Tolliver v. Delmarva Foundation for Medical Care et al

Filing 65

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 9/3/2019. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
M. DENISE TOLLIVER,
Plaintiff,

: Civil Action No. 17-1776-RGA

V.

DELMARVA FOUNDATION FOR
MEDICAL CARE,

: Superior Court of the State of
: Delaware in and for Kent County
: Case No. K17C-11 -010 NEP

Defendant.

M. Denise Tolliver, Camden , Delaware. Pro Se Plaintiff.

Joe P. Yeager, Mccarter & English , LLP , Wilmington , Delaware. Counsel for
Defendant.

MEMORANDUM OPINION

September 3 , 2019
Wilmington , Delaware

AN ~

s ct
Plaintiff M. Denise Tolliver, who appears prose , filed this action in the Superior

Court of the State of Delaware in and for Kent County on November 8, 2017 . It was
removed to this Court on December 8, 2017 , by Defendant Delmarva Foundation for
Med ical Care . (D .I. 1). The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and
1332. Pending is Defendant's motion to dismiss the Amended Complaint. (D.I. 45) .
The matter has been fully briefed. For the reasons discussed below, the Court will grant
Defendant's motion and will give Plaintiff leave to file a second amended complaint.

FACTUAL AND PROCEDURAL BACKGROUND
This case concerns Plaintiff's termination of employment. Plaintiff is an African
American who was sixty years old when she filed her charge of discrimination . (D .I. 292 at 2) She was hired by Defendant on October 7, 2013 , as a project coordinator. (Id.)
In February 2014 , she submitted a request to human resources for a reasonable
accommodation , and on May 12, 2014 , her employment was terminated . (Id.) .
On August 8, 2018 , the Court dismissed the original complaint upon Defendants'
motion. (D.I. 27 , 28). Plaintiff was given leave to amend against Defendant and only as
to the claims in Count IV of the original complaint - the employment discrimination and
retaliation claims. All other claims and defendants were dismissed.
Plaintiff filed an Amended Complaint on August 6, 2018 . (D .I. 29) . The
Amended Complaint raises claims for violations of Title I and V of the Americans with
Disabilities Act of 1990, as amended ("ADA"), 42 U.S.C. § 12101 , et seq. , and the

1

Delaware Discrimination in Employment Act (" ODEA"), 19 Del. C. § 710, et seq.1
alleging disability discrimination , the withholding of reasonable accommodation , and
retaliation . (0 .1. 29 at ,I 1). Exhibits attached to the Amended Complaint include an
EEOC intake questionnaire dated October 21 , 2014 , emails , the October 21 , 2014
charge of discrimination , and a notice of suit rights.
Defendant moves to dismiss pursuant to Fed . R. Civ. P. 12(b)(6) for failure to
state claims upon which relief may be granted on the grounds that: (1) Defendant is not
an employer under the DPDEPA, 19 Del. C. § 720 , et seq.;2 and (2) the Amended
Complaint did not correct the pleading defects of the original complaint.

LEGAL STANDARDS
In reviewing a motion filed under Fed . R. Civ. P. 12(b)(6), the court must accept
all factual allegations in a complaint as true and take them in the light most favorable to
plaintiff. See Erickson v. Pardus , 551 U.S. 89 , 94 (2007) . Because Plaintiff proceeds

prose , her pleading is liberally construed and her complaint, "however inartfully
pleaded , must be held to less stringent standards than formal pleadings drafted by
lawyers." Erickson , 551 U.S. at 94. A court may consider the pleadings , public record ,
orders, exhibits attached to the complaint, and documents incorporated into the
complaint by reference . Tellabs, Inc. v. Makar Issues & Rights, Ltd. , 551 U.S. 308, 322
(2007). A Rule 12(b)(6) motion maybe granted only if, accepting the well-pleaded

I think Plaintiff refers to the Delaware Persons with Disabilities Employment
Protections Act ("DPDEPA"), 19 Del. C. § 720 , et seq.

