Daoud v. City of Wilmington

• Decision Date: 01 October 2012
• Docket Number: Civil No. 10–987–SLR.
• Citation: 894 F.Supp.2d 544
• Parties: Yasser F. DAOUD, Plaintiff, v. CITY OF WILMINGTON, Defendant.
• Court: U.S. District Court — District of Delaware

894 F.Supp.2d 544

Yasser F. DAOUD, Plaintiff,

v.CITY OF WILMINGTON, Defendant.

Civil No. 10–987–SLR.

United States District Court, D. Delaware.

Oct. 1, 2012.

Regina E. Gray, Esquire, and Willan F. Joseph, Esquire of Wilmington, DE, for Plaintiff.

David H. Williams, Esquire, James H. McMackin, III, Esquire, and Allyson Britton DiRocco, Esquire of Morris James LLP, Wilmington, DE, for Defendant.

MEMORANDUM OPINION

SUE L. ROBINSON, District Judge.

I. INTRODUCTION

Plaintiff Yasser F. Daoud (“Daoud”) is suing the City of Wilmington (“the City”) for alleged discriminatory and retaliatory actions based on Daoud's race, national origin, ancestry, ethnic characteristics, disability, and religion in violation of federal and state laws.¹ (D.I. 11 at ¶ 1) In April 2007, the City denied Daoud a promotion that he applied for, instead hiring an allegedly less qualified candidate. ( Id. at ¶¶ 6–8) On March 28, 2008, Daoud filed charge of discrimination number 530–2008–01967 (“the '967 charge”) with the Equal Employment Opportunity Commission (“EEOC”), averring that the City had discriminated and retaliated against him in violation of the Americans with Disabilities Act of 1990 (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. (D.I. 8 at A–1; D.I. 11 at ¶ 22) In response to that charge, the EEOC issued a right-to-sue letter dated August 19, 2010. (D.I. 9 at A–3) Daoud then filed the instant action against the City pro se on November 18, 2010. (D.I. 1) His complaint brought claims of discrimination and retaliation related to his non-promotion under Title VII, the ADA, 42 U.S.C. § 1981, and the Delaware Discrimination in Employment Act (“DDEA”), 19 Del. C. § 711. (D.I. 1)

On April 11, 2011, there having been no service of process docketed, the court sua sponte issued an order for plaintiff to show cause. (D.I. 3) On May 12, 2011, the court granted Daoud an additional sixty days, or until July 11, 2011, to effectuate service. (D.I. 5) Daoud filed an affidavit of process on July 6, 2011, indicating attempted service on the City by personal delivery to Leonette Traylor (“Traylor”), a Constituent Services Representative at the City's Office of Constituent Services. (D.I. 6)

In 2011, during the pendency of this suit, the City terminated Daoud's employment. (D.I. 11 at ¶ 24) Daoud filed another charge of discrimination, charge number 530–2011–01342 (“the '342 charge”), with the EEOC alleging that his termination constituted unlawful discrimination and retaliation under Title VII and the ADA. (D.I. 9 at A–6) He obtained counsel and filed an amended complaint that included claims related to his termination. (D.I. 11 at ¶¶ 24–26) The amended complaint also added causes of action under 42 U.S.C. § 1983 and the Fifth and Fourteenth Amendments. ( Id. at ¶¶ 1, 28)

Currently before the court is the City's motion to dismiss the amended complaint for insufficient service of process and failure to state a claim. ² (D.I. 13) The court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1332.

II. BACKGROUND

Plaintiff Daoud is an adult Egyptian-born, Muslim individual residing in Wilmington, Delaware. (D.I. 11 at ¶ 3) He is also partially disabled due to a work-related injury. ( Id. at ¶ 23) Daoud alleges that the City failed to promote him in 2007 because of his race, national origin, ancestry, ethnic characteristics, disability, and religion and that it retaliated against him for complaining about his non-promotion. ( Id. at ¶¶ 3, 21, 29–30) In addition, he alleges that the City retaliated and discriminated against him when it terminated his employment in 2011. ( Id. at ¶¶ 26, 29–30)

