United States District Court, D. Delaware
TUESDAY S. BANNER, Plaintiff,
DEPARTMENT OF HEALTH AND HUMAN SERVICES DIVISON FOR THE THE VISUALLY IMPAIRED, Defendant
Tuesday S. Banner, New Castle, Delaware, Pro Se Plaintiff.
Clement Handlon, Deputy Attorney General, Delaware Department
of Justice, Wilmington, Delaware. Counsel for Defendant.
U.S. District Judge:
Tuesday S. Banner ("Plaintiff), who proceeds pro
se and was granted in forma pauperis status,
filed this employment discrimination action on September 30,
2013, pursuant to Tide VII of the Civil Rights Act of 1964,
as amended ("Tide VII"), 42 U.S.C. §§
2000e, et seq., and the Delaware Discrimination in
Employment Act ("DDEA"), 19 Del. C. §§
710 et sea. (D.I. 2) The matter proceeds on the
second amended complaint. (D.I. 24) The Court has
jurisdiction pursuant to 28 U.S.C. § 1331. Presendy
before the Court is the motion for summary judgment of
Defendant Delaware Department of Health and Human Services,
Division for the Visually Impaired ("Defendant")
and Plaintiffs opposition thereto. (D.I. 37, 39, 40).
case proceeds on a charge of discrimination, No.
17C-2012-00342, dated April 16, 2012, in which Plaintiff
alleges discrimination occurred on March 16,
2012. The charge complains of retaliation and
discrimination based upon religion (Muslim) with the adverse
employment action being a one-day suspension. The charge
states that the suspension was "due to retaliation for
religious discrimination and sexual harassment" based on
"previous discrimination complaints to human
resources." (D.I. 14 at 5)
Second Amended Complaint.
Second Amended Complaint alleges that Plaintiff filed
grievances with Human Resources on January 27, 2010 that
pertained to disability and religious discrimination as well
as sexual harassment. (D.I. 24 at ¶ 22) A Step II
grievance hearing was held on January 13, 2011, and the
grievance was denied as untimely and without merit.
(Id. at ¶ 27) Plaintiff alleges that throughout
2011, Plaintiff was approached by Robert Doyle
("Doyle") who made repeated comments of a sexual
and religious nature. (Id. at ¶ 29) Plaintiff
did not make a formal complaint. Instead, she informed a
Human Resources representative of Doyle's behavior, but
received no assistance. (Id.) Plaintiff alleges that
on February 20, 2012, Doyle approached her "in an
uncomfortable manner" and tried to engage her in a
non-work related conversation and then "stormed
away" because Plaintiff dismissed his negative remarks.
(Id. at ¶ 35) Plaintiff alleges that on the
same day, Doyle saw Plaintiff and a Muslim consumer getting
into Plaintiffs car and immediately believed that she was
"up to no good." (Id.)
February 28, 2012, Plaintiff was informed by Vocational
Rehabilitation Administrator Helen Harper
("Harper") that she had been directed by Doyle to
suspend Plaintiff for leaving the campus a week earlier.
(Id. at ¶ 21) The next day, Senior Vocational
Rehabilitation Counselor Genelle Fletcher
("Fletcher") told Plaintiff that she would be
receiving a one-day suspension for failing to adhere to
supervisory directives and not following the chain of command
for out-of-office breaks. (Id. at ¶ 32)
Plaintiff alleges that Fletcher investigated the matter and
was advised that Plaintiff had informed Harper she was taking
a break as usual. (Id. at ¶ 33) Fletcher
reported the information to Doyle, who instructed Fletcher to
"suspend Plaintiff anyway and she did."
(Id.) Plaintiff served the one-day suspension in
early to mid-March. On March 20, 2012, Plaintiff complained
to Human Resources that she was tired of being sexually
harassed by Doyle and asked what could be done. (Id.
at ¶ 37) At that point, Plaintiff filed a charge of
discrimination alleging religious discrimination and
retaliation. (D.I. 14 at 5) The matter proceeds on the charge
of discrimination, No. 17C-2012-00342, and the allegations
found in paragraphs 1, 4, 5 through 42, and 71 of the Second
2010, Plaintiffs immediate supervisor was Fletcher, a
vocational senior counselor who supervised Defendant's
administrative and employment specialists. (D.I. 48 at
¶¶ 2-3) On January 15, 2010, Plaintiff submitted
three grievances. One concerned pay for her new position and
harassment over her right to take time off (D.I. 14 at 7);
one concerned the unjust hiring of another person for a
position Plaintiff had applied for (id. at 26); and
one complained of actions taken against her when she took
time off to care for her sick children (id. at 28).
