Carroll v. ABM Janitorial Services-Mid Atlantic Inc.

Filing 52

MEMORANDUM OPINION re motions for summary judgment. Signed by Judge Leonard P. Stark on 9/17/13. (ntl)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
THORNTON CARROLL,
Plaintiff,

v.

Civ. No. 11-1041-LPS

ABM JANITORIAL SERVICES-MID
ATLANTIC, INC.,
Defendant.

Thornton Carroll, Wilmington, Delaware, Pro Se Plaintiff.
Richard R. Wier and Shannon Lamer Brainard, Esquires, Marshall, Dennehey, W amer, Coleman
& Goggin, Wilmington, Delaware. Counsel for Defendant.

MEMORANDUM OPINION

September 17, 2013
Wilmington, Delaware

STARK, U.S. District Judge:
I.

INTRODUCTION
Plaintiff Thornton Carroll ("Plaintiff') filed this action on October 28, 2011, alleging

employment discrimination, violations of his civil rights, and defamation. (D.I. 2) The Court
has jurisdiction pursuant to 28 U.S.C. § 1331. In addition, Plaintiff asserts jurisdiction by reason
of diversity of the parties. Presently before the Court are the parties' cross-motions for summary
judgment. (D.I. 38, 39) For the reasons that follow, the Court will deny Plaintiffs motion and
will grant Defendant's motion.
II.

PROCEDURALANDFACTUALBACKGROUND
The complaint alleges defamation, civil rights, race discrimination, wrongful termination,

and retaliation. (D.I. 2) In his opposition to Defendant's motion for summary judgment (D.I.
44), Plaintiffinvokes 42 U.S.C. § 1983.
Plaintiff was hired as a cleaner for Brandywine Building Services, Inc. ("BBS"). (D.I. 2;
D.I. 40 Ex. A at 3) Plaintiff remained employed after BBS was acquired by Defendant ABM
Janitorial Services-Mid Atlantic, Inc. ("Defendant") on January 1, 2006. (D.I. 2; D.I. 40 Ex. A at
3-5) After Plaintiffbecame an employee of ABM, he was transferred to the Bank of America
("BOA") worksite in Wilmington, Delaware as a supervisor. (D.I. 40 Ex. A at 5) Plaintiff
acknowledged during his deposition that he was an at-will employee. (D.I. 47 Ex. AA at 3)
Defendant terminated Plaintiffs employment on August 10, 2009.
On January 1, 2006, Plaintiff received the ABM "Information for Employees" and
signed a Statement of Acknowledgment. (D.I. 40 Ex. Cat 9) The document provides in part that
no employees are permitted to punch another employee's time card and that punching another

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employee's time card will result in immediate termination with cause. (!d. at Ex. Cat 3-8) On
the same date, Plaintiff received and signed for a copy of the "Employee Instructions Information
and Work Rules" ("Work Rules"). (!d. at Ex. D at 2) The Work Rules warn that "[u ]nder
certain circumstances, an action may be serious enough to constitute misconduct, resulting in
immediate termination." (!d.) In addition, the Work Rules state that "[a]ny tampering with your
own or another's attendance record is cause for termination." (!d.

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3(b)) On February 2,

2006, Plaintiff signed an acknowledgment of receipt of the ABM Employee Handbook
("Handbook"). (!d. at Ex. B at 6) The Handbook sets forth performance expectations and
standards of conduct for ABM employees, and identifies a number of violations which could lead
to disciplinary action including termination. (!d. at Ex. B at 3-5)
Plaintiff worked the evening shift, Monday through Friday, from 5:00p.m. to 1:00 a.m.
(D.I. 40 Ex. A at 6) Gary Cooper ("Cooper") also worked the evening shift as a shift manager at
the BOA site. (!d. at 12) Plaintiff and Cooper were lateral supervisors, and Plaintiff did not
answer to Cooper, although Cooper was senior, having been at the facility for ten years. (!d.)
Plaintiffs direct supervisors at the BOA site were project managers Ardrell Weaver ("Weaver")
and Rob Bell ("Bell"). (!d. at 9) Weaver and Bell reported to ABM District Manager Richard
Strazzella ("Strazzella"). (!d.)
Plaintiffs job duties included supervising a staff of cleaners who cleaned several
buildings at the BOA site. (D.I. 40 Ex. A at 7) His presence was required when the workers
were there. (/d.) Plaintiff was responsible for overseeing performance, attendance and
punctuality of staff, and "for hiring and firing employees," subject to approval from one of the

