United States District Court, D. Delaware
ELISHA L. GRESHAM, Plaintiff,
STATE OF DELAWARE DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Defendant.
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.
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
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
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.)
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;
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).
STANDARDS OF LAW
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).
'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).
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