Dickerson v. KeyPoint Government Solutions Inc.
REPORT AND RECOMMENDATIONS re DENYING 55 MOTION for Summary Judgment filed by Yolonda Dickerson, and GRANTING 53 MOTION for Summary Judgment filed by KeyPoint Government Solutions Inc. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists 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 8/4/2017. Signed by Judge Mary Pat Thynge on 7/18/17. (kjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
C.A. No .. 16-657-RGA-MPT
REPORT AND RECOMMENDATION
On August 1, 2016, Yolonda Dickerson ("plaintiff') filed this action against
KeyPoint Government Solutions, Inc. ("defendant"), alleging adverse actions amounting
. to discrimination and retaliation prohibited under the Americans with Disabilities Act
("ADA") and Title VII of the Civil Rights Act of 1964.1 Plaintiff was employed by
defendant from March 24, 2008 to April 16, 2014. 2 During her employment, plaintiff
filed her first Charge of Discrimination with the Equal Employment Opportunity
Commission ("EEOC") on October 22, 2012 ("the 2012 Charge"). 3 She filed her second
Charge of Discrimination on July 29, 2014 after her termination ("the 2014 Charge"). 4
On September .2, 2016, defendant filed its Answer to the Complaint and then
.filed a motion for leave to amend its Answer to the Complaint on February 1, 2017. 5
D.I. 58, Ex. A; D.I. 57, Ex. T.
D.I. 57, Ex. J.
D.I. 58, Ex. NN.
D.I. 8; D.I. 33.
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The motion for leave to amend the Answer to the Complaint was denied by this court on
June 7, 2017. 6
Presently before the court are the parties' cross motions for summary judgment,
which were both filed on May 15, 2017. 7 For the reasons stated below, it is
recommended that the plaintiff's motion be denied and the defendant's motion be
Plaintiff, an African American woman, worked as a level I field investigator for
defendant from March 2008 to April 2014. 8 Defendant provides employment-screening
services to government agencies through field investigators. 9 Investigators are typically
assigned to work areas in close proximity to where they live, though field managers
sometimes ask investigators to undertake temporary duty ("TOY") assignments outside
_their regular work areas. 10 Investigators based in work areas designated for "locality
. pay" are paid a higher hourly rate than those that are not. 11 Typically, one investigator
works a case to completion, though several investigators may work on a case if
interviewees and documents are spread over multiple investigators' work areas. 12 Work
may be reassigned to a new investigator if the original investigator is unavailable. 13
Plaintiff's job required her to spend many hours writing and typing, and in March
See generally D. I. 53; D. I. 55. .
D.I. 56 at 3, 18; D.I. 54at1.
D.I. 57, Ex. A at 29-30.
D.I. 54 at 3; D.I. 57, Ex. A at 122-41.
D.I. 54 at 3; D.I. 57, Ex. A at 126-29.
D.I. 54 at 2; D.I. 57, Ex. Cat 18-9.
D.I. 54 at 2; D.I. 57, Ex. Bat 41, Ex. Cat 18-9 .
2011, she began experiencing pain in her fingers, hands, wrists, and arms. 14 On March
17, 2011, she was diagnosed with work-related Carpal Tunnel Syndrome ("CTS") in
both wrists. 15 Her doctor prescribed physical therapy sessions and suggested an
ergonomic keyboard, mouse, and wrist braces for work. 16 Plaintiff reported her
disability to her field manager, Debra Williams, on the same day of her diagnosis and
requested reimbursement for the ergonomic keyboard and mouse suggested by her
doctor. 17 Plaintiff was directed to Kristi Orton, the Human Resources Manager, to seek
reimbursement. 18 Plaintiff provided Orton with all of the medical documents she had
provided Williams, in addition to her physical therapist's written confirmation of her
physician's concerns. 19 Ultimately, plaintiff never received a response regarding her
reimbursement request. 20 On November 22, 2011, plaintiff notified defendant of her
doctor's recommendation that she be placed on light duty status with a "smaller
caseload" for approximately one month. 21 A few days later, Orton inquired what a
"smaller caseload" meant and, on November 28, 2011, Orton informed plaintiff that her
accommodation requests were denied. 22 The next day, plaintiffs physician
released her back to work without restriction. 23
57, 'Ex. D.
56 at 3; D.I. 60, Ex. A.
60, Ex. A.
58, Ex. G,
56 at 3-5.
60, Ex. D.
60, Ex. E; D.I. 56 at 5.
54 at 5; D.I. 57, Ex. A at 414.
On December 20, 2011, Blair Sims, plaintiff's field manager at the time, asked
plaintiff to undertake a TOY assignment in Springfield, Virginia. 24 Plaintiff said she
could not go on this ~ssignment because she was caring for her daughter, continuing
medical treatment, and worried about her ill aunt. 25 Jenise Fuson, defendant's Chief
Personnel Officer, asked plaintiff for documentation reflecting her medical treatment. 26
Plaintiff asserts Colleen Carey ("Ms. Carey"), a Caucasian coworker, asked to be
excused to care for her child and was excused without being required to provide similar
On May 23, 2012, Robert Sellers, plaintiff's then field manager, asked for
volunteers for a TOY assignment in Las Vegas and plaintiff volunteered the same day. 28
Although Sellers advised that she should prepare to travel for this TOY, he ultimately
did not select the investigators for the assignment; rather Garth Gardner, the field
manager for the Las Vegas area, did. 29 Gardner emailed plaintiff and Ms. Carey on
May 29, 2012, informing them that they were instead assigned to Bremerton,
Washington. 30 Ms. Carey told Gardner she could not go to Bremerton for family
reasons. 31 Plaintiff also asked to be removed from the Bremerton TOY because she
0.1. 54 at 5; 0.1. 57, Ex. A at 147.
