BARRENTINE v. NEW JERSEY TRANSIT

Filing 56

OPINION. Signed by Judge Kevin McNulty on 9/2/14. (DD, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civ. No. 2:12-3936

GABE S. BARRENTINE,

(KM) (MAH)

Plaintiff,
V•

OPINION

NEW JERSEY TRANSIT, et al.,
Defendants.

KEVIN MCNULTY, U.S.D.J.:
This matter comes before the court on the motions of Defendants New
Jersey Transit and George Piper (Docket No. 37), and Defendants Amalgamated
Transit Union Local 822, Sherman Ariel, Calvin Osborn,’ and Vernice Ross
(Docket Nos. 40, 41) to dismiss the Second Amended Complaint. The Plaintiff,
Gabe S. Barrentine, alleges incidents of unacceptable racist speech or conduct,
but his complaint must nevertheless be dismissed. Barrentine failed to exhaust
his Title VII employment discrimination claim against the labor union, and the
individual defendants are not subject to suit under Title VII. In addition, he has
failed to plead facts sufficient to support a Title VII claim against any of the
defendants. Therefore, the motions to dismiss are GRANTED without prejudice
to the filing of a properly supported motion to amend the complaint.
I. BACKGROUND
Barrentine is a resident of Paterson, New Jersey. Second Amended
Complaint (Docket No. 27). He brings the Second Amended Complaint (“SAC”)
against New Jersey Transit Bus Operations (“NJT”), George Piper, Amalgamated
Transit Union Local 822 (“ATU”), Sherman Ariel, Calvin Osborn, and Vernice
Ross. Id. The SAC alleges violations of Title VII of the Civil Rights Act of 1964
Osborn was incorrectly pleaded as “Calvin Armstrong” in earlier versions of the
complaint, and is still listed under the incorrect name on the docket. The clerk will be
directed to correct the reference.
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(“Title VII”), the New Jersey Conscientious Employee Protection Act (“CEPA”),
the New Jersey Law Against Discrimination, and common law claims of
negligence, breach of the duty of good faith, intentional and negligent infliction
of emotional distress, and harassment. Id.
Because Barrentine’s Title VII claims arise under the laws of the United
States, the Court has original federal-question jurisdiction over this case
pursuant to 28 U.S.C. § 1331. Diversity of citizenship is absent. See 28 U.S.C.
§ 1332. The remaining state law claims are therefore in the case only pursuant
to the court’s supplemental jurisdiction. See 28 U.S.C. § 1367.

