Mondero et al v. Lewes Surgical & Medical Associates P.A. et al

Filing 21

REPORT AND RECOMMENDATIONS re 10 MOTION to Dismiss filed by Semaan M. Abboud M.D., Lewes Surgical & Medical Associates P.A., Beth E. Bittner. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing co nsists 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 12/26/2014. Signed by Judge Mary Pat Thynge on 12/9/14. (cak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DR. NANCY MONDERO; JUDY L. HOWETT, )
NP; MARGARET M. SAWYER; TANIKKA
)
R. MILLER; and MARIAM L. LONG,
)
)
Plaintiffs,
)
)
v.
)
)
LEWES SURGICAL & MEDICAL
)
ASSOCIATES, P.A., a Delaware Professional )
Association; SEMAAN M. ABBOUD, M.D.;
)
and BETH E. BITTNER,
)
)
Defendants.

C. A. No. 14-588-RGA-MPT

REPORT AND RECOMMENDATION
I.

Introduction
This employment discrimination case involves several claims. Plaintiffs, Dr.

Nancy Mondero (“Mondero”), Judy L. Howett, NP (“Howett”), Margaret M. Sawyer
(“Sawyer”), Tanikka R. Miller (“Miller”), and Marian L. Long (“Long”) (collectively,
“plaintiffs”) allege they were wrongfully terminated from their employment with
defendant, Lewes Surgical & Medical Associates (“LSMA”). Mondero, Howett, Miller,
and Sawyer were terminated on January 10, 2013, and Long was terminated on
February 19, 2013. Plaintiffs bring the following claims: Count I for hostile work
environment and sex discrimination under Title VII of the Civil Rights Act of 1964; Count
II for hostile work environment and sex discrimination under 19 DEL. C. § 711; Count III,
as to Howett, Sawyer, and Long for Federal Age Discrimination pursuant to 26 U.S.C. §
621 et seq.; Count IV, racial discrimination and hostile work environment under Title VII
as to Miller; Count V, regarding Miller, Sawyer, and Long, breach of the implied

covenant of good faith and fair dealing in employment; Count VI, ERISA violations
pursuant to 29 U.S.C. § 1001 et seq. as to Mondero and Howett; Count VII, conversion
of 401K money alleged by Mondero and Howett; and Count VIII, conversion of
meaningful use funds asserted by Howett against LSMA and defendants Semaan M.
Abboud, M.D. (“Abboud”) and Beth E. Bittner (“Bittner”) individually.
Defendants moved to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) (FED. R. CIV. P.) on Counts I, II, V, VI, VII, and VIII and Counts I, II, III, and IV
with respect to Abboud and Bittner.
II.

Background
LSMA is a medical provider with two offices in Sussex County, Delaware that is

solely owned by Abboud.1 Plaintiffs were employed at LSMA beginning at various times
until their respective terminations on either January 10 or February 19, 2013. Mondero
was employed at LSMA as a doctor beginning in 2002 until January 10, 2013,2 and
claims to be a member of three protected classes: female, homosexual, and over the
age of 40.3 Howett, a female over the age of 40 years, was employed at LSMA as a
nurse practitioner from June 1, 2002 until January 10, 2013.4 Miller served as a
receptionist from April 2008 until January 10, 2013.5 Miller is a female African
American.6 Sawyer, a female over the age of 40 years, worked as a registered nurse

1

D.I. 1 at ¶¶ 28-29.
Id. at ¶¶ 11-12.
3
Id. at ¶ 13.
4
Id. at ¶¶ 16, 17.
5
Id. at ¶¶ 19-20.
6
Id. at ¶ 21.
2

2

from November 2007 until January 10, 2013.7 Long was employed as a registered
nurse from May 2006 until February 19, 2013,8 and is also a female over the age of 40
years.9
In September 2012, Abboud hired Bittner to serve as LSMA’s office manager.10
Although LSMA’s hiring policy provided that, to the extent possible, job openings would
be filled from within the company, the position of office manager was not advertised
within LSMA.11 Plaintiffs allege that Bittner and Abboud were engaged in a romantic
affair prior to Bittner’s hiring.12 They also contend that Bittner was unqualified for the
position, and obtained the job solely due to her relationship with Abboud.13 After her
appointment as officer manager, Bittner immediately changed long standing office policy
including “the handling of employee vacation and sick time and the use of cell
phones.”14
Plaintiffs assert that Abboud and Bittner openly discussed their relationship and
demonstrated their affection within the offices of LSMA and in the presence of
employees.15 Plaintiffs further claim Abboud repeatedly and publicly made
discriminatory comments, such as, referring to blacks as “n___ers,” describing his wife
and daughter as “whores,” and expressing his disapproval of gays and lesbians.16
7

Id. at ¶¶ 22-24.
Id. at ¶¶ 25-26.
9
Id. at ¶ 27.
10
Id. at ¶¶ 30-31.
11
Id. at ¶¶ 32, 35.
12
Id. at ¶ 36.
13
Id. at ¶ 43.
14
Id. at ¶ 45.
15
Id. at ¶¶ 38-40.
16
Id. at ¶ 41.
8

3

Plaintiffs complained to Abboud about Bittner’s management.17 Despite receiving
excellent performance evaluations, following Bittner’s appointment as office manager,
plaintiffs were terminated.18
III.

