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Roberson v. City of Wilmington

United States District Court, D. Delaware

September 24, 2018

CITY OF WILMINGTON, et al., Defendants.

          Roberta L. Roberson, Wilmington, Delaware, Pro Se Plaintiff.

          Loren Holland, Assistant City Solicitor, City Solicitor's Office, Wilmington, Delaware. Counsel for Defendant City of Wilmington.

          Lance M. Geren, Esquire, Freedman and Lorry, P.C, New Castle, Delaware. Counsel for Defendants AFSCME Local 1102 and Delaware Public Employees Council 81.




         Plaintiff 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)


         Plaintiff 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.

         Plaintiff 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.[1] (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.)

         Plaintiff 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 emotional distress.

         Plaintiff 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 id.)

         On July 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)

         Plaintiff 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.)


         A. Rule 12(b)(1)

         Rule 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).

         B. Rule 12(b)(6)

         Evaluating 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).

         A 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.

         "To 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).

         The 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).

         C. ...

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