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Banner v. Department of Health and Social Services Divison for Visually Impaired

United States District Court, D. Delaware

March 19, 2018


          Tuesday S. Banner, New Castle, Delaware, Pro Se Plaintiff.

          Joseph Clement Handlon, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for Defendant.


          STARK, U.S. District Judge:


         Plaintiff 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.[1] (D.I. 37, 39, 40).


         The 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.[2] 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)

         The Second Amended Complaint.

         The 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.)

         On 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 Amended Complaint.

         Evidence of Record.

         In 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).

         When 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.)

         Plaintiff 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)

         The 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)

         According 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 ΒΆ 21) On March 8, 2012, Plaintiff ...

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