# VILLARREAL v. UNITED AIRLINES, INC.

> District Court, D. New Jersey · February 26, 2021

URL: https://www.frixlaw.com/law-library/cases/10270032

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** February 26, 2021
- **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/10270032

## How later opinions describe it (automated extraction)

- 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”
- applying the Entire Controversy Doctrine together with res judicata

## Opinion text

NOT FOR PUBLICATION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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10270032. Public record. Not legal advice.