Mastrella v. Brennan
MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Christopher C. Conner on 11/18/2021. (mw)
Case 1:20-cv-01037-CCC Document 33 Filed 11/18/21 Page 1 of 18
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROBERT J. MASTRELLA,
LOUIS DEJOY, POSTMASTER
GENERAL, UNITED STATES
CIVIL ACTION NO. 1:20-CV-1037
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.
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
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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.
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
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
Case 1:20-cv-01037-CCC Document 33 Filed 11/18/21 Page 3 of 18
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
Case 1:20-cv-01037-CCC Document 33 Filed 11/18/21 Page 4 of 18
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
Mastrella’s complaint does not address whether the Harrisburg processing
and distribution center remained above or fell below the 197-employee threshold
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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
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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.
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”
Case 1:20-cv-01037-CCC Document 33 Filed 11/18/21 Page 7 of 18
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).
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
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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.
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);
Case 1:20-cv-01037-CCC Document 33 Filed 11/18/21 Page 9 of 18
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.
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;
Case 1:20-cv-01037-CCC Document 33 Filed 11/18/21 Page 10 of 18
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)
Case 1:20-cv-01037-CCC Document 33 Filed 11/18/21 Page 11 of 18
(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,
Case 1:20-cv-01037-CCC Document 33 Filed 11/18/21 Page 12 of 18
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.
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.
Case 1:20-cv-01037-CCC Document 33 Filed 11/18/21 Page 13 of 18
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).
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
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.
Case 1:20-cv-01037-CCC Document 33 Filed 11/18/21 Page 14 of 18
(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.
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
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.)
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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 two15
Case 1:20-cv-01037-CCC Document 33 Filed 11/18/21 Page 16 of 18
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
Case 1:20-cv-01037-CCC Document 33 Filed 11/18/21 Page 17 of 18
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).
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).
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
Case 1:20-cv-01037-CCC Document 33 Filed 11/18/21 Page 18 of 18
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.
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
November 18, 2021
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