Saunders v. E.I. Du Pont deNemours and Company

Filing 16

MEMORANDUM OPINION re MOTION to Dismiss (D.I. 10 ). Signed by Judge Richard G. Andrews on 12/12/2014. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
VALERIE 0. SAUNDERS,
Plaintiff,

v.

Civ. No. 14-329-RGA

E.I. DUPONT DE NEMOURS AND
COMPANY,
Defendant.

Valerie 0. Saunders, Smyrna, Delaware. Pro Se Plaintiff.
Kathleen Furey McDonough and Michael Brendan Rush, Esquires. Potter Anderson &
Corroon, LLP, Wilmington, Delaware. Counsel for Defendant.

MEMORANDUM OPINION

December I~. 2014
Wilmington, Delaware

AN~~istrict

Ju ge:

Plaintiff Valerie 0. Saunders appears pro se and has been granted leave to
proceed in forma pauperis. She filed this employment discrimination action against
Defendant E.I. DuPont de Nemours and Company pursuant to 42 U.S.C. §§ 1981, 1
1983,2 2000e, et seq., and 1988, 3 alleging race, gender, and age discrimination and/or
retaliation. Before the Court is Defendant's motion to dismiss. (D.I. 11 ).

BACKGROUND
Plaintiff has a long history of employment by Defendant beginning in 1987,
followed by an interruption in service, with her most recent re-employment by
Defendant in July 2009. (D.I. 2,

1Ml 8, 21-22;

D.I. 12, Ex. A). Between September and

December 2011, Plaintiff committed four quality infractions. (D.I. 2,

~

34, 37, 38). On

December 15, 2011, Plaintiff received "an equivocal special notice of planned action"
that did not offer probation. (Id.

at~

39). The notice offered Plaintiff time to secure

employment within or outside DuPont before a designated termination date of February
29, 2012. (Id. at 1Ml 39, 44; D.I. 14 at 2). Plaintiff's employment was terminated on
February 29, 2012 after she failed to secure employment with Defendant. (Id.

at~

44).

1

While Plaintiff invokes§ 1981 in paragraph 4 of the Complaint, it is not referred
to in any of its nine counts and, therefore, it is unclear if Plaintiff seeks to raise a claim
under that statute.
2

Plaintiff invokes § 1983 in paragraph 4 of the complaint, but it is not referred to
in any of the nine counts. Regardless, the claim is not cognizable because Defendant
is not a State actor. See West v. Atkins, 487 U.S. 42, 48 (1988).
3

Under the Civil Rights Attorney's Fees Award Act, § 1988 provides for an award
of attorney's fees to a prevailing party for claims raised under 42 U.S.C. §§ 1981 and
1983. The claim is inapplicable given that Plaintiff proceeds prose.

On December 20, 2012, Plaintiff filed a charge of discrimination jointly with the
Delaware Department of Labor, Charge No. SAU122012, and the Equal Employment
Opportunity Commission, Charge No. 17C-2013-00180, alleging discrimination on the
basis of race, gender, and age. (D.I. 2,

1J 45).

On December 17, 2013, the EEOC

determined that the charge of discrimination was not timely filed with the EEOC. (D.I. 2,
ex. Dismissal and Notice of Rights). The DOOL had forwarded the charge to the EEOC
stating that it did not have jurisdiction because the charge had been filed beyond the
limitation period under Delaware law. (D.I. 14, ex. 1).
Plaintiff filed the instant complaint on March 13, 2014. (D.I. 2). Counts I, II, and
Ill raise employment discrimination claims of race, gender, and age under Title Vll; 4
Counts IV, V, and IX raise claims under Delaware law under the theories of breach of
implied contract, breach of implied covenant of good faith and fair dealing, and wrongful
discharge; Count VI alleges intentional and negligent infliction of emotional distress;
and Counts VII and VIII seek punitive and consequential damages.
Defendant assumes that Plaintiff meant to raise the age discrimination claim
under the ADEA. It moves for dismissal of the Title VII and ADEA claims on the
grounds that they are barred by the applicable statute of limitations and the State
claims are either barred by Delaware law or Plaintiff has failed to state the necessary
elements of each claim. (D.I. 11). Plaintiff opposes the motion.
As previously noted (see n.1 ), it is unclear if Plaintiff intended to raise a claim
under 42 U.S.C. § 1981 and Defendant does not address the statute in its motion

4

An age discrimination claim under federal law is typically filed under the Age
Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq.

2

to dismiss. The elements of a§ 1981 race discrimination claim are identical to those for
a claim of employment discrimination under Title VII. See Seldon v. National R.R.

