Wilson v. E.I. DuPont de Nemours and Company et al
MEMORANDUM OPINION - Signed by Judge Leonard P. Stark on 3/13/17. (rwc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ROGER SCOTI WILSON,
Civ. No. lS-967-LPS
E.!. DUPONT DE NEMOURS AND
COMPANY, et aI.,
Roger Scott Wilson, Newark, Delaware, Pro Se Plaintiff.
Lauren E.M. Russell, Esquire, Young Conaway Stargatt & Taylor, LLP, Wilmington, Delaware, and
Janet 0. Lee, Esquire and J. Michael Nolan, III, Esquire, Jackson Lewis P.c., Philadelphia,
Pennsylvania. Counsel for Defendants.
March 13, 2017
STARK, U.S. Distri tJudge:
Plaintiff Roger Scott Wilson ("Plaintiff") proceeds pro se. lie commenced this action on
October 23, 2015, pursuant to the whistleblower protection provision of the Consumer Product
Safety Act, 15 U .S.c. § 2087 ("CPSA"), and the employee protection provision of the Fair Labor
Standards Act, 29 U.S.c. § 218c ("FLSA"). (D.l. 1) The Court has jurisdiction pursuant to 28
U.s.c. § 1331.
Presently before the Court are Defendants' motion to dismiss and Plaintiff's motion for
summary judgment, as well as the parties' oppositions to both motions. (D.l. 15, 16, 17, 18, 19, 20,
21) For the reasons that follow, the Court will grant Defendants' motion and will deny Plaintiff's
Plaintiff was employed by Defendants E.l. Du Pont de Nemours and Company ("Du Pont")
and Pioneer Hi-Bred International, Inc. ("Pioneer") in various positions for some 24 years until July
27,2012, when, he alleges, he was forced to resign. Plaintiff alleges that his resignation was the
culmination of retaliation and harassment that he endured for 12 years after he refused to file a
falsified safety report in August 2000 concerning a July 27, 2000 gas cylinder leak incident. Plaintiff
alleges that he was discharged in violation of the CPSA and the FIl;A. He seeks compensatory and
Because Plaintiff proceeds pro se, his pleading is liberally construed and his complaint,
"however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted
by lawyers." Eritkson 1). Pardus, 551 U.S. 89,94 (2007) (internal quotation marks omitted).
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. .lee JprtliJI v. Gillis, 372 F.3d 218,
223 (3d Cit. 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 ractory Sec. Litig.,
114 F.3d 1410, 1420 (3d Cit. 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 Cit. 2000) (internal quotation marks omitted).
A well-pleaded complaint must contain more than mere labels and conclusions. See Ashcrqft
v. Iqbal, 5561].S. 662 (2009); BellAtl. Corp.
TwomblY, 550 U.S. 544 (2007). A plaintiff must plead
facts sufficient to show that a claim has substantive plausibility. .lee Johnson v.
Ciry rif Jhel!::y, _U.S._,
135 S.Ct. 346, 347 (2014). A complaint may not dismissed, however, for imperfect statements of the
legal theory supporting the claim asserted . .lee id. at 346.
Under the pleading regime established by TwomblY 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 theit veracity and then determine whether they plausibly give rise to an entitlement to relief.
.lee ConnellY v. Lane Canst. Corp., 809 F.3d 780, 787 (3d Cit. 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
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
W illiams v. BASF CatalYsts llC, 765 F.3d 306, 315 (3d Cit. 2014) (citing Iqbal, 556 U.S. at 678 and
TwomblY, 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. W ilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321 (3d Cit. 2008)
(internal quotation marks omitted).
Defendants move for dismissal pursuant to Rule 12(b)(6) on the grounds that Plaintiff has
failed to exhaust his administrative remedies as is statutorily required. Plaintiff opposes the motion
to dismiss and moves for summary judgment on the grounds that Defendants have not denied his
claims and they never responded to the charge of discrimination that he filed "with Equal
Employment Opportunity Commission ("EEOC'').
15 U.S.C. § 2087 and 29 U.S.C. § 218e
Plaintiff raises claims under 15 U.S.c. § 2087 of the CPSA and 29
eSc. § 218c of the
FLSA. Both statutes have the same procedural requirements that must be met before filing a civil
action in court.
Section 2087 (a) of the CPSA prohibits employers from discharging or discriminating against
an employee because the employee:
(1) provided, caused to be provided, or is about to provide or cause
to be provided to the employer, the Federal Government, or the
attorney general of a State information relating to any violation of, or
any act or omission the employee reasonably believes to be a
violation of any provision of this chapter or any other Act enforced
by the Commission, or any order, rule, regulation, standard, or ban
under any such Acts;
(2) testified or is about to testify in a proceeding concerning such
(3) assisted or participated or is about to assist or participate in such a
(4) objected to, or refused to participate in, any activity, policy,
practice, or assigned task that the employee (or other such person)
reasonably believed to be in violation of any provision of this chapter
or any other Act enforced by the Commission, or any order, rule,
regulation, standard, or ban under any such Acts.
15 U.s.c. § 2087(a). Section 218c(a)(5) of the FLSA prohibits employers from discharging an
employee because the employee has "objected to, or refused to participate in, any activity, policy,
practice, or assigned task that the employee (or other such person) reasonably believed to be in
violation of any provision of this title (or amendment), or any order, rule, regulation, standard, or
ban under this title (or amendment)." 29 U.S.c. § 218c(a)(5).
