Phifer v. Sevenson Environmental Services, Inc. et al
MEMORANDUM AND ORDER re 18 MOTION to Amend/Correct 2 Complaint (Pro Se), 14 MOTION to Dismiss for Failure to State a Claim , Or in the Alternative, for a More Definite Statement MOTION for Summary Judgment filed by Samuel Thomas Phifer, 16 MOTION to Dismiss for Failure to State a Claim filed by Delaware Solid Waste Authority, 11 MOTION to Amend/Correct 2 Complaint (Pro Se) filed by Samuel Thomas Phifer, 22 MOTION for Default Judgment as to All Defendants filed by Samuel Thom as Phifer, 14 MOTION to Dismiss for Failure to State a Claim , Or in the Alternative, for a More Definite Statement filed by Sevenson Environmental Services, Inc. as therein set forth. Within thirty (30) days from the date of this Order, the plaintiff shall supplement the record with proof that he exhausted administrative remedies for the 11/12/08 charge of discrimination. Signed by Chief Judge Gregory M. Sleet on 3/14/12. (mmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
SAMUEL THOMAS PHIFER,
SERVICES, INC. and DELAWARE
SOLID WASTE AUTHORITY,
) Civ. Action No. 11-169-GMS
The plaintiff Samuel T. Phifer ("Phifer"), who proceeds prose, filed this lawsuit on
February 22, 2011, alleging employment discrimination by reason of race in violation of Title VII
ofthe Civil Rights Act of 1964,42 U.S.C. § 2000e-5, 42 U.S.C. § 1981, and 42 U.S.C. § 1985.
Phifer also raises supplemental claims under Delaware law. (D.I. 2.)
Before the court are motions to dismiss filed by the defendants Sevenson Environmental
Services, Inc. ("Sevenson") and Delaware Solid Waste Authority ("DSWA") and a motion for a
more definite statement filed by Sevenson. (D.I. 14, 16.) Also before the court are Phifer's
motion to supplement, motion to amend, motions for summary judgment, and motion for default
judgment. (D.I. 11, 18, 21, 22.) For the reasons that follow, the court will grant in part and deny
in part Sevenson's motion to dismiss and will deny the motion for a more definite statement, will
grant DSWA's motion to dismiss, will grant Phifer's motion to supplement the complaint, will
deny Phifer's motion to amend, will deny as premature Phifer's motions for summary judgment,
and will deny Phifer's motion for default judgment.
Phifer worked for Sevenson as a heavy equipment operator and off road truck driver at
the DSWA Cherry Island landfill project in Wilmington, Delaware beginning in October 2006
through December 19, 2008. Sevenson and DSWA had a "contractual agreement through the
Cherry Island landfill project." The complaint alleges that the contract is a legal binding
agreement under Delaware and federal law pursuant to 42 U.S.C. § 1981 and the United States
Constitution, Article VI Supremacy Clause. Phifer alleges that, upon his hire, he was
automatically covered under contract through clauses pertaining to employment, pay, and
prevailing wages. He alleges that Sevenson refused to pay him Delaware prevailing wages as
specified in the contract and that DSWA refused to withhold money from Sevenson owed to
Phifer for back wages as specified in the contract. Phifer alleges that he "cannot legally agree to
the violation of his rights for the purpose of employment (demotion and cut in salary). He
alleges violations of his right to due process and equal protection, Title VII employment
discrimination and retaliation, breach of contract through deprivation of wages and conspiracy.
In addition to statutes previously mentioned, the complaint refers to the Wage Payment and
Collection Act of Delaware ("WPCA"), 19 Del. C. §§ 11 03 through 1113, the Fourteenth
Amendment, and Title VII§ 2000e-2(a) and (m). (D.I. 2, exs.)
Attached to the complaint are charges of discrimination Phifer filed with the Delaware
Department of Labor ("DDOL") asserting discrimination and owed wages, as follows: 1
If a charge filed with the DDOL is also covered by federal law, the DDOL "dual files"
the charge with the Equal Employment Opportunity Commission ("EEOC") to protect federal
rights. See http://dia.delawareworks.com/discrimination/file-a-charge.php.