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project managers. (!d. at 7-1 0) Plaintiff could call a project manager if a problem arose at night.
(!d. at 11-12)

On the evening of July 3, 2009, Plaintiff and Cooper were on duty. Plaintiff was
supervising approximately ten employees that evening. (D.I. 40 Ex. A at 15-16) Around 9:30
p.m., Plaintiff saw employees under his supervision leaving early. (!d. at 17 -19) Plaintiff did not
see the employees clock out or question why they did not clock out. (!d. at 17, 20, 21) Nor did
Plaintiff attempt to stop the employees or question their early departure but, instead, he went to
other buildings under his supervision to determine why the employees were leaving early. (!d. at
17-18)
Cooper indicates that on the evening in question, he had called Strazzella and told him
the work was completed. (D.I. 38 Ex. J at 4) Strazzella's response was, "OK Gary do what you
need to do." (!d.) Cooper states that he did not inform Plaintiff of his conversation with
Strazzella or his decision to allow the staff to leave. (D.I. 38 Ex. Kat 2) At some point, Plaintiff
called Cooper, who told him that he had allowed the employees to leave early. (D.I. 40, Ex. A at
19) According to Cooper, it was common practice to allow employees to leave early on the
evening before a holiday and to clock out the entire staff at the shift end. (!d.)
Although Plaintiff saw that employees were leaving early, he did not notify the project
managers or district manager prior to the end of the shift. (D.I. 40, Ex. A at 25) In the past,
Plaintiff had seen Bell and Weaver, "the people in authority," allow employees to leave early.
(!d. at 12-15) Plaintiff left about an hour after the employees. (!d. at 11) Plaintiff did not check

the employees' timecards to make sure they clocked out at the appropriate time. (!d. at 23)
Plaintiff testified that Cooper signed off on the time sheets to verify their accuracy. (!d. at 24)

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Defendant became aware of the July 3, 2009 early departures in early August, after an
employee complained about her pay. (D.I. 40 Ex. A at 29) On August 4, 2009, Plaintiff and
Cooper were called into a meeting with Weaver and Strazzella. (D.I. 38 Ex. C) They were each
offered the opportunity of a separate interview, but declined. (!d.) A report of the investigation
states that, because it was the day before a holiday, the complex was "pretty empty all day" and
''the night's work had been thoroughly completed." (!d.) The report goes on to state that Cooper
and Plaintiffmade the decision to dismiss the remaining full-time staff at 10:30 p.m. instead of
midnight, the normal shift end time. (!d.) Plaintiff testified that he admitted knowing the
employees were leaving but that he did not know about it prior to their early departure. (!d. at
D.I. 40, Ex. A at 30) The report states that Cooper and Plaintiff admitted their responsibility for
the decision to allow the early shift end. (D.I. 38 Ex. B) Cooper admitted to "punching out
employees' timecards." (!d.) According to Plaintiff, there was no mention of policy violations
during the meeting. (D.I. 38 Ex. P) The report, authored by Strazzella, recommended
suspensions for both Cooper and Plaintiff with a warning that future violations would result in
immediate termination. (D.I. 38 Ex. C)
On August 5, 2009, Plaintiff requested a second, and private, meeting with Strazzella.
(D .I. 40 Ex. A at 31, Ex. F) During the meeting, Plaintiff was offered the opportunity to provide
a written statement regarding the events of July 3, 2009, but he declined. (D.I. 40 Ex. A at 32,
Ex. F) He did, however, indicate that the employees had actually left at 9:30 p.m. on the night of
July 3rd, rather than 10:30 p.m., as had previously been indicated. (!d.) Plaintiff told Strazzella
that he did not report the early departures because he wanted to maintain a harmonious working
relationship with Cooper. (D.I. 40 Ex. A at 31) Plaintiff"didn't want to get in a whole bunch of

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conflict and stuff because I had to work with Gary and you all did things the way you wanted to."
(!d. at 32) Plaintiff did not see the early departure as anything to report. (!d.)

