MURRAY v. DEJOY

Not for Publication

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

DOMINIQUE MURRAY,

Civil Action No. 23-0423 (ES) (MAH)

Plaintiff,

OPINION

v.

LOUIS DEJOY, et al.,

Defendants.

SALAS, DISTRICT JUDGE

Before the Court is defendant United States Postmaster General Louis DeJoy’s

(“Defendant”) motion to dismiss (D.E. No. 39 (“Motion” or “Mot.”)) the Amended Complaint

(D.E. No. 32 (“Amended Complaint” or “Am. Compl.”)) filed by plaintiff Dominique Murray

(“Plaintiff”), a former United States Postal Service (“USPS”) employee.1 Plaintiff filed an

opposition (D.E. No. 47 (“Opp. Br.”)), and Defendant filed a reply (D.E. No. 50 (“Reply Br.”)).

Having considered the parties’ submissions, the Court decides this matter without oral argument.

See Fed. R. Civ. P. 78(b); L. Civ. R. 78.1(b). For the following reasons, Defendant’s Motion is

GRANTED, and Plaintiff’s Amended Complaint is DISMISSED with prejudice.

I. BACKGROUND

A. Factual Allegations

Plaintiff’s Amended Complaint includes essentially the same factual allegations set forth

1 Plaintiff brought her original complaint against Defendant and USPS employees Yolanda Gross, Brandy

Chisolm, and Tony Khairah, as well as fictitious defendants “John Does (1-10),” “Jane Does (1-10),” and “ABC Corp.

(1-10)” (together, the “Fictitious Defendants”). (See D.E. No. 1 (“Complaint” or “Compl.”)). However, Plaintiff

brings her Amended Complaint solely against Defendant and the Fictitious Defendants. (See Am. Compl.).

in her initial Complaint. (Compare Am. Compl., with Compl.). In light of this, and in the interest

of judicial economy and efficiency, the Court incorporates by reference the factual background set

forth in its September 3, 2024 Opinion. (See D.E. No. 29 at 1–2).

B. Procedural History

On January 25, 2023, Plaintiff initiated this employment retaliation and discrimination

action by filing the Complaint against Defendant and USPS employees Yolanda Gross, Brandy

Chisolm, and Tony Khairah, and asserting two causes of action: (i) alleged “Discrimination for

Engaging in Protected Activity in Violation of 42 U.S.C. § 2000e-3,” i.e., Title VII of the Civil

Rights Act of 1964 (Count I); and (ii) alleged “Discrimination for Engaging in Protected Activity

in Violation of 42 U.S.C. § 1983” (Count II). (Compl. at 2–4).

On January 22, 2024, Defendant, along with then-defendants Yolanda Gross, Brandy

Chisolm, and Tony Khairah, jointly filed a motion to dismiss Plaintiff’s Complaint (see generally

D.E. No. 20), which the Court granted on September 3, 2024 (see generally D.E. No. 29; see also

D.E. No. 30). The Court dismissed Plaintiff’s Title VII claim against USPS employees Yolanda

Gross, Brandy Chisolm, and Tony Khairah with prejudice but dismissed Plaintiff’s remaining

claims without prejudice. (See generally D.E. No. 29). The Court stated that Plaintiff’s Title VII

claim against the USPS employees had to be dismissed with prejudice “because Third Circuit

jurisprudence is clear that individual employees, including supervisors, are not subject to liability

under Title VII and because courts in this Circuit have consistently found official capacity suits

against individual supervisory employees to be barred under Title VII[.]” (D.E. No. 29 at 6). With

respect to Plaintiff’s claims against Defendant, the Court found Plaintiff failed to state a Title VII

claim against Defendant because she failed to allege that she was retaliated against due to

complaints about conduct prohibited by Title VII. (Id. at 6−9). The Court found Plaintiff likewise

failed to state a § 1983 claim because she did not allege that any of the Defendants were acting

under color of state law when they purportedly violated Plaintiff’s constitutional rights and also

did not allege any facts establishing a conspiracy between any of the Defendants and state officials.

(Id. at 10−13). Because the Court dismissed Plaintiff’s claims on other grounds, the Court did not

reach Defendants’ additional argument that Plaintiff’s Title VII claim should also be dismissed

because she failed to exhaust her administrative remedies. (Id. at 9 n.3). The Court gave Plaintiff

leave to file an amended complaint to cure the deficiencies outlined in its September 3, 2024

Opinion. (D.E. No. 30 at 1–2).

On October 2, 2024, Plaintiff filed the Amended Complaint against Defendant, including

the same factual allegations as in the Complaint but reframing them as two new causes of action:

(i) alleged “Retaliation for Engaging in Protected Activity” in violation of “5 U.S.C.A § 2302(b)(8)

et seq.,” i.e., the Whistleblower Protection Act (the “WPA”) (Count I); and (ii) alleged

“Discrimination for Engaging in Protected Activity” in violation of “Plaintiff’s due process and

First Amendment Rights under the U.S. Constitution”2 (Count II). (Am. Compl. at 2–43).4

On November 22, 2024, Defendant filed a motion to dismiss Plaintiff’s Amended

Complaint, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Mot.; see also

D.E. No. 39-1 (“Mov. Br.”)).5 On January 7, 2025, Plaintiff filed an opposition (Opp. Br.), and

on January 23, 2025, Defendant filed a reply (Reply Br.). The Motion is fully briefed.

2 Plaintiff describes this cause of action as “First Amendment retaliation harassment” in her opposition to

Defendant’s Motion. (Opp. Br. at 1).

3 Because Plaintiff does not use consecutively numbered paragraphs in the Amended Complaint, pin cites to

the Amended Complaint herein refer to the page numbers automatically generated by the Court’s CM/ECF case

management system. (See generally Am. Compl.).

4 Plaintiff seemingly abandons her Title VII and § 1983 claims asserted in her initial Complaint. (Contrast

Compl., with Am. Compl.).

5 Defendant also submitted the declaration of Leslie Cedola, a Manager of EEO Services at USPS, and six

exhibits in support of his Motion. (See D.E. Nos. 39-2 (Declaration of Leslie Cedola, dated Jan. 22, 2024 (“Cedola

Decl.”)) & D.E. Nos. 39-3 through 39-8).

