Hanzer v. Mentor Network

Filing 29

REPORT AND RECOMMENDATIONS re 20 MOTION to Strike filed by Mentor Network. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 8/16/2012. Signed by Judge Mary Pat Thynge on 7/30/2012. (cak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

MIRIAM HANZER
Plaintiff,
v.
THE MENTOR NETWORK
Defendant.

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C. A. No. 12-363-LPS-MPT

REPORT AND RECOMMENDATION
I.

INTRODUCTION
A.

Procedural Background

Pro se plaintiff Miriam Hanzer (“plaintiff”) filed a complaint for employment
discrimination under Title VII of the Civil Rights Act of 1964 on July 26, 2011,1 alleging
Mentor Network (“defendant”) engaged in discriminatory conduct resulting in termination
of employment, failure to promote, failure to stop harassment, and retaliation.2 She
alleges defendant discriminated against her because of her race, national origin, and
color.3 The case was transferred to the District of Delaware from the Eastern District of
Pennsylvania on March 3, 2012,4 and a motion to strike specific allegations of the
complaint was subsequently filed by defendant on April 24, 2012.5 Respective
1

D.I. 1.
Id. at 2-3.
3
Id. at 3.
4
D.I. 11.
5
D.I. 20.
2

supporting and opposing briefs were filed by defendant and plaintiff on April 24, 2012,6
and June 8, 2012.7 Defendant filed its brief in reply on June 18, 2012.8 Presently
before the court is defendant’s motion to strike paragraphs II.E 2-4, 7-8, 11, 13, 15-18,
20-21, and 22 (partial) from plaintiff’s complaint under Federal Rule of Civil Procedure
12(f).9
B.

Legal Standard

Pursuant to Rule 12(f), on a party’s motion, “[t]he court may strike from a
pleading . . . any redundant, immaterial, impertinent, or scandalous matter.”10
“Immaterial matter is that which has no essential or important relationship to the claim
for relief or the defenses being pleaded.”11 “Impertinent matter consists of statements
that do not pertain, and are not necessary, to the issues in question.”12 Scandalous
matter has been defined as “that which improperly casts a derogatory light on someone,
most typically on a party to the action.”13 Although motions to strike “serve to ‘clean up
the pleadings, streamline litigation, and avoid unnecessary forays into immaterial

6

D.I. 21.
D.I. 27.
8
D.I. 28.
9
D.I. 20.
10
Fed. R. Civ. P. 12(f).
11
Delaware Health Care, Inc. v. MCD Holding Co., 893 F. Supp. 1279, 12911292 (D. Del. 1995).
12
Id. at 1292.
13
Aoki v. Benihana, Inc., 839 F. Supp. 2d 759, 764 (D. Del. 2012) (quoting
Carone v. Whalen, 121 F.R.D. 231, 233 (M.D. Pa. 1988)).
7

2

matters,’”14 as a general matter, these motions are disfavored.15 They “ordinarily are
denied ‘unless the allegations have no possible relation to the controversy and may
cause prejudice to one of the parties.’”16 Therefore, “even where the challenged
material is redundant, immaterial, impertinent, or scandalous, a motion to strike should
not be granted unless the presence of the surplusage will prejudice the adverse party.”17
When ruling on a motion to strike, the court must construe all facts in favor of the
nonmoving party,18 and it “should not grant a motion to strike an allegation unless the
allegation is clearly insufficient.”19
C.

Positions of the Parties

Defendant contends the complaint is “replete with superfluous and prejudicial
allegations regarding her employment with Mentor that are immaterial to her national
origin discrimination and retaliation claims.”20 It argues the complaint “contains
numerous immaterial allegations that, if allowed to remain in the Complaint, will
significantly prejudice Defendant.”21 To show prejudice, defendant posits the following
14

Penn Mut. Life Ins. Co. v. Norma Espinosa 2007-1 Ins. Trust, C.A. No. 09-300LPS, 2011 U.S. Dist. LEXIS 17172, at *4 (D. Del. Feb. 22, 2011) (quoting McInerney v.
Mayer Lumber & Hardware, Inc., 244 F. Supp. 2d 393, 402 (E.D. Pa. 2002)).
15
O’Gara ex rel. Portnick v. Countrywide Home Loans, Inc., C.A. No. 08-113JJF, 2010 U.S. Dist. LEXIS 77130, at *3 (D. Del. July 30, 2010) (citing Seidel v. Lee,
954 F. Supp. 810 (D. Del. 1996)).
16
Sun Microsystems, Inc. v. Versata Enters., 630 F. Supp. 2d 395, 402 (D. Del.
2009) (quoting McInerney v. Moyer Lumber and Hardware, Inc., 244 F. Supp. 2d 393,
402 (E.D. Pa. 2002)).
17
Symbol Techs., Inc. v. Aruba Networks, Inc., 609 F. Supp. 2d 353, 359 (D. Del.
2009) (internal quotations omitted).
18
Proctor & Gamble Co. v. Nabisco Brands, Inc., 697 F. Supp. 1360, 1362
(D. Del 1988) (citations omitted).
19
Aoki, 839 F. Supp. 2d at 764 (internal quotations omitted).
20
D.I. 21 at 4.
21
Id. at 5.
3

