6) (ECF No. 48), and AFA filed its motion to dismiss pursuant to

Rule 12(b)(6) (ECF No. 49). United argues that all claims against it are barred by res judicata and

New Jersey’s Entire Controversy Doctrine (ECF No. 48-1 at 8–14), Plaintiff’s claims for violations

of Title VII and negligence are barred by their respective statutes of limitations (id. at 13–16), and

the Court lacks jurisdiction over Plaintiff’s breach of contract claim because it is preempted by the

RLA (id. at 16–18). AFA argues that Plaintiff failed to sufficiently allege any claims against it,

and moreover, that Plaintiff’s duty of fair representation claim is untimely. 49-2 at 13–26.

On July 30, 2020, Plaintiff filed a brief titled “motion for a partial order in favor of plaintiff

of the undisputed complaints and opposition to defendants United Airlines[’] and AFA Union[’s]

motions to dismiss the complaints.” ECF No. 55.5 Although Plaintiff filed her opposition eight

days later than the Court-approved deadline of July 22, 2020 (see ECF No. 52), the Court will

consider her submission nonetheless. See Lemons v. Atl. City Police Dep’t, No. 06-3440, 2009

WL 140514, at *1 (D.N.J. Jan. 20, 2009) (considering pro se plaintiff’s opposition despite plaintiff

filing three weeks late). On August 10, 2020, Defendants replied to Plaintiff’s opposition. ECF

Nos. 58, 59.

II. LEGAL STANDARD

To survive dismissal under Federal Rule of Civil Procedure 12(b)(6), “a complaint must

contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). A claim is facially plausible when supported

by “factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. A complaint that contains “a formulaic recitation of the

elements of a cause of action” supported by mere conclusory statements or offers “‘naked

assertions’ devoid of ‘further factual enhancement’” will not suffice. Id. (citation omitted). In

evaluating the sufficiency of a complaint, the court accepts all factual allegations as true, draws all

reasonable inferences in favor of the non-moving party, and disregards legal conclusions. Phillips

v. Cty. of Allegheny, 515 F.3d 224, 231–34 (3d Cir. 2008). Pro se complaints are liberally

5 In her opposition, Plaintiff raises a claim under the FLSA. ECF No. 55 at 5. Even though

Plaintiff raised an FLSA claim in her initial complaint, the Court will not consider the omitted

FLSA claim because the Amended Complaint has become the operative pleading. See Garrett v.

Wexford Health, 938 F.3d 69, 82 (3d Cir. 2019) (“In general, an amended pleading supersedes the

original pleading and renders the original pleading a nullity. Thus, the most recently filed amended

complaint becomes the operative pleading.”) (internal citations omitted); Argentina v. Gillette, 778

F. App’x 173, 175 n.3 (3d Cir. 2019) (holding that “liberal construction of a pro se amended

complaint does not mean accumulating allegations from superseded pleadings”). Moreover,

Plaintiff cannot amend her complaint via an opposition brief to a motion to dismiss. See

Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988).

construed and held to less stringent standards than pleadings drafted by lawyers; however, “pro se

litigants still must allege sufficient facts in their complaints to support a claim.” Mala v. Crown

Bay Marina, Inc., 704 F.3d 239, 244–45 (3d Cir. 2013) (citation omitted).

III. DISCUSSION

The Court has considered the arguments for and against dismissal and finds, as explained

below, that: (A) all of Plaintiff’s claims against United are barred by New Jersey’s Entire

Controversy Doctrine and res judicata, and thus are dismissed; (B) Plaintiff’s Title VII claims

against AFA and United, Plaintiff’s breach of duty of fair representation claim against AFA, and

Plaintiff’s negligence claim against United and AFA are dismissed for failure to state a claim

pursuant to Rule 12(b)(6); and (C) Plaintiff’s breach of contract claim against United and AFA is

dismissed for lack of subject matter jurisdiction under Rule 12(b)(1).

A. Preclusion: United

As an initial matter, the Court finds that all claims against United are barred by New

Jersey’s Entire Controversy Doctrine and res judicata. ECF No. 48-1 at 8–14.