(1) FEPA No. 08110623W and EEOC No.17C-2009-00114 ("November 12,2008 charge of
discrimination"), dated November 12, 2008, against Sevenson alleging disparate treatment with
regard to Phifer's wages compared to similarly situated white co-workers. Phifer was laid off in
October 2007 and rehired in March 2008 at lower wages than paid to white workers. The DDOL
issued its right to sue letter on May 24, 2010.;2 (2) FEPA No. 0901005IW and EEOC No. 17C2009-00396 ("January 27, 2009 charge of discrimination"), dated January 27, 2009, against
Sevenson charging retaliation in the form of a lay-off on December 19, 2008, following Phifer's
November 12, 2008 charge of discrimination. The DDOL issued its right to sue notice on May
24, 2010 and conciliation was completed on June 23, 2010. The EEOC issued its notice of right
to sue on June 27, 2011.; (3) FEPA No. 09090450W and EEOC No. 17C-2009-01104
("September 28, 2009 charge of discrimination"), against DSWA eharging race discrimination
and retaliation when it refused to act on Phifer's complaints to have DSWA enforce its
contractual obligations to Sevenson. 3 (D.I. 2, exs. A, B, C, F, G; D.l. 11, ex. 1.)
Sevenson moves for dismissal of the complaint pursuant to Fed. R. Civ. P. 12(b)(6) or, in
the alternative for a more definite statement pursuant to Fed. R. Civ. P. 12(e). (D.I. 14, 15.)
Similarly, DSWA moves for dismissal pursuant to Fed. R. Civ. P. 12(b)(6). (D.I. 16, 17.) Phifer
opposes the motions, moves to supplement, moves to amend, and moves for summary judgment.
(D.I. 11, 18, 21.) He also requests default judgment. (D.I. 22.)
There is no indication in the record that, to date, the EEOC has issued its right to sue
There is no indication in the record, to date, of issuance by the DDOL or the EEOC of
their right to sue notices.
III. STANDARDS OF REVIEW
Rule 12(b)(6) permits a party to move to dismiss a complaint for failure to state a claim
upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The court must accept all factual
'allegations in a complaint as true and take them in the light most favorable to a pro se plaintiff.
Phillips v. County ofAllegheny, 515 F.3d 224,229 (3d Cir. 2008); Erickson v. Pardus, 551 U.S.
89, 93 (2007). Because Phifer proceeds prose, his pleading is liberally construed and his
complaint, "however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. at 94 (citations omitted).
A well-pleaded complaint must contain more than mere labels and conclusions. See
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009); Bell At!. Corp. v. Twombly, 550 U.S. 544
(2007). When determining whether dismissal is appropriate, the court conducts a two-part
analysis. Fowler v. UPMC Shadyside, 578 F.3d 203,210 (3d Cir. 2009). First, the factual and
legal elements of a claim are separated. Id. The court must accept all of the complaint's wellpleaded facts as true, but may disregard any legal conclusions. !d. at 21 0-11. Second, the court
must determine whether the facts alleged in the complaint are sufficient to show that Phifer has a
"plausible claim for relief." !d. at 211; see also Iqbal, 129 S.Ct. at 1949; Twombly, 550 U.S. at
570. In other words, the complaint must do more than allege Phifm's entitlement to relief; rather,
it must "show" such an entitlement with its facts. A claim is facially plausible when its factual
content allows the court to draw a reasonable inference that the defendant is liable for the
misconduct alleged. Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 570). The plausibility
standard "asks for more than a sheer possibility that a defendant has acted unlawfully." !d.
"Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops
short of the line between possibility and plausibility of' entitlement to relief."' !d. The
assumption of truth is inapplicable to legal conclusions or to "[t]hreadbare recitals of the
elements of a cause of action supported by mere conclusory statements." !d. "[W]here the wellpleaded facts do not permit the court to infer more than a mere possibility of misconduct, the
complaint has alleged- but it has not shown- that the pleader is entitled to relief." !d. (quoting
Fed. R. Civ. P. 8(a)(2)).
"Determining whether a complaint states a plausible claim for relief will ... be a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense." Iqbal, 129 S.Ct. at 1950. In making this determination, the court may look to the
allegations made in the complaint, the exhibits attached to the complaint, and any documents
whose authenticity no party questions and whose contents are alleged in the complaint. Pryor v.
National Collegiate Athletic Ass 'n, 288 F.3d 548, 560 (3d Cir. 2002). Documents attached to a
defendant's Rule 12(b)( 6) motion to dismiss may only be considered if they are referred to in the
plaintiff's complaint and if they are central to the plaintiff's claim~:. !d. "Courts should generally
grant plaintiffs leave to amend their claims before dismissing a complaint that is merely
deficient" unless amendment would be inequitable or futile. Grayson v. Mayview State Hosp.,
293 F .3d 103, 108, 114 (3d Cir. 202).
B. More Definite Statement
"A party may move for a more definite statement of a pleading to which a responsive
pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare
a response." Fed. R. Civ. P. 12(e); see also Alston v. Parker, 363 F.3d 229, 234 n.7 (3d Cir.
