United States District Court, D. Delaware
STEVEN W. BOMBERGER, Plaintiff,
BENCHMARK BUILDERS, INC., a Delaware corporation, Defendant.
filed this action against Defendant claiming violations of
the Age Discrimination in Employment Act ("ADEA")
under 29 U.S.C. § 621 et seq. ("Count
I"), the Delaware Discrimination in Employment Act
("DDEA") under 19 Del. C. § 710
et seq. ("Count II"), and the Delaware
Common Law Covenant of Good Faith and Fair Dealing
("Count III"). (D.I. 4 at ¶¶ 39-50).
Presently before the Court is Defendant's Motion to
Dismiss Count II and Count III of Plaintiffs First Amended
Complaint. (D.I. 7). The issues have been fully briefed.
(D.I. 8, 11, 17). For the reasons set forth below,
Defendant's Motion is GRANTED.
dispute arises out of Plaintiff Steven W. Bomberger's
termination of employment from Defendant Benchmark Builders,
Inc. in June, 2015. Bomberger was an employee, minority
shareholder and former President of Benchmark. (D.I. 4 at
¶ 5). In 1988, Bomberger co-founded Benchmark with
Francis Julian, Richard Julian and Gene Julian. (Id.
at ¶ 6). Bomberger executed an employment agreement with
Benchmark which included a provision for acquiring stock, and
which stated, "[t]he redemption price of all stock is
the book value of the stock shares." (Id. at
¶¶ 7-8) (alteration in original). In 1994, the four
principal shareholders entered into a share repurchase
agreement that provided a mechanism for determining the
buyback price of stock when any shareholder left the
company. (Id. at ¶¶ 10-11).
Complaint alleges that in late 2012, Francis and Richard
attempted to shift management control to their children (the
"Successor Generation") through a proposal "to
amend the [share repurchase agreement] so that a Principal
Shareholder could transfer stock to his children."
(Id. at ¶ 21). This proposal did not benefit
Bomberger because he did not have children working for
Benchmark. (Id.). Shortly after the amendment,
"the Successor Generation began asserting control over
Benchmark" and brought in younger employees.
(Id. at ¶ 23). At an April 24, 2015 meeting of
the Benchmark Board, Bomberger suggested to Francis, Richard,
and others within Benchmark that he would resign if they were
going to dissolve Benchmark and attempt to freeze him out of
the company as they had done to Gene. (Id. at ¶
26). Those present at the meeting interpreted this as a
resignation, and on May 29, 2015, Francis "sent
Bomberger a letter that purported to 'confirm
[Bomberger's] resignation as President of the
Company' and unilaterally set June 30, 2015 as
Bomberger's last day of employment with Benchmark."
(Id. at ¶ 28) (alteration in original). The
letter also stated that Benchmark would repurchase
Bomberger's shares at $747.00 per share, which was
significantly less than net book value, and "that
Bomberger would be replaced by Matthew Egan, " who was
fifteen years younger than Bomberger. (Id. at
¶¶ 28-29). Francis subsequently sent an email to
Benchmark's staff and trade partners that falsely stated
Bomberger was retiring. (Id. at ¶ 48).
Bomberger was nine months away from turning fifty-nine, at
which time he would have been able to give three years notice
of intent to retire pursuant to Article 5 of the share
repurchase agreement. (Id. at ¶ 28). A
retirement pursuant to Article 5 would have required
Benchmark to repurchase Bomberger's 150 shares for their
full net book value of $3, 925.15 per share, which was
significantly higher than both the original purchase price of
$100.00 per share and the $747.00 per share price stated in
the May 29, 2015 letter. (Id. at ¶ 32). Thus, by
terminating his employment before he turned fifty-nine,
Benchmark denied Bomberger more than $476, 000. (Id.
at ¶ 33).
submitted an Intake Questionnaire to the Delaware Department
of Labor (the "DDOL") on October 8, 2015, which was
118 days after his termination. (Id. at ¶ 36). The
document stated, in bold type, "THAT COMPLETION OF THE
ENCLOSED FORMS DOES NOT CONSTITUTE FILING A CHARGE OF
DISCRIMINATION." (D.I. 4-2 at 2). On October 26, 2015,
Bomberger filed a charge of discrimination with the DDOL
alleging violations of the DDEA and ADEA. (D.I. 4-4 at 2).
The DDOL determined that it did not have jurisdiction and
transferred Bomberger's complaint to the EEOC. (D.I. 4 at
¶ 37). On September 27, 2016, "[t]he EEOC issued
Bomberger a Notice of Right to Sue, " but Bomberger was
never issued a Delaware Right to Sue Notice by the DDOL.
