LYNNE M. PARKER, Commissioner.
Plaintiff Constance Gary worked as a receptionist for Defendant R.C. Fabricators, Inc. ("RCF"), a steel fabrication and erection company, for 11 months, from June 4, 2008 until her termination on May 8, 2009.
Plaintiff Gary filed the subject action alleging three claims of discrimination: 1) religious/spiritual harassment; 2) sexual harassment; and 3) retaliation. Both RCF and the Plaintiff filed cross-motions for summary judgment on these claims.
For the reasons discussed below, RCF's motion for summary judgment should be granted on all claims and Plaintiff's complaint dismissed in its entirety, with prejudice.
On June 22, 2009, Plaintiff Gary filed a Charge of Discrimination with the Delaware Department of Labor.
Plaintiff Gary filed her original complaint in the Superior Court on December 22, 2011. Because she included federal causes of action in her complaint, RCF removed the case to federal court. Plaintiff Gary then advised the federal court that she was withdrawing all of her federal causes of action. By Order dated June 13, 2012, the United States District Court for the District of Delaware dismissed all of plaintiff's federal claims with prejudice and remanded the case back to the Superior Court.
When the case was remanded back to the Superior Court, RCF moved to dismiss Plaintiff's state common law causes of action. The court granted RCF's motion on January 29, 2013, leaving only Plaintiff Gary's claims under the Delaware Discrimination Employment Act (DDEA)
Plaintiff filed a motion to suppress her deposition based on typographical and other errors she perceived with the deposition transcript. The court held a hearing on the motion on April 30, 2014, addressed the concerns of which Plaintiff complained, and corrected those errors on the record which were typographical of nature.
The parties have now filed cross-motions for summary judgment as to all of Plaintiff Gary's claims.
The facts are set out below in the light most favorable to the Plaintiff, noting any discrepancies along the way.
Plaintiff Gary was hired by RCF as a receptionist from June 4, 2008 until her termination on May 8, 2009.
Following her termination, on June 22, 2009, Plaintiff filed a Charge of Discrimination with the Delaware Department of Labor.
First, Plaintiff alleges a claim of religious/spiritual harassment. This claim stems from a series of religious themed e-mails shared by a small group of employees with each other.
Second, Plaintiff alleges a claim of sexual harassment related to a single isolated act by a co-worker. On September 16, 2008, a Field Supervisor at RCF, Mark Shanor, hit Plaintiff on the buttocks with a set of blueprints. It is this incident which forms the basis of Plaintiff's sexual harassment claim.
Third, Plaintiff alleges a retaliation claim. She claims that when she complained about the religious harassment, she was retaliated against by RCF.
The facts which form the basis of each of Plaintiff's claims are discussed below. Plaintiff's first claim of religious/spiritual harassment is based on a series of religious themed e-mails. The court will first discuss the e-mails and Plaintiff's communications and conduct which she conveyed to the others with whom she was sharing the e-mails. After that recitation is completed, the court will then discuss Plaintiff's private thoughts and impressions about those e-mails.
RCF is a steel fabrication and erection company located in Wilmington, Delaware. Plaintiff Gary was hired as a receptionist on June 4, 2008. She directly reported to Sue Dooling, RCF's Human Resources Professional.
Plaintiff Gary claims that on her first day of work, June 4, 2008, Sue Dooling asked her if she was a Christian. Plaintiff Gary explained to Sue Dooling that she was spiritual but did not believe in Christianity as a religion. She explained that she read the Bible and prayed.
During this conversation, Sue Dooling told Plaintiff Gary that she and another RCF employee, Javier Paula, the retail clerk for RCF, often sent inspirational e-mails to each other.
It is undisputed that Plaintiff Gary told Sue Dooling that she "had no problem with that" and that as a result of this conversation Plaintiff Gary understood she would be receiving inspirational e-mails.
Sue Dooling's recollection differs from Plaintiff Gary's as to the conversation in which Plaintiff Gary was invited to receive the inspirational e-mails. Sue Dooling does not recall ever asking Plaintiff Gary if she was a Christian. Sue Dooling recalls that several days after Plaintiff began working at RCF, Sue Dooling heard Plaintiff listening to a Christian sermon from a well known preacher on her computer. Sue Dooling told Plaintiff that she also liked that preacher's sermons. During that conversation, Plaintiff Gary told Sue Dooling that she was very spiritual. Sue Dooling believed that she and Plaintiff Gary shared the same religious beliefs.
Since Sue Dooling and a small group of RCF employees shared inspirational e-mails with each other, following the conversation about the well known preacher, Sue Dooling believed that Plaintiff Gary would enjoy receiving inspirational e-mails and asked her if she would like to receive them.
For the purposes of this motion for summary judgment, the court will accept Plaintiff Gary's version as true as to how she came about receiving the inspirational e-mails. The court notes, however, that it is undisputed that Plaintiff Gary did, in fact, listen to gospel music on her computer during the work day.
It is undisputed that on June 10, 2008, Sue Dooling sent an inspirational e-mail to four RCF employees plus an additional two recipients. The four RCF employees included: Plaintiff Gary, Javier Paula— the retail clerk, Carl Bouldin the shop supervisor, and Stuart Sherbal— the bookkeeper.
Of the six recipients, Plaintiff Gary was listed first in the e-mail chain.
The e-mail stated: "BE ENCOURAGE (sic) AND HAVE A BLESSED DAY!!!" The text of the e-mail included language: "The road to success is not straight. There is a curve called Failure, a loop called Confusion, speed bumps called Friends . . ."
The e-mail was not written by Sue Dooling but merely forwarded by her.