regarding paragraphs II.E 2-4, 7-8, 11, 13, 15-18, 20-21, and 22 (partial):
(1) allegations at issue “tend to portray Mentor in a bad light and are thus prejudicial;”22
(2) the “immaterial allegations confuse the issues before the Court and waste judicial
time and resources;”23 and (3) “allowing [plaintiff] to proceed with such statements in her
Complaint could potentially broaden discovery beyond the limited claims she purports to
assert . . . and cause the parties to litigate matters that are not at issue in this case.”24
In response, plaintiff counters by arguing “all of the Incidents that I Documented
will show what lead up to the Threats, Intimidation, the Harassment, Discrimination and
the Defamatory Pre Se statements made by the defendant managers and staff.”25 She
insists the allegations demonstrate how “managers on repeated occasions tried to make
[her] resign [her] position utilizing discriminatory and unfair treatment” and tried to
“sabotage [her] with repeated interruption, confusion and inaccurate directions.”26 In
addressing the alleged prejudice to defendant, plaintiff states “the defendant worry
about the damages THE TRUE [sic] can cause to their reputation but what about the
damages The WILLFUL, DELIBERATE, MALICIOUS AND OUTRAGEOUS CONDUCT
AND THE DEFAMATORY PER SE statements made up by MENTOR Managers . . . are
causing to me and my family.”27 Plaintiff suggests the allegations establish how the
22

Id. at 11.
Id.
24
Id.
25
D.I. 27 at 1-2. When citing directly to plaintiff’s brief in opposition, the court will
literally quote all language as it appears in plaintiff’s filing. Likewise, the same holds
true for all language quoted directly from plaintiff’s complaint (D.I. 1).
26
Id. at 13.
27
Id. at 12 (additional emphasis omitted). Although the quoted language
references “damages,” plaintiff is responding to defendant’s claim the averments “tend
to portray Mentor in a bad light and are thus prejudicial.”
23

4

relief sought “stems from the natural proximate consequences of Defendants wrongful
actions.”28
II.

ANALYSIS
“When faced with allegations that could possibly serve to achieve a better

understanding of plaintiff’s claims or perform any useful purpose in promoting the just
disposition of the litigation, courts generally deny such motions to strike.”29 “‘A court
should not grant a motion to strike an allegation unless the allegation is clearly
insufficient.’”30 Here, the allegations at issue relate to plaintiff’s Title VII action claiming
defendant discriminated against her race, color, and national origin.31 Plaintiff argues
the discrimination is manifested by termination of her employment, failure to promote,
failure to stop harassment, and retaliation.32 Defendant believes “Ms. Hanzer offers this
Court with no explanation as to why the allegations contained in the challenged
paragraphs are properly within the scope of her Title VII national original [sic] and race
discrimination and harassment claims or her Title VII retaliation claim.”33 However,
plaintiff insists the allegations at issue explain defendant’s conduct, which eventually
culminated in the events giving rise to the action presently before the court.34
Title VII provides, in relevant parts, that is shall be unlawful for an employer to
28

D.I. 27 at 7.
Delaware Health Care, Inc., 893 F. Supp. at 1292.
30
Aoki, 839 F. Supp 2d at 764 (quoting Singleton v. Medearis, C.A. No. 09-CV1423, 2009 U.S. Dist. LEXIS 101187, at *2 (E.D. Pa. Oct. 28, 2009)).
31
D.I. 1 at 3.
32
Id. at 2-3.
33
D.I. 28 at 3.
34
D.I. 27 at 1-2. Incidents “show what lead up to the Threats, Intimidation, the
Harassment, Discrimination and the Defamatory Pre Se statements made by the
defendant managers and staff.”
29

5

“fail or refuse to hire or 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.”35
For a Title VII claim alleging discrimination, plaintiff must prove:
(1) [she] is a member of a protected class; (2) [she] suffered from 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.36
With respect to the alleged “failure to stop harassment,” the court considers
harassment claims under the framework for hostile work environment.37 “The
determination of whether the quantity and quality of racial harassment has created a
hostile work environment is made on a case-by-case basis after considering the totality
of the circumstances.”38 To establish a Title VII claim premised on a hostile work
environment, plaintiff must demonstrate:
(1) [she] suffered intentional harassment because of [her] race; (2) the
35