Discussion
Motion to Dismiss Standard
In analyzing a motion to dismiss under FED. R. CIV. P. 12(b)(6), a review of Rule

8(a)(2) is necessary. It requires that a pleading contain a “short and plain statement of
the claim showing that the pleader is entitled to relief.” That standard “does not require
‘detailed factual allegations,’ but . . . demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.”19 Thus, to survive a motion to dismiss under Rule
12(b)(6), a complaint “must contain sufficient factual matter, accepted as true, to ‘state a
claim for relief that is plausible on its face.’”20 The purpose of a Rule 12(b)(6) motion to
dismiss is to test the sufficiency of a complaint, not to resolve disputed facts or decide
the merits of the case.21 Evaluating a motion to dismiss under Rule 12(b)(6) requires
the court to accept as true all material allegations of the complaint.22 “The issue is not
whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer
evidence to support the claims.”23 A motion to dismiss may be granted only if, after,

17

Id. at ¶ 49.
Id. at ¶¶ 53-54.
19
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corporation
v. Twombly, 550 U.S. 544, 555 (2007)).
20
Id. (quoting Twombly, 550 U.S. at 570); see FED. R. CIV. P. 12(b)(6).
21
Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993).
22
Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004).
23
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997)
(internal quotation marks and citation omitted).
18

4

“accepting all well-pleaded allegations in the complaint as true, and viewing them in the
light most favorable to the plaintiff, plaintiff is not entitled to relief.”24
To survive a motion to dismiss under Rule 12(b)(6), however, the factual
allegations must be sufficient to “raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).”25
A plaintiff is obliged “to provide the ‘grounds’ of his ‘entitle[ment] to relief’” beyond
“labels and conclusions.”26 Heightened fact pleading is not required: rather “enough
facts to state a claim to relief that is plausible on its face” must be alleged.27 Rejected
are unsupported allegations, “bald assertions,” or “legal conclusions.”28 Further, “the
tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.”29 The analysis is a “context-specific task that requires
the reviewing court to draw on its judicial experience and common sense.”30 Well-pled
facts which only infer the “mere possibility of misconduct,” do not show that “‘the pleader

24

Maio v. Aetna, Inc., 221 F.3d 472, 481-82 (3d Cir. 2000) (internal quotation
marks and citations omitted).
25
Twombly, 550 U.S. at 555; see also Victaulic Co. v. Tieman, 499 F.3d 227, 234
(3d Cir. 2007).
26
Twombly, 550 U.S. at 555.
27
Id. at 570.
28
Iqbal, 129 S. Ct. at 1949 (“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”); see also Morse v.
Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (“[A] court need not credit a
complaint's ‘bald assertions’ or ‘legal conclusions’ when deciding a motion to dismiss.”)
(citations omitted); Schuylkill Energy Res., Inc. v. Pennsylvania Power & Light Co., 113
F.3d 405, 417 (3d Cir. 1997) (“unsupported conclusions and unwarranted inferences”
are insufficient); Nami v. Fauver, 82 F.3d 63, 69 (3d Cir. 1996) (allegations that are
“self-evidently false” are not accepted).
29
Iqbal, 129 S. Ct. at 1949; see also Twombly, 550 U.S. at 555 (A court is “not
bound to accept as true a legal conclusion couched as a factual allegation.”).
30
Iqbal, 129 S.Ct. at 1950.
5

is entitled to relief,’” under Rule 8(a)(2).31 “When there are well-pleaded factual
allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement of relief.”32
IV.

Analysis
Count I
Plaintiffs raise two distinct Title VII claims against LMSA, Abboud, and Bittner:

hostile work environment sexual harassment and intentional sex discrimination.
However, as defendants note in their opening brief, and as plaintiffs stipulate to in their
answering brief, Title VII does not provide for individual liability, and the claims against
Abboud and Bittner should be dismissed.33 Therefore the court will address the Title VII
claims only against LMSA.
Hostile Work Environment
For a hostile work environment action, “a plaintiff must establish ‘by the totality of
the circumstances, the existence of a hostile or abusive working environment which is
severe enough to affect the psychological stability of a minority employee.’”34 An
environment is “‘sufficiently severe or pervasive [when it] alter[s] the conditions of [the
plaintiff's] employment and create[s] an abusive working environment.’”35 A plaintiff
31

