United States District Court, D. Delaware
ELISHA L. GRESHAM, Plaintiff,
STATE OF DELAWARE DEPARTMENT OF HEAL TH AND SOCIAL SERVICES, Defendant.
L. Gresham - Pro Se Plaintiff
B. Davis, Deputy Attorney General, State of Delaware
Department of Justice, Wilmington, DE - attorneys for
NOREIKA, U.S. DISTRICT JUDGE:
Elisha L. Gresham ("Plaintiff or "Ms.
Gresham"), who proceeds pro se and has been
granted leave to proceed in forma pauperis, filed
this action on December 27, 2016 alleging employment
discrimination against the Delaware Department of Health and
Human Social Services ("DHSS"). (D.I. 2). The Court
previously dismissed Plaintiffs ADA claims with prejudice but
granted her leave to amend with respect to potential Title
VII claims. (D.I. 15). Plaintiff filed an amended complaint
on July 23, 2018 ("Amended Complaint"). (D.I. 23).
In the Amended Complaint, Plaintiff asserted causes of action
for: (1) disability discrimination in violation of the ADA
under Title I; (2) retaliation relating to her disability
discrimination complaint under Title V; and (3) race or
gender discrimination under Title VII. Before the Court is
Defendant's Motion to Dismiss Plaintiffs First Amended
Complaint. (D.I. 25). Ms. Gresham opposes the motion. (D.I.
For the reasons discussed below, the Court will grant the
motion-in-part and deny the motion-in-part.
March 1, 2010, Ms. Gresham was hired by DHSS as an
"Administrative II." (D.I. 23 at ¶9). In
November of 2013, she interviewed for the position of
"Purchasing Services Coordinator II." (D.I. 23 at
¶ 10). She alleges that unnamed "[i]mmediate
management did not want plaintiff to have [the new]
position" and "began to retaliate against [her] by
"directly stating to the plaintiff,
they . . . preferred a White woman, a White man or a Middle
Eastern Woman in the position" and "didn't want
to be around when the' shit hits the fan' for
having too many Black people" in the
unit. (Id.). In December of 2013, Ms. Gresham was
"hired into the new position of a Purchasing Services
Coordinator II and immediate management began aggressively
attacking the plaintiff via racial taunts, insults with the
use of profanity" and "refused any procedural
training" that was required. (D.I. 23 at ¶ 11).
alleges that "immediate management" forced her to
do her previous job as well as the new one "in an
attempt to overwork and create exhaustion, frustration, high
pressure, stress and very hostile work environment" and
force her to quit. (D.I. 23 at ¶ 11). She alleges that
in January 2014, she suffered a stroke at her desk "and
as a result, developed new disabilities such as, panic and
anxiety attacks and the probability of now suffering another
stroke." (D.I. 23 at ¶ 13). She returned to work
that month with "restrictions from her doctors and
special accommodations" but alleges that management
confined her to her office and that she was mistreated
because of her disabilities. (Id. at ¶¶
February of 2015, Plaintiff lodged "a formal written
complaint against her management with the department's
Division of Labor Relations Unit (LRU)." (D.I. 23 at
¶ 16). The complaint included a detailed summary of her
allegations. (D.I. 23-4 at 3-9). In it she denied that her
purported stroke was work-related and made no mention of race
or gender discrimination. (Id.). The State LRU
investigator concluded that one of Plaintiff s supervisors
had inappropriately called Plaintiff a "dumb ass."
(D.I. 23-4 at 10). The investigator recommended that the
supervisor be given a verbal reprimand and be required to
attend additional training classes. (Id. at 10-11).
2015, Plaintiff took a medical leave. (D.I. 23 at ¶ 19).
She did not return to work. On February 9, 2016, DHSS
terminated her employment "effective November 18,
2015" (D.I. 23- 5) and sought to collect on the
overpayment of wages between November of 2015 and February of
2016. (D.I. 23-5, 23-7). Plaintiff applied for unemployment
benefits with the Delaware Department of Labor. (D.I. 23-6).
January 2016, Plaintiff filed a EEOC complaint asserting for
race, gender, and disability discrimination, as well as
retaliation. (D.I. 23-3). The United States Department of
Justice ("DOJ") did not file suit based on
Plaintiffs EEOC complaint within 180 days of its filing with
the EEOC, and, at Plaintiffs request, the DOJ issued a
"right to sue" letter on November 1, 2016.
Plaintiff then filed her initial complaint in this matter on
December 27, 2016, and her Amended Complaint on July 25,
reviewing a motion filed under Fed.R.Civ.P. 12(b)(6), the
court must accept all factual allegations in a complaint as
true and take them in the light most favorable to plaintiff.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Because Ms. Gresham 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, 551 U.S. at 94. A court may consider the
pleadings, public record, orders, exhibits attached to the
complaint, and documents incorporated into the complaint by
reference. Tellabs, Inc. v. Makor Issues & Rights,
Ltd., 551 U.S. 308, 322 (2007). A Rule 12(b)(6) motion
may be granted only if, accepting the well-pleaded
allegations in the complaint as true and viewing them in the
light most favorable to the complainant, a court concludes
that those allegations "could not raise a claim of
entitlement to relief." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 558 (2007).
'detailed factual allegations' are not required, a
complaint must do more than simply provide 'labels and
conclusions' or 'a formulaic recitation of the
elements of a cause of action.'" Davis v.
Abington Mem'l Hosp., 765 F.3d 236, 241 (3d Cir.
2014) (quoting Twombly, 550 U.S. at 555). The court
is "not required to credit bald assertions or legal
conclusions improperly alleged in the complaint." In
re Rockefeller Ctr. Props. Inc. Sec. Litig., 311 F.3d
198, 216 (3d Cir. 2002). A complaint may not be dismissed,
however, "for imperfect statement of the legal theory
supporting the claim asserted." Johnson v. City of
Shelby, __ U.S. __, 135 S.Ct. 346, 346 (2014).
complainant must plead facts sufficient to show that a claim
has "substantive plausibility." Id. at
347. That plausibility must be found on the face of the
complaint. Ashcroftv. Iqbal,556 U.S. 662, 678
(2009). "A claim has facial plausibility when the
[complainant] pleads factual content that allows the court to
draw the reasonable inference that the [accused] is liable
for the misconduct alleged." Id. Deciding
whether a claim is plausible will be a "context specific