42 U.S.C. § 2000e-2.
Cuffee v. Dover Wipes Co., 334 F. Supp. 2d 565, 577 (D. Del. 2004).
37
See Nieves v. Acme Mkts., Inc., 541 F. Supp. 2d 600, 606 (D. Del. 2008)
(analyzing allegations of harassment under framework for hostile work environment
claim, finding “not all workplace conduct that may be described as harassment rises to
the level of a hostile work environment.”); see also Kunin v. Sears Roebuck and Co.,
175 F.3d 289, 293 (3d Cir. 1999) (stating a plaintiff can demonstrate a violation of Title
VII by proving the harassment at issue created a hostile or abusive work environment);
Mack v. Greenville Ret. Cmty., LLC, No. 00-470-GMS, 2001 U.S. Dist. LEXIS 17427, at
*10 (D. Del. Oct. 23, 2001) (“In order to fall within the purview of Title VII, the conduct in
question must be severe or pervasive enough to create both an objectively hostile or
abusive hostile work environment . . . and an environment the victim-employee
subjectively perceives as abusive or hostile.”).
38
McLean v. Communications Constr. Group, LLC, 535 F. Supp. 2d 485, 489 (D.
Del. 2008) (citing Andrews v. City of Philadelphia, 895 F.2d 1469, 1482-84 (3d Cir.
1990)).
36

6

harassment was severe or pervasive; (3) the harassment detrimentally
affected plaintiff[]; (4) the harassment would detrimentally affect a
reasonable person of the same race in that position; and (5) the existence
of respondeat superior liability.39
Finally, with respect to retaliation, “a plaintiff claiming retaliation must first
establish a prima facie case for retaliation under Title VII.”40 In order to do so, plaintiff
must demonstrate by a preponderance of the evidence: (1) [she] engaged in protected
activity; (2) the defendant took adverse employment action against [her]; and (3) a
causal link exists between the protected activity and the adverse action.41
Keeping these elements in mind and construing all facts in favor of the
nonmoving party,42 the court will now examine the allegations at issue to determine
which could “possibly serve to achieve a better understanding of plaintiff’s claims or
perform any useful purpose in promoting the just disposition of the litigation.”43
A.

Paragraphs 2, 3, and 4

Defendant moved to strike paragraphs II.E 2, 3, and 4 in their entirety. The
pertinent facts and analysis for these paragraphs are related, and will be considered
together. The paragraphs read as follows:
Paragraph 2. On November 2009, I was asked to check the Personal
Spending Records (PSR) from 4 of our clients in one of our housing units
because the Assistances Program Manager (APM) Nancy Beil was unable
to check the PSR book on the prior months. I found numerous
discrepancies in the PSR from three clients. I informed the Program
Manager (PM) Karen McGee about the discrepancies I founded. PM then
39

McLean, 535 F. Supp. 2d at 489-490.
Cuffee, 334 F. Supp. 2d at 574.
41
Id. at 575.
42
Proctor & Gamble Co. v. Nabisco Brands, Inc., 697 F. Supp. 1360, 1362
(D. Del 1988)(citations omitted).
43
Delaware Health Care, Inc., 893 F. Supp. at 1292.
40

7

wanted me to falsify documents to the PSR and that we put the missing
money back into the clients accounts. At that time I informed the PM that I
was not going to falsify documents and put money out of my pocket to
cover people that misappropriated money from our participant accounts.
PM then stated that she would put the money back to cover her friend, at
that time the PM stated she was going to terminated that staff that was
involved in the incident because she took a lot more money than before.
PM reported the incident to the Division of Developmental Disabilities
Services (DDDS) but she only reported that the money was missing from
one of the books.44
Paragraph 3. PM replaced the money with store invoices (personal items
was purchases for clients) and stated that she would purchases the
money orders to be sent to Pharamerica as stated on the PSR book for
July and Augsut 2009 to pay clients co-pays. At that time she informed
me that I need to sign off on the PSR, I informed the PM at that time that I
refused to sign any illegal documentation because I did not want to get in
any trouble with the law. I informed the PM it was the APM responsibility
to ensure that the House Manager doing her job and to ensure the PSR
books are up to date at the end of each month. After that incident without
notice the PM informed me that I would have to sign off the PSR book
every month. With my good judgment I could not falsify documentation
and sign off on those PSR books, but I agree to correct one PSR book
and start to sign it after these months. I notice something was not right
after this incident so I ask to be put on a day time position when one come
available. I use the excuse that I wanted to be able to work overtime
without have to look for a part time job.45
Paragraph 4. I also have couple of incidents prior to the above, one of
our clients had to report to his parole officer every two weeks, the APM
always was complaining to me that I should be the one that take the client
to court or to meet his parole officer and not her (APM) or other staff
because I was the Case Manager. I never refused to take the client to the
parole office or to the court but I refused to falsify information to the parole
officer or to the judge because most of the time they did not informed the
parole officer when the client violate the rules and state that everything
was ok, the PM and APM did not want the client to go back to jail because
this client is the son of one of the Director of the DDDS and they always
try to keep him happy, in order for the company to continue getting new
clients even when the company was on probation and should not get new

