Tolliver v. Qlarant Quality Sols., C. A. K21C-06-040 NEP

CourtSuperior Court of Delaware
Writing for the CourtNoel Eason Primos, Judge
PartiesM. DENISE TOLLIVER, Plaintiff, v. QLARANT QUALITY SOLUTIONS, INC., and RONALD G. FORSYTHE JR. and DEBORAH KELLER in their individual and official capacities, Defendants.
Docket NumberC. A. K21C-06-040 NEP
Decision Date21 November 2022


QLARANT QUALITY SOLUTIONS, INC., and RONALD G. FORSYTHE JR. and DEBORAH KELLER in their individual and official capacities, Defendants.

C. A. No. K21C-06-040 NEP

Superior Court of Delaware

November 21, 2022

Submitted: August 15, 2022

Upon Plaintiff's Motion for Default Judgment DENIED

Upon Individual Defendants' Motion to Dismiss for Lack of Personal Jurisdiction GRANTED

Upon Defendants' Motion to Dismiss for Failure to State a Claim GRANTED

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

Tiffany R. Hubbard, Esquire (Pro Hac Vice), Pamela Moore, Esquire (Pro Hac Vice), McCarter & English, LLP, Hartford, Connecticut, and Chelsea A. Botsch, Esquire, McCarter & English, LLP, Wilmington, Delaware, Attorneys for Defendants.


Noel Eason Primos, Judge


Before this Court are two pending motions in an action brought by Denise Tolliver (hereinafter "Plaintiff"), who is self-represented, against Qlarant Quality Solutions, Inc., and Donald G. Forsythe and Deborah Keller (hereinafter "Defendants"). Plaintiff moves for default judgment pursuant to Superior Court Civil Rule 55(b)(2). Defendants move to dismiss the action 1) with respect to Forsythe and Keller (hereinafter the "individual defendants") pursuant to Rule 12(b)(2) for lack of personal jurisdiction; and 2) in its entirety pursuant to Rule 12(b)(6), asserting that Plaintiff fails to state a claim for which relief can be granted. The 12(b)(6) motion argues that Plaintiff's claims are barred by res judicata and time-barred, and that Plaintiff has failed to exhaust her administrative remedies and has failed to state a claim. For the reasons set forth below, Plaintiff's motion for default judgment is DENIED, and Defendants' motions to dismiss for lack of personal jurisdiction and failure to state a claim are GRANTED.


I. Plaintiff's Employment and Termination

The facts in this section are as alleged in the Complaint, accepting all of Plaintiff's well-pleaded allegations as true in light of Defendants' motion to dismiss.

On October 7, 2013, Plaintiff was hired by Qlarant Quality Solutions, Inc. (hereinafter "Qlarant"), then operating under the name Delmarva Foundation for Medical Care.[1] Qlarant was a vendor for the State of Delaware, with operations in both Delaware and Maryland, and was funded in part by a two-year grant at the time of Plaintiff's hiring.[2] She was made aware of the two-year grant period and led to believe that her employment contract would last for the entire two-year grant term.[3]


On February 18, 2014, Plaintiff requested mental health accommodations "for cause under well documented, persistent hostile and unsafe work conditions" at her workplace in New Castle County.[4] It is unclear what accommodations were sought or whether they were granted. On March 25, 2014, she requested that she be transferred from the New Castle office to a location in Kent County as a further accommodation for her disability.[5] Both accommodation requests were directed to Deborah Keller, Qlarant's Human Resources Vice President.[6]

On May 12, 2014, Plaintiff's employment with Qlarant was terminated via a letter sent by Keller.[7] The letter included an offer of payment in exchange for Plaintiff's agreement not to file any discrimination claims under the Delaware Discrimination in Employment Act ("DDEA"), the Delaware Persons with Disabilities Employment Protections Act ("DPDEPA"), the Equal Pay Act, and the Delaware Unemployment Compensation Act.[8]

Plaintiff also learned that, as of that very day, there was an open position in the Kent County office for which she believed herself to be qualified.[9] The next day, she requested reinstatement of her employment at a salary commensurate to the vacant "Kent County lead position."[10] On May 22, 2014, her request for reinstatement was denied in an email explaining that "[i]n light of contract reductions by our client, the State of Delaware, and our overall business conditions, your request for reinstatement is denied at this time."[11]


II. Administrative Process

On October 21, 2014, Plaintiff filed a Charge of Discrimination alleging discrimination based on race, sex, age, and "equal pay."[12] The Charge of Discrimination references the February 2014 request for disability accommodation and the May 2014 termination of employment, but not the March 2014 accommodation request or the May 2014 request for reinstatement. On March 7, 2018, the Delaware Department of Labor issued a Final Determination and Right to Sue Notice, dismissing the administrative action "without a specific finding" and granting Plaintiff the right to sue, pursuant to 19 Del. C. § 712.[13]