A. Factual Background
On June 25, 1988, Barrentine started working for NJT as a bus operator
out of the Market Street garage in Patterson, NJ. SAC ¶ 1. Defendant John
Piper was a supervisor at Barrentine’s garage. Id. ¶ 3. Defendant Ariel
Sherman, Piper’s supervisor and a close friend, was a member of ATU’s
executive board. Id. ¶j 13, 14. Defendants Calvin Osborn and Vernice Ross
were also NJT employees, union representatives, and members of ATU’s
executive board. Id. ¶j 15-18.
Supervisors at NJT rotated every three years. Id. ¶ 3. Barrentine alleges
that he experienced difficulties with Piper each time Piper was stationed at his
garage. Id. Barrentine alleges that Piper used racial epithets towards him on
several occasions from 2009 to 2011, referring to him as a “country ape” and
“monkey boy.” Id. These epithets were usually used in the presence of several
other (unnamed) employees while Barrentine played pool in the garage during
breaks. Id. Osborn, who also supervised Barrentine, allegedly used racial
epithets as well, referring to Barrentine as a “Nigger, Country Ape, and Monkey
Boy.” Id. ¶ 17.
In November 2008 Barrentine saw Piper after work hours at a go-go bar.
Id. ¶ 4. Piper told Barrentine that he would fire him if he told anyone that he
saw Piper at the bar. Id. Afterwards, believing that Barrentine had told other
co-workers about their encounter, Piper engaged in retaliatory behavior against
him. Id. Piper ordered two undercover inspectors to conduct an investigation by
riding Barrentine’s bus for two weeks. Id. ¶ 5. At the end of the observation
period, Barrentine was cited for not announcing stops and was suspended for
three days without pay. Id. Barrentine concedes that there was a regulation
requiring that bus drivers announce the stops, but alleges that the “custom
and practice” was otherwise. Id. On or about May 22, 2009, Piper suspended
Barrentine again, this time for not wearing his seatbelt. Id.
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Barrentine also had difficulties with Defendant Ross. During Ross’s
employment at NJT, she became pregnant by the father of Barrentine’s grand
nephew (in other words, the significant other of Barrentine’s niece). Id. ¶ 19.
Because that person continued to have a relationship with both Ross and
Barrentine’s niece, Ross was jealous, and her hostility carried over to
Barrentine himself. Id.
On May 21, 2009, Barrentine was awarded a safe driving citation for
driving his bus for 20 years without an accident. Id. ¶ 1. However, Barrentine
had a record of several disciplinary infractions. On April 6, 1995, Barrentine
tested positive for THC Metabolite during a random urine test and was
suspended for 30 days. Id. ¶ 2. He was referred to the Employee Assistance
Program (EAP), completed the program, and returned to full duty in May of
1995. Id. In the next 13 years, Barrentine was randomly drug tested five to six
times without further incident. Id. ¶ 5. Then, on December 17, 2009,
Barrentine tested positive for THC during a random test. Id. ¶ 6. He was placed
in EAP and suspended for 30 days. Id. Thereafter, he was required to undergo
weekly drug tests. His tests were negative until January 21, 2011, when he
tested positive for cocaine metabolite and was suspended immediately. Id.
Barrentine disputes the accuracy of the drug test. Id. ¶ 8. In 2009, he
had started taking prescription pain medication for a shoulder injury he
received while in the military. Id. Barrentine told Defendants that he was
taking OxyContin, Oxycodone, HCL, Nexium, Aciphex, cycopenzaprine, HCL,
and Naproxen. Id. He denied ever using cocaine. Id.
Barrentine’s ATU representative told him to obtain a letter from his
physician attesting to his condition and prescribed medications. Id. ¶ 9.
Barrentine alleges that his physician was “reluctant” to do so because “it was
not within his specialty.” Id. Still, Barrentine urged the union representative to
obtain an expert on his behalf, but ATU did not do so. Id.
On Barrentine’s behalf, ATU filed a grievance against NJT. Id. ¶ 10. ATU
represented Barrentine during all four steps of the grievance procedure, but
the grievance was denied at each step. Id. On July 8, 2011, ATU notified
Barrentine that he could appear before the executive board to discuss his right
to an arbitration. Id. Barrentine appeared before the board and requested that
the matter be arbitrated, and that ATU retain a toxicologist to challenge the lab
tests. Id. ¶ 11. He alleges that another reason he requested arbitration was that
he believed that Piper discriminated against him because of the go-go bar

