Parker v. State of Del., Dept. of Public Safety

• Decision Date: 28 May 1998
• Docket Number: No. CIV. A. 97-503 MMS.,CIV. A. 97-503 MMS.
• Citation: 11 F.Supp.2d 467
• Parties: Janice L. PARKER, Plaintiff, v. STATE OF DELAWARE DEPARTMENT OF PUBLIC SAFETY, Defendant.
• Court: U.S. District Court — District of Delaware

Page 467

11 F.Supp.2d 467

Janice L. PARKER, Plaintiff, v. STATE OF DELAWARE DEPARTMENT OF PUBLIC SAFETY, Defendant.

No. CIV. A. 97-503 MMS.

United States District Court, D. Delaware.

May 28, 1998.

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Jeffrey K. Martin, Wilmington, DE, for Plaintiff.

Rosemary K. Killian, Deputy Attorney General, for Defendant.

OPINION

MURRAY M. SCHWARTZ, Senior District Judge.

Introduction

On September 4, 1997, Janice Parker ("Parker") filed a complaint against the State of Delaware Department of Public Safety ("the Department" or "DPS") alleging violations of Title VII, 42 U.S.C. § 2000e et seq.¹ and 42 U.S.C. § 1981,² as well as violations of state law. The Title VII based counts alleged disparate treatment, a hostile work environment, and retaliation. The § 1981 claim was based on an alleged failure to promote. Parker also alleged physical as well as emotional and economic injuries. The Department filed a motion to dismiss all counts on November 4, 1997 pursuant to Fed.R.Civ.P. 12(b)(1), lack of subject matter jurisdiction, and 12(b)(6), failure to state a claim upon which relief can be granted. In the course of briefing the issues, Parker withdrew her § 1981 claim and her breach of implied conditions of employment state law claim. Parker also amended her state law constructive discharge claim so as to assert a Title VII federal constructive discharge claim. Finally, she withdrew her allegations of physical injuries. The surviving claims subject to the motion to dismiss are the four Title VII claims. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, federal question jurisdiction. For the reasons that follow, the Department's motion to dismiss will be granted in part and denied in part.

Standard of Review

The purpose of a 12(b)(6) analysis is to determine "not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). In considering a motion to dismiss under Rule 12(b)(6), the court is "required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn from them after construing them in the light most favorable to the non-movant." Jordan v. Fox, 20 F.3d 1250, 1261 (1994) (citing Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir.1989)); D.P. Enters., Inc. v Bucks County Community College, 725 F.2d 943, 944 (3d Cir.1984). Further, in determining whether a claim should be dismissed under Rule 12(b)(6),

a court looks only to the facts alleged in the complaint and its attachments without reference to other parts of the record. Moreover, a case should not be dismissed for failure to state a claim unless it clearly appears that no relief can be granted under any set of facts that could be proved consistently with the plaintiff's allegations.

Jordan, 20 F.3d at 1261 (citing Hishon v. King & Spalding, 467 U.S. 69 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)); D.P. Enters., 725 F.2d at 944). The moving party has the burden of persuasion. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3rd Cir.1991).

Statement of Facts

Plaintiff was employed with the Delaware State Police ("DSP") for over eleven years, beginning on March 16, 1984. D.I. 21 at 2, ¶ 4. She was assigned to the Troop 1 traffic division. Id. at 2, ¶ 6. In 1989, she filed a complaint with the EEOC. Id. at 4, ¶ 7. In 1991, she filed a second EEOC complaint. Id. at 8, ¶ 8. The EEOC investigated and determined that discrimination had occurred. Id., ¶ 9.

At some point, plaintiff was placed on administrative leave due to an altercation with a Lt. Doubet. Id., ¶ 11. In order to diffuse the situation, DSP transferred plaintiff to Troop 9; however, on or about July 1, 1995, Lt. Doubet was transferred to the same Troop and placed as plaintiff's supervisor. Id., ¶ 12. This transfer and placement of the lieutenant to Troop 9 was done to harass plaintiff for filing the 1991 complaint. Id. at 3, ¶ 13. Around this time, Lt. Doubet made false accusations against plaintiff in retaliation for plaintiff's filing the 1991 complaint. Id., ¶ 14. In response to this situation, plaintiff was given an opportunity to transfer to a troop an hour away from her home but she was not offered a transfer to any of three other troops, all of which were closer. Id., ¶ 15.