Daoud began working for the City on October 8, 2000 as a Sanitation Driver. ( Id. at ¶ 3; D.I. 19 at Addendum 1) In February 2007, he sought a promotion to the position of Assistant Sanitation Supervisor. (D.I. 11 at ¶ 6) Despite possessing allegedly superior qualifications, including experience in sanitation work and possession of a commercial driver's license (“CDL”), Daoud was not promoted. ( Id. at ¶¶ 6–8) Instead, in April 2007, the City hired Jason Leary (“Leary”), a white male, for the position. ( Id. at ¶ 8) Leary allegedly had no experience in sanitation work and did not possess a CDL. ( Id.) In October 2007, Daoud learned that Leary was still the Assistant Sanitation Supervisor despite not having obtained a CDL. ( Id. at ¶¶ 9, 11, 12, 16) Leary allegedly did not obtain his CDL license until February 2008. ( Id. at ¶ 17) Daoud asserts that, in October or November 2007, he complained to the City's Personnel Administrator, William Jones (“Jones”) who, upon investigation,determined that Leary was unqualified for the Assistant Sanitation Supervisor position and suspended him for five days over a five-week period. ( Id. at ¶ 19; D.I. 9 at A–2) Daoud asserts that he should have been reconsidered for the promotion at that time. (D.I. 11 at ¶ 14) Thereafter, Sam Pratcher, the City's Deputy Director of Personnel, allegedly learned of Daoud's complaints through Jones. ( Id. at ¶ 20) Daoud asserts that the City retaliated against him by denying him opportunities given to others, including overtime work, and, eventually, firing him. ( Id. at ¶¶ 21, 26)

Based on the City's failure to promote him, Daoud complained to the local state agency and filed the '967 charge with the EEOC on March 28, 2008. (D.I. 9 at A–1; D.I. 11 at ¶ 22) In the charge, he alleged retaliation and discrimination based on race, religion, national origin, and disability under Title VII and the ADA. (D.I. 9 at A–1, A–2) On the charge form, he alleged that the discriminatory action was a continued action that occurred from February 6, 2007 through March 28, 2008. ( Id. at A–1)

On August 19, 2010, the EEOC declined to act on Daoud's charge and issued a right-to-sue letter. (D.I. 9 at A–3) Daoud initiated this lawsuit on November 18, 2010. (D.I. 1) In February 2011, the City fired Daoud. (D.I. 11 at ¶ 24) Daoud contends that the City permitted him to continue working, even though it supposedly found that his medical restrictions prevented him from being able to perform his job without posing a hazard to himself or others. ( Id. at ¶¶ 24, 26; D.I. 9 at A–4). Thereafter, Daoud filed a second charge, the '342 charge, with the EEOC, alleging that the City unlawfully discriminated and retaliated against him when it fired him. ( Id. at ¶ 26) The allegations in the '342 charge, like the first, were brought under Title VII and the ADA. ³ (D.I. 9 at A–5)

On February 28, 2012, the EEOC issued a determination letter in response to the '342 charge, finding that the record of evidence surrounding Daoud's firing supported his allegations of discrimination and retaliation. (D.I. 19 at Attachment 1) The EEOC indicated in the letter, however, that there was insufficient evidence to demonstrate that Daoud was subject to discrimination due to his religion or national origin.⁴ Because of its findings in Daoud's favor, the EEOC did not issue a right-to-sue letter for the '342 charge at that time and encouraged conciliation and settlement between the parties at the administrative stage.⁵ ( Id.)

III. STANDARD OF REVIEWA. Fed.R.Civ.P. 12(b)(5)

A defendant may file a motion to dismiss pursuant to Rule 12(b)(5) when a plaintiff fails to properly serve him or her with the summons and complaint. Rule 4(m) states that, “[i]f service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action.” Fed.R.Civ.P. 4(m). The rule goes on the state that, “[u]pon a showing of good cause for the failure to serve, the court must extend the time for service; [and] the court can, at it discretion, extend the time for service even if plaintiff has not shown good cause for the delay.” Daniels v. Correctional Med. Services, Inc., 380 F.Supp.2d 379, 384 (D.Del.2005) (citing Fed.R.Civ.P. 4(m)); MCI Telecomm. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1098 (3d Cir.1995).

B. Fed.R.Civ.P. 12(b)(6)

In reviewing a motion to dismiss for failure to state a claim filed under Federal Rule of Civil Procedure 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, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Christopher v. Harbury, 536 U.S. 403, 406, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002). 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. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007); Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384–85 n. 2 (3d Cir.1994). A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (interpreting Fed.R.Civ.P. 8(a)) (internal quotations omitted). A complaint does not need detailed factual allegations; however, “a plaintiff's obligation to provide the ‘grounds' of his entitle [ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 545, 127 S.Ct. 1955 (alteration in original) (citation omitted). The “[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true.” Id. Furthermore, “[w]hen there are well-ple[d] factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 664, 129 S.Ct....