44
45

D.I. 1 at 4, ¶ 2.
Id. at 4, ¶ 3.
8

clients, stated the PM.46
As defendant correctly points out, these particular allegations, although related to
plaintiff’s employment with Mentor, are “immaterial to her national origin discrimination
and retaliation claims.”47 The events alleged therein take place before December 2009,
the time at which plaintiff first complains of actions by defendant in violation of Title VII.48
Plaintiff does not attempt to connect these allegations to any racial or discriminatory
motives, only referring to allegedly unlawful falsification of documents and unequal
treatment of clients.49 The complaint admits as much, positing “Karen McGee (PM)
started harassing me in retaliation for objecting [to] illegal misconduct and violation of
public policy.”50 Plaintiff clearly alleges defendant’s initial retaliation was a response to
these objections, objections to actions not falling within the purview of Title VII.
After the initial retaliation according to plaintiff, “then the PM and APM started to
making fun, jokes, and slander statement about my Spanish accent.”51. She clearly
portrays the actions giving rise to the Title VII claim as beginning in December 2009,
and does not put forth facts creating any inference of discrimination in relation to
defendant’s alleged actions in these specific paragraphs. Even when liberally
46

Id. at 4-5, ¶ 4.
D.I. 21 at 4.
48
See D.I. 1 at 5, ¶ 5. Plaintiff asserts in December 2009, “the PM and APM
started to making fun, jokes and slander statement about my Spanish accent.” This is
the first time the complaint refers to any racially motivated or discriminatory actions by
defendant or its agents.
49
See Id. at 4-5, ¶ 4. Plaintiff does not allege unfair treatment due to race or
national origin, rather she asserts “the PM and APM did not want the client to go back to
jail because this client is the son of one of the Director of the DDDS and they always try
to keep him happy.”
50
Id. at 5, ¶ 5 (emphasis added).
51
Id. at 5, ¶ 5 (emphasis added).
47

9

construing the complaint in plaintiff’s favor,52 the court cannot deduce any relation
between plaintiff’s allegations and her Title VII claims. The facts asserted within do not
“serve to achieve a better understanding of plaintiff’s claims or perform any useful
purpose in promoting the just disposition of the litigation.”53 These allegations “have no
possible relation to the controversy,”54 therefore the court recommends paragraphs 2, 3,
and 4 be stricken in their entirety.
B.

Paragraphs 7, 8, and 11

Defendant also moved to strike paragraphs II.E 7, 8, and 11 from the complaint.
Again, the pertinent facts and analysis for these paragraphs are related, and will be
considered together. The paragraphs read as follows:
Paragraph 7. On 1/25/2010 around 8:30am, I informed the APM that I
applied for a part time job with other agency for work when I’m off and on
weekends. APM stated that it will be to much work but I stated that I did
not work on weekends and I’m not in on-call rotation. On the same day
around 10:00am the PM called me and informed me that it will be an
emergency meeting that day at the office with all the House Manager.
The PM also accuse me and then asked me why I was given overtime to
the staff under my supervision, PM stated that the prior week I gave
overtime to the staff when I send the staff to take some offices and
cleaning supplies to one of the houses and told the staff to clean the
bathroom because it was very dirty as I was told by other staff. I told PM
that I never gave overtime to the staff, when the staff worked over time the
APM gave the permission to the staff, so the staff could cover open shift to
one of the houses. I also informed the PM the prior week I gave the staff
two day off, one day because she with not have anything to do because it
was a holiday and one because the staff has personal business to take
52

