Banner v. Department of Health and Social Services - Division for the Visually Impaired
MEMORANDUM OPINION Signed by Judge Leonard P. Stark on 3/17/2017. (lmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
TUESDAY S. BANNER,
Civ. No. 14-691-LPS
DAVID WESLEY, et al.,
Tuesday S. Banner, New Castle, Delaware, Pro Se Plaintiff.
John H. Taylor, III, Deputy Attorney General, Delaware Department of Justice, Wilmington,
Delaware. Counsel for Defendants David Wesley, Robert Doyle, III, Genelle Fletcher, and William
March 17, 2017
Plaintiff Tuesday S. Banner. ("Plaintiff') proceeds pro se and was granted leave to proceed in
jo17!Ja pauperis. She filed this action pursuant to 42 U .S.C. § 1983, alleging retaliation for filing an
anti-discrimination claim, and then amended to allege violations of the Family Medical Leave Act, 29
U.S.C. § 2601 et seq. ("FMLA"), the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et
seq. ("ADA"), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII").
(D.I. 2, 6) The Court dismissed the Amended Complaint and gave Plaintiff leave to amend the
ADA, FMLA, and 42 U.S.C. § 1983 claims. (D.I. 31, 32) Plaintiff filed an Second Amended
Complaint on March 31, 2016. (D.I. 33) The Court has jurisdiction pursuant to 28 U.S.C. § 1331.
Presently before the Court are Defendants' motion to dismiss, Plaintiffs opposition, and
Defendants' reply. (D.I. 36, 44, 45) For the reasons that follow, the Court will grant Defendants'
motion. Plaintiff will be given leave to amend two FMLA claims raised against Fletcher.
On March 10, 2016, Plaintiff was given leave to amend the ADA, FMLA, and§ 1983 claims.
Plaintiff's Second Amended Complaint appears to assert: (1) 42 U.S.C. § 1983 retaliation and
substantive due process claims against Defendants David Wesley (''Wesley"), William Wharton
(''Wharton"), Robert Doyle, III ("Doyle"), and Genelle Fletcher ("Fletcher"); (2) FMLA retaliation
claims against Doyle and Fletcher; and (3) ADA claims against Doyle and Fletcher. 1 The Second
The first page of the Second Amended Complaint references a Title VII employment
discrimination claim pursuant to 42 U.S.C. §§ 2000e. The claim was dismissed as discussed in the
March 10, 2016 memorandum and order. Plaintiff was not given leave to amend the claim and may
not reinstate it through amendment.
Amended Complaint alleges wrongful acts occurring from December 2, 2009 to December 31, 2014
that resulted in the termination of Plaintiffs employment.
Because Plaintiff proceeds pro se, her pleading is liberally construed and her Second
Amended 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). Defendant moves for dismissal pursuant to Rule 12(b)(1) and 12(b)(6).
Rule 12(b)(1) of the Federal Rules of Civil Procedure permits the dismissal of an action for
"lack of subject matter jurisdiction." A Rule 12(b)(1) motion may be treated as either a facial or
factual challenge to the court's subject matter jurisdiction. See Constitution Parry of Pa. v. Aichele, 757
F.3d 347, 357-58 (3d Cir. 2014). In reviewing a facial attack, "the court must only consider the·
allegations of the complaint and documents referenced therein and attached thereto, in the light
most favorable to the plaintiff." Id at 358 (quoting In re Schering Plough Corp. v. Intron, 678 F.3d 235,
243 (3d Cir. 2012)). In reviewing a factual attack, the court may consider evidence outside the
pleadings. Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).
Evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) requires the
Court to accept as true all material allegations of the complaint. See Spruill v. Gillis, 372 F.3d 218,
223 (3d Cir. 2004). "The issue is not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims." In re Burlington Coat Factory Sec. Litig.,
114 F.3d 1410, 1420 (3d Cir. 1997) (internal quotation marks omitted). Thus, the Court may grant
such a motion to dismiss only if, after "accepting all well-pleaded allegations in the complaint as
true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief." Maio
v. Aetna, Inc., 221 F.3d 472, 481-82 (3d Cir. 2000) (internal quotation marks omitted).
A well-pleaded complaint must contain more than mere labels and conclusions. See Ashcroft
v. Iqbal, 556 U.S. 662 (2009); Bel!AtL Corp. v. Twomb/y, 550 U.S. 544 (2007). A plaintiff must plead
facts sufficient to show that a claim has substantive plausibility. See Johnson v.
Ciry of Shefl?J, _U.S._,
135 S.Ct. 346, 347 (2014). A complaint may not be dismissed, however, for imperfect statements of
the legal theory supporting the claim asserted. See id. at 346.
