United States District Court, D. Delaware
pending before the Court are cross-motions for summary
judgment filed by Plaintiff and Defendant. (D.I. 53, D.I.
55). The Magistrate Judge has filed a Report and
Recommendation, which recommends granting summary judgment to
Defendant. (D.I. 68). Plaintiff has filed objections, to
which Defendant has responded. (D.I. 77, 78). I review the
objections to the Report and Recommendation de novo.
Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011). For
the reasons that follow, I overrule Plaintiffs objections
(D.I. 77) and adopt the Magistrate Judge's Report and
Recommendation (D.I. 68).
March 24, 2008, to April 16, 2014, Yolanda Dickerson,
Plaintiff, was employed by KeyPoint Government Solutions,
Inc., Defendant, a company that provides employment-screening
services to government agencies through field investigators.
(D.I. 1; D.I. 57-1, Exh. A at 29-30). Plaintiff worked as a
level I field investigator. (D.I. 56 at 3). Investigators are
usually assigned to work close to where they live but are on
occasion asked to undertake temporary duty ("TDY")
assignments outside their regular work areas. (D.I. 54 at 3;
D.I. 57-1, Exh. A at 122-41). As part of her job, Plaintiff
was required to to spend many hours writing and typing, and
in March 2011, she began to experience pain in her fingers,
hands, wrists, and arms. (D.I. 57-1, Exh. D). On March 17,
2011, she was diagnosed with work-related Carpal Tunnel
Syndrome in her wrists. (D.I. 56 at 3).
her employment, Plaintiff, an African American woman, filed a
first Charge of Discrimination with the Equal Employment
Opportunity Commission on November 9, 2012. (D.I. 57-1, Exh.
J). She filed a second charge on July 29, 2014, after her
termination. (D.I. 58-5, Exh. NN). Then, on August 1, 2016,
Plaintiff filed a complaint against Defendant, alleging
adverse actions amounting to discrimination and retaliation
prohibited under the Americans with Disabilities Act and
Title VII of the Civil Rights Act of 1964. (D.I. 1).
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."
Fed.R.Civ.P. 56(a). When determining whether a genuine issue
of material fact exists, the court must view the evidence in
the light most favorable to the non-moving party and draw all
reasonable inferences in that party's favor. Scott v.
Harris, 550 U.S. 372, 380 (2007); Wishkin v.
Potter, 476 F.3d 180, 184 (3d Cir. 2007). A dispute is
"genuine" only if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. Anderson v. Liberty Lobby, 477 U.S. 242,
under the Americans with Disabilities Act and Title VII are
evaluated under a burden-shifting analysis. Mowajy v.
Noramco of Delaware, Inc., 620 F.Supp.2d 603, 611 (D.
Del. 2009) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973)). First, aplaintiff must establish a
prima facie case of discrimination or retaliation.
Id. (citing McDonnell, 411 U.S. at 802);
Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d
Cir. 1997). Once the plaintiff has established a prima facie
case, the defendant must articulate a "legitimate,
nondiscriminatory" or "non-retaliatory" reason
for its conduct. Mowajy, 620 F.Supp.2d at 611;
Krouse, 126 F.3d at 500-01. Then, the burden shifts
back to the plaintiff, who "must demonstrate that the
reasons articulated by the defendant are merely a pretext for
discrimination" or "retaliation." Id.
at 611-12 (quoting Fuentes v. Perksie, 32 F.3d 759,
763 (3d Cir. 1994)); see also Krouse, 126 F.3d at
501 ("If the employer satisfies its burden, the
plaintiff must be able to convince the factfinder both that
the employer's proffered explanation was false, and that
retaliation was the real reason for the adverse employment
establish a prima facie failure to accommodate, an employee
must show: "(1) she is an individual with disability
under the ADA; (2) she can perform the essential functions of
her position with accommodation; (3) her employer had notice
of her alleged disability; and (4) the employer failed to
accommodate her." Conneen v. MBNA America Bank,
N.A., 182 F.Supp.2d 370, 376-77 (D. Del. 2002).
establish a prima facie case of discrimination, an employee
must show: (1) she was a member of a statutorily-protected
class; (2) she was qualified for the position; (3) she was
aggrieved by an adverse employment action despite being
qualified; and (4) the adverse employment action occurred
under circumstances giving rise to an inference of illegal
discrimination. Sarullo v. U.S. Postal Serv., 352
F.3d 789, 797 (3d Cir. 2003).
establish a prima facie case of retaliation, a plaintiff must
show: (1) she was engaged in a protected employee activity;
(2) adverse action by the employer occurred either after or
contemporaneous with the employee's protected activity;
and (3) a causal connection exists between the employee's
protected activity and the employer's adverse action.
Moore v. City of Phila., 461 F.3d 331, 340-41 (3d
Magistrate Judge concluded that all of Plaintiff s failure to
accommodate claims were time-barred. (D.I. 68 at 9-12, 25).
Plaintiff objects, arguing that she made a request for
accommodation on March 22, 2014, to Cynthia Romero, her Field
Manager (see D.I. 1, ¶ 29), and that her second
charge on July 29, 2014, included the March 22 request. (D.I.
77 at 2-3). It is included. (D.I. 58-5, Exh. NN at 15).
briefing on the summary judgment motion was focused on the
failure to accommodate claims from 2011 (see D.I. 54
at 23-24; D.I. 56 at 10-17; D.I. 57 at 10-11; D.I. 58 at
25-26; D.I. 59 at 10-13; D.I. 60 at 2-3), which were
time-barred. While there was some mention of the March 22
communication as being part of the continuing violation,
Plaintiff never argued that it was a stand-alone ...