CRYSTAL A. BLAKEMAN, Plaintiff,
FREEDOM RIDES, INC., and HERTRICH'S OF MILFORD LTD., d/b/a HERTRICH FORD LINCOLN MERCURY Defendants.
REPORT AND RECOMMENDATION
CHRISTOPHER J. BURKE, Magistrate Judge.
In this action Plaintiff Crystal A. Blakeman ("Plaintiff') brought suit against Defendants Freedom Rides, Inc. ("Freedom Rides"), and Hertrich's of Milford Ltd., d/b/a Hertrich Ford Lincoln Mercury ("Hertrich") (collectively, "Defendants") alleging causes of action arising under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., ("ADA") and the Delaware Workers' Compensation Act, Del. Code Ann. tit. 19, § 2301, et seq. (D.I. 1) Presently before the Court are Hertrich's and Freedom Rides' Motions to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (collectively, "Motions"). (D.I. 7, 9)
For the reasons that follow, the Court recommends that the Motions be converted to motions for summary judgment and that they be GRANTED-IN-PART and DENIED-IN-PART. Specifically, the Court recommends that Defendants' Motions be DENIED as to the ADA claim, Freedom Rides' Motion be DENIED as moot as to the Delaware Workers' Compensation Act claim, and Hertrich's Motion be GRANTED as to the Delaware Workers' Compensation Act claim.
Plaintiff is a Delaware resident and describes herself as a former employee of both Defendants: Freedom Rides and Hertrich. (D.I. 1 at ¶¶ 1, 15) Hertrich is an automobile dealership, which was incorporated in Delaware in 1997. (D.I. 8, ex. U; see also D.I. 10, ex. U) Hertrich is wholly owned by The Hertrich Family of Auto Dealerships, Inc., (D.I. 8, ex. V), which, in tum, is wholly owned by Frederick W. Hertrich III, ( id., ex. Y).
Freedom Rides is a Delaware corporation engaged in the leasing of automobiles to consumers. (D.I. 1 at ¶ 2; D.I. 8 at 2) Freedom Rides is owned by Christopher D. Hertrich and Frederick W. Hertrich, IV. (D.I. 8, ex. T (noting that Christopher D. Hertrich and Frederick W. Hertrich, IV own 735 and 765 shares of the 1, 500 authorized capital stock shares of Freedom Rides, respectively)) George H. Sapna III, at all times relevant to this action, has been the President of Freedom Rides. (D.I. 13, ex. FF (hereinafter "Sapna Affidavit") at ¶ 1) For purposes of these Motions it is not disputed that, throughout the relevant time period, Freedom Rides employed less than 15 persons (and that Freedom Rides and Hertrich collectively employed greater than 15 persons). ( See D.I. 10, ex. DD (Freedom Rides' Employee Register for the period ending August 8, 2010 showing twelve employees))
B. Plaintiff's Employment
On or about October 5, 2009, Plaintiff was interviewed in Hertrich's Milford office by Barry Smi for a position as a cashier/clerk. (D.I. 11, ex. A (hereinafter, "Blakeman Affidavit") at ¶¶ 1-2; D.I. 13, ex. EE (hereinafter "Smi Affidavit") at ¶¶ 5-6) Although the parties dispute whether Mr. Smi was acting on behalf of Freedom Rides or Hertrich when he was interviewing Plaintiff, and whether Mr. Smi made the decision to hire Plaintiff,  it is not disputed that Plaintiff began her employment on or around October 5, 2009. (Blakeman Affidavit at ¶ 1; D.I. 8 at 5)
For the first few weeks of her employment, Plaintiff worked out of Hertrich's Human Resources office. (Blakeman Affidavit at ¶ 4; Smi Affidavit at ¶¶ 10-11; Sapna Affidavit at ¶¶ 10-11) During this period, Plaintiffs main duty was to order supplies to be used for the opening and eventual operation of the Dover, Delaware location of Freedom Rides. (Blakeman Affidavit at ¶ 5; Smi Affidavit at ¶¶ 8-9; Sapna Affidavit at ¶ ¶ 8-9) Although Plaintiff undisputedly used a credit card to order these supplies, the parties dispute the owner of the credit card.
