FREEMAN v. BRENNAN et al

Filing 24

MEMORANDUM OPINION & ORDER granting in part, denying in part 15 Motion to Dismiss for Lack of Jurisdiction, Motion to Dismiss for Failure to State a Claim filed by MEGAN J. BRENNAN. Signed by Magistrate Judge Robert C. Mitchell on 2/25/2016. (spc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ALFONSO FREEMAN,
Plaintiff,
vs
MEGAN J. BRENNAN, UNITED STATES
POSTMASTER GENERAL,
Defendant.

)
)
)
)
)
)
)
)

Civil Action No. 15-1102
Magistrate Judge Mitchell

MEMORANDUM OPINION AND ORDER
Plaintiff, Alfonso Freeman, has filed an Amended Complaint against Defendant, Megan
J. Brennan, United States Postmaster General, alleging claims of racial discrimination under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (Title VII), and state
law arising out of his termination, effective June 22, 2014, from his position as a Motor Vehicle
Operator with the United States Postal Service (Postal Service).
Currently pending before the Court is a motion to dismiss the Amended Complaint, filed
by Defendant pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Plaintiff has
filed a brief in opposition and Defendant has filed a reply brief. For the reasons that follow, the
motion will be granted with respect to Plaintiff’s claim arising under the Veterans’ Preference
Act and denied in all other respects.
Facts
Plaintiff is an African American male who on approximately February 4, 2013, began his
employment as a Motor Vehicle Operator with the Postal Service at the facility located at 1001
California Avenue. (Am. Compl. ¶ 5.)1 On May 13, 2014, Plaintiff was involved in a motor
vehicle accident, his third in two years. He states that the Postal Service vehicle he was

1

ECF No. 10.

operating tapped the bumper of the car in front of him, with no apparent damage, due to a failure
of the air braking system (brake tensioner) on the vehicle. Plaintiff admitted that he was in
bumper-to-bumper traffic when, because of the failure of the air braking system, the Postal
Service truck he was driving tapped the vehicle in front of him. Plaintiff was alleged to have
been checking his schedule because the Postal Service dispatch called him and advised him to
pick mail from a location outside of his regular territory and he was checking his schedule for the
time constraints. He notes that there is no policy that the drivers must pull over when notified by
dispatch and that, had dispatch not called and placed additional work on him while in transit that
was outside of his regularly scheduled pick-ups and deliveries, there would have been no need
for him to be required to refer to his schedule. He was never advised that a claim was made for
any damage and the Postal Service never alleged that any damage occurred. (Am. Compl. ¶¶ 5662.)
Plaintiff received a letter dated May 20, 2014, which notified him that he was being
removed from the Postal Service effective June 22, 2014. (Am. Compl. ¶ 6 & Ex. 1.) He notes
that this letter made reference to two prior incidents, neither of which (he alleges) was an at-fault
accident. (Am. Compl. ¶¶ 63-64.)
He filed a Step 1 Grievance, which was denied by the Postal Service on June 5, 2014.
(Def.’s Br. Support Mot. Dismiss Ex. A.)2 On June 13, 2014, a Step 2 Grievance Appeal Form
was filed on Plaintiff’s behalf by the American Postal Workers Union, AFL-CIO, (“Union”).
(Am. Compl. ¶ 7 & Ex. 2.) It was the Union’s position that he was charged with being in a motor
vehicle accident on May 13, 2014 and that the discipline lacked just cause and was punitive in
nature rather than corrective. (Am. Compl. ¶ 8 & Ex. 3.) It was the Postal Service Management

