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Fender v. Delaware Division of Revenue

United States District Court, D. Delaware

September 15, 2014

MARY FENDER, Plaintiff,


GREGORY M. SLEET, District Judge.


The plaintiff, Mary Fender ("Fender"), filed this lawsuit against the Delaware Division of Revenue ("DOR"), and two employees of the DOR, Michael Smith ("Smith") and Thomas Eoppolo ("Eoppolo") (collectively, "the Defendants") on October 25, 2012. (D.I. 1.) The complaint raised a number of claims under federal and Delaware law for alleged mistreatment of Fender while employed by the DOR. Specifically, the complaint asserted claims of: (1) First Amendment retaliation in violation of 42 U.S.C. § 1983 against all Defendants ("Count I"); (2) violation of the Delaware Whistleblowers' Protection Act ("WPA"), under 19 Del. C. § 1701 et seq., against all Defendants ("Count II"); and (3) tortious interference with business relationships against all Defendants ("Count III"). Fender sued Smith and Eoppolo in both their individual and official capacities.

On December 19, 2012, the Defendants filed a motion to dismiss for failure to state a claim. (D.I. 9.) The court granted in part and denied in part the Defendants' motion to dismiss, dismissing Counts I and III as against the DOR, and dismissing Count III as against Smith and Eoppolo in their official capacities. (D.I. 17.) Additionally, in the present briefing, Fender voluntarily dismisses Count II, as against Smith and Eoppolo, and Count III in its entirety. (D.I. 42 at 1 & n.1.) The only claims that remain, therefore, are the § 1983 claims against Smith and Eoppolo, and the WP A claim against the DOR. ( Id. )

Presently before the court are the DOR's motion for summary judgment, and Smith and Eoppolo's joint motion for summary judgment. (D.I. 34; D.I. 36.) For the reasons stated below, the court will grant the Defendants' motions for summary judgment.


Fender began working for the DOR in July 2003 as a Senior Tax Auditor (now referred to as Tax Auditor III). (D.I. 44, Ex. 119 at A816.) Her position was located in the Carvel Building in Wilmington, Delaware initially, but in 2005 or 2006, she was transferred to the "Corporate Commons" Building in New Castle, Delaware. ( Id. ) Fender worked within the Personal Income Tax ("PIT") group, and among her job responsibilities was to create auditing "projects, " which were then assigned to other members within PIT. ( Id. at A817). As part of these projects, Fender would send out letters-typically several hundred or thousands-to people who were believed to be non-compliant with their tax filing obligations. ( Id., Ex. 79 at A542; Ex. 119 at A818.)

Between 2009 and 2010, there was a reorganization within the DOR-the PIT and Business Audit groups were combined as a single audit department, managed by Smith. (D.I. 44, Ex. 119 at A826, A822.) Eoppolo became Fender's direct supervisor. ( Id. at A826.) In April 2010, Smith transferred Fender's position back to Wilmington and requested that she return to Wilmington by the beginning of May 2010. ( Id. ) Fender, however, remained at the Corporate Commons building in New Castle until December 14, 2010. ( Id. at A827.) Soon after returning, Fender sought a transfer to the DOR office in Dover, Delaware, on December 20, 2010. ( Id. ) Smith rejected her transfer application. After rejecting her transfer, Smith noted in a message to Director Pat Carter that Fender was trying to "sell her agenda."[1] ( Id., Ex. 94 at A667-68.)

Fender went to Deputy Director Colleen Yegla on December 22, 2010 to complain about the denial of transfer and general unfair treatment. (D.I. 44, Ex. 119 at A836.) Specifically, Fender explained that Smith had recently approved a transfer request for a male employee, Bill Kirby, from Wilmington to another DOR satellite branch. ( Id. ) Additionally, Fender complained that Eoppolo had called her on her personal cell phone while she was at a doctor's appointment, that Eoppolo was not approving her financial transactions in a timely manner, and that she did not approve of the way Eoppolo was managing her. ( Id., Ex. 74 at A449-51, A458.) Ms. Yegla was not Fender's supervisor and took no action on Fender's complaints.

Fender met several times with Ms. Yegla between December 2010 and February 2011 to complain about problems with Smith and Eoppolo. Unsatisfied with these discussions, Fender filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on February 11, 2011, listing Eoppolo's unwanted phone calls and Smith's denial of her transfer request as examples of sex and age discrimination. (D.I. 44, Ex. 129.) Fender subsequently spoke with Ms. Yelga and Mary Jane Donnelly, the DOR's Human Resource Manager, to explain that she had filed an EEOC complaint because she was discriminated against as a female. ( Id., Ex. 119 at A831, A839). Fender ultimately did not pursue her EEOC complaint.

Fender noticed a change in her work after making her complaints to Ms. Yegla, Ms. Donnelly, and the EEOC.[2] According to Fender, Smith and Eoppolo reprimanded her on several occasions without cause, (D.I. 44, Ex. 44), and limited her ability to plan meetings with her colleagues. ( Id., Ex. 37.) Additionally, Eoppolo micromanaged Fender more extensively and reduced her job responsibilities, e.g., taking projects away and limiting the number of letters she could send. ( Id., Ex. 119 at A858-59.) Other auditors did not have their work reduced in this way. ( Id., Ex. 135, ¶ 21.)

In July of 2011, Fender was involved in a car accident and left work on short-term disability leave. (D.I. 44, Exs. 60-61.) Fender asserts that Eoppolo wrongfully reprimanded her for not updating him with her work availability, although Fender had previously sent an update to a member of HR. ( Id., Ex. 61.) Fender was scheduled to return to work in February 2012, but delays in her surgery pushed this date back to March 2012. ( Id., Ex. 119 at A851-52.) Fender's disability leave, however, expired in January 2012, and Durae Johann, the Return-to-Work Coordinator for the DOR, notified Fender that her job had been terminated. ( Id. at A850.) Fender had the option of reapplying for her position, which she declined. ( Id. at A850-51.)[3]

Before the court are Fender's remaining claims against the Defendants. Against Smith and Eoppolo, Fender asserts a claim for First Amendment retaliation in violation of § 1983. Specifically, Fender argues that her complaints to Ms. Yegla, Ms. Donnelly, and the EEOC constituted protected First Amendment speech, and that Smith and Eoppolo, by their subsequent actions, impermissibly retaliated against her. (D.I. 1, ¶¶ 76-80.) Against the DOR, Fender asserts a claim for violation of Delaware's WP A. Specifically, Fender argues that her complaints were protected whistle-blowing activity, and that adverse actions taken by the DOR in response were in violation of the WPA. ( Id., ¶¶ 81-89.)


Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of proving that no genuine issue of material fact exists. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585 n.10 (1986). A fact is material if it "could affect the outcome" of the proceeding. Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011). There is a genuine issue "if the evidence is sufficient to permit a reasonable jury to return a verdict for the non-moving party." Id. When determining whether a genuine issue of material facts exists, the district court must view the evidence in the light most favorable to the nonmoving party and draw inferences in that party's favor. Wishldn v. Potter, 476 F.3d 180, 184 (3d ...

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