United States District Court, D. Delaware
Sherry Szczuka ("Szczuka") filed this action
against the State of Delaware, the Delaware Department of
Services for Children, Youth and Their Families, Carla L.
Benson-Green, Nancy Dietz, and Mitchell Rock (collectively,
the "Defendants") alleging employment
discrimination and retaliation in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2OOOe,
et seq. (D.I. 1). The court has subject matter
jurisdiction over this action pursuant to 28 U.S.C. §
1331 and42 U.S.C. § 2OOOe-5(f)(3). Defendants have filed
a motion to dismiss part of the Szczuka's amended
complaint pursuant to Fed.R.Civ.P. 12(b)(6). (D.I. 18).
Specifically, Defendants ask the court to dismiss as
time-barred any allegations of gender discrimination and
retaliation occurring before September 1, 2013. (Id.
at 7). For the reasons stated below, Defendants' partial
motion to dismiss is granted.
was an employee of the State of Delaware, within its
Department of Services for Children, Youth and Their Families
(the "DSCYF") for nearly 23 years. (D.I. 16
¶¶ 2, 10). Beginning in January 2011, Szczuka
served as a Training Coordinator and Youth Rehabilitation
Counselor within the DSCYF's Division of Youth
Rehabilitation Services. (Id. at ¶ 27). Szczuka
has filed three complaints, or "charges, " with the
Delaware Department of Labor ("DDOL") based on her
employment experiences with Defendants.
first charge ("Charge I") was filed on October 16,
2013. (Id. at ¶ 37; see also D.I.
18-1). This charge was based on a "Failure to
Promote" and "Discipline." (See D.I.
18-1). Specifically, on July 1, 2013, Szczuka applied for the
position of Youth Rehabilitation Program Manager. (D.I. 16 at
¶ 31). Defendants, however, did not select Szczuka to
interview for the position. (Id. at ¶ 36).
Instead, Defendants filled the position of Youth
Rehabilitation Program Manager with "a less qualified
male candidate." (Id. at ¶ 37). On or
around August 6, 2013, Szczuka received a three-day
suspension. (Id. at ¶ 34). The complaint does
not explain what led to the suspension, but does allege that
the suspension was "unwarranted." (Id.).
Szczuka received a right-to-sue letter for Charge I on or
around October 9, 2014. (D.I. 18-1).
the first charge was pending, Szczuka filed a second charge
("Charge II") on June 30, 2014. (D.I. 18-2). Charge
II alleges gender discrimination and retaliation around the
"Terms & Conditions" of Szczuka's
employment. (Id.). Specifically, in December 2013,
Defendants' curtailed Szczuka's duties and
responsibilities. (D.I. 16 ¶ 38; D.I. 18-2). Then, in
January 2014, Defendants gave Szczuka a false performance
evaluation at her annual review. (D.I. 16 ¶ 39).
Defendants stated that Szczuka's 2013 performance only
"[met] expectations." (Id.). Finally,
Defendants gave Szczuka's male coworkers better training
opportunities, such as serving as acting Assistant
Superintendent, which put her at a disadvantage for career
advancement. (D.I. 16 ¶ 42; D.I. 18-2). Szczuka received
a right-to-sue letter for Charge II on or around August 31,
2016. (D.I. 18-2). On November 23, 2016, Szczuka initiated
this action by filing a complaint based on the allegations in
Charges I and II. (D.I. 1).
the second charge was pending, Szczuka filed a third charge
("Charge III") on October 8, 2015. (D.I. 18-3).
This charge was based on the failure to promote.
(Id.\ D.I. 16 ¶ 40). In particular, Defendants
refused to interview Szczuka for the position of Assistant
Youth Rehabilitation Superintendent. (D.I. l6¶4O).
Szczuka received a right-to-sue letter for Charge III on or
around February 14, 2017 and, thereafter, amended her
complaint in this action. (D.I. 16, D.I. 18-3).
STANDARD OF REVIEW
survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a
plaintiff must plead facts sufficient to "state a claim
to relief that is plausible on its face." Ashcroft
v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting
BellAtl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Courts must accept all well-pleaded factual
allegations in the complaint as true and draw all reasonable
inferences in favor of the plaintiff. In re Rockefeller
Ctr. Prop., Inc. Sec. Litig., 311 F.3d 198, 215 (3d Cir.