2

ECF No. 16.
2

position that he was terminated for his inability to perform the required duties of his position.
Specifically, Plaintiff failed to operate his vehicle in a safe manner. (Am. Compl. ¶ 9 & Ex. 3.)
By letter dated July 22, 2014, the grievance was denied. (Am. Compl. ¶ 10 & Ex. 3.)
On August 1, 2014, the Union filed an appeal to arbitration on Plaintiff’s behalf pursuant
to Article 15, section 2 step 2(h) of the Collective Bargaining Agreement (“CBA”). (Am. Compl.
¶ 12 & Ex. 4.) Because it was unable to resolve the matter, the Union filed a direct appeal to
arbitration on September 4, 2014. (Am. Compl. ¶ 13 & Ex. 5.)
By letter dated February 9, 2015, Plaintiff was notified that the grievance was scheduled
for a hearing on February 26, 2015. (Am. Compl. ¶ 14 & Ex. 6.) On approximately February 25,
2015, Plaintiff was contacted by an official from his Union and notified that his grievance (No.
14-1392) was being withdrawn from the arbitration hearing scheduled for February 26, 2015.
(Am. Compl. ¶ 15.) The withdrawal was based on a settlement agreement reached between the
Union and the Postal Service, in which Plaintiff would be compensated in the amount of
$2,355.00, minus standard deductions, for pay in lieu of the work hours during the 30 days prior
to removal. The agreement also provided that Plaintiff would be given 30 days in which to
resign, rather than suffer a removal, and that if he did so, the removal would be expunged from
his record. (Pl.’s Br. Opp’n Ex. 3 at 3-4.)3
Plaintiff asserts that he did not receive any written notification or reason as to why the
grievance was withdrawn or why the Union felt it could not win his arbitration. (Am. Compl.
¶¶ 16-17.) Plaintiff never consented to the withdrawal of his grievance; but Charles Pugar, the
President of the Union, and Michael Kulikowski, Representative of the Postal Service, agreed to
withdraw the grievance without consulting him. (Am. Compl. ¶¶ 18-19.)

3

ECF No. 22.
3

He also notes that he was never advised of his rights under the Veterans’ Preference Act
nor advised of the Veterans’ Preference provision pursuant to Article 16, Section 16.07 of the
CBA. (Am. Compl. ¶¶ 20-21 & Ex. 11 at 37 § 16.07.) Plaintiff indicates that he entered the
Marine Corps, on June 22, 1979. (Am. Compl. ¶ 22.) He was a Gasoline Diesel Mechanic or
M.O.S. and was stationed at the Marine Corp Airstation at Cherry Point, North Carolina. (Am.
Compl. ¶ 23.) Plaintiff earned the rank of E3, Lance Corporal. (Am. Compl. ¶ 24.) Plaintiff’s
service ended in September, 1983 and he was honorably discharged from the Marine Corp. (Am.
Compl. ¶ 25.)
On March 23, 2015, with the assistance of his attorney, Plaintiff contacted an EEO
counselor and prepared an “Information for Pre-Complaint Counseling.” (Am. Compl. ¶ 26;
ECF No. 22 Ex. 4.) On May 5, 2015, Plaintiff filed a charge of discrimination with the
Pennsylvania Human Relations Commission (“PHRC”), which was dual filed with the Equal
Employment Opportunity Commission (“EEOC”). (Am. Compl. ¶ 27 & Ex. 7.) By letter dated
June 19, 2015, Plaintiff was notified of his right to file a formal EEO complaint, which he did.
(Am. Compl. ¶ 28; ECF No. 16 Ex. D at EEO 00021; Ex. E at 009.) Plaintiff notes that he did
not receive the letter until June 25, 2015. (ECF No. 22 Ex. 1, USPS Tracking Signature
Confirmation.) On July 6, 2015, within fifteen (15) days of receipt of the notice, Plaintiff timely
filed a counseled formal EEO complaint. (Am. Compl. ¶ 29; ECF No. 16 Ex. E at EEO 0000900012.) On August 5, 2015, the formal EEO complaint was dismissed. (Am. Compl. ¶ 30; ECF
No. 16 Ex. F at EEO00001-00003.)
Plaintiff was advised that the proper forum for a complainant to have raised a challenge
to decisions made by the Union was through the grievance process itself or before the National
Labor Relations Board (“NLRB”). (Am. Compl. ¶ 31; ECF No. 16 Ex. F at EEO 00001-00003.)

4

On August 11, 2015, Plaintiff filed a Complaint with the NLRB and notified both the Union and
the Postal Service. (Am. Compl. ¶ 32 & Ex. 8.) On August 13, 2015, he filed a revised
Complaint with the NLRB. (Am. Compl. ¶ 33 & Ex. 9.) The August 5, 2015 Notice of Dismissal
also advised Plaintiff that he had a right to file a civil action in federal court in lieu of filing an
appeal with the EEOC. (ECF No. 16 Ex. F at EEO00001-00003.) He filed this action on August
24, 2015.
Prior Accidents
On March 21, 2013, Plaintiff nudged a pole in the Blawnox Lot. He states that this
occurred because of low lighting in the lot; that the deficiency in lighting was taken care of and
the lot was properly lit; and that no disciplinary action resulted from this incident (he received
additional training). (Am. Compl. ¶¶ 45-46.)
On March 13, 2014, Plaintiff was stopped at a red light and conversed with a pedestrian
who was waiting at the intersection. After the conversation ended, Plaintiff looked up and saw
the light was green, so he proceeded into the intersection. His vehicle was struck by another
vehicle which was attempting to go around him. On April 14, 2014, the Postal Service issued
him a letter of warning, in which Transportation Operations Supervisor Glenn Ramsey stated that
he:
failed to check that it was safe for you to proceed into the intersection and as a
result [you] were hit by a car that was attempting to go around you. You failed to
verify that it was safe to pull out into traffic. By failing to perform your duties in
a safe manner, you were responsible for an accident that could have been
prevented.
(Am. Compl. Ex. 10.) Plaintiff refused to sign this letter or warning. Plaintiff argues that
Ramsey’s representations were false, because the statement itself indicates that Plaintiff looked
up and saw the light was green and also because he later learned that Mr. Ramsey had ignored