Between July 1991 and the fall of 1993, Plaintiff was placed on rotating shifts to punish her for the complaints she had made about sexual discrimination. Id., ¶ 16. These shifts were problematic in that plaintiff could not coordinate day care with them. Id. at 10, ¶ 19. She requested a transfer but, upon reassurance from her immediate supervisor that her hours would be altered, she withdrew her request. Id. The shift problems persisted, however, so in June 1994 plaintiff requested a transfer to the Special Investigations Forecast Unit located at Troop 9. Id., ¶ 18. The position was given to a less experienced male. Id., ¶ 19. Plaintiff again requested that she not be given rotating shifts but her request was denied. Id. at 4, ¶ 20. However, male troopers with child care problems were accommodated. Id., ¶ 21.

On or about July 1995, an opening in the DARE (Drug Abuse Resistance Education) program was listed and, due to related experience and education, plaintiff applied. Id., ¶ 22. An oral board made selections, unlike in previous selection processes, and the head of the board was the same person against whom the 1991 EEOC complaint was filed. Id. at ¶ 23. Plaintiff interviewed for the position on August 15, 1995 and was informed prior to August 21, 1995 that she was not selected. D.I. 19 at 1. A less qualified male received the position. D.I. 21 at 4, ¶ 24. Plaintiff had received above standard to outstanding performance evaluations during the entire time she was employed with DSP. Id. at 2, ¶ 5. Due to the denial of career advancement and hostile work environment, plaintiff was forced to resign on September 4, 1995. Id., ¶ 26. All position openings for which plaintiff was qualified at the time of her discharge were filled by male officers. Id., ¶ 25. On or about February 2, 1996, plaintiff filed a third charge of discrimination with the EEOC. Id., ¶ 27. The United States Department of Justice issued a right to sue letter and this action followed. Id., ¶ 28.

Discussion

Defendant makes two primary arguments³ with respect to the remaining four Title VII claims — disparate treatment, hostile work environment, retaliation and constructive discharge. First, defendant asserts plaintiff cannot base her claims on any events that occurred after her 1991 complaint but prior to the relevant statutory period for the 1996 complaint because she cannot effectively assert a continuing violation theory. Second, defendant contends the facts remaining in the statutory period are not sufficient to state a claim under any of plaintiff's four theories of discrimination.

I. Continuing Violation: Events that occurred after the 1991 complaint was filed but before the statutory period for the February 2, 1996 complaint

Defendant argues the events that occurred after the 1991 EEOC complaint and prior to the statutory period for the February 2, 1996 complaint do not satisfy the standard for a continuing violation. As a result, all such events are time barred. Defendant also argues the assignment of plaintiff to rotating shifts in 1991 should be excluded for two additional reasons.⁴ First, the assignment must have been part of the 1991 EEOC complaint and, therefore, should be struck from the instant complaint. Second and alternatively, the assignment occurred subsequent to the filing of the EEOC complaint but clearly should have prompted plaintiff to file a complaint. Therefore, plaintiff failed to exhaust her administrative remedies with respect to this alleged discriminatory act and lost her opportunity to assert it as part of a continuing violation.

Plaintiff responds to the overarching argument by asserting that all the facts alleged as occurring after the 1991 EEOC complaint was filed but before the statutory period underlying the 1996 EEOC complaint satisfy the requirements of a continuing violation theory. With respect to the specific 1991 shift assignment targeted by defendant, plaintiff asserts it was not part of the 1991 complaint and does legitimately support a continuing violation theory.

The Court will turn first to the specifically identified 1991 event — the assignment of rotating shifts. The amended complaint gives every indication the shift assignment problem occurred after the filing of the 1991 EEOC complaint. The paragraph about the shifts identifies the relevant time period as July 1991 to the fall of 1993. Further, the paragraph about the assignment comes after the paragraph alleging the filing of the 1991 complaint and the paragraph subsequent to the assignment states the request for a transfer from the rotating shifts occurred in January 1993. In addition, plaintiff struck all allegations supporting the 1989 and 1991 EEOC complaints from the amended court complaint and the paragraph about the rotating shifts remained. As a result, the Court finds, for purposes of the motion to dismiss, the assignment to rotating shifts was not part of the 1991 EEOC complaint.

As stated above, defendant also argues the assignment of shifts is excluded because plaintiff failed to exhaust administrative remedies and, therefore, plaintiff cannot use the assignment as part of a continuing violation theory. Regarding the exhaustion of administrative remedies, the relevant section of Title VII states:

A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge ... shall be served upon the person against whom such charge is made within ten days thereafter ....

42 U.S.C. § 2000e-5(e)(1).⁵ This 180...