Id.
Id.
33
Sheridan v. E.I. Dupont de Nemours & Co., 100 F.3d 1061, 1078 (3d Cir. 1996)
(“[W]e are persuaded that Congress did not intend to hold individual employees liable
under Title VII.”).
34
Andrews v.City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir.1990) (quoting
Vance v. Southern Bell Tel. & Tel. Co., 863 F.2d 1503, 1510 (11th Cir.1989)).
superseded by statute on other grounds by 42 U.S.C. §§ 1981, 2000e et seq. (1991).
35
Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013) (quoting
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)) (alterations added).
32

6

must prove five elements: she suffered intentional discrimination because of her gender
or race; the discrimination was severe or pervasive; the discrimination detrimentally
affected the plaintiff; the discrimination would detrimentally affect a reasonable person
in like circumstances; and the existence of respondent superior liability.36
Title VII does not operate as a “general civility code,”37 nor “mandate a happy
workplace.”38 “[S]imple teasing, offhand comments, [ ] isolated incidents (unless
extremely serious),”39 “[o]ccasional insults, . . . or episodic instances of ridicule are not
enough; they do not ‘permeate’ the workplace and change the very nature of the
plaintiff's employment.”40
Plaintiffs allege to be “victims of a hostile work environment” due to the
relationship between Abboud and Bittner.41 The Equal Employment Opportunity
Commission’s Policy Guidance recognizes that sexual favoritism may be a basis for a
hostile work environment claim where both male and female employees found the
conduct objectionable, regardless to whom such conduct was directed.42 In the only
case in which the Third Circuit appears to have considered the issue, the court, applying
New Jersey law, found that:

36

Mandel, 706 F.3d at 167; Andrews, 895 F.2d at 1482; Subh v. Wal–Mart
Stores, Inc., C.A. No. 08-410-SLR-LPS, 2009 WL 4015649, at *8 (D. Del. Nov. 19,
2009).
37
Faragher v. City of Boca Raton, 524 U.S. 775, 778 (1988).
38
Jensen v. Potter, 435 F.3d 444, 451 (3d Cir.2006) (overruled on other grounds
by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)).
39
Faragher, 524 U.S. at 778.
40
Jensen, 435 F.3d at 451.
41
D.I. 1 at ¶ 60.
42
EEOC POLICY GUIDANCE ON EMPLOYER LIABILITY UNDER TITLE VII FOR SEXUAL
FAVORITISM, EEOC Notice No. 915-048 (Jan. 12, 1990).
7

[a] sexual relationship between a supervisor and a co-employee could
adversely affect the workplace without creating a hostile sexual
environment. A supervisor could show favoritism that, although unfair and
unprofessional, would not necessarily instill the workplace with oppressive
sexual accentuation. The boss could treat everyone but his or her
paramour badly and all of the subordinates, save the paramour, might be
affected in the same way.43
Such conduct does not create a claim of sexual harassment.44 The facts alleged
show that while Abboud’s preferential treatment of Bittner may have been unfair and
unprofessional, it did not create a “workplace with oppressive sexual accentuation” nor
rise to the level of sexual harassment necessary to find a hostile work environment. No
claim is made that plaintiffs were discriminated against because of their gender; rather,
they argue unfair treatment because of the relationship between Abboud and Bittner,
which fails to meet the criteria for a hostile work environment.
Plaintiffs further allege hostile work environment because of Abboud and Bittner’s
open display of affection, frank discussion of their relationship in the office, and
modification of policy dealing with employee vacation, sick time, and use of cell
phones.45 Such events do not support a cause of action for hostile work environment
because the first element, intentional discrimination because of gender, is absent.46
Plaintiffs do not allege these incidents were intentionally discriminatory towards them
because they are women.
Additionally, plaintiffs allege a hostile work environment because: “Abboud

43

Drinkwater v. Union Carbide Corp., 904 F.2d 853, 862 (3d Cir. 1990).
Id.
45
D.I. 1 at ¶¶ 38-40, 45.
46
Mandel, 706 F.3d at 167.
44

8

openly and without reservation referred to his wife and daughter as ‘whores.’”47
However, the Third Circuit has found that a plaintiff “cannot meet the first element of a
hostile work environment claim under Title VII . . . causation–solely by pointing to
comments that were directed at other individuals.”48 In addition, the Third Circuit has
noted that “comments referring to other individuals that were merely overheard by
[plaintiff] are the sorts of ‘offhanded comments and isolated incidents’ that the Supreme
Court in Faragher, cautioned should not be considered severe or pervasive enough to
constitute a hostile work environment.”49 Since these comments were made about
Abboud’s wife and daughter, plaintiffs are unable to show causation in that the
comments would not have been made but for their gender. Additionally, since Abboud’s
comments were made in reference to his wife and daughter, and not plaintiffs, they are
remarks insufficient to constitute a claim for hostile work environment.
Therefore, the hostile work environment claim should be dismissed.
Title VII Sex Discrimination
Under Title VII, it is unlawful for an employer “to discriminate against any
individual with respect to [her] compensation, terms, conditions, or privileges of
employment, because of such individual's . . . sex [.]”50 McDonnell Douglas Corp. v.
Green sets out the evidentiary requirements to establish a prima facie case of
discrimination: a plaintiff must show she is a member of a protected class, was qualified

