Dickerson v. KeyPoint Government Solutions Inc.

Filing 80

MEMORANDUM regarding Report and Recommendation (D.I. 68 ). Signed by Judge Richard G. Andrews on 11/27/2017. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

YOLANDA DICKERSON,
Plaintiff,

v.

Civil Action No. 16-657-RGA

KEYPOINT GOVERNMENT
SOLUTIONS, INC.,
Defendant.

MEMORANDUM

Presently pending before the Court are cross-motions for summary judgment filed by
Plaintiff and Defendant. (D.I. 53, D.I. 55). The Magistrate Judge has filed a Report and
Recommendation, which recommends granting summary judgment to Defendant. (D.1. 68).
Plaintiff has filed objections, to which Defendant has responded. (D.I. 77, 78). I review the
objections to the Report and Recommendation de nova. Brown v. Astrue, 649 F.3d 193, 195 (3d
Cir. 2011). For the reasons that follow, I overrule Plaintiffs objections (D.1. 77) and adopt the
Magistrate Judge's Report and Recommendation (D.1. 68).
I. BACKGROUND

From March 24, 2008, to April 16, 2014, Yolanda Dickerson, Plaintiff, was employed by
KeyPoint Government Solutions, Inc., Defendant, a company that provides employmentscreening services to government agencies through field investigators. (D.1. 1; D.I. 57-1, Exh. A
at 29-30). Plaintiff worked as a level I field investigator. (D.I. 56 at 3). Investigators are usually
assigned to work close to where they live but are on occasion asked to undertake temporary duty

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("TDY") assignments outside their regular work areas. (D.I. 54 at 3; D.I. 57-1, Exh. A at 12241). As part of her job, Plaintiff was required to to spend many hours writing and typing, and in
March 2011, she began to experience pain in her fingers, hands, wrists, and arms. (D.I. 57-1,
Exh. D). On March 17, 2011, she was diagnosed with work-related Carpal Tunnel Syndrome in
her wrists. (D.I. 56 at 3).
During her employment, Plaintiff, an African American woman, filed a first Charge of
Discrimination with the Equal Employment Opportunity Commission on November 9, 2012.
(D.I. 57-1, Exh. J). She filed a second charge on July 29, 2014, after her termination. (D.I. 58-5,
Exh. NN). Then, on August 1, 2016, Plaintiff filed a complaint against Defendant, alleging
adverse actions amounting to discrimination and retaliation prohibited under the Americans with
Disabilities Act and Title VII of the Civil Rights Act of 1964. (D.I. 1).

II. LEGAL STANDARDS
"The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter oflaw." FED. R.
CIV. P. 56(a). When determining whether a genuine issue of material fact exists, the court must
view the evidence in the light most favorable to the non-moving party and draw all reasonable
inferences in that party's favor. Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v. Potter,
4 76 F .3d 180, 184 (3d Cir. 2007). A dispute is "genuine" only if the evidence is such that a
reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, 477
U.S. 242, 247-49 (1986).
Claims under the Americans with Disabilities Act and Title VII are evaluated under a
burden-shifting analysis. Mowafy v. Noramco ofDelaware, Inc., 620 F. Supp. 2d 603, 611 (D.
Del. 2009) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). First, a plaintiff

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must establish a prima facie case of discrimination or retaliation. Id. (citing McDonnell, 411
U.S. at 802); Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997). Once the plaintiff
has established a prima facie case, the defendant must articulate a "legitimate, nondiscriminatory" or "non-retaliatory" reason for its conduct. Mowafy, 620 F. Supp. 2d at 611;

Krouse, 126 F.3d at 500-01. Then, the burden shifts back to the plaintiff, who "must
demonstrate that the reasons articulated by the defendant are merely a pretext for discrimination"
or "retaliation." Id. at 611-12 (quoting Fuentes v. Perksie, 32 F.3d 759, 763 (3d Cir. 1994)); see

also Krouse, 126 F.3d at 501 ("If the employer satisfies its burden, the plaintiff must be able to
convince the factfinder both that the employer's proffered explanation was false, and that
retaliation was the real reason for the adverse employment action.").
To establish a prima facie failure to accommodate, an employee must show: "(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." Conneen v. MBNA America Bank, N.A., 182 F. Supp. 2d
370, 376-77 (D. Del. 2002).
To establish a prima facie case of discrimination, an employee must show: (1) she was a
member of a statutorily-protected class; (2) she was qualified for the position; (3) she was
aggrieved by an adverse employment action despite being qualified; and (4) the adverse
employment action occurred under circumstances giving rise to an inference of illegal
discrimination. Sarullo v. US. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003). 1

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"Although courts often state the elements in Title VII cases in such a way as to require the plaintiff to show that he
or she was replaced by someone outside of the relevant protected class, such a showing is not always necessary."
Cobetto v. Wyeth Pharms., 619 F. Supp. 2d 142, 153 n.3 (W.D. Pa. 2007) (citing Pivirotto v. Innovative Sys., Inc.,
191F.3d344, 353 (3d Cir. 1999)).

