Tolliver v. Delaware Futures, Inc. ( 2021 )

IN THE SUPERIOR COURT OF THE STATE OF DELWARE
M. DENISE TOLLIVER, : C.A. No. K20C-08-008 WLW
Plaintiff,
V.
DELAWARE FUTURES, INC., and :
HAROLD INGRAM and PATRICIA :
DOWNING, in their official and
individual capacities,
Defendants.
SUBMITTED: October 20, 2020
DECIDED: January 26, 2021
ORDER
Upon Defendants’ Motion to Dismiss.
Granted.
M. Denise Tolliver, pro se
Michael C. Heyden, Jr., Esquire and Tianna Bethune, Esquire of Gordon & Rees,
LLP, Wilmington, Delaware; attorneys for Defendants.
WITHAM, R.J.
M. Denise Tolliver v. Delaware Futures, Inc., et al.
C.A. No. K20C-08-008 WLW
January 26, 2021
Before the Court is Defendants, Delaware Futures, Inc., Harold Ingram, and
Patricia Downing (hereafter collectively “Defendants”) Motion to Dismiss the
Complaint filed by Pro Se Plaintiff, Denise Tolliver (hereafter “Tolliver”) pursuant
to Superior Court Civil Rule 12(b)(6). For the reasons that follow, the Motion is
granted.
Factual and Procedural Background
On August 17, 2020, Tolliver filed her complaint as a pro se plaintiff with
this Court alleging three counts against the Defendants. First, Tolliver alleges
“unlawful hiring” against Delaware Futures, Inc. specifically. Second, Tolliver
alleges breach of fiduciary duties on the part of Harold Ingram and Patricia
Downing. Lastly, Tolliver alleges Workers' Compensation Retaliation against
Delaware Futures, Inc.
The facts of this case have been derived from Tolliver's Amended Complaint
and the Defendants’ Motion to Dismiss. On or about August 7, 2018, Tolliver
effected delivery of an application for employment by certified mail with Delaware
Futures, Inc. before an announced application-close date of August 30, 2018.
Delaware Futures, Inc. declined to consider this employment application on the
grounds that the means of transmission did not conform to its preferred method,
which for this particular job announcement was through the professional social
media website “Linked In” (sic). Tolliver learned that Delaware Futures, Inc.
declined her application on or about August 23, 2018. The denial of the
application was for being “inconsistent with Delaware Futures' policy for
M. Denise Tolliver v. Delaware Futures, Inc., et al.
C.A. No. K20C-08-008 WLW
January 26, 2021
application submission.”! This spurred Tolliver to file a three count complaint on
August 7, 2020. Ten days after that, Tolliver filed her Amended Complaint on
August 17, 2020.
Tolliver has pursued Delaware Futures, Inc. in previous litigation dating
back to August 8, 2014. She has filed complaints against Delaware Futures, Inc. in
U.S. District Court for the District of Delaware and Superior Court for New Castle
County, Delaware. The complaint filed with New Castle County Superior Court
was removed to the U.S. District Court and Summary Judgment was entered in
behalf of Delaware Futures, Inc. on August 2, 2017. That order was affirmed by
the U.S. Court of Appeals for the Third Circuit on January 26, 2018. On March 8,
2018, Tolliver then filed a motion to remand her original complaint back to
Delaware Superior Court, to which the U.S. District Court “placed [Tolliver] on
notice that future similar motions will be docketed, but not considered.”
Standard of Review
When considering a motion to dismiss under Superior Court Civil Rule
12(b)(6), a court must determine whether “the plaintiff may recover under any
reasonable conceivable set of circumstances susceptible to proof under the
complaint.” Further, while the court must afford the plaintiff “all reasonable
inferences that logically flow from the face of the complaint,” the court need not
“accept every strained interpretation of the allegations.”
