Mulrooney v. Corp. Serv. Co.

SCOTT MULROONEY, Plaintiff,

v.CORPORATION SERVICE COMPANY, Defendant.

Civil Action No. 12-163-SLR-CJB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

Dated: March 27, 2013

REPORT AND RECOMMENDATION

Plaintiff Scott Mulrooney ("Plaintiff") filed this action against Defendant Corporation Service Company ("Defendant" or "CSC") alleging a violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq., and a violation of the implied covenant of good faith and fair dealing under the law of the State of Delaware. (D.I. 1) Presently pending before the Court is Defendant's Motion for Summary Judgment ("Motion"). (D.I.,4) For the reasons that follow, I recommend that Defendant's Motion be DENIED.

I. BACKGROUND¹

Plaintiff is a resident of the State of Delaware and former employee of Defendant. (D.I. 1 at ¶ 1) Defendant is a Delaware corporation with its corporate headquarters in Wilmington,Delaware. (Id. at ¶2)

Plaintiff began working for Defendant on December 14, 2006 in CSC's Information Technology department. (Id. at ¶ 11; D.I. 5 at 1) In September of 2008, Plaintiff alleges that his supervisors arranged for a coworker to perform a "covert" assessment of his skills. (D.I. 1 at ¶¶ 18, 52) Plaintiff was not informed of this assessment or its results, which indicated that Plaintiff lacked necessary technical skills to perform his job. (Id.) As a result, Plaintiff was transferred to a different department and given a "Success Plan" by his supervisor. (Id. at ¶¶ 19-20, 53-54) Plaintiff was falsely told that this was not a corrective action plan, when in fact it is alleged that this was a plan implemented for disciplinary purposes and meant to facilitate Plaintiff's later termination. (Id. at ¶¶ 19-20, 53-55)

Subsequent to his transfer and the implementation of the Success Plan, Plaintiff received a gift card and was praised in an e-mail by a CSC executive for his on-job performance. (Id. at ¶¶ 24-25) Shortly thereafter, Plaintiff took a pre-approved two week vacation (from December 23, 2008 through January 6, 2009); while on this vacation, he suffered a re-aggravation of a pre-existing back injury. (Id. at ¶ 26) Upon return to work, Plaintiff requested accommodations for this back injury, including being provided an ergonomic chair and a temporary work schedule adjustment. (Id.) On January 13, 2009, one day after he had returned to work on a half-day basis, Plaintiff was fired. (Id. at ¶ 31) He was told he was fired because he "was no longer a model employee," but CSC did not cite any specific performance issue at the time of firing. (Id.)

Following his termination, on February 10, 2009, Plaintiff filed a charge of discrimination with the Delaware Department of Labor ("DDOL"). (Id. at ¶ 7) On November 23, 2010, the DDOL issued its Final Determination and Right To Sue Notice. (D.I. 5, ex. A) This noticeinformed Plaintiff of his right to request that the Equal Employment Opportunity Commission ("EEOC") perform a Substantial Weight Review. (Id.) On November 30, 2010, Plaintiff sent a letter to the EEOC requesting that they perform a Substantial Weight Review of the DDOL's findings. (D.I. 10, ex. 5) On July 22, 2011, Plaintiff, through his attorney, sent a letter to the EEOC requesting the issuance of a Right to Sue Notice ("Notice"). (D.I. 1 at ¶ 8; D.I. 10, ex. 2 (hereinafter, "Fasic Affidavit"), ex. A; D.I. 12, ex. 2 (hereinafter, "Porter Affidavit") at ¶ 4) A copy of this Notice is in the record. On the Notice, next to the signature of the EEOC's District Director, is a line titled "Date Mailed"; above that line, it is written that the Notice was mailed on August 1, 2011. (D.I. 5, ex. B) The Notice is addressed to Plaintiff at his then-Bear, Delaware address; a "cc:" line at the bottom of the notice indicates that it was also to be mailed to Plaintiff's counsel, G. Kevin Fasic, Esquire, as well as an attorney for Defendant, Sarah E. DiLuzio, Esquire. (Id.) Karin Porter, the EEOC investigator assigned to Plaintiff's case, has provided a declaration in which she states that she did in fact send this Notice to Plaintiff and Mr. Fasic on August 1, 2011. (Porter Affidavit at ¶¶ 3, 5-6)

