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Tolliver v. Trinity Parish Foundation

United States District Court, D. Delaware

August 2, 2017


          CA. M. Denise Tolliver, Camden, Delaware, Pro Se Plaintiff.

          Lauren E.M. Russell, Esquire, Scott A. Holt, Esquire, and Margaret M. DiBianca, Esquire, Young Conaway Stargatt & Taylor, LLP, Wilmington, Delaware. Counsel for Defendants.


          STARK, U.S. District Judge


         Plaintiff M. Denise Tolliver ("Tolliver" or "Plaintiff), who proceeds pro se, commenced this employment discrimination action on August 8, 2014. The Second Amended Complaint (D.I. 25) is the operative pleading and raises claims against Defendants Trinity Parish Foundation ("TPF"), Delaware Futures, Inc. ("DFI"), Reverend Patricia Downing ("Rev. Downing"), and Maile Statuto ("Statuto").

         Presently before the Court are Defendants' Motion for Summary Judgment (D.I. 132), opposed by Tolliver, [1] and Plaintiffs Motion to Amend, [2] Motion to Expedite, and Motion to Amend Scheduling and for Rule to Show Cause (D.I. 166, 168, 173). For the reasons that follow, the Court will grant Defendants' motion and will deny Plaintiffs motions as moot.


         The Second Amended Complaint contains fourteen counts, as follows:

(1) Count I against TPF and DFI alleging race discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq., and the Delaware Discrimination in Employment Act ("DDEA"), 19 Del. C. §§ 710 et seq.;
(2) Count II against all Defendants alleging race discrimination pursuant to 42 U.S.C. § 1981;
(3) Count III against TPF and DFI alleging age discrimination pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621, et seq., and the DDEA;
(4) Count IV against all Defendants alleging retaliation in violation of Title VII, the ADEA, and the DDEA;
(5) Count V against Rev. Downing and Statuto and Count VI against TPF and DFI alleging civil rights violations under 42 U.S.C. § 1983;
(6) Count VII against TPF and DFI alleging wrongful termination/breach of contract under Delaware law;
(7) Count VIII against all Defendants alleging intentional infliction of emotional distress under Delaware law;
(8) Count IX against all Defendants alleging violations under Delaware law of the whistleblower provisions of the Sarbanes-Oxley Act ("SOX"), 18 U.S.C. § 1514A, as set forth in the Delaware Whistleblower's Protection Act ("DWPA"), 19 Del. C. §§ 1701-08, etseq.;
(9) Count X against all Defendants alleging violations of the Employee Retirement Income Security Act f ERISA"), 29 U.S.C. § 1140 and § 1141;
(10) Count XI against all Defendants alleging defamation under Delaware law;
(11) Count XII against all Defendants alleging disability discrimination under the Rehabilitation Act of 1973 ("Rehab Act"), 29 U.S.C. §§ 701, etseq.;
(12) Count XIII against DFI alleging violations of confidentiality and invasion of privacy under Delaware law; and
(13) Count XIV against TPF and Rev. Downing for tortious interference under Delaware law. (D.I. 25)

         Both TPF and DFI are nonprofit corporations. (Id. at 2) TPF is DFI's landlord. (Id.) The Second Amended Complaint alleges that TPF and DFI were Tolliver's joint employers. (Id. at 2) Tolliver was DFI's executive director from June 2001 until her employment was terminated on July 15, 2013. (D.I. 134 at 4; D.I. 135 at 44, 52, 53)

         Tolliver is a Black female over the age of 40. (D.I. 25 at 2) On February 23, 2013, Tolliver requested a medical leave for "heart condition complications." (D.I. 135 at 63-64) A physician's statement dated February 28, 2013 states that Tolliver "ceased work due to this impairment" on February 25, 2013, and in the section indicating the date through which the limitation will last, it states: "uncertain tentative 3/8/13." (D.I. 157 at 1)

         On February 24, 2013, Tolliver advised DFI's Board of Directors (the "Board"), via email, of her leave of absence beginning the next day, and she was placed on short-term disability leave ("STD") through DFI's insurer, The Hartford. (D.I. 135 at 14-15, 19-21, 64, 65; D.I. 148 at 3) In the email, Tolliver asked that Evette Houston ("Houston"), who had been trained to be Tolliver's successor, handle all programming matters in her supervision of the staff; that Andrea Rotsch ("Rotsch") work with bookkeeper Denise Foley ("Foley") in all financial matters; and that Board member Bruce Kallos ("Kallos") not be involved in day-to-day operations for programing. (D.I. 135 at 14-15)

         DFI became aware that Tolliver was been working while on medical leave. (D.I. 136 at 75) In turn, DFI contacted its landlord, TPF, and asked it to change the locks to the building. (D.I. 135 at 23; D.I. 136 at 75) In addition, DFI suspended Tolliver's access to the DFI email system. (D.I. 135 at 26; D.I. 136 at 75)