1 Def.'s Motion to Dismiss at 3.
2 Hedenberg v. Raber, 2004 WL 2191164 *1 (Del. Super. Aug. 20, 2004).
3 Id.3
M. Denise Tolliver v. Delaware Futures, Inc., et al.
C.A. No. K20C-08-008 WLW
January 26, 2021
Discussion
Count I of Tolliver's Amended Complaint
Tolliver's first count is for “unlawful hiring” and alleges that Delaware
1 66
Futures' “policy of posting job openings exclusively on ‘Dina Melchiorre's “Linked
In” (sic) account discourages the exercise of equal employment opportunity rights
of job applicants.”* The Defendants argue that Tolliver's complaint in Count I does
not state an actionable claim.
At best, the Defendants argue, is that Tolliver is attempting to make a
discrimination claim. However, Tolliver's complaint in Count I does not satisfy a
claim for failure to hire on the grounds of discrimination. Citing to a Third Circuit
case, the Defendants’ list the elements for such discrimination as “1) applicant is a
member of a protected class; 2) applicant was qualified for the position sought; 3)
applicant was subject to an adverse employment action despite being qualified; and
4) under the circumstances that raise an inference of discriminatory action, the
employer continued to seek out individuals with qualifications similar to the
plaintiff to fill the position.”° Tolliver fails to satisfy these elements because, as
the Defendants argue, her application was not submitted in the proper format and
therefore could not be considered, thus not making her an applicant for the
purposes of the Third Circuit's elements for actions of discriminatory hiring.
Additionally, Tolliver admitted to not submitting the application accordingly.
The Defendants also argue that Tolliver cannot allege that the events laid out
in her Amended Complaint equate to an “inference of discriminatory action”
4 Plaintiffs Amended Complaint at 5.
5 Def.'s Motion to Dismiss at n. 1; citing Sarullo v. U.S. Postal Service, 352 F. 3d 789 at 797
(3rd Cir. 2003).
4
M. Denise Tolliver v. Delaware Futures, Inc., et al.
C.A. No. K20C-08-008 WLW
January 26, 2021
because “people who are not users of LinkedIn are not members of a protected
class under the Delaware Discrimination in Employment Act.”°
This Court agrees with the arguments presented by Defendants with regard
to Tolliver's Count I of her Amended Complaint. Employers use a variety of
methods to reach prospective applicants seeking employment and LinkedIn is but
one of those methods. It is not improper to designate a reasonable method of
obtaining applications for employment.
Count II of Tolliver's Amended Complaint
Tolliver's Count II of her Amended Complaint alleges breach of Fiduciary
Duties on the part of Delaware Futures, Inc. board members without any
elaboration as to how a fiduciary duty was owned to her and how that duty might
have been breached. Just on the face of Tolliver's Count II, this Court has to
conclude that there has not been sufficient allegations raised to warrant a response
by Defendants.
Count III of Tolliver’s Amended Complaint
Tolliver's Count III alleges a Workers! Compensation Retaliation against
Delaware Futures, Inc. Tolliver attempts to link the refusal to accept her
application by Delaware Futures, Inc. with a retaliation on the part of Delaware
Futures, Inc. for Tolliver seeking Workers' Compensation in the months leading up
to her attempted application submission. This is simply incomprehensible, and
devoid of any merit.
Tolliver was not employed by Delaware Futures, Inc. during the time in
which she was awaiting final judgment from the Delaware Supreme Court on a
6 Def.'s Motion to Dismiss at 4 — 5.
M. Denise Tolliver v. Delaware Futures, Inc., et al.
C.A. No. K20C-08-008 WLW
January 26, 2021
Workers' Compensation matter. As the Defendants point out in their Motion to
Dismiss, Tolliver was not an “employee” as defined in Delaware's Workers'
Compensation statute, 19 Del. C. § 2301.
Finally, the Court recognizes that the underlying complaint and issues raised
by Tolliver are similar to those raised in the past, particularly in the U.S. District
Court for Delaware. That complaint and those issues were levied against the
Defendants and a final judgment has been reached that is adverse toward Tolliver.
On these grounds alone, Tolliver's complaint filed with this Court would not
survive Res Judicata and would be dismissed irrespective of the reasons stated
above.
Conclusion
Wherefore, based on the reasons stated above, this Court GRANTS
Defendants' Motion to Dismiss on the basis of Superior Court Civil Rule 12(b)(6).
IT IS SO ORDERED.
/s/_ William L. Witham, Jr.
Resident Judge
WLW/dmh