Upon receiving Sue Dooling's inspirational e-mail on June 10, 2008, Plaintiff Gary responded: "VERY ENCOURAGING AND TRUE AS WELL. WITH GOD IN THE DRIVER'S SEAT, WE CAN NEVER BE STEERED IN THE WRONG DIRECTION! U HAVE A BLESSED DAY AS WELL!"
On June 12, 2008, Ms. Dooling sent another inspirational e-mail to Plaintiff Gary. Sue Dooling included Javier Paula and Carl Bouldin— the shop supervisor, on this e-mail as well. The e-mail forwarded a passage from Kenneth Copeland Ministries— Faith to Faith. The passage was entitled "Play to Win."
In response to the e-mail sent by Sue Dooling, on the same date, June 12, 2008, Plaintiff Gary replied: "AMEN! THE DEVIL ALWAYS TRIES TO BRING US DOWN . . . THANK U FOR THE INSPIRATIONAL MESSAGES AND SCRIPTURES.
On July 1, 2008, Plaintiff Gary forwarded an e-mail titled "What's Wrong With Gossip?" to four RCF employees. These four RCF employees included: Sue Dooling, Javier Paula, Carl Bouldin and Stuart Sherbal. This e-mail, like the e-mails sent by Ms. Dooling, began with a passage from the Bible and then was followed by commentary.
Javier Paula had up to this point not sent any inspirational e-mails to Plaintiff Gary. After receiving Plaintiff Gary's inspirational e-mail, on July 1, 2008, Javier Paula sent to Plaintiff Gary an e-mail from a website "Sisters Building Sisters."
Upon receipt of Javier Paula's e-mail, Plaintiff Gary replied that: "I ALWAYS ENJOY FOOD FOR THE SOUL. VERY ENCOURAGING. THANK YOU. I WILL PASS THIS ONE ON!"
On July 2, 2008, Plaintiff Gary received a religious themed e-mail from her mother which, on July 3, 2008, she forwarded to the group of four coworkers-Sue Dooling, Javier Paul, Carl Bouldin, and Stuart Sherbal, along with four other individuals-Plaintiff's mother, two of her sisters, and her brother's girlfriend.
The recipients of the e-mail are not listed in alphabetical order. Plaintiff does not recall how the recipients' names came to appear in the order in which they appear on the email.
Upon receipt of this e-mail from Plaintiff Gary, Sue Dooling responded: "Thank you. I really needed that today."
Plaintiff Gary replied to Sue Dooling's response: "YOU ARE VERY WELCOME. MY MOM SENT THAT TO ME! PUT IT IN GOD'S HANDS AND THEN WE CAN BREATHE! AHHHH! HAVE A LOVELY DAY AND HOLIDAY AND WEEKEND!"
On July 8, 2008, and again on July 11, 2008, Javier Paula sent religious themed e-mails to the same four RCF co-workers, including Plaintiff Gary. On these e-mails, Plaintiff Gary's name was listed out of alphabetical order.
On July 29, 2008, Plaintiff Gary sent an e-mail to the same group of four RCF co-workers, including Sue Dooling and Javier Paula. The subject of the e-mail was "GOD BLESS YOU ALL!"
On July 31, 2008, Javier Paula sent another e-mail to the same group of four co-workers. The subject of the email was "Word of the Day Happy Thursday!"
On August 1, 2008, Javier Paula sent an e-mail to the same group of four co-workers.
That same day, August 1, 2008, Plaintiff Gary responded positively to the e-mail she had received from Javier Paula. Plaintiff Gary wrote: "AMEN TO THAT! DO UNTO OTHERS AS YOU WOULD HAVE THEM DO UNTO YOU! TGIF!"
On August 6, 2008, Ms. Dooling sent an email to the same group of four co-workers, as well as her own daughter. The e-mail was a forward of an inspirational prayer. The text stated: "Name it and Claim It, Believe It and Receive It!!!!!!! It's a Powerful Prayer! When you are down to nothing . . . God is Up to something . . ."
Plaintiff Gary responded positively to the e-mail. She responded: "AMEN! LET'S CONTINUE TO TRUST IN GOD AND HUMBLE OURSELVES IN PRAYER. HAVE A BLESSED DAY."
On August 6, 2008, Javier Paula sent an e-mail to the same four co-workers (Plaintiff, Sue Dooling, Carl Bouldin and Stuart Sherbal). The subject line of the e-mail was: "Word for the day!" and the e-mail contained a passage entitled: "Sweet Reminders of God's Good Provision: Manna from Heaven."
Plaintiff Gary responded positively to Javier Paula's e-mail by writing: "THAT'S THE WORD! MAY NOT COME WHEN YOU WANT EM, BUT HE'S ALWAYS ON TIME AND IT'S ALWAYS ALL GOOD. YA KNOW? HAVE A GREAT EVENING!"
On August 6, 2008, Sue Dooling sent an e-mail to three coworkers including Plaintiff Gary and Javier Paula containing a poem.
On August 13, 2008, Javier Paula sent an e-mail to the same four coworkers (Plaintiff, Sue Dooling, Carl Bouldin and Stuart Sherbal).
On August 15, 2008, Javier Paula sent an e-mail to the same four coworkers.
On August 20, 2008, Javier Paula sent another religious themed e-mail called "A Question of Ownership" to the same four co-workers. Plaintiff's name was listed last on the e-mail.
On September 24, 2008, Sue Dooling forwarded an e-mail to the usual four co-workers. She also included the former receptionist (Susan Reamer) and her daughter as recipients.
On October 2, 2008, Javier Paula sent yet another e-mail to the same group of four co-workers, including Plaintiff Gary.
