Mastrella v. DeJoy

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ROBERT J. MASTRELLA, : CIVIL ACTION NO. 1:20-CV-1037

:

Plaintiff : (Judge Conner)

:

v. :

:

LOUIS DEJOY, POSTMASTER :

GENERAL, UNITED STATES :

POSTAL SERVICE, :

:

Defendant :

MEMORANDUM

Plaintiff Robert J. Mastrella commenced this action against his employer, the

United States Postal Service, asserting claims of discrimination and retaliation

under the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq., and discrimination

under the Uniformed Services Employment and Reemployment Rights Act of 1994,

38 U.S.C. § 4311. Defendant Louis DeJoy is the Postmaster General of the United

States Postal Service.1 The Postal Service moves to dismiss the first two counts

of Mastrella’s amended complaint for failure to state a claim pursuant to Federal

Rule of Civil Procedure (12)(b)(6) and the third count for lack of subject matter

jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). For the reasons

set forth below, we will grant in part and deny in part the Postal Service’s motion.

1 Mastrella does not specify whether he is suing DeJoy in his personal or

official capacity. Given the nature of the allegations, we assume DeJoy is being

sued in his official capacity and proceed accordingly. We will refer to both DeJoy

and United States Postal Service collectively as “the Postal Service” given their

linked identities.

I. Factual Background & Procedural History

The Postal Service hired Mastrella as a mechanic on January 7, 1995.

(See Doc. 21 ¶ 11). Thereafter, the Postal Service promoted Mastrella to the

position of “Manager, Maintenance Operations” (“MMO”) at its Harrisburg,

Pennsylvania processing and distribution center.2 (See id. ¶¶ 11, 16; id. at 81).

Central to the instant matter, Mastrella is a veteran and suffers from permanent

“disc and nerve loss in both legs, degenerative disc disease, osteoarthritis, sciatic

inflammation and pain” as a result of his military service. (See id. ¶ 10). These

ailments render Mastrella impaired in one or more major life activities. (See id.

¶ 17).

In late March of 2013, Mastrella filed a complaint against the Postal

Service with the Equal Employment Opportunity Commission (“EEOC”) alleging

his supervisor had subjected him to discrimination. (See id. ¶ 12). After exhausting

administrative remedies, Mastrella filed a lawsuit in this judicial district on April 24,

2014. See Mastrella v. Donahoe, No. 1:14-CV-793, Doc. 1 (M.D. Pa. Apr. 24, 2014).

The court dismissed the suit on June 20, 2016, after Mastrella and the Postal Service

reached a settlement. See id., Doc. 50 (M.D. Pa. June 20, 2016); (Doc. 21 ¶ 13).

The Postal Service instituted a new staffing structure in September 2013

during the pendency of Mastrella’s EEOC complaint. (See Doc. 21 ¶¶ 12-13, 19).

This staffing structure fixed the pay levels of various categories of Postal Service

2 Although this term does not appear in the record, we understand the

abbreviation “P&DC” as used in Mastrella’s pleading to stand for “processing and

distribution center.”

employees to certain attributes of the facilities at which they worked. (See id. ¶ 19;

id. at 23, 101, 110-15). In general, the greater the “craft complement” (i.e., the

number of employees) at the facility, the greater the pay level for certain positions.

(See generally id. at 13-79). Relevant here, the new staffing structure set the pay

for MMOs at “two levels lower than” their immediate supervisor, the “Manager,

Maintenance” (“MM”). (See id. ¶ 20; id. at 23). The Postal Service paid Mastrella at

the EAS-21 level before implementation of the new staffing structure. (See id. at

110). After implementation, the Postal Service elevated Mastrella to the EAS-22

level. (See id.) The exact difference between one EAS level versus another is

unclear except that the higher the level, the higher the pay.

