Roane v. Delaware Transit Corporation et al

Filing 35

MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 3/17/15. (etg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
KELVIN E. ROANE,
Plaintiff,
Civ. No. 12-231-LPS

v.

DELAWARE TRANSIT CORPORATION,:
et al.,
Defendants.

Kelvin E. Roane, Bear, Delaware, Pro Se Plaintiff.
Mary Page Bailey, Deputy Attorney General, Delaware Department of Justice, Wilmington,
Delaware. Counsel for Defendants.

MEMORANDUM OPINION

March 17, 2015
Wilmington, Delaware

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I.

INTRODUCTION
Plaintiff Kelvin E. Roane ("Roane" or "Plaintiff') filed this action on February 24, 2012,

against Defendants Delaware Transit Corporation ("DTC") and director of human resources
Margaret Webb ("Webb") pursuant to Title VII of the Civil Rights act of 1964, as amended, alleging
employment discrimination by reason of race and sex. (D.I. 1) Roane amended the complaint on
November 1, 2012, adding Defendants paratransit manager M. Kathryn Wilson ("Wilson") and
labor relations specialist Richard Siebel ("Siebel") as well as new claims pursuant to 42 U.S.C.

§ 1983. (D.I. 6) Roane appears pro se. Presently before the Court is Defendants' Motion for
Summary Judgment. (D.I. 30) Roane did not file an opposition to the motion. For the reasons that
follow, the Court will grant the motion.

II.

BACKGROUND
Roane was employed as a paratransit service supervisor for the DTC. DTC received several

complaints from female employees of sexual harassment. On December 22, 2008, Roane was
warned about an inappropriate conversation with a bus driver when he appeared to seek sexual
favors. (D.I. 32 a A001-03) On January 20, 2009, Roane received a letter of warning concerning
unprofessional and disrespectful conduct that had occurred on January 15, 2009. (Id. at A004)
On April 29, 2009, a white female who was also a paratransit service supervisor, complained
that she received an inappropriate text message of a sexual nature from Roane, that he showed her a
photograph of a man's penis, and that he asked that she photograph herself and share it with him.

(Id. at AOOS) A black female paratransit specialist driver complained that on April 27, 2009, Roane
made sexually inappropriate statements and touched her inappropriately. (Id. at A006-7)

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According to Roane, on April 30 2009, Webb called him into her office, advised him that
she had been informed he had engaged in inappropriate behavior, took his ID badge, and sent him
home. (Id. at A016) Roane denied any wrongdoing and considered the allegations false. (Id. at
A016) Roane unsuccessfully attempted to contact numerous DTC personnel during the next several
days to discuss the matter. (Id.) Roane was informed by letter that a pre-termination hearing was
scheduled for May 11, 2009. (Id.)
Webb, Wilson, Siebel, and Charles Moulds ("Moulds"), a transportation manager, were
present at the meeting. During the meeting, Roane informed management of alleged actions taken
by the fellow female supervisor who had filed a complaint against him. (Id. at A017) Roane claimed
that he had been sexually harassed and had received inappropriate text messages from her, but he
had not made a complaint regarding the alleged conduct. (Id. at A017) Roane was terminated
effective May 22, 2009 for unprofessional behavior in violation of the DTC's sexual and other
unlawful harassment policy. (Id. at A014-15) The DTC determined that Roane had knowingly and
intentionally created a work environment that was demeaning to another employee which
undermined the integrity of the employment relationship. (Id.)
Roane filed a charge of discrimination on February 12, 2010, alleging race discrimination and
sexual harassment. (D.I. 1 Ex.) He received a right to sue letter dated November 28, 2011, and
filed this action on February 24, 2012.

III.

