Blades v. Mosaic of Delaware et al

Filing 19

MEMORANDUM. Signed by Judge Gregory M. Sleet on 8/31/2017. (mdb)

IN THE UNITED STATES DISTRJCT COURT
FOR THE DISTRJCT OF DELAWARE
ROBERTS. BLADES,
Plaintiff,
v.

MOSAIC OF DELAWARE, et al.,
Defendants.

)
)
)
)
) Civ. Action No. 16-627-GMS
)
)
)
)

MEMORANDUM
I.

INTRODUCTION
The plaintiff, Robert S. Blades ("Blades"), who proceeds prose, filed this employment

discrimination lawsuit on July 25, 2016, followed by an amended complaint on September 8,
2016. (D.I. 1, 4.) 1 He raises claims under Title VII of the Civil Rights of 1964 ("Title VII"), 42
U.S.C. § 2000e, et seq., Titles I and V of the Americans with Disabilities Act of 1990 ("ADA),
42 U.S.C. §§ 12111, et seq. and§ 12101, respectively, 42 U.S.C. § 1983 and§ 1988, as well as
supplemental claims under the Delaware Discrimination in Employment ACt ("DDEA"), 19 Del.
C. § 710(a)(l), the Delaware Workers' Compensation Act, 19 Del. C. § 2365, and breach of the
covenant of good faith and fair dealing. Defendants move to dismiss pursuant to Fed. R. Civ. P.
12(b)(6). (D.I. 13.) Blades opposes.

II.

BACKGROUND
Blades identifies as a Black American, not African American. Blades began his

1

The court considers the amended complaint and its exhibits (D.I. 4) as the operative
pleading. The original complaint (D.I. 1) named the following defendants: Mosaic of Delaware,
Jill Turner, Laura Widger, and Chuck Sipe, all of whom it appears have been served. (See D.I. 5,
6, 7, 8.) The amended complaint at D.I. 4 adds a number of defendants none of whom have been
served. ·

employment with the defendant Mosaic of Delaware ("Mosaic") 2 in March 2013. (D.I. 4,
~

3.) He was discharged on August 1, 2014. (D.I. 4, ex. A.) Blades filed a charge of

discrimination on November 19, 2014, and received a notice of suit rights from the EEOC on
April 26, 2016. (Id. at exs. A, C.)
Blades was supervised by the defendant Jill Turner ("Turner"), William Jenkins
("Jenkins"), and Tracy Martin ("Martin"). (Id. at

~3.)

On October 31, 2013, Blades was

nominated for the quality service award for the month of November and, in December, he was
told that he had been selected for the award. (D.I. 4, exs. E, J.) Blades received his performance
evaluation from Turner on November 11, 2013. (D.I. 4

at~

6, ex. F.) Blades alleges that Turner

coerced him to initial and sign the document without giving him ample time to read or ask
questions about the evaluation. (D.I. 4

at~

6.) Blades refers to the unemployment practices as

"blatant exploitation of [an] African American versus [a] Black American" and "social
oppression." (Id.) Blades alleges that when Turner was asked by her supervisor why she had
given a Black American low scores, Turner then "provided another discriminating evaluation to
another staff [member]." (Id.

at~

7.)

Blades alleges that Turner gave preferential treatment to African Americans rather than
Black Americans like himself. (Id. at ~ 10.) He alleges that Turner's practices and her training
provided a "social oppression" of an "ongoing pattern of misconduct" when she provided Blades
a discriminatory evaluation because he is not of African descent. (Id. at

~

11.) Blades alleges

that Turner also discriminated against him when she decreased his hours and denied him

2

Mosaic is a faith-based, nonprofit, 501(c)(3) organization that serves people with
intellectual disabilities. See http://www.mosaicinfo.org/location/mosaic-delaware (last visited
Aug. 21, 2017).
2

overtime, and gave it to the African Americans. (Id.) The amended complaint alleges that
Turner: (1) intentionally withheld two hours of pay from him; (2) did not discipline African
American employees who were constantly late for work and falsified bloodwork monitors;
(3) did not supervise African American employees who were cleaning mice infestation droppings
in an individual's bedroom; (4) did not discipline a former African American for expressing
himself in the logbook; and (5) provided African American employees extra hours of overtime so
they could send money to their families in Africa. (Id.)
On December 16, 2013, Blades submitted an internal complaint addressed to Turner
complaining of her disparate treatment, but she refused to address Blades' concerns, and she gave
the internal complaint to management. (D.I. 4 at if 13, ex K.) Blades was contacted to schedule
an appointment to investigate the complaint, and later met with Mosaic executive director Chuck
Sipe ("Sipe") and human resources manager Laura Widger ("Widger") to review the findings.

