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Gresham v. State of Delaware Department of Health and Social Services

United States District Court, D. Delaware

January 15, 2020


          Elisha L. Gresham, New Castle, Delaware. Pro Se Plaintiff.

          Allison Jean McCowan, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for Defendant.



         Plaintiff Elisha L. Gresham (“Plaintiff), who proceeds pro se and has been granted leave to proceed in forma pauper is, filed this employment discrimination action on December 27, 2016, against the Delaware Department of Health and Human Social Services (“Defendant” or “DHSS”). (D.I. 2). Plaintiffs Amended Complaint, filed following dismissal of the original Complaint, asserted disability discrimination in violation of Titles I and V of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq., and the Rehabilitation Act of 1973 (“Rehab Act”), 29 U.S.C. §§ 701, et seq. and race and gender discrimination under Title VII (“Title VII”), 42 U.S.C. §§ 2000e, et seq. (D.I. 23). The case proceeds on the Title VII hostile work environment and retaliation claims, the Court having dismissed the ADA and Rehab Act claims. (D.I. 30; D.I. 31). Before the Court is Plaintiffs motion for reconsideration and motion for the Court to issue rulings, [1] and the parties' cross-motions for summary judgment.[2] (D.I. 54; D.I. 58; D.I. 61; D.I. 65). The matters have been briefed.

         I. BACKGROUND

         Plaintiff is an black female. (D.I. 23-3 at 10). She alleges Title VII employment discrimination by reason of race and sex, as well as retaliation. (Id. at 22). Her charge of discrimination states that she was promoted despite protests from those who became her immediate supervisors - one a Middle Eastern male and the other a black female. (Id.). The charge states that after her promotion, ongoing harassment increased, she was humiliated, called names, and forced to retake prior training. (Id.). The charge states that one of her supervisors specifically told her that he believed the position to which she was promoted should have gone to a white individual because there were too many blacks in their unit. (Id.). In May 2015, Plaintiff began a medical leave of absence, and her supervisors asked for a medical update every two weeks. (Id.). Plaintiff complained and was told this was not required. (Id.). In her charge, Plaintiff contends discrimination occurred because of her race and sex, and she was retaliated against for her participation in protected activities.[3] (Id. at 14).

         The record evidence indicates that on March 1, 2010, Plaintiff began her employment with DHSS as an Administrative Specialist II in its contracts management and procurement unit. (D.I. 23 at 9; D.I. 59 at 28, 37). The unit was led by manager of support services Wendy Brown (“Brown”), a black female, and purchasing services administrator Kieran Mohammed (“Mohammed”), a West Indian male. (D.I. 59 at 38, 41). Plaintiff worked directly for Brown and testified they had a positive working relationship. (Id. at 29).

         In November 2013, Plaintiff applied for a promotion as a purchasing services coordinator II. (Id. at 37-38). Plaintiff was interviewed by a hiring panel comprised of Brown, Mohammed, and Annette Opalczynski, a white female. (Id. at 37-38, 41). In December 2013, Plaintiff was offered the promotion and she accepted. (Id. at 38, 41). According to Brown and Mohammed, Plaintiff's race and gender were not considered during the hiring process. (Id. at 38, 42).

         In Plaintiff's answers to interrogatories she states that following her promotion Mohammed congratulated her, but he also informed her that he would have preferred to hire a white woman, white man, or middle-eastern woman for the position. (D.I. 45 at 3). The answers also state that Mohammed told Plaintiff that he did not want to be in the unit when the “shit hits the fan” for “too many Blacks in our unit.” (Id.). Plaintiff testified that she reported Mohammed's statement to Brown who told Plaintiff that at an earlier time she and Mohammed had spoken about that but Brown did not expect Mohammed to “go back and tell you anything.” (Id. at 29). Brown and Mohammed deny they made those comments. (Id. at 38, 42).

         On January 29, 2015, Plaintiff met with the deputy director for the division of management services and told her that Brown was subjecting her to a progressively hostile and bullying work environment which included belittling Plaintiff in front of and within ear range of other employees, profanity, and name calling. (D.I. 23-4 at 10). The matter was forwarded to the DHSS labor relations unit and an investigation ensued. (Id.). The labor relations unit met with Plaintiff and asked her to provide a written account of her concerns. (Id. at 3). On February 11, 2015, Plaintiff submitted her memo and described “a few workplace environmental issues” she had been “progressively subjected to” from November 2013 through February 2015. (Id. at 3-9). Plaintiff was advised that only the more current issues could be addressed. (Id. at 10). Plaintiff relayed that in January 2015 Brown had yelled at her in front of other employees and at a unit meeting Brown waved her finger in the face of Plaintiff and called her a “dumb ass.” (Id.). Brown admitted to the conduct, received verbal counseling, and was required to attend conflict resolution and working with difficult people classes. (Id. at 10-12).

         On April 1, 2015, Plaintiff received her performance evaluation for the 2014 calendar year, with an overall performance rating of “meets expectations, ” the same rating as her peers. (D.I. 23-7 at 39-40; D.I. 59 at 38-39, 42). Brown and Mohammed both state that they did not take Plaintiff's race or gender into account when preparing her performance evaluation. (Id.). On April 3, 2015, Plaintiff submitted a rebuttal to the review. (Id. at 32-37). In her charge of discrimination, Plaintiff states that she was threatened with the possibility of never obtaining another state job/position if she wrote a rebuttal to the performance review, and it was suggested that she may have mental stability issues that needed attention. (D.I. 23-3 at 14). Brown denies this. (D.I. 59 at 39).