See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (stating “a document filed pro
se is ‘to be liberally construed’ and ‘a pro se complaint, however inartfully pleaded, will
be held to less stringent standards than formal pleadings drafted by lawyers’”) (internal
citations omitted) (quoting Estelle v. Gamble, 429 U.S. 97 (1976)).
53
Delaware Health Care, Inc., 893 F. Supp. at 1292.
54
McInerney v. Moyer Lumber and Hardware, Inc., 244 F. Supp. 2d 393, 402
(E.D. Pa. 2002).
10

care of, so even with the holiday the staff would be under her 40 hours.
PM then told me that if a bathroom needs to be clean from now on I with
have to clean it myself or ask the staff that works in the house to clean it
but on 01/20/2010 the PM and APM stated during a meeting to not give
directions or give assignments to the staff on duty at the houses because
it can create a conflict. Housekeeping duties was not describe in my job
functions.55
Paragraph 8. During the meeting on 1/25/2010 I informed the program
manager of a situation on one of our housing units, during a House
Manager meeting, at that time I stated that we need to have two staff at
the house during the overnight shift because of the fire drills and a safety
issue, I stated that one staff is unable to take all the ladies out of the
house within the two minutes time frame during the fire drill, the fire drills
was taken more than 10 minutes to complete. My main concern was the
safety of the Clients and staff; they could not make it to the meeting point
with the allotted time because two autistic individuals needed to be
escorted by hand as they would not respond to the fire drill; the other
individual will not get up from the bed, staffs had to pick her up and put her
in the wheelchair, none of these three individuals can be left alone; and I
also stated that we would have a big problem in case of a real emergency
happen. At that time the PM stated that she wasn’t going hire a second
staff for the overnight shift and stated that the staff will need to practice
more fire drills. Also during this meeting PM change my job duties again
and informed me that I was going to be on call every two weeks. After the
meeting I reminded the PM that when the Case Manager position was
offer to me on November 2007, She the PM told me in order for me take
the position that I will not have to work on weekends, I can make up my
own schedule every week, I can take classes on Friday mornings and the
most important I was not going to be on-call, except when she the PM has
to be out of the State, or on vacations. At that time asked the PM why she
did not meet with me first if she was going to change my job functions and
schedule, Why always in front of my Co-worker with loud and threaten
voice. PM stated that she did not need to do it. I told PM that I applied for
a job for work on weekends, because before this incident I was off on the
weekends and why she did not give me prior notice of these changes, she
just look at me.56
Paragraph 11. During this meeting Elizabeth Donovan informed me that I
have to make the Progress Note from January for all the participants, she
also stated that I need to speak with each staff about our clients and teach
55
56

D.I. 1 at 5-6, ¶ 7.
Id. at 6, ¶ 8.
11

the staff to do a better job documenting the clients information. I looked at
the PM and stated to her during the meeting on 1/25/2010 when the PM
order me to start doing the Progress Note I asked her in front of everyone
present in the meeting if I had to start with January or February and the
PM stated only February, now she want to go back a whole month back to
start reading T-log. Elizabeth Donavan stated than we change our mind
because the House Manager are not doing a good job and you have to do
it. I stated to the PM that I have a case log of around 24 participant that it
can take probably around 4 hour the first month to do the Progress Note
for each participant in the way the Elizabeth Donovan is requesting but
PM only look at me and stated that I needed to have January and
February Progress Notes ready by March 5th and that I also have to do my
regular job. There was no way that it can be done working 40 hours a
week. During this meeting Elizabeth Donovan also asked me if I have my
schedule for the following week ready. I stated yes then Elizabeth
Donovan stated than like to see it. I went to my car and got my agenda,
the PM made a copy the PM and Elizabeth Donovan stated that they will
figure out how I can keep doing my regular job and the extra work, the PM
also stated Elizabeth Donovan will do 4 or 5 Progress notes, the PM keep
saying that Elizabeth Donovan will help me but she never help out.57
Although the alleged events alone do not meet the elements required for a Title
VII claim, “workplace conduct is not measured in isolation; instead, whether an
environment is sufficiently hostile or abusive must be judged by looking at all the
circumstances.”58 The “determination of whether the quantity and quality of racial
harassment has created a hostile work environment is made on a case-by-case basis
after considering the totality of the circumstances.”59 In making such determinations,
the court has considers the frequency of the conduct at issue; the severity of the
harassment; whether the conduct is physically humiliating; and whether it unreasonably
interferes with an employee’s work performance.60
57

Id. at 8, ¶ 11.
Nieves, 541 F. Supp. 2d at 606.
59
McLean, 535 F. Supp. 2d at 489 (citing Andrews v. City of Philadelphia, 895 F.
2d 1469, 1482-84 (3d Cir. 1990)).
60
Nieves, 541 F. Supp. 2d at 606.
58