1

2

In the alternative , Defendant moves for summary judgment should the Court find it
necessary to consider facts outside the pleadings on the grounds that it is not an
employer as defined under the DPDEPA. The Court declines to convert the instant
motion to one for summary judgment and considers only whether dismissal is
appropriate.
2

allegations in the complaint as true and viewing them in the light most favorable to the
complainant, a court concludes that those allegations "could not raise a claim of
entitlement to relief." Bell At/. Corp. v. Twombly, 550 U.S. 544 , 558 (2007).
"Though 'detailed factual allegations' are not required , a complaint must do more
than simply provide 'labels and conclusions' or 'a formulaic recitation of the elements of
a cause of action ."' Davis v. Abington Mem 'I Hosp., 765 F.3d 236 , 241 (3d Cir. 2014)
(quoting Twombly, 550 U.S. at 555) . I am "not required to credit bald assertions or legal
conclusions improperly alleged in the complaint. " In re Rockefeller Ctr. Props., Inc. Sec.
Litig., 311 F.3d 198, 216 (3d Cir. 2002). A complaint may not be dismissed , however,

for an imperfect statement of the legal theory behind the complaint. Johnson v.
City of Shelby, 574 U.S. 10 (2014) .

A complainant must plead facts sufficient to show that a claim has "substantive
plausibility." Id. at 347. That plausibility must be found on the face of the complaint.
Ashcroft v. Iqbal, 556 U.S. 662 , 678 (2009). "A claim has facial plausibility when the

[complainant] pleads factual content that allows the court to draw the reasonable
inference that the [accused] is liable for the misconduct alleged ." Id. 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 ." Id. at 679 .
DISCUSSION
Disability Discrimination under the DPDEPA and ADA. The Court liberally

construes the Amended Complaint as raising claims under the DPDEPA and the ADA.
A claim for employment discrimination based upon disability discrimination and
retaliation may be raised under the DPDEPA, 19 Del. C. § 724(a)(2) and § 726.

3

Delaware's employment discrimination laws are substantially the same as its federal
counterparts, and it is appropriate to apply federal case law to discrimination claims
raised under the ODEA or DPDEPA. See Gary v. R.C. Fabricators, Inc., 2014 WL
4181479, at *19 (Del. Super. July 30 , 2014).

Employer. Defendant moves to dismiss on the grounds that it did not meet the
statutory definition of an employer during the relevant time frame of the events in
question and , therefore, the claims against it must be dismissed . Defendant contends
that it never had more than two employees in the State of Delaware. The Amended
Complaint alleges that Plaintiff's employment was terminated in May 2014 and , at the
time , Defendant had in its employ 201 employees . (D.I. 29 at ,i 6; D.I. 29-2 at 2) .
The statute in effect at the time Plaintiff's employment was terminated defined an
employer as "any person employing , within the State , 15 or more employees for each
working day in each of 20 or more calendar weeks in the current or preceding calendar
year." 19 Del. C. § 722(3) (effective through Jan. 30 , 2015) .3 The statute was
amended , effective January 30 , 2015 , to define an employer as "any person employing
four or more employees within the State at the time of the alleged violation .... " 19 Del.
C. § 710(7).
Here , Plaintiff adequately alleges Defendant is an employer under the Act.
Defendant contends it is not. While Defendant provides some evidence to support its

3

Under the ADA an employer is defined as "a person engaged in an industry affecting
commerce who has 15 or more employees for each working day in each of 20 or more
calendar weeks in the current or preceding calendar year, and any agent of such
person , except that, for two years following the effective date of this subchapter, an
employer means a person engaged in an industry affecting commerce who has 25 or
more employees for each working day in each of 20 or more calendar weeks in the
current or preceding year, and any agent of such person ." 42 U.S.C.A. § 12111 .
4

position , to date the Court has not entered a scheduling and discovery order and no
discovery has taken place. Given the posture of the case , the Court will deny dismissal
on this ground , and will permit the parties to engaged in discovery on this issue . Upon
completion of discovery, Defendant is free to challenge the viability of Plaintiff's claims
on this basis through a motion for summary judgment.

Accommodation . Defendant moves to dismiss the failure to accommodate
claim on the grounds that Plaintiff failed to cure her pleading defects. To state a claim
for disability discrimination , Plaintiff must establish that she (1) has a disability or
handicap under the DPDEPA or the ADA; (2) she was otherwise qualified to perform the
essential functions of the job , with or without reasonable accommodations by the
employer; and (3) she suffered an adverse employment action as a result of
discrimination. See, e.g. , McDonnell Douglas Corp. v. Green , 411 U.S. 792 , 802
(1973) . To qualify as "a person with a disability" under the DPDEPA or the ADA, the
claimant must show that she: "(a) has a physical or mental impairment which
substantially limits one or more major life activities; (b) has a record of such an
impairment; or (c) is regarded as having such an impairment." 19 Del. C. § 722(4) ; see
42 U.S.C. § 12102(2)(A)-(C); see also Miller v. Aramark Healthcare Support Services,
555 F. Supp. 2d 463 , 472 (D . Del. 2008) .
As in the original Complaint, the Amended Complaint alleges that Plaintiff has a
disability (i.e. , PTSD (0.1. 29 at 4)) and that Defendants failed to accommodate the
disability. The Amended Complaint does not describe how Plaintiff's condition affected
her ability to perform the essential functions of her position or how Defendant allegedly
failed to accommodate Plaintiff's disability. As currently pied , the Amended Complaint

5

fails to state a claim for disability discrimination . Therefore, the Court will grant
Defendant's motion to dismiss the claim.

