GRANT v. UNITED STATES POST OFFICE

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

MARGARET GRANT,

Plaintiff, Civil Action No. 19-9107 (SDW) (LDW)

v. OPINION

UNITED STATES POST OFFICE, et al.,

November 1, 2021

Defendants.

WIGENTON, District Judge.

Before this Court is Defendants United States Post Office and Postmaster General’s

(collectively, “Defendants”) Motion to Dismiss (D.E. 49) Plaintiff Margaret Grant’s (“Plaintiff”)

Amended Complaint (D.E. 27) for failure to state a claim upon which relief can be granted pursuant

to Federal Rule of Civil Procedure (“Rule”) 12(b)(6). Subject matter jurisdiction is proper

pursuant to 28 U.S.C. § 1331 and venue is proper pursuant to 28 U.S.C. § 1391. This opinion is

issued without oral argument pursuant to Rule 78. For the reasons discussed below, Defendants’

Motion to Dismiss is GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff is an African American woman over the age of forty who was employed by the

United States Postal Service (“USPS”) for over 26 years. (Am. Compl. ¶¶ 1, 6.)1 In July 2010,

the agency notified employees at its West Jersey Processing & Distribution Center, where Plaintiff

1 This opinion’s paragraph citations to the Amended Complaint, which repeats paragraph numbers, refer to the Parties

and Statement of Facts sections on pages 1–10. As the Amended Complaint is unpaginated, page citations refer to

ECF page numbers.

worked, that the location would close. (See id. ¶¶ 7, 30.) The agency provided affected employees

with bid sheets listing agency positions available elsewhere (“residual jobs”) and their

requirements. (Id. ¶ 30.) Plaintiff alleges that the manager responsible for the bid sheets, Fred

Hrinuk, omitted necessary information, including test requirements. (See id. ¶¶ 31–34.)

Plaintiff became the senior bidder for a bulk mail position in Rahway, New Jersey, her

desired position and location. (See id. ¶ 32.) According to Plaintiff, the bid sheet for the position

stated that bidders would need to test for the job but said nothing about the consequences of failing

the test. (See id. ¶¶ 32, 34.) Plaintiff alleges that a supervisor, Martin Israel, told her that the bulk

mail job only required a typing test when it actually required three tests, including a data entry test

that she was given without any preparation materials provided in advance. (Id. ¶¶ 36–40.) When

she failed the test on March 31, 2011, Plaintiff learned that she could be terminated for failing.

(Id. ¶¶ 40–41.) Plaintiff then wrote to the Postmaster General, several elected government

officials, and the Equal Employment Opportunity Commission (“EEOC”) about “what was

happening to her.” (Id. ¶ 42.)

Plaintiff alleges that around May 2011, Mr. Hrinuk and other supervisors expressed

displeasure with her report to the Postmaster General, with Nancy Green asking Plaintiff to stop

writing to the Postmaster, and Mr. Hrinuk calling Plaintiff to tell her to take a window position in

Hillsborough, New Jersey, “or else be out on the street.” (Id. ¶¶ 43–46.) At the time, Plaintiff

alleges, there were 12 vacant jobs in Rahway, New Jersey, including her preferred position. (Id.

¶¶ 49, 63–64.) Plaintiff claims that Mr. Hrinuk and Deborah Smith (a labor relations manager)

“did not want her in the Rahway facility because she lawfully complained to her employer,” so

they threatened and harassed her by sending her emails at midnight. (Id. ¶¶ 77–78.) Plaintiff also

alleges that in August 2011, postal employee Alka Patel drafted and circulated a petition stating

that Plaintiff should be removed from her job because she failed the required tests for the bulk mail

position. (Id. ¶ 79.) Plaintiff contends that only white and Indian employees signed this petition

and that the petition was designed to discriminate and retaliate against her. (See id. ¶¶ 79–85.)

According to the Amended Complaint, the Acting Postmaster eventually “addressed the issue by

calling Alka Patel into his office and informing her that [her] actions . . . were unlawful and if she

did not cease[,] she would be disciplined.” (Id. ¶ 82.)