II. LEGAL STANDARD

A. Rule 12(b)(1)

Federal courts have limited jurisdiction and can adjudicate cases and controversies only as

permitted under Article III of the Constitution. See U.S. Const. art. III, § 2; see also Phila. Fed’n

of Tchrs. v. Ridge, 150 F.3d 319, 322–23 (3d Cir. 1998) (“The existence of a case and controversy

is a prerequisite to all federal actions, including those for declaratory or injunctive relief.” (citation

omitted)). Unless affirmatively demonstrated, a federal court is presumed to lack subject matter

jurisdiction. See Ridge, 150 F.3d at 323 (citing Renne v. Geary, 501 U.S. 312, 316 (1991)). The

party seeking to invoke federal jurisdiction has the burden of establishing subject matter

jurisdiction. See Common Cause of Pa. v. Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009) (citing

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006)). Under Federal Rule of Civil

Procedure 12, “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the

court must dismiss the action.” Fed. R. Civ. P. 12(h)(3) (emphasis added).

“Rule 12(b)(1) governs jurisdictional challenges to a complaint.” Otto v. Wells Fargo Bank,

N.A., No. 15-8240, 2016 WL 8677313, at *2 (D.N.J. July 15, 2016). “When a motion under Rule

12 is based on more than one ground, the court should consider the 12(b)(1) challenge first because

if it must dismiss the complaint for lack of subject matter jurisdiction, all other defenses and

objections become moot.” Dickerson v. Bank of Am., N.A., No. 12-3922, 2013 WL 1163483, at

*1 (D.N.J. Mar. 19, 2013) (quoting In re Corestates Tr. Fee Litig., 837 F. Supp. 104, 105 (E.D.

Pa. 1993)).

A motion to dismiss under Rule 12(b)(1) “attacks [] the right of a plaintiff to be heard in

Federal court.” Cohen v. Kurtzman, 45 F. Supp. 2d 423, 428 (D.N.J. 1999). In deciding a 12(b)(1)

motion, “a court must first determine whether the party presents a facial or factual attack because

the distinction determines how the pleading is reviewed.” Leadbeater v. JP Morgan Chase, N.A.,

No. 16-7655, 2017 WL 4790384, at *3 (D.N.J. Oct. 24, 2017). “When a party moves to dismiss

prior to answering the complaint . . . the motion is generally considered a facial attack.” Id. (citing

Const. Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014)). A facial challenge “considers a

claim on its face and asserts that it is insufficient to invoke the subject matter jurisdiction of the

court because, for example, it does not present a question of federal law,” or because there is no

diversity of citizenship among the parties, or because there is some other jurisdictional defect.

Aichele, 757 F.3d at 358. “In reviewing a facial attack, ‘the court must only consider the

allegations of the complaint and documents referenced therein and attached thereto, in the light

most favorable to the plaintiff.’” Id. (quoting In re Schering Plough Corp. Intron/Temodar

Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012)). Thus, when a Rule 12(b)(1) motion

is a facial attack, it is handled much like a Rule 12(b)(6) motion, and allegations in the complaint

must be accepted as true. Leadbeater, 2017 WL 4790384, at *3. On the other hand, when the

Rule 12(b)(1) motion is a factual attack, “no presumptive truthfulness attaches to plaintiff’s

allegations, and the existence of disputed material facts will not preclude the trial court from

evaluating for itself the merits of jurisdictional claims.” Perry v. OCNAC #1 Fed. C.U., 423 F.

Supp. 3d 67, 73 (D.N.J. 2019) (quoting Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884,

891 (3d Cir. 1977)); see also Aichele, 757 F.3d at 358 (explaining the differences between a facial

attack and a factual attack under Rule 12(b)(1)).

Here, Defendant’s attack appears to be facial (see Mov. Br. at 12–17), and accordingly the

Court will only consider the allegations in the Amended Complaint and the documents

incorporated by reference or integral to Plaintiff’s claims therein in determining whether it has

subject matter jurisdiction over Plaintiff’s claims.

B. Rule 12(b)(6)

In assessing whether a complaint states a cause of action sufficient to survive dismissal

under Rule 12(b)(6), the Court accepts “all well-pleaded allegations as true and draw[s] all

reasonable inferences in favor of the plaintiff.” City of Cambridge Ret. Sys. v. Altisource Asset

Mgmt. Corp., 908 F.3d 872, 878 (3d Cir. 2018) (citation omitted). “[T]hreadbare recitals of the

elements of a cause of action, legal conclusions, and conclusory statements” are all disregarded.

Id. at 878–79 (quoting James v. City of Wilkes-Barre, 700 F.3d 675, 681 (3d Cir. 2012)). The

“complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face,” and a claim is facially plausible when the plaintiff “pleads factual content

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

alleged.” Zuber v. Boscov’s, 871 F.3d 255, 258 (3d Cir. 2017) (first quoting Santiago v.

Warminster Twp., 629 F.3d 121, 128 (3d Cir. 2010); and then quoting Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009)).

While the Court generally “may not consider matters extraneous to the pleadings” when

deciding a Rule 12(b)(6) motion, In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426

(3d Cir. 1997) (citation omitted), an exception to this general rule provides that the Court may also

consider “exhibits attached to the complaint, matters of public record, as well as undisputedly

authentic documents if the complainant’s claims are based upon these documents.” Mayer v.

Belichick, 605 F.3d 223, 230 (3d Cir. 2010); see also Buck v. Hampton Twp. Sch. Dist., 452 F.3d

256, 260 (3d Cir. 2006) (noting that pursuant to Rule 12(b)(6) the Court “may consider documents

that are attached to or submitted with the complaint, and any ‘matters incorporated by reference or

integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items

appearing in the record of the case’” (alteration in original) (first citing Pryor v. Nat’l Collegiate

Athletic Ass’n, 288 F.3d 548, 559 (3d Cir. 2002); and then quoting 5B Charles A. Wright & Arthur

R. Miller, Federal Practice & Procedure § 1357 (3d ed. 2004))). Thus, “a court may consider ‘an

undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if

the plaintiff’s claims are based on the document.’” Fuller v. Rozlin Fin. Grp., Inc., No. 19-20608,

2020 WL 5036215, at *2 (D.N.J. Aug. 26, 2020) (quoting Clemons v. Midland Credit Mgmt., Inc.,

No. 18-16883, 2019 WL 3336421, at *2 (D.N.J. July 25, 2019)). This includes an Equal

Employment Opportunity Commission (“EEOC”) complaint and any related documents, which

courts may consider as “undisputed documents referenced in the complaint,” documents “central

to plaintiff’s claim, or as information which is a matter of public record,” without converting a

Rule 12(b)(6) motion into one for summary judgment.” Rogan v. Giant Eagle, Inc., 113 F. Supp.

