Free Reply Brief - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ROBIN D. NICHOLS, Plaintiff,| v. BENNETT DETECTIVE & PROTECTIVE AGENCY, INC., A Delaware corporation and ALLEN'S FAMILY FOODS, INC., A Delaware corporation, Defendants. | | | | | | | | | | | | CIVIL ACTION

No. 05-055 KAJ

JURY TRIAL DEMANDED

REPLY BRIEF IN SUPPORT OF DEFENDANT BENNETT DETECTIVE & PROTECTIVE AGENCY, INC.'S MOTION FOR SUMMARY JUDGMENT

MURPHY SPADARO & LANDON ROGER D. LANDON (ID#: 2460) PHILIP T. EDWARDS(ID#: 4393) 1011 Centre Road, Suite 210 Wilmington, DE 19805 (302) 472-8100 Attorneys for defendant Bennett Detective & Protective Agency, Inc.

February 16, 2006

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TABLE OF CONTENTS INTRODUCTION............................................. 1 ARGUMENT................................................. 1 I. PLAINTIFF HAS NOT ESTABLISHED HER CONSTRUCTIVE DISCHARGE CLAIM..................................... 1 II.PLAINTIFF HAS NOT ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE THAT BENNETT'S PROFFERED NONDISCRIMINATORY REASON FOR HER TRANSFER WAS A PRETEXT TO DISCRIMINATION........................... 5 CONCLUSION............................................... 7

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TABLE OF AUTHORITIES CASE PAGE

Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 1990).................................................... 4 Clowes v. Allegheny Valley Hospital, 991 F.2d 1159 (3d Cir. 1993)................................................. 2, 3 Cuffee v. Dover Wipes Company, 334 F. Supp.2d 565 (D. Del. 2004).................................. 1, 2, 3, 5 Duffy v. Paper Magic Group, Inc., 265 F.3d 163 (3d Cir. 2001)........................................... 1, 2, 4, 5 Parker v. State of Delaware Department of Public Safety, 11 F.Supp. 467(D. Del. 1998)............................. 3, 4

STATUES 19 Del. C. § 710 et seq.................................. 1 42 U.S.C. § 1981......................................... 1

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INTRODUCTION Plaintiff Robin N. Nichols has alleged a race and sex discrimination claim against Bennett Detective and Protective Agency ("Bennett")pursuant to 42 U.S.C. § 1981 and 19 Del. C. § 710 et seq. Plaintiff alleges that the

discrimination resulted in her constructive discharge from Bennett. In its opening brief, Bennett laid out the

criteria established by the Delaware District Court to support a constructive discharge claim. failed to meet these criteria. Also, plaintiff's answering brief does not establish by a preponderance of the evidence that Bennett's proffered nondiscriminatory reason for transferring plaintiff from the Allen's plant was a pretext to discrimination. ARGUMENT I. PLAINTIFF HAS NOT ESTABLISHED HER CONSTRUCTIVE DISCHARGE CLAIM. Plaintiff cites to the holdings in Cuffee v. Dover Wipes Company and Duffy v. Paper Magic Group, Inc. to support her constructive discharge claim. See Plaintiff's Brief in Opposition at 11. Unfortunately for plaintiff, Plaintiff has

these holdings support Bennett's stance that plaintiff cannot establish her constructive discharge claim. In

Cuffee, plaintiff's involuntary job transfer to a position

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with a reduced role, fewer responsibilities, and which foreclosed her opportunity for a raise, did not meet the standard for constructive discharge under Title VII. Cuffee v. Dover Wipes Company, 334 F. Supp.2d 565, 578 (D. Del. 2004). In another denial of a plaintiff's

constructive discharge claim, the Third Circuit in Duffy held that plaintiff's stressful work environment including being left out of meetings and being subjected to disparaging comments were not so unbearable that a reasonable person would be compelled to resign. Duffy v. As

Paper Magic Group, Inc., 265 F.3d 163 (3d Cir. 2001). a result of Duffy, it is well established in the 3rd

Circuit that "a stressful and frustrating" work situation is insufficiently abhorrent to establish a constructive discharge. Cuffee, 334 F. Supp.2d at 578 (quoting Duffy,

265 F.3d at 169). Cuffee further held that a reasonable employee must explore reasonable alternatives before deciding the only way to cure the situation is through resignation. Cuffee, 334 F. Supp.2d at 578 (citing Clowes v. Allegheny Valley Hospital, 991 F.2d 1159, 1161 (3d Cir. 1993). Here,

plaintiff's transfer from Allen's and ultimate resignation spanned only a couple of weeks. The record is clear that

while Bennett worked diligently to find plaintiff

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comparable employment, plaintiff sought no reasonable alternatives to her resignation. Cuffee is analogous to the situation presented in the instant matter. Here, plaintiff was transferred from the

Allen's plant and was placed in another comparable position within days. Unfortunately, plaintiff decided

not to show up for this job and eventually quit about a week later after she was placed in another position at the Family Court. If the facts in Cuffee could not support a

constructive discharge claim, plaintiff certainly cannot support a constructive discharge claim here. Further,

plaintiff made no attempts to seek reasonable alternatives to her resignation before quitting as required by Clowes. Clowes v. Allegheny Valley Hospital, 991 F.2d 1159, 1161 (3d Cir. 1993). This on-point case law supporting Bennett's position coupled with the elements established by this Court to support a constructive discharge claim in Parker point to only one conclusion: plaintiff's constructive discharge claim must fail. This Court in Parker established that to

support a constructive discharge claim plaintiff must show a hostile work environment existed. Parker v. State of

Delaware Department of Public Safety, 11 F.Supp. 467, 476 (D. Del. 1998) (holding plaintiff could not establish a