5

his supervisor’s notes, that is, the person who took Plaintiff’s statement clearly noted that he had
checked his mirrors and surroundings before moving his vehicle forward. (Am. Compl. ¶¶ 4755.) He filed a grievance on April 16, 2014 and on April 23, 2014, the grievance was resolved to
a “one year LOW” from the date of the incident; that is, he was required to go one year from
March 13, 2014 without another at-fault accident. (ECF No. 22 Ex. 2.) He also received
additional training. (Compl. Ex. 1.)
Procedural History
Plaintiff filed this action on August 24, 2015, naming both the Postal Service and the
Union as defendants (ECF No. 1). On October 26, 2015, the Postal Service filed a Motion to
Dismiss. (ECF No. 4.) On November 11, 2015, Plaintiff voluntarily dismissed the Union from
this case (ECF No. 9) and filed an Amended Complaint against the Postal Service, now the only
defendant. (ECF No. 10.) Federal question jurisdiction is based on the civil rights claim. Count
I alleges that the Postal Service treated him in a discriminatory manner in violation of Title VII
when it terminated his employment for the May 13, 2014 motor vehicle accident, because
similarly situated white employees were re-employed and/or re-hired at the same or similar pay
position. He also alleges that the Postal Service falsely treated his two prior accidents as at-fault
incidents in order to justify his termination; that the withdrawal of his grievance by the Postal
Service and the Union was discriminatory as it deprived him of the right to have his grievance
resolved; and that he was not advised of his Veterans’ Preference rights. Count II alleges that the
Postal Service breached the CBA by imposing discipline that was punitive in nature rather than
corrective and that his removal was not for “just cause.”
On December 4, 2015, the Postal Service filed a Motion to Dismiss the Amended
Complaint. (ECF No. 15.) Plaintiff filed a brief in opposition on January 8, 2016 (ECF No. 22)

6

and on January 22, 2016, Defendant filed a reply brief (ECF No. 23).
Standard of Review
The Supreme Court has issued two decisions that pertain to the standard of review for
failure to state a claim upon which relief could be granted. The Court held that a complaint must
include factual allegations that “state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“[W]ithout some factual allegation in the complaint, a claimant cannot satisfy the requirement
that he or she provide not only ‘fair notice’ but also the ‘grounds’ on which the claim rests.”
Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008). In determining whether a
plaintiff has met this standard, a court must reject legal conclusions unsupported by factual
allegations, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements;” “labels and conclusions;” and “‘naked assertion[s]’ devoid of ‘further
factual enhancement.’” Iqbal, 556 U.S. at 678 (citations omitted). Mere “possibilities” of
misconduct are insufficient. Id. at 679. The Court of Appeals has summarized the inquiry as
follows:
To determine the sufficiency of a complaint, a court must take three steps.
First, the court must “tak[e] note of the elements a plaintiff must plead to state a
claim.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1947, 173 L.Ed.2d 868
(2009). Second, the court should identify allegations that, “because they are no
more than conclusions, are not entitled to the assumption of truth.” Id. at 1950.
Third, “whe[n] there are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give rise to an
entitlement for relief.” Id. This means that our inquiry is normally broken into
three parts: (1) identifying the elements of the claim, (2) reviewing the complaint
to strike conclusory allegations, and then (3) looking at the well-pleaded
components of the complaint and evaluating whether all of the elements identified
in part one of the inquiry are sufficiently alleged.
Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
The Court of Appeals has explained that: “In deciding a Rule 12(b)(6) motion, a court
7