On October 9, 2008, Javier Paula sent two more e-mails to the usual four co-workers. The commentary to one of those e-mails read: "Make sure your first line of defense against theological error is a thorough knowledge of the truth."
On October 15, 2008, Javier Paula sent an e-mail to the same four co-workers.
On October 16, 2008, Javier Paula sent an e-mail to the same four co-workers. The e-mail was titled, "It Could Be Today." The commentary read: "If you lived today as if it were your last day . . . what would you do differently?"
On October 23, 2008, Javier Paula again e-mailed the same group of four co-workers.
The first devotional, "Horizontal Versus Vertical" contained a line from the Bible-"Exodus 2:12 Glancing this way and that and seeing no one, he killed the Egyptian and hid him in the sand."
More religious themed e-mails were sent by Javier Paula to the same group of four co-workers on November 12, 2008, December 10, 2008, and January 7, 2009.
On January 8, 2009, Javier Paula sent an email to the same group of four co-workers.
On that same day, January 8, 2009, Plaintiff Gary sent an e-mail to Javier Paula forwarding a Bible passage.
On January 15, 2009, Sue Dooling sent an e-mail to Plaintiff Gary along with four other recipients.
On January 19, 2009, Javier Paula sent an e-mail to the usual group of four co-workers including Plaintiff Gary.
On or about January 19, 2009, Plaintiff Gary responded to the e-mail she received from Javier Paul by forwarding to Javier Paula an e-mail containing the thought of the day from ethought.com that Plaintiff had received on that date.
On January 23, 2009, Javier Paula sent an e-mail to the usual group of four co-workers.
On February 2, 2009, Javier Paula sent an e-mail to the usual four co-workers. The subject of the e-mail was "Daily Devotion" and the e-mail contained a passage entitled: "Why Work?"
On February 17, 2009, Phil Bandy, a detailer at RCF, forwarded an e-mail to 20 RCF employees.
Three of the 10 notes in the e-mail sent by Mr. Bandy provided as follows: One note read: "When your computer is mysteriously turned off and you . . . want to say which one of you turned off my computer? You need to pray at work." A second note read: "When you hear a coworker call your name and the first thing that crosses your mind is `What the . . .does she want now?' You need to pray at work." The third note read: "If you have ever thought about poisoning, choking, punching or slapping someone that you work with— you need to pray at work."
On that same date, February 17, 2009, another RCF employee, Joe Nicotra, sent Plaintiff a YouTube link where the lyrics included "whipping somebody's butt."
Stuart Sherbal, another RCF employee, saw Plaintiff viewing the YouTube video and told Plaintiff he had received the same YouTube video e-mail before and they laughed.
On April 17, 2009, Javier Paula sent an e-mail to the usual four co-workers, including Plaintiff Gary. The subject of the email was "Daily Devotional' and the e-mail contained a passage entitled "A Job Versus a Calling."
Up until the receipt of this e-mail, it is undisputed that Plaintiff Gary never complained about the inspirational e-mails she was receiving nor did she ever tell any of her co-workers that she did not want to receive them.
Plaintiff Gary responded to Javier Paula's April 17, 2009 e-mail by phone and e-mail.
Plaintiff Gary copied Bob Suppe, the owner of RCF
Plaintiff Gary also copied and pasted RCF's e-mail policy in her e-mail to Paula Javier.
On April 17, 2009, Javier Paula came into Plaintiff Gary's office, apologized for offending Plaintiff Gary in any way, told her that she was not attempting to harass her, agreed not to send any more e-mails, and told Plaintiff Gary that if she did not want to receive the e-mails she should have said something sooner.
It is undisputed that this is the first time Plaintiff told Javier Paula, or any other RCF co-worker, to stop sending the inspirational e-mails.
April 17, 2009, the day Plaintiff Gary first asked any RCF co-worker to stop sending her inspirational e-mails is the last day she alleges that she experienced religious harassment at RCF.
In the subject action, Plaintiff Gary is seeking to recover a minimum of $100,000 for each and every religious themed e-mail she received from Sue Dooling and/or Javier Paula.
One day, a RCF employee, Stuart Sherbal was relieving Plaintiff Gary at the receptionist desk. When she returned, there was a crumbled up piece of paper next to the trash can. She picked it and read it, and it had a scriptural reference on it. She went to Stuart and asked him if it was meant for her. He said it was not, he was just jotting something down and tried to throw it away.
Another incident occurred in January 2009. Routinely, Plaintiff Gary would place lunch orders for the entire office. Sue Dooling would choose the place where the office would order lunch. One day in January 2009, Sue Dooling brought in a menu and told Plaintiff Gary that they were going to try someplace new, the Hollywood Grill. Plaintiff Gary wrote down her lunch order on the list.
Later, Plaintiff Gary learned that Sue Dooling's daughter worked at the place from which RCF was to order lunch that day. She also was aware that the Hollywood Grill was not "new", since the restaurant had been around for some time. Plaintiff Gary then scratched her name off the list and did not order lunch from the restaurant.
Plaintiff Gary interpreted the statement by Sue Dooling that "she was Christian", which occurred on the first day of her employment, as degrading and an offensive slight, and Plaintiff believed that every inspirational e-mail that she received from Sue Dooling was sent with bad intentions.
Plaintiff claims she interpreted each and every inspirational e-mail that was sent to her by either Sue Dooling or Javier Paula as harassing and offensive.
Every time Plaintiff's name appeared on the e-mail recipient list alphabetically "out of order", Plaintiff believes it further supported her claim that Sue Dooling and Javier Paula were attempting to harass her.