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incident. Id. ¶ 11. The board, however, decided not to proceed to arbitration
and informed Barrentine of that decision on July 18, 2011. Id. ¶ 12.
B. Procedural History
Barrentine filed a charge with the Equal Employment Opportunity
Commission (“EEOC”) and the EEOC issued a right to sue letter on April 30,
2012. SAC ¶ 27. Barrentine filed his district court complaint pro se on June
27, 2012. (Docket No. 1). At the time of filing, Barrentine applied for permission
to proceed in forma pauperis and requested pro bono counsel. (Docket Nos. 1,
2). Hon. Esther Salas, the District Judge initially assigned to the case, denied
the request for pro bono counsel but granted the application to proceed in
forma pauperis. Barrentine filed an amended complaint pro se on July 13,
2012. (Docket No. 8).
The case was re-assigned to me on August 1, 2012. Barrentine retained
counsel who entered an appearance on his behalf on January 9, 2013. (Docket
No. 17). After obtaining an extension of time, ATU filed an answer to the
amended complaint on January 14, 2012. (Docket Nos. 14, 18). On April 26,
2013, NJT filed a motion to dismiss the complaint for failure to effect service
pursuant to Fed. R. Civ. P. 4(m). (Docket No. 25). Three days later, on April 29,
2013, Barrentine filed another amended complaint without leave of court.
(Docket No. 26). Then, on May 1, 2013, he filed another amended complaint.
(Docket No. 27). Although this was actually the fourth complaint that
Barrentine submitted, he and the Defendants refer to it as the “Second
Amended Complaint” (“SAC”). To avoid confusion, I do the same, and, like the
parties, I will treat this (Docket No. 27) as the currently operative complaint.
ATU answered the SAC on June 5, 2013. (Docket No. 33).
The motion to dismiss pursuant to Rule 4(m) was referred to Magistrate
Judge Michael A. Hammer for a report and recommendation. Judge Hammer
recommended denying the motion (Docket No. 34), and I adopted his report
and recommendation on August 28, 2013 (Docket No. 35).
On September 4, 2013, NJT and Piper moved
pursuant to Rule 12(b)(6). (Docket No. 37). On October
Ariel, Osborn, and Ross filed an answer with affirmative
39). Simultaneously, those individual Defendants and

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to dismiss the SAC
16, 2013, Defendants
defenses. (Docket No.
ATU (together, “ATU

Defendants”), moved to dismiss the complaint pursuant to Fed. R. 1 2(b)(1) and
2
12(b)(6). (Docket Nos. 39, 40, 41).
II. ANALYSIS
Barrentine’s SAC contains 11 counts: employment discrimination under
Title VII against NJT, Piper, Ariel, and Osborn (Count 1); hostile work
environment under the New Jersey CEPA statute against NJT, Piper, Ariel,
Armstrong and Ross (Counts 2 and 3); employment discrimination under Title
VII against ATU (Count 4); negligence against ATU and Ariel (Count 5); violation
of the duty of good faith against ATU and Ariel (Count 6); discrimination and
retaliation under the New Jersey LAD against all Defendants (Counts 7 and 8);
negligent infliction of emotional distress against all Defendants (Count 9);
intentional infliction of emotional distress against all Defendants (Count 10);
and harassment against all Defendants (Count 11).
NJT and Piper move to dismiss the SAC pursuant to Fed. R. Civ. P.
12(b)(6).
ATU and Defendants Ariel, Osborn, and Ross also move to dismiss the
SAC under Rule 12(b) (6), and move to dismiss the state law counts under Rule
12(b)(1). The ATU Defendants answered the complaint before moving to dismiss
it. See Docket Nos. 33, 39. Therefore, the motion to dismiss must be
construed as a motion for judgment on the pleadings pursuant to Fed. R. Civ.
P. 12(c). See Fed. R. Civ. P. 12(h)(2); Turbe v. Government of the Virgin Islands,
938 F.2d 427, 428 (3d Cir. 1991).
All Defendants challenge the SAC based on Barrentine’s failure to
exhaust his administrative remedies. Although raised under Rule 12(b)(6), this
contention goes to the jurisdiction of the Court because federal courts lack
jurisdiction to hear a Title VII claim unless the plaintiff has filed a charge with
the EEOC. Woodsori v. Scott Paper Co., 109 F.3d 913, 926 (3d Cir. 1997).
Failure to exhaust is therefore properly considered under Fed. R. Civ. P.
12(b)(1).

