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w . v i l l a no v a . e du/thir dc ir c uit_2013/2551 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 13

- 2297

___________ FAUSAT OGUNBAYO ,

Appellant

v. HERTZ CORPORATION

____________________________________ On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 11

- cv - 04209 ) District Judge: Honorable William J

. Martini

____________________________________ Submitted Pursuant to Third Circuit LA R 34.1(a)

September 6, 2013 Before: RENDELL, FISHER and GARTH , Circuit Judges

(Opinion filed September 9 , 2013 )

___________ OPINION

___________ PER CURIAM Pro se appellant Fausat Ogunbayo appeals the District Court’s orders grant ing defendant Hertz Corporation’s motion to dismiss as to one of her claims and it s mo tion2

for summary judgment as to the remainder of her claims. We have jurisdiction under 28 U.S.C. § 1291 and exercise a plenary standard of review. See Connelly v. Steel Valley Sch. Dist. , 706 F.3d 209, 217 (3d Cir. 2013) (motion to dismiss); State Auto Prop. & Cas. Ins. Co. v. Pro Design , P.C. , 566 F.3d 86, 89 ( 3d Cir. 2009) (summary judgment). For the reasons set forth below, we will affirm. Ogunbayo was employed by Hertz at one of its rental facilit ies for about a decade. In this position, she was a member of the International Brotherhood of Teamsters, Local 641. Toward the end of Ogunbayo ’s tenure with Hertz , relations between her and the company began to sour, and she wrote several letters to Hertz’s CEO complaining that

s he was being mistreated

. Soon thereafter, she met with a member of her union and two Hertz managers , and in violation of Hertz rules, she surreptitiously fil m ed the meeting. As a consequence, Hertz suspended her for 20 days, and then informed her that she could return to work on ly after being medically cleared

. Hertz later clarified that by “medically cleared” it meant “cleared by a psychologist ”

— it imposed this requirement, apparently , because while investigating Ogunbayo , it had received reports from her co workers that she h ad recently been exhibiting bizarre and disturbing behavior. Hertz scheduled two appointments with a psychologist for Ogunbayo, and after she skipped the first one, it warned her that if she did not attend the second, she would be terminated. Ogunbayo

re fused to attend the second appointment and, true to its word, Hertz fired her.3

Ogunbayo then filed a complaint against Hertz. The complaint alleg ed that Hertz had (1) violated the terms of the collective bargaining agreement (CBA) with Local 641; (2) unl awfully terminated her employment; (3) violated New Jersey’s Law Against
Discrimination (NJLAD), N .J. Stat. Ann. §§ 10:5

– 1 to

– 49 , by retaliating against her ; and (4) wrongly “condemn[ed]” her by saying that she was unfit to work. 1 Hertz filed a motion to dismiss the NJ LAD claim, which the District Court granted. A t the conclusion of discovery, Hertz filed a motion for summary judgment as to the remaining claims, which the Court also granted. Ogunbayo then filed a timely notice of appeal to this
Court. We agree with the District Court’s disposition of this case. First, the District Court did not err in dismissing Ogunbayo ’s NJ LAD retaliation claim. In support of her retaliation claim, Ogunbayo was required to show that (1) she engaged in a protected

a ctivity; (2) she suffered an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse employment action. As

1 The complaint is oftentimes opaque, and it is not always easy to determine th e precise parameters of Ogunbayo’s claims. The District Court concluded that Ogunbayo’s NJLAD claim was based on a theory of retaliation and that her claim that Hertz violated the CBA concerned both her suspension without pay and her termination. Ogunbay o has not objected to either of these conclusions on appeal, and we will therefore interpret her claims in the same way. Moreover, we have independently scrutinized Ogunbayo’s complaint and cannot discern an alternative interpretation that would be more f avorable to her. Finally, Ogunbayo did not pursue the “condemnation” claim in her opening brief , and we therefore will not consider it. See United States v. Pelullo , 399 F.3d 197, 222 (3d Cir. 2005); see also Timson v. Sampson , 518 F.3d 870, 874 (11th Ci r. 2008) (per curiam).4

relevant here, the NJLAD protects those who “oppose[] any practices or acts forbidden” by th e NJLAD. N.J. Stat. Ann. 10:5

