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.
U.S. DISTRICT JUDGE.
Roberta L. Roberson ("Plaintiff), who proceeds pro
se and was granted in forma pcmperis status,
filed this action on February 10, 2017. Plaintiff alleges
wrongful termination of her employment, violations of several
federal laws, and conspiracy. The Court has jurisdiction by
reason of a federal question pursuant to 28 U.S.C. §
1331. Presently before the Court is Defendant City of
Wilmington's ("the City") motion to dismiss or,
in the alternative, motion for summary judgment, and
Defendants' AFSCME Local 1102, and Delaware Public
Employees Council 81 (together the "Union") motion
to dismiss. (D.I. 15, 25) Plaintiff did not file oppositions
to the motions despite being given additional time to do so.
(See D.I. 34)
alleges she was on the receiving end of a series of
disciplinary actions in retaliation for using FMLA
(i.e., Family Medical Leave Act) and sick leave
which resulted in her July 2016 wrongful discharge,
"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. She
alleges that the Union filed a grievance on her behalf
challenging the City's decision to terminate her
employment, and then the Union breached its duty of fair
representation by failing to move the grievance to Step IV of
the grievance procedure or to arbitration.
sought, and received, unemployment benefits in August 2016.
(Id. at 5) The benefits stopped as of September 13,
2016, following the City's appeal of the award of
benefits. (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 filed against City management, and the union
president "represented the City's interest instead
of [hers.]" (Id.)
alleges that the Union and the City 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.) Plaintiff alleges the
City: (1) retaliated against her for her use of FMLA and sick
leave by creating "contrived and arbitrary disciplinary
actions;" (2) discharged her without due process; (3)
discharged her without just cause; and (4) failed to provide
her a decision on the grievance progressing to Step IV.
(Id. at 4-5) Plaintiff alleges: (1) the Union
breached its duty of fair representation with respect to
pursuing her grievance, and (2) violated the National Labor
Relations Act. Plaintiff seeks reinstatement of her
unemployment benefits, reinstatement of her employment, lost
wages and future earnings, and compensatory damages, which
include damages for negligent and intentional infliction of
took leave under the FMLA from April 16, 2010 through May 20,
2010, and from March 4, 2016 through May 2, 2016. (D.I. 16 at
Exs. 4, 5) Prior to taking the 2016 FMLA leave, Plaintiff was
disciplined for her behavior on: (1) February 6, 2015, when
she received a verbal warning for work performance (see
Id. at Ex. 6); (2) August 14, 2015, when she received a
one-day suspension for being rude and disrespectful to a
customer and insubordinate to a supervisor (see Id.
at Ex. 7); (3) December 1, 2015, when she received a
three-day suspension for violating standard operating
procedures (see Id. at Ex. 8); and (4) January 8,
2016, when she received a five day suspension for being rude,
disrespectful, and insubordinate to her supervisor on two
separate occasions (see Id. at Ex. 9). On July 25,
2016, Plaintiff was disciplined for being rude and
disrespectful to a customer on the phone. (See Id.
at Ex. 10). Following the July 25, 2016 incident, Plaintiff
was suspended pending a pre-termination hearing. (See
27, 2016, Plaintiff was notified that the pre-termination
hearing, originally scheduled for August 1, 2016, had been
rescheduled to August 3, 2016 upon her request. (See
Id. at Ex. 11) Plaintiff appeared and participated in
the pre-termination hearing. (See id.) The
pre-termination employment hearing decision, dated August 9,
2016, was mailed to Plaintiff, and it advised her of the
decision to terminate her employment retroactive to the July
25, 2016 disciplinary action. (See Id. at Ex. 11)
The decision to terminate her employment was based upon the
Director of Finance's review of the testimony provided by
all the parties, the written documentation provided, and the
culmination of a series of progressive disciplinary actions.
(See Id. at Ex. 11)
filed a grievance on August 15, 2016, following receipt of
the pre-termination employment decision. (See Id. at
Ex. 12) Plaintiff commenced this action on February 10, 2017.