         On the afternoon of March 6, 2013, Houston left Tolliver a telephone message, telling Tolliver that she had been dropped from the DFI email account and that Houston had been warned not to contact Tolliver about DFI business through its email account. (D.I. 163 at 8) Houston also mentioned that the Board was moving in the direction to place Nicole Sailer ("Sailer") on the Board, and that Houston believed her days with DFI "were numbered." (Id.) That evening, Houston was appointed acting executive director during Tolliver's absence. (D.I. 136 at 13; D.I. 139 at 17) Houston is Black and under the age of 40. (D.I. 136 at 13-16) Sailer provided a sworn statement that she never expressed a desire to serve as executive director of DFI and was never considered for the position. (D.I. 135 at 46)

         On March 7, 2013, Tolliver asked for confirmation of her employment status, noting that she was on excused medical leave through March 8, 2013, and that access to her DFI email account had been terminated. (D.I. 135 at 21) She was advised that she was on disability leave and, according to personnel policy confirmed at the DFI Board meeting on March 6, 2013, she was to have no contact with her workplace. (Id.) In turn, Tolliver requested "a letter which explains in detail the Board's decision and 'personnel policy.'" (Id.) Tolliver testified that, following the March 7, 2013 notice, she did not return to work. (D.I. 136 at 11)

         On April 1 and 3, 2013, Kallos, the DFI Board president wrote, and then emailed, Tolliver and requested she provide medical documentation explaining the nature of her medical limitations and how long she expected to be absent from work. (D.I. 135 at 27-31, 36-37) On April 3, 2013, Tolliver submitted a grievance to the Board's executive committee and complained that the Board's requests for information were a form of "on-going intimidation." (D.I. 135 at 32) On April 9, 2013, Tolliver's physician provided a note that Tolliver was "unable to return to work until July 1, 2013." (Mat 13)

         On April 19, 2013, Statuto, as chair of the Board's personnel committee and chair of the grievance committee, responded to Tolliver's grievance, advising her that the executive committee had reviewed her allegations and could not conclude that she had been subjected to harassment or intimidation concerning her employment with DFI. (D.I. 135 at 36-37; D.I. 136 at 58-60, 74-75)

         On May 6, Tolliver replied to Statuto's letter, and thanked the Board for its support of her request to return to work "at such time [as] I am able." (D.I. 135 at 38) The letter referred to incidents of "actionable harassment, " as follows: (1) DFI failed to accurately report Tolliver's workplace injury that resulted in her disability; (2) DFI failed to investigate a reported November 19, 2012 assault and/or make available written results of the investigation; (3) DFI executed a workplace eviction and refused to provide Tolliver the written policy of disability and of no contact with workplace; and (4) her disability accommodation should be regarded by the Board. (Id.) Tolliver requested that her salary continue while she was on STD. (Id.)

         On May 13, 2013, Statuto responded to each of Tolliver's claims and advised her of the conclusion that the claims were without merit. (D.I. 135 at 39-40) Statuto also explained that Tolliver's letter "misunderstands or misrepresents the Board's granting of pier] request for a medical leave of absence through July 1, 2013, " and that "the Board [did] not approve an open-ended leave" or request for reinstatement "at such time [as she was] able to return to work." (Id. at 40) The letter acknowledged Tolliver's request for continuation of her salary and reimbursement of medical co-pays while on a leave of absence and advised Tolliver that "it is not the policy or practice of [DFI] to continue to pay an employee's salary while that employee is eligible for and receiving short-term disability payments;"[3] DFI further declined to institute a policy or practice with respect to medical co-pay reimbursement. (Id.)

         On May 17, Tolliver wrote to the Board and advised it of her hostile work environment -discrimination claim based upon harassment in the form of workplace eviction-lockout directed at her disability and a retaliation claim; the latter claim was based on DFI's May 13, 2013 letter allegedly having been written "in contradiction to April 9th pertaining to Board approved leave, " and on Tolliver allegedly having been "black listed" as a result of the DFI disability no workplace contact practice. (Id. at 42) In addition, Tolliver advised that she had not received her STD compensation "per policy from [DFI] nor its insurance provider, the Hartford." (Id.)