– 12(d). Here, Ogunbayo claimed that she engaged in protected activity when she wrote numerous letters of complaint to Hertz management. However, n ot every complaint or letter entitles its author to protection from retaliati on under the NJLAD

. See Roa v. Roa , 985 A.2d 1225, 1236 (N.J. 2010 )

. Rather, only challenges to discrimination prohibited by the NJLAD

— such as discrimination on the basis of race, age, or gender , N.J. Stat.
Ann. § 10:5

– 12(d)

— c onstitute “protected act ivity.” Ogunbayo ’s letters complained that she had been unfairly criticized for bringing several tote bags to work, that her supervisor had wrongly reprimanded her in front of a customer, and that Hertz management had disciplined her in violation of the C BA. However, she never mentioned any NJLAD

protected characteristic in her letters , let alone attempted to connect the alleged mistreatment to any such characteristic. Ogunbayo therefore lodged just the sort of

“ genera l complaint of unfair treatment” tha t we have held “ does not tra nslate into a charge of illegal

. . . discrimination. ” Barber v. CSX Di strib. Servs. , 68 F.3d 694, 701

- 02 (3d Cir. 1995). 2 Accordingly , the District Court was correct to dismiss this claim.

2 While Ogunbayo did use the word “discrimination” in her letters, this word, alone, was not sufficient to render her letters a form of “protected activity.” See Kelly v. Howard I. Shapiro & Assoc s . Consulting Eng’rs , P.C. , 716 F.3d 10 , 17 (2d Cir. 2013) (“ Alt hough particular words such as ‘discrimination’ are certainly not required to put an employer on notice of a protected complaint, neither are they sufficient to do so if nothing in the substance of the complaint suggests that th e complained

- of activity is, in fact, unlawfully discriminatory. ”). Moreover, given that Ogunbayo attached all of her letters to her5

Likewise, we conclude that the Distr ict Court properly granted summary judgment
to Hertz on Ogunbayo ’s claims of wrongful discharge and violation of the CBA. These clams arise under section 301 of the Labor Management Relations Act (LMRA) , which authorizes suits in district cour ts for “viol ation of contracts between an employer and a labor organization representing employees.” 29 U.S.C. § 185 ; see also Hines v. Anchor Motor Freight , 424 U.S. 554, 562 (1976). Critically, u nion members are required to exhaust the grievance and arbitration

rem edies contained in a CBA prior to filing suit under the LMRA

. See Anjelino v. N

. Y

. Times Co. , 200 F.3d 73, 99 (3d Cir. 1999) . The CBA at issue in this case provides for a four

- step grievance process , culminating in arbitration. It is undisputed that Ogu nbayo did not utilize the remedies provided for in the CBA before filing her complaint . She contends that she was unable to do so because by the time she received notice that she had been terminated, the CBA’s five

- day deadline for bring ing a grievance ha d expired

. Even accepting th e truth of this factual allegation, it provides no excuse for the failure to exhaust

— Ogunbayo w as required at least to “ attempt to initiate arbitration ,” Seborowski v. Pittsburgh Press Co. , 188 F.3d 163, 168 (3d Cir. 1999), a nd she admittedly did not do so. While there is an exception to the exhaustion requirement where an employee contends that the union failed in its duty of fair represent ation , Ogunbayo has made no such allegation here. See id. As the District Court held , this failure to exhaust

complaint, we are satisfied that it would have been futile for her to amend her complaint.6

bars Ogunbayo’s claims. See Angst v. Mack Trucks, Inc. , 969 F.2d 1530, 1538 (3d Cir. 1992). We will therefore affirm the District Court’s judgment.

See generally Grayson v. Mayvi ew State Hosp. , 293 F.3d 103, 111 (3d Cir. 2002).