(Id. at if 16.) Blades concluded the investigation was prejudiced and biased and that the meeting
was based on favoritism and negligent supervision. (Id. at ifif 14, 16.) Blades alleges that after
he submitted the complaint, Turner acted in a retaliatory and discriminatory manner when he
received arbitrary and unsubstantiated write ups, Turner wrote derogatory and repetitive
annoying comments in the log book, and she used his evaluations to harass him when she gave
Blades another poor evaluation. (Id. at

if 21.)

On February 14, 2014, Blades applied for the position of direct support specialist. (D.I. 4,
at if 28, ex. 0.) He and four females were interviewed for the position. (Id.) Blades alleges that
during his interview, he was told that Mosaic was looking for a female to fill the position. (Id.)

3

Blades did not receive the. position and alleges that a less qualified African American female was
hired for the position. (Id.)
Blades alleges that on April 21, 2014, Turner gave him another biased evaluation. (D.1. 4
at if 31, ex. Q.) Blades alleges that when he met with Turner and Widger to discuss the
evaluation he also discussed the position he had applied for and was again told that Mosaic was
looking for a female. (D.I. 4 at if 31.) On April 22, 2014, Blades received a congratulatory letter
from Sipe for achieving an "exceeds expectations" on his 2014 annual performance review. (D.I.
4, ex. Q.) On May 20, 2014, Blades received a written warning for insubordination "for
expressing" himself in the log book. (D.I. 4 at if 32, ex. R.) Blades appealed because he believed
it was an unlawful employment practice of intentional discrimination, harassment, retaliation,
conflict of interest, and bullying. (D.I. 4 at if 32.) Mosaic upheld the corrective action for
Blades' unprofessional communication with his supervisor. (D.I. 4 at if 32, ex. R.) Blades
alleges that Turner then retaliated against him by coercing someone to make a complaint against
him while he was on vacation. (D.I. 4 at if 32.)
On July 26, 2014, Blades suffered a work related injury to his right arm. (Id. at if42.) The
next day, he treated his right arm with an ice pack, electrical heating pad, and electrotherapy

(Id.) On July 28, 2014, Blades met with Turner to address a July 21, 2014 incident and during
their conversation told her that he had injured his right shoulder. (Id. at if 43.) The same day, he
received monthly observation/document review notes from Turner, and Blades alleges that
through the document, Turner continued to harass him by "providing repetitive annoying
statements" he considered as "gross misconduct for falsifying documents." (Id. at if 44, ex. T.)
Blades worked while in pain on July 28, 2014 and, after his shift ended, he went to the

4

emergency room where he was diagnosed with biceps tendonitis. (D.1. 4

at~

43, ex. U.) The

physician excused Blades from work for two days. (Id.)
On July 29, 2014, Blades call Widger and left messages regarding his injuries, but she did
not return his call that day. (D.I. 4

at~

45.) He also scheduled a doctor's appointment for July

30, 2014, and at the appointment the physician diagnosed right rotator cufftendinopathy and
recommended physical therapy. (D.I. 4
2014, and left a message. (D.I. 45

at~

at~

45, ex. V.) Blades called Widger again on July 30,

46.)

The same day, Blades received a phone message from Mosaic's office manager, Maryann
Ridall ("Ridall") who asked that he update his driver's license. (Id.

at~

47.) Blades told Ridall

that he would be there before 5:00 p.m. (Id.) When Blades met with Ridall, he informed her that
he had left messages for Widger regarding his injury and that Widger had not returned his calls.

(Id.

at~

48.) Blades told Ridall that he could not find an incident report for injuries and, when

quality assurance coordinator Sue Brown ("Brown") walked into the room, Widger asked Brown
to help Blades look for the report. (Id.) Brown gave Blades an incident report to report the
injuries. (Id) The signed report sets forth July 26, 2014 at 1:00 p.m. as the date and time of the
injury and July 30, 2014 at 4:55 p.m. at the date and time that Blades reported the injury. (D.I. 4,
ex. V.) A letter dated July 30, 2014 from Blades to Mosaic requests a reasonable accommodation
(light duty) for the July 26, 2014 work related injury. (Id.) Blades alleges that he received
medical treatment through October 22, 2014 when he was medically cleared to full duty status.
(D.I. 4

at~

49.)