ATU’s motion to dismiss was originally filed without a notice of motion and
proposed order (Docket No. 40), and was re-filed on October 16, 2013 (Docket No. 41).
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In the case of Ariel, Osborn, and Ross, the answer was filed immediately before
the motion to dismiss. See Docket Nos. 39, 40.
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A. Legal Standards
1. Dismissal Pursuant to Fed. R. Civ. P. 12(b)(1)
Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction
may be either facial or factual attacks. See 2 Moore’s Federal Practice §
12.30[4j (3d ed. 2007); Mortensen v. First Fed. Say. & Loan Ass’n, 549 F.2d
884, 891 (3d Cir. 1977). A facial challenge asserts that the complaint does not
allege a sufficient basis for subject matter jurisdiction. Iwanowa v. Ford Motor
Co., 67 F. Supp. 2d 424, 438 (D.N.J. 1999). A court considering such a facial
challenge assumes that the allegations in the complaint are true, and may
dismiss the complaint only if it nevertheless appears that the plaintiff will not
be able to assert a colorable claim of subject matter jurisdiction. Cardio—Med.
Assoc., Ltd. v. Crozer—Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir. 1983);
Iwanowa, 67 F. Supp. 2d at 438. A factual challenge, however, attacks subjectmatter jurisdiction by challenging the truth (or completeness) of the
jurisdictional allegations set forth in the complaint. Mortensen, 549 F.2d at
891. Thus a factual jurisdictional proceeding may not occur until the plaintiff’s
allegations have been controverted. Id. at 891 n. 17. In a factual challenge, the
Court may consider evidence outside the pleadings. See United States ex rel.
Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d. Cir. 2007) (citing Gotha
v. United States, 115 F.3d 176, 178-79 (3d Cir. 1997)); Mortenson, 549 F.2d at
891.
As explained below, NJT’s motion controverts the facts alleged in the SAC
with extrinsic evidence. It is therefore a factual attack on the Court’s subject
matter jurisdiction, which does not confine the Court to the allegations of the
complaint or require that they be presumed true.
2. Dismissal Pursuant to Fed. R. Civ. P. 12(b)(6
Defendants also argue that Barrentine has failed to state a valid claim for
relief. The defense of failure to state a claim upon which relief can be granted is
most commonly asserted by motion under Federal Rule of Civil Procedure
12(b)(6). It may also be asserted in a motion for judgment on the pleadings
pursuant to Rule 12(c). See Fed. R. Civ. P. 12(h)(2). The same standard applies
under either Rule 12(b)(6) or Rule 12(c). Thrbe, 938 F.2d at 428.
To state a valid claim for relief, the Complaint must contain: (1) a short
and plain statement of the grounds for the court’s jurisdiction; (2) a short and

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plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought. Fed R. Civ. P. 8(a).
The defendant, as the moving party, bears the burden of showing that no
claim has been stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir.
2005). In deciding such a motion, a court must take the allegations of the
complaint as true and draw reasonable inferences in favor of the Plaintiff.
Phillzps v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). Although a
complaint need not contain detailed factual allegations, “a plaintiff’s obligation
to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Bell Ati. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the
factual allegations must be sufficient to raise a plaintiff’s right to relief above a
speculative level, such that it is “plausible on its face.” See id. at 570; see also
Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008).
The Third Circuit has usefully distilled the Rule 12(b)(6) analysis to three
steps:
To determine whether a complaint meets the pleading standard,
our analysis unfolds in three steps. First, we outline the elements
a plaintiff must plead to a state a claim for relief. See [Iqbal, 556
U.S.] at 675; Argueta, 643 F.3d at 73. Next, we peel away those
allegations that are no more than conclusions and thus not
entitled to the assumption of truth. See Iqbal, 556 U.S. at 679;
Argueta, 643 F.3d at 73. Finally, we look for well-pled factual
allegations, assume their veracity, and then “determine whether
they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S.
at 679; Argueta, 643 F.3d at 73. This last step 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.
Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).
B. Barrentine’s Federal Law Claims under Title VII

