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Sharma v. Wesley

United States District Court, D. Delaware

July 26, 2019

AMIT SHARMA, Plaintiff,
STEVEN WESLEY, et al., Defendants.

          Amit Sharma, Newark, Delaware - Pro Se Plaintiff.

          Adria Benner Martinelli, Deputy Attorney General, and Wilson Buckmaster Davis, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware - Counsel for Defendants Jennifer Biddle, Robert Coupe, Delaware Department of Correction, Janet Durkee, Carole Evans, Christopher Klein, Geoffrey Klopp, Michael Merson, Julie Petroff, Perry Phelps, Marc Richman, and Steven Wesley.



         Plaintiff Amit Sharma (Plaintiff), who appears pro se, filed this employment discrimination case in the Superior Court of the State of Delaware in and for New Castle County. Defendants Jennifer Biddle, Robert Coupe, Delaware Department of Correction, Janet Durkee, Carole Evans, Christopher Klein, Geoffrey Klopp, Michael Merson, Julie Petroff, Perry Phelps, Marc Richman, and Steven Wesley removed the case to this Court on August 15, 2018.[1] (D.I. 1). They have filed a motion to dismiss, opposed by Plaintiff[2] (D.I. 4). The matter is fully briefed.

         I. BACKGROUND

         Plaintiff, who is of Indian descent, began his employment with Defendant Delaware Department of Correction (“DOC”) on October 19, 2006, and worked as a correctional officer at the Howard R. Young Correctional Institution (“HRYCI”). (D.I. 1 First Amended Complaint ¶¶ 14, 21). After working for seven years, Plaintiff made a hostile work environment claim against co-worker, Gregory Perella (“Perella”) followed by a second complaint on July 3, 2014. (Id. ¶ 15). On July 7, 2014, several co-workers met, expressed outrage over Plaintiff s complaints about Perella, and vowed to “burn the shift down if Plaintiff [was] promoted to lieutenant.” (Id. ¶ 16). Plaintiff alleges that former HRYCI Warden Defendant Steven Wesley (“Wesley”) was made aware of the issue and did not investigate. (Id.). Plaintiff discussed the hostile work environment incidents and group polarization during a July 30, 2014 conflict resolution initial interview with Diversity Coordinator Roy Lawler (“Lawler”) and Maj or D. Bamford (“Bamford”), and Plaintiff accepted an offer for conflict resolution. (Id.). Plaintiff was told that a report would be prepared for Human Resources and that Wesley would be in touch. (Id.).

         On March 14, 2014, a job opened for lieutenant. Plaintiff applied on March 16, 2014, received his test scores on April 8, 2014, and was interviewed on June 24, 2014. (Id. at 18). On July 13, 2014, two promotions were given to non-Indian candidates who ranked first and second. (Id. ¶ 19). There was another opening on August 9, 2014, and Wesley used the previous referral list and selected the fourth ranked non-Indiana candidate for promotion. (Id. ¶ 20).

         Plaintiff was given approved leave and left for the States of India on August 14, 2014, due to a family emergency. (Id. ¶ 21). While there, he learned about two additional openings and that Wesley has used the referral list to select two non-Indian candidates ranked third and fifth. (Id.). On August 22, 2014, and while in India, Plaintiff requested that Interview Panel Chairperson Staff Lieutenant G. Fahey (“Fahey”) provide the interview scores. (Id. ¶ 22). As instructed by Human Resources, Union Representative Bryant and Plaintiff requested that Human Resources provide the August 19, 2013 interview score sheet. (Id. ¶ 22). Defendant J. Biddle (“Biddle”) Human Resources Assistant Director asked the reason for requesting a year-old sergeant interview score sheet and was hesitant to supply it without knowing the reason for the request. (Id.). Biddle provided the sergeant score sheet on September 5, 2014. (Id. ¶ 23).