47
48

D.I. 1 at ¶ 41.
Caver v. City of Trenton, 420 F.3d 243, 263 (3d Cir. 2005) (emphasis in

original).
49
50

Id. (internal citation omitted).
42 U.S.C. § 2000e–2(a)(1).
9

for the employment position, and suffered an adverse employment action under
circumstances that infer discrimination.51
Since the McDonnell Douglas framework is an evidentiary standard and not a
pleading standard, the Third Circuit provided guidance regarding the pleading standard
required for employment discrimination in Golod v. Bank Of America Corp.52 Golod held
that “to overcome a motion to dismiss . . . [plaintiff] has the burden of pleading sufficient
factual matter that permits the reasonable inference that [plaintiff] was terminated or
retaliated against” for discriminatory reasons.53 To determine whether a complaint
complies with the Iqbal pleading standard “a court must ignore legal conclusions and . .
. consider only those allegations entitled to a presumption of truth . . . . ”54
The parties do not dispute plaintiffs are members of a protected class based on
their gender or they were qualified for their positions. The issue rests on whether
plaintiffs suffered adverse employment action under circumstances that infer
discrimination. Plaintiffs maintain they:
were the victims of, and suffered intentional discrimination by, LSMA
because of the manner in which they were treated differently at work when
compared to Bittner who was romantically entangled with Abboud,
emotionally, physically, and sexually, to wit: Bittner was given a job
without posting or notice in violation of office policy; given authority as
second in charge; given carte blanche over office policy, including
personnel policy; given authority to change policy; and otherwise rewarded
in the workplace for her romantic and sexual involvement with Abboud.55
Plaintiffs further allege they were “either constructively discharged as a result of
51

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
403 Fed. App’x 699 (3d Cir. 2010).
53
Id. at 702.
54
Id.
55
D.I. 1 at ¶ 70.
52

10

the work place environment, or, actually terminated because of their disapproval of the
environment”56 As discussed previously, “preferential treatment on the basis of a
consensual romantic relationship between a supervisor and an employee is not genderbased discrimination.”57 “The law is clear that preferential treatment of a ‘paramour’
based on a consensual romantic relationship alone is not unlawful gender-based
discrimination because such favoritism, while unfair, disadvantages both sexes in favor
of the ‘paramour.’”58 Gender based discrimination occurs when “an employer treats
men and women differently.”59 In the absence of any alleged gender discrimination,
plaintiffs’ Title VII claim based on the romantic relationship between Abboud and Bittner
should be dismissed.
Retaliation
There is a dispute as to whether plaintiffs raised a claim of retaliation. Retaliation
is not specifically mentioned in the complaint. Defendants contend that no retaliation
claim was asserted, and even if it were, Mondero, Sawyer, and Long failed to exhaust
their administrative remedies.60
Although retaliation was not specifically raised in the complaint, plaintiffs contend
that “[a]s a direct and proximate result of the hostile work environment,” they were either

56

Id. at ¶ 71.
Miller v. Aluminum Co. of Am., 679 F. Supp. 495, 501 (W.D. Pa. 1988) aff'd,
856 F.2d 184 (3d Cir. 1988)
58
Degidio v. Centro Properties, LLC, C.A. No. 11-1353, 2013 WL 440131, at *5
(E.D. Pa. Feb. 4, 2013) (emphasis in original).
59
Badrinauth v. Metlife Corp., C.A. No. 04-2552, 2006 WL 288098, at *4 (D.N.J.
Feb. 6, 2006) (citing Lex K. Larson, LARSON ON EMPLOYMENT DISCRIMINATION (2005)
§ 40.01).
60
D.I. 14 at 3-4.
57