Because the Court’s jurisdiction over the SAC depends on Barrentine’s
federal Title VII claims, I begin my analysis there. Barrentine alleges that NJT,
through its employees Piper, Arid, and Osborn, engaged in discriminatory
conduct based on his race and national origin which resulted in his
termination of employment. SAC ¶J 23-25 (Count 1). Barrentine also alleges
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that ATU, through Arid, discriminated against him and that, as a result, his
grievance was not properly submitted for arbitration and his employment was
terminated. Id. ¶J 46-48 (Count 4).
As to each set of defendants, Barrentine’s complaint must (1) show exhaustion
of his remedies before the Equal Employment Opportunity Commission, and (2)
state a valid claim for relief.
1. Failure to Exhaust Claims Before EEOC
NJT and Piper argue that Barrentine cannot assert a Title VII claim
against Piper because the EEOC Charge of Discrimination he filed did not
name Piper. NJT Br. (Docket No. 37-1) at 6. The ATU Defendants assert the
4
same argument on their own behalf because Barrentine’s EEOC charge also
did not name ATU, Ariel, Osborn, or Ross. ATU Br. (Docket No. 40) at 6.
Before filing a civil Title VII suit, the plaintiff must wait for the EEOC to
investigate the charge and issue a right-to-sue letter. Barzanty v. Verizon PA,
Inc., 361 F. App’x 411, 413 (3d Cir. 2010) (not precedential) (citing Burgh v.
Borough Council, 251 F.3d 465, 470 (3d Cir. 2001)). The ensuing suit is limited
to claims that are within the scope of the initial administrative charge. Id.;
Antol v. Pemj, 82 F.3d 1291, 1295-96 (3d Cir. 1996). In reviewing the
complaint, district courts are instructed to take jurisdiction where “a
reasonable investigation of the charge as filed would have encompassed” the
claim in question. Hicks v. ABTAssocs., Inc., 572 F.2d 960, 967 (3d Cir. 1978);
see also Barzanty, 361 F. App’x at 413.
Barrentine alleges that he filed a charge with the EEOC and received a
right to sue letter on April 30, 2012. SAC ¶ 27. Defendants do not dispute

NJT and Piper also argue that Earrentine’s Title VII claim must be limited to a
claim of race-based discrimination because the EEOC Charge did not assert
discrimination based on national origin. NJT Br. at 4. In the EEOC charge, Barrentine
alleged that he was discriminated against on the basis of his race. Id. Barrentine does
not dispute this, but states that his national origin claim is also based on his being
African-American, and that there is no practical difference between the two claims.
Opp. to NJT (Docket No. 42) at 4. I agree that there is no practical difference between
the claims; Barrentine’s opposition confirms that he is pursuing only a claim of racebased discrimination—which is clearly set forth in the EEOC charge.
Although the SAC does not contain any details about the charge or the
subsequent EEOC investigation, Barrentine has sufficiently alleged exhaustion.
Hildebrarid v. Allegheny Cnty., 2014 WL 2898527, at 11, --F.3d-- (3d Cir. June 27,
2014) (holding that pleading of conditions precedent is not governed by the
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that; instead they argue that his SAC exceeds the scope of the charge. In the
6
charge, Barrentine alleged that NJT discriminated against him during the time
he was employed as a bus driver by subjecting him to “disparate terms and
conditions of employment” and terminating him on the basis of his race. NJT
Ex. A (Docket No. 37-1).
a. NJT
Barrentine alleges that NJT, through its employees Piper, Ariel, and
Osborn, engaged in discriminatory conduct towards him that resulted in his
termination. SAC ¶ 25. Barrentine filed his EEOC Charge against NJT, alleging
that he was subjected to disparate treatment and that he was terminated as a
result of his race. See NJT Ex. A. Therefore, Barrentine properly exhausted his
Title VII claim as to NJT.
b. ATU
Barrentine did not include ATU in his EEOC charge against NJT.
Accordingly, the survival of the claim against ATU depends on whether it is
within the scope of his EEOC Charge against NJT and the investigation arising
therefrom. Antol, 82 F.3d at 1295 (citing Waiters v. Parsons, 729 F.2d 233, 237
(3d Cir. 1984) (per curiam)). Barrentine’s allegations against ATU, a labor
union, are distinct from his claim against NJT, his employer. He alleges that
ATU discriminated against him by not properly presenting his grievance for
arbitration. SAC ¶ 48. That is separate conduct by ATU that occurred after NJT
terminated him.
ATU’s decision as to whether to pursue Barrentine’s grievance is not
within the scope of his EEOC Charge. A reasonable investigation of
Barrentine’s charge would have encompassed his complaints of workplace
discrimination, but would not have extended to ATU’s representation of
Barrentine or its decision regarding the arbitration of his grievance. Barrentine
attempts to bridge the gap in his opposition brief, arguing that Ross and Ariel
were affiliated with both the ATU and NJT (presumably as union
representatives), and that they were therefore involved in both the decision to
terminate and the decision not to arbitrate. P1. ATU Opp. (Docket No. 43) at 5.
Iqbal/Twombly standard; plaintiff may allege generally that conditions precedent
occurred or have been performed); Fed. R. Civ. P. 9(c).
NJT attached the charge to its motion to dismiss as Exhibit A. See NJT Motion,
Ex. A (Docket No. 37-1).