On the morning of August 1, 2014, Blades received a telephone call from Widger for
them to meet at 1:00 p.m. that day. (Id

at~

50.) That afternoon, as Blades was escorted to

5

Sipe's office, Blades handed Widger the July 30, 2014 report of incident, doctor's notes, the July
30, 2014 written request for reasonable accommodation, and a pharmacy receipt. (Id.

at~

51.)

Sipe terminated Blades' employment, and explained to Blades that he was being terminated
because he had been told that Blades had disrespected Susan (presumably Brown) on Monday.

(Id.) The termination letter states, "Mosaic has made the decision to terminate your employment
as a direct support associate effective August 1, 2014, due to repeated disrespectful
communication and insubordination, any of which is sufficient grounds for termination." (D.I. 4,
ex. W.)
Blades completed an exit interview form on August 8, 2014. (D.I. 4

at~

52.) Blades

alleges that he provided a declaration that the conditions of his employment were unlawfully
changed because he complained internally and externally about discrimination, harassment, and
retaliation. (D.I. 4 at

~

52.) On August 21, 2014, Blades appealed his termination, and Mosaic

upheld the decision to terminate. (D.I. 4 at

~53,

exs. Y, Z.)

Count One of the amended complaint(~~ 1-24) alleges that: (1) Blades was
discriminated against on the basis of national origin (i.e., Black American) when African
Americans were given preferential treatment over Black Americans; (2) he was given poor
evaluations; (3) after he submitted an internal complaint regarding the disparate treatment,
Blades received arbitrary and unsubstantiated writeups and another poor evaluation, all in
violation of§ 1983 and Title VII. Count Two(~~ 25-37) alleges that Blades was discriminated
on the basis of national origin and sex when a promotion he sought was given to a less qualified,
female African American, all in violation of§ 1983, Title VII, and the DDEA. Count Three
(~~

38.:.58) alleges that: (1) Blades was wrongfully discharged in retaliation for seeking workers'

6

compensation benefits; (2) the defendants would not provide Blades a reasonable accommodation
required for his disability; and (3) he was discharged in retaliation for seeking a reasonable
accommodation, all in violation of 19 Del. C. § 2365, and Title I and V of the ADA. Count Four
(~~

59-66) alleges that: (1) the defendants breached the implied covenant of good faith and fair

dealing when Blades was termination in violation of public policy; 3 (2) the defendants failed to
adequately train, supervise, discipline or control the unlawful actions of the defendants; (3) again
alleges that Blades was wrongfully discharged in retaliation for seeking workers' compensation
benefits; (4) again alleges that the defendants would not provide Blades a reasonable
accommodation; and (5) again alleges that Blades he was discharged in retaliation for seeking a
reasonable accommodation, all in violation of Delaware law, § 1983, and Title VII. Blades seeks
compensatory and punitive damages as well as injunctive relief.

III.

STANDARD OF REVIEW
Because Blades proceeds prose, his pleading is liberally construed and his 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). 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

3

This claim is preempted by Delaware statutes that provide the exclusive remedy for
relief. A claim for breach of the covenant of good faith and fair dealing based on at-will
employment cannot survive under the public policy theory. See E.E.O.C. v. Avecia, Inc., 151 F.
App'x 162, 165 (3d Cir. 2005) (unpublished); Shomide v. !LC Dover, Inc., 521 F. Supp. 2d 324,
333 (D. Del. 2007) (holding that recovery under breach of covenant claim based on violation of
public policy for breach of at-will employment contract was precluded under Delaware
Discrimination Employment Statute).
7

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).
A well-pleaded complaint must contain more than mere labels and conclusions. See
Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell At!. Corp. v. Twombly, 550 U.S. 544 (2007). A
plaintiff must plead facts sufficient to show that a claim has substantive plausibility. See
Johnson v. City ofShelby, _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. See 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 their veracity and then determine whether they plausibly give rise to an
entitlement to relief. See Connelly 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.
8

See Williams v. BASF Catalysts LLC, 765 F.3d 306, 315 (3d Cir. 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 plaintiffs claim. Wilkerson v. New Media Tech. Charter Sch. Inc., 522
F.3d 315, 321 (3d Cir. 2008) (internal quotation marks omitted).