Passenger Corp., 452 F. Supp. 2d 604, 608 (E.D. Pa. 2006) (citations omitted).
Section 1981 prohibits "racial discrimination in the making and enforcement of
contracts," Wallace v. Federated Dep't Stores, Inc., 214 F. App'x 142, 144 (3d Cir.
2007), applies to employment contracts, and provides a federal remedy against
discrimination in private employment on the basis of race. Johnson v. Railway Express

Agency, Inc., 421 U.S. 454, 459-60 (1975).
STANDARD OF REVIEW
Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting the
well-pleaded allegations in the complaint as true and viewing them in the light most
favorable to the plaintiff, a court concludes that those allegations "could not raise a
claim of entitlement to relief." Bell At/. Corp. v. Twombly, 550 U.S. 544, 558 (2007). "In
deciding motions to dismiss pursuant to Rule 12(b)(6), courts generally consider only
the allegations in the complaint, exhibits attached to the complaint, matters of public
record, and documents that form the basis of a claim." Lum v. Bank of Am., 361 F.3d
217, 221 n.3 (3d Cir. 2004). Though "detailed factual allegations" are not required, a
complaint must do more than simply provide "labels and conclusions" or "a formulaic
recitation of the elements of a cause of action." Davis v. Abington Mem'I Hosp., 765
F.3d 236, 241 (3d Cir. 2014) (quoting Twombly, 550 U.S. at 555). To survive a motion
to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face. See

Williams v. BASF Catalysts LLC, 765 F.3d 306, 315 (3d Cir. 2014). Although ordinarily

3

treated as an affirmative defense, the statute of limitations may be raised on a motion
to dismiss where the allegations made on the face of the complaint show that the cause
of action is time-barred. Benak v. Alliance Capital Mgmt. L.P., 435 F.3d 396, 400 n.14
(3d Cir. 2006). If a complaint is vulnerable to dismissal based upon an affirmative
defense, a district court must permit a curative amendment, unless an amendment
would be inequitable or futile. Alston v. Parker, 363 F.3d 229, 235 (3d Cir.2 004) (citing
Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002)). Dismissal without

leave to amend is justified only on the grounds of bad faith, undue delay, prejudice, or
futility. Id. at 236.
Because Plaintiff proceeds prose, her pleading is liberally construed and her
Complaint, "however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(internal quotation marks omitted).
DISCUSSION
Title VII and ADEA Claims. Counts I. II. and Ill
The Court turns first to the timeliness of the filing of Plaintiff's charge of
discrimination. Plaintiff's race and gender discrimination claims filed pursuant to Title
VII require a claimant in a "deferral state," like Delaware, to file a charge of
discrimination within 300 days of an unlawful employment practice. See 42 U.S.C.

§ 2000e-5(e)(1 ); Mikula v. Allegheny Cnty. of Pa., 583 F.3d 181, 183 (3d Cir. 2009).
Age discrimination claims under the ADEA have the same statute of limitations. See 29
U.S.C. § 626(d)(1 )(B).

4

Whether the charge of discrimination was timely filed depends upon when the
alleged discriminatory act occurred. Defendant moves for dismissal on the grounds that
alleged discriminatory act occurred on December 15, 2011 when it informed Plaintiff
that she would be terminated in February 2012 if she was unable to find another
position within the company. Plaintiff opposes the motion and contends that the alleged
discrimination occurred on February 29, 2012 when Defendant terminated her
employment. Plaintiff filed her charge of discrimination on December 20, 2012. Under
Defendant's theory, Plaintiff filed her charge 371 days after the alleged discriminatory
act. Under Plaintiff's theory, she filed her charge within the 300 day time-frame.
When determining the proper adverse employment event that triggers the
running of the limitations period, the court looks to Watson v. Eastman Kodak Co., 235
F.3d 851 (3d Cir. 2000), which has a fact pattern very similar to the case at bar. In
Watson, the plaintiff was advised on February 4, 1997, that he was being removed from

his position as an account executive due to poor performance. Id. at 853. In the same
letter, he was told he would be allowed to remain at the defendant company only until
March 7, 1997, unless he found another position within the company. Id. When he
was unable to do so, his employment was terminated on March 7, 1997. Id. The
plaintiff did not file an EEOC charge until 330 days after the termination letter, but less
than 300 days after the March 7, 1997 actual termination date. Id. The district court
granted summary judgment in favor of defendant because the plaintiff did not exhaust
administrative remedies. Id. at 854.
In affirming the district court's ruling, the Third Circuit noted that "the crucial issue
in this case is whether the actionable adverse employment decision was the one to
5