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9

This theory is not alleged in the SAC; in fact the SAC does not contain any
facts directly alleging that Ross and Ariel were involved in either decision.
Setting that pleading deficiency aside, the mere fact that two of the
individual defendants were associated with both the employer and the union is
not enough to bring Barrentine’s claim against ATU within the scope of his
claim against NJT. In the absence of some allegation linking the two, there is
no logical reason why any reasonable investigation of NJT’s conduct leading up
to Barrentine’s termination would encompass ATU’s grievance procedures
following his termination. Cf Barzanty, 361 F. App’x at 414 (finding failure to
exhaust as to hostile work environment claim where claims involved separate
incidents); Valdes v. New Jersey, Civ. No. 05—3510 (GEB), 2005 WL 3447618,
at *4 (D.N.J. Dec. 15, 2005) (dismissing a hostile work environment claim
because it was outside the “scope of a reasonable investigation” of the
retaliation claim in the EEOC charge).
Because the ATU claim falls outside the scope of the EEOC Charge, this
Court does not have jurisdiction over Barrentine’s Title VII claim against ATU.
Allowing Barrentine to pursue his claim against ATU without filing an EEOC
charge would defeat the purpose of the exhaustion requirement, which is to
afford the EEOC the opportunity to settle disputes and avoid unnecessary
action in court. Antol, 82 F.3d at 1296. Therefore, I must dismiss the Title VII
claim against ATU.
c. Individual Defendants
Barrentine did not file an EEOC Charge of discrimination against any of
the individual defendants, but that does not dispose of the exhaustion issue as
to them. See NJT Ex. A. As in the case of his claim against ATU, whether
Barrentine exhausted his claim against the individual defendants hinges on the
scope of the charge and subsequent investigation. Although Barrentine named
only NJT in the charge, his allegations of workplace discrimination concern the
actions of the employees individually named as defendants (Piper, Osborn,
Ariel, and Ross). A reasonable investigation of the charge would have
encompassed those actions—including the employees’ use of derogatory
epithets and unfair discipline—that were the basis for his claim against his
employer. Therefore, Barrentine’s EEOC Charge adequately exhausted his Title

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VII workplace discrimination
Barzanty, 361 F. App’x at 413.

claim

against

the

individual

7
defendants.