0.1. 54, Ex. J.
0.1. 54 at 6.
0.1. 60, Ex. R.
0.1. 57, Ex. Hat~ 17; Ex. I.
0.1. 60, Ex. N.
D.I. 54, Ex. A at 156.
intended to spend her birthday in Las Vegas. 32 Ms. Carey was excused, while plaintiff
was informed her assignment in Bremerton was "non-negotiable." 33
Around March 2012, plaintiff.began to complain of a reduced workload and
claims her workload remained improperly reduced until October 2013. 34 In August
2013, plaintiff informed defendant of her move from Severn, Maryland to Millsboro,
. Delaware. 35 Defendant was notified after plaintiff had moved, which was contrary to
defendant's company policy. 36 Plaintiff's new residence in Delaware" was not within an
area entitled to "locality pay," while her old residence in Maryland was. 37 However,
defendant continued to pay plaintiff at the higher rate after her move and while she
worked cases in Fort Meade, Maryland. 38
After this move, plaintiff was the only full-time investigator in Delaware. 39 Her
workload supervisor, Stephen Mullane, therefore assigned her work in places along her
commute from Millsboro to Fort Meade. 40 Starting in. October 2013, plaintiff received
additional work assignments originally assigned to her white male colleagues that were
deemed to be along her commute. 41 On November 8, 2013, plaintiff informed the
Regional Field Director, Lauren Parker, of her concerns of being overworked and
D.I. 57, Ex. I.
D.I. 60, Ex. 0-Ex. P.
D.I. 54 at 7; Ex. A at 166-69.
D.I. 54, Ex. A at 261, 269.
Id. at 269.
D.I. 54, Ex. A at 269-70.
D.I. 54, Ex. Cat 26.
Id. at 28-9.
D.I. 56 at 7-8; Ex. U-Ex. V.
receiving work originally assigned to her colleagues. 42 Mullane was ·advised on three
separate occasions to stop reassigning Work to plaintiff and to only give her work in Fort
Meade, but he continued with the reassignments to plaintiff. 43 Plaintiff suspected
Mullane was retaliating against her, given their heated email exchanges, and
approached Orton and Parker with her concerns. 44 In response, Orton allegedly
laughed at plaintiff when she asked whether retaliation through workload was
Plaintiff's move to Delaware and the increased commute time caused defendant
to incur overtime and reimbursement costs. 46 Therefore, on March 25, 2014, Parker
and Orton decided to formally transfer plaintiff to work in Delaware. 47 Plaintiff was
anticipating a pay reduction when she was officially transferred because her area in
Delaware was not entitled to locality pay. 48
On April 15, 2014, Parker told plaintiff that Human Resources wanted to set up a
formal conversation via teleconference with her on the following day. 49 Plaintiff refused
to speak with Parker, requesting that all communications be conducted in writing. 50
D.I. 56, Ex. Y.
D.I. 56, Ex. BB.
D.I. 54 at 9; D.I. 57, Ex. M.
D.I. 54, Ex. A at 295.
D.I. 54, Ex. U.
D.I. 54, Ex. U-Ex. V.
D.I. 57, Ex. S.
D.I. 57, Ex. R (plaintiff responded to a notification of a formal conversation with
Human Resources: "I'm not going to endure that agony again where everyone on the
call but me is in cahoots together. I have no interest in verbally speaking with anyone
who laughs at me and questions if retaliation through work is even p~ssible. At this
Plaintiff was informed that her attendance was mandatory. 51 After failing to call into the
conference, plaintiff was warned that if she did not join the teleconference, she would
be terminated. 52 Plaintiff refused to join the call and was terminated'the same day. 53
Defendant has a policy of providing quarterly evaluations to field investigators,
who were to complete their portion of the review before submitting it to their manager. 54
After an employee completed and submitted her portion of the evaluation, the
supervisor was expected to complete his portion within two to three weeks. 55 Plaintiff
received regular quarterly performance reviews between 2008 and 2011. 56 After
plaintiff's diagnosis in 2011, plaintiff's supervisors stopped completing their portion of
the evaluation. 57 Plaintiff did not receive completed performance evaluations between
2011 and 2014, with one exception, a fourth quarter evaluation in 2013. 58 This
evaluation was executed three months after it was submitted and includes negative
comments regarding plaintiff's productivity. 59
point, everything that needs to be said to me shall be in writing"). See also D.I. 57, Ex.
T (plaintiff responded to final warnings to join the teleconference: "You are attempting
to coerce me. Where is this written? Feel free to take the steps you feel are necessary
to get your desired outcome for refusing to speak with you verbally. Have a nice day").
0.1. 57, Ex. S-Ex. T.
0.1. 57, Ex. T.
D.I. 58, Ex. D at 47-8.
0.1. 58, Ex: HH.
Id.; D.I. 58at10-11.
0.1. 58 at 10-11, Ex. HH.
STANDARD OF REVIEW
Both parties move for summary judgment. In determining the appropriateness of .
summary judgment, the court must "review the record as a whole, 'draw[ing] all
reasonable inferences in favor of the non-moving party[,]' but [refraining from] weighing
the evidence or making credibility determinations."60 If "there is no genuine issue as to
any materi.al fact" and the movant is entitled to judgment as a matter of law, summary
judgment is appropriate. 61
This standard does not change merely because there are cross-motions for
summary judgment. 62 Cros.s-motions for summary judgment:
are no more than a claim by each side that it alone is entitled to summary
judgment, and the making of such inherently contradictory claims does not
constitute an agreement that if one is rejected the other is necessarily
justified or that the losing party waives judicial consideration and
determination whether genuine issues of material fact exist. 63
"The filing of cross-motions for summary judgment does not require the court to grant
summary judgment for either party." 64
Claims under Title VII and ADA are evaluated under a burden-shifting analysis. 65
First, a plaintiff must establish a prima facie case of discrimination. 66 Once a prima
facie case of discrimination has been established, the defendant must articulate a
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (citation
See Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005) (quoting FED. R.