2004). "The Rule 12(e) 'motion shall point out the defects complained of and the details
desired."' Thomas v. Independence Twp., 463 F.3d 285, 301 (3d Cir. 2006) (quoting Fed. R. Civ.
P. 12(e)). "When presented with an appropriate Rule 12(e) motion for a more definite statement,
the district court shall grant the motion and demand more specific :factual allegations from the
plaintiff concerning the conduct underlying the claims for relief." Id
In general, "a motion for a more definitive statement is generally disfavored, and is used
to provide a remedy for an unintelligible pleading rather than as a correction for a lack of detail."
Frazier v. SEPTA, 868 F.Supp. 757, 763 (E.D. Pa. 1996); see also Country Classics at Morgan
Hill Homeowners' Ass 'n v. Country Classics at Morgan Hill, LLC, 780 F. Supp. 2d 367, 371
(E.D. Pa. 2011) ("Because Federal Rule of Civil Procedure 8 requires only a short and plain
statement of the claim, motions for a more definite statement are 'highly disfavored"'). "[I]t is
directed to the rare case where because of the vagueness or ambiguity of the pleading the
answering party will not be able to frame a responsive pleading." Schaedler v. Reading Eagle
Publ'n, Inc., 370 F.2d 795, 798 (3d Cir. 1967). Ultimately, however, "the decision to grant a
motion for a more definite statement is committed to the discretion of the district court."
Woodard v. FedEx Freight East, Inc., 250 F.R.D. 178, 182 (M.D. Pa. 2008); accord MK
Strategies, LLC v. Ann Taylor Stores Corp., 567 F. Supp. 2d 729, 737 (D.N.J. 2008).
C. Summary Judgment
"The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.'"' Fed.
Rule 56 was revised by amendment effective December 1, 2010. "The standard for
granting summary judgment remains unchanged," and "[t]he amendments will not affect
continuing development of the decisional law construing and applying these phrases." Fed. R.
R. Civ. P. 56(a). The moving party has the initial burden ofproving the absence of a genuinely
disputed material fact relative to the clams in question. Celotex Corp. v. Catrett, 477 U.S. 317
( 1986). Material facts are those "that could affect the outcome" of the proceeding, and "a dispute
about a material fact is 'genuine' if the evidence is sufficient to pe1mit a reasonable jury to return
a verdict for the nonmoving party." Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986)).
The burden then shifts to the non-movant to demonstrate the existence of a genuine issue
for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Williams v.
Borough of West Chester, Pa., 891 F.2d 458,460-461 (3d Cir. 1989). Pursuant to Rule 56(c)(1),
a non-moving party asserting that a fact is genuinely disputed must support such an assertion by:
"(A) citing to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations ... , admissions,
interrogatory answers, or other materials; or (B) showing that the materials cited [by the opposing
party] do not establish the absence ... of a genuine dispute ... " Fed. R. Civ. P. 56(c) (1).
When determining whether a genuine issue of material fact exists, the court must view
the evidence in the light most favorable to the nonmoving party and draw all reasonable
inferences in that party's favor. Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v. Potter, 476
F .3d 180, 184 (3d Cir. 2007). A dispute is "genuine" only if the evidence is such that a
reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 247-249.
See Matsushita Elec. Indus. Co., 475 U.S. at 586-587 ("Where the record taken as a whole could
Civ. P. 56 advisory committee's note to 2010 Amendments.
not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for
trial."'). If the nonmoving party fails to make a sufficient showing on an essential element of its
case with respect to which it has the burden of proof, the moving party is entitled to judgment as
a matter oflaw. See Celotex Corp. v. Catrett, 477 U.S. at 322.
1. Pleading Deficiencies
Sevenson moves for dismissal of the complaint on the grounds that it fails to meet the
pleading requirements of Iqbal and Twombley. Similarly, DSWA moves for dismissal ofthe
breach of contract, conspiracy, discrimination, retaliation, equal protection, due process, and
supremacy clause claims on the basis that the complaint lacks suff[cient detail to satisfy pleading
Regarding the equal protection, due process, and supremacy clause claims, the complaint
contains conclusory allegations and legal theories with no supporting facts that state plausible
claims for relief. Therefore, the court will grant the motions to dismiss the equal protection, due
process, and supremacy clause claims.