2. Failure to State a Claim
Putting aside Barrentine’s failure to exhaust as to ATU, the factual
allegations in the SAC are not sufficient to state a right to relief under Title VII
that is “plausible on its face” as to any of the defendants. Twombly, 550 U.S. at
570.
To state a prima facie case of discrimination under Title VII, a plaintiff
must show that (1) he belongs to a protected class; (2) he was qualified for the
position; (3) he was subject to an adverse employment action despite being
qualified; and (4) under circumstances that raise an inference of discriminatory
action, the employer continued to seek out individuals with qualifications
similar to the plaintiffs to fill the position. Sarullo v. U.S. Postal Serv., 352 F.3d
789, 797 (3d Cir. 2003) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802, 93 S.Ct. 1817 (1973); Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 348
n. 1, 352, 356 (3d Cir. 1999)).
a. NJT
Assuming arguendo that the SAC sufficiently supports the first three
elements of a Title VII claim against NJT, Barrentine’s allegations fall short as
to the fourth element of the claim: discriminatory action and continued
attempts to fill the position with a similarly qualified individual.
Barrentine alleges various incidents of race-based harassment by his
fellow employees Piper and Osborn, SAC ¶j 3, 6, 17, but he does not connect
that conduct to his termination. In fact, Barrentine does not allege with
specificity any facts regarding his termination. Barrentine alleges that after a
positive drug test in 1995, he tested positive again during a “random urine
test” on December 17, 2009. Id. ¶ 6. He was suspended after both incidents
and after the second positive test, he was tested weekly. He tested positive for a
This finding does not encompass the allegations against Ariel related to ATU’s
representation of Barrentine during the grievance process. See discussion of claim
against ATU at II.B. 1.b, supra.
Furthermore, my finding that Barrentine exhausted his claim against the
individuals does not imply that the claim is otherwise viable. Had he brought such an
administrative claim, the EEOC would probably have denied or dismissed it. See
discussion at II.B.2.c, infra (explaining that Title VII claim may be brought only
against employer, not against individual co-employees).
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third time on January 21, 2011. Id. ¶ 7. (Barrentine does not allege that the
tests were administered in a discriminatory manner.) He alleges that he was
suspended again after the last test, and then describes his grievance process
with ATU and its ultimate decision not to pursue arbitration of his grievance.
Id. ¶J 7-12. The Court is left to infer that he was terminated after, perhaps as a
result of, the suspension. No other allegations are offered as to the
circumstances of the termination, including the identity of the person who
made the decision to terminate Barrentine and the proffered reason for his
dismissal.
As required, I take the SAC’s allegations as true and view them in the
light most favorable to the plaintiff, but they are not sufficient to raise
Barrentine’s right to relief above a speculative level. Umland, 542 F.3d at 64. To
state a valid claim for relief under Title VII, Barrentine must allege facts
showing that his termination raises an inference of discriminatory animus. It is
not enough to allege discriminatory treatment and separately allege that
disciplinary action was taken after an unrelated incident. Barrentine’s Title VII
claim is therefore dismissed as to NJT.
b. ATU

While I premise my dismissal of Barrentine’s Title VII claim against ATU
on failure to exhaust, for plaintiff’s guidance I state that I would also likely
dismiss it, in its current form, for failure to state a claim. In an appropriate
case, a labor union such as ATU may be a proper defendant to a Title VII claim.
Goodman v. Lukens Steel Co., 482 U.S. 656, 669, 107 S.Ct. 2617, 96 L.FDd.2d
572 (1987) (holding that a union “discriminates” within the meaning of Title VII
when it “pursue[s] a policy of rejecting disparate-treatment grievances
presented by blacks solely because the claims assert racial bias and would be
very troublesome to process”); 42 U.S.C. § 2000e-2.
Under Section 2000e-2, a labor organization may be liable for engaging
in any of the following practices:
(1) to exclude or to expel from its membership, or otherwise to
discriminate against, any individual because of his race, color,
religion, sex, or national origin; (2) to limit, segregate, or classify
its membership or applicants for membership, or to classify or fail
or refuse to refer for employment any individual, in any way which
would deprive or tend to deprive any individual of employment
opportunities, or would limit such employment opportunities or
otherwise adversely affect his status as an employee or as an
12