Mastrella alleges he became entitled to another pay increase in 2015. (See

id. ¶¶ 35-36). On July 6, 2015, the Postal Service promulgated a “staffing letter”

designating the craft complement at the Harrisburg processing and distribution

center at 202 employees. (See id. at 21, 103). According to the 2013 staffing

structure, when a facility reaches 197 or more employees, the pay level of MMOs

increases by one level. (See id. ¶ 35; id. at 21). Mastrella’s supervisor at the time,

Fredrick Franco, sent an email on July 31, 2015, to a Postal Service executive

overseeing maintenance operations, observing that Mastrella and two other MMOs

were entitled to pay increases and making inquiry as to how to initiate the required

upgrades. (See id. ¶ 35; id. at 103). The executive informed Franco he would

forward the email to the appropriate decisionmaker. (See id. at 103). The amended

complaint does not explain what transpired next, but it is clear the Postal Service

did not increase Mastrella’s pay level. (See id. ¶ 36; id. at 103). Nor did Mastrella

receive a pay raise in 2016 or 2017 despite the staffing level at the Harrisburg

processing and distribution center remaining above the 197-employee threshold.3

(See id. ¶¶ 37-39; id. at 106, 108).

On February 10, 2018, Debra M. Benford, President of Branch 50 of the

National Association of Postal Supervisors, sent a letter to the acting plant manager

of the Harrisburg processing and distribution center, asserting that Mastrella and

two other MMOs were entitled to an increase from EAS-22 to EAS-23. (See id. at

111). Benford gave three justifications for why the three MMOs were entitled to pay

raises: (1) the Postal Service reclassified the MMO position from EAS-22 to EAS-23

on September 7, 2013; (2) the craft staffing complement at the Harrisburg facility

exceeded the 197-employee threshold; and (3) the Postal Service had assigned the

MM above the three MMOs the EAS-25 salary level. (See id.) The plant manager

forwarded Benford’s letter to Barbara Kirchner, human resources manager for the

Central PA District, inquiring whether the Postal Service owed Mastrella and the

other MMOs back pay. (See id. at 110). Kirchner responded on February 12, 2018,

asserting she investigated the matter. (See id.) Kirchner explained the Postal

Service upgraded Mastrella from EAS-21 to EAS-22 at the time of reclassification

and gave him a two percent reclassification salary increase. (See id.) She did not

address the staffing level or MM-related justifications. (See id.) Nonetheless, she

assured the plant manager that “everything was done properly.” (See id. ¶ 41; id. at

3 Mastrella’s complaint does not address whether the Harrisburg processing

and distribution center remained above or fell below the 197-employee threshold

after 2017.

110). The plant manager replied the next day accepting Kirchner’s explanation and

asking her to inform Benford. (See id. at 110). Mastrella pleads no additional facts

related to Benford’s letter.

Mastrella alleges the Postal Service became obliged to increase his pay again

in March of 2018. At the time, Mastrella was still an MMO paid at the EAS-22 level.

(See id. ¶ 21). On March 5, 2018, the Postal Service hired a new MM, Marlon

Williams, to supervise the MMOs at the Harrisburg processing and distribution

center. (See id. ¶ 22). The Postal Service set Williams’ salary at the EAS-25 level.

(See id. ¶ 22; id. at 81). Although the staffing structure fixed the salary of MMOs at

“two levels below the [MM],” (see id. ¶¶ 20, 26; id. at 23), the Postal Service failed to

reciprocally increase Mastrella’s salary to the EAS-23 level, (see id. ¶¶ 24-25, 28).

On March 22, 2018, Mastrella initiated contact with an EEO counselor. (See

id. ¶ 8). Mastrella elevated his claim to the EEOC on June 28, 2018. (See id.) As

part of its investigation, the EEOC obtained interrogatory affidavits from Williams

and Kirchner. (See id. at 81-99). In his affidavit, dated August 27, 2018, Williams

admits to being aware the staffing structure necessitates Mastrella to be paid at the

EAS-23 level but denies having authority to alter pay levels or knowledge about the

Postal Service’s failure to increase Mastrella’s pay. (See id. at 83-86). According to

his affidavit, when Williams asked Kirchner why Mastrella and the two other MMs

were not elevated to EAS-23, Kirchner indicated those decisions were made by her

superiors. (See id. at 86). In her first affidavit, dated August 13, 2018, Kirchner

reports she no longer works in the Central PA District and lacks access to most of

the information requested by the EEOC. (See id. at 91-92). Kirchner also denies

having authority to change pay levels and explains decisions about pay levels are

made at headquarters. (See id. at 94). As for her email to the plant manager,

Kirchner claims she had no personal knowledge regarding Mastrella’s pay level and

relied on information provided by another human resources employee. (See id.) In

a second affidavit, dated August 21, 2018, Kirchner states she is unable to recall

specific conversations about elevating Mastrella and reiterates that responsibility

for decisions on pay levels rested elsewhere. (See id. at 98).