2d 777, 782 (W.D. Pa. 2000); see also Ruddy v. U.S. Postal Serv., 455 F. App’x 279, 283 (3d Cir.

2011) (finding “[t]he Magistrate Judge and District Court properly relied on [the former USPS

employee plaintiff’s] EEOC file, which [he] referenced in his complaint and which is integral to

his claim”); Baig v. Nuclear Regul. Comm’n, No. 10-0842, 2011 WL 2214660, at *5 (D.N.J. June

6, 2011) (examining a plaintiff’s EEOC complaint and related documents at motion to dismiss

stage to determine whether plaintiff had exhausted administrative remedies prior to filing suit in

the district court).

Here, Plaintiff references her EEOC complaint in her Amended Complaint (see Am. Compl.

at 2), and while she did not attach an EEOC complaint to her Amended Complaint, she previously

submitted a copy of her EEOC complaint to the Court as an attachment to an unrelated motion not

addressed herein. (See D.E. No. 12 at 25–32). Defendant also attached a copy of Plaintiff’s EEOC

Complaint to its Motion to Dismiss. (See D.E. No. 39-5 (“EEOC Complaint” or “EEOC Compl.”)).

Thus, the Court may properly consider Plaintiff’s EEOC Complaint and related EEOC documents

as “undisputed documents referenced in the complaint or central to the plaintiff’s claim” without

converting Defendant’s Motion to one for summary judgment. See Rogan, 113 F. Supp. 2d at 782.

III. DISCUSSION

For the reasons set forth below, the Court finds that Plaintiff’s Amended Complaint must

be dismissed for lack of subject matter jurisdiction, failure to state a claim, and/or failure to exhaust

administrative remedies.

A. Plaintiff’s WPA Claim (Count I)

In Count I of the Amended Complaint, Plaintiff alleges unlawful retaliation for engaging

in protected activity in violation of the WPA. (Am. Compl. at 2–3). Specifically, Plaintiff alleges

“[u]pon information and belief” that on January 26, 2022, her former supervisor, Yolanda Gross,

“sent [her] to do overtime on the Danny Vip machine in the work area where the employees who

Plaintiff reported that were stealing time were located” and where USPS employee Brandy

Chisolm subsequently yelled at Plaintiff and threatened to slap her. (Id. at 3). Plaintiff then alleges,

again “[u]pon information and belief,” that on or about February 22, 2022, Defendant told Plaintiff

she was being removed from the USPS, effective March 20, 2022, for the January 26, 2022

altercation. (Id.). Plaintiff states that “Brandy Chisolm was among the employees that Plaintiff

reported was stealing time” and that “Yolanda Gross set her up to be confronted and threatened by

Brandy Chisolm” and placed her in that work area “in retaliation for Plaintiff engaging in a

protected act.” (Id.). Plaintiff alleges these retaliatory actions constitute a WPA violation. (Id.).

Defendant argues Plaintiff’s WPA claim should be dismissed for a lack of subject matter

jurisdiction because the WPA does not apply to the USPS or its employees and, as such, Plaintiff

is barred from seeking relief under the WPA. (Mov. Br. at 12–15). In opposition, Plaintiff does

not refute this argument and instead contends she plausibly alleged a prima facie case of retaliatory

discrimination for engaging in a protected activity. (Opp. Br. at 6–10). However, in support of

this assertion, Plaintiff cites the elements of a prima facie case for a Title VII retaliation claim, not

a WPA retaliation claim. (See id. at 6−7). In other words, Plaintiff does not dispute, and arguably

concedes, that the WPA does not apply to the USPS or its employees. In reply, Defendant states

Plaintiff fails to address his argument that she is barred from seeking relief under the WPA, which

expressly excludes the USPS and its employees from its provisions and which courts have so held,

and thus Defendant reiterates the Court should dismiss that claim. (Reply Br. at 1−3). For the

reasons set forth below, the Court agrees with Defendant and finds that Plaintiff’s WPA claim

must be dismissed for lack of subject matter jurisdiction.

“The WPA protects federal employees against agency reprisal for whistleblowing activities,

such as disclosing illegal conduct, gross mismanagement, gross waste of funds, or acts presenting

substantial dangers to health and safety.” Fleeger v. Principi, 221 F. App’x 111, 115 (3d Cir.

2007) (citing 5 U.S.C. § 2302(b)(8)). Under the WPA, a “personnel action” may be brought by an

“employee in . . . a covered position in an agency” or “an employee . . . in a Government

corporation.” 5 U.S.C. § 2302(a)(2)(A)(xii). An “agency” is defined as an “Executive agency,” 5

U.S.C. § 2302(a)(2)(C), which is further defined as “an Executive department, a Government

corporation, and an independent establishment.” 5 U.S.C. § 105.6 Additionally, § 2105(e)

provides that “[e]xcept as otherwise provided by law, an employee of the United States Postal

Service or of the Postal Regulatory Commission is deemed not an employee for purposes of this

6 5 U.S.C. § 101 constrains the definition of “Executive department” to an exhaustive list of several

governmental departments, which excludes the USPS. See 5 U.S.C. § 101. Similarly, in defining “Government

corporation,” 5 U.S.C. § 2302(a)(2)(A)(xii) cross-references 31 U.S.C. § 9101, which contains an exhaustive list of

“mixed-ownership Government corporation[s]” and “wholly owned Government corporation[s]” that excludes the

USPS. See 5 U.S.C. § 2302(a)(2)(A)(xii); 31 U.S.C. § 9101(1)–(3). Additionally, the statute defines an “independent

establishment” as “an establishment in the executive branch (other than the United States Postal Service or the Postal

Regulatory Commission).” 5 U.S.C. § 104(1) (emphasis added).

title.” 5 U.S.C. § 2105(e) (emphasis added). Thus, the plain statutory language of the WPA

reflects that the Act does not apply to the USPS or its employees. See, e.g., Hickok v. U.S. Postal

Serv., No. 04-0573, 2006 WL 3760137, at *6 (D. Utah Dec. 18, 2006) (“From a plain reading of

the [WPA] it is clear that the USPS is not covered by the Act.”).