The Entire Controversy Doctrine, codified under N.J. Ct. R. 430A, and res judicata “both

share a trio of requirements” for preclusive effect to be given to a claim: (1) “the judgment in the

prior action must be valid, final, and on the merits”; (2) “the parties in the action must be identical

or in privity with those in the prior action”; and (3) “the action must grow out of the same

transaction or occurrence as the claim in the earlier one.” Rodrigues v. Unifund CCR, LLC, 690

F. App’x 799, 802 (3d Cir. 2017) (applying the Entire Controversy Doctrine together with res

judicata) (citations omitted). All three elements are satisfied here.

First, the judgment in the State Court Action was valid, final, and on the merits, as the

action was dismissed with prejudice on a motion for summary judgment. See ITT Corp. v. Intelnet

Int’l Corp., 366 F.3d 205, 214 n.17 (3d Cir. 2004) (“[A] dismissal with prejudice clearly constitutes

an adjudication on the merits…”) (citation omitted); Hubicki v. ACF Indus., Inc., 484 F.2d 519,

524 (3d Cir. 1973) (“[T]he law is clear that summary judgment is a final judgment on the merits

sufficient to raise the defense of res judicata in a subsequent action between the parties.”). Second,

Plaintiff and United were parties in both suits as Plaintiff sued United in the State Court Action,

and she is suing United again in the instant lawsuit.

Lastly, Plaintiff’s claims in this lawsuit arise out of the same transaction or occurrence as

her NJLAD claim in the State Court Action, namely Plaintiff’s employment at United and her

subsequent termination. In evaluating the third and final element, courts consider whether the acts

complained of and the material facts alleged are the same, whether the relief sought is the same,

and whether the same evidence necessary to maintain the second action would have been sufficient

to support the first. See Athlone Indus., Inc., 746 F.2d at 984. Here, Plaintiff’s core complaint in

the State Court Action––discrimination and retaliation by United, mainly by her supervisor,

Komar-Kasnowski––is identical to her core complaint in the instant action.6 See Exh. at 54–56.

Moreover, the relief sought (compensatory and punitive damages) is the same in both actions,

although Plaintiff additionally seeks immediate reinstatement of employment in the instant action.

See id. Notably, the material facts alleged in the State Court Action are the same as those alleged

in this action. In 2008, a hostile relationship developed between Plaintiff and Komar-Kasnowski

following Plaintiff’s involvement in another employee’s disciplinary hearing. Exh. at 54–56, ¶¶

3–4. Thereafter, Komar-Kasnowski mocked Plaintiff’s ethnicity and issued pretextual warnings

(id. ¶¶ 5, 8, 9), and in July 2014 Plaintiff was terminated for failing to call out of work, although

6 Although Plaintiff’s Amended Complaint contains many new allegations concerning errors

committed during her grievance hearings, those new allegations are aimed primarily at AFA.

Plaintiff claims she did (id., ¶ 14). Indeed, the evidence necessary to maintain the instant action,

such as evidence of discriminatory acts by Komar-Kasnowski, would have supported the State

Court Action. See Athlone Indus., Inc., 746 F.2d at 984. Thus, the third element of preclusion is

met here.

The fact that Plaintiff introduces new claims in the instant action is irrelevant. The Entire

Controversy Doctrine bars claims that “accrued, ripened, and become known to [Plaintiff] during

the pendency of the state court [] action.” Puche v. Wells Fargo NA, 256 F. Supp. 3d 540, 548

(D.N.J. 2017). Similarly, “[t]he doctrine of Res Judicata bars not only claims that were brought

in a previous action, but also claims that could have been brought.” Duhaney v. Attorney Gen. of

U.S., 621 F.3d 340, 347 (3d Cir. 2010). Plaintiff appears to argue that her claims remain viable

because she discovered new evidence, which revealed that United not only discriminated and

retaliated against Plaintiff but also falsely stated that “Plaintiff[’s] termination was not

overturned.” ECF No. 55 at 8. However, Plaintiff states that she discovered the allegedly “[n]ew

evidence” in January 2018. Id. at 2. Consequently, Plaintiff was aware of any claims based on

this new evidence during the pendency of the State Court Action, which was finalized in September

2018, and could have raised these claims earlier.

Therefore, as all three preclusion elements are satisfied here, all claims against United are

barred by both the Entire Controversy Doctrine and res judicata, including any new claims based

on the alleged concealment of Plaintiff’s termination being overturned. See Duhaney, 621 F.3d at

347; Puche, 256 F. Supp. 3d at 548.