         On May 21, 2015, Plaintiff requested and received approval for a leave of absence for sciatica and stress. (D.I. 59 at 47-53). Paperwork completed by Plaintiff's physician certified that Plaintiff's chronic condition commenced in 1998. (Id. at 51). In her charge of discrimination, Plaintiff states that she was telephoned by Mohammed who stated that Brown had requested Plaintiff update her supervisors of her disability status every two weeks. (D.I. 23-3 at 14). Plaintiff complained to human resources and was told this was not a requirement. (Id.). While out on leave Plaintiff did not update Brown or Mohammed regarding her health issues or return to work date. (D.I. 59 at 39, 42).

         The record includes a September 15, 2015 note from Plaintiff's physician that states Plaintiff is under the physician's care and her condition is permanent. (D.I. 23-8 at 5). On September 16, 2015, senior human resources technician Greg Gresham sent an email to senior human resources technician Kimberly Williams (“Williams”) with an attached note from Plaintiff's physician and asked Williams to provide a copy to Plaintiff's supervisor and to provide paperwork to initiate a claim to transition from “STDI to LTDI.” (D.I. 23-3 at 16) On October 26, 2015, Williams sent Plaintiff a letter advising her of the status of her short-term disability benefits.[4] (D.I. 59 at 44). The letter advised Plaintiff that she was to required to “accurately, completely, and timely” provide any and all documentation and information required by the short-term disability insurer (i.e., The Hartford) and her supervisor for the duration of her absence, and that it was “vitally important” that she and her physician consistently provide updated medical information to The Hartford. (Id.) Plaintiff was warned that failure to cooperate and stay current could adversely impact her employment, leave, and pay. (Id.). Plaintiff was notified that if she was able, she must return to work full time before her short-term disability benefits were exhausted at the close of business on November 17, 2015. (Id. at 56). Plaintiff was notified that if she failed to or was unable to return to work full time prior to the exhaustion of the maximum short-term disability benefit period on November 17, 2015, and she had exhausted FMLA or was not eligible for FMLA, she would no longer be an employee of the State or any of its political subdivisions under Delaware law. (Id. at 57). On November 3, 2015, Plaintiff's psychologist authored a note and stated, “I think it is advisable that she not return to work at this time.” (D.I. 23-8 at 7).

         In early January 2016, DHSS human resources administrator Mary Parker (“Parker”), a black female, became aware that Plaintiff has not returned to work following exhaustion of her short-term disability benefits. (D.I. 59 at 62). After confirming that Plaintiff's short-term disability benefits had expired, Parker wrote to Plaintiff on February 9, 2016, and advised Plaintiff that DHSS had separated Plaintiff from employment as of November 18, 2015, because she had exhausted her short term disability benefits and failed to return to work. (Id. at 60, 63). Parker states that she did not consider Plaintiff's race or gender in her decision to terminate Plaintiff's employment. (Id. at 63). Both Brown and Mohammed state that they had no contact with Parker or anyone in human resources, were not consulted, and had no involvement in the termination of Plaintiff's employment. (Id. at 39, 42).

         Parker states that she had no knowledge of Plaintiff's workplace concerns. (Id. at 63). Plaintiff testified that she had no evidence that Parker was biased against blacks or women. (Id. at 33). On January 11, 2016, Plaintiff made a complaint with the EEOC complaining of race, gender, and disability discrimination, and retaliation. (D.I. 23-3 at 9-10). On January 25, 2016, the EEOC mailed a charge of discrimination with Plaintiff's claims for her to sign and return. (Id. at 11-12) The charge of discrimination, signed on February 5, 2016, was received by the EEOC on February 8, 2015. (Id. at 13-14). Parker states that she did not become aware that Plaintiff had filed an EEOC complaint until April 2016. (D.I. 59 at 63). On November 1, 2016, the U.S. Department of Justice Civil Rights Division issued a notice of right to sue letter. (D.I. 23-3 at 22).


         On December 18, 2018, the Court dismissed several claims in the Amended Complaint upon Defendant's motion to dismiss, including all ADA claims and any purported claims under § 504 of the Rehab Act. (D.I. 30; D.I. 31). The Rehab Act claims were dismissed without prejudice. On April 26, 2019, Plaintiff filed a “motion to appeal dismissal of Doc #31 in part, (2) Sec. 504 for the Rehabilitation Act, ” which the Court construes as a motion for reconsideration of the order dismissing any purported claims under the Rehab Act. (See D.I. 54). Defendant opposes the motion.

         The standard for obtaining relief under Rule 59(e) is difficult for Plaintiff to meet. The purpose of a motion for reconsideration is to “correct manifest errors of law or fact or to present newly discovered evidence.” Max's Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). “A proper Rule 59(e) motion . . . must rely on one of three grounds: (1) an intervening change in controlling law; (2) the availability of new evidence; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice.” Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010) (citing N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). A motion for reconsideration is not properly grounded on a request that a court rethink a decision already made. See Glendon Energy Co. v. Borough of Glendon, 836 F.Supp. 1109, 1122 (E.D. Pa. 1993). Motions for reargument or reconsideration may not be used “as a means to argue new facts or issues that inexcusably were not presented to the court in the matter previously decided.” Brambles USA, Inc. v. Blocker, 735 F.Supp. 1239, 1240 (D. Del. 1990). Reargument, however, may be ...

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