United States District Court, D. Delaware
Vernetta Knight, Smyrna, Delaware. Plaintiff, Pro se.
For Defendants: Lawrence W. Lewis and Michael F. McTaggart, Deputy Attorneys General, Delaware Department of Justice, Wilmington, Delaware.
Sue L. Robinson, District Judge.
Plaintiff Vernetta Knight (" plaintiff" ) proceeds pro se. She filed this lawsuit alleging employment discrimination by reason of race pursuant to 42 U.S.C. § 2000e-5, and deprivation of her right to due process pursuant to 42 U.S.C. § 1983. (D.I. 1) Presently before the court are the parties' cross-motions for summary judgment. (D.I. 22, 36) The court has jurisdiction pursuant to 28 U.S.C. § 1331. For the following reasons, the court will grant defendants' motion and will deny plaintiff's motion.
II. PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff, who is black, was employed by defendant Delaware Economic Development Office (" DEDO" ) from June 2006 until she was terminated on March 6, 2012. (D.I. 38, A5) Defendant Sally Wojcieszyn (" Wojcieszyn" ) served as the director of human resources and administration for the DEDO. (D.I. 24, A49) On April 12, 2012, plaintiff filed a charge of discrimination. (D.I. 38, A9) Plaintiff received a notice of right to sue dated March 28, 2013, and the instant lawsuit was filed on June 26, 2013. (D.I. 1) She seeks injunctive relief (including reinstatement) and compensatory damages. ( Id.)
Plaintiff's DEDO position was not a part of the State of Delaware merit system and the State's merit rules did not apply to her employment. (D.I. 24, A23) Plaintiff understood when she accepted the position that it was exempt from the State merit system and that she served at the pleasure of the governor and the DEDO director. ( Id. at A6, A52)
Plaintiff has taken college courses, but does not have a college degree. (D.I. 38, A4) In plaintiff's initial job with the DEDO, she performed accounting duties. (D.I. 24, A7) Following her 2006-07 performance review, where she received a " needs improvement," plaintiff was relieved of most of her critical accounting duties and given other job duties, but retained her classification. (D.I. 24, A27-31) Plaintiff was moved to a receptionist position and held that position for approximately one year when, due to reorganization, she was moved to an administrative specialist III where she scheduled meetings and planned travel. ( Id. at A7-8) Plaintiffs performance review for 2007-08 was " meets expectations."  (D.I. 24, A27-30) At the time of her termination, plaintiff held the administrative specialist III position. (D.I 38, A8)
In 2007, plaintiff complained to the human resources director about a hostile work environment based upon her race. ( Id. at A37) At the time, plaintiff reported to Cheryl Lahman (" Lahman" ). The matter was reported to Tom McCarthy (" McCarthy" and Kelly Ousman (" Ousman" ) and investigated by Ousman. ( Id.) Ousman concluded that there " seemed to be an intimidating, offensive, and discriminatory environment that is fostered by her supervisor." ( Id.)
During the summer of 2010, the DEDO approved plaintiff's request for leave under its Family Medical Leave Act (" FMLA" ) that she had requested as a result of a domestic violence incident and the premature birth of her son. ( Id. at A46, A77) In October 19, 2010, plaintiff was reprimanded for violating the State's credit card policy when she used the State credit card for personal use. ( Id. at 32) The credit card transaction (for groceries) took place on October 3, 2010, and plaintiff repaid the amount on October 15, 2010. (D.I. 24, A32) Wojcieszyn testified that she believed plaintiff's credit card use was an intentional act because plaintiff was always having financial difficulties and she failed to immediately reimburse the State. ( Id. at A83) Wojcieszyn testified that when other employees realized they had misused a State credit card, they would show up at her desk the next morning with a check or cash in hand, apologizing. ( Id.) In the fall of 2011, plaintiff's attendance was at issue and, as a result, she met with the DEDO director who asked plaintiff to try to come to work on a regular basis. ( Id. atA57)
Plaintiff testified that she spoke to Lahman in early January 2012 and advised Lahman she would undergo surgery in February. (D.I. 38 at A-11) Lahman told plaintiff to advise Wojcieszyn of the pending surgery because Lahman was retiring in February. ( Id. at A8, A11) Following Lahman's retirement, plaintiff reported to Wojcieszyn. ( Id. at A8) Plaintiff testified that she could have spoken to Wojcieszyn around the same time, in early January. ( Id.) Wojcieszyn agreed that she and plaintiff spoke in January and testified that plaintiff indicated she would need to be off a couple of days for minor surgery. (D.I. 24, A54) Plaintiff and Wojcieszyn discussed plaintiff's sick and vacation leave balances, that plaintiff was low on leave, and that plaintiff might want to save her floating holidays for any unexpected absences. ( Id.)
The DEDO's FMLA provides that its employees shall give not less than thirty days prior notice, or as quickly as the need is known, when leave is foreseeable based upon planned medical treatment. ( Id. at A67-70) According to Wojcieszyn, it is the employee's responsibility to notify human resources, or at least have some communication, to discuss whether the leave is a FMLA event so that the proper paperwork can be distributed to the employee. ( Id. at A54) In addition, it is the employee's responsibility to insure the employee's part is completed on the FMLA paperwork and to give the FMLA paperwork to the physician's office. ( Id. at 54-55).
On February 3, 2012, plaintiff signed an agreement of elective weight loss surgery with her surgeon's office. ( Id. at A33) Plaintiff was told by her physician that the recovery period could take " anywhere between a week or approximately two to four weeks." (D.I. 38 at A12) A memo from plaintiff's physician, addressed " to whom it may concern" and dated February 29, 2012, states, " a 2 week recuperation time is anticipated, with a more exact return to work date to be determined following the actual surgery." (D.I. 24, A64) Plaintiff spoke to Wojcieszyn sometime in February to let her know that the surgery would take place on Wednesday, February 23, 2012, of the expected recovery time, and that she would be out for two days. (D.I. 38, A11-12) Plaintiff advised Wojcieszyn that she would telephone her on February 27, 2012, to let her know how she felt. (D.I. 38 at A11) Plaintiff did not plan on taking off for at least a week because the recovery time depended upon the person, which is why she told Wojcieszyn she would call the following Monday, February 27th. ( Id.)
The surgery took place as scheduled and, on Monday, February 27, 2012 plaintiff called Wojcieszyn and indicated that she might need another day. (D.I. 38, A12) Wojcieszyn directed that a release form from plaintiff's physician was needed for plaintiff to return to work. ( Id.) Wojcieszyn faxed, and then emailed, a FMLA form to plaintiff's physician on Wednesday, February 29, 2012. ( Id. at A13) Wojcieszyn advised plaintiff's physician that the FMLA paperwork was due back by March 14, 2012. (D.I. 38, A55)
On Thursday, March 1, 2012, plaintiff called her physician and requested a return to work date of Tuesday, March 6, 2012. (D.I. 38, A56) Medical records indicate that plaintiff called back on March 5, 2012, because she had not heard from her physician. ( Id.) On the same date, a notation was made by Wojcieszyn that the correct email was used to send the FMLA paperwork. ( Id. at A55) Also on March 5, 2012, plaintiff's physician faxed a return to work slip for plaintiff to return to work on March 6, 2012. (D.I. 24, A35) The physician's office unsuccessfully tried to contact plaintiff, but it could not reach her because it had an old telephone number in the system. (D.I. 38, A63) Plaintiff believes that she spoke to the physician's ...