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To establish a prima facie case of retaliation, a plaintiff must show: (1) she was engaged
in a protected employee activity; (2) adverse action by the employer occurred either after or
contemporaneous with the employee's protected activity; and (3) a causal connection exists
between the employee's protected activity and the employer's adverse action. Moore v. City of

Phi/a., 461F.3d331, 340-41 (3d Cir. 2006).

III. ANALYSIS
a. Objection 1
The Magistrate Judge concluded that all of Plaintiff's failure to accommodate claims
were time-barred. (D.I. 68 at 9-12, 25). Plaintiff objects, arguing that she made a request for
accommodation on March 22, 2014, to Cynthia Romero, her Field Manager (see D.I. 1, ~ 29),
and that her second charge on July 29, 2014, included the March 22 request. (D.I. 77 at 2-3). It
is included. (D.I. 58-5, Exh. NN at 15).

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The briefing on the summary judgment motion was focused on the failure to
accommodate claims from 2011 (see D.I. 54 at 23-24; D.I. 56 at 10-17; D.I. 57 at 10-11; D.I. 58
at 25-26; D.I. 59 at 10-13; D.I. 60 at 2-3), which were time-barred. While there was some
mention of the March 22 communication as being part of the continuing violation, Plaintiff never

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argued that it was a stand-alone violation. The Magistrate Judge only analyzed the arguments

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presented. No objection is made to that analysis.

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Thus, the stand-alone argument is waived. See TruePosition v. Polaris Wireless, 2014
WL 4247725, at *2 (D. Del. Aug. 26, 2014). Even if it were not waived, however, the record
does not make out a prima facie case for there being a request for reasonable accommodation on
March 22. The email to Ms. Romero was in response to an inquiry asking Plaintiff to update and

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provide an estimated completion date for "ACD cases" for which she had missed the deadline.
Plaintiff stated, in response,
I was tired, the onset of symptoms of my carpal tunnel began and therefore I
could not request needed ACD changes. I will be requesting ACD changes for all
cases on your list with the exception of one. However, I am not doing it right
now on my personal time. I plan to work tomorrow on what is suppose[ d] to be
my day off to get a much needed head start on some typing for a 5 hour ESI that I
completed. At that time, I will request the ACD changes.
(D.I. 58-2, Exh. Q). The email explained why Plaintiff was late with assignments. It did not
request anything. Plaintiff stated that Ms. Romero did not respond to the email. (D.I. 58-1, Exh.
C at 17). The lack of a response to an email stating that Plaintiff would later request "ACD
changes" does not make out a prima facie case for failure to accommodate.

b. Objection 2
Plaintiff objects to the Magistrate Judge's conclusion that Plaintiffs assignment to the
Bremerton, Washington TDY was not an adverse employment action that occurred under
circumstances giving rise to an inference of illegal discrimination. (D .I. 77 at 3-4). That an
adverse employment action occurred under circumstances giving rise to an inference of illegal
discrimination can be shown by the presence of "similarly situated individuals who were not
members of the protected class [but] were more favorably treated than the plaintiff" Mitchell v.

City ofPittsburgh, 995 F. Supp. 2d 420, 430 (W.D. Pa. 2014) (citing Nguyen v. AK Steel Corp.,
735 F. Supp. 2d 346, 361 (W.D. Pa. 2010)).
Specifically, Plaintiff objects to the Magistrate Judge's conclusion on grounds that
Colleen Carey, Plaintiffs white colleague, was excused from the TDY for family reasons, while
Plaintiff was not afforded an excusal for family reasons in spite of being similarly situated. (D.I.
77 at 3-4). But Plaintiff and Ms. Carey were not in fact similarly situated. Ms. Carey informed
Defendant that she had family obligations and had recently completed a TDY assignment.
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Plaintiff stated that she preferred to celebrate her birthday with family in Las Vegas-a reason
she admits is "[p]ossibly" different from Ms. Carey's-and had not recently completed a TDY
assignment. (D.I. 57-1, Exh. A at 243-49). Therefore, I agree with the Magistrate Judge that
Plaintiff's assignment to the Bremerton TDY was not an adverse employment action that
occurred under circumstances giving rise to an inference of illegal discrimination. Plaintiff thus
cannot make out a prima facie case of discrimination.
c. Objections 3 and 4
Plaintiff objects to the Magistrate Judge's disposal of Plaintiff's claims of discrimination
as to her increased workload and to Defendant's ceasing her quarterly performance reviews on
the third prong of the prima facie discrimination evaluation-whether the plaintiff was aggrieved
by an adverse employment action-because Defendant did not raise the issue. (D.I. 77 at 5-6).
I do not need to reach Plaintiff's objections, because both claims of discrimination can be
decided on the fourth prong of the prima facie discrimination evaluation, which was raised in the
summary judgment briefing. (DJ. 59 at 4-5). The fourth prong of the prima facie discrimination
evaluation is whether there was "an adverse employment action that occurred under
circumstances giving rise to an inference of discrimination." Sarullo, 352 F.3d at 797. Plaintiff
can fulfill this prong by showing the presence of "similarly situated individuals who were not
members of the protected class [but] were more favorably treated than the plaintiff'. Mitchell,
995 F. Supp. 2d at 430. Here, as to both actions, Plaintiff fails to identify similarly situated
individuals.
As to Plaintiff's increased workload, the Magistrate Judge correctly noted that Plaintiff
was not similarly situated to her colleagues, because she had moved without giving notice to
Defendant, but her white male colleagues had not. (D.I. 54-1, Exh. A at 261, 269; D.I. 68 at 19).