12

Paragraphs 7 and 8 describe events occurring in January 2010, shortly after the
alleged discriminatory harassment began.61 In these paragraphs, plaintiff refers to
confrontations with managers in which she faced accusations she felt were unwarranted
regarding allotment of staff overtime,62 and she was humiliated when told “if a bathroom
needs to be clean from now on [she would] have to clean it [her]self,”63 despite the fact
housekeeping duties were not part of her job description.64 On the same day, plaintiff
alleges the PM made other significant changes to her duties without notice, such as
forcing her to be on call every two weekends.65 Plaintiff took special exception to this
new responsibility, insisting she had been promised work-free weekends as a condition
of her hire in 2008,66 an important condition given her personal scheduling constraints.
Furthermore, plaintiff reports being ignored when she attempted to ask the PM about
her new duties and why the PM would embarrass her in front of co-workers by
addressing her in a loud and threatening voice.67 Paragraph 11 relates to the meeting
referenced in paragraphs 7 and 8, and serves as an additional example of how plaintiff
felt defendant’s employees harbored a personal vendetta against her. Here, plaintiff
again references promises which were broken without notice,68 thereby putting her at a

61

See D.I. 1 at 5, ¶ 5. Plaintiff claims discrimination began in December 2009,
when defendant’s managers criticized her accent.
62
Id. at 5-6, ¶ 7.
63
Id.
64
Id.
65
Id. at 6, ¶ 8.
66
Id. Plaintiff states “she the PM told me in order for me take the position that I
will not have to work on weekends . . . and the most important I was not going to be oncall, except when she the PM has to be out of the State, or on vacations.”
67
Id. at 6, ¶ 8.
68
Id. at 8, ¶ 11.
13

distinct disadvantage as she attempted to successfully complete her duties.
“Looking at all the circumstances,”69 the allegations found within paragraphs 7, 8,
and 11 “serve to achieve a better understanding of plaintiff’s claims.”70 These
allegations shed light on: the temporal proximity between the alleged initial
discrimination and the events at issue; the potentially humiliating consequences of
defendant’s conduct; and the hindrances to plaintiff’s work performance. As a result,
defendant does not meet the high standard required to strike the allegations, and
paragraphs 7, 8, and 11 should remain in their entirety.
C.

Paragraphs 13, 15, 16, 17, and 18

Defendant also moved to strike paragraphs II.E 13, 15, 16, 17, and 18. These
paragraphs too will be considered together as the analysis of the facts found within is
related. The paragraphs read as follows:
Paragraph 13. On 2/15/2010 My husband purchased a new laptop to
help me speed up the task, my personal mouses work so fast with the new
laptop that cut and paste was very hard so I went and purchases a regular
mouse and some office supplies that I needed to keep up with my new
task and keep everything organizes for 2/28/2010.71
Paragraph 15. On 3/2/2010 I asked the Program Manager for comp days
for all the extra hours that I was force to work in order to have the
Progress Note Ready. I keep track of the time I was working at home so I
showed my record to the PM. The PM stated than she did not know that I
was working at home because she (PM) can’t see m working and that she
did not authorizes me to work at home. I told the PM to check Therap, a
computer system that is set up to document the times you enter, read the
notes and exit the system. I also stated to PM that I had to purchased a
new laptop to help speed up the task she gave me, my personal mouses
work so fast with the new laptop so I went and purchased a regular mouse
69

Nieves, 541 F. Supp. 2d at 606.
Delaware Health Care, Inc., 893 F. Supp. at 1292.
71
D.I. 1 at 9, ¶ 13.
70

14

and office supplies that I need to keep out with my new task and keep
everything organizes. PM just keep saying that she will not give me comp
time because she was not at my home to see that I was working.72
Paragraph 16. On 3/3/2010 the PM asked me where was the mouse that
I purchased with the P-Card I told the PM that it was at my house; she
stated then that I cannot buy something with the P-Card for my personal
uses I told the PM that I did not purchases the mouse for my personal
uses, I stated that I bought the mouse to be able to cut and paste better
because my mousses were to fast. I stated to the PM that I have 4
mousses in my house for my own personal use, and the personal laptop
that I was using for work even before I was promoted to Case Manager
was not functioning correctly and I was force to purchase a new one in
order to be able to complete the new job assignment. The program
manager then asked me to bring everything I had in my house to the
office. I did as I was told, I was very hurt and offended, because of the
time and work I put into this new job. I did my best for the company. I
went to my house I was crying a lot I call the office in New Jersey, I ask to
speak Valery Bailey but she was not available, I was crying so much that
my husband has to take the phone from me and spoke with the person on
the phone, he was told that Valery was not available but that she will
return the phone call but Valery never did it. I put everything into boxes
and placed them in front of the office that same day was assigned to me
and I gave the PM the mouse and the usb storage device that I purchased
to store all the clients documents. At that time I showed the program
manager the 4 mousses that I use for personal use, so she can see that I
did not need to uses the company card for my personal uses.73
Paragraph 17. I called the HR department on March 03, 2010, talked with
Christine, she stated that the program manager did not authorize me to
work in my home. The statement the PM made are false PM did
authorized me to work in home first went I was offer the position of Case
Manager because I was not going to have a office the PM stated that I can
do the paper work from my house, also I have an e-mail from the PM
11/12/2009 where she stated that I can take a day to work from my home
or from the office from a working computer because my computer was
having problems, at that time and she want to me be able to completed
documentation of my visits; Christine HR also informed me that the PM did
not authorized me to purchase a mouse or ink to print my work. I told
Christine HR that the PM told me long ago that I did not have to tell her
every time I need something to do my job and that I can purchases ink or
72
73