Indeed, courts in the Third Circuit have held that the WPA does not apply to the USPS.

See Madden v. Runyon, 899 F. Supp. 217, 225 (E.D. Pa. 1995) (explaining “the Postal Service is

not subject to the WPA” and granting summary judgment for USPS and Postmaster General on

USPS employee’s WPA claim); see also Kassin v. U.S. Postal Serv., No. 11-1482, 2011 WL

6002836, at *2 (D.N.J. Nov. 30, 2011) (noting federal contractor’s whistleblower retaliation claims

against USPS cannot fall under the WPA “because that Act does not apply to the Postal Service”).

Courts outside the Third Circuit have similarly held the WPA does not apply to the USPS.

See McDermott v. Donahoe, 465 F. App’x 686, 687 (9th Cir. 2012) (“The district court properly

dismissed [a USPS employee’s] claims under the WPA because it does not apply to the United

States Postal Service.” (citations omitted)); Nazario-Acosta v. Potter, 140 F. App’x 657, 658 (9th

Cir. 2005) (“The district court properly concluded that [the plaintiff] could not bring a claim under

the Whistleblower Protection Act because the Act does not apply to the Postal Service.”); dela

Cruz v. Brennan, No. 19-1140, 2019 WL 13073479, at *3 (N.D. Cal. Nov. 4, 2019) (“Plaintiff’s

purported claims under the WPA are not cognizable, as that statute does not apply to the USPS.”);

Mallard v. Brennan, No. 14-0342, 2015 WL 2092545, at *8 (D. Me. May 5, 2015) (dismissing

USPS employee’s WPA claim against Postmaster General for lack of subject matter jurisdiction

because USPS employees are not covered by the WPA); Dev v. Donahoe, No. 12-3026, 2014 WL

12772202, at *2 (E.D. Cal. Apr. 22, 2014) (concluding a USPS employee plaintiff “cannot

maintain his claim for violation of the Whistleblower Protection Act” because “[t]hat act does not

apply to the United States Postal Service.” (citations omitted)); Eastman v. Donahoe, No. 10-0906,

2011 WL 5374729, at *6 (E.D. Mo. Nov. 8, 2011) (“Because the [WPA] is not applicable to the

Postal Service, plaintiff, a Postal Service employee, cannot bring an independent action against

the Postal Service under the Act based on whistle blowing activities.”).

Similarly, Federal Circuit cases reviewing administrative appeals of WPA claim dismissals

brought by USPS employees have also held the WPA does not cover claims by USPS employees

against the USPS. See Booker v. Merit Sys. Prot. Bd., 982 F.2d 517, 519 (Fed. Cir. 1992)

(affirming Merit Systems Protection Board’s (“MSRB”) decision to dismiss USPS employee’s

WPA claim against USPS for lack of jurisdiction because WPA claims may not be brought against

the Postal Service), cert. denied, 510 U.S. 862 (1993); see also Cyr v. Merit Sys. Prot. Bd., No.

00-3217, 2000 WL 1480605, at *1 (Fed. Cir. Oct. 6, 2000) (per curiam) (affirming MSRB’s

dismissal of USPS employee’s WPA claim against USPS because “the Postal Service is not an

agency for the purposes of title 5” (citing Booker, 982 F.2d at 519)); Dancer v. Merit Sys. Prot.

Bd., No. 96-3366, 1997 WL 14049, at *1 (Fed. Cir. Jan. 16, 1997) (per curiam) (same).

Thus, it is clear based on the plain statutory language of the WPA and the relevant legal

authority that the WPA does not apply to the USPS or its employees. Here, Plaintiff was, at all

times relevant to this lawsuit, a USPS employee (see generally Am. Compl.), and as such, she

cannot maintain a lawsuit against Defendant under the WPA because the WPA does not apply to

the USPS. Accordingly, Plaintiff’s WPA retaliation claim must be dismissed.

Therefore, Defendant’s Motion is GRANTED as to Plaintiff’s WPA retaliation claim, and

accordingly Count I of the Amended Complaint is DISMISSED for lack of subject matter

jurisdiction.7

7 Because the Court dismisses Plaintiff’s WPA claim for lack of subject matter jurisdiction, it does not reach

and need not address whether she alleged facts sufficient to survive dismissal under Rule 12(b)(6) for this claim. See,

B. Plaintiff’s Constitutional Claims (Count II)

In Count II of the Amended Complaint, Plaintiff alleges “Discrimination for Engaging in

Protected Activity in Violation [of] Plaintiff’s due process and First Amendment Rights under the

U.S. Constitution.” (Am. Compl. at 4). Specifically, Plaintiff alleges the retaliatory acts of

Defendant and USPS employees Yolanda Gross, Tony Khairah, and Brandy Chisolm violated her

constitutional rights—specifically, her right to free speech and to petition the government for

redress of grievances under the First Amendment, and her right to substantive due process and to

petition the government for redress of grievances under the Fourteenth Amendment. (Id.).

Defendant argues Plaintiff’s constitutional claims should be dismissed for lack of subject

matter jurisdiction because Plaintiff fails to identify any statutory provision that waives the USPS’s

sovereign immunity for lawsuits seeking damages based on constitutional claims. (Mov. Br. at

15–17). Accordingly, Defendant contends the Court lacks subject matter jurisdiction over any of

Plaintiff’s constitutional claims seeking damages from Defendant in his official capacity. (Id. at

17). To the extent Plaintiff is seeking damages against Defendant in his individual capacity for

alleged constitutional violations, Defendant contends those claims should also be dismissed. (See

Mov. Br. at 16 n.5). Specifically, Defendant acknowledges that pursuant to Bivens v. Six Unknown