On September 26, 2011, Plaintiff received a Notice of Removal for failure to meet the

testing requirements of the bulk mail position. (See id. ¶ 19.) Her union filed a grievance on her

behalf and the grievance went through arbitration. (See id. ¶¶ 60, 67–72.) The arbitrator’s decision

issued on May 4, 2013. (See D.E. 49-2 (Declaration of Tanai Lee, USPS Paralegal (“Lee Decl.”)

at Ex. A (“Arbitrator’s Award”)).)2 The Arbitrator’s Award restored Plaintiff to a “residual Clerk

Craft position, provided she passe[d] all tests that are required for the position by the end of June

2013.” (Id. at 1.) The Arbitrator’s Award also informed Plaintiff that “[f]ailure to qualify for the

position will result in removal from the Postal Service.” (Id.)

Separately, in November 2011, Plaintiff filed a formal complaint with the EEOC, Case No.

4B-070-0257-11, alleging, inter alia, that her Notice of Removal constituted discrimination on the

basis of her race, color, national origin, and age and retaliation for a prior EEOC complaint. (See

Am. Compl. ¶¶ 17–19; Lee Decl. at Ex. C (“2011 EEOC Complaint”).)3 On November 28, 2012,

an administrative judge (“AJ”) ruled in favor of USPS, finding that the agency had “articulated a

2 With respect to the documents contained in the Lee Declaration, (D.E. 49-2), the Court may consider Plaintiff’s

Arbitration Award and EEOC complaints and decisions on a Rule 12(b)(6) motion because they are integral to her

Amended Complaint and neither side disputes their authenticity. See Guidotti v. Legal Helpers Debt Resol., LLC, 716

F.3d 764, 772 (3d Cir. 2013); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997); Rogan

v. Giant Eagle, Inc., 113 F. Supp. 2d 777, 782 (W.D. Pa. 2000), aff’d, 276 F.3d 579 (3d Cir. 2001).

3 Plaintiff also filed other EEOC complaints in February 2009 and May 2011 that are not at issue in this lawsuit. (See

Am. Compl. ¶ 17.)

legitimate, nondiscriminatory reason” for Plaintiff’s removal, namely her failure to meet the skill

requirements of the position. (Lee Decl. at Ex. D (EEOC Decision, Case No. 4B-070-0257-11),

at 7–8.) The AJ also found no evidence of retaliation or discrimination. (See id.) On December

27, 2012, the USPS issued a Notice of Final Action implementing the AJ’s decision, and the EEOC

affirmed the agency’s final action on June 20, 2013. (Lee Decl. at Exs. E, F.)

Plaintiff retook the first required test for the bulk mail position (“Exam 425”) on April 26,

2013, and failed. (See Am. Compl. ¶ 15.) Postmaster James McClam terminated Plaintiff that

same day and USPS eventually replaced her with a younger employee. (See id. ¶¶ 15, 87, 91.)

The USPS offered Plaintiff a bulk mail position in West Caldwell, New Jersey (in addition to the

Hillsborough window position), but she declined it because the position required additional testing

and would have cost her 26 years of seniority. (See id. ¶¶ 46, 76.)

Plaintiff alleges that, in retaliation for complaining to elected officials and the EEOC, she

was denied the opportunity to bid for another position, denied the opportunity to work on standby,

and inaccurately told that there was no work in the Rahway office when in fact there were 12

vacancies. (See id. ¶¶ 60–63.) Plaintiff claims that the retaliation and her subsequent termination

violated the Memorandum of Understanding between the USPS and the American Postal Workers

Union, which guaranteed that a senior bidder could return to a prior assignment if she did not

qualify for a position. (See id. ¶¶ 54–59.)