B. Failure to State a Claim

Next, the Court considers whether Plaintiff has sufficiently alleged a claim for relief. For

the reasons set forth below, the Court dismisses the following claims under Rule 12(b)(6): (1)

Plaintiff’s Title VII claims against AFA and United; (2) Plaintiff’s breach of duty of fair

representation claim against AFA; and (3) Plaintiff’s negligence claim against United and AFA.

1. Title VII

Plaintiff alleges in her Amended Complaint that both AFA and United violated Title VII

by discriminating against her on the basis of her race, gender, and/or national origin, and by

retaliating against her for attempting to intervene in a coworker’s investigation and for filing

discrimination complaints. AC at 5–8. Plaintiff specifically alleges that various AFA

representatives (Williams, Barnett, Goodman, and Creighan) “discriminated” and/or “retaliated”

against her by mishandling the defense of Plaintiff’s grievances. AC at 5–8. Plaintiff’s claim

against AFA is dismissed because she has failed to plead an exhaustion of administrative remedies

or the prima facie elements of a Title VII claim. Plaintiff’s Title VII claim against United is

dismissed because she did not adhere to the statute of limitations.

a. Title VII Claim against AFA

Prior to initiating a Title VII action, a plaintiff must exhaust her administrative remedies,

typically by filing a charge with the EEOC and receiving a right to sue letter from the EEOC.

Burgh v. Borough Council of Montrose, 251 F.3d 465, 469–70 (3d Cir. 2001); see 42 U.S.C. §

2000(e)–5(e)(1) (setting forth procedural requirements for a Title VII action). “The purpose of

requiring exhaustion is to afford the EEOC the opportunity to settle disputes through conference,

conciliation, and persuasion, avoiding unnecessary action in court.” Antol v. Perry, 82 F.3d 1291,

1296 (3d Cir. 1996). A plaintiff’s “[f]ailure to exhaust administrative remedies, while not a

jurisdictional defect, is a ground to dismiss a case for failure to state a claim.” Devine v. St. Luke’s

Hosp., 406 F. App’x 654, 656 (3d Cir. 2011) (citing Anjelino v. N.Y. Times Co., 200 F.3d 73, 87–

88 (3d Cir. 1999)). The Amended Complaint does not contain any allegation that Plaintiff filed

an EEOC claim or obtained a right-to-sue letter against AFA, and no such documents are attached

to her filings. Moreover, Plaintiff does not appear to dispute AFA’s argument that she failed to

allege an exhaustion of administrative remedies. Thus, Plaintiff’s Title VII claim against AFA is

dismissed. See Devine v. St. Luke’s Hosp., 406 F. App’x at 656.

AFA additionally argues that, even if Plaintiff had alleged an exhaustion of administrative

remedies, and timely filed the instant action, her Title VII claims must nevertheless be dismissed

because they are conclusory and do not give rise to a plausible claim. The Court agrees.

To establish a prima facie case of discrimination under Title VII, Plaintiff must allege: “(1)

that [she] is a member of a protected class; (2) that [she] was qualified for the position she held;

(3) that [she] suffered an adverse employment action; and (4) the adverse employment action was

‘under circumstances that give rise to an inference of unlawful discrimination such as might occur

when the position is filled by a person not of the protected class.’” Jones v. Express Jet Airlines,

No. 11-926, 2011 WL 5024435, at *3 (D.N.J. Oct. 17, 2011) (quoting Jones v. School District of

Philadelphia, 198 F.3d 403, 410 (3d Cir. 1999)).

Even liberally construing Plaintiff’s allegations, she has failed to allege the fourth element

of a Title VII discrimination claim – that any adverse actions7 were taken against her because of

her race or gender; nor does Plaintiff provide facts that could create an inference of discrimination

by AFA. See Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 356 (3d Cir. 1999) (to meet the

fourth element, the plaintiff must put forward “evidence adequate to create an inference that an

employment decision was based on an illegal discriminatory criterion”). In particular, Plaintiff

fails to allege that other employees who were of a different ethnicity, national origin, and/or

7 Plaintiff alleges various adverse actions taken by AFA representatives, such as Williams’

abandonment of Plaintiff’s grievance complaint (AC at 6), Brooks’ failure to protect Plaintiff’s

due process rights (id.), and Goodman’s failure to pursue arbitration on Plaintiff’s behalf (id. at 7).

gender, were treated more favorably; even though such allegations are essential for a Title VII

discrimination claim. See Sarullo v. U.S. Postal Serv., 352 F.3d 789, 798 (3d Cir. 2003) (holding

that the central focus of a prima facie Title VII discrimination case “is always whether the

employer is treating some people less favorably than others because of their race, color, religion,

sex or national origin”) (internal quotations omitted). Therefore, Plaintiff fails to state a

discrimination claim against AFA under Title VII. See Santos v. Iron Mountain Film & Sound,

No. 12-4214, 2014 WL 673064, at *4 (D.N.J. Feb. 20, 2014), aff’d, 593 F. App’x 117 (3d Cir.

