Jester v. State of Delaware Department of Safety and Homeland Security et al

Filing 13

MEMORANDUM OPINION re pending motions. Signed by Judge Leonard P. Stark on 9/29/15. (ntl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DEBORAH JESTER,
Plaintiff,
C.A. No. 14-1124-LPS

v.
STATE OF DELAWARE DEPARTMENT
OF SAFETY and
JOSHUA BUSHWELLER,
Defendants.

Michele D. Allen, Michele D. Allen LLC, Hockessin, Delaware
Attorney for Plaintiff

Patricia Davis Oliva, Joseph C. Handlon, Deputy Attorneys General, Delaware Department of
Justice, Wilmington, Delaware
Attorneys for Defendant

MEMORANDUM OPINION

September 29, 2015
Wilmington, Delaware

L~fl

STARK, U.S. District Judge:

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I. -

INTRODUCTION

Plaintiff Deborah Jester ("Plaintiff') filed this action pursuant to 42 U.S.C. § 1983 and
Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-2) alleging employment
discrimination. Plaintiff filed her Original Complaint on September 3, 2014. (D.I. 1) ("Original
Complaint") On August 8, 2015, Plaintiff filed an Amende4 Complaint. (D.I. 8) ("Amended
Complaint")
Presently before the Court is Defendants' motion to dismiss the Amended Complaint.
(D.I. 9) Defendants seek to dismiss the Amended Complaint as untimely under Fed. R. Civ. P.
15(a) or, alternatively, for failure to state a daim under Fed. R. Civ. P. 12(b)(6).
For the reasons that follow, the Court will grant in part, and deny in part, Defendants'
motion.
II.

BACKGROUND 1

The Amended Complaint (like the Original Complaint) alleges that Plaintiff was
employed by the Division ofState Police ("DSP"), an agency of Delaware's Department of
Safety and Homeland Security ("DDSHS"), and that Joshua Bushweller (along with DDSHS,
"Defendants") served as the Assistant Director of Human Resources for the DSP. (D.I. 8 ~~ 3-4,. ,
7) According to the Amended Complaint, on April 5, 2011, Plaintiff was placed in the

DSP Weight Control Program ("WCP"). (Id.

9jf

23) Plaintiff alleges that the DSP WCP

requires officers to adhere to certain standards regarding body fat percentages and weightJ
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This recitation is based, as it must be at this stage, on taking as true all well-pleaded
factual allegations in the Amended Complaint.
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(See id. ~if 12-14) Plaintiff further alleges she was unable to meet the standards required

by the WCP. (See id.

~~ 25-45)

Consequently, on May 18, 2013 Plaintiff was found to

be in non-compliance with the WCP and on June 2, 2013 she was constructively
discharged, i.e., she was "forced to submit her notice ofretirement."

(Id.~~

7, 47)

Plaintiff claims that her due process rights were violated when she was
constructively terminated without an opportunity to challenge the basis for her
termination. (Id.

~~

54-61) Plaintiff further claims that the WCP has a disparate impact

on female employees

(id.~~

and women officers (id.

~~

73-82) and that the WCP applies different standards to men

86-96). Plaintiff is seeking compensatory damages, punitive

damages, equitable relief, costs, and attorney's fees. (Id. at 16)

III.

LEGAL STANDARDS
Evaluating a motion to dismiss under Federal Rule of Civil Procedure l 2(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., 221F.3d472, 481-82 (3d Cir. 2000)
(internal quotation marks omitted).

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However, "[t]o survive a motion to dismiss, a civil plaintiff must allege facts that 'raise a
right to relief above the speculative level on the assumption that the allegations in the complaint
are true (even if doubtful in fact)."' Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007)
(quoting Bell At/. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 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." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). "The complaint must state enough facts to raise a reasonable expectation that discovery
will reveal evidence of [each] necessary element" of a plaintiffs claim. Wilkerson v. New Media·
Tech. Charter Sch. Inc., 522 F.3d 315, 321 (3d Cir. 2008) (internal quotation marks omitted).
The Court is not obligated to accept as true "bald assertions," Morse v. Lower Merion
Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (internal quotation marks omitted), "unsupported
conclusions and unwarranted inferences," Schuylkill Energy Res., Inc. v. Pennsylvania Power &
Light Co., 113 F.3d 405, 417 (3d Cir. 1997), or allegations that are "self-evidently false," Nami v.
Fauver, 82 F.3d 63, 69 (3d Cir. 1996).