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Further, many of Plaintiff's complained-of assignments were based on her unique location in
Delaware. (D.I. 54-1, Exh. A at 215). Thus, because she was not similarly situated to her
colleagues, increases to her workload do not give rise to an inference of discrimination.
Plaintiff's objection to the Magistrate Judge's conclusion falls short. (D.I. 77 at 5-6).
Similarly, as to Defendant's ceasing Plaintiff's quarterly performance reviews, Plaintiff
argues that Defendant's policy was to conduct quarterly reviews for "all field investigators."
(D.I. 77 at 6; D.I. 58, Exh. D at 51-52). But she has not shown that the employees actually
receiving quarterly reviews were similarly situated to her, which is her burden. See Garrow v.
Wells Fargo Bank, NA., 2016 WL 5870858, at *4 (E.D. Pa. Oct. 7, 2016) ("It is the plaintiff's

burden to identify potential comparators and to put forth evidence that they are similarly
situated.") (citing Warfield v. SEPTA, 460 F. App'x 127, 130 (3d Cir. 2012)). Furthermore,
Plaintiff's argument that Defendant provided quarterly evaluations to similarly situated field
investigators was not raised in the summary judgment briefing and cannot be raised for the first
time in her objections. (D.I. 58 at 15, 19-20); TruePosition, 2014 WL 4247725, at *2. Thus,
Plaintiff's objection falls short here, as well. (D.I. 77 at 6).
d. Objection 5
The Magistrate Judge concluded that Plaintiff failed to establish a prima facie case that
her transfer to Delaware evidenced discrimination. (D.I. 68 at 17-18). Specifically, the
Magistrate Judge found that Plaintiff could not "demonstrate a causal connection that could give
rise to an inference of discrimination," because Plaintiff's telling Jenise Fuson about her Carpal
Tunnel Syndrome symptoms in May 2013 was not sufficiently close in time to Ms. Parker's
March 25, 2014 email to Ms. Orton suggesting that Plaintiffbe transferred. (Id. at 18). Plaintiff
objects, arguing that Defendant's March 25, 2014 suggestion that she be formally transferred to

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Delaware was in fact the result of discrimination in light of her March 22, 2014 email to Ms.
Romero, which notified Ms. Romero of Plaintiffs plan to later request ACD changes. (D.I. 77 at
6-7; D.I. 58-2, Exh. Q). 2
But Plaintiff provides no evidence showing that the decision-makers knew of Plaintiff's
March 22, 2014 accommodation request before transferring her. Plaintiffs March 22 email was
sent only to Ms. Romero, and the March 25 transfer decision was made by Kristi Orton and
Lauren Parker. (D.I. 54-2, Exh. Kat 51-52). Thus, Plaintiffs objection falls short, and I adopt
the Magistrate Judge's conclusion.
e. Objection 6

Plaintiff makes three objections to the Magistrate Judge's conclusion that she failed to
raise a prima facie case of retaliation.
First, Plaintiff objects to the Magistrate Judge's conclusion that there was no causal
connection between her protected activities and her termination sufficient to establish a prima
facie case ofretaliation. (D.I. 77 at 7-8); see Clark Cnty. Sch. Dist v. Breeden, 532 U.S. 268,
273-74 (2001) ("The cases that accept mere temporal proximity between the plaintiffs protected
activity and an adverse employment action as sufficient evidence of causality to establish a prima
facie case uniformly hold that the temporal proximity must be 'very close."'). Plaintiff argues
that the temporal proximity between both a March 22, 2014 email and a November 8, 2013
grievance submission, and her April 16, 2014 termination shows a causal connection between
both protected activities and her termination. (D.I. 77 at 7-8). However, "the Third Circuit has
not found any period longer than three weeks so unduly suggestive of retaliatory animus ... to

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Defendant once again objects on the basis that Plaintiff did not make this argument in the summary judgment
briefing. There, she cited five documents (D.I. 58 at 16) for her argument, none of which is the email to Ms.
Romero. (D.I. 58-3, 58-5). Defendant is therefore correct.