An internal ABM email dated August 6, 2009 states, "OK to term Cooper and Carroll.
Call me to discuss EOM." (D.I. 38 Ex. D) After Defendant completed its investigation,
Strazzella and Senior District Manager Mark DeLucia (" DeLucia") met with Plaintiff on August
10, 2009. (D.I. 38 Ex. 0; D.I. 40 Ex. G) During the meeting, Plaintiff was advised that his
employment with Defendant was being terminated effective August 10, 2009 for violation of
company policies and procedures, as the result of his actions on July 3, 2009. (!d.) Strazzella
told Plaintiff he was "being terminated because on Friday, July 03, 2009 employees were allowed
to leave two [sic] hours early with pay." (D.I. 40 Ex. H) Plaintiff requested a termination letter
with the specific company policies that he violated. (D.I. 38 Ex. 0)
Cooper's employment was also terminated on August 10, 2009. Cooper told Strazzella
and DeLucia that Plaintiff had nothing to do with the employees leaving early and that he had
allowed to the employees to leave early after he consulted with Strazzella. (D.I. 38 Ex. J at 3-4)
According to Cooper, Strazzella was pressured by DeLucia to terminate him. (!d. at 4)
On August 11, 2009, Jeanette Zimmer ("Zimmer"), ABM Mid-Atlantic Regional Human
Resources Director, forwarded the August 6, 2009 email to William George ("George"). (D.I. 38
Ex. D) On August 13, 2009, Zimmer authored an email to George that referenced time records
policy, standard of conduct policy, and code of conduct and ethics. (D.I. 38 Ex. E) Under a
subheading of "reporting illegal or unethical behavior" Zimmer stated, "if either say that the
other violated policy. Remember that employee was complacent and could have reported it to
the hotline anonymously. (!d.) A few hours later, Strazzella authored an email to George that

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stated, "Hey, when you have a firmer handle on all the documentation/situation, Mr. Carroll
requested a termination letter. Jeanette had said that we need not supply him with one at the time
of termination." (D.I. 38 Ex. F) On August 14, 2009, Clay Adams ("Adams"), PHR Manager of
Employee Relations, authored an email to George that stated, "ifyou and Jeanette feel that it was
a solid investigation and all the facts are straight, there shouldn't be a problem defending the

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termination decision ..... I also, don't know what he is saying about his and Cooper's working
relationship. It's one thing ifthey are peers, but if Carroll looks at Cooper as being 'senior' and a
person of authority, you will want to look at it, even ifthey have the same job title." (D.I. 38 Ex.
G)
Plaintiff filed a claim for unemployment benefits with the Delaware Department of Labor
("DDOL"), Division of Unemployment Insurance. (D.I. 38 Ex. H) Defendant opposed the
claim and it was initially denied, but the decision was reversed by the Appeals Referee. (!d.) On
June 2, 2010, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity
Commission ("EEOC"), alleging Defendant discriminated against him by reason of race pursuant
to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The EEOC issued a right
to sue notice on August 2, 2011. (D .I. 2 Ex. M) Plaintiff testified during his deposition that he is
not claiming race discrimination. (D.I. 40 Ex. A51-52)
When asked about the claims raised in the Complaint, Plaintiff testified that he was
wrongfully terminated when he was accused of something he did not do. (D.I. 40 Ex. at 39) He
testified that Defendant made false allegations and he was not given a fair opportunity to defend
himself against the allegations. (!d. at 4 7) He acknowledged that in Delaware an employee can
be fired for whatever reason the employer chooses. (!d. at 40) He further testified that he was

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defamed when Defendant sent a letter to the DDOL and the EEOC that Plaintiff had overstepped
his authority. (/d. at 41-42) In addition, the letter was "published internally." (/d. at 43)
Plaintifftestified that he has shared the DDOL determination with prospective employers. (/d. at
45-46) Finally, Plaintiff testified that retaliation occurred because he was not notified ofhis
rights under ERISA and "things" he was entitled to upon his termination, and he was not allowed
to return to his office to retrieve his personal belongings. (!d. at 50) Plaintiff testified that

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Defendant was "getting back at [him]" and that Defendant 'just wanted to cause [him] additional
harm." (/d. at 50-51)

III.

