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Brown v. Sands

United States District Court, D. Delaware

July 6, 2018

BRENDA SANDS, et al., Defendants.

          Devon Anthony Brown, Wilmington, Delaware. Pro Se Plaintiff.

          Oliver J. Cleary, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for Defendant Brenda Sands.



         Plaintiff Devon Anthony Brown, who appears pro se and has been granted leave to proceed in forma pauperis, filed this action on July 22, 2016, followed by an amendment on August 8, 2016. (D.I. 2, 5). Plaintiff and Defendant Brenda Sands have filed cross-motions for summary judgment. (D.I. 23, 26). Briefing on the motions is complete.


         Plaintiff raises a due process claim against Sands for refusing to accept his charge of discrimination against his employer.[1] Plaintiff claims he was denied the right to use the Office of Industrial Affairs, DDOL for its intended purpose. He also raises a supplemental state law claim for battery against an unidentified Delaware Department of Labor ("DDOL") security officer.[2] Plaintiff alleges he was harmed because the DDOL and its employees "dared [him] to react" after inappropriate touching and sexually suggestive behavior by the security officer. Plaintiff seeks compensatory damages and injunctive relief in the form of the charges against his employer moving forward and filed through the DDOL and by forbidding the DDOL from disclosing information. (D.I. 3).

         During the relevant timeframe, Defendant was an investigator for the DDOL's Office of Anti-Discrimination ("OAD"). (D.I. 27 at Ex. D, Sands aff.). Defendant had several interactions with Plaintiff when he visited Defendant's office to report an alleged incident of employment discrimination after he was discharged on the basis of his criminal record. (Id. at Exs. C, D). On May 11, 2016, Plaintiff completed a DDOL AOD intake questionnaire. (Id. at Ex. C). Defendant reviewed Plaintiff's draft charge of discrimination and indicated there was a grammatical error. (Id. at Ex. D). Plaintiff appeared upset when informed of the error and was told this was an opportunity to correct any errors and make deletions or additions to his charge. (Id.). Plaintiff noted that retaliation was not on the draft charge and began yelling that his submissions clearly pointed to retaliation. (Id.). Plaintiff declined to file a charge of discrimination. (Id.).

         Plaintiff contacted her supervisor, Daniel McGannon, after the interaction and sent a note to Defendant scheduling a second meeting for June 20, 2016. (Id.). Plaintiff was presented with a letter for his signature that confirmed and agreed his intake appointment was set for June 20, 2016, and that a security team member would be present for the intake appointment. (Id. at Ex. E). The letter also provided as follows:

You hereby acknowledge and agree that the purpose of the intake appointment is for you to assist the Department in drafting your charge of discrimination based on your factual allegations. You hereby acknowledge and agree that the Department will not issue a charge of discrimination to your former employer until you have approved, signed, and notarized the charge of discrimination.


         Security was present at Plaintiffs June 20, 2016 client interview in case he repeated his threatening conduct, although Defendant stated security's presence was not standard operating procedure. (Id.). Plaintiff immediately stated that he did not want to meet with Defendant. (Id.). Defendant explained her purpose was solely to act as an intake officer to assist with charge filing and she offered to review reworking of Plaintiff's charge or allow him to submit his own attachment since he was dissatisfied with the department's working on his charge. (Id.). Plaintiff made several comments to the security officer that he was dissatisfied with Defendant's handling of the charge filing appointment and that he had previously reported this to management. (Id.). Retaliation was added to the charge as requested by Plaintiff. (Id.).

         According to Defendant, she ended the appointment because Plaintiff's manner escalated to the point of making derogatory complaints directed at Defendant including demeaning black women, the elderly, and dissatisfaction with her explanation of the charge filing process in general. (Id.). Defendant asked Plaintiff to discontinue his derogatory statements during the charge filing appointment so that his charge could be finalized. (Id.). Plaintiff responded by stating he had made several complaints to management, the governor and others about the OAD process. (Id.). The meeting ended with Plaintiff stating, "you can go to hell." (Id.). Plaintiffs charge of discrimination was completed, but not finalized with his signature. (Id.).

         According to Defendant, because of Plaintiffs repeated hostile and abusive behavior, McGannon made a recommendation to the Secretary of Labor to ban Plaintiff from the OAD building. (Id.). McGannon sent a letter to Plaintiff, dated June 22, 2016, that advised Plaintiff he was no longer permitted on the DDOL's premises as a result of his prior conduct. (Id.). The letter directed Plaintiff to seek additional assistance for processing his charge of discrimination with the offices of the Equal Employment Opportunity Commission in Philadelphia, and the letter provided Plaintiff EEOC contact information including the EEOC's address, telephone number, and website. (Id.). According to Defendant, this is a viable alternative arrangement because the EEOC and the OAD have a work-sharing agreement that permits transfers of claims. (Id. at Ex. D; see also Id. at Ex. B (2015 worksharing agreement between Delaware Department of Labor and the U.S. Equal Employment Opportunity Commission)).

         Defendant served requests for admissions upon Plaintiff on October 25, 2017. (D.I. 22). Plaintiff did not respond or object to the requests and they are deemed admitted. See Fed.R.Civ.P. 36(a)(3). Plaintiff admits that McGannon and Defendant offered to assist him in finalizing a charge of discrimination against his former employer. (D.I. 22, Request No. 6). Plaintiff admits that he refused to sign an agreement that he "acknowledge[d] and agree[d]" that the DDOL would not issue a charge of discrimination to his former employer until he "approved, signed, and notarized the charge of discrimination." (Id. at Request No. 7). Plaintiff admits that he verbally and physically threatened Defendant and that his ongoing threatening conduct merited a response by the security officer against whom Plaintiff filed a claim. (Id. at Request Nos. 9, 11). Plaintiff admits that he has no colorable claims of a violation of ...

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