must consider only the complaint, 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) (citation omitted). Thus, the
documents that Plaintiff has attached to the Amended Complaint (Exhibits 1-11), and the
documents attached to Plaintiff’s brief in opposition (Exhibits 1-4) may be considered in
determining whether Plaintiff has stated a claim upon which relief may be granted. In addition,
Defendant has attached a number of exhibits (A-F) to its motion to dismiss and Plaintiff has not
objected to them; in fact, he has also cited them in his brief in opposition. Therefore, the Court
can refer to all of these documents.4
Defendant argues that: 1) the claim that his removal was discriminatory was never raised
during the administrative process and thus it is unexhausted; 2) Plaintiff cannot raise a Title VII
claim against the Postal Service based on the Union’s withdrawal of his grievance; 3) he cannot
state a prima facie case of racial discrimination based on the Union’s conduct and the fact that
the comparators he cites were also terminated; 4) his state common law breach of contract claim
is preempted by federal labor law; 5) he cannot state a hybrid claim because the Union did not
breach its duty of fair representation by withdrawing a grievance under these circumstances
(indeed, it actually settled his claim in exchange for money for him and the substitution of his
4

Defendant also cites Rule 12(b)(1) and contends that it is making a factual attack upon subject
matter jurisdiction. However, the Court of Appeals has held that “questions of whether a
plaintiff has timely exhausted the administrative remedies in Title VII actions ‘are in the nature
of statutes of limitations. They do not affect the district court’s subject matter jurisdiction.’”
Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir. 1997) (quoting Hornsby v. United States
Postal Serv., 787 F.2d 87, 89 (3d Cir. 1986)). The court concluded that “[t]imeliness of
exhaustion requirements are best resolved under Rule 12(b)(6) covering motions to dismiss for
failure to state a claim.” Id. at 1022. However, once the inquiry extends beyond the pleadings,
the court should apply the standard of a motion for summary judgment under Rule 56. Id.
Because Plaintiff attaches documents to his Amended Complaint and reply brief and cites to
documents that Defendant has attached to its motion to dismiss, the Court need not convert the
motion to a motion for summary judgment.
8

resignation for a dismissal), and neither the Union nor the Postal Service has violated the CBA;
and 6) he has no right to be notified under the Veterans’ Preference Act because he was a craft
employee and his Marine Corps service does not fall within the definition of a preference eligible
employee.
Plaintiff responds that: 1) he has alleged that his removal by the Postal Service was
discriminatory in that it was based upon a fabricated record and he could not challenge his
dissatisfaction with the grievance process within the process itself when the grievance was
withdrawn without his knowledge or consent; 2) he has alleged that the Union and the Postal
Service entered into an agreement to deprive him of his right to arbitration; 3) he is not required
to state a prima facie case of discrimination at this stage of the proceedings and he has alleged all
that is necessary; and 4) he has explained why his breach of contract claims are not frivolous.
In a reply brief, Defendant reiterates that: 1) despite his protestations to the contrary,
Plaintiff is making a collateral attack on the grievance process; 2) he has not responded to the
arguments about preemption or the failure to state a claim based on the Union’s discretionary
decision to withdraw the grievance; and 3) he has not responded to the argument that he does not
fall within the ambit of the Veterans’ Preference Act.
Count I: Title VII
Title VII provides that “All personnel actions affecting employees or applicants for
employment … in the United States Postal Service and the Postal Regulatory Commission …
shall be made free from any discrimination based on race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-16(a). The statute further provides that, within 90 days of the receipt
of a final action taken by the EEOC, an aggrieved party may file a civil action as provided in
section 2000e-5, § 2000e-16(c), and that the provisions of section 2000e-5(f) through (k) shall