applicant for employment, because of such individual’s race, color,
religion, sex, or national origin; or (3) to cause or attempt to cause
an employer to discriminate against an individual in violation of
this section.
Barrentine’s claim that ATU discriminated against him by not properly
presenting his grievance for arbitration might fall under subsection (1), which
encompasses claims that the union itself “otherwise discriminate[d]” against
the plaintiff. See Goodman, 482 U.S. at 669; Hubbell v. World Kitchen, LLC, 717
F. Supp.2d 494, 502 (W.D. Penn. 2010).8
However, Barrentine has not alleged facts tending to show that the union
had a discriminatory motive when it declined to prosecute his grievance. He
alleges that ATU engaged in discriminatory conduct through Sherman Ariel, his
union representative. SAC ¶j 45-48. Ariel allegedly was indirectly responsible
for the union’s decision because he did not convince ATU to have a toxicologist
examine Barrentine’s urine test results after Barrentine failed to get a
physician’s note from his doctor confirming his medications. Id. Barrentine also
alleges that Arid was a close friend of Defendant Piper and had used racial
epithets towards the defendant. Id. ¶ 46. Barrentine does not allege that Ariel
played any part in the decision to deny arbitration, and he also does not allege
any facts showing that ATU’s actions were otherwise discriminatory. The SAC
thus contains no link between the alleged discriminatory conduct and ATU’s
decision not to pursue the grievance. Therefore, Barrentine fails to state a
claim on which relief could be granted as to his Title VII claim against ATU. See
Anjelino v. New York Times Co., 200 F.3d 73, 95-96 (3d Cir. 1999) (affirming
dismissal where record did not indicate that the union itseif engaged in
discriminatory conduct). Any amended pleading should address these
deficiencies.

Although Goodman addressed a discriminatory policy espoused by the union, at
least two district courts have found that a single act of discrimination in the form of a
“deliberate choice by a union not to process a grievance” may give rise to a claim
against the union under Title VII. Hubbell, 717 F. Supp.2d at 501 (citing King v.
Laborers Int’l Union of N. Am., Union Local No. 818, 443 F.2d 273, 278 (6th Cir. 1971));
Young-Smith v. Bayer Health Care, LLC, 788 F.Supp.2d 792, 805 (N.D. md. 2011)
(citing Hubbell). I find the reasoning of these cases persuasive. Title VII does not only
protect against policies of discrimination; it also prohibits discrete acts of
discrimination. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S.Ct.
2061, 153 L.Ed.2d 106 (2002) (“Each incident of discrimination and each retaliatory
adverse employment decision constitutes a separate actionable ‘unlawful employment
practice. “‘).
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c. Individual Defendants
Barrentine’s Title VII claim against the individual defendants fails as a
matter of law because they are not “employers” within the meaning of the
statute. Title VII imposes liability on an “employer,” defined as “a person
engaged in an industry affecting commerce who has fifteen or more employees
and any agent of such a person.” Sheridan v. E.I. DuPont de Nemours and
Co., 100 F.3d 1061, 1077 (3d Cir. 1996) (quoting 42 U.S.C. § 2000(e)-2(a)). It
might be argued that such an “agent” could be the plaintiff’s co-employee. But
the Third circuit, like a clear majority of courts, has held that there is no
individual liability under Title VII. Id. at 1077-78. Therefore Barrentine’s Title
VII claim fails as a matter of law as to Defendants Piper, Ariel, Osborn and
Ross.
C. Remaining State Law Claims
Because Barrentine’s federal claims under Title VII are dismissed, the
Court no longer has original federal-question jurisdiction of the case pursuant
to 28 U.S.C. § 1331. When a court has dismissed all claims over which it had
original jurisdiction, the supplemental jurisdiction statute grants the court
discretion to dismiss the remaining state-law claims. 28 U.S.C. § 1367(c)(3).
Because no substantial federal question is presented, and there has been no
substantial investment of federal-court resources in adjudicating the state
claims, dismissal seems the better course. I will therefore exercise my
discretion to dismiss the remaining state law claims in Counts 2, 3, 5, 6, 7, 8,
9, 10, and 11 for lack of jurisdiction.
III.

Conclusion

For the foregoing reasons, the Second Amended Complaint is dismissed.
Because this is the Court’s first review of the substance of the allegations, that
dismissal is without prejudice to the filing of a properly supported motion to
amend the complaint. See Arthur v. Maersk, Inc., 434 F.3d 196, 204 (3d Cir.
2006). If such a motion is not filed within 30 days, this dismissal will become
final. An appropriate Order accompanies this Opinion.

Kevin McNulty
United States District Judge
Dated: September 2, 2014
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