United States District Court, D. Delaware
ELISHA L. GRESHAM, Plaintiff,
STATE OF DELAWARE DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Defendant.
L. Gresham, New Castle, Delaware. Pro Se Plaintiff.
Allison Jean McCowan, Deputy Attorney General, Delaware
Department of Justice, Wilmington, Delaware. Counsel for
NOREIKA, U.S. DISTRICT JUDGE:
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,  and the parties' cross-motions for
summary judgment. (D.I. 54; D.I. 58; D.I. 61; D.I. 65). The
matters have been briefed.
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. (Id. at 14).
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).
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).
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).
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).
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).
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,
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. (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).
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
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
MOTION FOR RECONSIDERATION
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.
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 ...