United States District Court, D. Delaware
ROBERTA L. ROBERSON, Plaintiff,
CITY OF WILMINGTON, et al., Defendants.
Roberta L. Roberson, Wilmington, Delaware, Pro Se Plaintiff.
Holland, Assistant City Solicitor, City Solicitor's
Office, Wilmington, Delaware. Counsel for Defendant City of
M. Geren, Esquire, Freedman and Lorry, P.C., New Castle,
Delaware. Counsel for Defendants AFSCME Local 1102 and
Delaware Public Employees Council 81.
Clement Handlon, Deputy Attorney General, Delaware Department
of Justice, Wilmington, Delaware. Counsel for Delaware
Unemployment Insurance Appeal Board.
U.S. DISTRICT JUDGE
Roberta L. Roberson ("Plaintiff), who proceeds pro
se and was granted in forma pauperis status,
filed this action on February 10, 2017. Plaintiff alleges
wrongful termination of her employment and violations of: (1)
Section 301 of the Labor Management Relations Act
("LMRA"), 29 U.S.C. § 185; (2) Section 8(b) of
the National Labor Relations Act ("NLRA"), 29
U.S.C. § 158(b); (3) interference and retaliation under
the Family Medical Leave Act ("FMLA"); (4) Tide 19
- 1200-1201 from Delaware's Unemployment Insurance Appeal
Board ("UIAB") Regulations, subparagraphs 6.1
through 6.4; (5) 29 U.S.C. § 626 (c)(1); and (6)
conspiracy. The Court has jurisdiction by reason of a federal
question pursuant to 28 U.S.C. § 1331.
before the Court are Defendants' motions to dismiss (D.I.
12, 15, 25, 32), Plaintiffs motions for extensions of time
(D.I. 17, 18, 27), Plaintiffs requests for default (D.I. 19,
20), Plaintiffs request for counsel (D.I. 21), and Plaintiffs
motion to amend (D.I. 28).
alleges that on July 25, 2016, Defendant City of Wilmington
("the City") terminated her employment without
"due process and just cause." (D.I. 2 at 4)
Plaintiff was a member of AFSCME Local 1102, an affiliate of
the Delaware Public Employees Council 81 (together the
"Union"). She alleges that the Union filed a
grievance on her behalf challenging the City's decision
to terminate her employment, but the Union breached its duty
of fair representation by failing to move the grievance to
Step IV of the grievance procedure.
sought, and received, unemployment benefits in August 2016.
(Id. at 5) Following the City's appeal of the
award of benefits, the benefits stopped as of September 13,
2016. (Id.) A hearing was held on November 19, 2016
before the Delaware Unemployment Insurance Appeal Board
("the Board"), and Plaintiff subpoenaed a union
president to testify on her behalf. (Id.) Plaintiff
alleges the union president "contradicted the grievance
claim" she had filed against City management, and the
union president "represented the City's interest
instead of [hers]." (Id.)
alleges that the Union, the City, and the Board have not
"responded to [her] with a decision as to [her]
grievance progressing to step 4 and arbitration; or [her]
right to a hearing in Superior Court, which has compelled
[her] to seek remedy from [this Court]." (Id.)
Her claims against the City include: (1) retaliation for the
use of FMLA and sick leave by creating "contrived and
arbitrary disciplinary actions;" (2) discharge without
due process; (3) discharge without just cause; and (4)
failure to provide a decision on Plaintiffs grievance
progressing to Step IV. (Id. at 4-5) Plaintiff seeks
reinstatement of her unemployment benefits, reinstatement of
her employment, lost wages and future earnings, and
a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) requires the Court to accept as true all material
allegations of the complaint. See Spruillv. Gillis,372 F.3d 218, 223 (3d Cir. 2004). "The issue is not
whether a plaintiff will ultimately prevail but whether the
claimant is enutled to offer evidence to support the
claims." In re Burlington Coat Factory Sec.
Utig.114 F.3d 1410, 1420 (3d Cir. 1997) (internal
quotation marks omitted). Thus, the Court may grant such a
motion to dismiss only if, after "accepting all
well-pleaded allegations in the complaint as true, and
viewing them in the light most favorable to ...