separate [the plaintiff] from the position as account executive or the one to terminate his
employment with [the defendant company] entirely." Id. The Third Circuit relied upon
Delaware State Coll. v. Ricks, 449 U.S. 250 (1980), and upheld the district court's

finding that the unlawful termination claim accrued on February 4, 1997, the date the
plaintiff received the letter from his supervisor. Id. at 857. Notably, the Third Circuit
rejected the position the February 4, 1997 letter was equivocal because it preserved the
possibility of continued employment. Id. at 856. Instead, the Third Circuit found that
even though the plaintiff effectively remained in his account executive position until
March 7, 1997, this did not change the fact that the adverse employment action
occurred on the date that he was clearly informed of the operative decision to
terminate. Id. The Third Circuit has repeatedly reaffirmed that "an adverse
employment action occurs, and the statute of limitations begins to run, at the time the
employee receives notice of that action and termination is a delayed, but inevitable
result." Id. at 853; see, e.g., Ruehl v. Viacom, Inc., 500 F.3d 375, 383 (3d Cir. 2007);
Urban v. Bayer Corp. Pharm. Div., 245 F. App'x 211, 212-13 (3d Cir. 2007); Thompson
v. General Elec. Co., 81 F. App'x 415, 417-18 (3d Cir. 2003).

Like Watson, Plaintiff was advised on December 15, 2011, that she was being
removed from her position due to several infractions and, in the same letter, she was
told she would be allowed to remain at Defendant company only until February 29,
2012, unless she found another position within the company. When Plaintiff was
unable to do so, Defendant terminated her employment on that date. Plaintiff did not
file an EEOC charge until 371 days after the termination letter, but less than 300 days
after the actual termination date of February 29, 2012. The Complaint alleges no

6

subsequent events, conversations, letters, or other transactions that would have led
Plaintiff to believe, notwithstanding this explicit termination letter, that she would remain
employed absent finding another position with Defendant. Therefore, the Court will
grant Defendant's motion to dismiss Count I, II, and Ill. However, because it is possible
that Plaintiff may be able to cure her factual allegations in order to state a claim, she will
be given an opportunity amend the complaint as to the federal claims.
State Claims
Defendant moves to dismiss the State law claims raised in Counts IV, V, and IX
on the grounds that the claims fail to state a claim upon which relief may be granted,
and Count VI on the basis that it is time-barred. Plaintiff did not respond to this portion
of the motion to dismiss.
Breach of Implied Contract. Count IV
To survive a motion to dismiss for failure to state a breach of contract the plaintiff
must show: (1) the existence of an express or implied contract; (2) a party breached the
obligation imposed by the contract; and (3) any damages that the plaintiff incurred as a
result of the breach. VLIW Tech., LLC v. Hewlett-Pakard Co., 840 A.2d 606, 612 (Del.
2003). "A contract implied in law permits recovery of that amount by which the
defendant has benefitted at the expense of the plaintiff in order to preclude unjust
enrichment." Spanish Tiles, Ltd. v. Hensey, 2005 WL 3981740, n.9 (Del. Super. Ct.
2005) (other citations omitted).
Count IV does not adequately allege a breach of implied contract claim. More
specifically, it fails to allege the elements required to plead a breach of contract,

7

including the existence of a contract. Therefore, the Court will grant the motion to
dismiss Count IV, but will give Plaintiff leave to amend the Count.
Breach of Implied Covenant of Good Faith and Fair Dealing. Count V
Delaware imposes a "heavy presumption that a contract for employment, unless
otherwise expressly stated, is at-will in nature, with duration indefinite." E.I. DuPont de

Nemours & Co. v. Pressman, 679 A.2d 436, 440 (Del.1996). However, every
employment contract, including an at-will contract, contains an implied covenant of
good faith and fair dealing. See Merrill

v. Crothall-American, Inc., 606 A.2d 96, 101

(Del.1992). The duty of good faith and fair dealing imposes a duty of candor on the
employer; "the employer breaches the covenant when the employer's conduct
constitutes fraud, deceit, or misrepresentation." Id. (citations omitted). An "employer
acts in bad faith when it induces another to enter into an employment contract through
actions, words, or the withholding of information, which is intentionally deceptive in
some way material to the contract." Id.
The Delaware Supreme Court has identified four situations where an at-will
employee could bring a claim based on the implied covenant of good faith and fair
dealing: (1) where termination violated public policy; (2) where the employer
misrepresented an important fact and the employee relied on the misrepresentation
either to accept a new position or remain in the current one; (3) where the employer
used its superior bargaining power to deprive an employee of clearly identifiable
compensation related to the employer's past service; and (4) where the employer
falsified or manipulated employment records to create fictitious grounds for termination.

