Gary v. R.C. Fabricators, Inc., C.A. No. 11C-12-208 FSS

CONSTANCE GARY, Plaintiff, v. R.C. FABRICATORS, INC., Defendant.

C.A. No. 11C-12-208 FSS

SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY

Date Submitted: April 30, 2014

July 30, 2014

COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD BE GRANTED AND PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED

Constance Gary, pro se, Plaintiff.

Joseph H. Huston, Jr., Stevens & Lee, P.C., Attorneys for Defendant.

PARKER, Commissioner

INTRODUCTION

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.

PROCEDURAL HISTORY

On June 22, 2009, Plaintiff Gary filed a Charge of Discrimination with the Delaware Department of Labor.¹ On September 30, 2011, the Delaware Department of Labor issued a no cause determination and corresponding right to sue notice.²

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)³ of religious/spiritual harassment, sexual harassment and retaliation remaining.

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.

FACTS

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.⁴ On September 30, 2011, the Delaware Department of Labor issued a no cause determination and corresponding right to sue notice.⁵

Plaintiff alleges three claims of discrimination in the subject action.

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 thebuttocks 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 emails. 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 emails.

CLAIM ONE: SPIRITUAL/RELIGIOUS THEMED 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.⁶

Religious Themed E-Mails

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.⁷ Sue Dooling said to Plaintiff Gary: "Well, you a Christian, honey."⁸ Plaintiff Gary just looked at Sue Dooling and shook her head.⁹

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.¹⁰ In fact, Plaintiff Gary admits that she had no problem with receiving inspirational e-mails because she thought Sue Dooling was attempting to be friendly.¹¹

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.¹²

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.¹³

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 courtnotes, however, that it is undisputed that Plaintiff Gary did, in fact, listen to gospel music on her computer during the work day.¹⁴

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.¹⁵ The two other recipients were Sue Dooling's daughter, and Susan Reamer- the former RCF receptionist that had preceded Plaintiff Gary.¹⁶

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.¹⁷ The text of the e-mail instructed the reader to forward the e-mail to 10 people, but Sue Dooling sent it to 6 recipients noted above.¹⁸

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!"¹⁹

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. Thee-mail forwarded a passage from Kenneth Copeland Ministries- Faith to Faith. The passage was entitled "Play to Win."²⁰ Ms. Dooling added the affirmation "Halelujah! (sic)" before forwarding it. Plaintiff Gary's name was listed first among the three co-workers.²¹

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. KEEP 'EM COMING. HAVE A BLESSED DAY."²² (emphasis added).

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.²³

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."²⁴ Javier Paula sent this e-mail to Plaintiff Gary because she believed, based on the e-mail she had just received from Plaintiff Gary and the e-mails they both received from Sue Dooling, that Plaintiff Gary would enjoy the email.²⁵

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!"²⁶

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 bro...