C1v. P. 56(c)).
Appelmans v. City of Philadelphia, 826 F.2d 214, 216 (3d Cir. 1987).
Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968).
Krupa v. New Castle Cnty., 732 F. Supp. 497, 505 (D. Del. 1990).
Mowafy v. Noramco of Delaware, Inc., 620 F. Supp.2d 603, '611 (D. Del. 2009)
(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
Id. (citing McDonnell, 411 U.S. at 802).
"legitimate, nondiscriminatory reason" for its conduct. 67 Thereafter, ~he burden shifts
back to the plaintiff, who must point to evidence from which the "factfinder could
reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2)
believe that an invidious discriminatory reason was more likely than not a motivating or
determinative cause of the employer's action." 68 To so demonstrate, plaintiff must show
a defendant's reasons are "so weak, incoherent, implausible, or inconsistent such that
they lack credibility."69
Plaintiff's Motion for Summary Judgment
Disability Discrimination and Failure to Accommodate
To establish a prima facie case of discrimination, plaintiff must show: "(1) he or
she was a member of a statutorily-protected class; (2) he or she was qualified for the
position; (3) he or she was aggrieved by an adverse employment action; and (4) the
adverse employment action occurred under circumstances giving rise to an inference of
illegal discrimination." 70
Here, defendant concedes the first three prongs of prima facie discriminC1tion,
and the parties disagree only on the fourth prong. 71 Plaintiff claims defendant's failure
to make reasonable accommodations constitute an adverse employment action. 72
Additionally, plaintiff avers defendant's failure to participate in the "i_nteractive process"
Id. (quoting McDonnell, 411 U.S. at 802).
Id. at 612 (quoting Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994)).
/d. (citing Fuentes, 32 F.3d at 765).
Venter v. Potter, 694 F. Supp.2d 412, 422 (W.O. Pa. 2010).~
0.1. 54 at 12-3.
0.1. 56 at 15-6.
indicates illegal discrimination based on her disability. 73 Plaintiff addresses only the
following claims in her motion for summary judgment: disability discrimination, failure to
accommodate, and sex-based and racial discrimination. 74
To establish a prima facie failure to accommodate, an employee must prove:
"(1) she is an individual with disability under the ADA; (2) she can perform the essential
functions of her position with accommodation; (3) her employer had notice of her
alleged disability; and (4) the employer failed to accommodate her." 75 Plaintiff contends
defendant failed to accommodate her by not reimbursing her and denying her request
for a smaller caseload. 76 In response, defendant argues plaintiff's failure to
accommodate claim is time-barred. 77 A plaintiff must file a charge of discrimination with
the EEOC "within 300 days of an alleged discriminatory act before the plaintiff can
initiate a civil suit in federal court." 78 This 300-day statute of limitations to file an EEOC
charge begins at the denial of a request for accommodation. 79
In her response to defendant's motion, plaintiff argues defendant's actions were
part of a continuous practice, and therefore, her claim is not time-barred under a
Id. at 16-7.
See generally D.I. 56. See also D.I. 1 at 11-5 (Complaint claiming disability
discrimination, racial discrimination, sex-based discrimination, retaliation, hostile work,
and breach of the covenant of good faith and fair dealing).
Conneen v. MBNA America Bank, N.A., 182 F. Supp.2d 370, 376-77 (D. Del.
2002) (citing Rhoads v. F.0.1.C., 257 F.3d 373, 387 n.11 (4th Cir. 2001 ); Mitchell v.
Washingtonville Cent. School Dist., 190 F.3d 1, 6 (2d Cir. 1999))
D.I. 56 at 15-6.
D.I. 57 at 10.
Zdziech v. DaimlerChrysler Corp., 2003 U.S. Dist. LEXIS 9425, at *3 (D. Del.
June 6, 2003) (citing 42 U.S.C. § 2000e-5(e)(1 ); Howze v. Jones & Lc;wghlin Steel
Corp., 750 F.2d 1208, 1210 (3d Cir. 1984)).
See Mercer v. Southeastern Pennsylvania Transit Authority, 26 F. Supp.3d
432, 442 (E.D. Pa. 2014).
"continuing violation theory." 80 Under this theory, if the conduct in
q~estion "is part of a ·
continuing practice, an action is timely so long as the last act evidencing the continuing
practice falls within the limitations period." 81 Defendant's failure to reimburse plaintiff
and denial of her request for a reduction in workload occurred in 2011. 82 Plaintiff again
requested a reduced workload three years later, in 2014, which was allegedly ignored. 83
These three occurrences over a period of three years do not amount to a continuing
practice, but are isolated incidents. 84 Therefore, the continuing violation theory does
Instead, plaintiff's failure to accommodate claim must b~ analyzed under
the traditional 300-day statute of limitations.
Defendant did not reirnburse plaintiff for
her ergonomic equipment in March 2011 and denied her request for a smaller workload
on· November 28, 2011. 87 Plaintiff filed her first EEOC charge on November 9, 2012. 88
Both defendant's failure to reimburse plaintiff and denial of her request for a smaller
workload occurred more than 300 days before she filed the 2012 Charge. 89 Because
the 300-day statute of limitations to file an EEOC charge begins with the denial of a
D.I. 58 at 25-6.