The Amended Complaint names four younger employees who were not terminated after

failing the same exam but does not allege their races or ages. (Id. ¶¶ 52–53.) The pleading further

alleges that USPS placed Ms. Patel, age thirty-five at the time, and three others in the bulk mail

position that Plaintiff sought. (Id. ¶ 84.) Ms. Patel was not required to take any tests but was

grandfathered into the position based on her prior training. (See id.) Additionally, Plaintiff alleges

that USPS hired at least six other younger people despite telling Plaintiff that there were no more

job openings. (See id. ¶¶ 63, 87.)

On August 7, 2013, Plaintiff filed another EEOC complaint, Case No. 4B-070-0124-13,

alleging retaliation for her 2011 EEOC Complaint. (See id. ¶¶ 15, 17; Lee Decl. at Ex. H (“2013

EEOC Complaint”).) Specifically, Plaintiff alleged that USPS unlawfully retaliated against her

(i) in the manner that it provided Exam 425 on April 26, 2013; (ii) by failing to give her a tutorial

before the exam; and (iii) by removing her after she failed the exam. (See Lee Decl. at Ex. G

(EEOC Decision, Case No. 4B-070-0124-13), at 4–5.) On January 10, 2018, an AJ ruled in favor

of USPS, finding that the agency’s actions were motivated by “legitimate business reasons” and

not Plaintiff’s previous protected activity. (Id. at 27–28.) However, the AJ’s Order Entering

Judgment was not received by USPS until November 28, 2018, (Lee Decl. at Ex. I), and no Notice

of Final Action appears to have issued.

Plaintiff filed the instant lawsuit on March 28, 2019, asserting ten claims against various

defendants, including USPS employees. (D.E. 1.) On the defendants’ motion, this Court

dismissed the claims against the individual defendants with prejudice and allowed Plaintiff an

opportunity to amend her complaint. (D.E. 22 at 7.) Plaintiff filed an amended complaint on

March 13, 2020, asserting five counts against Defendants: (1) violations of Title VII of the Civil

Rights Act by way of retaliation (Count I), disparate treatment (Count III), and a hostile work

environment (Count IV); (2) violation of the Age Discrimination in Employment Act (“ADEA”)

(Count II); and (3) wrongful termination and breach of contract (Count V). (D.E. 27 at 10–16.)

Magistrate Judge Leda D. Wettre administratively terminated this action when Plaintiff filed for

bankruptcy, pending resolution of her legal representation, and restored the matter to the Court’s

active docket on March 24, 2021. (D.E. 39, 48.) Defendants subsequently filed the instant motion

to dismiss, and briefing was timely completed. (D.E. 49, 50, 51.)

II. LEGAL STANDARD

An adequate complaint must be “a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This Rule “requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual

allegations must be enough to raise a right to relief above the speculative level[.]” Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted); see also Phillips v. Cty.

of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (stating that Rule 8 “requires a ‘showing,’ rather

than a blanket assertion, of an entitlement to relief”).

When considering a motion to dismiss under Rule 12(b)(6), a court must “accept all factual

allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine

whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.”

Phillips, 515 F.3d at 231 (citation omitted). However, “the tenet that a court must accept as true

all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements, do not

suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Fowler v. UPMC Shadyside, 578

F.3d 203, 210–11 (3d Cir. 2009) (discussing the Iqbal standard). Determining whether the

allegations in a complaint are “plausible” is “a context-specific task that requires the reviewing

court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. If the “well-

pleaded facts do not permit the court to infer more than the mere possibility of misconduct,” the

complaint should be dismissed for failing to “show[] that the pleader is entitled to relief” as

required by Rule 8(a)(2). Id.

III. DISCUSSION4

A. Title VII and ADEA Claims (Counts I – IV)

As this Court previously noted in its Letter Opinion dismissing Plaintiff’s initial Complaint,

claims based on Plaintiff’s 2011 EEOC Complaint are time-barred. (See D.E. 22 at 6 n.9.)5

Plaintiff contends that the instant lawsuit arises from her 2013 EEOC Complaint, but Plaintiff’s

2013 EEOC Complaint alleged that USPS retaliated against her in the manner that it administered

Exam 425 and terminated her. (See Lee Decl. at Exs. G, H.) These allegations are not the basis

of Plaintiff’s Amended Complaint, which tracks the factual allegations asserted in her 2011 EEOC

Complaint. (See id. at Ex. C.) Counts I – IV must therefore be dismissed as time-barred.6

However, out of an abundance of caution, this Court will also address the allegations contained

within these counts. For the reasons discussed below, while Plaintiff includes additional factual

allegations in her Amended Complaint, they remain insufficient to state a claim under Title VII or

the ADEA and will be dismissed without prejudice pursuant to Rule 12(b)(6).