9

govern these civil actions brought by federal employees, § 2000e-16(d).
Administrative exhaustion of remedies prior to bringing suit is required. Brown v.
General Servs. Admin., 425 U.S. 820, 832-33 (1976); 29 C.F.R. § 1614.105(a)(1). Furthermore,
“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.”
Webb v. City of Philadelphia, 562 F.3d 256, 263 (3d Cir. 2009) (citation omitted).
Defendant argues that, in Plaintiff’s pre-complaint information, he contended that he was
discriminated against when the Union withdrew his claim, without his consent and without
providing him an opportunity to represent himself, and that “similarly situated white employees”
had their grievances heard and favorably resolved. (ECF No. 22 Ex. 4 at 1.) It contends that the
same allegations were made in his formal EEO Complaint. (ECF No. 16 Ex. E.) It notes that,
for this reason, the Agency dismissed his formal EEO Complaint: “A management inquiry was
conducted. It was determined that the arbitration was withdrawn by the Union. In accordance
with MD 11-29 C.F.R. Part 1614, an employee cannot use the EEO complaint process to lodge a
collateral attack on another forum’s proceeding.” (ECF No. 16 Ex. D.) Similarly, in its decision
dismissing Plaintiff’s formal EEO Complaint, the Agency stated that:
The proper forum for a complainant to have raised a challenge to decisions made
by the [Union] is through the grievance process itself or before the [NLRB]. The
Commission has long held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another forum’s proceeding.
Any decision to withdraw your grievance was made by the [Union] as the Agency
does not have any authority to withdraw a grievance on your behalf. Your
complaint is a collateral attack on the grievance process and is not properly before
the EEOC. The proper forum for complainant to have raised his dissatisfaction
with the outcome of the grievance process was within the negotiated grievance
process itself. The claim is a collateral attack on the outcome of another
administrative dispute resolution process; therefore, it fails to state a claim. See
29 C.F.R. § 1614.107(a)(1).

10

(ECF No. 16 Ex. F at EEO 002) (citations omitted).
Plaintiff responds that he alleged that his termination was based on a “fabricated
record,” and specifically notes that the Postal Service improperly used the March 13,
2014 accident as a basis to further justify his dismissal (when it stated that the May 13,
2014 accident was the third at-fault accident he had in two years). He contends that this
violated Article 16.01(B) of the CBA (which states that employees’ actions which are
unsatisfactory but may be susceptible to correction short of formal discipline shall not be
cited as an element of past record in any subsequent disciplinary action). He also argues
that he is not making a collateral attack upon another administrative process because,
unlike the situation in Brown, his administrative process had no outcome when the Union
and the Postal Service agreed to terminate it.
Plaintiff cites Ilgenfritz v. Honorable Robert Gates, Secretary of Dep’t of
Defense, 2010 WL 2978090, at *5 (W.D. Pa. July 26, 2010) (Conti, J.), which discussed
election of remedies pursuant to 5 U.S.C. § 7121(d). However, Defendant notes that the
Postal Service is not an “agency” subject to the provision of Title 5. See 5 U.S.C.
§§ 104, 105, 7101-35; 39 U.S.C. § 410(a).
Nevertheless, the record is not as clear-cut as Defendant portrays it. In the charge
of discrimination, Plaintiff stated that “prior to filing my grievances, my supervisor
would fabricate many allegations against me because I was black and [he] wanted to get
rid of me. For instance, I was disciplined and blamed for an accident to my vehicle that I
did not cause. On or about 5/22/2014, I was terminated from my employment.” (Compl.
Ex. 7.) Similar allegations were made in the pre-complaint information (ECF No. 22 Ex.
4) and his NLRB Complaint (Compl. Ex. 8 at 2). His formal EEO Complaint stated that:

11

my removal was not undertaken according to the contract, as I was only provided
eight (8) days of employment prior to being terminated, and this was one of the
reasons for my grievance, together with [the] decision to remove me based upon
fabricated record.
The actions were discriminatory because my white supervisors used
incidents I was involved in to fabricate and magnify the allegations against me.
For instance, on one occasion a person attempted to drive around my vehicle, and
that person struck my vehicle, and my supervisor tried to blame the incident on
me when I did nothing wrong, as I had the right of way to proceed through the
intersection. In another instance, my vehicle “tapped” the vehicle in front of me
due to the air break [sic] system lack of proper maintenance; no damages, but
written up in exaggerated manner.
(ECF No. 16 Ex. E at EEO 00011.)
A fair reading of Plaintiff’s administrative filings includes the allegation that the
Postal Service discriminated against him on the basis of his race by altering or
exaggerating background events to justify his dismissal, as well as the allegation that the
Union discriminated against him by withdrawing his grievance when it did not do so for
similarly situated white Union members. The Court of Appeals has held that, “if the
EEOC’s investigation is unreasonably narrow or improperly conducted, the plaintiff
should not be barred from his statutory right to a civil action.” Hicks v. ABT Associates,
Inc., 572 F.2d 960, 966 (3d Cir. 1978). Therefore, this argument is rejected.
On a related note, Defendant argues that Plaintiff cannot pursue a Title VII claim
against the Postal Service based upon the withdrawal of his grievance by the Union. See
Yee v. Bureau of Prisons, 2009 WL 528602, at *2 (N.D. Tex. Feb. 27, 2009) (“Plaintiff
cannot challenge the arbitration, or any of the purported procedural flaws associated with
it, through a Title VII action”); Brown v. Potter, 67 F. App’x 368, 369 (7th Cir. June 2,
2003) (“to the extent that Brown does request review of a decision by the Department of
Labor to deny or allow workers’ compensation, the district court of course was right to