2014) (dismissing plaintiff’s claim where he failed to allege “that other employees who were of a

different ethnicity or national origin were treated more favorably” because without such factual

content the Court cannot infer discrimination).

Plaintiff also fails to a state a retaliation claim against AFA under Title VII. “To establish

a prima facie case of retaliation [against a union], the plaintiff must demonstrate: (1) she

participated in a protected activity known to the [u]nion; (2) she suffered an adverse employment

action; and (3) a causal connection between the protected activity and the adverse employment

action.” Patterson v. AFSCME #2456, No. 07-0965, 2008 WL 2073991, at *12 (M.D. Pa. May

14, 2008), aff’d, 320 F. App’x 143 (3d Cir. 2009) (citations omitted).

Although the filing of a grievance against one’s employer qualifies as an activity protected

by Title VII (Overall v. Univ. of Pa., 412 F.3d 492, 499 (3d Cir. 2005)), Plaintiff has not

sufficiently alleged a causal connection between the filing of her grievance and AFA’s refusal to

proceed to arbitration; nor may the Court reasonably infer any causal connection from her

pleadings. Here, almost a year elapsed between the filing of Plaintiff’s third grievance and AFA’s

decision not to proceed to arbitration; thus, the timing was not suggestive of retaliatory motive.

See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74 (2001) (citing cases where three and

four months between protected activity and adverse employment action was insufficient to

establish a causal connection). Moreover, the Amended Complaint lacks factual allegations that

suggest AFA harbored antagonism towards Plaintiff. Accordingly, Plaintiff’s Title VII

discrimination claim against AFA fails to state claim. See Patterson, 2008 WL 2073991, at *12.

Therefore, as an additional basis for dismissal of the Title VII claim against AFA,

Plaintiff’s claim is dismissed for failing to plead the requisite elements.

b. Title VII Claim against United

Plaintiff’s Title VII claim against United is barred by the applicable statute of limitations.

Although Plaintiff does attach (to her initial complaint) the required right-to-sue letter against

United, the letter reveals how Plaintiff’s claims against United are time-barred. See Exh. at 46. A

Title VII action “must be filed within 90 days of the date on which the complainant has notice of

the EEOC’s decision not to pursue the administrative charge.” Burgh v. Borough Council of

Borough of Montrose, 251 F.3d 465, 470 (3d Cir. 2001) (citing 42 U.S.C. § 2000e-5(f)(1)). The

90-day period is generally triggered on the date the complainant receives the right-to-sue letter.

Id. Here, the EEOC issued Plaintiff a right-to-sue letter on January 30, 2016, and Plaintiff filed

the State Court Action on August 4, 2016, which suggests that Plaintiff received the right-to-sue

letter sometime prior to August 4, 2016. Plaintiff’s filing of the instant action in April 2019, at

least two and a half years after she received the right-to-sue letter, is untimely. See 42 U.S.C. §

2000e-5(f)(1); Burgh, 251 F.3d at 470 (3d Cir. 2001).8

8 The Court notes that Plaintiff has not made any allegations that suggest she received the January

2016 right-to-sue letter after August 2016, or that suggest a different right-to-sue letter is operative

herein.

2. Breach of the Duty of Fair Representation claim against AFA

Plaintiff also alleges that AFA breached its duty of fair representation to her, but does not

explain what conduct constituted a breach of this duty. See AC at 8. Plaintiff merely states that

“the AFA union not only failed to perform its duty of fair representation, in addition, [] the union

also obstructed the Plaintiff[’s] right[] to return to work after the AFA was aware of the results of

overturning the termination.” Id.