LEGALSTANDARDS
"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 oflaw." Fed. R.
Civ. P. 56( a). The moving party bears the burden of demonstrating the absence of a genuine
issue of material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
586 n.l 0 (1986). An assertion that a fact cannot be- or, alternatively, is- genuinely disputed
must be supported either by citing to "particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for the purposes of the motion only), admissions, interrogatory answers, or
other materials," or by "showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the
fact." Fed. R. Civ. P. 56(c)(l)(A) & (B). If the moving party has carried its burden, the
nonmovant must then "come forward with specific facts showing that there is a genuine issue for
trial." Matsushita, 475 U.S. at 587 (internal quotation marks omitted). The Court will "draw all

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reasonable inferences in favor of the nonmoving party, and it may not make credibility
determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000).
To defeat a motion for summary judgment, the non-moving party must "do more than
simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475
U.S. at 586; see also Podohnik v. United States Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005)
(stating party opposing summary judgment "must present more than just bare assertions,
conclusory allegations or suspicions to show the existence of a genuine issue") (internal
quotation marks omitted). However, the "mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for summary
judgment;" and a factual dispute is genuine only where "the evidence is such that a reasonable
jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 24 7-48 ( 1986). "If the evidence is merely colorable, or is not significantly probative,
summary judgment may be granted." !d. at 249-50 (internal citations omitted); see also Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986) (stating entry of summary judgment is mandated
"against a party who fails to make a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear the burden of proof at trial").

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Thus, the "mere existence of a scintilla of evidence" in support of the non-moving party's
position is insufficient to defeat a motion for summary judgment; there must be "evidence on
which the jury could reasonably find" for the non-moving party. Anderson, 477 U.S. at 252.

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IV.

DISCUSSION

Plaintiff moves for summary judgment on the grounds that there is no genuine issue of
material fact and he is entitled to summary judgment as a matter oflaw. Defendant moves for
summary judgment on the grounds that: (1) Plaintiffs defamation, civil rights, due process, and
retaliation claims fail as a matter oflaw; and (2) Plaintiff was an at-will employee and cannot
maintain a claim for wrongful termination.

A.

Defamation

The Complaint alleges that Defendant made slanderous, libelous, and derogatory false
statements to the EEOC and the DDOL. In his motion for summary judgment, Plaintiff adds that
internal communications were defamatory. Plaintiff moves for summary judgment on the
grounds that, as a result of his termination, his character has been defamed by Defendant's false
accusations of fraud, theft, and dishonesty. Defendant moves for summary judgment on the
grounds that the communications with the EEOC and the DDOL are protected by qualified
privilege, the communications were not defamatory, the statements made were truthful, and it
was Plaintiff who disseminated information to potential employers.
Defamation is defined as "that which tends to injure 'reputation' in the popular sense; to
diminish the esteem, respect, goodwill or confidence in which the plaintiff is held." Spence v.

Funk, 396 A.2d 967, 969 (Del. 1978). To establish a claim for defamation, Plaintiff must
establish: (1) the defamatory character of the communication; (2) publication; (3) that the
communication refers to Plaintiff; (4) the third party's understanding ofthe communication's
defamatory character; and (5) injury. See Read v. Carpenter, 1995 WL 945544, at *2 (Del.
Super. Ct. June 8, 1995).

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In Delaware, an absolute privilege attaches to all statements made in the course of judicial