11

constructively discharged or terminated. To prevail on a claim of retaliation in violation
of Title VII, a plaintiff must show that: “1) [s]he engaged in conduct protected by Title
VII; 2) [her] employer took an adverse action against [her] either after or
contemporaneous with the protected activity; and 3) a causal link exists between [her]
protected conduct and the employer's adverse action.”61
Defendants argue the facts alleged are insufficient, and fair notice concerning the
bases for retaliation were not provided.62
Plaintiffs plead a plausible claim for relief based on discriminatory retaliation.
They allege facts to demonstrate they engaged in conduct protected by Title VII. Title
VII provides that it is unlawful “for an employer to discriminate against any of his
employees . . . because [s]he has opposed any practice made an unlawful employment
practice by this subchapter.”63 “Opposition” to employment practices includes “informal
protests of discriminatory employment practices, including making complaints to
management.”64 To establish a claim of retaliation, a plaintiff must “act[ ] under a good
faith, reasonable belief that a violation existed,”65 however, when alleging retaliation, a
plaintiff “need not prove the merits of the underlying discrimination complaint.”66
Although plaintiffs did not sufficiently assert hostile work environment, they may be
victims of retaliation for complaining about such acts if made in good faith.
61

Slagle v. Cnty. of Clarion, 435 F.3d 262, 265 (3d Cir. 2006)
D.I. 14 at 6.
63
Duffy v. Dep't of State, 598 F. Supp. 2d 621, 631 (D. Del. 2009) (alterations in
original).
64
Moore v. City of Philadelphia, 461 F.3d 331, 343 (3d Cir. 2006), as amended
(Sept. 13, 2006)
65
Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir.1996).
66
Moore, 461 F.3d at 344.
62

12

Second, plaintiffs noted that “[their] employer took an adverse action against
[them] either after or contemporaneous with the protected activity.” All were terminated
or constructively discharged after raising concerns of a perceived hostile work
environment.
Plaintiffs assert “a causal link exists between [their] protected conduct and the
employer's adverse action,” by asserting before termination each had excellent
performance evaluations.
Such contentions give defendant notice of a potential retaliation claim. “The
issue on a motion to dismiss for failure to state a claim is not whether a plaintiff
ultimately will prevail, but whether the claimant is entitled to offer evidence to support
her claims.”67
The remaining issue is whether Mondero, Sawyer, and Long failed to exhaust
their administrative remedies and are therefore barred from bringing a claim of
retaliation.68 Before filing a claim for employment discrimination under Title VII, "a
plaintiff must exhaust her administrative remedies by filing a timely discrimination

67

Gavura v. Pennsylvania State House of Representatives, 55 F. App'x 60, 65
(3d Cir. 2002).
68
Plaintiffs initially filed their charges of discrimination with the Delaware
Department of Labor (“DDOL”), which has the “administrative responsibility for
implementing the State Discrimination Act [under 19 DEL. C. § 710 et. seq.,]” and may
also process claims of unlawful discrimination under federal law, including Title VII.
Holland v. Zarif, 794 A.2d 1254, 1257 (Del. Ch. 2002). After right to sue letters were
issued by the DDOL, the EEOC adopted the findings of the state agency in Dismissal
and Notice of Rights letters. See D.I. 19, Exs. D, H, K, N and R. The Notice of Suit
Rights portion advised that the documents “will be the only notice of dismissal and of
your right to sue” to be forwarded by the EEOC. It further advised of the 90 day
limitation in which to file an action under federal law in either state or federal court. Id.
13

charge with the EEOC."69 Thereafter, the EEOC investigates the charge and the EEOC
must issue a right to sue letter before a plaintiff may bring a private action.70 If a private
action is brought “the ensuing suit is limited to claims that are within the scope of the
initial administrative charge”71 and those claims “‘which can reasonably be expected to
grow out of the charge of discrimination.’”72 Although a later civil action is limited to
claims within the scope of the initial administrative charge, merely failing to check a box
on the charge form does not prevent a plaintiff from bringing a subsequent claim.73 It
does prevent “greatly expand[ing] an investigation simply by alleging new and different
facts when [s]he [is] contacted by the Commission following [her] charge.”74
In Hicks, the Third Circuit stated “charges are most often drafted by one who is
not well versed in the art of legal description . . . . [T]he scope of the original charge
should be liberally construed.”75 Interpreting Mondero, Sawyer, and Long’s
DDOL/EEOC charges liberally, their retaliation claims are within the scope of their
respective charges. In Anjelino v. N.Y. Times. Co.,76 the Third Circuit found that a
hostile work environment claim fell within the scope of the initial EEOC charge, because
the plaintiff used the term “abusive atmosphere” which is interchangeable with “hostile