Malone v. Specialty Products & Insulation Co., 85 F. Supp.2d 503, 505 (E.D.
Pa. 2000) (quoting Brenner v. Local 514, United Bhd. of Carpenters & Joiners, 927 F.2d
1283, 1295 (3d Cir. 1991)).
D.I. 56 at 4-5; D.I. 60, Ex. E, Ex. L.
D.I. 58 at 26, Ex. P.
See Malone, 85 F. Supp.2d at 506 (citing Rush v. Scott Specialty Gases, 113
F.3d 476, 483 (3d Cir. 1997)).
See id. at 505.
Zdziech v. DaimlerChrysler Corp., 2003 U.S. Dist. LEXIS 9425, at *3 (D. Del.
June 6, 2003) (citing 42 U.S.C. § 2000e-5(e)(1 )).
D.I. 56 at 4-5; D.I. 60, Ex. E, Ex. L.
D.I. 57, Ex. J.
Compare id. with D.I. 56 at 4-5; D.I. 60, Ex. E, Ex. L.
request for accommodation, her accommodation claim is time-barred. 90
Secondly, plaintiff argues defendant failed to participate in the interactive
process. 91 Employers and employees have a duty to engage in the "interactive
process": identifying potential accommodations that could allow the disabled worker to
continue working. 92 An employee can establish her employer failed to participate in the
interactive process by showing: "(1) the employer knew about the employees disability;
(2) the employee requested accommodations or assistance for her disability; (3) the
employer did not make a good faith effort to assist the employee in seeking
accommodations; and (4) the employee could have been reasonably accommodated
but for the employer's lack of good faith." 93 However, the "[f]ailure to engage in the
interactive process, itself, does not constitute [discrimination under the ADAJ." 94
Because plaintiff's failure to accommodate claim is time-barred, only her claim that
defendant failed to engage in the interactive process remains. The Third Circuit has
repeatedly rejected arguments that employers' failure to engage in the interactive
process alone is sufficient to defeat summary judgment, and therefore plaintiff's
disability discrimination claim similarly cannot survive summary judgment. 95
Mercer v. Southeastern Pennsylvania Transit Authority, 26 F. Supp.3d 432,
442 (E.D. Pa. 2014).
D.I. 56 at 16-7.
Conneen v. MBNA America Bank, N.A., 182 F. Supp.2d 370, 377 (D. Del.
2002) (citing 29 C.F.R. § 1630.2(0)(3)).
Id. (citing Taylor v. Phoenixville School District, 184 F.3d 296, 319-20 (3d Cir.
Hohiderv. United Parcel Services, Inc., 574 F.3d 169, 193 (3d Cir. 2009)
(citing Shapiro v. Twp. of Lakewood, 292 F.3d 356, 359 (3d Cir. 2002)).
Id. (citing Donahue v. Consol. Rail Corp., 224 F.3d 226, 233-34 (3d Cir.
Sex-Based and Racial Discrimination
Again, defendant concedes the first three prongs of a prima facie discrimination
case with respect to plaintiff's sex-based and racial discrimination claims. 96 The parties
disagree on the fulfillment of the fourth prong: whether there was an' adverse
employment action that occurred under circumstances giving rise to an inference of
illegal discrimination. 97 The fourth prong can be demonstrated by showing "similarly
situated individuals who were not members of the protected class were more favorably
treated than the plaintiff." 98 To be valid comparators, employees
ne~d not be
"identically situated," b1,.1t must be similar in "all relevant respects." 99 ,In determining if
employees are similarly situated, the court must undertake "a fact-intensive inquiry
based on a whole constellation of factors" including whether "the two employees dealt ·
with the same supervisor, were subject to the same standards and had engaged in
similar conduct without such differentiating or mitigating circumstances as would
distinguish their conduct or the employer's treatment of them." 100
Plaintiff argues defendant had discriminatory motives behind two adverse
employment actions: (1) assigning her to the Bremerton TOY while excusing Ms. Carey
and (2) reassigning cases to her, contrary to company policy, beginn!ng in October
D.I. 54 at 13-16. ·
Id.; D.I. 56 at 18-20.
Mitchell v. City of Pittsburgh, 995 F. Supp.2d 420, 430 (W.O. Pa 2014) (citing
Nguyen v. AK Steel Corp., 735 F. Supp.2d 346, 361 (W.D. Pa 2010)).
Id. at 431 (citing Opsatnik v. Norfolk S. Corp., 335 Fed. Appk 220, 223 (3d Cir.
2009) (internal quotations omitted)).
Id. (quoting Monaco v. Am. Gen. Assurance Co., 359 F.3d 296, 306 (3d Cir.
2004); McCullers v. Napolitano, 427 Fed. Appx. 190, 195 (3d Cir. 2011)).
Plaintiff contends these instances raise an inference of ille~al discrimination
because individuals not part of the protected Class were treated
mo~e favorably than
Plaintiff, as an African American woman, is a member of a protected class. 103
· She claims Ms. Carey, a Caucasian colleague who was also a level I field investigator,
successfully appealed to her manager to be excused from the Bremerton TOY, while
plaintiff was told the assignment was "non-negotiable." 104 However, plaintiff and Ms.
Carey are not valid comparators. To be a valid comparator,
must be similar
. in "all relevant respects." 105 While Ms. Carey and plaintiff were empl9yed in the same
positi~n. the reasons that they sought to be excused differed. 106
Ms.[ Carey's request
was based on family issues and concerns. 107 Plaintiff planned to celebrate her birthday
with her mother in Las Vegas rather than in Bremerton. 108 Because Ms. Carey and
plaintiff's reasons differed, which is a relevant factor in comparing these employees,
they are not valid comparators.