LEGAL STAND ARDS
"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. 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.10

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(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)(1)(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 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 Sero., 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, 247-48 (1986). "If the evidence is merely colorable, or is
not significantly probative, summary judgment may be granted." Id. 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

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element essential to that party's case, and on which that party will bear the burden of proof at trial").
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. With respect to
summary judgment in a discrimination case, the Court's role is "to determine whether, upon
reviewing all the facts and inferences to be drawn therefrom in the light most favorable to the
plaintiff, there exists sufficient evidence to create a genuine issue of material fact as to whether the
employer intentionally discriminated against the plaintiff." Hankins v. Temple Univ., 829 F.2d 437, 440
(3d Cir. 1987).
Roane did not file a response to Defendants' motion. The Court, however, will not grant
the entry of summary judgment without considering the merits of Defendants' unopposed motion.

See Stackhouse v. Mazurkiewic;z; 951 F.2d 29, 30 (3d Cir. 1991) (holding that district court should not
have granted summary judgment solely on basis that motion for summary judgment was not
opposed.).

IV.

DISCUSSION
Roane alleges race discrimination and sexual harassment in violation of 42 U.S.C. § 2000e, et

seq. He asserts constitutional violations pursuant to 42 U.S.C. § 1983.
Defendants move for summary judgment on the grounds that: (1) Roane failed to state a
prima facie case of discrimination; (2) the employer's reason for termination was not based on
gender or race but on Roane's actions in violation of the employer's policy; (3) Roane cannot
demonstrate that the employer's reason is pre-textual; and (4) the§ 1983 claims are time-barred.

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A.

Title VII

Title VII states that "[i]t shall be an unlawful employment practice for an employer to ...
discharge any individual, or otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual's race,
color, religion, sex, or national origin" 42 U.S.C. § 2000e-2(a). A plaintiff may prove race or gender
discrimination by direct evidence as set forth in Price Waterhouse v. Hopkins, 490 U.S. 228, 244-46
(1989), or indirectly through the burden-shifting framework set forth in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973).
Here there is no direct evidence of discrimination, so the Court turns to the McDonnell

Douglas burden-shifting framework. Under this framework, Roane must first establish a prima facie
case of race discrimination by proving that: (1) he is a member of a protected class; (2) he suffered
some form of adverse employment action; and (3) this action occurred under circumstances that
give rise to an inference of unlawful discrimination such as might occur when a similarly situated
person not of the protected class is treated differently. See Jones v. School Dist. of Philadelphia, 198 F.3d
403, 410 (3d Cir. 1999). The elements of a prima facie case may vary depending on the facts and
context of the particular situation. See Pivirotto v. Innovative Sys. Inc., 191 F.3d 344, 352 (3d Cir. 1999).
If a plaintiff succeeds in establishing his prima facie case, the burden shifts to the defendant

employer to proffer a "legitimate non-discriminatory" reason for its actions. See Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). If the defendant meets this burden, the burden again
shifts to the plaintiff to demonstrate, by a preponderance of the evidence, that the employer's
rationale is pretextual. Id at 142-43. To do this, a plaintiff must "point to some evidence, direct or
circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's
articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely

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than not a motivating or determinative cause of the employer's action." Fuentes v. Perskie, 32 F.3d
759, 764 (3d Cir. 1994) (citations omitted). "[T]o avoid summary judgment, the plaintiffs evidence
rebutting the employer's proffered legitimate reasons must allow a factfinder reasonably to infer that
each of the employer's proffered non-discriminatory reasons was either a post hoc fabrication or
otherwise did not actually motivate the employment action (that is, the proffered reason is a
pretext)." Harding v. Careerbuilder, UC, 168 F. App'x 535, 537 (3d Cir. Feb. 27, 2006) (quoting

Fuentes, 32 F.3d at 764) (internal citations and other citations omitted).
Defendants argue that Roane offered no evidence to support his claims that he was treated
differently based upon his gender and race. To make a comparison of his treatment to that of an
employee outside his protected class for purposes of a Title VII claim, Roane must show that he and
the employee(s) are similarly situated in all relevant respects. See Houston v. Easton Area Sch. Dist., 355
F. App'x 651, 654 (3d Cir. Dec. 8, 2009) (citations omitted). Whether a factor is relevant for
purposes of a similarly situated analysis must be determined by the context of each case. See Houston,
355 F. App'x at 654.
In a severance case, the relevant factors may include the positions held, policies or plans in

effect, the decisionmakers, and the timing of the separation. See id. at 655 (citing McGuinness v.