69

Barzanty v. Verizon PA, Inc., 361 F. App'x 411, 413 (3d Cir. 2010) (citing 42
U.S.C. §§ 2000e–5(b), (e)(1), (f)(1)).
70
Id.
71
Id. at 413-14 (quoting Antol v. Perry, 82 F.3d 1291, 1296 (3d Cir.1996)).
72
Hicks v. ABT Assoc., Inc., 572 F.2d 960, 966 (3d Cir.1978) (quoting
Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398–99 (3d Cir.1976)
73
Barzanty, 361 F. App'x at 414.
74
Id.
75
Hicks, 572 F.2d at 965.
76
200 F.3d 73 (3d Cir. 1999).
14

work environment.”77 Howze v. Jones & Laughlin Steel Corp.78 granted the plaintiff
leave to amend her complaint to add a claim of retaliation despite not raising it in the
EEOC charge because “Howze's new retaliation claim ‘may fairly be considered [an]
explanation[ ] of the original charge . . . .’”79 However, in Barzanty, the court held that a
charge of harassment did not include a hostile work environment claim because “there
is no analogous language in Barzanty's EEOC charge which could give rise to a hostile
work environment claim.”80
The instant matter is more analogous to Anjelino and Howze than Barzanty.
Here, a close nexus exists between the charges instituted by Mondero, Sawyer and
Long to cover retaliation, and provide sufficient notice. Each charge of discriination
separately addresses each plaintiff’s discharge from LSMA. It follows, therefore, that a
claim of retaliation could be brought. As explained in Howze, a charge of retaliation in
the complaint may be considered an explanation of the original charges. As a result,
the motion to dismiss plaintiffs’ retaliation claim should be denied. Plaintiffs shall
amend the complaint alleging sufficient facts on which each base their respective claims
for retaliation, including the applicable statutes, by the date specified in the attached
order.
Count II
In Count II, plaintiffs assert a state law claim of sexual harassment and hostile

77

Id. at 93.
750 F.2d 1208 (3d Cir. 1984).
79
Id. at 1212 (quoting Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398–99
(3d Cir.1976)).
80
Barzanty, 361 F. App’x at 414.
78

15

work environment under 19 DEL. C. § 711. “Delaware State law prohibits employment
discrimination in terms almost identical to Title VII itself.”81 Plaintiffs admit that Title VII
and 19 DEL. C. § 711 are “almost identical” and agree “if the Title VII claims survive this
pending motion to dismiss, then so must the State claims.”82 Stated in the alternative,
however, if the Title VII claims do not survive, then the state claims are subject to
dismissal based on the same rationale. Therefore, for the reasons addressed in Count
I, the state law gender discrimination claims should be dismissed.
Counts III and IV
In Count III, Howett, Sawyer, and Long allege Federal Age Discrimination under
29 U.S.C. § 621 et seq. As noted by defendants in their motion, and admitted by
plaintiffs in their answering brief, this statute does not provide for individual liability.
Therefore, this count against Abboud and Bittner should be dismissed.
In Count IV, Miller raises racial discrimination and hostile work environment
under Title VII. As previously discussed, the parties agree that Title VII does not
provide for individual liability, requiring dismissal of Count IV against Abboud and
Bittner.
Count V
In this count, Miller, Sawyer, and Long argue breach of the implied covenant of
good faith and fair dealing in employment.83 “Although Delaware is an at-will
employment state, an employer has an implied covenant of good faith and fair dealing

81

Cannon v. State of Del., 523 F. Supp. 341, 344 (D. Del. 1981).
D.I. 13 at 7.
83
D.I. 1 at ¶ 16.
82

16

with every employee, and a claim can be brought for a breach of this covenant.”84 A
breach of this covenant may occur 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.85
Plaintiffs argue that their termination violates the public policy element, relying on
LSMA’s Policy Handbook which contains “office policy on a number of issues, including
but not limited to, hiring, discipline, and reporting of grievances;”86 and defendants
“created a work environment that became hostile because of the favoritism given Bittner
by Abboud in direct violation of said LSMA policies.”87 Plaintiffs describe the work
environment as offensive, resulting from Abboud and Bittner’s relationship and
complained about its effects on the workplace to them.88 They further maintain their
complaints led to their termination.89
To demonstrate a breach of the covenant of good faith and fair dealing under the
public policy element: “(i) the employee must assert a public interest recognized by
some legislative, administrative or judicial authority and (ii) the employee must occupy a
position with responsibility for advancing or sustaining that particular interest.”90
84

Carrol v. ABM Janitorial Services-MID Atlantic, Inc., 970 F. Supp. 2d 292, 301
(D. Del. 2013) (citing E.I. DuPont Nemours v. Pressman, 679 A.2d 436 (Del. 1996)).
85
See Lord v. Souder, 748 A.2d 393, 400 (Del. 2000).
86
D.I. 1 at ¶¶ 16, 110.
87
Id. at ¶ 111.
88
Id. at ¶ 112.
89
Id. at ¶ 113.
90
Pressman, 679 A.2d at 441-42 (emphasis added).
17