III. Tolliver I

In November of 2017, Plaintiff filed a complaint in this Court against Qlarant and Terri Daly (a human resources employee at Qlarant). That complaint included four counts: 1) breach of the implied covenant of good faith and fair dealing; 2) violation of 19 Del. C. § 1108(3); 3) defamation; and 4) disability discrimination and retaliation.[14] The defendants in that action removed it to the United States District Court for the District of Delaware (hereinafter the "District Court").[15] The District


Court dismissed the first three counts as time-barred.[16] The disability and retaliation claims were dismissed with leave to amend.[17] Plaintiff filed an amended complaint, which the District Court dismissed for failing to state a claim for disability discrimination and retaliation, but with leave to amend once more to state, inter alia, the disability at issue and the accommodations sought.[18]

The Second Amended Complaint brought two counts, failure to accommodate Plaintiff's disability and retaliation for protected activities (i.e., retaliating against Plaintiff for requesting accommodations), under both the Americans with Disabilities Act ("ADA") and the DDEA.[19] However, the District Court liberally construed the Second Amended Complaint as raising claims under the DPDEPA.[20]The District Court dismissed with prejudice the discrimination claim predicated on Plaintiff's February 2014 accommodation request but dismissed "without prejudice the March and May 2014 accommodation claim seeking a transfer as those claims have not been administratively exhausted."[21] As to the retaliation claims, the District Court dismissed with prejudice the retaliation claims stemming from the February 2014 and May 2014 alleged accommodation requests, and dismissed "the remaining retaliation claim . . . without prejudice for failure to exhaust administrative remedies."[22]

That round of litigation (collectively "Tolliver I"), ended with the District Court's denial of Plaintiff's motion to vacate judgment and reopen the case on


January 19, 2021.[23] To recap, Tolliver I resulted in the dismissal with prejudice of the following claims relevant to this proceeding:

(1) Breach of the implied covenant of good faith and fair dealing;
(2) Violation of 19 Del. C. § 1108(3);
(3) Discrimination claims stemming from Plaintiff's February 2014 accommodation request; and
(4) Retaliation claims stemming from accommodation requests in February 2014 and May 2014.

The claims dismissed without prejudice, for failure to exhaust administrative remedies, are:

(1) Discrimination claims resulting from the March and May 2014 accommodation requests; and
(2) Retaliation claims arising from Plaintiff's March 2014 telephone conference discussing worker's compensation and ADA accommodations.

IV. Tolliver II

Just over six months after the end of Tolliver I, Plaintiff initiated this action ("Tolliver II") by filing a complaint in this Court on June 28, 2021.[24] In a complaint bearing remarkable resemblance to the original complaint in Tolliver I, Plaintiff brings three counts against Defendants: 1) breach of the implied covenant of good faith and fair dealing; 2) violation of 19 Del. C. § 1108(3); and 3) "Equal Pay, DDEA and DPDEPA Disability and Retaliation."[25] Tolliver II differed from Tolliver I by bringing claims against individual defendants Forsythe and Keller, though not against Daly.


Certified mail receipts show that Forsythe, Keller, and Qlarant's Board Chair were served the complaint on July 2, 2021, and that Qlarant's registered agent was served on July 8, 2021.[26] On July 21, 2021, counsel for Defendants entered an appearance and filed a notice of removal to federal court.[27] However, the District Court construed the "Equal Pay" claim as a state law claim under the Delaware Wage Payment and Collection Act rather than the federal Equal Pay Act and, thus finding no basis for federal subject matter jurisdiction, remanded the case back to this Court on March 21, 2022.[28] The District Court dismissed as moot all other pending motions in that court, [29] which included Plaintiff's motion for default judgment and Defendants' motion to dismiss.[30]

Two days later, Defendants sent a letter to the Court indicating Defendants' intention to renew the motion to dismiss filed in the District Court.[31] Attached to the letter was a proposed briefing schedule.[32] Plaintiff opposed the proposed schedule, requesting more time to prepare her response and to attempt to obtain counsel.[33] At an office conference held on April 12, 2022, counsel for Defendants represented that the purpose of the proposed briefing schedule was "to have something in place for everyone to be on the same page, especially with [the case] being remanded and it being [a] sort of gray area [] when the filings would begin."[34]


The Court set a briefing schedule on Plaintiff's motion for default judgment and Defendants' motion to dismiss.[35] Plaintiff filed her motion for default judgment on April 14, 2022.[36] Defendants filed their response on May 31, 2022,[37] and Plaintiff...

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