Named Agents, 403 U.S. 388 (1971), the Supreme Court has allowed a plaintiff to sue a federal

e.g., Mallard, 2015 WL 2092545, at *7–9 (concluding a USPS employee plaintiff’s “WPA claim must be dismissed

pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction” and not reaching whether the plaintiff “alleged facts

sufficient to survive dismissal under Rule 12(b)(6) or whether she exhausted her administrative remedies”). However,

the Court notes that even if Plaintiff could bring such a claim against Defendant, that claim would be dismissed for

failure to exhaust administrative remedies as Plaintiff does not allege and has not shown that she exhausted

administrative remedies with respect to her WPA claim. The Third Circuit has stated that “[t]he Civil Service Reform

Act (‘CSRA’) provides the exclusive remedy for claims brought pursuant to the WPA” and “[u]nder no circumstances

does the WPA grant the District Court jurisdiction to entertain a whistleblower cause of action brought directly before

it in the first instance.” Fleeger, 221 F. App’x at 115−16 (alteration in original) (quoting Stella v. Mineta, 284 F.3d

135, 142 (D.C. Cir. 2002)). Here, Plaintiff has not alleged or shown that she pursued her administrative remedies

under the CSRA with respect to her WPA claim (see Am. Compl.; Opp. Br.), and Plaintiff also did not include any

WPA claim in her EEOC Complaint (see EEOC Compl.).

employee in their individual capacity for constitutional violations in three limited circumstances,

but asserts that he does not construe Plaintiff’s Amended Complaint as raising any claims against

Defendant in his individual capacity, nor does Plaintiff request the Court treat her constitutional

claims as being brought under Bivens. (Id.). Alternatively, Defendant argues Plaintiff’s

constitutional claims should be dismissed for failure to state a claim and failure to exhaust

administrative remedies because her “[EEOC Complaint] in EEO Case No. 1C-631-0042-22

establishes she failed to raise any claims of whistleblowing or constitutional claims.”8 (Id. at

17−19; see also Reply Br. at 8−10).

In opposition, Plaintiff asserts (i) she is only bringing a First Amendment retaliation claim9

(see Opp. Br. at 1–3, 7 & 12), and (ii) that “Congress enacted a general waiver of sovereign

immunity” for the USPS, pursuant to the Postal Reorganization Act of 1970, 39 U.S.C. § 401 (Opp.

Br. at 10). Accordingly, Plaintiff contends Defendant is not immune from Plaintiff’s constitutional

claims. (Id.).

In reply, Defendant counters that Plaintiff “fails to address the Third Circuit case law

8 In support of its argument, Defendant cites to Bush v. Lucas, 462 U.S. 367 (1983) (Mov. Br. at 17 n.6), where

the Supreme Court declined to fashion a judicial remedy allowing a federal employee to recover monetary damages

from a supervisor who allegedly discharged the employee in retaliation for his exercise of First Amendment rights

because the CSRA provided “an elaborate, comprehensive scheme that encompasses substantive provisions forbidding

arbitrary action by supervisors and procedures . . . by which improper action may be redressed.” 462 U.S. at 385.

Defendant contends that following Bush, courts have concluded federal employees may not maintain actions for

monetary damages for violations of constitutional rights arising out of the employment relationship, to the extent the

CSRA applies and provides remedies. (Mov. Br. at 17 n.6). Indeed, the Third Circuit has held that a former USPS

employee may not maintain a cause of action for First Amendment retaliation seeking monetary damages against the

USPS on this basis. See Ruddy, 455 F. App’x at 285 (“As [plaintiff’s] First Amendment retaliation claim arises from

the context of his federal employment [at USPS], the CSRA is his sole remedy and we hold that the District Court

lacked subject matter jurisdiction to hear that claim.” (citing Sarullo, v. U.S. Postal Serv., 352 F.3d 789, 795–97 (3d

Cir. 2003))).

9 The Court notes that Plaintiff’s Amended Complaint alleges a First Amendment discrimination claim (see

Am. Compl. at 4), whereas Plaintiff’s opposition brief appears to clarify that she is instead alleging a First Amendment

retaliation claim (see Opp. Br. at 1–3, 7 & 12). For purposes of this Opinion, it does not matter whether the Court

considers Plaintiff’s First Amendment claim as a discrimination claim or a retaliation claim because either way, that

claim must be dismissed for the reasons discussed herein.

holding that the United States—including the [USPS]—has not waived sovereign immunity for

constitutional claims.” (Reply Br. at 1 & 7−8). Defendant notes that Plaintiff instead attempts to

predicate her First Amendment retaliation claim under 42 U.S.C. §§ 1983, 1985, & 1986, but the

cases that Plaintiff cites in support of this argument are inapposite because Plaintiff does not allege

any facts supporting a cause of action under §§ 1983, 1985, or 1986 in her Amended Complaint.10

(Id. at 3−4; see generally Am. Compl.). Additionally, Defendant asserts that the Court can dismiss

Plaintiff’s Fourteenth Amendment claim as unopposed because Plaintiff clarified that she is only

asserting a First Amendment claim, and she failed to address Defendant’s arguments regarding her

Fourteenth Amendment claim. (See Reply Br. at 3). Defendant also states that to the extent

Plaintiff is attempting to resurrect her Title VII claim, she has failed to cure the deficiencies the

Court identified in her Complaint and thus fails to plausibly allege a Title VII claim. (Id. at 4–5).

For the reasons set forth below, the Court agrees with Defendant and finds that Plaintiff’s

constitutional claims must be dismissed for lack of subject matter jurisdiction or, in the alternative,

for failure to state a claim and/or failure to exhaust administrative remedies.

As an initial matter, Plaintiff appears to abandon her Fourteenth Amendment claim in

opposition to Defendant’s Motion and does not address any of Defendant’s arguments with respect

to that claim. Accordingly, that claim is DISMISSED. To the extent Plaintiff did not intend to

abandon that claim, it would be dismissed for the same reasons as Plaintiff’s First Amendment

claim discussed below.

10 Further, the Court dismissed Plaintiff’s § 1983 claims asserted in her initial Complaint because she did not

allege any of the defendants were acting under the color of state law, as opposed to federal law (see D.E. No. 29 at

12–13), and Plaintiff’s Amended Complaint fails to cure this deficiency (compare Compl., with Am. Compl.).