Id. at 9-10, ¶ 15.
Id. at 10, ¶ 16.
15

work supplies with my P-Card. Christine then stated that I have
everything I need on my office to do my job. I told Christine that I just was
given a office early that day and I was told that I can uses the PM old
computer that was gave to the secretary so I will have to share the
computer with the secretary. I told Christine that every body know that the
company did not give me a computer and that everybody (Stated Workers,
Day Program, Parents and even the PM and APM) was communicating
with me from my personals computer for e-mails because I was not able to
check my work e-mail regularly because I did not have a personal
computer. Christine just told me that can not be possible, that I should of
had a computer at work. I told Christine that I can prove that I been using
my personal computers and printers all these years, I have the
documentations, but she only stated that she just didn’t believe it.74
Paragraph 18. Then Christine told me that the company did not
recognizes comp time and I told Christine that here in Delaware we was
using it and that every body that was salary was using comp time but one
against she did not believe me, even when I said I have prove that the
statement made by the PM were false and than Christine told me to finish
the assignment I was doing and to leave and go home. I was in the
parking lot in front of one of our housing unit. I was crying when the
House Manager came to me and ask me what happen, then we went into
the house and spoke with QA Rachel from New Jersey, she was working
at that time. I explained my situation to her, yes I was crying because I
could not believe that after all the work I did for this company that the
program Manager would give false statement about me I was very offend
and in mental anguish. I showed that QA Rachel my paper track of some
of the irregularities and bad management of the company, she told me to
speak with Valery.75
Again, the “determination of whether the quantity and quality of racial harassment
has created a hostile work environment is made on a case-by-case basis after
considering the totality of the circumstances.”76 In paragraph 10, when speaking of
alleged harassment, plaintiff expresses feeling “very offended about the excessive

74

Id. at 10-11, ¶ 17.
Id. at 11, ¶ 18.
76
McLean, 535 F. Supp. 2d at 489 (citing Andrews v. City of Philadelphia, 895 F.
2d 1469, 1482-84 (3d Cir. 1990)).
75

16

interrogations”77 she was forced to endure. The allegations in paragraphs 15, 16, 17,
and 18 tell of further excessive interrogation which eventually culminated in plaintiff
breaking down and crying.78 Although not speaking directly to discriminatory conduct in
paragraph 13, the allegations within lay the foundation for subsequent paragraphs in
which plaintiff complains of continuing harassment through interrogation and
unreasonable demands.
Construing the allegations in a light most favorable to plaintiff, these paragraphs
“serve to achieve a better understanding of plaintiff’s claims”79 as they provide greater
insight as to the frequency of the conduct at issue and whether it unreasonably
interfered with plaintiff’s work performance.80 Paragraphs 13, 15, 16, 17, and 18 serve
as additional links in the chain of conduct directed at plaintiff immediately following the
December 2009 incident in which she alleges discriminatory conduct began. These
actions are clearly relevant under the totality of the circumstances, and, therefore, the
court recommends paragraphs 13, 15, 16, 17, and 18 not be stricken.
D.

Paragraph 20, 21, and 22 (partial)

Defendant also moved to strike paragraphs II.E 20, 21, and portions of 22.
These paragraphs will be considered together as the analysis of the facts found within is
related. The paragraphs read as follows:
Paragraph 20. When I meet with Valery B., she stated that she can get
me fire because I was furious when I was talking to New Jersey QA. I told
Valery that I was not furious but that I was very upset, offended, and in
77

D.I. 1 at 7, ¶ 10.
Id. at 10-11, ¶¶ 16, 18.
79
Delaware Health Care, Inc., 893 F. Supp. at 1292.
80
Nieves, 541 F. Supp. 2d at 606.
78