“The duty of fair representation is inferred from unions’ exclusive authority under the

National Labor Relations Act . . . to represent all employees in a bargaining unit.” Chauffeurs,

Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558, 563 (1990). The duty operates as a

“bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of

redress by the provisions of federal labor law.’” Breininger v. Sheet Metal Workers Int’l Ass’n

Local Union No. 6, 493 U.S. 67, 74–79 (1989) (quoting Vaca v. Sipes, 386 U.S. 171, 190 (1967)).

It applies to the bargaining process between the union and employer, as well as the subsequent

enforcement of the collective bargaining agreement. Chauffeurs, Teamsters & Helpers, 494 U.S.

at 563. Accordingly, the union is “required to pursue [its members’] grievances in a manner

consistent with the principles of fair representation.” Id.

The Court finds that Plaintiff’s duty of fair representation claim is time-barred. A claim

for a breach of the duty of fair representation faces a six-month statute of limitations, which begins

to run “when the claimant discovers, or in the exercise of reasonable diligence should have

discovered, the acts constituting the alleged violation.” Vadino v. A. Valey Engrs., 903 F.2d 253,

260 (3d Cir. 1990) (citing Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986)).9 Here,

9 Courts in this Circuit have “appl[ied] the Hersh standard for commencement of the limitations

period for DFR claims in many varied circumstances.” Kleinerman v. Chao, No. 05-2699, 2006

WL 1949211, at *3 (D.N.J. July 12, 2006) (collecting cases).

the statute of limitation was triggered, at the latest, in January 2018, when Plaintiff discovered the

allegedly new evidence of her termination being overturned.10 Thus, Plaintiff’s initiation of the

instant action in April 2019, over one year later, was untimely. Accordingly, the Court dismisses

Plaintiff’s duty of fair representation claim on timeliness grounds. See id.11

3. Violation of the RLA by AFA (id. at 9)

Next, Plaintiff alleges that AFA violated section 204 of the RLA when it misrepresented

to Plaintiff that her termination was not overturned. AC at 9.12 However, there does not appear

to be a private cause of action for a breach of section 204. The RLA governs only three types of

disputes: (1) “representation disputes” (disputes concerning the selection of collective-bargaining

representatives), (2) “major disputes,” (disputes over the formation of collective agreements or

efforts to secure them) and (3) “minor disputes” (disputes concerning an interpretation of existing

collective agreements). Indep. Ass’n of Cont’l Pilots v. Cont'l Airlines, 155 F.3d 685, 690 (3d Cir.

1998); Int’l Ass’n of Machinists & Aerospace Workers Dist. Local Lodge 1776 v. Jackson, No. 09-

150, 2010 WL 597247, at *3 (E.D. Pa. Feb. 19, 2010). Plaintiff does not dispute the selection of

her AFA representatives or the formation of the CBA. Nor does Plaintiff’s RLA claim appear to

10 Plaintiff does not address AFA’s timeliness argument in her opposition brief.

11 Although AFA additionally argues that Plaintiff’s claim must be dismissed for failure to state a

claim, the Court will not reach this argument at this time because the Amended Complaint is

unclear as to which alleged actions taken by AFA constituted a breach of the DFR.

12 Section 204 of the Railway Labor Act (RLA) states: “The disputes between an employee or

group of employees and a carrier or carriers by air growing out of grievances, or out of the

interpretation or application of agreements concerning rates of pay, rules, or working conditions .

. . may be referred by petition of the parties or by either party to an appropriate adjustment board,

as hereinafter provided . . . It shall be the duty of every carrier and of its employees . . . to establish

a board of adjustment . . . Such boards of adjustment may be established by agreement . . .” 45

U.S.C. § 184.

be based on an interpretation of the CBA––and even if it were, it would be barred by preemption,

as explained infra. Therefore, Plaintiff’s claim for a violation of Section 204 is dismissed.

4. Negligence by AFA and United

Plaintiff also asserts a negligence claim against AFA and United. AC at 9. Plaintiff alleges

that United acted negligently by discriminating and retaliating against her, and AFA acted

negligently by failing to enforce Plaintiff’s claims of discrimination. Id.

To make a prima facie case for common law negligence in New Jersey, a plaintiff must

plead four elements: (1) a duty of care, (2) a breach of that duty, (3) proximate cause, and (4)

actual damages. See Townsend v. Pierre, 221 N.J. 36, 51 (2015); Brunson v. Affinity Fed. Cred.

