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Brogdon v. University of Delaware

United States District Court, D. Delaware

January 13, 2015

GAIL BROGDON, Plaintiff,
UNIVERSITY OF DELAWARE, et al., Defendants.


GREGORY M. SLEET, District Judge.


The plaintiff Gail Brogdon ("Brogdon") filed this lawsuit against the University of Delaware (the "University"), and several individual University employees: Thomas DiLorenzo ("DiLorenzo"), Mary Dozier ("Dozier"), Thomas LaPenta ("LaPenta"), Saul D. Hoffman ("Hoffman"), and Tammy Simpson-Turner ("Simpson-Turner") (collectively, "Individual Defendants"), on September 23, 2013. (D.I. 1.) The Complaint raises a number of claims relating to Brogdon's employment with the University. Specifically, Brogdon alleges (1) racial discrimination in violation of Title VII against the University, (2) retaliation in violation of Title VII against the University, and (3) violation of her procedural due process rights, pursuant to 42 U.S.C. § 1983, against the Individual Defendants. ( Id. )

The University and the Individual Defendants (collectively, the "Defendants") filed a motion to dismiss for failure to state a claim on October 21, 2013. (D.I. 4.) For the reasons stated below, the court will grant Defendants' motion to dismiss.


Brogdon began her employment with the University in October 2002, working primarily as a Training Coordinator in the Infant Caregiver Project with the department of psychology. (D.I. 1, ¶ 12.) On March 31, 2008, Brogdon was informed that her current employment with the University was to be terminated in the coming months. ( Id. ¶ 17.) After applying unsuccessfully for several other positions, Brogdon initiated an appeal of her upcoming termination on April 22, 2008. ( Id. ¶ 22.) She met with Dozier, LaPenta, and Cecily Sawyer-Harmon on May 2, 2008, to discuss her grievance. ( Id. ¶ 25.) Dozier explained that there was insufficient money in the budget to "continue to employ four (4) trainers and she would have to lay off two (2) trainers." ( Id. ) On May 9, 2008, Brogdon sent an e-mail response criticizing the performance criteria used to select the trainers to be terminated. She argued that performance should be evaluated according to the ratio of completed home visits to total referrals, as opposed to the absolute number of home visits. ( Id. ¶ 26.) Brogdon argued that she had a better performance (under this calculation) than another junior trainer, Lin Scarpitt. ( Id. ) Brogdon is African American. Ms. Scarpitt is white. Brogdon stated in her response that the department's decision to retain Ms. Scarpitt and terminate Brogdon was "racially discriminatory." ( Id. )

LaPenta extended Brogdon's current employment for an additional two months, until August 31, 2008. ( Id. ¶ 27.) Starting in September 2008, Brogdon began a temporary position in the economics department as a Senior Secretary. ( Id. ¶ 29.) Her salary was reduced by approximately $20, 000 annually. ( Id. ) The position was scheduled to last only until October 10, 2008. ( Id. ) While at this position, Brogdon was supervised by Simpson-Turner, the Office Coordinator. ( Id. ¶ 30.) Simpson-Turner is a white female. Indeed, Brogdon was the only African-American employee in the department. ( Id. ) Simpson-Turner frequently yelled at and verbally abused Brogdon. ( Id. ) Brogdon voiced concerns about Simpson-Turner's conduct to department chair Hoffman. ( Id. ) Nonetheless, Brogdon remained at this position well beyond the original October end date. She received negative performance reviews, and Simpson-Turner's verbal abuse continued. ( Id. ¶ 40.) On April 7, 2009, Simpson-Turner stated, "I wonder what explanation they had to hire you full-time for this job, " and asked Brogdon if she liked the job or "just doesn't care." ( Id. ¶ 41.) Brogdon believed these comments were made in reference to racial stereotypes. ( Id. )

Brogdon resigned from her position on April 22, 2009. ( Id. ¶ 43.) On August 4, 2009, she filed an Equal Employment Opportunity Commission ("EEOC") complaint. ( Id. ¶ 48.) On December 7, 2009, she filed race and retaliation charges with the Delaware Department of Labor. ( Id. ¶ 49.) Finally, on September 23, 2013, Brogdon initiated this lawsuit.

Count I of Brogdon's complaint alleges racial discrimination in violation of Title VII. Brogdon contends that the University's decision to terminate her employment, despite having better performance and more seniority than a white co-worker, was racially discriminatory. She also alleges that her negative performance reviews and the hostile work environment while working under Simpson-Turner amounted to racial discrimination. Count II alleges retaliation, also in violation of Title VII. Brogdon alleges that her May 9, 2008, e-mail complaining of racial discrimination constituted protected activity for which she faced adverse employment actions. Finally, Count III alleges that the Individual Defendants failed to provide due process before her termination, in violation of 42 U.S.C. § 1983.


Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal where the plaintiff "fail[s] to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). In considering a motion to dismiss, the court "accept[s] all factual allegations as true, construe[s] the complaint in the light most favorable to the plaintiff, and determine[s] whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). The issue for the court is "not whether the plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). As such, the touchstone of the pleading standard is plausibility. Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012). Plaintiffs must provide sufficient factual allegations "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "Determining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).


The Defendants argue that each of Brogdon's three Counts should be dismissed for failure to state a claim, pursuant to Rule 12(b)(6). The court ...

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