On August 16, 2011, Rose Green, a paralegal in Mr. Fasic's office, called Ms. Porter to inquire regarding the status of the Notice. (Porter Affidavit at ¶¶ 3, 6; D.I. 10, ex. 3 (hereinafter, "Green Affidavit") at ¶ 3) Ms. Green alleges that Ms. Porter informed her that Plaintiff's request for a Notice was sent to the Department of Justice ("DOJ") in Washington, D.C., and that Ms. Porter refused to provide a phone number for the DO J office handling this request because "[Ms. Green] call[ed] too much." (Green Affidavit at ¶ 3) For her part, Ms. Porter alleges that on this call, she informed Ms. Green that the Notice had been sent to the parties; Ms. Porter denies that she informed Ms. Green that the request had been sent to the DOJ and that it was out of theEEOC's hands, stating that the "EEOC would never send such requests to the USDOJ in cases involving private employers." (Porter Affidavit at ¶¶ 6-7)

At some point on or before September 8, 2011, Defendant's attorneys received the Notice. (D.I. 12, ex. 1) On September 8, 2011, Ms. DiLuzio forwarded the Notice to Defendant. (Id.) However, Plaintiff and his attorney, Mr. Fasic, aver that they never received a copy of the Notice directly from the EEOC. (D.I. 10, ex. 1 (hereinafter, "Plaintiff's Affidavit") at ¶ 5; Fasic Affidavit at ¶ 8) On February 6, 2012, Mr. Fasic sent a letter to Defendant's attorneys, indicating that, notwithstanding Plaintiff's non-receipt of the Notice, Plaintiff intended to file a complaint in this Court. (D.I. 5, ex. C) In response, on February 9, 2012, Defendant's attorneys sent Mr. Fasic a letter enclosing the Notice and further indicating Defendant's belief that a filing would be untimely. (D.I. 5, ex. D; D.I. 10, ex. 4)

Mr. Fasic avers that he did not review the letter and the attached Notice until February 10, 2012. (Fasic Affidavit at ¶ 6) Mr. Fasic further avers that, when he did so, this was the first time that he learned that a Notice had purportedly issued on August 1, 2011. (Id.)

On February 10, 2012, Plaintiff filed his Complaint in this Court alleging a violation of the ADA (Count I) and a violation of the implied covenant of good faith and fair dealing under Delaware law (Count II). (D.I. 1) On March 6, 2012, instead of filing an Answer, Defendant filed the instant Motion, seeking dismissal of all counts contained in Plaintiff's Complaint because they are allegedly untimely. (D.I. 4; D.I. 5 at 2-3) This matter was referred to the Court by Judge Sue L. Robinson on April 3, 2012, to "conduct all proceedings, including alternate dispute resolution [and] hear and determine all motions, through and including the pretrial conference." (D.I. 11) The Motion was fully briefed as of April 9, 2012. (D.I. 5, 10, 12)

II. STANDARD OF REVIEW

A grant of summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585 n.10 (1986). If the moving party has demonstrated the absence of a genuine dispute of material fact, the nonmovant must then "come forward with specific facts showing that there is a genuine issue for trial." Id. at 587 (internal quotation marks omitted). If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, All U.S. 317, 322-23 (1986). During this process, the Court will "draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

However, in order to defeat a motion for summary judgment, the nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586-87; see also Podobnik v. United States Postal Service, 409 F.3d 584, 594 (3d Cir. 2005) (party opposing summary judgment "must present more than just bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue") (internal quotation marks and citation omitted). The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v.Liberty Lobby, Inc., 477 U.S. 242, 247-8 (1986) (emphasis in original). Facts that could alter the outcome are "material," and a factual dispute is genuine only where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 247-8. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (internal citations omitted). A party asserting that a fact cannot be—or, alternatively, is—genuinely disputed must support the assertion either by citing to "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials"; or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(A) & (B).

III. DISCUSSION

Defendant moves to dismiss both of Plaintiff's claims, on the grounds that they were not timely filed. (D.I. 5 at 2-3) The...