Plaintiffs yearly performance review took place in October
2010, Fletcher instructed Plaintiff to improve her
punctuality. (D.I. 37-1 at Ex. A; D.I. 38 at ¶ 5) In
March 2011, Fletcher addressed, in writing, Plaintiffs
punctuality issues and identified instances during the past
three months when Plaintiff had either been late to work or
her workday whereabouts were unaccounted for. (D.I 37 at Ex.
B; D.I. 38 at ¶ 9) The letter, dated March 24, 2011, set
forth the times during the month of March when Plaintiffs
whereabouts were unknown to her supervisors, as follows: (1)
on March 1, 2011, Plaintiff was missing from the office from
10:00 a.m. until noon; (2) on March 10, 2011, Plaintiff left
her desk for three hours and during that time her whereabouts
were unknown to her supervisors; and (3) on March 15, 2011,
Plaintiff was missing from work for approximately two hours,
from 10 a.m. until noon. (D.I. 37-1 at Ex. B) The March 24,
2011 letter advised Plaintiff that her behavior was
unacceptable, and Plaintiff was instructed that, before
leaving her desk for more than 10 minutes, she was to notify
Fletcher or, if Fletcher was unavailable, to notify Harper.
(Id.) Fletcher reminded Plaintiff that her habitual
tardiness was unacceptable and pointed out that Plaintiff was
late to work 12 of the past 19 workdays. Fletcher told
Plaintiff she expected her to report to work at the 8:30 a.m.
scheduled time. (Id.) Plaintiff was also told that
if she was going to be late, she was required to inform
either Fletcher or speak to a live person (i.e., no messages)
on the team by 8 a.m. that morning. (Id.)
requested an accommodation to help her balance her work and
parental responsibilities. (Id. at Ex. C) In
November 2011, Defendant agreed to Plaintiffs request for an
alternative work schedule. (D.I. 37-1 at Ex. C; D.I. 38 at
¶ 13) The accommodation allowed Plaintiff to leave work
each day from 3 p.m. to 4:15 p.m., so that she could pick up
her children and return to work. (D.I. 37-1 at Ex. C; D.I. 38
at ¶ 13) The November 1, 2011 memorandum that authorized
the accommodation admonished Plaintiff to be punctual and
warned her that continued tardiness would result in
discipline. (D.I. 37-1 at Ex. A; D.I. 38 at ¶ 15)
affidavit of Gregory C. Hubbard ("Hubbard") states
that on the morning of February 20, 2012, Doyle approached
Plaintiff at her work station while Plaintiff and Hubbard
were talking. (D.I 14 at 45) As Hubbard left, he heard Doyle
ask Plaintiff, "is that your new boyfriend?"
(Id.) On February 20, 2012, Plaintiff was seen
leaving the office; she was gone for approximately 30 minutes
and, when asked, stated that she went to a convenience store.
(D.I. 38 at ¶¶ 17-19) According to Hubbard, he was
with Plaintiff when she left the office and Doyle, who was in
the parking lot, saw Hubbard and Plaintiff as they were
getting into her car. (D.I. 14 at 45)
to Fletcher, Plaintiff left the workplace despite the
instruction that she was to inform either Fletcher or Harper
whenever she left her desk for more than ten minutes.
(Id. at ¶ 18) According to Plaintiff, she
notified a superior and was given permission to leave the
work premises. (D.I. 14 at 16) Fletcher states that, because
Plaintiff failed to properly notify her supervisors when
leaving the office, her calendar and badge entries were
reviewed. (D.I. 38 at ¶ 20) The review revealed that
Plaintiff had been late to work ten times during the past
month and, sometimes, she was over 30 minutes late.
(Id.) According to Fletcher, because Plaintiff had
repeated tardiness and unauthorized absences from work,
Fletcher suspended Plaintiff for one day without pay.
(Id. at ¶ 21) On March 8, 2012, Plaintiff