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establish causation without other evidence." Carey v. Nat'! Event Servs., 2015 WL 667519, at
*7 (E.D. Pa. Feb. 13, 2015). Because the period between the March 22, 2014 email and April
16, 2014 termination and the period between the November 8, 2013 grievance and April 16,
2014 termination both extend beyond three weeks, and Plaintiff provides no such "other
evidence," Plaintiff's objection fails.
Second, Plaintiff objects to the Magistrate Judge's conclusion that there was no causal
connection between her protected activities and the failure to provide performance reviews
sufficient to establish a prima facie case of retaliation. (D .I. 77 at 8). Plaintiff argues that the
temporal proximity between Plaintiff's March 17, 2011 and May 3, 2011 accommodation
requests and missed May 1, 2011, July 28, 2011, and October 29, 2012 performance evaluations
shows a causal connection between the two. (D.I. 77 at 8). But Plaintiff cannot deny that she
received a 2011 performance evaluation in or near May 2011 given that she quoted from it in a
July 7, 2011 letter. (D.I. 54-2, Exh. I at 30 (discussing evaluations for various quarters,
including the "review period of 01101111 to 03/31 /11 ") ). Thus, the temporal proximity between
the requests and the adverse action is much greater than three weeks. Because Plaintiff does not
provide other evidence, she does not establish causation sufficient to raise a prima facie case of
retaliation, and her objection fails.
Third, Plaintiff objects to the Magistrate Judge's conclusion that Plaintiff cannot establish
a causal connection between her November 2012 Equal Employment Opportunity Commission
Charge and Stephen Mullane's reassignment of work to her sufficient to establish a prima facie
case ofretaliation. (D.I. 77 at 9; D.I. 68 at 23-24). Now, Plaintiff argues that her first,
November 8, 2013, grievance about Mr. Mullane in fact caused the reassignment. (D.I. 77 at 9).
However, the reassignment of work by Mr. Mullane began before Plaintiff's first grievance-

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indeed, Plaintiffs grievance was in response to these reassignments. (D.I. 58 at 9). Therefore,
Mr. Mullane's actions were not retaliatory, and the Magistrate Judge's conclusion was correct.

f. Objection 7
To establish a prima facie case of hostile work environment, a plaintiff must demonstrate
"severe or pervasive" intentional discrimination because of a protected classification. Garnett v.
Bank ofAmerica, 2017 WL 1074358, at *5 (D. Del. 2017) (citing Aman v. Cort Furniture Rental
Corp., 85 F.3d 1074, 1082 (3d Cir. 1996)); Hemphill v. City of Wilmington, 813 F. Supp. 2d 581,

587 (D. Del. 2011) (citing Andrews v. City ofPhiladelphia, 895 F.2d 1469, 1482 (3d Cir. 1990)).
Because I have already concluded that Defendant's Motion for Summary Judgment as to
Plaintiff's discrimination claims should be granted, Plaintiff cannot make out her prima facie
case, and Defendant's Motion for Summary Judgment must be granted here, as well.
g. Objection 8
Likewise, I agree with the Magistrate Judge's conclusion that Defendant's motion for
summary judgment on the breach of the covenant of good faith and fair dealing claim must be
granted. (D.I. 68 at 26-27). To the extent that Plaintiff objects to the Magistrate Judge's failure
to evaluate the kind of violation where the employer falsified or manipulated employment
records to create fictitious grounds for termination, that argument fails. The records allegedly
falsified or manipulated did not serve as the grounds for Plaintiff's termination. Rather,
Plaintiff's failure to call into a teleconference served as those grounds. (D.I. 68 at 6-7); see
Saunders v. E.I DuPont de Nemours and Company, 2017 WL 679853, at *9 (D. Del. 2017)

(citing E.I DuPont de Nemours and Company v. Pressman, 679 A.2d 436, 441-44 (Del. 1996))
(listing where an employee can bring a claim for breach of the implied covenant of good faith

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and fair dealing); Equal Employment Opportunity Comm 'n v. Avecia, Inc., 151 F. App'x 162,
165 (3d Cir. 2005) (holding that particular claims must be the actual grounds for termination).
IV. CONCLUSION

For the reasons discussed above, the Report and Recommendation (D.I. 68) is
ADOPTED. Plaintiff's motion for summary judgment (D.I. 53) is DENIED; Defendant's

motion for summary judgment (D.I. 55) is GRANTED. A separate order will be entered.
Entered this

l:J. day of November 2017.

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