IV.

DISCUSSION
A.

Timeliness

Defendants argue that Plaintiffs Amended Complaint should be dismissed for lack of
timeliness. (D.I. 9 at 1-2) The Court does not agree.
Fed. R. Civ. P. 15(a)(l) provides that "[a] party may amend its pleading once as a matter
of course" within 21 days after service of a responsive pleading. "In all other cases, a party may
amend its pleading only with the opposing party's written consent or the court's leave. The court:

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should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). Here, Defendants
have not provided written consent. The Court, however, will grant leave to amend.
The Third Circuit has held that courts should apply a liberal policy when deciding
whether to allow a party to amend its pleadings. See Dole v. Arco Chemical Co., 921 F .2d 484,
468-87 (3d Cir. 1990); Mallinckrodt Inc. v. E-Z-Em Inc., 671 F. Supp. 3d 563, 567-68 (D. Del.
2009). "This approach ensures that a particular claim will be decided on the merits rather than
on technicalities." Dole, 921 F.2d at 487; see also Foman v. Davis, 371 U.S. 178, 182 (1962)
(quoting Fed. R. Civ. P. 1 and explaining that Rules should "be construed to secure the just,
speedy, and inexpensive determination of every action"). In the absence of "undue delay, bad
faith ... undue prejudice ... [or] futility of amendment," leave to amend should be granted.
Foman, 371 U.S. at 182.
Although Plaintiff failed to meet the deadline specified in Rule 15(a)(l) for amendment
as of right, Plaintiff has provided an adequate and persuasive explanation for the delay.
Specifically, Plaintiffs original attorney was suspended from practice and his suspension caused
considerable confusion and delay. (See D.I. 11-at p. 1)2 Under the circumstances, the delay in
filing the Amended Complaint (although lengthy) was not undue. There is no evidence of bad
faith, nor of unfair prejudice. Indeed, Defendants argue there are no substantial differences
between the Amended Complaint and the Original Complaint (D.I. 9 at 2), making it difficult to
understand how Defendants could be unduly prejudiced.

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For a time, including as of the date of this Memorandum Opinion, Plaintiffs former
counsel remains suspended in State Court, although he has been permitted to resume his practice
in District Court.
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Accordingly, the Court grants Plaintiff's leave to file the Amended Complaint and deems
the Amended Complaint to be filed. The Court now turns to Defendants' contention that the
Amended Complaint fails to state a claim on which relief may be granted.

B.

Failure to State a Claim

Plaintiff's Amended Complaint alleges violations of 42 U.S.C. § 1983 and Title VII of
the Civil Rights Act. 3
1.

Section 1983

Count I of the Amended Complaint alleges that Defendant Bushweller failed to provide
Plaintiff with due process as required by the United States and Delaware Constitutions. (D .I. 8

ilil 53-71 )4

Specifically, Plaintiff alleges that Bushweller violated her due process rights by

" [denying her] request to seek medical intervention by a divisional health care provider,"
refusing to provide a factual basis for her constructive termination, and failing to provide her
with a pre-termination hearing before a neutral decision maker. (Id.

ilil 56-59)

In response,

Defendants argue that Plaintiff has failed to allege facts sufficient to show that she was
constructively terminated, that she exhausted her administrative remedies, or that Bushweller' s
actions violated her due process rights, and they further argue that Bushweller is protected by
qualified immunity. (D.I. 9)

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The Amended Complaint also contains a count alleging "Constructive Discharge."
Defendants' motion does not appear to be directed to this count.
4