Although not entirely clear, the public interest plaintiffs appear to assert is retaliation,
that is, they were terminated for complaints of a purported violation of federal law.91
Defendants rely on Finch v. Hercules Inc.92 and Williams v. Caruso93 for their argument
that no public interest is claimed. In Finch, this court found that the Delaware Supreme
Court would not carve out a public policy exception to the at-will doctrine when a
statutory remedy exists under state law, such as 14 DEL. C. § 710 et seq.94
Subsequently, in Williams, the court reached the same conclusion on a retaliatory
discharge claim because Delaware’s employment discrimination statute covered
retaliatory discharge.95
In Wilcoxon v. Red Clay Consolidated School Dist. Bd. of Educ., this court noted:
In 2004, the Delaware legislature amended the statute concerning
employment discrimination, stating that the statute was the ‘sole remedy
for claims alleging a violation of this subchapter to the exclusion of all
other remedies.’ 19 DEL. C. § 712(b) (2005). The synopsis of the Senate
Bill expressly supercedes the court's holding in Schuster, stating, ‘This bill
is the exclusive and sole remedy for employment discrimination claims,
requiring initial processing of all such claims with the Department of Labor
for review and action. This bill effectively re-establishes the exclusive
remedy put in question by the decision in Schuster v. Derocili . . . .’96
Since there is a statutory remedy for retaliation, and since plaintiffs’ basis for this
Count is the LSMA Policy Handbook without any factual contentions demonstrating a
public interest, plaintiffs’ claim for breach of covenant of good faith and fair dealing

91

D.I. 13 at 7.
809 F. Supp. 309 (D. Del. 1992).
93
966 F. Supp. 287 (D. Del. 1997).
94
Finch, 809 F. Supp. at 312.
95
Williams, 966 F. Supp. at 292.
96
Wilcoxon v. Red Clay Consolidated Sch. Dist. Bd. of Educ., 437 F. Supp. 2d
235, 247 (D. Del. 2006).
92

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should be dismissed.
Count VI
In their answering brief, plaintiffs voluntarily withdrew the ERISA violations raised
by Mondero and Howett.97 Therefore, Count VI is dismissed.
Count VII
Mondero and Howett raise a claim for conversion of 401K funds relying on the
same facts alleged in support of the ERISA violation under Count VI.98 They assert “an
unknown sum” was removed from their pension accounts after termination.99
Defendants maintain Count VII should be dismissed because an “action for conversion
will not lie to enforce a claim for the payment of money.”100 Plaintiffs acknowledge that
defendants are correct on the law, but submit Count VII is merely mislabeled, and their
claim is for restitution. Defendants counter the claim should be still dismissed since
restitution is a type of remedy and not a civil cause of action.101 They also maintain that
“restitution is what the defendant owes to a victim because of the defendant’s criminal
conduct.”102
By voluntarily dismissing their ERISA claims and substituting a state law claim for
either conversion or restitution, plaintiffs attempt to circumvent the broad preemption
97

D.I. 1 at ¶ 114-17.
Id. at ¶¶ 118-21.
99
Id. at ¶ 120.
100
D.I. 11 at 9 (citing AM Gen. Holdings LLC on behalf of Ilshar Capital LLC v.
Renco Grp. Inc., C.A. No. 7639-VCN, 2013 WL 5863010, at *16 (Del. Ch. Oct. 31,
2013)).
101
D.I. 14 at 8 (relying on Lingo v. Lingo, 3 A.3d 241, 244 (Del. 2010); Preferred
Invs. Serv., Inc. v. T & H Bail Bonds, Inc., C.A. No. 5886-VCP, 2013 WL 3934992, at
*25 (Del. Ch. July 24, 2013)).
102
Id. (citing Mott v. State, 49 A.3d 1186, 1190 (Del. 2012)).
98

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powers of ERISA. In Aetna Health Inc. v. Davila,103 the United States Supreme Court
explained "[t]he purpose of ERISA is to provide a uniform regulatory regime over
employee benefit plans. . . . ERISA includes expansive preemption provisions, which
are intended to ensure that employee benefit plan regulation would be exclusively a
federal concern.”104 Section 514 of ERISA preempts “any and all State laws” that relate
to any covered employee benefit plan,105 while § 502(a)(1)(B) authorizes a participant or
beneficiary to institute proceedings to recover benefits, enforce rights, or to clarify rights
to future benefits under a plan.106 That section covers 401K plans.107 Section 502(a)
further provides "any state-law cause of action, that duplicates, supplements, or
supplants the ERISA civil enforcement remedy conflicts with the clear congressional
intent to make the ERISA remedy exclusive and is therefore pre-empted."108
The preemptive powers of ERISA under § 502(a)(1)(B) converts state causes of
action into federal matters.109 “[I]f an individual, at some point in time, could have
brought his claim under ERISA § 502(a)(1)(B), and where there is no other independent
legal duty that is implicated by a defendant's actions, then the individual's cause of
action is completely pre-empted by ERISA § 502(a)(1)(B).”110 Here, plaintiffs originally