During the course of her employment, Plaintiff received a number of disciplinary warnings, which lead to her eventual termination on August 2, 2010. On June 24, 2010, Plaintiff received a written warning and was placed on 90-day probation for violating company policy. (D.I. 8, ex. BB; id., ex. CC; see also id., ex. AA (Employee Warning dated July 1, 2010 noting that "[Plaintiff] IS ON PROBATION")) Thereafter, Plaintiff received an "Employee Warning" dated July 1, 2010. ( Id., ex. AA) This warning, approved by Mr. Sapna, was issued because Plaintiff called out sick from work from June 28, 2010 until July 1, 2010 without prior supervisory approval. ( Id. ) Next, on July 26, 2010, Plaintiff received an "Employee Disciplinary Action" (approved by Mr. Sapna), which was issued for eating food at her desk instead of in a lunch room. ( Id., ex. BB) Finally, Plaintiff received another "Employee Disciplinary Action" (approved by Mr. Sapna and dated August 2, 2010) indicating that Plaintiff was terminated from Freedom Rides as of that day. ( Id., ex. CC) This last document states that Plaintiff was fired because she attended the Delaware State Fair on July 29, 2010, after having earlier told Freedom Rides that she could not report to work on that day due to illness. ( Id. )
C. Procedural Background
On April 3, 2012, Plaintiff filed the Complaint against Defendants, alleging violations of the ADA and the Delaware Workers' Compensation Act. (D.I. 1) In lieu of answering, on May 4, 2012, Defendants filed their respective Motions. (D.I. 7, 9) Briefing on the Motions was completed on May 29, 2012. (D.I. 8, 10, 11, 13) On June 15, 2012, Judge Leonard P. Stark referred this case to the Court to "hear and resolve all pretrial matters, up to and including the resolution of case-dispositive motions." (D.I. 14)
A. Determination of Proper Treatment of Motions
Before proceeding to the merits, the Court must consider the appropriate treatment of these Motions. Specifically, the Court must determine whether the Motions should be treated as motions to dismiss for failure to state a claim, or whether they should instead be "converted" into motions for summary judgment.
Courts faced with a motion to dismiss must-except in situations not pertinent here-limit their consideration solely to "the allegations contained in the complaint, exhibits attached to the complaint and matters of public record." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). Thus, if on a Rule 12(b)(6) motion to dismiss:
[M]atters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56 [and] [a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.
Fed. R. Civ. P. 12(d). Such opportunity to present material requires "adequate notice [to the parties] of the... court's intention to convert." In re Rockefeller Ctr. Props., Inc. Securities Litig., 184 F.3d 280, 287 (3d Cir. 1999) (citing Rose v. Bartle, 871 F.2d 331 (3d Cir. 1989)).
Although it is preferable that such notice be expressly provided by court order or at a hearing, in some circumstances, this is not required. Id. at 288. For instance, the United States Court of Appeals for the Third Circuit has held that a non-movant has adequate notice that a court would convert the movant's motion to dismiss into a motion for summary judgment when the motion is "framed in the alternative as [a] motion for summary judgment." Hilfirty v. Shipman, 91 F.3d 573, 578-79 (3d Cir. 1996). The Third Circuit has held that in such a case, if the non-movant thereafter does not object to the movant's submission of matter outside the pleadings, and otherwise submits its own matter not contained in the pleadings for the court's consideration, adequate notice has been provided and the motions may be considered as ones for summary judgment. Id.
Here, it is clear that both sides have presented matter outside the pleadings, the consideration of which would require the Court to convert the Motions into motions for summary judgment. For instance, Defendants' Opening Briefs in support of the Motions attach numerous such exhibits, such as copies of Freedom Rides' Certificate of Incorporation. (D.I. 8, ex. A) Similarly, Plaintiffs Answering Brief attaches the affidavit of Ms. Blakeman-one of a number of affidavits attached to the parties' briefing on the Motions. (Blakeman Affidavit); see also Hernandez v. Donovan, Civil No. 10-726(NLH)(JS), 2012 WL 2524279, at *2 (D. Del. June 28, 2012) (finding that court's consideration of declarations from prison officials, in assessing motion to dismiss civil rights complaint, required conversion of the motion into one for summary judgment).
The Court also finds that the parties had adequate notice that the Motions might be converted to motions for summary judgment. Although the Motions are not specifically entitled in the alternative as "motions for summary judgment, " ( see D.I. 7 ("Defendant Hertrich's... Motion to Dismiss"), both parties' briefs in support of the Motions invited the Court to convert the motions into ones for summary judgment if necessary.
More specifically, Defendant Hertrich submitted matters outside of the pleadings in support of the Motions and noted in its briefing that "when a [m]otion is made pursuant to [Rule] 12(b)(6) and matters outside the pleadings are presented, the motion must be treated as one for summary judgment under Rule 56.'" (D.I. 8 at 6 (quoting Fed.R.Civ.P. 12(d)) Defendant Freedom Rides did the same, and went on to note that "this Court may at this juncture determine whether a claim ...