Additionally, the Court agrees with Defendant that Plaintiff has not plausibly alleged facts in her Amended Complaint

that support a cause of action under §§ 1983, 1985, or 1986. (See Reply Br. at 3−4).

i. Sovereign Immunity

“The doctrine of sovereign immunity bars all suits against the United States except where

such immunity is explicitly waived by Congress.” Castoran v. Pollak, No. 14-2531, 2017 WL

4805202, at *4 (D.N.J. Oct. 25, 2017) (citing United States v. Mitchell, 445 U.S. 535, 538 (1980)).

“[A]bsent a waiver, sovereign immunity shields from suit the United States,” federal agencies, and

federal “employees sued in their official capacities.” Balice v. United States, 763 F. App’x 154,

156 (3d Cir. 2019) (first citing Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994); then

citing Beneficial Consumer Disc. Co. v. Poltonowicz, 47 F.3d 91, 94 (3d Cir. 1995); and then citing

Chinchello v. Fenton, 805 F.2d 126, 130 n.4 (3d Cir. 1986)). In bringing a constitutional claim

against the USPS or Postmaster General, a plaintiff must “identify [a] waiver of sovereign

immunity that would give the [district court] subject matter jurisdiction over her Complaint.” See

Kassin, 2011 WL 6002836, at *3. “Neither the United States nor its agencies have waived

sovereign immunity for constitutional claims.” Balice, 763 F. App’x at 156 (citing United States

v. Testan, 424 U.S. 392, 400–02 (1976)); see also Castoran, 2017 WL 4805202, at *4 (dismissing

a plaintiff’s constitutional claims against the USPS, explaining that “the United States Post[al]

Service has not waived sovereign immunity for constitutional claims”).

“[T]he Postal Service enjoys federal sovereign immunity absent a waiver.” Dolan v. U.S.

Postal Serv., 546 U.S. 481, 484 (2006). The Postal Reorganization Act (“PRA”) “generally waives

the immunity of the Postal Service from suit by giving it the power to sue and be sued in its official

name.” Id. (citation modified); see also Haney v. Brennan, No. 16-6186, 2018 WL 11486309, at

*3 (E.D. Pa. Jan. 3, 2018) (“Under the Postal Reorganization Act of 1970 (‘PRA’), the Postal

Service has the power ‘to sue and be sued in its official name.’ This section has been recognized

as a broad but not unlimited consent on the part of the United States to suits against the Postal

Service. The waiver of immunity applies unless the suit is ‘not consistent with the statutory or

constitutional scheme, [where] an implied restriction of the general authority is necessary to avoid

grave interference with the performance of a governmental function, or [where] for other reasons

it was plainly the purpose of Congress to use the “sue and be sued” clause in a narrow sense.’”

(alterations in original) (citations omitted)). However, notwithstanding the PRA, courts in the

Third Circuit have dismissed constitutional claims against the USPS for lack of subject matter

jurisdiction. See, e.g., Kassin, 2011 WL 6002836, at *3 (dismissing plaintiff’s constitutional

claims against the USPS, Postmaster General, Attorney General of the United States for lack of

subject matter jurisdiction because plaintiff failed to “identify any potential waiver of sovereign

immunity that may correspond to [plaintiff’s] claim”); Riley v. Potter, No. 08-5167, 2010 WL

125841, at *5 (D.N.J. Jan. 7, 2010) (dismissing constitutional claims against the USPS “[b]ecause

the United States government has not waived sovereign immunity in this case”); Castoran, 2017

WL 4805202, at *5 (“Because the United States Postal Service, a federal agency, has not waived

its sovereign immunity, [p]laintiff’s constitutional claims against the United States Postal Service

must be dismissed.”).

Here, Plaintiff fails to address this Third Circuit case law and Defendant’s arguments that

the USPS has not waived sovereign immunity for constitutional claims, nor has Plaintiff cited to

any contrary legal authority in support of its position that the USPS has waived sovereign

immunity for constitutional claims and specifically for a First Amendment retaliation claim.

Accordingly, the Court finds Plaintiff’s constitutional claims against Defendant must be

DISMISSED for lack of subject matter jurisdiction.

Additionally, “[a]lthough federal courts have exercised jurisdiction to hear nonstatutory

claims under special circumstances, e.g., Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971), these are not present when a statutory scheme provides adequate

relief, revealing a congressional intent to limit the available remedies.” Stevenson v. U.S. Postal

Serv., 316 F. App’x 145, 147 (3d Cir. 2009) (first citing Schweiker v. Chilicky, 487 U.S. 412

(1988); and then citing Bush, 462 U.S. 367). The CSRA is such a statute. See id. “It provides

‘the full scheme of remedies available’ to federal employees in cases arising out of the employment

context.” Id. (quoting Sarullo, 352 F.3d at 795). Thus, where a plaintiff’s nonstatutory Bivens

claim arises out of the employment context, the court does not have subject matter jurisdiction to

consider its merits. See id. As Defendant notes, in Bush v. Lucas, “the Supreme Court declined

to create a judicial remedy allowing a federal civil servant to recover money damages from a

supervisor for a retaliatory discharge for having exercised his First Amendment rights where the

CSRA provided ‘comprehensive procedural and substantive provisions giving meaningful

remedies against the United States’ for employment-related claims” and “Courts have concluded

that, to the extent that the CSRA does apply and provides remedies, a federal employee may not

maintain a separate action for money damages.” (Mov. Br. at 17 n.6 (citations omitted)).

For example, in Ruddy v. United States Postal Service, the Third Circuit affirmed the

district court’s dismissal of a plaintiff’s First Amendment retaliation claim as precluded under the

CSRA, concluding that because the plaintiff’s “First Amendment retaliation claim ar[ose] from

the context of his federal employment, the CSRA [wa]s his sole remedy” and holding “that the

District Court lacked subject matter jurisdiction to hear that claim.” 455 F. App’x at 285; see also

Semper v. Gomez, 747 F.3d 229, 237 (3d Cir. 2014) (stating “it is undisputed that the CSRA

precludes current or former federal employees from bringing a Bivens damages action for alleged

constitutional violations arising out of the employment context”); Sarullo, 352 F.3d at 797 (holding

the district court lacked subject matter jurisdiction to hear a former USPS employee’s Bivens claim

because it arose in the employment context for which “the CSRA provide[d] him with his sole

remedy” and accordingly that “claim was barred by the comprehensive statutory scheme provided

in the CSRA”); Marley v. Donahue, 133 F. Supp. 3d 706, 718–19 (D.N.J. 2015) (dismissing with

prejudice a former USPS employee’s constitutional claims “stemming from her allegations of

workplace discrimination and/or retaliation” because the court found those “constitutional claims

solely ar[o]se out of her allegations of workplace discrimination and retaliation” (citing cases)).