Under the pleading regime established by Twomb/y and Iqbal, a court reviewing the
sufficiency of a complaint must take three steps: (1) take note of the elements the plaintiff must
plead to state a claim; (2) identify allegations that, because they are no more than conclusions, are
not entitled to the assumption of truth; and (3) when there are well-pleaded factual allegations,
assume their veracity and then detennine whether they plausibly iive rise to an entitlement to relief.
See Connel/y v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016). Deciding whether a claim is
plausible will be a "context-specific task that requires the reviewing court to draw on its judicial
experience and common sense." Iqbal, 556 U.S. at 679.
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 Cata/ysts LLC, 765 F.3d 306, 315 (3d Cir. 2014) (citing Iqbal, 556 U.S. at 678 and
Twomb/y, 550 U.S. at 570). A claim is facially plausible "when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged." Iqbal, 556 U.S. at 678. At bottom, "[t]he complaint must state enough facts to raise a
reasonable expectation that discovery will reveal evidence of [each] necessary element" of a
plaintiff's claim. Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321 (3d Cir. 2008)
(internal quotation marks omitted).
Eleventh Amendment Immunity
Defendants move to dismiss the claims raised against them in their official capacities based
upon Eleventh Amendment immunity. They contend that Plaintiff has not explicitly stated, nor
alleged, in the Second Amended Complaint, her intent to bring suit against them in their individual
capacities. Given Plaintiffs prose status, the Court liberally construes the Second Amended
Complaint as raising claims against Defendants in their individual and official capacities.
The Court has already ruled on the issue of Eleventh Amendment immunity and sees no
need to address the issue once again. As previously determined, Defendants, in their official
capacities, are entitled to sovereign i.inmunity with respect to Plaintiffs claims filed pursuant to 42
U.S.C. § 1983, Title V of the ADA, and the FMLA. (See D.I. 31, 32) Therefore, the Court will grant
the motion to dismiss the claims raised against Defendants in their official capacities.
Plaintiff seeks recovery under 42 U.S.C. § 1983. She alleges that Wesley, Wharton, Doyle,
and Fletcher were placed on notice of a hostile work environment when, between January 15, 2010
and December 6, 2012, she submitted grievances, filed a lawsuit, sought leave under the FMLA, was
involuntarily removed from her work by her physician due to work-related stress (among other
things), was granted short-term disability, and was undergoing mental health treatment. Plaintiff
alleges that Welsey and Wharton had a statutory obligation, under Delaware law and constitutional
provisions, to report the harassment to the Cabinet Secretary, but did not do so. She alleges
retaliation on the grounds that Wesley and Wharton did not file a report in order to protect their
friend, Doyle, &om exposure and to make the Cabinet Secretary believe that Plaintiff was the culprit,
all of which resulted in the termination of her employment. Finally, she alleges that Welsey and
Wharton violated her substantive right to due process, again in order to protect their friend. The
Second Amended Complaint alleges that Doyle and Fletcher participated in the retaliation and
violated Plaintiffs right to substantive due process under § 1983 "by their awareness of the hostility"
between themselves and Plaintiff, yet did not report this to their superiors. Instead, Doyle denied
Plaintiffs grievances at step-one to ensure that her "cries" would go unheard.
Defendants move for dismissal on the grounds that Plaintiffs due process claims are
conclusory and unsupported and that she alleges violations of Delaware statutes or policies and not
rights under United States Constitution or laws, as is required for a § 1983 claim. Plaintiff responds
that the fact that she prevailed in her State unemployment claim and the Department of Health and
Human Services did not appeal indicates there was a clear violation of her right to due process.
Plaintiff once against attempts to raise a Title VII claim under the umbrella of a § 1983
claim. She repeatedly refers to Defendants' awareness of a hostile work environment and alleges
they allowed it to continue. As discussed in the Court's March 10, 2016 Memorandum Opinion,
Title VII is the "exclusive remedy for federal employment retaliation discrimination," and it
precludes a plaintiff &om bringing a stand-alone claim of employment retaliation under § 1983.
Madden v. Rmryon, 899 F. Supp. 217, 225 (E.D. Pa. 1995). Hence, a "claim of retaliation cannot be
the sole basis for a § 1983 claim where there is no violation of the Constitution or federal law, other
than the retaliation provision of Title VII." Price v. Delaware Dep'tojCorr., 40 F. Supp. 2d 544, 558
(D. Del. 1999).
Under§ 1983, to maintain a First Amendment retaliation claim, a plaintiff must establish
that: (1) she engaged in an activity protected by the First Amendment; (2) the employer took a
retaliatory action that was "sufficient to deter a person of ordinary firmness from exercising her
constitutional rights"; and (3) there was a casual link between the protected conduct and the adverse
action. Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006). Private, ordinary employment
disputes between an employee and his or her supervisors are not considered protected speech. See
Rearick v. Spanier, 523 F. App'x 198, 199 (3d Cir.July 1, 2013).