Even though the placement of Plaintiff Gary's name on the e-mail "out of order" would also mean that everybody else's name was also out of order, Plaintiff Gary believes that the e-mails were meant solely to harass her, and not anybody else.
Yet, even if the recipient names were in the correct order, the e-mails were still sent to harass her.
When Plaintiff Gary, herself, sent inspirational e-mails with recipient names out of order alphabetically, she did not mean anything by it. It was just a coincidence.
Plaintiff Gary concedes that she does not know whether Sue Dooling or Javier Paula imparted any significance to the order in which they listed the recipients' names, and she admits she is just speculating that they did so in an attempt to harass her.
Yet, when Plaintiff Gary, herself, sent inspirational e-mails that included other recipients, non-RCF co-workers, her actions were meaningless.
All of the e-mails that were sent to Plaintiff she interpreted as harassing, yet none of the e-mails she sent to them were harassing in any way.
Plaintiff claims that during the gaps in time that she stopped sending e-mails of her own, or responding positively to the e-mails sent by the others, Sue Dooling and Javier Paula should have known that her silence constituted some type of objection or protest for the continued receipt of their e-mails.
Plaintiff expected Sue Dooling and Javier Paula to interpret her silence in direct contradiction to the manner in which she, herself, interpreted the silence of other recipients.
Plaintiff attributes a sinister motive to Javier Paula's e-mails, which she claims were not always the devotional from that particular day, because at times Javier Paula retrieved the devotional from the archives of the website from which she acquired her inspirational e-mails. Plaintiff believes that if the e-mails were sent as daily devotionals, the date they were sent should match up with the date that the e-mails were found on the website. Plaintiff alleges that the fact that Javier Paula may have forwarded daily devotionals from archives rather than that day's daily devotional, reinforces her position that the e-mails were sent only to harass her.
Plaintiff contends that even though she responded positively to the inspirational e-mails she received, she did not mean what she said.
Turning to the substance of the inspirational e-mails, not one of the e-mails contained a single reference to Plaintiff Gary. Not one of the e-mails ever referred Plaintiff Gary, yet she interpreted each and every e-mail as being about her and she interpreted all of the e-mails as intending to target her.
Each and every e-mail which contained the word "kill" or poison", Plaintiff Gary interpreted as a veiled threat to kill or poison her. For instance, Javier Paula's October 23, 2008 e-mail which contained two passages and contained a line from the Bible— "Exodus 2:12 Glancing this way and that and seeing no one, he killed the Egyptian and hid him in the sand.", was interpreted by Plaintiff as a threat by Javier Paula to kill her.
Plaintiff Gary also interpreted the lunch incident discussed previously as a desire by Sue Dooling to poison her. As discussed above, one day in January 2009, Sue Dooling decided the office was going to order lunch from a "new" restaurant. Plaintiff Gary had planned on ordering lunch that day until she learned that Sue Dooling's daughter worked at the place and that the place was not "new" in the sense that it had just opened.
Plaintiff Gary was the person at the office that placed the lunch orders, and she removed her name for the lunch order that day.
Plaintiff Gary however contends that Sue Dooling chose that particular lunch place with the intent to poison Plaintiff Gary.
Plaintiff believes that this lunch incident taken in conjunction with the Bandy e-mail which referred to "poisoning" supports her belief of the poison attempt on her. Plaintiff points to the temporal proximity between the lunch incident which occurred in January 2009, and the e-mail by Phil Bandy in February 2009, as additional support of proof of the poison plot.
As to the June 10, 2008 inspirational e-mail from Sue Dooling that included the language, "that the road to success is not straight . . .," Plaintiff interpreted this e-mail as being meant specifically for her and that the language "the road to success is not straight" was "almost like a slap in the face." Plaintiff interpreted this e-mail as Sue Dooling rejecting Plaintiff's spirituality during the conversation the first day and then telling her, personally, through this e-mail that the road to success is not straight.
Plaintiff also questioned Sue Dooling's sincerity of the e-mail because the text of the e-mail instructed the sender to forward the e-mail to 10 people, but Sue Dooling only sent it to 6. It appeared to Plaintiff therefore that Sue Dooling had not fully read the e-mail and was focusing on the "questionable commentary."
On the other hand, when Plaintiff sent an inspirational e-mail on July 3, 2008, and the e-mail instructed the sender to forward the e-mail to 10 people, but she only sent it to 8, she did not mean anything by it. There was nothing sinister in her decision to send it to only 8 out of 10 people.
The incident in which Plaintiff Gary saw a crumbled up piece of paper next to the trash can after a co-worker Stuart Sherbal had relieved her, and when she asked Stuart if the paper was meant for her, he said it was not, is further support to Plaintiff Gary that she was being harassed.
Plaintiff interpreted Javier Paula's July 1, 2008 e-mail about "Sisters Building Sisters" as a general attack at Plaintiff and the whole idea that she was not a Christian.
The July 31, 2008 e-mail sent by Javier Paula that included the text "A city with a weak of fallen wall . . .", Plaintiff interpreted that statement to be directed at her and to mean that her co-workers intended to just walk all over her.
The August 1, 2008 e-mail sent by Javier Paula that read: "Instead of trying to defend yourself . . . Let God defend you. If you give back kindness for unkindness . . . If you will repent of attempting to make others treat you right . . .", Plaintiff interpreted as being targeted at her and meaning we are giving back your kindness with our unkindness. We know that we are harassing you.
The August 6, 2008 e-mail sent by Javier Paula included text that read: "Anyone who has ever been stranded in the wilderness sitting has wondered when and how God would meet their needs." The remainder of the passage talks about God meeting the needs of people stranded in the wilderness.