         A May 24, 2013 physician's note indicated that Tolliver was being followed by a cardiologist, who advised her to avoid strenuous physical activity until the completion of an evaluation. (D.I. 157 at 2) On May 28, the Board was advised that Tolliver had retained counsel. (D.I. 148 at 24) On June 10, 2013, Tolliver's claim for long-term disability ("LTD") benefits was approved and, effective May 27, she was placed on LTD. (Id. D.I. 135 at 48; D.I. 148 at 25) The initial letter advised that no benefits would be payable beyond May 26, 2015.[4] (Id.) On August 28, 2013, Tolliver's LTD benefits were terminated after The Hartford completed a review of Tolliver's claim and determined that the information it obtained did not support a claim of total disability beyond August 28, 2013. (D.I. 135 at 48; D.I. 148 at 36)

         On June 20, 2013, Tolliver's attorney sent DFI a letter that stated Tolliver was in the process of filing a charge of discrimination. (D.I. 135 at 43) The letter advised DFI that Tolliver "is not presently able to perform the essential duties of her job as executive director . . . due to reasons . . . caused by unlawful actions taken by [DFI]." (Id.) The letter went on to state that Tolliver's claim for LTD had been approved and that, should her condition improve to a point where she could perform all of her duties, she would appreciate the opportunity to resume her job as executive director. (Id.) This was the last communication Tolliver's attorney had with DFI on her behalf prior to her termination. (D.I. 136 at 10, 11) Tolliver herself had no communication with DFI between June 20, 2013 and August 3, 2013, and was unaware of any communication by her attorney with DFI during that period. (Id. at 12-13) Tolliver explained that they "were waiting to hear back from the June 20th letter." (Id. at 17)

         On August 3, 2013, Tolliver received a letter via certified mail, dated July 15, 2013, advising her that her employment was terminated, effective immediately, on the grounds that: (1) Tolliver's leave of absence was approved through July 1, 2013; (2) she did not return to work on July 1, 2013; (3) her attorney represented to the Board that Tolliver had applied, and received, LTD benefits; (4) it was the Board's understanding that Tolliver had represented to its LTD carrier that she continued to be unable to work for medical reasons, and in the opinion of Tolliver's treating physicians the situation would continue indefinitely; and (5) DFI had no legal obligation to grant an indefinite leave of absence and could not do so. (D.I. 135 at 44)

         On July 17, 2013, DFI posted a notice for application to fill the position of executive director. (D.I. 139 at 28) At some point after Tolliver's termination of employment, interim executive director Houston was selected to replace Tolliver on a permanent basis. (D.I. 136 at 13-14) Houston held this position until her resignation on September 1, 2016. (Id. at 75)

         Tolliver filed a charge of discrimination on July 24, 2013 alleging race and age discrimination, as well as retaliation. (D.I. 1 Ex.) She received a right to sue letter dated June 3, 2014 and a notice of suit rights dated March 3, 2015. (D.I. 1 Ex.; D.I. 11)

         On October 10, 2013, Tolliver received an email from an individual who had learned at the DFI annual meeting that Tolliver had retired. (D.I. 139 at 38) The email stated, "I hope you are feeling better and taking good care of yourself." (Id.)

         Defendants move for summary judgment on the grounds that: (1) all discrimination and retaliation claims against TPF and Rev. Downing must be dismissed because no employment relationship exists; (2) as to Counts I through IV, Tolliver cannot present evidence sufficient to prove a prima facie claim of discrimination or retaliation; (3) Counts V and VI, raised pursuant to 42 U.S.C. § 1983, should be dismissed because all Defendants are private actors; (4) Count VII is preempted; (5) Tolliver cannot satisfy the elements of the tort claims raised in Counts VIII, XI, and XIII of the Complaint; (6) Tolliver has not engaged in protected activity as is required for the whistleblower claims raised in Count IX; (7) Tolliver cannot present evidence sufficient to meet the statutory requirements for relief on the ERISA claim raised in Count X; (8) the Rehab Act claim in Count XII should be dismissed because DFI does not receive federal financial assistance as required for jurisdiction under the statute, and Tolliver cannot present evidence sufficient to prove a prima fade claim of disability discrimination; and (9) Count XTV should be dismissed because, at all times, TPF and Rev. Downing were acting upon DFFs request, but DFI cannot be found to have tortiously interfered with its own employment contract with Tolliver.


         Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). An assertion that a fact cannot be-or, alternatively, is-genuinely disputed must be supported either by citing to "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials, " or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A) & (B). If the moving party has carried its burden, the nonmovant must then "come forward with specific facts showing that there is a genuine issue for trial." Matsushita, 475 U.S. at 587 (internal quotation marks omitted). The Court will "draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

         To defeat a motion for summary judgment, the nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586; see also Podobnik v. U.S. Postal Serv.,409 F.3d 584, 594 (3d Cir. 2005) (stating party opposing summary judgment "must present more than just bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue") (internal quotation marks omitted). The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment;" a factual dispute is genuine only where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty hobby, Inc.,477 U.S. 242, 247-48 (1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (internal citations omitted); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (stating entry of summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial"). Thus, the "mere ...

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