United States District Court, D. Delaware
DR. NANCY MONDERO, JUDY L. HOWETT NP, MARGARET M. SAWYER, TANIKKA R. MILLER, and MARIAN L. LONG, Plaintiffs;
LEWES SURGICAL & MEDICAL ASSOCIATES P.A., a Delaware Professional Association, SEMAAN M. ABBOUD M.D., BETH E. BITTNER, Defendants.
me is Plaintiffs Dr. Nancy Mondero, Judy L. Howett NP,
Margaret M. Sawyer, Tanikka R. Miller, and Marian L.
Long's Motion for Reargument (D.I. 75) relating to my
summary judgment opinion (D.I. 71) and separate Order (D.I.
72). I have considered Plaintiffs' motion and Defendant
Lewes Surgical & Medical Associates, P.A.'s response.
(D.I. 75; D.I. 78). For the reasons set forth herein, the
motion is DENIED. Familiarity with the summary judgment
decision is presumed.
is generally appropriate only when there is: "(1) a
change in the controlling law; (2) a need to correct a clear
error of law or fact or to prevent manifest injustice; or (3)
[an] availability of new evidence [that was] not available
when the judgment was granted." Apeldyn Corp. v. AU
Optronics Corp., 831 F.Supp.2d 837, 840 (D. Del. 2011).
"Motions for reargument or reconsideration may not be
used 'as a means to argue new facts or issues that
inexcusably were not presented to the court in the matter
previously decided.'" Id.
request reargument on two issues: (1) my finding that
Plaintiffs failed to sufficiently demonstrate for summary
judgment purposes that they engaged in protected activity at
times other than at the November 1, 2012 meeting, and (2) my
finding that Plaintiffs failed to put forward sufficient
evidence of causation to meet their prima facie case. (D.I.
75 at pp. 2-4; D.I. 71 at pp. 3-7).
the first issue, Plaintiffs argue that paragraphs four
through seven of Beth Bittner's Affidavit "speak
to the office environment not only at the time of the meeting
on November 1, 2012 and continuing through Plaintiffs'
termination in January 2013" and suggests that there
were other instances where Plaintiffs engaged in protected
activity. (D.I. 75 at pp. 2-3). In my opinion, I noted that
Plaintiff failed to provide "exhibits or declarations
specifically indicating what and where these other times
were." (D.I. 71 at 5). My comment was made with
paragraphs four through seven of Bittner's affidavit in
four through seven of Bittner's Affidavit do not provide
the requisite level of specificity. (See D.I. 64-1
at 24-25). It does not specifically indicate other instances
where Plaintiffs engaged in protected activity. (See
id.). Paragraph four states that "resentment grew
and Dr. Abboud was accused of agreeing to my policy changes
and protecting me because of our relationship."
(Id. ¶ 4). This does not specifically indicate
when and how Plaintiffs engaged in protected activity. This
is too vague. In contrast, paragraphs five and six do provide
a specific instance detailing the November 1, 2012 meeting,
and I have found that the Plaintiffs engaged in protected
activity at this instance. Paragraph four fails to provide
this level of specificity. Paragraph seven states that:
"In early January 2013, the office work environment was
even more hostile.... The drama and tension in the office was
unbearable." (Id. ¶ 7). This, like
paragraph four, fails to specifically indicate when and how
Plaintiffs engaged in protected activity. Paragraph seven is
request is denied as to the first issue.
the second issue, Plaintiffs argue that paragraphs eight and
nine of Bittner's Affidavit "establish clear
evidence that there was a connection between the protected
activity and the adverse employment action." (D.I. 75 at
p. 3). Paragraphs eight and nine provide the following:
8. Following my resignation, Dr. Abboud contacted me and
'begged' me to return to work. He promised me that
things would be different and that he would take care of the
problem. I agreed to return to work and reassume the office
9. Following my return, Dr. Abboud instructed me, and
authorized me, to terminate Dr. Mondero, Judy Howett, and
their staff, including Margaret Sawyer, Marian Long and
Tanikka Miller. Upon information, knowledge and belief, Dr.
Abboud saw Dr. Mondero and Judy Howett, and their staff, as
the problem makers simply because they would not accept the
changes and complained about my job performance and their
belief that Dr. Abboud was agreeing with my decisions and
protecting me solely as a result of our relationship.
(D.I. 64-1 ¶¶ 8-9).
these paragraphs are speculative and conclusory as to why Dr.
Abboud authorized the termination of Plaintiffs. Second, even
if they were not so, these paragraphs are too vague to
support the inference that Dr. Abboud fired Plaintiffs
because of the November 1, 2012 meeting. Bittner states that
Dr. Abboud "promised me that things would be different
and that he would take care of the problem." What
exactly did he promise? What is the problem he is referring
to? Is the problem Plaintiffs' actions during the
November 1, 2012 meeting or something else? Paragraph nine is
equally vague. What exactly does Bittner believe that Dr.
Abboud believes are the "changes" Plaintiffs
"would not accept"? Third, Bittner's testimony
suggests that a reason other than retaliation was the real
reason for Dr. Abboud's decision to fire Plaintiffs.
These paragraphs suggest that Dr. Abboud made the decision to
terminate out of a desire to please Bittner. Bittner says
that Plaintiffs complained about Bittner's job
performance to Dr. Abboud. Furthermore, Bittner characterizes
Plaintiffs as believing that Dr. Abboud was protecting
Bittner "solely as a result of [Bittner and Dr.
Abboud's] relationship." In sum, these paragraphs
fail to add the requisite evidence to support a prima facie
case of causation, which "must be proved according to
traditional principles of but-for causation ...."
See Univ. of Texas Sw. Med. Ctr. v. Nassar, 133
S.Ct. 2517, 2533 (2013).
request is denied as to the second issue.
THEREFORE, at Wilmington this 17th day of January,
2017, it is HEREBY ORDERED that Plaintiffs' motion ...