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Gresham v. State, Department of Health and Social Services

United States District Court, D. Delaware

February 5, 2018




         The plaintiff Elisha L. Gresham ("Gresham"), who proceeds pro se and has been granted leave to proceed in forma pauperis, filed this action alleging employment discrimination. (D.I. 2.) Before the court is the defendant's motion to dismiss. (D.I. 10.) Gresham opposes the motion.


         Gresham was employed by the defendant Delaware Department of Health and Human Social Services ("DHSS") as a purchasing services coordinator II. (D.I. 2 at 4.) She alleges that, from her second interview in November 2013 until her termination from employment in February 2016, "management continued attacking [her] from all aspects: disability, discrimination, and harassment because they hired [her] into a position they didn't want but the Department Director at the time felt [that she] was a better matched candidate for the position. (Id.) She alleges that management eventually forced her from her merit position with the State.[1](Id.)

         Gresham alleges the attacks from management had gotten so bad and were so severe that her disability worsened and her physicians had her taken out of work. (Id. at 5.) She alleges that the Department of Labor and several of her doctors confirmed her disability. (Id.) She alleges DHSS approved the decision of the State contracted life insurance company to stop her short term disability payments and the requirement for her to return to work sooner than her doctor authorized. (Id.) Gresham alleges this resulted in DHSS terminating her for failure to return to work, and it made up many untrue/false statements about her job performance as well as racial comments and gender preferences to her personally in an attempt to justify the termination. (Id.)

         It appears that Gresham filed a charge of discrimination. The complaint refers to EEOC # 846-2015-28851. (Id. at 6.) The complaint does not indicate when the charge was filed and it was not provided to the court. Gresham states that the EEOC eventually authorized her "right to sue" letter from the Federal Department of Justice, No. 17C201600302 (Fed. DOJ). (Id.) Gresham does not indicate when she received the notice of suit rights, and it was not provided to the court. She filed her complaint on December 27, 2016. She seeks compensatory damages. (Id. at 7.)

         DHSS moves for dismissal (D.I. 10) pursuant to Fed.R.Civ.P. 8(a) and 12(b)(6) on the grounds that: (1) Gresham failed to attached a right to sue notice authorizing this lawsuit;

         (2) DHSS is immune from suit to the extent Gresham seeks recovery under the Americans with Disabilities Act of 1990, as amended ("ADA"), 42 U.S.C. §§ 12101, etseq:, (3) and Gresham fails to state plausible claims against DHSS because she failed to complete the required administrative process. (See D.I. 10).


         In reviewing a motion filed under Fed.R.Civ.P. 12(b)(6), the court must accept all factual allegations in a complaint as true and take them in the light most favorable to plaintiff. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Because Gresham proceeds pro se, her pleading is liberally construed and her complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson, 551 U.S. at 94. A court may consider the pleadings, public record, orders, exhibits attached to the complaint, and documents incorporated into the complaint by reference. Tellabs, Inc. v. Makor Issues & Rights, Ltd, 551 U.S. 308, 322 (2007). A Rule 12(b)(6) motion maybe 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." BellAtl. Corp. v. Twombly, 550 U.S. 544, 558 (2007).

         "Though '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 7 Hosp., 765 F.3d 236, 241 (3d Cir. 2014) (quoting Twombly, 550 U.S. at 555). The court is "not required to credit bald assertions or legal conclusions improperly alleged in the complaint." In re Rockefeller Or. 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, U.S., 135 S.Ct. 346, 346 (2014).

         A 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 679.


         A. ...

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