Similarly here, because Plaintiff’s constitutional claims arise solely out of her allegations

of discrimination and/or retaliation during her time of employment with the USPS, the Court finds

it lacks subject matter jurisdiction over those claims, and accordingly those claims must be

DISMISSED.

ii. Failure to Exhaust Administrative Remedies

Even assuming the Court had subject matter jurisdiction over Plaintiff’s constitutional

claims and/or that the USPS somehow waived sovereign immunity as to those claims, those claims

would alternatively be dismissed for failure to state a claim and/or failure to exhaust administrative

remedies.

“When Congress establishes what it deems to be adequate remedial mechanisms for

constitutional violations, additional remedies should not be judicially created.” Cox v. Henzy, No.

96-0583, 1997 WL 164270, at *2 (E.D. Pa. Apr. 1, 1997) (citing Schweiker, 487 U.S. at 423), aff’d,

124 F.3d 186 (3d Cir. 1997). “[U]nder Bush and its sequelae, federal employees may be barred

from bringing suit for matters covered by a comprehensive remedial scheme, even though the

statutory scheme does not afford complete relief.” Id. (citing cases). In a variety of contexts, “the

Supreme Court has concluded ‘that a precisely drawn, detailed statute pre-empts more general

remedies.’” Marley, 133 F. Supp. 3d at 718 (quoting Brown v. Gen. Servs. Admin., 425 U.S. 820,

835 (1967)). “Indeed, extant authority reflects that Title VII, the ADEA, and the Rehabilitation

Act provide the exclusive remedy for claims of discrimination and/or retaliation in federal

employment, and foreclose a federal employee plaintiff from asserting parallel constitutional

claims.” Id. (emphasis in original) (citing cases); see also Wilson v. U.S. Postal Serv., 814 F.

App’x 719, 721 (3d Cir. 2020) (“Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–16,

and the regulations promulgated thereunder, create ‘the exclusive remedy for federal employees

who allege discrimination in the workplace.’” (quoting Robinson v. Dalton, 107 F.3d 1018, 1020–

21 (3d Cir. 1997))); Stevenson, 316 F. App’x at 147 (noting “Title VII and the Rehabilitation Act

provide the exclusive remedies . . . for redressing discrimination in federal employment”).

“Critically, [] these claims are subject to extensive exhaustion requirements and limitations

periods[.]” Marley, 133 F. Supp. 3d at 715. “Specifically, a federal employee seeking redress for

unlawful workplace discrimination and/or retaliation must first exhaust administrative remedies

against the federal employer prior to filing suit in federal court.” Id. (citing cases).

Additionally, the CSRA “prohibits federal employers from taking adverse actions against

employees because of ‘the exercise of any appeal, complaint, or grievance right granted by any

law, rule, or regulation.’” Ruddy v. U.S. Postal Serv., No. 09-1984, 2011 WL 1043339, at *4 (M.D.

Pa. Mar. 18, 2011) (quoting 5 U.S.C. § 2302(b)(9)(A)), aff’d, 455 F. App’x 279 (3d Cir. 2011).

“The CSRA provides remedies for employees subject to any prohibited personnel practice,

including First Amendment retaliation.” Id. (citing 5 U.S.C. § 1214). In Bush v. Lucas, the

Supreme Court held that for federal employees who contend their supervisors violated their First

Amendment rights, “where claims ‘arise out of an employment relationship that is governed by

comprehensive procedural and substantive provisions giving meaningful remedies against the

United States, . . . it would be inappropriate for us to supplement that regulatory scheme with a

new judicial remedy.’” Ruddy, 455 F. App’x at 285 (alteration in original) (quoting Bush, 462

U.S. at 368, 390).

Further, the PRA, 39 U.S.C. § 201 et seq., “sets forth ‘a comprehensive scheme governing

employment relations within the Postal Service.’” Cox, 1997 WL 164270, at *1 (quoting 39 U.S.C.

§§ 1001–11 & 1202–09). The PRA “incorporates Chapter 75 of the CSRA, 5 U.S.C. §§ 7501 et

seq., which establishes procedural safeguards for employees sustaining adverse personnel actions”

and which “is also a comprehensive statutory scheme” that “governs the administrative and judicial

review of adverse personnel actions against federal employees.” Id. (citing United States v. Fausto,

484 U.S. 439, 443 (1988)).

In determining whether a plaintiff “was required to exhaust her administrative remedies,”

the relevant test “is whether the acts alleged in the subsequent [district court complaint] . . . are

fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom.”

Fleeger, 221 F. App’x at 116 (alterations in original) (quoting Antol, 82 F.3d at 1295); see also

Waiters v. Parsons, 729 F. 2d 233, 237 (3d Cir. 1984). “An EEO complaint does not encompass

a given claim merely because investigation would reveal facts that could support the given claim.”

Fleeger, 221 F. App’x at 116 (citing Antol, 82 F.3d at 1296). Instead, “the parameters of the civil

action in the district court are defined by the scope of the EEOC investigation which can reasonably

be expected to grow out of the charge of discrimination.” Id. (quoting Atkinson v. LaFayette Coll.,

460 F.3d 447, 453 (3d Cir. 2006)). This means a “[p]laintiff must explicitly raise and pursue [a]

WPA claim in [her] EEOC filing in order to qualify as an exhaustion of [] administrative remedies.”

Baig, 2011 WL 2214660, at *5 (citing Fleeger, 221 F. App’x at 116). This is so “[e]ven if

Plaintiff’s filings with the EEOC . . . contained sufficient factual allegations to support a WPA

claim.” Id. (citing Fleeger, 221 F. App’x at 116).

The Third Circuit “recognizes a modification to the exhaustion requirement[,]” which

“excuses a plaintiff from filing a second administrative complaint of discrimination when that

complaint can reasonably be expected to grow out of the initial charge of discrimination and the

plaintiff can still bring suit on the earlier complaint, but this exhaustion exception is narrow,

however, and dependent upon the fact that any new acts occurred during the pendency of the EEOC

review process.” Green v. Potter, 687 F. Supp. 2d 502, 515 (D.N.J. 2009) (citation modified),

aff’d sub nom., Green v. Postmaster Gen. of U.S., 437 F. App’x 174 (3d Cir. 2011).