Plaintiff Gary focuses on four or five words of this e-mail— "stranded in the wilderness"-and interpreted it as Javier Paula saying to her that she believes in the wrong God. You need to come over here with us and stop being stranded in her wilderness.
Even though she claims to have found the e-mail to be offensive, Plaintiff Gary responded positively: "That's the word! May not come when you em, but he's always on time and it's always good . . . Have a great evening!"
Javier Paula's August 15, 2008 e-mail which included the text, "at what point will the athlete lose concentration and collapse under pressure," was interpreted by Plaintiff as to target her and say at what point will Plaintiff lose concentration and bolt out of here.
Sue Dooling's September 24, 2008 e-mail about "Daddy's Empty Chair", was interpreted by Plaintiff Gary to mean that Sue Dooling did not like her and wanted her to get up and get out. The e-mail was Sue Dooling's way of saying to Plaintiff that she no longer wanted Plaintiff to work at RCF.
Plaintiff admits that she does not have any evidence to support her contention as to Sue Dooling's intent.
Javier Paula's October 2, 2008 e-mail containing a passage entitled "Coming Out of the Stronghold" and which contained a scriptural reference that read, "Do not stay in the stronghold, Go into the land of Judah . . .", was interpreted by Plaintiff as Javier Paula's way of saying that Plaintiff must alter her beliefs and actions or leave her place of employment.
Javier Paula's October 16, 2008 e-mail that read: "If you lived today as if it were your last day . . . what would you do differently?", was interpreted by Plaintiff as a threat that if she did not think, act or respond differently, she would no longer be an employee at RCF.
Plaintiff Gary has no evidence that this sentence was intended to be a reference to her having 24 hours before she must abandon her job or get fired, or that the sentence was intended to reference her in any way.
As to the e-mail sent by Philip Bandy on February 17, 2009 to 20 RCF employees, Plaintiff believes that the e-mail was forwarded by Philip Bandy to the 20 RCF employees specifically to harass her.
Plaintiff's speculations as to the interpretations of these e-mails are not substantiated by any objective facts in the record.
Plaintiff Gary's claim of sexual harassment stems from an isolated incident that occurred on September 16, 2008. On that date, one of RCF's Field Supervisors, Mark Shanor, "picked up a large set of rolled up blue prints and hit [her] on [her] butt with it."
Plaintiff Gary immediately complained to Sue Dooling about Mark Shanor's conduct.
Soon thereafter, Sue Dooling handed Plaintiff Gary a typed disciplinary document detailing Ms. Gary's allegations against Mr. Shanor. Ms. Gary signed the document and also wrote on the back of it her recollection of the events.
Mark Shanor never did it again.
Plaintiff Gary admits that her sexual harassment claim is time-barred based on the date the harassment allegedly occurred— September 16, 2008, since she did not file her charge of discrimination with the Delaware Department of Labor until June 22, 2009, over 260 days after the incident and well outside the 120 day limitation period.
Despite Plaintiff Gary's alleged discovery, it is undisputed that RCF had actually disciplined Mr. Shanor in September 2008 for the incident. It is undisputed that Sue Dooling handed Plaintiff Gary a typed disciplinary document detailing her allegations against Mr. Shanor. It is undisputed that Plaintiff Gary signed the document and also wrote on the back of it her recollection of the events. It is undisputed that both Plaintiff and Mr. Shanor signed the document and that it was placed in his personnel file.
The facts set forth above detail the factual predicate for Plaintiff's religious/spiritual harassment claim and her claim of sexual harassment. The remaining recitation sets forth facts impacting Plaintiff's retaliation claim. Some additional facts have been included to provide additional insight into Plaintiff's employment relationship with RCF.
Plaintiff Gary had a tardiness issue and on September 10, 2008, Sue Dooling sent her an e-mail reprimanding her for repeated lateness.
In January 2009, RCF changed its attendance policy.
In April 2009, Sue Dooling requested that an outside agency review the RCF employee handbook and to make suggestions on changing it. Sue Dooling handed a modified version of the RCF employee handbook on April 22, 2009 with proposed changes to Plaintiff Gary and asked Plaintiff Gary to forward it to the consultant for review.
Sue Dooling told Plaintiff Gary she did not need to make any copies of the April 22, 2009 version of the handbook that was being forwarded to the outside consultant.
When RCF changed its attendance policy in January 2009, Sue Dooling mailed all the employees and required everyone to sign an acknowledgement form.
Sue Dooling never intended that the lateness policy be changed after the January 2009 revisions. Yet, Plaintiff Gary believed that Sue Dooling was making permanent changes to the handbook on April 22, 2009 when she sent out the modified handbook to the third party.
On March 3, 2009, Plaintiff Gary received a disciplinary verbal warning for violations of RCF's attendance policy.
On April 28, 2009, Plaintiff Gary was called into a meeting with Dan Reutter (RCF's Vice-President who became President)
Plaintiff Gary protested the verbal warning she received for tardiness. Plaintiff Gary contended that in light of the revisions to the employee handbook of April 2009, she should not have received a verbal warning on April 28, 2009.
Plaintiff Gary also complained to Sue Dooling about another co-worker, Marc Klair, who she contended burped in her office without excusing himself.
Another grievance that Plaintiff Gary had was with another co-worker, Stuart Sherbal, in that he allegedly passed gas in her office.
In any event, after a prior complaint or two, Plaintiff complained about Stuart Sherbal's behavior on March 24, 2009, he apologized, and it resolved the issue.