12

note that such decisions are not subject to review by other federal agencies or the
courts.”) Although this argument can apply in appropriate cases, the record in this case
allows for the inference, drawn in Plaintiff’s favor as the non-moving party, that his claim
is not based solely on the Union’s withdrawal of his grievance, but also upon the Postal
Service’s actions which led to his dismissal, before the grievance was filed. Therefore,
this case is distinguishable from those cited by Defendant and this argument is rejected.
Defendant argues that Plaintiff has failed to state a prima facie case of discrimination,
citing to the familiar McDonnell Douglas burden shifting analysis. McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). As the Court of Appeals has explained, a Title VII plaintiff :
bears the initial burden of establishing a prima facie case by a preponderance of
the evidence. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742,
125 L.Ed.2d 407 (1993). When a plaintiff establishes a prima facie case of
discrimination, the burden shifts to the employer to “articulate some legitimate,
nondiscriminatory reason for the employee’s rejection.” McDonnell Douglas, 411
U.S. at 802, 93 S.Ct. 1817. If the defendant meets this burden, the presumption of
discriminatory action raised by the prima facie case is rebutted. Tex. Dep’t. of
Cmty. Affairs v. Burdine, 450 U.S. 248, 255, 101 S.Ct. 1089, 67 L.Ed.2d 207
(1981). The plaintiff then must establish by a preponderance of the evidence that
the employer’s proffered reasons were merely a pretext for discrimination, and
not the real motivation for the unfavorable job action. Id. at 253, 101 S.Ct. 1089;
McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817.
The existence of a prima facie case of employment discrimination is a
question of law that must be decided by the Court. It requires a showing that: (1)
the plaintiff belongs to a protected class; (2) he/she was qualified for the position;
(3) he/she was subject to an adverse employment action despite being qualified;
and (4) under circumstances that raise an inference of discriminatory action, the
employer continued to seek out individuals with qualifications similar to the
plaintiff’s to fill the position. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817;
Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 348 n. 1, 352, 356 (3d Cir. 1999).
However, the prima facie test remains flexible and must be tailored to fit the
specific context in which it is applied. Geraci v. Moody-Tottrup, Int’l, Inc., 82
F.3d 578, 581 (3d Cir. 1996).
Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797-98 (3d Cir. 2003) (footnotes omitted)
However, the shifting-burden framework cited above is not applicable when a motion to
13

dismiss has been filed. Indeed, the Supreme Court has held that a plaintiff alleging a claim of
employment discrimination need not plead “specific facts” establishing the elements of a prima
facie case, as would be required in response to a motion for summary judgment or at trial.
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002) (establishing a prima facie case is an
“evidentiary standard, not a pleading requirement.”). Thus, “an employment discrimination
complaint need not include [specific facts establishing a prima facie case of discrimination under
the framework of McDonnell Douglas] and instead must contain only ‘a short and plain
statement of the claim showing that the pleader is entitled to relief.’” Id. at 508. In Twombly, the
Court cited Swierkiewicz without distinguishing it and rejected the plaintiffs’ contention that it
“ran counter” to Twombly’s plausibility standard. 550 U.S. at 569-70. The Court of Appeals
recently reiterated that “at least for purposes of pleading sufficiency, a complaint need not
establish a prima facie case in order to survive a motion to dismiss.” Connelly v. Lane Const.
Corp., 809 F.3d 780, 788 (3d Cir. 2016). Thus, Plaintiff does not have to meet the McDonnell
Douglas standard at this stage of the proceedings and he does not have to allege, much less
prove, that the comparators he cites were similarly situated and treated more favorably.
Therefore, this argument is rejected.
Veterans’ Preference Act
Plaintiff also alleges that Defendant failed to notify him of his rights under the Veterans’
Preference Act. Defendant contends that Plaintiff is apparently suggesting that he had a right to
appeal to the Merit Systems Protection Board (MSPB), but that Plaintiff does not meet the
criteria. Plaintiff has not responded to this argument.
Plaintiff cites a section of the CBA which states that: “A preference eligible is not
hereunder deprived of whatever rights of appeal such employee may have under the Veterans’