Even if Ms. Carey and plaintiff were valid comparators, plaintiff's assignment to
101 D.I. 56 at 19-20.
103 Id. at 18.
Id. at 19-20. See also D. I. 60, Ex. 0-Ex. P.
105 Mitchell v. City of Pittsburgh, 995 F. Supp.2d 420, 431 (W.D. Pa. 2014)
(quoting Opsatnik v. Norfolk S. Corp., 335 Fed. Appx. 220, 223 (3d Cir. 2009)).
106 Compare D.I. 54, Ex. A at 156 with D.I. 57, Ex. I.
107 D.I. 54, Ex. A at 156.
108 D.I. 57, Ex. I (plaintiff's communication to Sellers: "I do no(wish to spend my
birthday in Washington so please find another body," and her writing to Ms. Carey: "I
was wondering if you were still joining me in Washington. Since my li>irthday plans in
Vegas are now screwed, I wanted to know if maybe we could have dinner or something
in Washington. Not sure if there are any exciting things to do in Was!hington").
the Bremerton TOY is not an adverse employment action. An adverse employment
action is defined as "a significant change in employment status, such as hiring, firing,
failing to promote, reassignment with significantly different responsibilities, or a deci~ion
causing a significant change in benefits." 109 Plaintiff was assigned to a TOY, albeit at a
location that she did not initially volunteer for or prefer, which is consistent with her
regular work. 110 Because this assignment does not impact her benefits or
responsibilities, it does not constitute an adverse employment action. 111
Plaintiff also claims her workload manager, Mullane, reassigned her work that
was originally assigned to her white male colleagues, even though Jork policy dictated
that the original assignee complete the work. 112 To be an adverse er:nployment action,
there must be a significant change in employment.
While reassignment can be an
adverse action, it must come with "significantly different responsibilities." 114 Here,
plaintiff was reassigned work which was similar and had the same rnsponsibilities. 115
Therefore, these reassignments are not adverse employment actions.
Because plaintiff is unable to raise an inference of discrimination necessary to
demonstrate a prima facie case of discrimination and her failure to accommodate claim
Reynolds v. Department of Army, 439 Fed. Appx. 150, 153 (3d Cir. 2011)
0.1. 54 at 3; 0.1. 57, Ex. A at 122-41; 0.1. 60, Ex. N, Ex. R.
0.1. 57, Ex. A at 122-41. See also Walker v. Centocor Ortho Biotech, Inc.,
558 Fed. Appx. 216, 220-21 (3d Cir. 2014) (considering whether an action was an
adverse employment action and, determining that it was not, granting summary
judgment for defendant).
0.1. 56 at 19-20.
See Reynolds, 439 Fed. Appx. at 153.
0.1. 54 at 2; 0.1. 57, Ex. Cat 18-9.
is time-barred, plaintiff's motion for summary judgment regarding these claims should
Defendant's Motion for Summary Judgment
Plaintiffs must show the following elements to demonstrate a prima facie case of
discrimination: "(1) he or she was a member of a statutorily-protected class; (2) he or
she was qualified for the position; (3) he or she was aggrieved by an adverse
employment action; and (4) the adverse employment action occurred under
circumstances giving rise to an inference of illegal discrimination." 116 The parties'
disagreement centers on the fourth element. 117 Defendant notes plaintiff alleges
discrimination in the following instances: termination, missed performance evaluation,
transfer to Delaware, reduced workload, and increased workload. 118 For all instances,
defendant contends plaintiff cannot raise an inference of discrimination. 119
Initially, defendant notes plaintiff was terminated because she! refused to
participate in a call with Human Resources after a long, strained relationship with
defendant. 120 Plaintiff counters that several individuals on this call knew of her
complaints of discrimination based on race and sex. 121 Therefore, plaintiff argues,
thereasonable jury could fihd discrimination based on disability, race, or sex under the
Venter v. Potter, 694 F. Supp.2d 412, 422 (W.D. Pa. 2010)!
Id. at 12.
Id. at 13-6.
Id. at 13. See also D.I. 57, Ex. I, Ex. M, Ex. R; D.I. 60, Ex.
presumption in Venter v. Potter. 122 Plaintiff misconstrues Venter as ~'direct[ing] that
there is a presumption that the adverse employment action occurred due to the
consideration of impermissible factors." 123 The presumption in Venter arises only after
plaintiff establishes a prima facie case. 124 In Venter, the court found since the plaintiff
was unable to articulate the grounds for alleged discrimination, he failed to establish a
prima facie case of discrimination. 125 Here, as in Venter, plaintiff has not articulated any
reason to believe that the individuals involved in the teleconference were prejudiced
against the disabled, women, or African Americans. 126 . Thus, plaintiff fails to· raise an
inference of discrimination in her termination.
Plaintiff also claims defendant discriminated against her by neglecting to
complete her performance evaluations.
However, such conduct is not a meaningful
adverse employment action that results in a significant change in employment
comparable with firing or other employment actions that substantially affect benefits. 128
Therefore, plaintiff's missing performance evaluations do not satisfy the fourth prong of
demonstrating a prima facie case of discrimination.
With regard to her transfer to Delaware, defendant argues plaintiff cannot
Id. at 15.
Venter, 694 F. Supp.2d at 422 (noting "[i]fthe plaintiff establishes a prima
facie case of discrimination, the burden of production shifts to the defendant to rebut
the presumption of discrimination through the introduction of admissible evidence
indicating that the challenged employment action was taken for legitir;nate,
nondiscriminatory reasons") (internal citations omitted) (emphasis adped)).
Id. at 424-25, 426-27.