IV.

DISCUSSION
A.

42 U.S.C. § 1983 and § 1988

The defendants move to dismiss the§ 1983 claims as legally deficient. While Blades'
opposes dismissal of the § 1983 claims, his response does not adequately address the issue.
Counts One, Two, and Four of the amended complaint invoke§ 1983. When bringing a§ 1983
claim, a plaintiff must allege that some person has deprived him of a federal right, and that the
person who caused the deprivation acted under color of state law. See West v. Atkins, 487 U.S.
42, 48 (1988). Section 1988 provides that the court should exercise and enforce § 1983 actions
"in conformity with the laws of the United States," and only ifthere are no applicable laws
should the court tum to state law. 42 U.S.C. § 1988(a); see also Tearpock- Martini v. Borough of

Shickshinny, 756 F.3d 232, 238 (3d Cir. 2014).
Here, there are no allegations that any of the defendants are state actors or that they acted
under color of law. The claims fail as a matter of law. Therefore, the court will grant the motion
to dismiss all claims raised pursuant to 42 U.S.C. § 1983 and§ 1988.

9

B.

Employment Discrimination
1.

Individual Defendants

The defendants seeks dismissal of all discrimination claims raised against the individual
defendants and John Does Nos. 1-10. Blades opposes by stating that he may raise a civil
conspiracy claim under§ 1983 and for the individual defendants' failure to intervene.
As discussed above, the amended complaint fails to state cognizable § 1983 claims. In
addition, the discrimination claims raised against the individual defendants fail as a matter of
law. It is well established that individuals cannot be held liable under Title VII or Title I of the
ADA. See N'Jai v. Floyd, 386 F. App'x 141, 144 (3d Cir. 2010 (unpublished) (citing Sheridan v.

E.! DuPont de Nemours and Co., 100 F.3d 1061, 1077 (3d Cir. 1996) (individual employees are
not liable under Title VII); Koslow v. Pennsylvania, 302 F.3d 161, 178 (3d Cir. 2002) (no
individual liability for damages under Title I of the ADA)).
Although the Third Circuit has not yet decided the issue of individual liability under Title

V of the ADA, other courts have concluded that there can be no individual liability under Title V
when the claim is based on retaliation for the exercise of rights under Title I of the ADA. See

e.g., Butler v. City of Prairie Village, Kan., 172 F.3d 736, 744 (10th Cir. 1999); Baird v. Rose,
192 F.3d 462, 471-72 (4th Cir.1999); Smiley v. Daimler Chrysler, 538 F. Supp. 2d 711, 719 (D.
Del. 2008); Douris v. Schweiker, 229 F. Supp. 2d 391, 397 (E.D. Pa. 2002), aff'd, 100 F. App'x
126 (3d Cir. 2004); see also Datto v. Harrison, 664 F. Supp. 2d 472, 491 (E.D. Pa. 2009)
(interpreting § 12203 to prohibit individual claims of liability is "appropriate in employment
cases because, under§ 12203(c), retaliation claims in that context apply the remedies of Title I of
the ADA, which incorporates the remedies of Title VII").
10

In light of the foregoing decisions, the court is persuaded that Blades' claims under Title
V of the ADA may not be maintained against the individual defendants. Accordingly, the court
will grant the defendants' motion to dismiss the discrimination claims raised against the
individual defendants.

2.

Pleading Requirements for Employment Discrimination Claims

Blades raises employment discrimination claims under Title VII, the ADA, and the
DDEA by reason of sex, race, national origin, and disability. 4 Title VII states that "[i]t shall be
an unlawful employment practice for an employer to . . . discharge any individual, or otherwise
to discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's race, color, religion, sex, or national
origin" 42 U.S.C. § 2000e-2(a). Similar to Title VII, the DDEA prevents discrimination by an
employer on the basis of sex, race and national origin. 5 See 19 Del. C. § 71 l(a); Faush v.
Tuesday Morning, Inc., 808 F.3d 208, 212 (3d Cir. 2015); Schuster v. Derocili, 775 A.2d 1029,
1033 (Del. 2001). The ADA provides that "[n]o covered entity shall discriminate against a