         On September 7, 2014, Wesley was notified of a computation error in the June 24, 2014 interview score that had lowered Plaintiff's candidacy rank from fourth to sixth. (Id. ¶ 24). Plaintiff and Wesley discussed the issue after Plaintiff asked to resubmit the same credentials for lieutenant interviews as sergeants. (Id. ¶ 25). Plaintiff alleges that Wesley blamed Plaintiff for not resubmitting the same documents to get the same points and advised Plaintiff that the promotions were in effect, there were no open lieutenant vacancies, and the certification list had expired. (Id.). Plaintiff submitted a grievance concerning the unlawful denial of a promotion and alleges that on September 12, 2014, Wesley violated the terms and agreement of the Collective Bargaining Agreement, when he denied Plaintiff's timely grievance as untimely. (Id. ¶ 29).

         Plaintiff returned to work on September 10, 2014, and learned that a vacancy had existed because a lieutenant was promoted to staff lieutenant using the September 3, 2014 interview. (Id. ¶ 26). On September 16, 2014, Plaintiff contacted Wesley regarding the status of his complaints, including one asserting workplace safety and, on September 18, 2014, Plaintiff was informed by Lawler that his “concerns were valid overall” and that “appropriate action has been taken.” (Id. ¶¶ 30-31). Plaintiff alleges that on September 22, 2014, Defendant Labor Relation Manager Julie Petroff (“Petroff”) intervened to invalidate Plaintiff's complaints that Lawler had confirmed overall as valid. (Id. ¶ 32). Petroff dismissed Plaintiff's complaints on September 24, 2014. (Id. ¶¶ 33-35).

         On September 27, 2014, Wesley had the existing vacancy reposted. (Id. ¶ 27). Plaintiff alleges that of the six vacancies, Wesley promoted five non-Indian candidates and denied the sixth vacancy to the fourth, but incorrectly ranked as sixth.[3] (Id.). On September 27, 2014, Plaintiff reapplied for the lieutenant vacancy, but the vacancy was filled with a non-Indian employee through a lateral transfer without holding interviews. (Id. ¶ 28).

         On October 29, 2014, Plaintiff contacted former DOC Commissioner R. Coupe (“Coupe”) to report retaliation and national origin discrimination. Defendant Bureau Chief Janet Durkee (“Durkee”) was made aware of the complaints and Coupe indicated that he would consider a private meeting with Plaintiff after he reviewed the complaint with Durkee. (Id. ¶ 36). Plaintiff alleges there was no follow-up. (Id.). Plaintiff filed a complaint with Durkee and Petroff on November 6, 2014, cited national origin discrimination and a violation of conflicts, and requested an investigation of Wesley's recommendation letters and the internal promotion process. (Id. at ¶ 37). Durkee did not acknowledge the complaint. (Id.).

         Plaintiff alleges that on November 7, 2014, Wesley falsely accused Plaintiff of harassing Petroff and gave Plaintiff a direct order to cease and desist communications with her. (Id. ¶ 38). Wesley told Union Representative Jay Lee (“Lee”) that he was “pissed off at Plaintiff.” (Id.). Plaintiff attempted to submit an incident report about Wesley's hostile behavior, false accusations, and employment threats and was told by Captain K. Akinbayo (“Akinbayo”) that he was “not doing any reports” and Akinbayo notified Wesley. (Id. ¶ 39). Plaintiff alleges the denial to complete an incident report violated DOC rules. (Id.).

         Plaintiff was scheduled to be off for two days and on the first scheduled day, November 10, 2014, he was directed to report to work immediately. (Id. ¶ 40). He was served with Wesley's memo for removal from the workplace, psychological fitness for duty evaluation, and disciplinary action. (Id. ¶ 40). Plaintiff was directed to go to the administration building to meet with Durkee on November 12, 2014. (Id.). On November 12, 2014, Plaintiff met with Durkee, former DOC Commissioner Defendant Perry Phelps (“Phelps”), and Wesley. (Id. ¶ 41). At the meeting nothing was discussed except that Durkee gave information to Plaintiff for his required psychological fitness for duty evaluation. (Id.). Captain Brian Berggrun (“Berggrun”) conducted an investigative interview on November 13, 2014. (Id. ¶ 42). Berggrun “did not consider that Plaintiff had followed Wesley's directive to not email complaints to Petroff.” (Id.).

