Tolliver v. Trinity Parish Found.
| Decision Date | 02 August 2017 |
| Docket Number | C.A. No. 14-1021-LPS |
| Parties | M. DENISE TOLLIVER, Plaintiff, v. TRINITY PARISH FOUNDATION, et al., Defendants. |
| Court | U.S. District Court — District of Delaware |
M. Denise Tolliver, Camden, Delaware, Pro Se Plaintiff.
Lauren E.M. Russell, Esquire, Scott A. Holt, Esquire, and Margaret M. DiBianca, Esquire, Young Conaway Stargatt & Taylor, LLP, Wilmington, Delaware. Counsel for Defendants.
August 2, 2017
Wilmington, Delaware
I. INTRODUCTION
Plaintiff M. Denise Tolliver ("Tolliver" or "Plaintiff"), who proceeds pro se, commenced this employment discrimination action on August 8, 2014. The Second Amended Complaint (D.I. 25) is the operative pleading and raises claims against Defendants Trinity Parish Foundation ("TPF"), Delaware Futures, Inc. ("DFI"), Reverend Patricia Downing ("Rev. Downing"), and Maile Statuto ("Statute").
Presendy before the Court are Defendants' Motion for Summary Judgment (D.I. 132), opposed by Tolliver,1 and Plaintiff's Motion to Amend,2 Motion to Expedite, and Motion to Amend Scheduling Order and for Rule to Show Cause (D.I. 166, 168, 173). For the reasons that follow, the Court will grant Defendants' motion and will deny Plaintiff's motions as moot.
II. BACKGROUND
The Second Amended Complaint contains fourteen counts, as follows:
(1) Count I against TPF and DFI alleging race discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq., and the Delaware Discrimination in Employment Act ("DDEA"), 19 Del. C. §§ 710 et seq.;
(2) Count II against all Defendants alleging race discrimination pursuant to 42 U.S.C. § 1981;
(3) Count III against TPF and DFI alleging age discrimination pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621, et seq., and the DDEA; (4) Count IV against all Defendants alleging retaliation in violation of Title VII, the ADEA, and the DDEA;
(5) Count V against Rev. Downing and Statuto and Count VI against TPF and DFI alleging civil rights violations under 42 U.S.C. § 1983;
(6) Count VII against TPF and DFI alleging wrongful termination/breach of contract under Delaware law;
(7) Count VIII against all Defendants alleging intentional infliction of emotional distress under Delaware law;
(8) Count IX against all Defendants alleging violations under Delaware law of the whistleblower provisions of the Sarbanes-Oxley Act ("SOX"), 18 U.S.C. § 1514A, as set forth in the Delaware Whistleblower's Protection Act ("DWPA"), 19 Del. C. §§ 1701-08, et seq.;
(9) Count X against all Defendants alleging violations of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1140 and § 1141;
(10) Count XI against all Defendants alleging defamation under Delaware law;
(11) Count XII against all Defendants alleging disability discrimination under the Rehabilitation Act of 1973 ("Rehab Act"), 29 U.S.C. §§ 701, et seq.;
(12) Count XIII against DFI alleging violations of confidentiality and invasion of privacy under Delaware law; and
(13) Count XIV against TPF and Rev. Downing for tortious interference under Delaware law. (D.I. 25)
Both TPF and DFI are nonprofit corporations. (Id. at 2) TPF is DFI's landlord. (Id.) The Second Amended Complaint alleges that TPF and DFI were Tolliver's joint employers. (Id. at 2)Tolliver was DFI's executive director from June 2001 until her employment was terminated on July 15, 2013. (D.I. 134 at 4; D.I. 135 at 44, 52, 53)
Tolliver is a Black female over the age of 40. (D.I. 25 at 2) On February 23, 2013, Tolliver requested a medical leave for "heart condition complications." (D.I. 135 at 63-64) A physician's statement dated February 28, 2013 states that Tolliver "ceased work due to this impairment" on February 25, 2013, and in the section indicating the date through which the limitation will last, it states: "uncertain tentative 3/8/13." (D.I. 157 at 1)
On February 24, 2013, Tolliver advised DFI's Board of Directors (the "Board"), via email, of her leave of absence beginning the next day, and she was placed on short-term disability leave ("STD") through DFI's insurer, The Hartford. (D.I. 135 at 14-15, 19-21, 64, 65; D.I. 148 at 3) In the email, Tolliver asked that Evette Houston ("Houston"), who had been trained to be Tolliver's successor, handle all programming matters in her supervision of the staff; that Andrea Rotsch ("Rotsch") work with bookkeeper Denise Foley ("Foley") in all financial matters; and that Board member Bruce Kallos ("Kallos") not be involved in day-to-day operations for programing. (D.I. 135 at 14-15)
DFI became aware that Tolliver was been working while on medical leave. (D.I. 136 at 75) In turn, DFI contacted its landlord, TPF, and asked it to change the locks to the building. (D.I. 135 at 23; D.I. 136 at 75) In addition, DFI suspended Tolliver's access to the DFI email system. (D.I. 135 at 26; D.I. 136 at 75)