The Due Process claim is brought solely against Defendant Bushweller.
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The Court has concluded that Plaintiff has failed to allege facts sufficient to show that
Bushweller' s actions violated her due process rights. Given this conclusion, the Court does not
address the remaining deficiencies Defendants contend they find in the due process claim.
In order to state a claim under§ 1983, "a plaintiff must allege the violation of a right

secured by the Constitution and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S.
42, 48 (1988). At issue h~re is whether Bushweller violated Plaintiffs due process rights by
effectuating her constructive termination. See Gilbert v. Hamar, _520 U.S. 924, 928-29 (199,7)
(explaining that public employees have constitutionally protected interest in their tenure and
cannot be fired without due process); Board ofRegents ofState Colleges v. Roth, 408 U.S. 564,
578 (1972); Perry v. Sindermann, 408 U.S. 593, 602-03 (1972).
In general, employee resignations are presumed to be voluntary. See Leheny v. City of

Pittsburgh, 183 F.3d 220, 227 (3d Cir. 1999). However, this presumption can be rebutted ifthe
employee "comes forward with sufficient evidence to establish that the resignation was
involuntarily extracted." Hargray v. City ofHallandale, 57 F.3d 1560, 1568 (11th Cir. 1995). InJ
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Hill v. Borough ofKutztown, the Third Circuit outlined the test courts should use to determine
whether a retirement is involuntary:
a resignation will be deemed involuntary (i.e., deemed a
constructive discharge) and will thus trigger the protections of the
due process clause, and form the basis of a § 1983 due process
claim, under only two circumstances: (1) when the employer forces
the employee's resignation or retirement by coercion or duress, or
(2) when the employer obtains the resignation or retirement by
deceiving or misrepresenting a material fact to the employee.

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455 F.3d 225, 233 (3d Cir. 2006). Nothing in the Amended Complaint suggests that Plaintiff
was deceived, so the relevant issue is whether her pleadings are sufficient to shqw that her
retirement was obtained by coercion or duress.
To determine whether a resignation was obtained through coercion or duress, courts
"examine the surrounding circumstances to test the ability of the employee to exercise free
choice." Leheny, 183 F.3d at 227 (3d Cir. 1999) (internal quotation marks omitted).
Specifically, courts consider five factors:
(1) whether the employee was presented with an alternative to
resignation; (2) whether the employee understood the nature of the
choice he was given; (3) whether the employee had a reasonable
time to choose; (4) whether the employee was permitted to select
the effective date of resignation; and (5) whether the employee had
the advice of counsel. ·

O'Connell v. Cnty. ofNorthampton, 79 F. Supp. 2d 529, 533 (E.D. Pa. 1999); see also Hargray,
57 F.3d at 1568 (listing same factors); Caruso v. Superior Court ofDelaware, 2013 WL
1558023, at *8 (D. Del. April 2, 2013) (same).
Here, accepting the well-pleaded factual allegations as true, and construing those facts in .
the light most favorable to Plaintiff, the Court finds that, while Plaintiff may have adequately
alleged a violation of her due process rights, she has not sufficiently alleged that Defendant
Bushweller was responsible for any such violation. In the First Amended Complaint, Plaintiff
alleges that "immediately following the Division's determination of non-compliance ... [she]
was forced to submit her notice of retirement." (D.I. 8 ~ 45) (emphasis added) Plaintiff further
alleges that she "was informed that if she did not resign/retire that she would be terminated
through an "administrative separation." (D.I. 8 ~ 48) (emphasis added) Plaintiff also "was not

afforded an opportunity to challenge the termination and was not afforded time to make a
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decision because she was told that if she did not retire she would be immediately terminated and
she would loose her benefits." (Id.

if 49) (emphasis added)

None of these allegations refers to

Defendant Bushweller. ·Instead, the pleadings are silent with respect to who was responsible for
the actions giving rise to the alleged due process violation. 5
Accordingly, the Court will dismiss Plaintiffs due process claim against Bushweller.