Union, 199 N.J. 381, 400 (2009). Negligence claims under New Jersey law must be filed within

two years after accrual of the claim. Russo Farms v. Vineland Bd. of Educ., 144 N.J. 84, 98 (1998)

(citing N.J. Stat. § 59:8-8). “A claim for negligence accrues when [the plaintiff] suffers actual

consequential damage or loss from the defendant’s negligence.” Id. at 98 (internal quotations and

citations omitted).

Although it is unclear when Plaintiff sustained damages, United asserts that the negligence

claim against it accrued, at the latest, on August 6, 2014, which was Plaintiff’s last day with United.

ECF No. 48-1 at 23. Plaintiff does not dispute this assertion and does not offer an alternative

accrual period. Nevertheless, construing all inferences in favor of Plaintiff, the Court finds that

her negligence claim against United accrued, at the latest, in December 2014, when United denied

Plaintiff’s termination grievance at step 2. See AC at 6, ¶ 6. Furthermore, the Court finds that

Plaintiff’s negligence claim against AFA accrued, at the latest, in March 2015, when AFA

informed Plaintiff that it would not pursue arbitration on her behalf. AC at 7, ¶ 7; Exh. at 39.

Neither AFA nor Plaintiff have posited an alternative period of accrual. Accordingly, any claim

for negligence against United expired in December 2016, and any claim for negligence against

AFA expired in March 2017. See N.J. Stat. § 59:8-8; Russo Farms, 144 N.J. at 98. Thus, Plaintiff’s

negligence claims, filed on April 5, 2019, are dismissed as untimely as to both Defendants.

C. Subject Matter Jurisdiction over Breach of Contract Claim

Next, the Court considers Plaintiff’s breach of contract claim. Plaintiff alleges that United

and AFA breached the CBA by intentionally failing to comply with its terms but does not specify

what actions taken by United or AFA constituted a breach. AC at 8.13 United correctly argues

that this Court lacks subject matter jurisdiction over any breach of contract claims, due to

preemption by the RLA. Thus, preemption is an additional basis for dismissal of the breach of

contract claim against United (as the claims is already barred by preclusion doctrines) and the sole

basis for dismissal of the breach of contract claim against AFA.

Plaintiff’s employment with United was subject to the RLA (45 U.S.C. § 151, et seq.; 45

U.S.C. § 181, et seq.), which was enacted “to promote stability in labor-management relations by

providing a comprehensive framework for resolving labor disputes.” Hawaiian Airlines, Inc. v.

Norris, 512 U.S. 246, 252 (1994) (citation omitted).14 Section 2 of the RLA, 45 U.S.C. § 151a

preempts all state law governing so-called “minor” disputes between employers and employees.

13 Based on Plaintiff’s briefing, it appears Plaintiff is asserting at least three bases for her breach

of contract claim. First, Plaintiff argues that United’s failure to produce records of her scheduling

violation constitutes a breach of Section 19-7 of the CBA. See ECF Nos. 55 at 6 (“[U]nited

Airlines [has a d]uty to provide[] all tap[e]s whenever [there] is a conflict [with] flight attendants

[concerning] [s]cheduling to deny or confirm [a]ny miscommunications, [h]owever, TAPES NOT

FOUND BY UNITED AIRLINES contract (19-7)”) (emphasis in original); 55-1 at 18–19

(Plaintiff provides an excerpt of Section 19-7 of the CBA). Second, Plaintiff argues that she was

denied the right to be present at the grievance hearing in violation of Section 19-5 of the CBA.

ECF No. 55 at 6. Third, Plaintiff argues that she did not receive a written decision of her step 2

grievance hearing in violation of Section 19-4. ECF No. 55 at 9.

14 All provisions of the RLA were made applicable to the nation’s airlines by 45 U.S.C. § 181

(except the provision creating the National Railroad Adjustment Board).

Id. at 256. A dispute is minor if it involves “the interpretation or application of existing labor

agreements,” whereas a major dispute involves “rights and obligations that exist independent of

the CBA.” Id. at 260. “[F]ederal courts generally do not have jurisdiction over “minor” disputes

(as defined above), which must be litigated before special arbitral or administrative tribunals.”

Nachtsheim v. Cont’l Airlines, 111 F. App’x 113, 116 (3d Cir. 2004) (citing Childs v. Pa. Fed’n

Bhd. of Maint. Way Employees, 831 F.2d 429, 433 (3d Cir. 1987)).