In her summary judgment submissions, Plaintiff clarifies that these complaints of burping and passing gas, are not related to her complaint of sexual or religious discrimination/harassment
On May 8, 2009, Plaintiff Gary was called into Dan Reutter's office and told that RCF was eliminating her position.
Mr. Reutter never said anything about connecting the job elimination to Plaintiff Gary's tardiness. In fact, it was clear to Plaintiff Gary that she was not being terminated for performance issues— her attendance record was "absolutely not" the reason that RCF eliminated her position.
Mr. Reutter told Plaintiff she could file for unemployment benefits.
RCF has not filled Plaintiff Gary's receptionist position since it eliminated Plaintiff Gary's job in May 2009-over four years ago.
Plaintiff Gary alleges that, after RCF eliminated her job, her family members "began acting weird and slandering [her] and [her] fiancé on Facebook." The statements that Plaintiff is referring to, never reference her, but she claims it was "all written in code."
Plaintiff also believes that her family was not just hacking into her e-mails but also putting an eavesdropping device in her home to monitor her.
Plaintiff Gary also monitored the Facebook pages of former RCF co-workers, and believes that her former co-workers were acting in concert with her family, to slander her.
One example of a coded message, is a Facebook posting by Mr. Bouldin on September 27, 2010, in which Mr. Bouldin stated: "Someone explain why the good die young . . . Why the bad die slow and outlive everyone?"
Carl Bouldin also made a number of Facebook postings, which included updates about his activity on Farmville, which Plaintiff interpreted as some of the postings being meant to target her and for her to see.
Plaintiff Gary also believes a September 27, 2010 Facebook posting from Michael Dooling, who Plaintiff believes is Sue Dooling's nephew, was a reference to her.
Plaintiff believes that Michael Dooling's post, whom she never met, and the response to his post by someone else she never met, were meant as threats to her because he used the word "murder."
Plaintiff Gary acknowledges that she cannot prove the posts are about her but cannot help but feel that some of the posts were meant for her eyes to see and become intimidated and fearful.
Plaintiff Gary also alleged that she was being stalked by people "associated in some way with RCF.
When considering a motion for summary judgment the court is required to examine the record to determine whether genuine issues of material fact exist.
The moving party initially bears the burden of establishing the absence of a genuine issue of material fact. Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, the non-moving party must go beyond the pleadings to designate specific facts showing that there is a genuine issue for trial.
The question on summary judgment is whether any rational finder of fact could find, on the present record, viewed in the light most favorable to the non-moving party, that the substantive evidentiary burden had been satisfied.
The Delaware Supreme Court has explained that a complaining plaintiff's subjective personal judgments or beliefs, without more, will not raise a genuine issue of material fact as to whether she has been discriminated against.
Moreover, a court should not allow absurd or fanciful speculations to defeat a summary judgment motion.
Plaintiff Gary has alleged claims under the Delaware Discrimination in Employment Act (DDEA)
The Delaware Discrimination in Employment Act is substantially the same as the federal counterpart.
The three claims presented herein will each be discussed in turn.
In order to establish a prima facie claim of religious/spiritual harassment, the plaintiff must establish that: 1) she is a member of a protected class; 2) she was subject to uninvited/unwelcome harassment; 3) the offending conduct was because of her religion; 4) the harassment was severe and pervasive; 5) the offending conduct was both objectively and subjectively offensive; and 6) the existence of respondeat superior liability.
RCF makes numerous arguments to support its contention that Plaintiff cannot make out a prima facie claim for religious/spiritual harassment. The court need only entertain one.
Before being permitted to impose liability, and thereafter seek damages of at least $100,000 per e-mail, Plaintiff must establish that she clearly communicated that the e-mails, of which she now complains, were not welcomed. In order to constitute harassment, the conduct must be unwelcome in the sense that the employee did not incite or solicit it, and in the sense that the employee regarded the conduct as undesirable or offensive.
In this case, it is undisputed that the Plaintiff actively encouraged the receipt of the e-mails, positively responded to them, and sent inspirational/religious themed e-mails of her own. Specifically, in response to the very first religious themed e-mail she received, Plaintiff Gary responded "Very encouraging and true as well . . . U Have a Blessed Day . . ."
In fact, it was Plaintiff Gary that initially sent an inspirational e-mail to Javier Paula before Javier Paula first started sending any inspirational e-mails to Plaintiff Gary.
Plaintiff positively responded to Sue Dooling's e-mails on multiple occasions, "Very encouraging and true as well,"
On multiple occasions, Plaintiff Gary sent her own inspirational, religious themed e-mails-she sent a religious themed e-mail on July 1, 2008,
It is also undisputed that not one of the inspirational, religious themed e-mails contained a single reference to Plaintiff Gary. There was nothing about the e-mails that were overtly offensive in any respect. The substance of the e-mails did not reference Plaintiff in any way.
Claims of harassment are very serious allegations. Before a plaintiff is allowed to pursue claims of harassment, it is incumbent upon that plaintiff to first establish that the conduct of which the plaintiff complains was unwelcomed. When Plaintiff said: "Keep `em coming," she should be held at her word. A plaintiff should not be permitted to base a harassment claim on a guessing game as to what was she really thinking when she actively and positively encouraged the continued receipt of the religious themed e-mails. It is inherently inequitable for Plaintiff to actively encourage the continued receipt of inspirational religious themed e-mails, and then turn around and seek $100,000 for each e-mail that she received.
"Keep `em coming" means the exact opposite of "stop." Plaintiff knew how to say "Keep `em coming"
Plaintiff is required to mean what she says, and say what she means. She cannot mislead her co-workers into thinking she is enjoying the sharing of inspirational religious themed e-mails and then be permitted to impose liability because her secret thoughts were not consistent with her words and conduct.