(Id. at ¶ 38).
requires a complainant to provide "a short and plain
statement of the claim showing that the pleader is entitled
to relief" Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6) allows
the accused party to bring a motion to dismiss the claim for
failing to meet this standard. A Rule 12(b)(6) motion may be
granted only if, accepting the well-pleaded allegations in
the complaint as true and viewing them in the light most
favorable to the complainant, a court concludes that those
allegations "could not raise a claim of entitlement to
relief." Bell Ail. Corp. v. Twombly, 550 U.S.
544, 558 (2007).
'detailed factual allegations' are not required, a
complaint must do more than simply provide 'labels and
conclusions' or 'a formulaic recitation of the
elements of a cause of action."'Davis v.
Abington Mem'lHosp., 765 F.3d 236, 241 (3d Cir.
2014) (quoting Twombly, 550 U.S. at 555). I am
"not required to credit bald assertions or legal
conclusions improperly alleged in the complaint." In
re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d
198, 216 (3d Cir. 2002). A complaint may not be dismissed,
however, "for imperfect statement of the legal theory
supporting the claim asserted." Johnson v. City of
Shelby, 135 S.Ct. 346, 346 (2014).
complainant must plead facts sufficient to show that a claim
has "substantive plausibility." Id. at
347. That plausibility must be found on the face of the
complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). "A claim has facial plausibility when the
[complainant] pleads factual content that allows the court to
draw the reasonable inference that the [accused] is liable
for the misconduct alleged." Id. Deciding
whether a claim is plausible will be a "context-specific
task that requires the reviewing court to draw on its
judicial experience and common sense." Id. at
Violation of the DDEA (Count II)
Motion to Dismiss Count II of the Complaint is granted
because Bomberger did not timely file a charge of
discrimination with the DDOL as required by the
DDEA. The intake questionnaire submitted by
Bomberger 118 days after his termination does not constitute
a charge of discrimination. This Court, consistent with the
Supreme Court in Fed, Express Corp. v. Holowecki,
552 U.S. 389 (2008), has previously held that an intake
questionnaire is not charge of discrimination when the
questionnaire cannot "be construed as a request to take
action" and explicitly states that completion of the
form does not constitute a charge. See Hayes v. Delaware
State University, 726 F.Supp.2d 441, 453 (D. Del. 2010)
(holding intake questionnaire filed with DDOL that
specifically stated it "does not constitute the filing
of a charge" was not a charge despite similarities in
content between the two documents). The intake questionnaire
in this case, similar to the intake questionnaire in
Hayes, stated in in bold type, "THAT COMPLETION
OF THE ENCLOSED FORMS DOES NOT CONSTITUTE FILING A CHARGE OF
DISCRIMINATION." (D.I. 4-2 at 2). The DDOL did not
consider the questionnaire to be a charge, and it cannot be
construed as a request to take action because it does not
contain any specific requests for relief. Because the intake
questionnaire makes clear it is not a charge of
discrimination, and Bomberger only submitted an actual charge
more than 120 days after his termination, his claim is
time-barred by the statute.
argues that even if the intake questionnaire does not
constitute a charge of discrimination, the amendment to the
DDEA extending the filing deadline for a charge to 300 days
should apply retroactively to save his claim. (D.I. 11 at
16-18). I refuse to apply the amendment retroactively because
Benchmark's substantive rights will be affected.
Statutory amendments generally apply prospectively
"unless the legislature expressly states, to the
contrary, that the amendments shall be retrospective ... [or
the amendment] relates to practice, procedure or remedies and
does not affect substantive or vested rights."
Fountain v. State, 139 A.3d 837, 841 (Del. 2016)
(quoting Hubbard v. Hibbard Brown & Co., 633
A.2d 345, 354 (Del. 1993)). Retroactive application is not
appropriate if "a person's rights and obligations
will be affected." Konstantopoulous v. Westvaco
Corp., No. 90-146-CMW, 1992 U.S. Dist. LEXIS 9466, at
*19 (D. Del. June 19, 1992). In this case, the amendment to
the DDEA extending the filing deadline to 300 days does not
state that it applies retroactively. The amendment is not
necessarily procedural because retroactive application would
subject Benchmark to a claim which would not otherwise exist,
thereby affecting its rights and obligations. Therefore, the
amendment cannot be applied retroactively and Plaintiffs
claim is time-barred.
Violation of the Delaware Common Law Covenant of Good Faith