2. Title VII Discrimination
Phifer alleges employment discrimination by reason of rac1~. DSWA moves for dismissal
of the Title VII claims on the grounds that it was not Phifer's employer. Title VII authorizes a
cause of action only against employers, employment agencies, labor organizations, and training
programs. See 42 U.S.C. § 2000e-2. Section 2000e defines "employer" as "a person engaged in
an industry affecting commerce who has fifteen or more employees for each working day in each
of twenty or more calendar weeks in the current or preceding calendar year, and any agent of
such a person." 42 U.S.C. § 2000e(b). "The term 'employee' means an individual employed by
an employer." 42 U.S.C. § 2000e(f).
In his opposition, Phifer argues that DSWA is an agent of Phifer's employer. The
complaint, however, does not present facts sufficient to either invite Title VII liability or support
a plausible claim for relief on its face. It alleges that Phifer worked for Sevenson and that he was
covered in the contract as an employee of Sevenson. Inasmuch as the complaint contains no
allegations that DSWA was Phifer's employer, the court will grant DSWA's motion to dismiss
the Title VII claims. 5
b. Administrative Remedies
Sevenson moves for dismissal of the Title VII claims on the grounds that Phifer filed
three separate EEOC charges, but provided only two final determinations and right to sue notices
from the DDOL and one from the EEOC. 6 Sevenson contends that ninety days have passed to
file lawsuits based upon the November 12, 2008 charge of discrimination and the January 27,
2009 charge of discrimination and, therefore, Phifer is time-barred from raising these claims.
Even though the September 28, 2009 charge of discrimination is directed against DSWA,
In addition, as will be discussed in Section IV.A.2.b., Phifer produced no evidence to
refute Sevenson's position that he has not yet exhausted the administrative remedies for the
September 28, 2009 charge of discrimination against DSWA.
The complaint alleges only Title VII violations. It does not raise employment
discrimination claims under Delaware's Discrimination in Employment Act, 19 Del. C. §§ 710719.
Sevenson moves for dismissal of the claim on the grounds that Phifer failed to provide a right to
sue notice, and there is no evidence that he has exhausted his administrative remedies. Phifer
responds that the EEOC issued its notice of right to sue for the January 27, 2009 charge of
A plaintiff may not file a Title VII suit in federal court without first exhausting all
avenues for redress at the administrative level, pursuant to 42 U.S.C. § 2000e-16(c). See Francis
v. Mineta, 505 F.3d 266,272 (3d Cir. 2007); Doe v. Winter, 2007 'NL 1074206 (M.D. Pa. Apr.5,
2007). This prerequisite, akin to a statute of limitations, mandates dismissal of the Title VII
claim if a plaintiff files the claim before receiving a right to sue notice. See Story v. Mechling,
214 F. App'x 161, 163 (3d Cir. 2007) (not published) (plaintiff may not proceed with Title VII
claim because he neither received a right to sue letter nor submitted evidence indicating that he
requested a right to sue letter); Burgh v. Borough Council of Borough of Montrose, 251 F.3d 465,
470 (3d Cir. 2001). Without first affording the EEOC an opportunity to review and conciliate the
dispute, a plaintiff may not seek relief in federal court for her Title VII claim. Burgh, 251 F .3d at
The administrative prerequisites as provided in 42 U.S.C. § 2000e-5, require a plaintiff to
first lodge a complaint with either the EEOC or the equivalent stah~ agency responsible for
investigating claims of employment discrimination, in Delaware the DDOL. See 42 U.S.C. §
2000e-5(e). If the EEOC or equivalent state agency determines not to pursue a plaintiffs claims
and issues a right-to-sue letter, only then may a plaintiff file suit in court. See 42 U.S.C. §
2000e-5(f)(1). Section 2000e-5(f)(1) requires that claims brought under Title VII be filed within
ninety days of the claimant's receipt of the EEOC right to sue letter.
A DDOL right to sue notice entitles a plaintiff to file a timely civil action in the Delaware
Superior Court within ninety days of its receipt or within ninety days of receipt of a federal right
to sue notice, whichever is later. 19 Del. C.§ 714(a). Regardless ofthe receipt of a DDOL right
to sue notice, a plaintiff seeking relief in federal court must subject his claims to the EEOC
administrative process. See 42 U.S.C. § 2000e-5. The receipt of a federal right to sue notice
indicates that a complainant has exhausted administrative remedies, an "essential element for
bringing a claim in [federal] court under Title VII." See Anjelino v. New York Times Co., 200
F.3d 73,93 (3d Cir. 1999); see also Burgh, 251 F.3d at 470.