4 As a preliminary matter, Plaintiff’s opposition brief contains many factual allegations that were not included in her

Amended Complaint and which the Court will disregard in deciding this motion. “Plaintiffs cannot add factual

allegations in Opposition; the mechanism for curing pleading deficiencies is to file an amended complaint,” which

this Court will give Plaintiff one final opportunity to do. Crozier v. Johnson & Johnson Consumer Cos., Inc., 901 F.

Supp. 2d 494, 501 (D.N.J. 2012). If Plaintiff files a second amended complaint, her counsel should attach any

necessary exhibits and identify them in a separate declaration or certification, instead of attaching numerous exhibits

to her opposition brief without identification. (See D.E. 50 at Exs. A–R.) Any factual allegations necessary to state a

claim should be included in the amended pleading; this Court will not look to inoperative pleadings to fill the gap.

(See id. at 8–11 (citing the original Complaint throughout); see also id. at 8 (citing the Complaint as support for factual

allegations not contained therein).)

5 Plaintiff’s 2011 EEOC Complaint received a final decision on appeal and notice of right-to-sue on June 20, 2013,

initiating a 90-day clock. (See Lee Decl. at Ex. F, at 5–6 (notifying Plaintiff of her right to file a civil action within

90 days)); see also 42 U.S.C. § 2000e-5(f)(1); Wilson v. Potter, 159 F. App’x 415, 417 (3d Cir. 2005) (“A Title VII

complaint must be filed in the District Court within 90 days of the complainant’s receipt of a right-to-sue letter from

the EEOC.”). This 90-day limit is “strictly construed,” absent some basis for equitable tolling. Burgh v. Borough

Council of Borough of Montrose, 251 F.3d 465, 470 (3d Cir. 2001). Allegations stemming from Plaintiff’s 2013

EEOC Complaint are not similarly time-barred because that complaint did not result in a final agency action and right-

to-sue letter from the EEOC.

6 Plaintiff’s opposition brief refers to an unsigned affidavit, purportedly from the 2013 EEOC action, that contains

allegations similar to the Amended Complaint. (See D.E. 50 at 33 (citing D.E. 50-1 at Ex. B).) However, an unsigned

affidavit of unclear origin is not entitled to consideration on a motion to dismiss.

Retaliation (Count I)

To plead a prima facie claim of retaliation in violation of Title VII, “a plaintiff must

demonstrate that: (1) she engaged in conduct protected by Title VII; (2) the employer took adverse

action against her; and (3) a causal link exists between her protected conduct and the employer’s

adverse action.” Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 201 (3d Cir. 1994) (brackets

and quotation omitted). Even if the plaintiff’s protected activity was not the sole reason for an

adverse action, the third element requires a showing that “the action would not have been taken

but for his or her protected activity,” and that a link exists between the action and “retaliatory

animus.” Spence v. Foxx, 159 F. Supp. 3d 483, 499 (D.N.J. 2014) (citation omitted). Allegations

of reprisal for prior EEOC activity, without more, cannot establish a causal link. See Omogbehin

v. Dimensions Int’l, Inc., Civ. No. 08-3939, 2009 WL 2222927, at *6 (D.N.J. July 22, 2009).

Here, Plaintiff alleges that she was retaliated against after Mr. Hrinuk and other supervisors

became aware that she had written to the Postmaster General, several elected government officials,

and the EEOC about “what was happening to her.” (See Am. Compl. ¶¶ 42–46.) With respect to

her complaints to the Postmaster and elected officials, the Amended Complaint does not specify

their content and the extent to which her supervisors were aware of that content. The nature of the

content is crucial because Plaintiff may only assert a Title VII claim if the alleged retaliation took

place based on “conduct protected by Title VII.” Charlton, 25 F.3d at 201.