During the EEOC investigation of Mastrella’s 2018 complaint, Simon

Storey, the Postal Service’s Vice President of Employee Resource Management,

circulated a national memo (“the Storey memo”), freezing reclassification of all

MMs (including MMOs) either up or down in pay level based upon the 2013 staffing

structure. (See id. ¶ 34; id. at 101). According to Storey’s July 20, 2018 memo, the

Postal Service intended the freeze to facilitate a reorganization project likely to

affect staffing criteria and facility classification. (See id. at 101).

Mastrella filed his amended complaint on February 1, 2021. The Postal

Service moves to dismiss Mastrella’s amended complaint under Federal Rule of

Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and Federal Rule of

Civil Procedure 12(b)(6) for failure to state a claim for which relief may be granted.

II. Legal Standards

A. Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) provides that a court may dismiss a

claim for lack of subject matter jurisdiction. See FED. R. CIV. P. 12(b)(1). Such

jurisdictional challenges take one of two forms: (1) parties may levy a “factual”

attack, arguing that one or more of the pleading’s factual allegations are untrue,

removing the action from the court’s jurisdictional ken; or (2) they may assert a

“facial” challenge, which assumes the veracity of the complaint’s allegations but

nonetheless argues that a claim is not within the court’s jurisdiction. Lincoln

Benefit Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015) (quoting CNA v.

United States, 535 F.3d 132, 139 (3d Cir. 2008)). In either instance, it is the plaintiff’s

burden to establish jurisdiction. See Mortensen v. First Fed. Sav. & Loan Ass’n,

549 F.2d 884, 891 (3d Cir. 1977). Courts may grant a Rule 12(b)(1) motion based on

the legal insufficiency of a claim only when it appears with certainty that assertion

of jurisdiction would be improper. See Gould Elecs. Inc. v. United States, 220 F.3d

169, 178 (3d Cir. 2000).

B. Rule 12(b)(6)

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the

dismissal of complaints that fail to state a claim upon which relief may be granted.

See FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6),

the 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 v. County

of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings,

Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). In addition to reviewing the facts

contained in the complaint, the court may also consider “exhibits attached to the

complaint, matters of public record, [and] undisputedly authentic documents if the

complainant’s claims are based upon these documents.” Mayer v. Belichick, 605

F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol.

Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).

Federal notice and pleading rules require the complaint to provide “the

defendant fair notice of what the . . . claim is and the grounds upon which it rests.”

Phillips, 515 F.3d at 232 (alteration in original) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint, the court conducts

a three-step inquiry. See Santiago v. Warminster Township, 629 F.3d 121, 130-31

(3d Cir. 2010). In the first step, “the court must ‘tak[e] note of the elements a

plaintiff must plead to state a claim.’” Id. at 130 (alteration in original) (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Next, the factual and legal elements of a

claim must be separated; well-pleaded facts are accepted as true, while mere legal

conclusions may be disregarded. Id. at 131-32; see Fowler v. UPMC Shadyside, 578

F.3d 203, 210-11 (3d Cir. 2009). Once the court isolates the well-pleaded factual

allegations, it must determine whether they are sufficient to show a “plausible claim

for relief.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556); Twombly, 550

U.S. at 556. A claim is facially plausible when the plaintiff pleads facts “that allow[]

the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678.

III. Discussion

Mastrella’s amended complaint against the Postal Service does not clearly

delineate his theories of liability. We construe it as articulating the following

claims: discrimination in violation of the Rehabilitation Act of 1973 (“Rehab Act”),

29 U.S.C. § 791 et seq. (Count I); retaliation in violation of the Rehab Act (Count II);

and discrimination in violation of the Uniformed Services Employment and

Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. § 4311 (Count III). The

Postal Service moves to dismiss all three claims. We begin with Mastrella’s Rehab

Act discrimination claim.