proceedings. See Short v. News-Journal, 212 A.2d 718 (Del. 1965). The absolute privilege
protects attorneys and participants in litigation from actions for defamation. See id. at 410. The
privilege affords absolute protection upon a showing that the statements were issued as part of a
judicial proceeding and the alleged defamation is relevant to a matter at issue in the case. See id.
The privilege is not confined to events inside a courtroom, but extends to all communications
relating to the litigation, including communications with witnesses and the drafting and filing of
pleadings. See Nix v. Sawyer, 466 A.2d 407, 410-11 (Del. Super. Ct. 1983).
The absolute privilege bars Plaintiff's defamation claims based upon communications
made by Defendant, its attorneys, and employees during the course of the DDOL and EEOC
litigation. In addition, Plaintiffhas no defamation claim for the self-publication of the alleged
defamatory information to potential employers and others. "Self-publication occurs when a
plaintiff publishes an allegedly defamatory communication to a third party instead of the
defendant publishing it to a third-party." Gilliland v. St. Joseph's at Providence Creek, 2006 WL
258259, at *8 (Del. Super. Ct. Jan. 27, 2006). In Delaware, self-publication does not satisfy the
publication requirement for a defamation action. See id. Without publication, Plaintiff does not
have a claim for defamation.
No reasonable jury could find for Plaintiff on the defamation issue. In addition, the claim
fails as a matter oflaw. Therefore, the Court will deny Plaintiff's motion for summary judgment
and will grant Defendant's motion for summary judgment on defamation.

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B.

Civil Riehts/42 U.S.C. § 1983

Plaintiff moves for summary judgment on the grounds that he was denied due process of
law under the Fourteenth Amendment and he was not afforded an opportunity to be heard.
Defendant moves for summary judgment on the grounds that, as an at-will employee of a private
employer, Plaintiff had no legal entitlement to "due process" or an "opportunity to be heard."
To the extent that Plaintiff raises a claim pursuant to 42 U.S.C. § 1983, the claim fails as
a matter oflaw. When bringing a§ 1983 claim, a plaintiff must allege that some person has
deprived him of a federal right, and that the person who caused the deprivation acted under color
of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). To act under "color of state law," a
defendant must be "clothed with the authority of state law." !d. at 49.

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Defendant is not a state actor and is not "clothed with the authority of state law."
Reichley v. Pennsylvania Dep 't ofAgric., 427 F.3d 236, 244-45 (3d Cir. 2005); Biener v. Calio,

361 F.3d 206, 216-17 (3d Cir. 2004). Defendant is corporation that employed Plaintiff.
Therefore, the Court will deny Plaintiffs motion for summary judgment and will grant
Defendant's motion for summary judgment on the§ 1983 claim.
C.

Title VII - Race Discrimination

Defendant moves for summary judgment on the race discrimination claim on the grounds
that Plaintiffhas abandoned the claim. While Plaintiff filed a charge with the EEOC alleging

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employment discrimination by reason of race discrimination, during his deposition he testified
that he was not pursuing the race discrimination claim. Accordingly, the Court will grant
Defendant's motion for summary judgment on the Title VII race discrimination claim.

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D.

Wroneful Termination

Plaintiff moves for summary judgment on the ground that he was not terminated for just
cause. Defendant moves for summary judgment on the grounds that Plaintiff concedes that he
was an at-will employee and there are no exceptions to the at-will doctrine that provide a basis
for any wrongful termination claim.
Plaintiff argues that was not terminated for just cause given that he is "innocent of the
charges represented." (D.I. 38 at 7) Defendant argues that Delaware is an at-will employment
state and that it retained the right to terminate Plaintiffs employment, with or without cause and
with or without notice.
Ordinarily, employment in Delaware is considered employment at-will, terminable at the
will of either party with or without cause. See Haney v. Laub, 312 A.2d 330, 332 (Del. Super.

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Ct. 1973);Avallonev. WilmingtonMed. Ctr., 553 F. Supp. 931,936 (D. Del. 1982). The
existence of an employee handbook that is a unilateral statement of company policies and that
does not set out a definite term of employment does not alter a plaintiffs at-will employment
status. See e.g., Gibbs v. Allen's Family Foods, 2012 WL 5830697 (Del. Super. Ct. Apr. 25,
2012).