Pursuant to 29 U.s.c. § 218c(b)(1) of the FLSA, "[a]n employee who believes that he or she
has been discharged or otherwise discriminated against by any employer in violation of this section
may seek relief in accordance with the procedures, notifications, burdens of proof, remedies, and
statutes of limitation set forth in section 2087(b) of title 15." 29 U.s.c. § 218(c). Under 15 U.S.c.
§ 2087(b) of the CPSA,
(1) A person who believes that he or she has been discharged or
otherwise discriminated against by any person in violation of
subsection (a) may, not later than 180 days after the date on which
such violation occurs, file (or have any person file on his or her
behalf) a complaint with the Secretary of Labor alleging such
discharge or discrimination and identifying the person responsible for
such act ....
(2)(a) ... the Secretary shall initiate an investigation and determine
whether there is reasonable cause to believe that the complaint has
merit and notify, in writing, the complainant and the person alleged
to have committed a violation of subsection (a) of the Secretary's
(4) If the Secretary has not issued a final decision within 210 days
after the filing of the complaint, or within 90 days after receiving a
written determination, the complainant may bring an action at law or
equity for de novo review in the appropriate district court of the
United States with jurisdiction, which shall have jurisdiction over
such an action without regard to the amount in controversy, and
which action shall, at the request of either party to such action, be
tried by the court with a jury.
15 U.S.c. § 2087(b). Accordingly, under either statnte, Plaintiff may commence an action in federal
court only after filing a complaint with the Secretary of Labor and if "the Secretary has not issued a
ftnal decision within 210 days after the filing of the complaint, or within 90 days after receiving a
written determination." Failure to exhaust administrative remedies is a ground to dismiss a case for
failure to state a claim under Fed. R. Civ. P. 12(b)(6). See Devine 1). St. Luke's Hosp., 406 F. App'x 654,
656 (3d Cir. Jan 10, 2011).
There is nothing in the Complaint to indicate that Plaintiff illed a complaint with the
Secretary of Labor or, as he now advises, that he @ed a charge of discrimination with the EEOC.
Defendants argue that dismissal is appropriate because Plaintiff failed to exhaust the necessary
procedural requirements. Conversely, Plaintiff argues that he properly exhausted the administrative
requirements when, on October 2, 2012, he @ed a charge of discrimination with the EEOC, and he
received the notice of right to sue on July 27, 2015. It is Plaintiff's position that he met his
exhaustion requirements by virtne of the steps he took with the EEOC. Plaintiff did not provide
the Court with a copy of the notice of suit rights.
The Court finds unavailing Plaintiff's position that the notice of suit rights issued by the
EEOC satisftes the exhaustion requirements of 15 U.S.c. § 2087 and 29 U.S.c. § 218c. Under
existing statntory schemes, a plaintiff must @e separate complaints 'W1.th each respective agency:
(1) for claims brought pursuant to 15 U.S.c. § 2087 and 29 U.S.c. § 218c, this requires filing a
complaint with the Secretary of Labor; and (2) for employment discrimination claims under Tide
VII, this requires the filing of a charge of discrimination with the EEOC See e.g., Hickman v. Amazon
App'x_, 2016 WL 5751406, at *2 (3d Cit. Oct. 4, 2016).
Plaintiff elected to pursue claims under 15 U.s.C § 2087 and 29 U.S.C § 218c. 'Ibese claims
fall outside the framework contemplated by Title VII, the Americans with Disability Act, and other
similar employment discrimination statutes that speak to discrimination based upon a protected
characteristic such as race, color, religion, sex, national origin, or disability. The Complaint contains
no such claims.! Rather, it alleges retaliation and harassment that occurred over a 12-year timeframe after Plaintiff refused to file a falsified safety report.
Plaintiff failed to exhaust his administrative remedies
under the statutes pursuant to which
he brings his claims, he must first file a complaint with the Secretary of Labor and not with the
EEOC Hence, he has failed to establish compliance with either 15 U.S.C § 2087 or 29 V.S.C
Finally, Plaintiff alleges that he was forced to resign on July 27, 2012. Thus, the time for
exhaustion has long expired, making any claims raised pursuant to 15 U.S.C § 2087 or 29 U.S.C
§ 218c futile. See 15 U.S.C § 2087(b)(1) (person who believes he has been discharged or otherwise
discriminated against may, not later than 180 days after date on which such violation occurs, file
complaint \\<~th Secretary of Labor, alleging discharge or discrimination and identifying person
responsible for such act); J'ee aiJ'o Shine v. Bqyonne Board qfEdtlc., 633 F. App'x 820, 824 (3d Cit. Sept.
22, 2015) (failure to exhaust administrative remedies is generally fatal to claim). Plaintiff has failed
to state a claim upon which relief may be granted. Therefore, the Court will grant Defendants'
motion and will dismiss with prejudice.
lThe Complaint does refer to "racial commentary" made by one of Plaintiffs supervisors.
(D.I. 1 at 16)
For the above reasons, the Court will grant Defendant's motion to dismiss (DJ. 15) and will
deny as moot Plaintiff's motion for summary judgment (O.!. 18).
An appropriate Order will be entered.
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