In contrast, Plaintiff specifies that her 2011 EEOC Complaint alleged age and race

discrimination. (See Am. Compl. ¶¶ 17–18.) She alleges that the USPS responded to the complaint

by, inter alia, terminating her and refusing to assign her to her preferred position. The first two

elements of a retaliation claim thus appear to be met. However, Plaintiff does not allege facts

sufficient to infer a causal link between her 2011 EEOC Complaint and the USPS’s adverse

actions. There are no allegations specifying whether and when Postmaster McClam had

knowledge of her protected conduct prior to his decision to fire her. Furthermore, even if

Plaintiff’s managers had knowledge of the substance of her 2011 EEOC Complaint, the Amended

Complaint offers no factual allegations connecting it to her termination two years later or the

agency’s decision to offer her multiple positions but not the bulk mail position in Rahway.7 Count

I will therefore be dismissed.

Age Discrimination (Count II)

The ADEA, 29 U.S.C. §§ 621–34, employs the McDonnell Douglas burden-shifting

framework, under which “the plaintiff bears the burden of proof and the initial burden of

production, having to demonstrate a prima facie case of [age] discrimination by showing first, that

the plaintiff is forty years of age or older; second, that the defendant took an adverse employment

action against the plaintiff; third, that the plaintiff was qualified for the position in question; and

fourth, that the plaintiff was ultimately replaced by another employee who was sufficiently

younger to support an inference of discriminatory animus.” Smith v. City of Allentown, 589 F.3d

684, 689 (3d Cir. 2009) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)) (other

citations omitted). “A plaintiff must prove by a preponderance of the evidence (which may be

direct or circumstantial) that age was the ‘but-for’ cause of the challenged employer decision.”

Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177–78 (2009) (citation omitted).

Here, Plaintiff alleges that she is over forty, that she was generally treated differently than

younger employees with respect to alleged threats, termination, disciplinary procedure, pay, and

7 To the extent that Plaintiff alleges that Mr. Hrinuk’s phone calls and Ms. Patel’s petition (and USPS’s handling of

the petition) were also acts of retaliation, the Amended Complaint does not factually and causally link these actions

to Plaintiff’s 2011 EEOC Complaint. Instead, it alleges that Mr. Hrinuk called her in response to her letters to the

Postmaster, and it alleges that Ms. Patel’s petition called for Plaintiff’s removal because she failed Exam 425, and not

because of any protected activity. (See Am. Compl. ¶¶ 43–46, 79.) The only allegations regarding retaliatory animus

are purely conclusory.

terms and conditions of her employment, and that younger workers who failed the same test were

not terminated. (See Am. Compl. at 11–12.) However, the Amended Complaint does not specify

the position or work location sought and secured by these younger employees, or contain any

allegations related to the younger workers’ pay or other conditions of employment. Instead,

according to the Amended Complaint, the Arbitrator’s Award, and the AJ’s decision regarding

Plaintiff’s 2011 EEOC Complaint, Plaintiff and other postal employees were offered other

positions, and while Plaintiff turned down those job opportunities, other employees did not. (See

Am. Compl. ¶ 76; Arbitrator’s Award at 9; Lee Decl. at Ex. D, at 5–6.)

The Amended Complaint also lacks allegations to establish that these employees were

similarly situated to Plaintiff. For example, it acknowledges that Ms. Patel, who received the

position that Plaintiff sought, was “grandfathered” into the position based on her previous training.