         The fitness for duty evaluation was conducted on November 20, 2014, and Plaintiff was cleared for duty. (Id. ¶ 43). Plaintiff reported to the administration building on November 26, 2014, and met with Phelps and Wesley. (Id. ¶ 43). Wesley told Plaintiff that since his issues were not psychological, but behavioral, Plaintiff would be disciplined. (Id. ¶ 44). Wesley explained that he was disciplining Plaintiff for the officers Plaintiff had harassed over the years and Phelps said, “so you do not say retaliation, it will be warden from a different facility in charge of it.” (Id.). Plaintiff was advised that he could return to work the next day. (Id.). Plaintiff asked Phelps to review the complaints and documents, but he declined stating that the warden falls under his supervision and is a friend and Plaintiff does not think that Phelps is impartial. (Id.). Phelps mentioned that Plaintiff could not stop filing complaints against Wesley and that Plaintiff has a distrust in Human Resources findings. (Id.). Phelps first offered Plaintiff a voluntary transfer to a different facility and then told Plaintiff that he could hire an attorney or seek assistance from an outside agency to review his complaint without worrying about repercussions. (Id.).

         Plaintiff report the violations to Delaware Governor J. Markell's office on January 5, 2015. (Id. ¶ 45). On February 9, 2015, “Constituent Relations A. Betts” (“Betts”) informed Plaintiff that Human Resources had been contacted and considered the matter closed, but the required dismissal of charges memorandum had not been issued. (Id. ¶ 46).

         Plaintiff applied for a correctional lieutenant position and received eligibility confirmation on January 15, 2015. (Id. ¶ 82).[4] Based upon his interpretation of Defendant Bureau Chief Christopher Klein's (“Klein”) involuntary transfer memo, Senato denied a request to schedule an interview when he stated, “this agreement will preclude you from working overtime or transferring to any position at Howard R. Young for a period of 2 years.” (Id.). Plaintiff contacted Wesley, Biddle, and Richman about the interview denial, but they did not acknowledge “the violation or request.” (Id. ¶ 85).

         When a lieutenancy vacancy at the HRYCI was posted on February 13, 2015, Plaintiff asked Union Representative Corporal C. Addison (“Addison”) to inquire about Plaintiff's status. (Id. ¶ 47). Plaintiff was told that there was no paperwork, a warden from a different institution was handling it, and if Plaintiff wanted to pursue a promotional opportunity he could. (Id.). Plaintiff applied for the lieutenant vacancy on February 21, 2015. (Id. ¶ 48). Plaintiff alleges that Wesley learned about a possible grievance on February 25, 2015, and again retaliated against Plaintiff when, on February 26, 2015, he issued a disciplinary report that cited suspension from duty and demotion were under consideration. (Id. ¶¶ 49-50). The two penalties automatically disqualify promotional opportunities for two years. (Id. ¶ 50).

         Plaintiff requested a pre-decision hearing on March 2, 2015. (Id. ¶ 51). Plaintiff was sanctioned “six days' paper suspension.” (Id. at ¶ 53). Wesley issued a final decision that concurred with the suspension, and he threatened Plaintiff's employment. (Id. ¶ 54). On April 29, 2015, Klein conducted an appeal of Plaintiff's suspension. (Id. ¶ 55). Klein did not find in Plaintiff's favor and Plaintiff appealed. (Id.).

         Plaintiff filed a second grievance against Wesley on March 10, 2015, for employment discrimination and retaliation, and Wesley denied the grievance. (Id. at ¶ 58). Plaintiff refiled the grievance on March 15, 2015, and alleged that when Wesley held the hearing he focused on justifying his reasons for denying promotions to Plaintiff. (Id. ¶ 59). The grievance was denied on March 27, 2015. (Id. ¶¶ 60-61). Plaintiff also alleges that Wesley unlawfully denied him promotions in April 2015 and July 2015. (Id. ¶¶ 62, 63).

         On May 27, 2015, Plaintiff reported a co-worker citing safety concerns, and Plaintiff was reprimanded for filing complaints. (Id. ¶¶ 64-66). Plaintiff appeared for a pre-arbitration hearing on July 21, 2015. (Id. ¶ 56). The hearing did not take place and it appears that the grievance was not resolved. (Id.). In the meantime, Berggrun investigated the complaint that Plaintiff had harassed Petroff and found that Plaintiff ‚Äúsaid a lot of things, none of which ...

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