Lincoln Hall, 263 F.3d 49, 54-55 (2d Cir. 2001) (plaintiff established she was similarly situated to
colleague who received more money in severance where the two employees "held positions of
roughly equivalent rank ... were fired at roughly the same time, [and] the decisions with respect to
the severance were both made at the highest levels of the company"). The record reflects that
Roane was terminated for several instances of inappropriate conduct, including complaints of
inappropriate touching and seeking sexual favors. Roane contends that a female supervisor
coworker sent inappropriate emails, but she was not terminated. The Court does not consider the

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acts taken by Roane and the female supervisor to be similarly situated given there were other
numerous complaints made against Roane of a sexual nature, some far more serious than
inappropriate texting. The Court finds that Roane has failed to meet his burden to establish a prima
facie case of race and gender discrimination.
Assuming arguendo that Roane had established a prima facie case of discrimination,
Defendants have provided legitimate, nondiscriminatory reasons for the DTC's decisions to
terminate Roane. The evidence and documentation indicates that Roane was terminated based
upon allegations from two separate employees of inappropriate conduct of a sexual nature in
violation of DTC polices.
There is nothing before the Court that contradicts the proffered reason for Roane's
termination. Nor are Defendants' proffered reasons for the actions taken weak, incoherent,
implausible, or so inconsistent that a reasonable factfinder could rationally find them unworthy of
credence. See Sarullo v. United States Postal Seroice, 352 F.3d 789, 800 (3d Cir. 2003). Construing the
evidence in the light most favorable to Roane, he has not provided evidence from which a fact
finder could either disbelieve Defendants' articulated reasons, or believe that a discriminatory reason
was more likely than not the cause of the employment actions.
In addition, no reasonable jury could find for Roane to the extent that he alleges the

proffered reason for his termination is pretextual. The record reflects that it was not until his pretermination hearing that Roane ever advised the DTC of the alleged harassment by his co-worker.
Nor is there any evidence of record that Roane filed a complaint regarding the alleged harassment
regarding the inappropriate texts.
Accordingly, the Court will grant Defendants' Motion for Summary Judgment on the Title

VII claims.

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B.

42 U.S.C. § 1983

The amended complaint, filed November 1, 2012, raises§ 1983 claims for the first time.
Defendants move for summary judgment on the grounds that the claims are time-barred.
Roane's claims all arose during May 2009. "Limitations periods in 1983 suits are to be
determined by reference to the appropriate 'state statute of limitations and the coordinate tolling
rules."' Hardin v. Straub, 490 U.S. 536, 541 (1989) (citing Board ofRegents, University ofNew York v.

Tomanio, 446 U.S. 4 78, 484 (1980)). However, accrual of such claims are governed by federal law.
See Albright v. Oliver, 510 U.S. 266, 280 n.6 (1994). The relevant state statute of limitations for a
personal injury action in Delaware is two years. See 10 Del. C. § 8119. Roane's claims accrued when
he knew or had reason to know of the injury that forms the basis of this action. See Oshiver v. Levin,

Fishbein, Sedran & Berman, 38 F.3d 1380 1386 (3d Cir. 1994).
The claims accrued in May 2009, yet Roane did not file his complaint until February 2012,
and he did not at that time raise any§ 1983 claims. The amended complaint filed in November
2012 added § 1983 claims. The § 1983 claims are time-barred as having been filed more than two
years from May 2009. Therefore, the Court will grant Defendants' Motion for Summary Judgment
as the § 1983 claims are time-barred.

V.

CONCLUSION
For the above reasons, the Court will grant Defendants' Motion for Summary Judgment

(D.1. 30).
An appropriate Order follows.

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