(Am. Compl. ¶ 84 (asserting that Ms. Patel was “illegally grandfathered” without stating a basis

for that conclusion).)8 With respect to the three other individuals who were placed in the position,

(see id.), the Amended Complaint fails to specify their age, testing status, or qualifications. Nor

does Plaintiff factually allege that she was actually qualified for the bulk mail position she sought,

and in fact she admits that she did not pass the required qualifying exam. (See id. ¶ 15.) In sum,

the Amended Complaint does not contain sufficient factual allegations for this Court to infer that

Plaintiff’s age, and not her inability to pass the prerequisite exam, was the but-for cause of her

termination. Because the Amended Complaint fails to make a prima facie showing that Plaintiff

was fired for her age, Count II will be dismissed.

8 According to the AJ’s decision regarding Plaintiff’s 2011 EEOC Complaint, Ms. Patel was trained and qualified to

perform the bulk mail position prior to the implementation of the prerequisite Exam 425. (See Lee Decl. at Ex. D, at

2 ¶¶ 8–10.) Importantly, she is only six years younger than Plaintiff, (see id. ¶¶ 1, 8), and this may not be “sufficiently

younger to support an inference of discriminatory animus.” Smith, 589 F.3d at 689.

Disparate Treatment (Count III)

A prima facie claim of Title VII disparate treatment requires a plaintiff to show that “(1)

the plaintiff belongs to a protected class; (2) he/she was qualified for the position; (3) he/she was

subject to an adverse employment action despite being qualified; and (4) [] circumstances [exist]

that raise an inference of discriminatory action.” Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797

(3d Cir. 2003) (citations omitted). “The central focus of the prima facie case is always whether

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

religion, sex, or national origin.” Id. at 798 (internal quotation marks and citation omitted).

Here, Plaintiff clearly belongs to a protected class on account of her race, but she has failed

to proffer any facts to allege that she was qualified for the position she sought. With respect to the

third and fourth elements, the Amended Complaint alleges that Defendants “discriminated against

Plaintiff by treating her differently from and less preferably than similarly situated white

employees” and “subjecting her to discriminatory petitions, harassment, hostile work

environments, and other forms of discrimination.” (Am. Compl. at 13.) However, it lacks specific

allegations to support Plaintiff’s claim that USPS treated her differently from other employees on

the basis of her race. In particular, the pleading fails to identify a similarly situated white employee

treated more favorably than Plaintiff. Although the Amended Complaint states that other

employees also failed Exam 425 but were not terminated, it does not state these employees’ races,

or whether the positions they hold now are the positions they sought when they took Exam 425.

(See id. ¶¶ 52–53.) Nor does the Amended Complaint state whether these other employees

accepted alternative position offers within USPS, offers that Plaintiff rejected. (See id. ¶ 76.)

With respect to the petition against Plaintiff that was signed only by white and Indian

employees, Plaintiff argues in her opposition brief that USPS “encouraged or tolerated” circulation

of the petition. (See D.E. 50 at 24.) However, this claim contradicts the factual allegations in the

Amended Complaint, which acknowledge that the petition sought Plaintiff’s removal because she

failed the bulk mail test—not because of her race—and that the Acting Postmaster reprimanded

the employee responsible for the petition and told her to stop. (See id. ¶¶ 79, 82.) Furthermore,

the Amended Complaint does not contain factual allegations sufficient for this Court to infer that

the petition constituted an “adverse employment action,” which must be “serious and tangible

enough to alter an employee’s compensation, terms, conditions, or privileges of employment.”

Jones v. Se. Pa. Transp. Auth., 796 F.3d 323, 326 (3d Cir. 2015) (quoting Storey v. Burns Int’l Sec.

Servs., 390 F.3d 760, 764 (3d Cir. 2004)). For these reasons, Count III will be dismissed.

Hostile Work Environment (Count IV)

To plead a hostile work environment claim, “a plaintiff must show that 1) the employee

suffered intentional discrimination because of his/her [protected characteristic], 2) the

discrimination was severe or pervasive, 3) the discrimination detrimentally affected the plaintiff,

4) the discrimination would detrimentally affect a reasonable person in like circumstances, and 5)

the existence of respondeat superior liability” on the part of the employer. Castleberry v. STI

Grp., 863 F.3d 259, 263 (3d Cir. 2017) (internal quotation marks and citation omitted) (noting that

the same test is used for employment discrimination claims under Title VII and 42 U.S.C. § 1981).