103

542 U.S. 200 (2004).
Id. at 208.
105
29 U.S.C. § 1144.
106
29 U.S.C. § 1132(a)(1)(B).
107
See, e.g., Torsiello v. Strobeck, 955 F. Supp. 2d 300, 308 (D.N.J. 2013) (“The
401(k) plan to which Torsiello refers in the Complaint seems to be covered under
ERISA because it typically provides for retirement income and a medical practice is
evidently engaged in commerce.”).
108
Davila, 542 U.S. at 209.
109
Id.
110
Id. at 210.
104

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raised ERISA under Count VI before voluntarily dismissing it. They now attempt to
proceed with a state law cause of action regarding a 401K plan. Since the state claim
initially should have been brought under ERISA, it is preempted and converted into a
federal action which has been voluntarily dismissed. Therefore, because plaintiffs
cannot proceed with a state law cause of action regarding their 401K and have
voluntarily dismissed their ERISA claims in Count VI, Count VII should be dismissed.
Count VIII
Howett raises a claim of conversion in Count VIII, maintaining that Abboud or
Bittner, by fraud, forgery, or misrepresentation, represented that he/she was Howett to
“collect and intercept . . . incentive payments” of $29,750.00 due to Howett under the
Medicare & Medicaid EMR Incentive Program Registration and Attestation System.111
Defendants reiterate that an action for conversion does not lie for payment of
money.112 Howett argues although a claim for conversion may not exist, she sufficiently
alleged an action in restitution.113 Defendants claim that restitution is a remedy and not
a valid cause of action and warrants dismissal.114
As discussed previously, restitution is a remedy, not a cause of action. FED. R.
CIV. P. 8(e), however, instructs that “[p]leadings must be construed as to do justice.”115
Howett has pled fraud or misrepresentation, for which restitution may be a remedy.

111

D.I. 1 at ¶¶ 124-25.
D.I. 11 at 10.
113
D.I. 13 at 8.
114
D.I. 14 at 8.
115
FED. R. CIV. P. 8(e).
112

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Fraud, however, must be pled with particularity under FED. R. CIV. PRO. 9(b).116 To
satisfy Rule 9(b) in conjunction with Rule 8(a)(2),117 “the requirement of particularity . . .
does not entail an exhaustive cataloging of facts but only sufficient factual specificity to
provide assurance that plaintiff has investigated . . . the alleged fraud and reasonably
believes that a wrong has occurred.”118 The complaint contains a short and plain
statement of some basis for Howett’s claim suggesting entitlement to relief. Therefore,
if Howett intends to proceed with this Count, she shall amend her complaint within the
time frame provided herein raising a specific cause of action and the bases consistent
with Rules 8 and 9.
Colorado River Abstention Doctrine
Defendants contend the Colorado River abstention doctrine operates to permit
the court to abstain from exercising jurisdiction over Howett’s 401K claims in Counts VI
and VII because she is presently litigating similar issues in the Delaware Superior
Court.119 Since Howett voluntarily dismissed Count VI and the court recommends
dismissal of Count VII, this argument is moot and presently need not be addressed.
IV.

Order and Recommendation Disposition
Consistent with the findings contained in this Report and Recommendation, IT IS

RECOMMENDED that defendants’ motion to dismiss (D.I. 10) be GRANTED as to
counts I, II, III and IV with respect to Defendants Abboud and Bittner individually, and
116

Seville Indus. Machinery Corp. v. Southmost Machinery Corp., 742 F.2d 786,
791 (3d Cir. 1984).
117
Rule 8(a)(2) provides “a pleading shall contain . . . a short and plain statement
of the claim.” Gissen v. Colorado Interstate Corp., 62 F.R.D. 151, 154 (D. Del. 1974).
118
Temple v. Haft, F.R.D. 49, 53 (D. Del. 1976).
119
D.I. 11 at 11.
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Counts V, VI, and VII with respect to all defendants and DENIED as to Count VIII.
IT IS FURTHER RECOMMENDED that defendants’ motion to dismiss Counts I
and II be GRANTED regarding sex discrimination and hostile work environment and
DENIED as to retaliation.
IT IS FURTHER RECOMMENDED that for retaliation and Count VIII, plaintiffs
shall have until January 16, 2015 in which to amend their complaint consistent with this
Report and Recommendation.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1)(B),
FED. R. CIV. P. 72(a) 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. The objections and response to the objections are limited to ten (10)
pages each.
The parties are directed to the Court's Standing Order in Non–Pro Se matters for
Objections Filed under FED. R. CIV. P. 72, dated October 9, 2013, a copy of which is
available on the Court's website, www.ded.uscourts.gov.
Date: December 9, 2014

/s/ Mary Pat Thynge
UNITED STATES MAGISTRATE JUDGE

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