D.I. 54, Ex. A at 49, 75, 81.
D.I. 58 at 19.
See Reynolds v. Department of Army, 439 Fed. Appx 150, 53 (3d Cir. 2011 ).
compare herself to any similarly situated employees who were treat$d more favorably
than she was by changing her residence to another state without
defendant of her upcoming move. 129 Although plaintiff violated company policy by
neglecting to notify defendant, defendant continued to pay plaintiff at the higher rate
she enjoyed while she lived in Maryland and to which she was no longer entitled after
her moved. 130 Defendant transferred plaintiff to Delaware after several months of
incurring costs from continued pay at a higher rate, reimbursement f?r her longer
commute, and overtime.
Plaintiff argues that this decision occurred after she told
defendant that she was suffering from CTS symptoms and a reasonable jury could infer
discrimination based on this knowledge.
However, her supervisors suggested
through an email in March 2014 that she be transferred, while plaintiff notified
defendant about her CTS symptoms in May 2013, almost a year earlier. 133 These two
instances are not sufficiently temporally close to demonstrate a causal connection that
could give rise to an inference of discrimination. 134
Plaintiff further contends defendant discriminated by reducing her workload
beginning in March 2012. 135 Plaintiff cannot compare her situation to: how defendant
treated other individuals outside of the protected class and has provi~ed no reason to
D.I. 54, Ex. A at 269-70.
Id.; D.I. 58, Ex. JJ.
D.I. 58 at 16.
D.I. 58, Ex. P, Ex. JJ.
See Gray v. Barney, 2016 WL 369360, at *9-1 O (D. Del. Jah. 29, 2016)
(finding ''the temporal proximity of one to two years between [plaintiff'js] protected
activities and the adverse employment actions of which she complains are not the
length of time typically considered as unduly suggestive of a causal donnection").
D.I. 1 at 5; D.I. 58 at 16.
believe Kathy Bederka, Mullane's supervisor who ultimately made dkcisions -regarding
assignments, was biased. All plaintiff argues is defendant knew of
Plaintiff again relies on her misinterpretation of Venter, by merely c1Jiming that her
supervisors were aware of her disability, and as a result, there is an Inference of
unlawful discrimination. 137 Plaintiff's application of Venter is misguided: awareness
alone of her disability does not give rise to the Venter presumption or an inference of
discrimination. 138 Therefore, reduction in plaintiff's workload does ndt support a prima
facie case of discrimination. 139
Finally, plaintiff alleges Mullane reassigned cases to her, althJugh such practice
was against company policy, and for which he was repeatedly admohished. 140
~mphasizes that plaintiffs claims of discrimination based Jon her increased
workload are refuted because Mullane was unaware of her race or her health condition,
Additionally, plaintiff has no valid comparator because she moved without
giving notice to defendant, while her white male colleagues had not. 1j2 Therefore, even
considering Mullane's reassignment of cases, no inference of discrirnination arises.
After considering all instances plaintiff raises as evidencing discrimination, she
fails to establish a prima facie case, and defendant's motion for summary judgment on
the discrimination claims should be granted.
0.1. 54 at 15.
0.1. 58 at 16.
Venter v. Potter, 694 F. Supp.2d 412, 422 (W.O. Pa. 2010).
0.1. 58 at 16-7.
0.1. 54 at 16. See also 0.1. 54, Ex. Cat 39.
0.1. 54 at 16.
To establish a prima facie case of retaliation, a plaintiff must show: "(1)
protected employee activity; (2) a.dverse action by the employer either after or
contemporaneous with the employee's protected_ activity; and (3) a causal connection
between the employee's protected activity and the employer's adverse action." 143 This
final element of causation can be proven through "demonstrative proof, such as actual
antagonistic conduct or animus against the employee ... or other typ>es of
circumstantial evidence, such as inconsistent reasons given by the e mployer for
terminating the employee or the employer's treatment of other employees, that give rise
to an inference of causation when considered as a whole." 144
Here, parties disa,gree on the third prong in this inquiry. 145 De~endant notes
plaintiff's allegations are rooted in the same instances as her discrimination claims:
termination; missed performance evaluations, transfer to Delaware, reduced workload,
and increased workload. 146 Defendant also identifies three protected activities as two
requests for accommodations and the 2012 Charge. 147
Initially, defendant argues plaintiff's termination in April 2014 qccurred over one
year after she filed an EEOC charge and more than two years after her last request for
Krouse v. American Sterilizer Co., 126 F .3d 494, 500 (3d Cir. 1997) (citing
Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997); Stewart v. Happy
Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir. 1997)).
Marra v. Philadelphia Housing Authority, 497 F.3d 286, 302I (3d Cir. 2007)
(citing Woodson, 109 F.3d at 921; Farrell v. Planters Lifesavers Co., 206 F.3d 271, 28081 (3d Cir. 2000)).
D.I. 54 at 16.
accommodation. 148 Plaintiff admits this conduct is too remote and s~e cannot prove
causation through temporal proximity. 149 She suggests defendant's failure to
investigate her complaints, the Bremerton TOY assignment, the reassignment of her
colleagues' work in 2013, and her interactions with supervisors after complaining of
overwork constitute antagonistic conduct and animus that provides circumstantial
evidence sufficient to establish a causal connection. 150 To find antagonistic conduct
and animus, the conduct must be "consistent and continuous during the intervening
period," and the plaintiff must link each event to her protected activity. 151 In the instant
matter, plaintiff fails to demonstrate antagonistic conduct and animus. Defendant did
not investigate plaintiffs complaints and denied her accommodation iiequests in
2011. 152 Additionally, her complaints of being overworked were not f~lly investigated
and met with laughter. 153 However, her Bremerton TOY assignment and her 2013
assignments are not circumstantial evidence that support a causal connection for her
retaliation claim because her superiors had no knowledge of the 2012 Charge. 154
Therefore, there are only two isolated incidents - one in 2011 and one in 2013. As a
result, defendant's actions do ·not "amount to a pattern of antagonism" because they
Id. at 17.