Plaintiff’s allegations in support of her hostile work environment claim are substantively

identical to her allegations in support of her disparate treatment claim, and they are insufficient for

the same reasons. (See Am. Compl. at 14 (alleging that Defendants “created a hostile work

environment for [] Plaintiff by subjecting her to discriminatory petitions, conditions of

employment, harassment, and other forms of discrimination”).) As discussed above, there are no

factual allegations supporting an inference that Defendants intentionally discriminated against

Plaintiff on the basis of her race or another protected characteristic. Nor are there factual

allegations connecting her grievances, such as the petition calling for her removal or inaccuracies

in the bid sheet, to a characteristic protected by Title VII, such as her race. Count IV will therefore

be dismissed.

B. Wrongful Termination and Breach of Contract Claim (Count V)

Plaintiff alleges that she was wrongfully terminated, in breach of the collective bargaining

agreement that applied to her. (See Am. Comp. at 15–16.) To state a claim that the USPS breached

a collective bargaining agreement, an employee must bring a “hybrid” claim under 39 U.S.C.

§ 1208(b), alleging that: (1) the employer breached the collective bargaining agreement; and (2)

the union breached its duty of fair representation. See Treusch v. Ctr. Square Supermarket, LLC,

921 F. Supp. 2d 336, 344–46 (D.N.J. 2013) (applying the Labor Management Relations Act and

explaining that federal statutes preempt state law contract claims arising out of breaches of

collective bargaining agreements).9 Both elements must be alleged, even when the union is not

named as a defendant. See id. at 346 (quoting DelCostello v. Int’l Bhd. of Teamsters, 462 U.S.

151, 164–65 (1983)).

Here, Plaintiff fails to allege any facts that suggest her union breached its duty of fair

representation. To the contrary, the Amended Complaint describes several actions that the union

took on behalf of Plaintiff, including filing a grievance when Plaintiff was told she could no longer

perform a residual bid, representing Plaintiff throughout the arbitration process, and notifying

management about Ms. Patel’s petition. (See Am. Compl. ¶¶ 60, 67, 81.) Plaintiff’s only response

in opposition is to ask this Court to ignore the applicable statutory requirements and controlling

9 “Although 39 U.S.C. § 1208(b) grants federal courts jurisdiction over disputes arising under collective bargaining

agreements executed by the Postal Service, § 1208(b) is the analogue to section 301(a) of the Labor Management

Relations Act, and the law under § 301 is fully applicable to suits brought under § 1208(b).” Houser v. Postmaster

Gen. of U.S., 573 F. App’x 141, 142 n.2 (3d Cir. 2014) (citation and some punctuation omitted).

case law, and instead look to preempted state law principles, such as the implied covenant of good

faith and fair dealing. (See D.E. 50 at 28–30.) However, “the Supreme Court has made it clear

that ‘an allegation that the union [] breached its duty of fair representation [is] a necessary

component of the [] claim against the employer.’” Vadino v. A. Valey Eng’rs, 903 F.2d 253, 261

(3d Cir. 1990) (quoting Breininger v. Sheet Metal Workers Int’l Ass’n Loc. Union No. 6, 493 U.S.

67, 83, 110 S. Ct. 424, 434 (1989)). This Court dismissed Plaintiff’s previous breach of contract

claim for the same reason when it dismissed her Complaint. (See D.E. 22 at 4.) As Plaintiff

appears unable to cure this deficiency, Count V will be dismissed with prejudice.

IV. CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss is GRANTED. Counts I – IV

are dismissed without prejudice and Count V is dismissed with prejudice. Plaintiff shall have one

final opportunity to amend her complaint and state a timely claim. If she chooses to pursue this

matter, Plaintiff shall file a second amended complaint within thirty (30) days. An appropriate

order follows.

/s/ Susan D. Wigenton

SUSAN D. WIGENTON, U.S.D.J.

Orig: Clerk

cc: Parties

Leda D. Wettre, U.S.M.J.