The conclusory allegations here do not rise to the level of retaliatory conduct. While the
Second Amended Complaint alleges that Plaintiff engaged in activity protected by the First
Amendment (grievances submitted in January 15, 2010, December 3, 2010, and May 10, 2012, as
well as a lawsuit filed on April 30, 2012),2 the allegations do not support the conclusion that
Defendants' alleged failure to report the hostile work environment deterred Plaintiff from exercising
her constitutional rights. To the contrary, the allegations indicate that Plaintiff has continually
exercised her right to submit grievances and file lawsuits.
Plaintiff also alleges violations of her substantive due process rights. To prevail on a
substantive due process claim challenging a state actor's conduct, "a plaintiff must establish as a
threshold matter that he has a protected property interest to which the Fourteenth Amendment's
due process protection applies." Nicholas v. Pennryivania State Univ., 227 F.3d 133, 139-40 (3d Cir.
2000). However, "not all property interests worthy of procedural due process protection are
protected by the concept of substantive due process." Reich v. Beharry, 883 F.2d 239, 243 (3d Cir.
1989). The Third Circuit has explicitly determined that public employment is not a fundamental
right entitled to substantive due process protection, holding that "public employment is a wholly
state-created contract right; it bears little resemblance to other rights and property interests that have
The Court does not consider the other acts referred to by Plaintiff, as they do not involve
protected constitutional rights.
been deemed fundamental under the Constitution." Nicholas, 227 F.3d at 143. Hence, Plaintiffs
substantive due process claim fails as a matter of law.
Based upon the foregoing analysis, the Court will grant Defendants' motion to dismiss the
§ 1983 claims.
The Second Amended Complaint alleges that Doyle and Fletcher violated the FMLA. 3
Plaintiff alleges that when Doyle became her supervisor in November 2009, he should have known
based upon her personnel file, that she had been granted FMLA leave in the past to care for her
disabled child. She alleges that Doyle, who did not review her file, did not select her for a position
on December 2, 2009 because of her poor attendance record, even though he did not know the
absences were based upon approved FMLA. Plaintiff alleges that on March 22, 2010, Fletcher made
an entry in her performance plan in retaliation because Fletcher was unable regulate Plaintiffs
FMLA approval and this resulted in the loss of a promotion. Plaintiff further alleges that on that
same date, Fletcher demanded more information beyond what is authorized for FMLA requests, and
on December 21, 2012, Fletcher denied Plaintiffs FMLA recertification request. Finally, Plaintiff
alleges that Fletcher's acts prompted Doyle to recommend Plaintiffs termination for being in an
unauthorized status. Defendants move to dismiss for failure to state a claim upon which relief may
be granted, on the grounds that the unsupported allegations do not support a retaliation claim.
Under the FMLA, an "employer" is "any person who acts, directly or indirectly, in the
interest of an employer to any of the employees of such employer." 29 U.S.C. § 2611(4)(A)(ii)(I).
Such language "plainly contemplates that liability for FMLA violations may be imposed upon an
individual person who would not otherwise be regarded as the plaintiffs 'employer."' Hqybarger v.
Lawrence Cnty. Adult Prob. & Parole, 667 F.3d 408, 413 (3d Cir. 2012). "[I]his language means that an
individual is subject to FMLA liability when he or she exercises 'supervisory authority over the
complaining employee and was responsible in whole or part for the alleged violation' while acting in
the employer's interest." Id. at 417.
"The primary purposes of the FMLA are to 'balance the demands of the workplace with the
needs of families' and to entitle employees to take reasonable leave for medical reasons."' Callison v.
City of Phila., 430 F.3d 117, 119 (3d Cir. 2005) (quoting 29 U.S.C. § 2601 (b)(1) and (2)). To establish
a retaliation claim under the FMLA, a "plaintiff must prove that (1) she invoked her right to
FMLA-qualifying leave, (2) she suffered an adverse employment decision, and (3) the adverse action
was causally related to her invocation of rights." Lichtenstein v. University of PittsbuT:?,h Med. Ctr., 691
F.3d 294, 301-02 (3d Cir. 2012) (internal citation omitted).
When asserting a FMLA retaliation claim, "a plaintiff must show 'that a reasonable employee
would have found the challenged actions "materially adverse" in that they 'well might have
dissuaded a reasonable worker from making or supporting a charge of discrimination."' Burton v.
Penn.ryvania State Police, 990 F. Supp. 2d 478, 509 (M.D. Pa. 2014) (citing Moore v. City of Phila., 461
F.3d 331, 341 (3d Cir. 2006)) (quoting Burlington N. & Santa Fe Ry. Co. v. "White, 548 U.S. 53, 68
(2006)); see also Grosso v. Federal Express Corp., 467 F. Supp. 2d 449, 459 (E.D. Pa. 2006) ("Thus, this
Court concludes that Burlington Northern provides guidance in determining whether plaintiff was
subject to an "adverse employment action [under the FMLA]").