A. Discrimination Under the Rehab Act

The Rehab Act takes the protections against discrimination afforded

individuals with disabilities by the Americans with Disabilities Act (“ADA”), 42

U.S.C. § 12101 et seq., and applies them to the federal government as well as entities

that receive funding from the federal government. See Wishkin v. Potter, 476 F.3d

180, 184 (3d Cir. 2007). Specifically, the Rehab Act “forbids employers from

discriminating against persons with disabilities in matters of hiring, placement, or

advancement.” Id. (quoting Shiring v. Runyon, 90 F.3d 827, 830-31 (3d Cir. 1996)).

It also provides that “a qualified individual with a disability” cannot “be excluded

from the participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal financial assistance

or under any program or activity conducted by any Executive agency or by the

United States Postal Service.” 29 U.S.C. § 794(a). The pleading requirements

under the Rehab Act are identical to those for a claim under the ADA. See Gibbs

v. City of Pittsburgh, 989 F.3d 226, 229 (3d Cir. 2021); McDonald v. Pa. Dep’t of Pub.

Welfare, 62 F.3d 92, 94-95 (3d Cir. 1995).

To state a claim of discrimination under the Rehab Act, a plaintiff must

plausibly allege that (1) he is disabled within the meaning of the Rehab Act; (2) he is

otherwise qualified for the position, with or without reasonable accommodation;

and (3) he suffered an adverse employment action as a result of discrimination.

See Gibbs, 989 F.3d at 229 (citing Sulima v. Tobyhanna Army Depot, 602 F.3d 177,

185 (3d Cir. 2010)). A plaintiff need only plead “sufficient facts to raise a reasonable

expectation that discovery will uncover proof of [their] claims” to survive a motion

to dismiss. Connelly v. Lane Const. Corp., 809 F.3d 780, 789 (3d Cir. 2016).

The Postal Service argues Mastrella fails to plead facts alleging that he is a

“qualified individual” or that the Postal Service’s failure to move him up a pay

grade level was motivated by discrimination. (See Doc. 25 at 6-8). The Postal

Service’s first argument is unpersuasive. Mastrella pleads he is “qualified to

perform the essential functions of his position . . . with or without reasonable

accommodations.” (Doc. 21 ¶ 18). Mastrella does not explicitly plead that he is

qualified for the EAS-23 level, but the absence of that specific averment does not

mean Mastrella failed to meet the Rehab Act’s threshold pleading requirements.

EAS-23 is not a job; it is merely a salary level. (See Doc. 21 at 21, 23). The

qualifications for both levels are the same; the only additional requirement for

receiving the EAS-23 pay level is that an individual be an MMO when certain

staffing criteria are satisfied. (See id. at 21, 23, 103). Mastrella alleges he is an

MMO. (See id. ¶ 21). He also alleges the staffing criteria were satisfied. (See id.

¶¶ 20, 22-23). Hence, Mastrella pleads facts establishing he was “qualified” for an

automatic pay raise. (See id. ¶¶ 20-23).

The Postal Service’s second argument fares better. Liability in a disparate

treatment claim “depends on whether the protected trait . . . actually motivated the

employer’s decision.” See Raytheon Co. v. Hernandez, 540 U.S. 44, 52 (2003)

(quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). A plaintiff does not

need “detailed evidence” to plausibly allege discrimination, but his allegations still

must “raise the reasonable expectation that discovery will uncover evidence of

discriminatory motive.” See Gibbs, 989 F.3d at 230. A complaint is sufficient to

raise such a reasonable expectation when a plaintiff pleads enough facts implying

discriminatory intent to “nudge[]” a discrimination claim “across the line from

conceivable to plausible.” See Fowler, 578 F.3d at 212 (quoting Twombly, 550 U.S.

at 570). However, conclusory declarations that discriminatory intent motivated

an adverse action are “disentitled to any presumption of truth” and, therefore,

inadequate to raise a reasonable expectation when unsupported by other factual

allegations. See Connelly, 809 F.3d at 790.

