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Perkins v. State

United States District Court, Third Circuit

August 30, 2013

JUDITH KATHLEEN PERKINS, Plaintiff,
v.
STATE OF DELAWARE DHSS/DSSC, Defendant.

REPORT AND RECOMMENDATION

Christopher J. Burke UNITED STATES MAGISTRATE JUDGE

In this civil rights action filed pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq., Plaintiff Judith Kathleen Perkins ("Plaintiff or "Perkins") brought suit against her former employer, defendant State of Delaware, Department of Health and Social Services, Division of State Service Centers ("DHSS" or "Defendant"). (D.I. 1) Pending before the Court is Defendant's motion to dismiss for failure to state a claim upon which relief may be granted, filed pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Motion"). (D.I. 27) For the reasons that follow, the Court recommends that the Motion be DENIED.

I. BACKGROUND

A. Factual Background

Plaintiff is a Delaware resident and former employee of the State Office of Volunteerism ("SOV"), a unit of the Division of State Service Centers ("DSSC"), which in turn, is a division within DHSS. (D.I. 1 at ¶ 5) Plaintiff was the Deputy Unit Director for the SOV when Andrew Kloepfer ("Kloepfer") was hired as the SOV Director in late January 2007. (Id. at ¶¶ 5-6)

Plaintiff alleges that, during an SOV staff meeting in Dover that occurred within days of Kloepfer's hire, Kloepfer called "subordinate staff members names, made threats, leaned over tabletops pointing his fingers in [employees'] faces while screaming at those persons [and] slammed his fists on tabletops." (Id. at ¶ 6) Kloepfer is alleged to have stormed out of the meeting after displaying this "frightening" behavior, slamming the door behind him. (Id.) Plaintiff also asserts that Kloepfer's immediate supervisor, Deputy Division Director Wykoff ("Wykoff'), was at this meeting. (Id.) Division Director Upshur ("Upshur") is alleged to have thereafter determined that, as a result of the incident, Wykoff should "extend Kloepfer's probationary period from one year of employment probation to two years." (Id.)

Plaintiff alleges that Kloepfer's "violent outbursts" nevertheless continued. (Id. at ¶ 7) She states that by early October 2007, Kloepfer's "[v]iolent, retaliatory and discriminatory behaviors targeted at [her] became weekly, sometimes daily occurrences[.]" (Id.) Plaintiff further contends that she reported these "behaviors" to Wykoff and Upshur; she also states that in November 2007, she reported them to Mark Monroe ("Monroe"), a human resources representative at the State's Division of Management Services, who promised to investigate. (Id.) Plaintiff alleges that in the following weeks, Kloepfer's "behaviors escalated." (Id.) She then contacted the State's Employee Assistance Program ("EAP"); after three telephone sessions with an EAP counselor, the counselor advised Plaintiff that she was "at-risk" and suggested that she "seek greater authority within or outside of State employment." (Id.) Plaintiff then allegedly contacted "HR staff at the State's Office of Management and Budget ("OMB"); these persons informed Plaintiff that the matter would be "'looked into'" and suggested that Plaintiff consider contacting the Equal Employment Opportunity Commission ("EEOC"). (Id.)

In December 2007, Plaintiff made a request to Kloepfer for a transfer to "an alternate work location within [her] current position[, ]" and later made the same request to Wykoff, Upshur, and Monroe. (Id. At ¶ 8) In January 2008, Plaintiff requested a lateral transfer. (Id.) Both of these requests were denied without explanation. (Id.) At this time, Plaintiff alleges that it was "common knowledge in the SOV" that Plaintiff was "locking herself in her office every day. (Id.)

On February 14, 2008, Plaintiff alleges that Kloepfer "attacked" her while she was in her office. (Id. at ¶ 9) Plaintiff states that this attack occurred in full view of a video camera, and that thereafter, Plaintiff screamed, could not catch her breath, and could only speak "somewhat coherently" fifteen minutes later. (Id.) At this point, she reported the incident to Monroe, Monroe's office, and the SOV's Division Director. (Id.) Monroe is said to have promised to report the attack to police and to further investigate "the violence, retaliation and discrimination" of Kloepfer and Upshur. (Id.)

Plaintiff states that she returned to work the next day, February 15, 2008, but states that no one from Monroe's office followed up with her that day, nor were the police summoned. (Id.) Plaintiff does allege that the Division Director's administrative assistant informally made Plaintiff aware that Kloepfer had been sent home early on February 14 and that he had been told to work from home on February 15. (Id.)

On February 15, Plaintiff states that she was examined by a doctor, who informed her that she could not return to work under current conditions. (Id. at ¶ 10) She alleges that she had been diagnosed with ocular migraines during the previous month and that she was "later diagnosed with Post Traumatic Stress Disorder." Plaintiff states that both of these diagnoses were "due to violent, retaliatory, and discriminatory work conditions." (Id.) She thereafter went out on leave pursuant to the terms of the Family and Medical Leave Act. (Id. at ¶ 11)

Plaintiff states that while on FMLA leave, she had an attorney file a written request on her behalf seeking, inter alia, a lateral transfer within DHSS. (Id.) Plaintiff alleges that there were six open lateral positions at this time, but that Upshur denied the request. (Id.) Thereafter, Plaintiff obtained a disability pension, which she still receives today, on the grounds that she was injured at work and cannot return to her job. (Id. at ¶13)

Plaintiff attaches certain exhibits to her Complaint, to which she makes reference in the body of the Complaint. (See, e.g., Id . at ¶ 11) One of those, Exhibit B, is the April 2008 letter from Plaintiffs then-attorney to the Secretary of DHSS seeking a transfer within DHSS (and other relief). (Id., ex. B) In the letter, Plaintiffs attorney writes that Plaintiff felt she was the victim of "workplace violence and sexual harassment... at the hands of. . . Kloepfer." (Id. at 1) The letter goes on to describe an alleged "pattern of bizarre, threatening, and sexually charged behavior" that Kloepfer exhibited towards Plaintiff from August 2007 through early 2008, including "rubbing her shoulders, discussing extramarital affairs, calling her honey, referring to women as 'mules [J' discussing lesbians, stating to her that he thinks of her as his wife [and] hollering and beating his fists on his desk." (Id.) The letter states Plaintiff filed a grievance with Monroe in January 2008 "noting that this behavior constituted sexual harassment [and] made [Plaintiff] feel physically threatened[.]" (Id. at 2) The letter also references the February 14, 2008 incident, stating that on that day, Kloepfer "walked towards [Plaintiff] in a threatening manner." (Id.) The letter then states that Plaintiff was forced to go on FMLA leave due to ...


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