D.I. 58 at 18-9.
Id. at 19.
Bartos v. MHM Correctional Services, Inc., 454 Fed. Appx. 74, 79 (3d Cir.
D.I. 58 at 19.
Id. at 19; D.I. 54, Ex. A at 295.
D.I. 59 at 5. See also D.I. 54, Ex. Cat 40. See Warshaw '1· Concentra Health
Services, 719 F. Supp.2d 484, 501 (E.D. Pa. 2010) (noting "knowled@e of the protected
activity is an important ingredient of the causal connection that retali*ion plaintiffs must
were not consistent and continuous. 155 Plaintiff is thus unable to provide the causal
connection necessary for a prima facie case of retaliation for her termination through
Second, as the court has already concluded, defendant's oversight regarding
plaintiff's performance evaluations is not an adverse employment action and does not
fulfill the elements required for a prima facie case of retaliation. 156
Third, defendant argues there is no evidence suggesting plaintiff was going to be
transferred to Delaware- because she engaged in protected activity. 157 Plaintiff contends
the temporal proximity between her complaint regarding Mullane and defendant's
transfer of plaintiff establishes a causal connection sufficient to defeat summary
judgment. 158 However, as noted herein regarding plaintiff's discrimination claim, these
instances are about one year apart and not sufficiently temporally close to establish
causation. 159 Plaintiff complained about Mullane in November 2013. 160 Defendant
started planning to transfer plaintiff to Delaware in March 2014. 161 Four months
separate plaintiff's complaint and defendant notification of the transfer. 162 This gap in
time between plaintiff's actions and defendant's alleged retaliation is insufficient to
Bartos, 454 Fed. Appx. at 79.
See Walker v. Centocor Ortho Biotech, Inc., 558 Fed.Appx. 216, 220-21 (3d
D.I. 54 at 18.
D.I. 58 at 20.
See Gray v. Barney, 2016 WL 369360, at *9-10 (D. Del. Jan. 29, 2016).
D.I. 54, Ex. A at 295-96.
D.I. 54, Ex. V.
Compare D.I. 54, Ex. A at 295-96 with D.I. 54, Ex. V.
establish a causal connection. 163 Therefore, plaintiff cannot satisfy tlfle third element
required for a prima facie case of retaliation concerning her transfer to Delaware.
Fourth, plaintiff claims Bederka, Mullane's superior, reduced her workload
because of her requests for accommodation in March and November 2011. 164
Defendant notes there is no evidence that Bederka knew of plaintiff's CTS or her
requested accommodations. 165 Even assuming Bederka had this knowledge, defendant
argues, the period of time between plaintiff's November 2011 request and her March
2012 workload reduction was not suggestive of a causal connection necessary for
retaliation. 166 Plaintiff fails to produce evidence that Bederka knew of either her
disability or her requests for accommodation. 167 Moreover, assuming arguendo,
Bederka knew of plaintiff's disability and requests for accommodation, four months ·
between plaintiff's. request and the alleged retaliation is insufficient to establish a causal
link. 168 Therefore, plaintiff fails to establish the third element necessary for a prima facie
case of retaliation with regards to reduction in her workload.
Finally, defendant reasons plaintiff cannot meet the third element of a prima
facie case of retaliation based on an increased workload for similar reasons noted
See Oberdorf v. Penn Village Facility Operations, LLC, 2017 WL 839470 at *4
(M.D. Pa. Mar. 3, 2017) (concluding "[a] lapse of three or four months is insufficient to
establish unusually suggestive temporal proximity. 'Although there is no bright line
rule,' the Third Circuit has not found any period longer than three weeks so 'unduly
suggestive' of retaliatory animus that it was sufficient to establish causation without
other evidence" (internal quotations omitted)).
D.I. 54 at 18; D.I. 58 at 20.
D.I. 54 at 18.
See D.I. 58 at 20.
See Oberdorf, 2017 WL 839470, at *4 (finding four months,insufficient to
establish causal connection).
above. 169 Mullane was unaware of her EEOC charge and, if he were aware, the
temporal proximity between plaintiff's EEOC charge and the alleged retaliatory conduct
was not unduly suggestive. 170 Plaintiff argues a temporal link exists ~elying on the time
frame between her complaints about Mullane and her increased workload. 171 Plaintiff
provides no evidence that Mullane knew of plaintiff's EEOC charge. In fact, the
evidence suggests the opposite. 172 Plaintiff filed her EEOC charge in November
2012. 173 Mullane did not become plaintiff's workload manager until October 2013. 174
Eleven months between plaintiff's EEOC charge and the increase in her workload does
not establish the causal connection required for the third prong to establish a prima
facie case of retaliation. 175 Between plaintiff's complaints regarding Mullane in
November 2013 and the increase in her workload, almost a year exists, which fails to
show a causal connection through temporal proximity. 176 Although plaintiff argues
causation may be shown through defendant's animus and antagonistic conduct, 177 there
is no evidence that Mullane had knowledge of the 2012 Charge. Therefore, there is no
retaliatory motive for this claim. 178
D.I. 54 at 12.
Id. at 19.
D.I. 58 at 21.
D.I. 54, Ex. Cat 40.
D.I. 57, Ex. J.
D.I. 54 at 19.