2002). The court's review is limited to the allegations
in the complaint, exhibits attached to the complaint,
documents incorporated by reference, items subject to
judicial notice, and matters of the public record. Mayer
v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010); DM.
exrel. Ray v. Phila. Housing Auth., 613 Fed.App'x
187, 189 (3d Cir. 2015); El-Hewie v. Bergen Cty.,
348 Fed.App'x 790, 794 (3d Cir. 2009).
plaintiff bringing an employment discrimination claim under
Title VII must first exhaust her administrative remedies by
complying with the procedural requirements set forth in 42
U.S.C. § 2000e-5. Thompson v. Brandywine School
Dist., 478 Fed.App'x 718, 720 (3d Cir. 2012). In
particular, a plaintiff must file a charge with the Equal
Employment Opportunity Commission ("EEOC") within
180 days of the allegedly unlawful employment practice, or
within 300 days if the charge is filed instead with a stage
agency. 42 U.S.C. § 2OOOe-5(e)(1); Ernandez v.
Lynch, 2011 WL 4824155, at *1 (3d Cir. Oct. 12, 2011).
If the EEOC or state agency dismisses the charge, then the
plaintiff must bring an action in federal district court
within 90 days of receiving a right-to-sue letter. 42 U.S.C.
§ 2OOOe-5(f)(1); McGovern v. City of Phila.,
554 F.3d 114, 115 n.l (3d Cir. 2009). "Both
requirements-exhaustion and filing-are non-jurisdictional
prerequisites, akin to statutes of limitations."
Commc'ns Workers of Am. v. N.J. Dept. of Pers.,
282 F.3d 213, 216 (3d Cir. 2002).
did not comply with the 90 day filing requirement for Charge
I. (D.I. 20 ¶ 2). She received a right-to-sue letter for
Charge I on or around October 9, 2014, but did not bring an
action in federal district court until November 23, 2016,
over two years later. (Id.; D.I. 1). Szczuka did,
however, comply with the 90 day filing requirement for
Charges II and III. Accordingly, Defendants ask the court to
dismiss any allegations of gender discrimination and
retaliation occurring more than 300 days before Charge II was
filed with the DDOL, i.e., any allegations before September
1, 2013. This would include all allegations in Charge I.
(D.I. 18 ¶¶ 6-8). Szczuka argues that; the
allegations in Charge I should still be considered under the
continuing violation doctrine. (D.I. 20 ¶ 2).
continuing violation doctrine "allows courts to consider
conduct that would ordinarily be time barred as long as the
untimely incidents represent an ongoing unlawful employment
practice." Aubrey v. City of Bethlehem, Fire
Dept., 466 Fed.App'x 88, 92-93 (3d Cir. 2012)
(quoting Nat'l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 107 (2002)). "To allege a continuing
violation, the plaintiff must show that all acts which
constitute the claim are part of the same unlawful employment
practice and that at least one act falls within the
applicable limitations period." Mandelv. M &Q
Packaging Corp., 706 F.3d 157, 165-66 (3d Cir. 2013).
The continuing violation doctrine may not be used, however,
to "preserve time barred claims for discrete
discriminatory acts." Aubrey, 466 Fed.App'x
at 93. The charge "must be filed within the 180-or
300-day time period after the discrete discriminatory act
occurred." Nat'l R.R. Passenger, 536 U.S.
I is based on Defendants' failure to promote Szczuka to
Youth Rehabilitation Program Manager and suspending her for
three days in August 2013. (D.I. 18-1). Failure to promote
and wrongful discipline are quintessential discrete
discriminatory acts. See Nat'l RR. Passenger,
536 U.S. at 114 (listing examples of discrete discriminatory
acts including "failure to promote");
O'Connor v. City of Newark,440 F.3d 125, 127
(3d Cir. 2006) (providing a "non-exhaustive list of
discrete acts for which the limitations period runs from the
act" that includes "failure to promote" and
"wrongful discipline"). Accordingly, the continuing
violation doctrine cannot be used to save the allegations
raised in Charge I. See Smith v. Township Of East
Greenwich, 344 Fed.App'x 740, 744 (3d Cir. 2009)
(stating that the district court "properly rejected
[plaintiffs] continuing violation theory because each alleged
act of ...