14

Preference Act; however, if the employee initiates an appeal under the Veterans’ Preference Act,
the employee will be deemed to have waived further access to the grievance-arbitration
procedure beyond Step 3 under the following circumstances…” (Compl. Ex. 11 at 37
§ 16.07(A).) Thus, the CBA applies but does not define the term “preference eligible.”
Defendant argues that, to be an employee with appeal rights to the MSPB, an appellant
must satisfy the requirements of 5 U.S.C. § 7511; that craft employees of the Postal Service do
not have MSPB rights unless they have veterans’ preference, 5 U.S.C. §§ 7511(a)(1)(B), (b)(8);
39 U.S.C. § 1005(a); and that the definition of “preference eligible” is a “veteran,” 5 U.S.C.
§ 2108(3)(A-B). The term “veteran” means an individual who:
(A) served on active duty in the armed forces during a war, in a campaign or
expedition for which a campaign badge has been authorized, or during the period
beginning April 28, 1952, and ending July 1, 1955;
(B) served on active duty as defined by section 101(21) of title 38 at any time in
the armed forces for a period of more than 180 consecutive days any part of
which occurred after January 31, 1955, and before October 15, 1976, not
including service under section 12103(d) of title 10 pursuant to an enlistment in
the Army National Guard or the Air National Guard or as a Reserve for service in
the Army Reserve, Navy Reserve, Air Force Reserve, Marine Corps Reserve, or
Coast Guard Reserve;
(C) served on active duty as defined by section 101(21) of title 38 in the armed
forces during the period beginning on August 2, 1990, and ending on January 2,
1992; or
(D) served on active duty as defined by section 101(21) of title 38 at any time in
the armed forces for a period of more than 180 consecutive days any part of
which occurred during the period beginning on September 11, 2001, and ending
on the date prescribed by Presidential proclamation or by law as the last date of
Operation Iraqi Freedom;
and, except as provided under section 2108a, who has been discharged or released
from active duty in the armed forces under honorable conditions;
5 U.S.C. § 2108(1).
Plaintiff’s dates of service, from June 22, 1979 to September 1983, do not fall within any
15

of the identified time periods in the statute and therefore he does not meet the definition of
“preference eligible.” See Blakemore v. U.S. Postal Serv., 53 M.S.P.R. 390, 393 (1992)
(individual failed to demonstrate that he was preference eligible because he served on military
duty in the armed forces in a campaign or expedition for which a campaign badge had been
authorized).
Based upon the allegations of the Amended Complaint, Plaintiff’s period of service did
not fall within the definition of “preference eligible.” Therefore, to the extent he alleges that he
was denied the opportunity to utilize his veterans’ preference, he cannot state a claim for relief
and the motion to dismiss will be granted. In all other respects, the motion to dismiss Count I
will be denied.
Count II: Breach of Contract Claim
In Count II, Plaintiff alleges that the Postal Service breached the CBA by imposing
discipline that was punitive in nature rather than corrective and that his removal was not for “just
cause.” Defendant argues that any state common law breach of contract claim is preempted by
federal labor law and that he fails to state a hybrid claim. Plaintiff responds that he has stated a
claim. Defendant notes in its reply brief that he cites no authority and fails to address its
arguments.
Federal Preemption
Under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, an
employee may sue his employer for breach of a collective bargaining agreement. When the
employer is the Postal Service, an analogous provision of the Postal Reorganization Act, 39
U.S.C. § 1208(b), applies, “which is identical to § 301 in all relevant respects.” Bowen v. U.S.
Postal Serv., 459 U.S. 212, 232 n.2 (1983) (White, J., concurring in part and dissenting in part).