4

In conjunction with his Title VII claims, Blades invokes the DDEA as to his sex, race
and national origin claims. He did not invoke the Delaware Handicapped Persons Employment
Act ("DHPEPA"), 19 Del. C. § 724(a)(2) in conjunction with his ADA claims.
5

The Court considers the Title VII claims under both federal and state law, as the law is
unsettled as to whether a plaintiff may proceed under Title VII, as well as the DDEA. See e.g.,
Phifer v. Sevenson Envtl. Servs., Inc., 619 F. App'x 153, 156 (3d Cir. 2015) (unpublished); 9
Del. C. § 714(c) ("[The plaintiff] shall elect a Delaware or federal forum to prosecute the
employment discrimination cause of action so as to avoid unnecessary costs, delays and
duplicative litigation. A [plaintiff] is barred- by this election from filing cases in both [the
Delaware] Superior Court and the federal forum."); compare Brangman v. AstraZeneca, LP, 952
F. Supp. 2d 710, 724 (E.D. Pa. 2013) (concluding that§ 714(c) does not bar plaintiff from
bringing both Title VII and DDEA claims in federal court) with Daughtry v. Family Dollar
Stores, Inc., 634 F. Supp. 2d 475, 483 n.13 (D. Del. 2009) (concluding that§ 714(c) precludes
plaintiff from pursuing relief under both Title VII and DDEA).
11

qualified individual on the basis of disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job training, and other terms,
conditions, and privileges of employment." 42 U.S.C. § 12112.

Sex/Race/National Origin Discrimination. 6 To. state claim under Title VII or the DDEA,
a plaintiff must show that he: (1) is a member of a protected class; (2) was qualified for the
position; (3) suffered an adverse employment action; and (4) similarly situated persons who were
not members of his protected class were treated more favorably or there are other circumstances
that give rise to an inference of intentional discrimination. Makky v. Chertojf, 541F.3d205, 214
(3d Cir. 2008); Jackson v. University ofPittsburgh, 826 F.2d 230, 233 (3d Cir. 1987). A plaintiff
need not convince the court of any of these elements at the motion to dismiss st.age, but must
submit more than naked assertion that he suffered an adverse employment aciton because of his
membership in a protected class. See Santos v. Iron Mountain Film & Sounds, 593 F. App'x
117, 119 (3d Cir. 2014) (unpublished).
The defendants seek dismissal of the Title VII and DDEA claims on the grounds that the
claims do not meet the required pleading standards and are pied in a conclusory manner without
supporting facts in asserting that the actions taken against Blades were discriminatory. The court
addresses the claims as they relate to Blades' employer, Mosaic of Delaware, all other Title VII
and DDEA claims having been dismissed against the individual defendants.

6

Count One of the amended complaint also raises retaliation claims under Title VII and
the DDEA. Blades alleges that he was disciplined and his hours reduced after he made formal
internal complaint of conduct directed towards him that he perceived as discriminatory. The
defendants did not move to dismiss this claim.
12

The amended complaint alleges that Blades is a member of a protected class based upon
his sex, race, and national origin. Exhibits attached to the complaint indicate that Blades was
qualified for the position he held. He alleges that because of his race and/or national origin his
hours were cut, he was not given overtime, and he was disciplined when others were not. He
alleges discrimination occurred on the basis of sex and/or national origin when he was not given
a promotion he sought, he was told that Mosaic wanted a female to fill the position and the
position was given to a person of the opposite sex, of another national origin, who was not as
qualified.
Blades proceeds prose and, therefore, the court liberally construes his claims. Blades'
allegations, along with his supporting exhibits, suffice to withstand the defendants' motion to
dismiss the employment discrimination claims based upon sex, race, and national origin.
Therefore, the court will deny the motion to dismiss Blades' employment discrimination claims
raised under Title VII and the DDEA.
Disability Discrimination. To state an ADA claim, an individual must show that: "(1) he
is a disabled person within the meaning of the ADA; (2) he is otherwise qualified to perform the
essential functions of the job, with or without reasonable accommodations by the employer; and
(3) he has suffered an otherwise adverse employment decision as a result of discrimination."
Williams v. Philadelphia Haus. Auth. Police Dep't, 380 F.3d 751, 761 (3d Cir. 2004). The
elements for failure to accommodate under the ADA are the same except for the third prong that
the employer had notice of the plaintiffs disability and failed to provide such accommodation.
Kralik v. Durbin, 130 F.3d 76, 78 (3d Cir. 1997).