In the instant case, Phifer filed charges of discrimination with the DDOL on November
12, 2008, January 27, 2009, and September 28, 2009. Consistent with its written practices, the
charges of discrimination indicate that, because the discrimination charges were covered by Title
VII, the DDOL "dual filed" the charges with the EEOC. See 42 U.S.C. §§ 2000e, et seq. Once a
charge is filed with the EEOC, a complainant must allow a minimum of 180 days for a proper
EEOC investigation to proceed. See 42 U.S.C. § 2000e-5(f)(l): see also Occidental Life Ins. Co.
v. EEOC, 432 U.S. 355, 361 (1977) (holding that a private right of action does not arise until180
days after a charge has been filed with the EEOC). After 180 days, the complainant on his own
may also request a right to sue notice, and the EEOC must issue
letter promptly on request.
See 29 C.P.R. § 1601.28(a)(1).
The record does not indicate that any Title VII claims were administratively exhausted
prior to Phifer's filing his complaint in this court. It is undisputed, however, that the EEOC
issued a right to sue notice for the January 27, 2009 charge of discrimination7 on June 27, 2011,
after the complaint was filed and that Phifer has exhausted his administrative remedies as to that
claim. However, neither the complaint nor any of Phifer's oppositions or motions for summary
judgment include copies of an EEOC right to sue notice for the November 12, 2008 charge of
discrimination against Sevenson or the September 28, 2009 charge of discrimination against
DSWA. In addition, Phifer had the option of waiting 180 days from the date his charges were
filed with the EEOC to request an EEOC right to sue notice pursuant to 42 U.S.C. § 2000e-5, but
again neither the complaint nor Phifer's responses or motions indicate that he contacted the
EEOC to request right to sue notices for the November 12, 2008 charge of discrimination against
Sevenson or the September 28, 2009 charge of discrimination against DSWA. Phifer has failed
to exhaust his Title VII administrative remedies on these two claims and, therefore, they will be
dismissed without prejudice.
To the extent that Phifer intended to bring claims under Delaware's Discrimination in
Employment Act, the claims are time-barred as they were not filed within ninety days of receipt
of the right to sue notices. When Phifer received his DDOL right to sue notices, he could have
filed a timely complaint with the Delaware Superior Court pursuant to 19 Del. C. § 714(a). The
DDOL right to sue notice for the November 12, 2008 charge of discrimination is dated May 24,
2010, and the DDOL notice for the January 27, 2009 charge of discrimination is dated May 24,
2004, with a conciliation date of June 23, 2010. Phifer did not file the instant complaint until
February 28, 2011, far past the ninety day limit to file a lawsuit.
The DDOL issued its right to sue notice for the same charge of discrimination much
earlier, on May 24,2010, with conciliation occurring on June 23,2010.
Accordingly, the court finds that Phifer has failed to adequately exhaust administrative
remedies for the November 12, 2008 charge of discrimination and the September 28, 2009
charge of discrimination, and will grant the motion to dismiss these two claims for failure to
exhaust. The November 12, 2008 charge of discrimination and the September 28, 2009 charge of
discrimination will be dismissed without prejudice. Because he proceeds pro se, the court will
give Phifer thirty days to supplement the record with proof that the two aforementioned claims
were filed timely and otherwise in compliance with 42 U.S.C. § 2000e-5.
3. Title VII Retaliation
Phifer provided a right to sue letter with regard to the Title VII retaliation claim against
Sevenson. It moves for dismissal of the claim on the grounds that Phifer has failed to plead a
prima facie case of discrimination.
To establish a prima facie case of retaliation, Phifer must demonstrate that: ( 1) he
engaged in a protected employee activity; (2) the employer took an adverse employment action
after or contemporaneous with the protected activity; and (3) a caw;allink exists between the
protected activity and the adverse action. See Abramson v. William Paterson Col!. of New
Jersey, 260 F.3d 265,286 (3d Cir. 2001); Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173,
177 (3d Cir. 1999). A causal1ink between protected activity and adverse action may be inferred
from an unusually suggestive temporal proximity between the two, an intervening pattern of
antagonism following the protected conduct, or the proffered evidence examined as a whole.
Kachmar, 109 F.3d at 177.
Sevenson argues that the amended complaint does not allege the protected activity, when
and what adverse action followed the protected activity, and the c
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