United States District Court, D. Delaware
M. DENISE TOLLIVER, Plaintiff,
DELMARVA FOUNDATION FOR MEDICAL CARE, Defendant.
Court of the State of Delaware in and for Kent County Case
No. K17C-11-010 NEP
Denise Tolliver, Camden, Delaware. Pro Se Plaintiff.
Yeager, McCarter & English, LLP, Wilmington, Delaware.
Counsel for Defendant.
ANDREWS, U.S. DISTRICT JUDGE.
M. Denise Tolliver, who appears pro se, filed this
action in the Superior Court of the State of Delaware in and
for Kent County on November 8, 2017. It was removed to this
Court on December 8, 2017, by Defendant Delmarva Foundation
for Medical Care. (D.I. 1). The Court has jurisdiction
pursuant to 28 U.S.C. §§ 1331 and 1332. Pending is
Defendant's motion to dismiss the Amended Complaint.
(D.I. 45). The matter has been fully briefed. For the reasons
discussed below, the Court will grant Defendant's motion
and will give Plaintiff leave to file a second amended
AND PROCEDURAL BACKGROUND
case concerns Plaintiffs termination of employment. Plaintiff
is an African American who was sixty years old when she filed
her charge of discrimination. (D.I. 29-2 at 2) She was hired
by Defendant on October 7, 2013, as a project coordinator.
(Id.) In February 2014, she submitted a request to
human resources for a reasonable accommodation, and on May
12, 2014, her employment was terminated. (Id.).
August 8, 2018, the Court dismissed the original complaint
upon Defendants' motion. (D.I. 27, 28). Plaintiff was
given leave to amend against Defendant and only as to the
claims in Count IV of the original complaint - the employment
discrimination and retaliation claims. All other claims and
defendants were dismissed.
filed an Amended Complaint on August 6, 2018. (D.I. 29). The
Amended Complaint raises claims for violations of Title I and
V of the Americans with Disabilities Act of 1990, as amended
("ADA"), 42 U.S.C. § 12101, et seq.,
and the Delaware Discrimination in Employment Act
("DDEA"), 19 Del. C, § 710, et
seq.alleging disability discrimination, the
withholding of reasonable accommodation, and retaliation.
(D.I. 29 at ¶ 1). Exhibits attached to the Amended
Complaint include an EEOC intake questionnaire dated October
21, 2014, emails, the October 21, 2014 charge of
discrimination, and a notice of suit rights.
moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for
failure to state claims upon which relief may be granted on
the grounds that: (1) Defendant is not an employer under the
DPDEPA, 19 Del. C. § 720, et
seq.; and (2) the Amended Complaint did not
correct the pleading defects of the original complaint.
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 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, 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. Makar Issues & Rights,
Ltd., 551 U.S. 308, 322 (2007). A Rule 12(b)(6) motion
maybe 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). I am
"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 an imperfect statement of the legal theory
behind the complaint. Johnson v. City of Shelby, 574
U.S. 10 (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. Ashcroft v. 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