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constructive discharge claim based on a hostile work environment from two isolated incidents of sex discrimination). In order to establish a hostile work

environment, plaintiff must prove: first, she suffered intentional discrimination; second, the discrimination was pervasive and regular; third, the discrimination had a detrimental affect on her; fourth, the discrimination would detrimentally affect a reasonable person; finally, the existence of respondeat superior liability. 11 F. Supp. at 475, (citing Andrews v. City of Philadelphia, 895 F.2d 1469, 1472 (3d Cir. 1990)). Plaintiff has identified no facts in the record that establish she was subjected to pervasive and regular discrimination to support her claim of constructive discharge. Her entire constructive discharge claim rests This is Parker,

on the single event of her transfer from Allen's.

wholly insufficient to support a claim for regular and pervasive discrimination, especially given the case law that two instances of sexual discrimination could not support a constructive discharge claim in Parker and a single incident of employment discrimination could not support a claim for constructive discharge in Duffy. Parker, 11 F. Supp. 467; Duffy, 265 F.3d 163. At best

plaintiff can establish she was stressed and frustrated by

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her transfer but stress and frustration are insufficient to support a constructive discharge claim. Cuffee, 334 F. Supp.2d at 578 (quoting Duffy, 265 F.3d at 169). II. PLAINTIFF HAS NOT ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE THAT BENNETT'S PROFFERED NONDISCRIMINATORY REASON FOR HER TRANSFER WAS A PRETEXT TO DISCRIMINTION. Assuming, arguendo, the Court finds plaintiff can support her constructive discharge claim and thus her prima facie case of race discrimination, plaintiff has failed to establish that Bennett's proffered reason for transferring plaintiff was a pretext to discrimination. It is undisputed that plaintiff's work history with plaintiff was devoid of any allegations of racial or sex discrimination before she was transferred from Allen's. In fact, she was actually promoted over other white males to supervisor. As such, there is nothing in the record that establishes her transfer from Allen's was the culmination of a long history of discriminatory treatment. The record actually establishes the opposite: that her employment status was based on her performance and not her race or gender. These facts coupled with the fact

plaintiff was replaced with a black female gives further support to Bennett's nondiscriminatory purpose for transferring plaintiff from Allen's.

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Plaintiff has attempted to establish a material issue of fact by pointing to the conflicting testimony of Allen's and Bennett concerning whose idea it was to transfer plaintiff. It appears plaintiff is trying to

pick and choose contradictory facts to be held in a light most favorable to herself, depending on which summary judgment motion she is answering. Plaintiff does not have

the option to allege one set of facts as most favorable to her in one motion, but then allege a totally contradictory set of facts most favorable to her in another motion, as she has done in her oppositions to Bennett's and Allen's motions. Plaintiff has sued Allen's and Bennett jointly.

Therefore, the facts taken in a light most favorable to plaintiff in this matter would be those which arguably implicate both defendants in the alleged discrimination: which is that Allen's ordered Bennett to have plaintiff transferred because she was black and/or female and

Bennett did the same knowing of Allen's discriminatory purpose. Based on these facts taken in a light most favorable to plaintiff, Bennett's proffered nondiscriminatory reason for transferring plaintiff is that Allen's asked to have plaintiff transferred because she was a disruption at the plant, she had gotten into altercations with several other

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white and black employees and she kept unnecessarily calling the police to the plant. Bennett was forced to

acquiesce to Allen's demand for a transfer because it did not want to impair its business relationship with Allen's. Plaintiff has shown no evidence in the record that calls this proffered nondiscriminatory reason into question or even comes close to establishing that it was a pretext for discrimination. CONCLUSION For the reasons set forth above, defendant Bennett Detective & Protective Agency, Inc. respectfully requests the entry of summary judgment in its favor and against plaintiff. Respectfully submitted, MURPHY SPADARO & LANDON /s/ Roger D. Landon Roger D. Landon (ID #: 2460) Philip T. Edwards (ID #: 4393) 1011 Centre Road, Suite 210 Wilmington, DE 19805 Attorneys for defendant Bennett Detective & Protective Agency, Inc. February 16, 2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ROBIN D. NICHOLS, Plaintiff,| v. BENNETT DETECTIVE & PROTECTIVE AGENCY, INC., A Delaware corporation and ALLEN'S FAMILY FOODS, INC., A Delaware corporation, Defendants. | | | | | | | | | | | | CIVIL ACTION

No. 05-055 KAJ

JURY TRIAL DEMANDED

CERTIFICATE OF SERVICE I, Roger D. Landon, Esq., do hereby certify that on this 16
th

day of February, 2006, two copies of the foregoing

REPLY BRIEF IN SUPPORT OF DEFENDANT BENNETT DETECTIVE & PROTECTIVE AGENCY, INC.'S MOTION FOR SUMMARY JUDGMENT were e-filed and delivered in the manner indicated to the

following individual(s):

Via First Class Mail William D. Fletcher, Jr., Esq. Schmittinger & Rodriguez 414 S. State Street P.O. Box 497 Dover, DE 19903

Via Hand Delivery Matthew F. Boyer, Esq. Connolly Bove Lodge & Hutz 1007 N. Orange Street Wilmington, DE 19801

Via First Class Mail Arthur M. Brewer, Esq. Laura A. Pierson Scheinberg, Esq. Shawe & Rosenthal, LLP
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Sun Life Building, 11th Floor 20 S. Charles Street Baltimore, MD 21201

MURPHY SPADARO & LANDON

/s/ Roger D. Landon Roger D. Landon (ID #: 2460) Philip T. Edwards (ID #: 4393) 1011 Centre Road, Suite 210 Wilmington, DE 19805 Attorneys for defendant Bennett Detective & Protective Agency, Inc.

128874