Plaintiffs claims against Doyle fail to state a claim upon which relief may be granted. The
Second Amended Complaint alleges that when Doyle became her supervisor he should have known
that, in the past, she was approved leave under the FMLA, and further that Doyle did not select her
for a position due to her poor attendance record - even though he did not know that her absences
were FMLA approved. In both instances, as alleged, Doyle had no knowledge of leave taken by
Plaintiff under the FMLA and, therefore, her claims do not meet the elements of a FMLA claim.
Therefore, the Court will dismiss the FMLA retaliation claims raised against Doyle.
Plaintiff makes a conclusory claim against Fletcher that she was not promoted, based upon
an alleged retaliatory entry made by Fletcher in Plaintiffs March 22, 2010 performance plan because
Fletcher was unable to regulate Plaintiff's FMLA approval. The Court reviewed the performance
plan, attached as an exhibit to the Second Amended Complaint. It includes the benign (and nonretaliatory) entry, "minimize unplanned and unscheduled work absences, extended breaks, tardies
and early leaves." The allegations fail to state a claim and, therefore, the Court will grant
Defendants' motion to dismiss this claim.
The Court will also dismiss the claim that Fletcher demanded more information beyond
what is authorized for FMLA requests. This dispute is discussed in an email attached as an exhibit
to the Second Amended Complaint. The Court reviewed the email and it does not support a claim
for violation of the FMLA. Therefore, the Court will grant the motion to dismiss this claim.
The last two claims raised against Fletcher are that she denied Plaintiff's FMLA
recertification request and that Fletcher's acts prompted Doyle to recommend Plaintiff's termination
for being in an unauthorized status. These claims are pled in a conclusory manner and will be
dismissed. However, since it appears plausible that Plaintiff may be able to articulate a FMLA claim
against Fletcher, she will be given one final opportunity to amend these last two claims to cure the
pleading defects. See O'Dell v. United States Gov't, 256 F. App'x 444 (3d Cir. Dec. 6, 2007) Oeave to
amend is proper where the plaintiff's claims do not appear "patently meritless and beyond all hope
The Second Amended Complaint alleges that Plaintiff's employment was terminated in
violation of the ADA and that she exhausted her rights "in accordance with the ADA when she
filed an appeal" of the denial of her claim for unemployment insurance benefits in the Superior
Court of the State of Delaware. Defendants move for dismissal on the grounds that the Second
Amended Complaint fails to establish a prima facie case and Plaintiff failed to exhaust her
Section 12203 of Title V of the ADA prohibits retaliation "against any individual because
such individual has opposed any act or practice made unlawful by [the ADA]." 42 U.S.C. §§ 1210112213. Retaliation under the ADA requires facts that could establish that: (1) Plaintiff was engaged
in protected conduct; (2) an adverse action was taken by Defendants; and, (3) there is a causal link
between the protected conduct and the adverse action. See Cottrell v. Good Wheels, 458 F. App'x 98,
100-01 (3d Cir. Jan. 23, 2012) (citing Williams v. Philadelphia Hous. Auth. Police Dep't, 380 F.3d 751,
757 (3d Cir. 2004)). A Plaintiff is required to exhaust his or her administrative remedies prior to
bringing a suit under the ADA. See Overby v. Boeing Global Stqffing, 571 F. App'x 118, 119 (3d Cir. July
8, 2014); see also Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997) (stating basic tenet of
administrative law is that all administrative remedies must first be exhausted in order to promote
efficiency, respect administrative autonomy, provide courts with benefit of agency's expertise, and
serve judicial economy).
To properly exhaust the administrative remedies under the ADA, a plaintiff must follow the
administrative procedures set forth in Title VII, 42 U.S.C. § 2000e-5. See Churchill v. Star Enter., 183
F.3d 184, 190 (3d Cir. 1999). Here, Plaintiff alleges that she exhausted administrative remedies
when she filed an appeal of a ruling by the Delaware Department of Labor's Unemployment
Insurance Board. The appeal does not suffice to properly exhaust Plaintiffs administrative remedies
as set forth under Title VIL Therefore, the Court will grant the motion to dismiss the ADA claims
for Plaintiff's failure to exhaust her administrative remedies. 4
For the above reasons, the Court will grant Defendants' motion to dismiss. All claims are
dismissed. Plaintiff will be given leave to amend only the following FMLA claims raised against
Fletcher: that Fletcher denied Plaintiffs FMLA recertification request and that Fletcher's acts
prompted a recommendation for Plaintiffs termination for being in an unauthorized status. This is
Plaintiffs final opportunity to amend.
An appropriate Order will be entered.
4The Court need not address Defendants' position that Plaintiff failed to state a prima fade
case under the ADA.
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