Mastrella pleads no facts to substantiate his discrimination claim. His

amended complaint offers only one passive and conclusory averment on the subject,

viz.: “It is believed that this failure to [increase Mastrella’s salary] was motivated by

discrimination . . . against [Mastrella] due to his . . . disability.” (See Doc. 21 ¶ 30).

There is not a single factual allegation in Mastrella’s amended complaint suggesting

any of the alleged decisionmakers discriminated against Mastrella on account of his

disability. Indeed, Mastrella’s pleading and attached exhibits suggest the opposite.

Those documents mention two other MMOs who were denied the same elevation

to EAS-23. (See Doc. 21 at 84-85, 92-93, 103, 110-11). There is no indication in

Mastrella’s pleadings that either of them was disabled. Treating similarly situated

nondisabled employees the same as Mastrella suggests a nondiscriminatory reason

for failure to raise Mastrella’s pay. See generally Olmstead v. L.C. ex rel. Zimring,

527 U.S. 581 (1999) (discussing relevance of similarly situated individuals to

discrimination claims under the ADA).

The absence of factual averments establishing discriminatory animus on

the part of the Postal Service is fatal to Mastrella’s claim as presently set forth.

Mastrella’s conclusory allegations do not raise a reasonable expectation that he

could uncover evidence of discriminatory motive in discovery. See Gibbs, 989

F.3d at 230. We will grant the Postal Service’s motion to dismiss Mastrella’s

discrimination claim under Rule 12(b)(6), with leave to amend.

B. Retaliation Under the Rehab Act

Like the ADA, the Rehab Act prohibits employers from punishing individuals

who have “made a charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing” related to disability discrimination. 29 U.S.C.

§ 794(d); 42 U.S.C. § 12203(a). To establish a prima facie case for retaliation under

the Rehab Act, plaintiff must demonstrate (1) he engaged in conduct protected by

the Rehab Act, (2) the employer took adverse action against him, and (3) a causal

link exists between the protected conduct and the adverse action. See Connelly,

809 F.3d at 789. Filing an EEOC complaint constitutes protected activity. See 29

U.S.C. § 794(d); 42 U.S.C. § 12203(a). A plaintiff can show a causal link between a

protected activity and an adverse action by establishing either unusually suggestive

temporal proximity between the two events, or a pattern of antagonism coupled

with timing. See Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 258 (3d Cir.

2014).

Mastrella makes two claims of retaliation in his amended complaint. First, he

alleges the Postal Service retaliated against him for filing his 2013 EEOC complaint

when it failed to elevate him to the EAS-23 pay level when he first became eligible

in 2015 (the “2015 retaliation claim”). (See Doc. 21 ¶¶ 35-45). Second, he alleges the

Postal Service retaliated against him for filing an EEOC complaint4 when it issued

the Storey memo on July 20, 2018, freezing reclassification of all MMs (including

MMOs) either up or down in pay level based upon the 2013 staffing structure (the

“2018 retaliation claim”). (See id. ¶¶ 33-34).

1. 2015 Retaliation Claim

We agree with the Postal Service that Mastrella did not timely raise the

2015 retaliation claim with the EEOC. Applicable regulations obligate a Rehab

Act plaintiff to initiate contact with an EEO counselor within 45 days of alleged

discriminatory conduct and thereafter file a formal complaint with the EEOC before

filing suit in federal court. See 29 C.F.R. § 1614.105(a)(1). Mastrella did not initiate

contact with an EEO counselor until March 22, 2018. (See Doc. 21 ¶ 8). It is beyond

peradventure that the March 22, 2018 contact is long past the 45-day deadline for an

alleged act of retaliation that occurred in 2015.

The filing deadline for EEOC complaints is subject to equitable doctrines like

waiver, estoppel, and equitable tolling, see Simko v. U.S. Steel Corp, 992 F.3d 198,

204 n.5 (3d Cir. 2021) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393

4 Mastrella is imprecise as to which EEOC complaint he believes inspired

the Storey memo. (See Doc. 21 ¶¶ 32-45). We will consider both the 2013 and 2018

EEOC complaints as potential protected activities underlying this retaliation claim.