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Although Delaware is an at-will employment state, an employer has an implied covenant

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of good faith and fair dealing with every employee, and a claim can be brought for a breach of
this covenant. See E.!. DuPont Nemours v. Pressman, 679 A.2d 436 (Del. 1996). The Delaware
Supreme Court has explained the difference between the doctrine of employment at-will and the
covenant of good faith and fair dealing as follows: "The [employment at-will] doctrine generally
permits the dismissal of employees without cause and regardless of motive. Nevertheless, we

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hold that the covenant [of good faith and fair dealing] permits a cause of action against an
employer for the deceitful acts of its agent in manufacturing materially false grounds to cause an
employee's dismissal." !d. at 437. In this context, a breach of the covenant of good faith and fair
dealing occurs in four limited circumstances: (1) termination of employment when the
termination violates public policy; (2) where the employer misrepresents important facts,
inducing an employee either to stay or accept a new position; (3) when an employer uses its
superior bargaining power to deprive the employee of clearly identifiable compensation related to
the employee's past services; or (4) the employer falsifies or manipulates employment records to
create fictitious grounds for termination. See Lord v. Souter, 748 A.2d 393, 400 (Del. 2000).
The record reflects that Plaintiff was discharged by Defendant for violation of

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timekeeping procedures. Plaintiff admitted he saw employees under his supervision leave the
premises early and he did not see them punch their timecards when they left. Yet, he did not
report the early departure to his superiors but, instead, spoke to the Cooper, the other supervisor
on duty that evening. In failing to notify his superiors, and in also leaving the premises early,
Plaintiff appears to have condoned the early departure, all of which was in derogation of
Defendant's timekeeping policies. The record does not reflect that any employee manufactured
false allegations, and the other exceptions to the at-will employment doctrine are inapplicable.
Accordingly, Plaintiffs wrongful discharge claim falls outside the limited exception to the
doctrine of at-will employment.
Finally, having carefully reviewed the record, the Court finds that Plaintiff was an at-will
employee at the time ofhis discharge from ABM's employment. The portions of the employee
handbook submitted in support of the motions for summary judgment did not alter Plaintiffs

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at-will employment status. See Heideck v. Kent Gen. Hasp., Inc., 446 A.2d 1095, 1096 (Del.
1982).
Plaintiffs wrongful discharge claim fails to state a cause of action for which a remedy is
available under Delaware law. Therefore, the Court will deny Plaintiffs motion for summary
judgment and will grant Defendant's motion for summary judgment and on the wrongful
discharge claim.

E.

Retaliation

Plaintiff alleges retaliation occurred because he was unable to return to his office to
retrieve personal belongings which were never returned to him, and he was not notified of the
"things" (i.e., benefits) to which he was entitled upon his termination. Defendant moves for
summary judgment on the grounds that Plaintiff did not engage in protected activity prior to his
termination.
Plaintiff does not indicate under what law his retaliation claim proceeds. To the extent
that Plaintiff alleges a common law retaliation claim or a Title VII retaliation claim, the claims
fail. In both instances, Plaintiff must demonstrate that the discharge occurred in retaliation for
protected activities. See Griesbaum v. Aventis Pharm., 259 F. App'x 459, 465 (3d Cir. Dec. 24,
2007) (applying Title VII retaliation law when analyzing common law retaliation claim). To
establish a prima facie case of retaliation, a plaintiff must show that: (1) he engaged in a
protected employee activity; (2) he suffered an adverse employment action; and (3) there was a
causal connection between his participation in the protected activity and the adverse employment
action. See, e.g., Fasold v. Justice, 409 F.3d 178, 188 (3d Cir. 2005). Here, the alleged
retaliatory acts occurred prior to the time Plaintiff engaged in the protected activity, i.e., the filing

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of a charge of discrimination and a claim for unemployment insurance benefits. 1
Plaintiff has failed to establish retaliation by Defendant. Therefore, the Court will deny
Plaintiffs motion for summary judgment and will grant Defendant's motion for summary
judgment on the issue.

VI.

CONCLUSION
For the above reasons, the Court will deny Plaintiff's Motion for Summary Judgment

(D.I. 38) and will grant Defendant's Motion for Summary Judgment (D.I. 39).
An appropriate Order will be entered.

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To the extent Plaintiff alleges retaliation by reason of Defendant's failure to notify him
of benefits available upon his termination, the record reflects that Plaintiff's COBRA benefit
notification claims were fully settled on May 11, 2010. See Carroll v. Strazzella, Civ. No. 10182-JJF-MPT (D. Del.). (See D.l. 2 Ex. L)
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