Indeed, prior to April 17, 2009, both Sue Dooling and Javier Paula believed that Plaintiff Gary enjoyed receiving the e-mails and wanted to continue receiving them, based on Plaintiff Gary's positive reactions to the e-mails.
Prior to April 17, 2009, there was nothing about the e-mails themselves, Plaintiff's responses, or Plaintiff's actions, which indicated anything but a positive reaction to receiving them. Both by her words and by her conduct, Plaintiff actively encouraged the continued receipt of the e-mails. The first time she said stop, on April 17, 2009, her co-workers stopped.
On April 17, 2009, the day Plaintiff Gary first communicated to any of her co-workers that the religious themed e-mails were unwelcomed and she wanted to stop receiving them, was the last day she alleges that she experienced religious harassment at RCF.
The court notes in passing that there are additional elements that need to be met in order to establish a prima facie claim of religious/spiritual harassment under the DDEA. Plaintiff would need to establish that the offending conduct was not only subjectively offensive but also objectively offensive as well. If the court had continued its analysis of Plaintiff's claim for religious/spiritual harassment under the DDEA, Plaintiff would also fall short of establishing a prima facie showing of meeting this element because there was no objective evidence to support Plaintiff's impression that she was being singled out, belittled and humiliated.
For a discrimination claim to survive summary judgment, the law requires more than an assertion of the plaintiff's subjective reaction, there must also be objective proof.
Plaintiff would need to establish that as a result of the receipt of these inspirational, religious themed e-mails her workplace was permeated with discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment.
Plaintiff cannot make this showing because the e-mails are benign, and no objective observer could find they were intended to intimidate, ridicule or insult her. The e-mails are devoid of any reference to Plaintiff or her spiritual beliefs. They lack even a single reference to her or to her spiritual beliefs, and they fail to attack or show any hostility toward either. No reasonable fact finder could conclude that the content of the religious themed e-mails shared between the RCF co-workers showed antipathy or animosity towards Plaintiff's spiritual or religious convictions.
RCF is entitled to summary judgment on Plaintiff's claim of spiritual/religious harassment.
Plaintiff Gary alleges that she was sexually harassed when on September 16, 2008, Mark Shanor picked up a large set of rolled up blue prints and hit her on the buttocks with the blue prints.
In order to preserve her claim, Plaintiff was required to file a charge of discrimination with the Delaware Department of Labor within 120 days after the incident.
Plaintiff's claim arose on the date of the incident-September 16, 2008. It is undisputed that there is no claim of sexual harassment after that date.
Plaintiff concedes that her claim based on this incident is not timely.
The undisputed facts establish that Sue Dooling immediately met with Plaintiff and Mark Shanor. Sue Dooling handed Plaintiff a typed disciplinary document detailing her allegations against Mark Shanor. Plaintiff signed the document and also wrote on the back of it her recollection of the events. Mr. Shanor signed the document as well. This document dated September 17, 2008 that Mr. Shanor and Plaintiff signed was placed in Mr. Shanor's personnel file. The document explained the incident, explained that Mark Shanor apologized, and promised never to do it again.
It is undisputed that Mark Shanor never did it again.
Plaintiff's claim arose on the date of the incident-September 16, 2008. On that date, she knew the facts which formed the basis of her claim.
Moreover, an employee cannot dictate that the employer select a certain remedial action.
In the subject action, the undisputed facts establish that a written document signed by both parties to the incident was placed in Mark Shanor's personnel file and that he never did it again. It is undisputed that management's actions effectively ended the conduct about which Plaintiff complained.
Plaintiff's claim of sexual harassment is time-barred as a result of Plaintiff's failure to file a charge of discrimination with the Delaware Department of Labor within 120 days after the September 16, 2008 incident.
Even if Plaintiff's sexual harassment claim was not time-barred, Plaintiff would also have fallen short of establishing a prima facie cause of action. To establish a prima facie cause of action for a sexual harassment claim, the plaintiff must show: 1) she suffered intentional discrimination because of her sex; 2) the discrimination was severe or pervasive; 3) the discrimination detrimentally affected the plaintiff; 4) the discrimination would detrimentally affect an objectively reasonable woman; and 5) the existence of respondeat superior liability.
First, Mr. Shanor's single act, while inappropriate, did not rise to the level of the severity required for a sexual harassment claim. An isolated incident (unless extremely serious) does not rise to the level of severe and pervasive discrimination that is required to establish a prima facie sexual harassment claim.
The DDEA, like its federal counterpart, Title VII, does not operate as a general civility code nor mandate a happy workplace.
Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or abusive— is beyond the DDEA's purview.
Furthermore, even if Plaintiff could prove that the offending behavior rose to the level of severe and pervasive discriminatory conduct, plaintiff cannot establish employer liability. Mr. Shanor had never hit anyone on the buttocks with blueprints prior to this incident. RCF, upon learning of the incident, immediately disciplined Mr. Shanor and he never did it again. RCF took prompt and effective remedial action to immediately end the offending behavior. These facts indicate that RCF had an effective procedure for dealing with discrimination, that Plaintiff knew of the procedure, and that the system worked to stop harassment in a timely fashion. Even viewing the facts in the light most favorable to plaintiff, RCF is shielded from liability for Mark Shanor's isolated incident on September 16, 2008.
Having found that Plaintiff failed to identify a genuine issue of material fact on two essential elements of her prima facie sexual harassment claim, the remaining elements of the claim need not be addressed.
RCF is entitled to summary judgment on Plaintiff's claim of sexual harassment.
Plaintiff's third claim is that RCF retaliated against her for engaging in protected activity.