(1982)), but the burden is on the plaintiff to show they are entitled to application of

these doctrines, see, e.g., Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (describing

plaintiff’s burden for applying equitable tolling); Courtney v. La Salle Univ., 124

F.3d 499, 505 (3d Cir. 1997) (same for equitable estoppel). Mastrella makes no

argument that any equitable doctrine should apply.5 We will grant the Postal

Service’s motion to dismiss the 2015 retaliation claim on timeliness grounds.

2. 2018 Retaliation Claim

The Postal Service argues Mastrella’s 2018 retaliation claim should be

dismissed because he fails to allege a causal connection between either of his EEOC

complaints and the Postal Service’s decision to freeze MMO pay levels nationally.

(See Doc. 25 at 10-11). Mastrella does not plead facts directly showing that the

Postal Service intended to retaliate against him when it issued the Storey memo.

Instead, Mastrella relies on the timing of the Storey memo to create to render his

claim plausible. (See Doc. 26 at 9-10).

Temporal proximity is one of many factors a plaintiff can invoke to

demonstrate causation. See Connelly, 809 F.3d at 792 & n.11. When temporal

proximity is “unduly suggestive,” it can even serve as satisfactory evidence to

prove a causal link at the summary judgment stage. See Shellenberger v. Summit

5 Mastrella hints at an estoppel argument in his opposition brief when he

states “the [pay level] policy was not followed but [Mastrella] was led to believe

his supervisor was handling the issue, however, failed to do so in those years.”

(See Doc. 26 at 8). We decline to construe Mastrella’s statement as an estoppel

argument because it is only a single sentence and cites no case law. (See id.) And,

significantly, Mastrella pleads no facts suggesting how he could have reasonably

believed his supervisor was “handling the issue” for almost three years. (See id.)

Bancorp., Inc., 318 F.3d 183, 189 & n.9 (3d Cir. 2003) (citing Woodson v. Scott Paper

Co., 109 F.3d 913, 920 (3d Cir. 1997); Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500

(3d Cir. 1997)); see also Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) (two days

between protected activity and alleged retaliation sufficed to establish causal link).

Unless temporal proximity is very close, however, the mere fact of sequential timing

“will ordinarily be insufficient to satisfy the plaintiff’s burden of demonstrating a

causal link between the two events.” See Robinson v. City of Pittsburgh, 120 F.3d

1286, 1302 (3d Cir. 1997), abrogated on other grounds by Burlington N. & Santa Fe

Ry. Co. v. White, 548 U.S. 53 (2006). A gap of weeks or months, for example, is

normally too remote, without more, to support a causal link. See, e.g., Williams

v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751, 760 (3d Cir. 2004), superseded on

other grounds by statute, ADA Amendments Act of 2008, Pub. L. No. 110-325, 122

Stat. 3553 (two months inadequate to prove causal link for ADA retaliation claim);

Thomas v. Town of Hammonton, 351 F.3d 108, 114 (3d Cir. 2003) (three weeks

inadequate for First Amendment retaliation claim); LeBoon v. Lancaster Jewish

Cmty. Ctr. Ass’n, 503 F.3d 217, 232-34 (3d Cir. 2007) (three months inadequate for

Title VII retaliation claim). Nonetheless, outright dismissal for failure to state a

claim is usually reserved for those cases in which the temporal proximity between

the protected conduct and the allegedly retaliatory adverse employment action is

extremely attenuated. See, e.g., Scrip v. Seneca, 651 F. App’x 107, 111 (3d Cir. 2016)

(nonprecedential) (affirming dismissal of First Amendment retaliation claim when

there was a 17-month delay); Newton-Haskoor v. Coface N. Am., 524 F. App’x 808,

811 (3d Cir. 2013) (nonprecedential) (same for Title VII retaliation claim with two-

year delay); Clark v. Phila. Hous. Auth., 701 F. App’x 113, 116 (3d Cir. 2017)

(nonprecedential) (same for FMLA retaliation claim with four-year delay).