On the afternoon of March 6, 2013, Houston left Tolliver a telephone message, telling Tolliver that she had been dropped from the DFI email account and that Houston had been warned not to contact Tolliver about DFI business through its email account. (D.I. 163 at 8) Houston also mentioned that the Board was moving in the direction to place Nicole Sailer ("Sailer") on the Board,and that Houston believed her days with DFI "were numbered." (Id.) That evening, Houston was appointed acting executive director during Tolliver's absence. (D.I. 136 at 13; D.I. 139 at 17) Houston is Black and under the age of 40. (D.I. 136 at 13-16) Sailer provided a sworn statement that she never expressed a desire to serve as executive director of DFI and was never considered for the position. (D.I. 135 at 46)
On March 7, 2013, Tolliver asked for confirmation of her employment status, noting that she was on excused medical leave through March 8, 2013, and that access to her DFI email account had been terminated. (D.I. 135 at 21) She was advised that she was on disability leave and, according to personnel policy confirmed at the DFI Board meeting on March 6, 2013, she was to have no contact with her workplace. (Id.) In turn, Tolliver requested "a letter which explains in detail the Board's decision and 'personnel policy.'" (Id.) Tolliver testified that, following the March 7, 2013 notice, she did not return to work. (D.I. 136 at 11)
On April 1 and 3, 2013, Kallos, the DFI Board president wrote, and then emailed, Tolliver and requested she provide medical documentation explaining the nature of her medical limitations and how long she expected to be absent from work. (D.I. 135 at 27-31, 36-37) On April 3, 2013, Tolliver submitted a grievance to the Board's executive committee and complained that the Board's requests for information were a form of "on-going intimidation." (D.I. 135 at 32) On April 9, 2013, Tolliver's physician provided a note that Tolliver was "unable to return to work until July 1, 2013." (Id. at 13)
On April 19, 2013, Statuto, as chair of the Board's personnel committee and chair of the grievance committee, responded to Tolliver's grievance, advising her that the executive committee had reviewed her allegations and could not conclude that she had been subjected to harassment or intimidation concerning her employment with DFI. (D.I. 135 at 36-37; D.I. 136 at 58-60, 74-75)On May 6, Tolliver replied to Statuto's letter, and thanked the Board for its support of her request to return to work "at such time [as] I am able." (D.I. 135 at 38) The letter referred to incidents of "actionable harassment," as follows: (1) DFI failed to accurately report Tolliver's workplace injury that resulted in her disability; (2) DFI failed to investigate a reported November 19, 2012 assault and/or make available written results of the investigation; (3) DFI executed a workplace eviction and refused to provide Tolliver the written policy of disability and of no contact with workplace; and (4) her disability accommodation should be regarded by the Board. (Id.) Tolliver requested that her salary continue while she was on STD. (Id.)
On May 13, 2013, Statuto responded to each of Tolliver's claims and advised her of the conclusion that the claims were without merit. (D.I. 135 at 39-40) Statuto also explained that Tolliver's letter "misunderstands or misrepresents the Board's granting of [her] request for a medical leave of absence through July 1, 2013," and that "the Board [did] not approve an open-ended leave" or request for reinstatement "at such time [as she was] able to return to work." (Id. at 40) The letter acknowledged Tolliver's request for continuation of her salary and reimbursement of medical co-pays while on a leave of absence and advised Tolliver that "it is not the policy or practice of [DFI] to continue to pay an employee's salary while that employee is eligible for and receiving short-term disability payments;"3 DFI further declined to institute a policy or practice with respect to medical co-pay reimbursement. (Id.)
On May 17, Tolliver wrote to the Board and advised it of her hostile work environment - discrimination claim based upon harassment in the form of workplace eviction-lockout directed at her disability and a retaliation claim; the latter claim was based on DFI's May 13, 2013 letter allegedlyhaving been written "in contradiction to April 9th pertaining to Board approved leave," and on Tolliver allegedly having been "black listed" as a result of the DFI disability no workplace contact practice. (Id. at 42) In addition, Tolliver advised that she had not received her STD compensation "per policy from [DFI] nor its insurance provider, the Hartford." (Id.)
A May 24, 2013 physician's note indicated that Tolliver was being followed by a cardiologist, who advised her to avoid strenuous physical activity until the completion of an evaluation. (D.I. 157 at 2) On May 28, the Board was advised that Tolliver had retained counsel. (D.I. 148 at 24) On June 10, 2013, Tolliver's claim for long-term disability ("LTD")...
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