2.

Title VII

Count II of the Amended Complaint alleges that DSP's Weight Control Program
("WCP") has a disparate impact on female employees, in violation of Title VII of the Civil
Rights Act of 1964. Title VII prohibits employment practices that "cause[] a disparate impact on

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the basis ofrace, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(k). In order to
state a claim for disparate impact, a plaintiff must "plead that a facially neutral practice's adverse '
effects fall disproportionately on a [protected] group." Powell v. Ridge, 189 F.3d 387, 393-94
(3d Cir. 1999), overruled on other grounds by Alexander v. Sandoval, 532 U.S. 275 (2001).
The Amended Complaint fails to adequately allege a Title VII claim for disparate impact. ·
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Instead, the Amended Complaint consists entirely of conclusory statements, essentially repeating I
the elements of such a claim. See Loscombe v. City of Scranton, 902 F. Supp .2d 532, 538 (M.D.
Pa. 2012) ("[M]ere conclusory statements will not do; a complaint must do more than allege the :
plaintiffs entitlement to relief.") (internal quotation marks omitted). Plaintiff alleges that "[t]he

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Moreover, the pleadings that do refer to Bushweller do not implicate any of the five
factors that are relevant to the determination of whether Plaintiffs retirement was voluntary.
Plaintiff alleges that Bushweller denied her request to seek medical intervention by a divisional
health care provider, refused to provide a factual basis for her constructive termination, and
failed to provide her with a pre-termination hearing before a neutral decision maker. (Id. ifif 5659)
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application of the DSP's WCP has a disparate impact on women," thatthe WCP "causes a
disparity that is st~tistically significant,'' and that the WCP "is negatively affecting women more
-significantly than ip.en." (D.I. 8 ,, 73-76) But the Amended C_omplaint does not provide a
single fact, example, or detail to support these conclusory allegations. An allegation of statistical -

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significance suggests that some data is available and has been at least preliminarily analyzed but no such facts are pled. Nor does the Amended Complaint make any allegation about any

· other DSP employee, female or male, and how she or he has been affected by the WCP. While a:
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complaint need not allege ''percentages, statistics, or data demonstrating the disproportionate
effect" of the disputed practice, McQueen v. City of Chicago, 803 F. Supp. 2d 892, 906(N.D. Ill.
2011); see also Ridge, 189 F.3d at 394; United States v. Pennsylvania, 2015 WL 2451756 at *6, ·

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"[t]hreadbare recitals of the-elements of a cause of action, supported by mere conclusory
statements, do not suffice," Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court concludes
that Count II of the Amended Complaint fails to state a Title VII claim on which relief may be
granted.
For similar reasons, the Court reaches the same conclusion with respect to Count III of

"(1) she belongs to a protected class; (2) she suffered some form of adverse employment action;
and (3) the adverse employment action occurred under circumstances that give rise to an
inference of unlawful discrimination." Barnett v. New Jersey Transit Corp., 573 Fed. Appx.
.

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239~

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243 (3d Cir. 2014). While Plaintiff adequately alleges that she belongs to a protected class and /
that she experienced an adverse employment action (D.I. 8 if 45), she has not alleged any specific

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facts that give rise to an inference of unlawful discrimination. Here, again, she .merely states in
conclusory fashion that the WCP "systemically discriminates against women DSP officers" (id.
at if 86) and that " [d] ifferent standards for male and female officers are used to measure and
evaluate compliance in the DSP WCP" (id.

if 89).

Accordingly, the Court will dismiss Plaintiffs' Title VII claims.

V.

CONCLUSION
Fpr the reasons provided above, the Court will grant Defendants' motion to dismiss with :

respect to Counts I, II, and III of Plaintiffs Amended Complaint. However, with respect to the
Title VII claims, the Court will provide Plaintiff another opportunity to amend her complaint, as
her claims may not be futile and a further amendment, under the circumstances, would not
unduly prejudice Defendants. An appropriate Order will be entered.

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