Almost five years separate Mastrella’s 2013 EEOC complaint and the

Storey memo. The events are simply too attenuated to give rise to a reasonable

expectation that discovery might produce evidence of a causal link. See Connelly,

809 F.3d at 789. Mastrella alleges no other facts from which we could infer

causation in the intervening period. We also note that Mastrella makes no

counterargument in his opposition brief concerning the 2013 EEOC complaint.

(See Doc. 26 at 9-10). Thus, we consider this claim to be abandoned.

Whether the 2018 EEOC complaint and Storey memo are close enough in

time to permit a retaliatory inference is a much closer question. Mastrella initiated

contact with the EEO counselor on March 22, 2018, and filed a formal complaint

with the EEOC on June 28, 2018. (See Doc. 21 ¶¶ 25, 28). The Storey memo is dated

July 20, 2018, during the pendency of Mastrella’s complaint. (See id. ¶ 34; id. at 101).

The very latest the Postal Service could have received notice of Mastrella’s EEOC

activity is when Mastrella filed his formal EEOC complaint, just over three weeks

before the Postal Service issued the Storey memo. Three weeks’ temporal

proximity, standing alone, is unlikely to be adequate evidence to prove a causal link

between Mastrella’s EEOC complaint and the Storey memo at trial or at summary

judgment. See Thomas, 351 F.3d at 114. But at the Rule 12 stage, it is enough to

raise a reasonable expectation discovery may reveal evidence of retaliatory motive.6

See Williams, 380 F.3d at 760; Thomas, 351 F.3d at 114; LeBoon, 503 F.3d at 233.

Moreover, three weeks is nowhere near the extreme separations justifying dismissal

at this procedural juncture. Cf. Scrip, 651 F. App’x at 111; Newton-Haskoor, 524 F.

App’x at 811; Clark, 701 F. App’x at 116. Mastrella’s claim thus crosses the line from

conceivable to plausible. See Fowler, 578 F.3d at 212. We will deny the Postal

Service’s motion to dismiss the 2018 retaliation claim under Rule 12(b)(6).

C. Discrimination Under USERRA

USERRA prohibits employers from denying an individual any benefit of

employment because of their service—past, present, or future—in a uniformed

service. See 38 U.S.C. § 4311(a). The procedural path to bringing a USERRA claim

depends on the nature of the defendant. See 38 U.S.C. § 4323-24. If the defendant

is a private or state employer, the plaintiff can file their USERRA claim directly in

federal court. See id. § 4323(a). When the defendant is a “Federal executive

agency,” the plaintiff must first submit their complaint to the Merit Systems

Protection Board (“MSPB”). See id. § 4324(b). If the plaintiff is dissatisfied with a

decision of the MSPB, they may appeal that decision to the United States Court of

Appeals for the Federal Circuit. See id. § 4324(d)(1).

6 We acknowledge the Postal Service’s suggestion that the national scope of

the Storey memo cuts against any causal link. (See Doc. 25 at 3). That argument is

more appropriately addressed at the Rule 56 stage or at trial, on a fully developed

factual record.

The Postal Service constitutes a federal executive agency for purposes of

USERRA. See 38 U.S.C. § 4303(5); see also Yates v. Merit Sys. Prot. Bd., 145 F.3d

1480, 1483 (Fed. Cir. 1998). Therefore, the MSPB and the Federal Circuit enjoy

jurisdiction over any USERRA claim Mastrella might possess against the Postal

Service—not this court. See 38 U.S.C. § 4324(b); Dew v. United States, 192 F.3d 366,

372 (2d Cir. 1999) (holding that the federal courts lack subject matter jurisdiction

over USERRA claims made against federal agencies). Mastrella’s USERRA claim

must be dismissed for lack of subject matter jurisdiction. See Dew, 192 F.3d at 372;

see also Gould Elecs., 220 F.3d at 178.

IV. Conclusion

We will grant in part and deny in part the Postal Service’s motion (Doc. 24)

to dismiss Mastrella’s amended complaint. To the extent Mastrella’s claims are

factually rather than legally deficient, we will grant Mastrella a final opportunity to

amend his pleading, consistent with this memorandum. See Grayson v. Mayview

State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). An appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER

Christopher C. Conner

United States District Judge

Middle District of Pennsylvania

Dated: November 18, 2021