See Gray v. Barney, 2016 WL 369360, at *9-10 (D. Del. Jan. 29, 2016)
(finding one to two years between protected activity and allegedly retaliatory action as
too temporally remote to establish a causal connection).
Id.; D.I. 56, Ex. Y.
D.I. 58 at 21.
D.I. 54, Ex.Cat 40. See Warshaw v. Concentra Health Services, 719 F.
Supp.2d 484, 501 (E.D. Pa. 2010) (noting "knowledge of the protected activity is-an
important ingredient of the causal connection that retaliation plaintiffs must show").
Since plaintiff fails to meet the causation element for a prima facie case of
retaliation through any of her offered circumstances, defendant's motion for summary
judgment should be granted on plaintiff's retaliation claim.
Failure to Accommodate
Defendant contends plaintiff's failure to accommodate claim is time-barred. 179 As
previously discussed, plaintiff cannot pursue t.his claim because she filed the 2012
Charge more than 300 days after defendant denied her request for accommodation. 180
Therefore, defendant's motion for summary judgment on the failure to accommodate
claim should be granted.
Hostile Work Environment
To establish a prima facie case of hostile work environment, a plaintiff must
demonstrate: "(1) she suffered intentional discrimination because of [a protected
classification]; (2) the discrimination was pervasive and regular; (3) the discrimination
detrimentally affected [her]; (4) the discrimination would detrimentally affect a
reasonable person of the same [protected classification] in [her] position; and (5) there
is a basis for employer liability." 181 Such intentional discrimination must be "severe or
pervasive." 182 Courts must consider the totality of the circumstances, and should not
D.I. 57 at 1O; D.I. 54 at 23-4.
°Compare D.I. 54 at 23-4 with D.I. 56 at 4-5 and D.I. 57, Ex. J.
Garnett v. Bank of America, 2017 WL 1074358, at *5 (D. Del. 2017) (citing
Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1082 (3d Cir. 1996) (internal
Hemphill v. City of Wilmington, 813 F. Supp.2d 581, 587 (D'.Del. 2011) (citing
Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990);!Jensen v. Potter,
435 F.3d 444, 449 n.3 (3d Cir. 2006)).
examine the scenario on an incident-by-incident basis. 183 "[l]solated or single incidents
of harassment are insufficient to constitute a hostile environment." 184
Defendant identifies eight circumstances that plaintiff relies on to support her
hostile work environment claim. 185 These circumstances include: (1) Williams failing to
transfer plaintiff's work assignments while she was undergoing medical treatment in
2011, (2) defendant not investigating her 2011 grievance against Williams, (3) the Las
Vegas TOY, (4) alleged unfavorable treatment treated because plaintiff had to work in
Baltimore, (5) defendant's CPO email to plaintiff, purporting she no longer suffered from
CTS and asserting defendant had no record of requests for accommodation, (6)
defendant initially denying plaintiff a "fleet vehicle" and then later offering her one, (7)
Orton's "unsolicited email" requesting plaintiff complete her assignments, and (8) Orton
laughing at plaintiff's inquiry if one could be retaliated against through workloads. 186
Because this court has already concluded defendant's motion for summary
judgment regarding plaintiff's discrimination claims should be granted, the first element
of a prima facie case of hostile work environment cannot be fulfilled. Thus, defendant's
motion for summary judgment regarding plaintiff's hostile work environment claim
should similarly be granted.
Breach of Covenant of Good Faith and Fair Dealing
An employee can bring a claim for breach of the implied covenant of good faith
Bishop v. National R.R. Passenger Corp., 66 F. Supp.2d 650, 663 (E.D. Pa.
1999) (citing Andrews, 895 F.2d at 1485).
Id. (quoting Rush v. Scott Specialty Gases, 113 F.3d 4 76, 482 (3d Cir. 1997)
D.I. 54 at 24-5.
and fair dealing where: (1) termination violated public policy, (2) the employer
misrepresented an important fact and the employee relied on the misrepresentation
either to accept a new position or remain in the current one, (3) the employer used its
superior bargaining power to deprive an employee of a clearly identifiable
compensation related to the employer's past service, or (4) the employer falsified or
manipulated employment records to create fictitious grounds for termination. 187
Delaware's Discrimination Employment Statute ("ODES") prohibits discrimination
in employment practices and serves as the "'sole remedy' for an
'to the exclusion of all other remedies."' 188 Here, plaintiff's arguments center on claims
that she was treated unequally compared to her colleagues who were not part of the
same protected class. 189 As a result, the breach of covenant and fair dealing is
precluded under Delaware law. 190 Therefore, defendant's motion for.summary
judgment on the breach of the covenant of good faith and fair dealing claim should be
For the foregoing reasons, I recommend that:
(1) Plaintiff's motion for summary judgment (D.I. 55) be denied; and
(2) Defendant's motion for summary judgment (D.I. 53) be granted.
Saunders v. E.I. DuPont de Nemours and Company, 2017 WL_ 679853, at *9
(D. Del. 2017) (citing E.I. DuPont de Nemours and Co. v. Pressman, :679 A.2d 436,
441-44 (Del. 1996)).
/d. (citing 19 Del. C. § 712(b); E.E.O.C. v. Avecia, Inc., 151!Fed.Appx.162,
165 (3d Cir. 2005)).
See generally D.I. 1; DJ. 56.
°Compare D.I. 1 at~ 92 with Saunders, 2017 WL 679853 at *9.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b )(1 )(B),
FED. R. CIV. P. 72(b)(1 ), and D. DEL. LR 72.1. The parties may serve and file specific
written objections within fourteen (14) days after being served with a copy of this Report
and Recommendation. Objections and responses 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.
Dated: July 18, 2017
Mary Pat Thynqe
United States Magistrate Judge
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