13

The defendants seek dismissal of the ADA claims on the grounds that the amended
complaint merely asserts that Blades was discriminated against based upon a disability, provides
no allegations how the right arm injury limited a major life activity, and contains no allegation
that Blades requested a reasonable accommodation prior to the termination meeting. Again, the
court addresses the claims as they relate to Blades' employer, Mosaic of Delaware, all other
ADA claims having been dismissed against the individual defendants.
The ADA defines disability as "a physical or mental impairment that substantially limits
one or more major life activities ... ; a record of such an impairment; or being regarded as
having such an impairment." 42 U.S.C. § 12102. Major life activities, "include, but are not
limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping,
walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating,
thinking, communicating, and working." Id. "The primary object of attention in cases brought
under the ADA should be whether covered entities have complied with their obligations and
whether discrimination has occurred, not whether an individual's impairment substantially limits
a major life activity. Accordingly, the threshold issue of whether an impairment 'substantially
limits' a major life activity should not demand extensive analysis." 29 C.F.R. § 1630.2G)(iii).
The amended complaint alleges that Mosaic knew that Blades had suffered a work related
injury, through telephone messages and personally advising Mosaic personnel. In addition,
exhibits to the amended complaint contain the following exhibits all dated July 30, 2014: report
of incident that notified Mosaic of the work related injury; physician's note that diagnosed right
rotator cuff tendinopathy, and letter to Widger requesting light duty with the notation that it was
hand delivered. The defendants contend that Blades did not provide this information to Mosaic

14

until just prior to the August 1, 2014 termination meeting. The amended complaint, however,
does not contain those allegations and, as the court must, it liberally construes the allegations and
exhibits as indicating July 30, 2014 as the notice of the disabling injury that required light duty.
Finally, the amended complaint alleges both that Blades was not provided an accommodation
and that he was discharged within day(s) after notifying Mosaic of the injury and his request for a
reasonable accommodation due to the injury, the timing of which give rise to the inference of
disability discrimination.
The amended complaint adequately alleges ADA claims. Therefore, the court will deny
the defendants' motion to dismiss those claims.

C.

Workers' Compensation Retaliation, 19 Del. C. § 2365

The amended complaint alleges that Blades was terminated after he sought an
accommodation for a work related injury in violation of Delaware's Workers' Compensation
Act, 19 Del. C. § 2365. The defendants move for dismissal on the grounds that Blades failed to
plead facts to support his claim.
Delaware's Workers' Compensation Act protects employees who request workers'
compensation benefits from retaliatory action by their employers. 19 Del. C. § 2365. Section
2365 states in relevant part, that "[i]t shall be unlawful for any employer or the duly authorized
agent of any employer to discharge or to retaliate or discriminate in any manner against an
employee as to the employee's employment because such employee has claimed or attempted to
claim workers' compensation benefits from such employer." In order to establish aprimafacie
case for retaliation, a plaintiff must show that: (1) he exercised his rights under the Workers'
Compensation Act; (2) defendant took an adverse employment action against him; and (3) there
15

was a causal connection between her exercise of rights and the adverse employment action. See
Santora v. Red Clay Consol. School Dist., 901 F. Supp. 2d 482, 491 (D. Del. 2012), ajf'd, 580 F.
App'x 59 (3d Cir. 2014) (unpublished) (noting that an employee's request for workers'
compensation benefits "is precisely the activity protected by § 2365").
A plaintiff is not required to meet the evidentiary standard of establishing a prima facie
case in order to survive a Rule 12(b)(6). There are no allegations that Blades formally filed a
workers' compensation claim. He did, however, make a request for a light duty assignment due
to a work related injury. The statute provides that an employer may not retaliate against an
employee "because such employee has claimed or attempted to claim workers' compensation
benefits from such employer." 19 Del. C. § 23 65. For purposes of a Rule 12(b)(6) motion, the
court assumes, without deciding, that Blades meets the first prong to state a retaliation claim
under§ 2365. The defendants move for dismissal for similar reasons as those raised in seeking
dismissal of the ADA claims. In light of their position, and relying upon its previous ADA
analysis, the court will deny the motion to dismiss the workers' compensation retaliation claim.
See~

V.

IV.B.2.

CONCLUSION
For the above reasons, the court will grant in part and deny in part the defendants' motion

to dismiss. (D.I. 13.)
An appropriate order will be issued.

16