16

The Supreme Court has held that “when resolution of a state-law claim is substantially
dependent upon analysis of the terms of an agreement made between the parties in a labor
contract, that claim must either be treated as a § 301 claim, or dismissed as pre-empted by
federal labor-contract law.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985) (citation
omitted). Plaintiff contends that the Postal Service and the Union violated the terms of the CBA,
and thus his claim must be treated as a § 1208(b) “hybrid” claim.
Hybrid Claims
The Court of Appeals has explained that:
Ordinarily, an employee files a claim against the union alleging breach of
the duty of fair representation together with a claim against the employer alleging
breach of the collective bargaining agreement in a “hybrid” section 301/duty of
fair representation suit. In the “hybrid” suit, the plaintiff will have to prove that
the employer breached the collective bargaining agreement in order to prevail on
the breach of duty of fair representation claim against the union, and vice versa.
See United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 66-67, 101 S.Ct. 1559,
1565–66, 67 L.Ed.2d 732 (1981) (Stewart, J., concurring in the judgment). Thus,
the claims are “inextricably interdependent.” Id.; see also DelCostello v.
International Bhd. of Teamsters, 462 U.S. 151, 164-65, 103 S.Ct. 2281, 2290-91,
76 L.Ed.2d 476 (1983).
Nonetheless, the claims are not inseparable. A plaintiff who has a viable
“hybrid” claim against both the employer and the union may opt to bring only the
section 301 claim against the employer or the breach of duty of fair representation
claim against the union. See DelCostello, 462 U.S. at 165, 103 S.Ct. at 2291.
Either claim standing alone can be brought in federal court because each has an
independent jurisdictional basis. Id.
Felice v. Sever, 985 F.2d 1221, 1226 (3d Cir. 1993).
Defendant argues that Plaintiff cannot state a claim under either requirement of a hybrid
claim: he has not alleged that the Union breached its duty of fair representation under these
circumstances and the Postal Service did not violate the terms of the CBA. Plaintiff disputes
these contentions.
As the exclusive bargaining representative for its employees, the Union has a duty of fair
17

representation. DelCostello, 462 U.S. at 164-65. However, “the union typically has broad
discretion in its decision whether and how to pursue an employee’s grievance against an
employer.” Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558, 567-68
(1990) (citing Vaca v. Sipes, 386 U.S. 171, 177 (1967)). “A breach of the statutory duty of fair
representation occurs only when a union’s conduct toward a member of the collective bargaining
unit is arbitrary, discriminatory, or in bad faith.” Vaca, 386 U.S. at 190. The Supreme Court has
further held that “a union’s actions are arbitrary only if, in light of the factual and legal landscape
at the time of the union’s actions, the union’s behavior is so far outside a ‘wide range of
reasonableness,’ Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct. 681, 686, 97 L.Ed.
1048 (1953), as to be irrational.” Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67 (1991).
Defendant contends that the Union did not act irrationally when, having proceeded
through two steps of a grievance and having received a detailed decision, it decided to withdraw
Plaintiff’s grievance challenging his third at-fault accident in less than two years. (ECF No. 16
at 21.) As explained above, however, the record is in dispute about these matters. Plaintiff has
argued that the first accident resulted in no discipline but only additional training and that the
second accident was falsely portrayed as his fault when it was not and the finding of an at-fault
accident was reduced on April 23, 2014, but the Postal Service improperly continued to rely on
the letter of warning dated April 14, 2014 with its finding of fault. In addition, Plaintiff has
challenged Defendant’s treatment of the withdrawal of the grievance as part of a settlement; he
contends that he “received nothing; the stated compensation was what he was obligated to
receive for his separation.” (ECF No. 22 at 20.) These disputes cannot be resolved in the
context of a motion to dismiss.
Similarly, Defendant argues that it did not violate any provision of the CBA: Section

18

16.01(A) states that “No employee may be disciplined or discharged except for just cause such
as, but not limited … failure to perform work as requested … or failure to observe safety rules
and regulations…” Defendant argues that, because Plaintiff failed to observe safety rules, his
discipline was consistent with this section. But, as observed above, Plaintiff challenges whether
he failed to observe safety rules on May 13, 2014 and he further challenges the Postal Service’s
reliance on the letter of warning concerning the second accident. Again, these disputes cannot be
resolved at this stage of the proceedings. Therefore, with respect to Count II, the motion to
dismiss will be denied.
An appropriate order follows.

19

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ALFONSO FREEMAN,
Plaintiff,

)
)
)
)
)
)
)
)

vs
MEGAN J. BRENNAN, UNITED STATES
POSTMASTER GENERAL,
Defendant.

Civil Action No. 15-1102
Magistrate Judge Mitchell

ORDER
AND NOW, this 26th day of February, 2016, for reasons explained in the
accompanying memorandum,
IT IS HEREBY ORDERED that the motion to dismiss filed on behalf of the
Defendant (ECF No. 15) is granted with respect to Plaintiff’s claims that he was not advised of
his rights under the Veterans’ Preference Act and denied in all other respects.
IT IS FURTHER ORDERED that Defendant file an answer to the Amended
Complaint by March 10, 2016.

s/Robert C. Mitchell____________
ROBERT C. MITCHELL
United States Magistrate Judge

20