Pressman, 679 A.2d at 442-44. The categories are narrowly defined and exclusive. Id.

8

Defendant argues that it appears that Count V rests on allegations that Plaintiff's
termination violated public policy by reason of discrimination based upon race, age or
gender. It is not clear from Count V which, if any of the four categories Plaintiff relies
upon in her attempt to raise a claim under Count V. To the extent that Plaintiff relies
upon violations of public policy, the claim fails. Under Delaware law, 19 Del. C. § 710 et
seq., which prohibits discrimination in employment practices, is the "sole remedy" for an
aggrieved employee "to the exclusion of all other remedies." 19 Del. C. § 712(b)
(2005); see E.E.O.C. v. Avecia, Inc., 151 F. App'x 162, 165 (3d Cir. 2005). Therefore,
the Court will grant Defendant's motion to dismiss Count V. Plaintiff, however, will be
given leave to amend Count V.
Intentional and Negligent Infliction of Emotional Distress. Count VI
Defendant seeks dismissal of Count VI on the grounds that the claim for
intentional and/or negligent infliction of emotional distress is time-barred and is
improperly pied. Under Delaware law, claims for infliction of emotional distress must be
brought within two years of the alleged injury. See 10 Del. C. § 8119 (establishing a
two year statute of limitations for all personal injury claims); see a/so Reynolds v. State,
1999 WL 1427760, at *7 (Del. Super. Ct. 1999).
Here, the last alleged act occurred on February 29, 2012 when Plaintiff's
employment ended. The Complaint, however, was not filed until March 13, 2014,
almost two weeks after the expiration of the two-year limitation period. The claim is
time-barred and, therefore, the Court will grant Defendant's motion to dismiss Count VI.

9

Wrongful Discharge, Count IX
Defendant moves for dismissal of Count IX on the grounds that a claim cannot
stand when there is a statutory scheme in place to address the public policy at issue.
Numerous courts, including this district court, have rejected common law claims
premised on discrimination prohibited by the federal and state statutes, reasoning that
the laws enacted created a statutory remedy in derogation of the common law
employment-at-will doctrine, and that relief accorded complainants is provided for them
expressly by the discrimination laws. See Holland v. Zarif, 794 A.2d 1254 n.7 (Del. Ch.
2002) (citing numerous cases); McHugh v. Board of Educ. of Milford Sch. Dist., 100 F.
Supp. 2d 231, 249 (D. Del. 2000) (this Court does not believe the Delaware Supreme
Court would create a public policy exception for wrongful discharge for claims for which
a statutory remedy already exists under state law).
For these reasons, the Court finds that Count IX fails to state a claim for wrongful
discharge. Accordingly, the Court will grant Defendant's motion to dismiss Count IX.
Damages
Count VII seeks punitive damages and Count VI 11 seeks consequential damages.
Defendant moves for dismissal of these counts on the grounds that they are not
cognizable causes of action. As to Count VII, "courts have held that punitive damages
may be recovered for a breach of contract if the complained of conduct "is similar in
character to an intentional tort." Schatzman v. Martin Newark Dealership, Inc., 158 F.
Supp.2d 392, 399 (D. Del. 2001) (quoting Thurston v. Liberty Mut. Ins. Co., 16 F. Supp.
2d 441, 448 (D. Del.1998). Therefore, since the Court is granting the motion to tdismiss

10

the breach of contract claim, the Court will also grant Defendant's motion to dismiss
Count VII.
With regard to Count VII I there appears to be no independent basis for the
consequential damages claim and, therefore, the Court will grant Defendant's motion to
dismiss Count VIII.
The requests for damages are more properly brought in the ad damnum clause
rather than as separate counts, although, since Plaintiff is prose, if there were a
properly pied underlying claim, the Court would understand Plaintiff's damages claims
to be sufficiently pied.
CONCLUSION
For the above reasons, the Court will grant Defendant's motion to dismiss (D.I.
11 ). Counts I, II, Ill, IV, V, VI, VII, VIII, and IX will be dismissed. Plaintiff will be given
leave to file an amended complaint as to all claims, except Count IX, as it is possible
that she could successfully replead them, either based on additional facts or on
different legal theories, or both. I note that Count IX involves a question of law, and it
would be futile to allow repleading of it. Although I am dismissing Count VI as being
filed too late, there are doctrines which may in some cases extend the filing deadlines,
and, since the statute of limitations is an affirmative defense, a prose Plaintiff should
be given a second opportunity.
An appropriate order will be entered.

11