Retaliation. Defendant moves to dismiss the retaliation claim on the grounds
that Plaintiff failed to cure her pleading defects. Plaintiff alleges retaliation which is
prohibited by the DPDEPA and the ADA See 19 Del. C. § 726 ; 42 U.S .C . § 12203(a).
To state a retaliation claim , Plaintiff must allege : "(1) protected employee activity;
(2) adverse 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." Krouse v. American Sterilizer Co. , 126 F.3d
494 , 500 (3d Cir. 1997); see Wagenhoffer v. Visionquest Nat'/ Ltd., 2016 WL 3947952 ,
at *7 (Del. Super. July 14, 2016) (setting forth elements for case of retaliation under the
ODEA).
As in the original complaint, the Amended Complaint alleges that Plaintiff
engaged in protected activity when she "reported an Athena employee parking lot 'slip
and fall"' in January 2014 that occurred in Defendant's parking lot. The project manager
acted in a hostile manner towards her a few days later, referencing the accident. In
addition , she alleges that her employment was terminated after she discussed workers'
compensation (following a work-related injury on March 22 , 2014) and an ADA
accommodation with human resources .
It seems that Plaintiff is alleging retaliation related to her report of an individual's
injury, her own workplace injury, and/or because she requested an ADA
accommodation . It simply is not clear. If her claim is that retaliation occurred because
she reported the Athena employee's fall , it is hard to see how that is protected activity.

6

If the claim is that retaliation occurred after Plaintiff filed a workers' compensation claim ,
then the claim would arise under Delaware's Workers' Compensation Act and not under
the DPDEPA and the ADA. If her claim is that retaliation occurred because she sought
an accommodation for her disability, which is protected activity, then her claim would
arise under the DPDEPA and the ADA. Shellenberger v. Summit Bancorp, Inc. , 318
F.3d 183, 191 (3d Cir. 2003) ("The right to request an accommodation in good faith is
no less a guarantee under the ADA than the right to file a complaint with the EEOC .. .
.").

It is unclear as to what the accommodation is that Plaintiff sought, although it

seems possible that it was a transfer to the Kent County office (D .I. 29 at 5 (discussing
denial of request for transfer on March 25 following workplace injury on March 22)),
even though from the timeline of events , it seems more likely it was in connection with
the workplace injury. As mentioned , her complaint says her disability is PTSD . Her
EEOC Intake Questionnaire described her disability as "Cognitive - sleeping and
breathing and Physical - lifting. " (D .I. 29-1 at 4 (Question 10)). She further reported
that she had asked for an "Accommodations plan " on February 5, 2014 , and that is was
"accepted" by her employer. (Id. (Question 12)). In Plaintiff's "Charge of
Discrimination ," she elaborated , "Despite agreeing to the terms within my request, I
believe Respondent failed to adhere to specifics within the submitted request. " (D .I. 292 at 2) . In the Amended Complaint, Plaintiff alleges that her medical provider gave her
employer a "Mental Health Workplace Accommodations" document. (D .I. 29 at 5) . She
alleges that on March 25 , 2014 , she "discussed" ADA accommodations with one of her
employer's HR employees . (/d.). As alleged , the factual basis for a claim of retaliation
related to her disability is deficiently pied because the Amended Complaint does not

7

plausibly allege a causal connection between some protected activity and/or the denial
of a transfer to the Kent County office and/or her termination . I understand Plaintiff is

pro se, but the Amended Complaint insufficiently states a complaint of disability
retaliation . Therefore, Defendant's motion to dismiss as to this ground will be granted .

Amendment. Plaintiff is prose; she will be given one final opportunity to amend
her employment discrimination and retaliation claims against Defendant. As to the
discrimination claim, if the claim is based on a failure to accommodate, she should at a
minimum state what the disability was , what accommodation was sought, what
accommodation was not given, and how that impacted her ability to perform her job . As
to the retaliation claim, she should state what the disability was , what the protected
activity was , and what the retaliation for engaging in the protective activity was .

CONCLUSION
For the above reasons , the Court will grant Defendant' motion to dismiss . (D.I.
45) .
An appropriate Order will be entered.

8