The Court finds that Plaintiff’s breach of contract claim qualifies as a minor dispute. The

Third Circuit Court of Appeals has explained that any claim requiring an interpretation of specific

provisions in a CBA qualifies as a minor dispute. See Capraro v. United Parcel Serv. Co., 993

F.2d 328, 332 (3d Cir. 1993). Moreover, where the plaintiff’s basic injury is wrongful discharge,

the claim is considered a minor dispute subject to preemption. Id. at 333. Here, Plaintiff’s breach

of contract claim involves an interpretation of three specific provisions of the CRA and the basic

injury complained of is wrongful termination. As such, Plaintiff’s claim qualifies as a minor

dispute subject to preemption. See id. at 334 (finding it “hard to imagine” a circumstance where a

state law tort claim arising from an allegedly wrongful discharge would “avoid RLA’s mandatory

recourse to arbitration”).

Federal jurisdiction lies for such minor disputes in only four exceptional situations: (1)

when “the employer repudiates the private grievance machinery”; (2) when “resort to

administrative remedies would be futile”; (3) when “the employer is joined in a DFR claim against

the union”; or (4) when “the union’s DFR breach causes the employee to lose the right to present

his or her grievance.” Miklavic v. USAir Inc., 21 F.3d 551, 555 (3d Cir. 1994). Although none of

the parties address these exceptions to RLA preemption in their briefing, the exceptions appear

inapplicable under the circumstances present here. Accordingly, the Court finds that the RLA

preempts Plaintiff’s breach of contract claim, and thus, the claim is dismissed for lack of subject

matter jurisdiction.

5. Federal Rule of Civil Procedure 8(a) and 10(b)

Lastly, the Court notes that Plaintiff has failed to adhere to Federal Rules of Civil Procedure

8(a) and 10(b). First, Plaintiff’s Amended Complaint fails to include either the required “short and

plain statement of the grounds for the court’s jurisdiction” or “a short and plain statement of the

claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). These rules “underscore

the emphasis placed on clarity and brevity by the federal pleading rules.” Binsack v. Lackawanna

Cty. Prison, 438 F. App’x 158, 160 (3d Cir. 2011) (citing In re Westinghouse Sec. Litig., 90 F.3d

696, 702 (3d Cir. 1996). In addition to the Complaint’s failure under Rule 8(a), Plaintiff’s

complaint fails to state her claims or defenses in numbered paragraphs, as required by Rule 10(b).

The Court will not dismiss a complaint merely because it does not comply with Rule 8 or

Rule 10. See Coleman v. Camacho, 2012 WL 5986455, at *3 (D.N.J. Nov. 27, 2012). However,

Plaintiff must remedy these deficiencies if she elects to file a second amended complaint. See

Vurimindi v. Achek, 515 F. App’x 95, 97 (3d Cir. 2013) (upholding the dismissal of a complaint

for failure to comply with Rule 8(a) where Plaintiff repeatedly failed, despite specific instruction

from the Court, to properly plead his claims).

IV. DENIAL OF ORDER IN FAVOR OF PLAINTIFF

In her opposition to the motions to dismiss, Plaintiff requests the Court to enter a partial

order in favor of Plaintiff because United and AFA did not dispute the allegations in Plaintiff’s

Complaint. See ECF No. 55 at 12. Plaintiff appears to base her request on the false assertion that

“[t]he defendants United and AFA union admitted that all the facts contained in the complaints

[a]re TRUE.” ECF No. 55 at 2; see also id. at 12 (“AFA union did not dispute [its f]ailure to

protect its members from racial discrimination . . . [and is] not disputing anywhere that they did

not represent [] [P]laintiff.”). However, Defendants have not admitted any of Plaintiffs

allegations, and merely accepted as true the facts of the Amended Complaint for the purpose of

their motions to dismiss. See ECF Nos. 48-1 at 3, n.1, 49-2 at 3, n.1. Therefore, Plaintiffs request

is denied.

V. CONCLUSION

For the foregoing reasons, Defendants’ motions to dismiss (ECF Nos. 48, 49) the Amended

Complaint (ECF No. 41) are granted. All claims are dismissed without prejudice pursuant to Rules

12(b)(1) and 12(b)(6). Plaintiff may file a second amended complaint that cures the pleading

deficiencies discussed herein within thirty (30) days of the date of this Opinion. An appropriate

Order accompanies this Opinion.

DATED: February 26, 2021

CLAIRE C.CECCHI,US.DJ.

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