17

mental anguish and crying, but that I did not disrespect any one or used
profanity words as other people. This is something she should know
because Veronica Box received a complaint from one staff that stated that
the APM yelled and uses profanity word toward her in front of PM, staff
and clients.81
Paragraph 21. Then Valery said that if the PM did not authorize me to
work at home I should not done it. She also stated that the PM only told
me to bring the stuff that I had at home back to the office because it
needed to be were it belong. I stated to Valery at that time that we moved
into the new office on Monday, and I was placed in a office room the day
before she arrived on 03/03/2010. PM Karen McGee gave me her old
desk and her desktop computer that we all had to share with the
secretary, PM only gave me a computer only because of the incident.82
Paragraph 22. Valery then asked me for my driving record and I gave it
to her. She stated that they have to fax it to the State because they can’t
have a CM driving with no pin number. I told Valery that I told Karen that I
had 6 points on my driving record because I wanted to see what she was
going to do. First I drive my own car I did not need a pin number with
Mentor although I still have my pin because I been never been notify that
my pin has been suspended. I also told Valery that I personally spoke
with Pat W. the person in charge of the State Vehicles and explain my
situation because I applied for a par time job that will require another pin
and since I was going to lose two point at the end of February, she told me
to take a driving safety class and sent the prove to her.
I also informed Valery that the PM manager allow two people to drive the
Stated Vehicle without pin and without driver licenses because their driver
licenses that were suspended, and right now she have a person working
even alone in the houses with many suspensions and have so many
points that will never be allow to get a pin as per APM statement and that
person even transports clients. I also told Valery that the PM and APM
have people working even when they know they uses the Flee vehicles for
personal business and one was reported to be driving over 80 miles an
hour.83
These paragraphs again “serve to achieve a better understanding of plaintiff’s

81

D.I. 1 at 12, ¶ 20.
Id. at 12, ¶ 21.
83
Id. at 12-13, ¶ 22.
82

18

claims”84 when “looking at all the circumstances,”85 therefore they should not be
stricken. Large portions of plaintiff’s complaint revolve around feeling “very stupid,
uncomfortable and offended”86 in response to actions directed at her by defendant’s
employees. These actions range from interrogation to public scolding to jokes directed
at plaintiff’s ethnicity. Additional evidence of actions causing plaintiff to feel these
emotions can be found within paragraphs 20, 21, and 22, as plaintiff alleges being
subjected to unwarranted threats of firing,87 not receiving the same treatment as her
peers,88 and again being forced to endure extensive questioning.89 Therefore, these
allegations contribute to the circumstances leading to plaintiff’s Title VII claim, and it
cannot be said they “‘have no possible relation to the controversy.’”90 As a result, the
court recommends these paragraphs not be stricken.
III.

ORDER AND RECOMMENDED DISPOSITION
For the reasons contained herein, this Court recommends:
(1) As to paragraphs II.E 2-4, defendant Mentor Network’s motion to strike

pursuant to FED. R. CIV. P. 12(f) (D.I. 20) is GRANTED.

84

Delaware Health Care, Inc., 893 F. Supp. at 1292.
Nieves, 541 F. Supp. 2d at 606.
86
D.I. 1 at 13, ¶ 25.
87
Id. at 12, ¶ 20.
88
Id. at 12-13, ¶ 22. Plaintiff was told “[defendant] can’t have [plaintiff] driving
with no pin number”, however plaintiff asserts “the PM manager allow two people to
drive the Stated Vehicle without pin.” Additionally, plaintiff was denied personal use of
the vehicle, despite fact “the PM and APM have people working even when they know
they uses the Flee vehicles for personal business.”
89
Id. at 12, ¶¶ 20-22.
90
Sun Microsystems, Inc. v. Versata Enters., 630 F. Supp. 2d 395, 402 (D. Del.
2009) (quoting McInerney v. Moyer Lumber and Hardware, Inc., 244 F. Supp. 2d 393,
402 (E.D. Pa. 2002)).
85

19

(2) As to paragraphs II.E 7-8, 11, 13, 15-18, 20-21, and 22 (partial), defendant
Mentor Network’s motion to strike pursuant to FED. R. CIV. P. 12(f) (D.I. 20) is DENIED.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1)(B),
FED. R. CIV. P. 72(b)(1), and D. Del. LR 72.1. The parties may serve and file specific
written objections within fourteen days after being served with a copy of this Report and
Recommendation.91 The objections and response to the objections are limited to ten
pages each.
The parties are directed to the Court’s Standing Order in Pro Se matters for
Objections Filed under FED. R. CIV. P. 72, dated November 16, 2009, a copy of which is
available on the Court’s website, www.ded.uscourts.gov.

Date: July 30, 2012

91

/s/ Mary Pat Thynge
UNITED STATES MAGISTRATE JUDGE

FED. R. CIV. P. 72(b)(2).
20