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Tolliver v. Delmarva Foundation For Medical Care

United States District Court, D. Delaware

September 3, 2019

M. DENISE TOLLIVER, Plaintiff,
v.
DELMARVA FOUNDATION FOR MEDICAL CARE, Defendant.

         Superior Court of the State of Delaware in and for Kent County Case No. K17C-11-010 NEP

          M. Denise Tolliver, Camden, Delaware. Pro Se Plaintiff.

          Joe P. Yeager, McCarter & English, LLP, Wilmington, Delaware. Counsel for Defendant.

          MEMORANDUM OPINION

          ANDREWS, U.S. DISTRICT JUDGE.

         Plaintiff 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 complaint.

         FACTUAL AND PROCEDURAL BACKGROUND

         This 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.).

         On 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.

         Plaintiff 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.[1]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.

         Defendant 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.;[2] and (2) the Amended Complaint did not correct the pleading defects of the original complaint.

         LEGAL STANDARDS

         In 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).

         "Though '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).

         A 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 ...


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