Plaintiff's position was eliminated on May 8, 2009. The undisputed evidence establishes that RCF eliminated Plaintiff's position due to a company-wide reduction in force. RCF has not hired a new receptionist since it eliminated the position— a period of more than four years.
The undisputed evidence further establishes that between February 18, 2009 and May 8, 2009, RCF eliminated fifteen positions-fourteen of which (all but Plaintiff's position) were held by men. There is no evidence whatsoever that Plaintiff's gender played any role in RCF's decision to eliminate Plaintiff's position. As to Plaintiff's religious or spiritual beliefs, there is a lack of evidence that anyone at RCF held any animosity toward Plaintiff as a result of those beliefs. The court has already held that the sharing of religious themed e-mails did not constitute unlawful religious or spiritual discrimination.
Plaintiff's retaliation claim is subject to the McDonnell Douglas burden-shifting analysis.
In order to engage in protective activity, Plaintiff must have opposed unlawful discrimination in violation of the DDEA. When there is no objective basis that the complained about behavior constituted discrimination under the DDEA, the plaintiff is unable to establish a prima facie case of retaliation.
Plaintiff points to the fact that approximately three weeks after she complained about the religious themed e-mails she was terminated. This timing allegation is not enough to establish a prima facie claim of retaliation. The mere temporal proximity of Plaintiff's complaints about the religious themed e-mails, or any of her other complaints, and her termination is not sufficient to create a triable issue as to whether her termination was motivated by retaliatory intent.
The record does not support a prima facie claim of retaliation. Although Plaintiff alleged that she engaged in protected activity, she has not established any adverse employment action taken against her because of such alleged activity.
Under the McDonnell Douglas framework, the plaintiff-employee must first establish a prima facie case of discrimination. If the plaintiff successfully establishes the elements of a prima facie case, the burden shifts to the defendant-employer to articulate a legitimate, nondiscriminatory reason for the adverse employment decision. If the employer shows a legitimate reason, the burden shifts back to the employee, who, in order to prevail against a motion for summary judgment, must show that the employer's articulated reason is false and that retaliation was the real reason for the adverse action.
In order to raise an inference of pretext in the face of the defendant's legitimate, nondiscriminatory explanation, the plaintiff must undermine the defendant's credibility to the point that a reasonable jury could not find in its favor.
In the subject action, there is nothing in the record to suggest that RCF's elimination of Plaintiff's position was pretextual. The uncontroverted evidence establishes that Plaintiff's position was eliminated. Plaintiff offers no evidence, other than her unsupported subjective testimony, to support her claim that RCF retaliated against her. Speculation is insufficient to create a fact issue as to pretext. Nor can pretext be established by mere conclusory statements of a plaintiff who feels that she has been discriminated against.
Moreover, in order to discredit the employer's proffered reason, the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer was wise, shrewd, prudent or competent.
Plaintiff has failed to discredit RCF's proffered reasons for her termination. She has not shown that RCF's reason for her termination was pretextual. In fact, there was a total lack of evidence in this regard. Plaintiff has failed to point to any evidence, and there is nothing in the record, to indicate that Plaintiff's termination was motivated in any way by a discriminatory animus. Because Plaintiff is unable to carry her burden under the McDonnell Douglas framework, summary judgment should be granted to RCF on the claim of retaliation.
For the sake of completeness, Plaintiff also appears to contend that RCF retaliated against her by giving her a verbal warning for tardiness on April 28, 2009. Aside from the fact that the record shows that the Plaintiff had an attendance problem and the verbal warning was probably justified, Plaintiff admits that the verbal warning had nothing whatsoever to do with RCF's decision to eliminate her position.
Even if the verbal warning was not justified, Plaintiff is not permitted to seek redress from this court for every decision her employer made that she did not believe was justified.
The verbal warning issued to Plaintiff on April 28, 2009 was not an adverse employment action because the undisputed facts show that it did not affect the terms and conditions of her employment. The verbal warning only advised Plaintiff that she could be subject to future disciplinary action for violations of the attendance policy.
Indeed, Plaintiff admits that the warning had no tangible effect on her.
Viewing the facts in the light most favorable to Plaintiff, the court concludes that Plaintiff has failed to establish a prima facie case of retaliation under the Delaware Discrimination in Employment Act.
For the reasons set forth herein, RCF's motion for summary judgment should be granted in its entirety. All of Plaintiff's claims should be dismissed with prejudice.
Plaintiff cannot state a claim for a religious/spiritual harassment under the DDEA based on her receipt of the religious themed inspirational e-mails because Plaintiff actively encouraged their receipt, sent religious themed e-mails of her own, and the very first time she asked her co-workers to stop sending them to her, they stopped.
Plaintiff cannot state a claim for a sexual harassment claim under the DDEA because her claim stems from one isolated incident that is time-barred. The conduct, although inappropriate, does not rise to the level of severe or pervasive enough to create an objectively hostile or abusive work environment as required by the DDEA in order to establish a prima facie cause of action. Moreover, as soon as the matter was brought to RCF's attention, RCF immediately addressed the inappropriate conduct and it never happened again.
Plaintiff cannot state a claim for retaliation because RCF did not engage in any unlawful activity. Plaintiff has not presented any evidence of a causal connection between her complaint and the elimination of her position, or that RCF's company-wide reduction in force was a pretext for retaliation under the DDEA.
Considering the record in the light most favorable to Plaintiff, this court cannot find any evidence or genuine dispute of material fact that would support the inference that Plaintiff was terminated or otherwise discriminated against on the basis of her religious/spiritual beliefs or on the basis of sexual harassment.