Here, Title VII, the PRA, and/or the CSRA provide statutory remedies for Plaintiff’s

constitutional claims of discrimination and/or retaliation arising from her former employment with

the USPS, but Plaintiff has not alleged or shown that she has exhausted her administrative remedies

under any of these statutes or otherwise with respect to these claims. (See generally Am. Compl.;

Opp. Br.; EEOC Compl.). Plaintiff’s EEOC Complaint describes a “harassment - non-sexual”

incident between Plaintiff and Yolanda Gross that occurred on November 5, 2021 (see EEOC

Compl.), whereas Plaintiff’s Amended Complaint alleges discrimination and/or retaliation based

on events that occurred in January 2022 (see Am. Compl. at 2–4). Thus, Defendant argues

Plaintiff’s constitutional claims should be dismissed for failure to exhaust administrative remedies.

(Mov. Br. at 17–19; Reply Br. at 8−10). Plaintiff concedes that exhausting administrative remedies

is a prerequisite to bringing suit in a federal district court but contends that her constitutional claims

are within the scope of her EEOC Complaint and/or that she should be excused from exhausting

her administrative remedies. (Opp. Br. at 10–12). However, in support of this argument, Plaintiff

relies on cases involving Title VII claims (id. at 10−11), which Plaintiff explicitly did not assert in

her Amended Complaint (see generally Am. Compl.). Accordingly, those cases do not support

Plaintiff’s argument with respect to her WPA retaliation and constitutional claims. Indeed,

Plaintiff does not dispute that she failed to include any specific claims of retaliation or

constitutional claims in her EEOC Complaint or otherwise during the administrative remedies

process. (See Opp. Br.). Additionally, as Defendant notes, the alleged January 2022 events that

led to the alleged retaliation are not “new acts” that could reasonably be expected to grow out of

Plaintiff’s EEOC charge of discrimination because those events happened before she filed her

EEOC Complaint in February 2022. (Reply Br. at 10 (citing Waiters, 729 F. 2d at 237)).

Therefore, the Court finds that Plaintiff has failed to exhaust her administrative remedies

with respect to her whistleblower retaliation and constitutional claims as Plaintiff failed to raise

those claims in her EEOC Complaint, and it is undisputed Plaintiff did not otherwise file a separate

formal EEOC complaint for these claims. See Baig, 2011 WL 2214660, at *1 n.2, *5 (finding

plaintiff did not raise whistleblower retaliation claim in EEOC filing where plaintiff’s EEOC

Complaint alleged only race and age discrimination). Plaintiff’s alleged retaliation claims based

on events that occurred in January 2022 are not encompassed by, nor within the scope of, Plaintiff’s

EEOC Complaint that involved a separate alleged harassment incident that occurred several

months before in November 2021. Additionally, Plaintiff has not alleged that Title VII and/or the

CSRA are inapplicable to her whistleblower retaliation and constitutional claims. (See Am.

Compl.; Opp. Br.). Indeed, it appears those statutes provide the exclusive remedies for Plaintiff’s

discrimination and/or retaliation claims. See Marley, 133 F. Supp. 3d at 718; Ruddy, 455 F. App’x

at 285; Fleeger, 221 F. App’x at 115−16 (citation omitted); Wilson, 814 F. App’x at 721 (citation

omitted); Stevenson, 316 F. App’x at 147. Yet Plaintiff has not alleged or shown that she exhausted

her administrative remedies under those statutes with respect to those claims. Additionally,

Plaintiff has not cited any other legal authority that would permit her to separately assert such

claims against Defendant. Further, Plaintiff has also not shown how or why she should be excused

from failure to exhaust her administrative remedies.

Thus, Plaintiff’s constitutional claims must, in the alternative, be dismissed for failure to

exhaust administrative remedies and/or failure to state a claim. See Green v. Postmaster Gen. of

U.S., 437 F. App’x 174, 177–78 (3d Cir. 2011) (noting failure to exhaust administrative remedies

“is typically fatal to a civil claim” (citing Robinson, 107 F.3d at 1021)). Accordingly, Plaintiff’s

constitutional claims in Count II of the Amended Complaint are DISMISSED.11

Lastly, because Plaintiff previously had leave to amend her Complaint and again fails to

plausibly state a claim, and because it appears that any attempt to amend would be futile, the Court

concludes Plaintiff’s Amended Complaint should be DISMISSED with prejudice. See, e.g.,

Grohs v. Fratalone, No. 13-7870, 2015 WL 6122147, at *6 (D.N.J. Oct. 16, 2015) (dismissing

federal claims with prejudice where the court provided plaintiff two opportunities to sufficiently

state a claim and where the alleged claims “re-pleaded in the amended complaint add[ed]

defendants or alternative legal theories, but [we]re based on the same facts or claims” as in the

original complaint and did not remedy the deficiencies previously identified by the court).

IV. CONCLUSION

Based on the foregoing, Defendant’s Motion to Dismiss is GRANTED, and Plaintiff’s

Amended Complaint is DISMISSED with prejudice. An appropriate Order follows.

11 To the extent Plaintiff is attempting to revive her Title VII claim through her opposition to Defendant’s

Motion (see Opp. Br. at 6−7 & 11−12), that attempt is improper. “It is well-settled that Plaintiff cannot amend a

complaint through the filing of a brief, or through arguments set forth in a brief opposing a dispositive

motion.” Ibrahim v. DeFilippo, No. 19-5021, 2021 WL 753898, at *8 (D.N.J. Feb. 26, 2021). “Indeed, ‘[i]t is

axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss.’” Id. (quoting

Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988)). Moreover, even if it was proper, that

claim would be dismissed for the reasons set forth in the Court’s September 3, 2024 Opinion (see D.E. No. 29) because

Plaintiff failed to cure the deficiencies the Court identified with respect to her previously alleged Title VII claim;

instead, Plaintiff’s Amended Complaint contains the same factual allegations as her initial Complaint (compare

Compl., with Am. Compl.), reframed as different causes of action.

Dated: September 17, 2025 /s/ Esther Salas

Esther Salas, U.S.D.J.