(D.I. 2) Thereafter, Plaintiff attended and participated in
the May 3, 2017 Step IV grievance hearing. (See Id.
at Ex. 13) Plaintiff was mailed a copy of the May 22, 2017
Step IV grievance decision, which concluded that the City had
good and sufficient cause to terminate Plaintiff from
employment because she repeatedly violated work rules
regarding her interaction with customers, co-workers, and
supervisors despite progressive discipline, training, and
counsel. (See Id.) The decision further concluded
that there was substantial evidence to support Plaintiffs
termination, there was no substantive violation or omission
of procedure for the termination, the discipline imposed was
not a result of political, religious, racial or other bias or
prejudice, and the disciplinary action taken was not
unreasonable, capricious, or arbitrary in light of the
offense, the circumstances surrounding the offense, and the
past record of Plaintiff. (Id.)
12(b)(1) of the Federal Rules of Civil Procedure permits the
dismissal of an action for "lack of subject matter
jurisdiction." A Rule 12(b)(1) motion may be treated as
either a facial or factual challenge to the Court's
subject matter jurisdiction. See Davis v. Wells
Fargo, 824 F.3d 333, 346 (3d Cir. 2016). A facial attack
contests the sufficiency of the pleadings, whereas a factual
attack contests the sufficiency of jurisdictional facts.
See Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d
99, 105 (3d Cir. 2015). When considering a facial attack, the
Court accepts the plaintiffs well-pleaded factual allegations
as true and draws all reasonable inferences from those
allegations in the plaintiffs favor. See In re Horizon
Healthcare Services Inc. Data Breach Litig., 846 F.3d
625, 633 (3d Cir. 2017). When reviewing a factual attack, the
Court may weigh and consider evidence outside the pleadings.
See Gould Elecs. Inc. v. United States, 220 F.3d
169, 176 (3d Cir. 2000).
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 Spruill v. Gillis,
372 F.3d 218, 223 (3d Cir. 2004). "The issue is not
whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the
claims." In re Burlington Coat Factory Sec.
Litig., 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 plaintiff,
plaintiff is not entitled to relief." Maio v. Aetna,
Inc., 221 F.3d 472, 481-82 (3d Cir. 2000) (internal
quotation marks omitted).
well-pleaded complaint must contain more than mere labels and
conclusions. See Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). A plaintiff must plead facts sufficient to
show that a claim has substantive plausibility. See
Johnson v. City of Shelby, ___ U.S. ___, 135
S.Ct. 346, 347 (2014). A complaint may not dismissed,
however, for imperfect statements of the legal theory
supporting the claim asserted. See Id. at 346.
survive a motion to dismiss, a civil plaintiff must allege
facts that 'raise a right to relief above the speculative
level on the assumption that the allegations in the complaint
are true (even if doubtful in fact).'" Victaulic
Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting
Twombly, 550 U.S. at 555). A claim is facially
plausible "when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Iqbal, 556 U.S. at 678. At bottom, "[t]he
complaint must state enough facts to raise a reasonable
expectation that discovery will reveal evidence of [each]
necessary element" of a plaintiffs claim. Wilkerson
v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321
(3d Cir. 2008) (internal quotation marks omitted).
Court is not obligated to accept as true "bald
assertions," Morse v. Lower Merion Sch. Dist.,
132 F.3d 902, 906 (3d Cir. 1997) (internal quotation marks
omitted), "unsupported conclusions and unwarranted
inferences," Schuylkill Energy Res., Inc. v.
Pennsylvania Power & Light Co., 113 F.3d 405, 417
(3d Cir. 1997), or allegations that are "self-evidently
false," Nami v. Fauver, 82 F.3d 63, 69 (3d Cir.
1996). Because Plaintiff proceeds pro se, her
pleading is liberally construed and her Complaint,
"however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by
lawyers." Erickson v. Pardus, 551 U.S. 89, 94
(2007) (internal quotation marks omitted).