      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                   IN AND FOR KENT COUNTY


ANGELA KELSALL,                         :
                                        :     C.A. No: K15C-10-023 RBY
            Plaintiff,                  :
                                        :
      v.                                :
                                        :
BAYHEALTH, INC.,                        :
                                        :
            Defendant.                  :


                             Submitted: December 1, 2015
                             Decided: December 18, 2015


                   Upon Consideration of Defendant’s
                          Motion to Dismiss
                GRANTED IN PART and DENIED IN PART

                         Upon Consideration of Defendant’s
                         Motion to Strike Plaintiff’s Response
                                        MOOT

                                       ORDER


Daniel C. Herr, Esquire, The Norman Law Firm, Wilmington, Delaware for Plaintiff.

E. Chaney Hall, Esquire, Greenberg Traurig, LLP, Wilmington, Delaware for
Defendant.




Young, J.
Kelsall v. Bayhealth, Inc.
C.A. No.: K15C-10-023 RBY
December 18, 2015

                                    SUMMARY
      Angela Kelsall (“Plaintiff”) filed suit against her employer, Bayhealth, Inc.
(“Defendant”) claiming that they: 1) violated the Family Medical Leave Act
(“FMLA”); (2) violated the Delaware Whistleblowers’ Protection Act (“DWPA”);
and (3) breached the implied covenant of good faith and fair dealing. Defendant
filed a Motion to Dismiss the case for failure to state a claim (“the Motion”).
Plaintiff filed a Response to the Motion. Defendant then filed a Motion to Strike
Plaintiff’s Response. Because Plaintiff has alleged facts sufficient to support one
of her three claims, Defendant’s Motion to Dismiss is DENIED in part and
GRANTED in part. Defendant’s Motion to Strike is MOOT.
                             FACTS AND PROCEDURE
      Plaintiff was employed by Defendant beginning in 2008 until her
termination in 2014. During the final two years of her employment, Plaintiff was
allegedly bullied by her supervisor, Dawn Jackson, and another employee of
Defendant, Kristen Weeks. Defendant allegedly created an exaggerated and false
record of Plaintiff’s offenses and workplace discipline, instigated by Jackson and
Weeks. In April 2014, when Plaintiff was approximately six months pregnant, she
filed for FMLA leave. Thereafter, Plaintiff was terminated. Plaintiff filed suit
against Defendant alleging violations of state and federal law. Defendant moves to
dismiss. Defendant also moves to strike Plaintiff’s response to the underlying
motion to dismiss, claiming it relies upon an improperly filed Amended
Complaint.



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Kelsall v. Bayhealth, Inc.
C.A. No.: K15C-10-023 RBY
December 18, 2015

                                STANDARD OF REVIEW
      The Court’s standard of review on a motion to dismiss pursuant to Superior
Court Civil Rule 12(b)(6) is well-settled. The Court accepts all well-pled
allegations as true.1 Well-pled means that the complaint puts a party on notice of
the claim being brought.2 If the complaint and facts alleged are sufficient to
support a claim on which relief may be granted, the motion is not proper and
should be denied.3 The test for sufficiency is a broad one.4 If any reasonably
conceivable basis can be formulated to allow Plaintiff’s recovery, the motion to
dismiss must be denied.5 Dismissal is warranted only when “under no reasonable
interpretation of the facts alleged could the complaint state a claim for which relief
might be granted.”6
      In order to assert a retaliation claim under the FMLA, a Plaintiff must prove
the following elements of the prima facie case: “(1) he or she is protected under
the FMLA, (2) he or she suffered an adverse employment action, and (3) the
adverse action was causally related to the plaintiff’s exercise of his or her FMLA




      1
          Loveman v. Nusmile, Inc., 2009 WL 847655, at *2 (Del. Super. Mar. 31, 2009).
      2
          Savor, Inc. v. FMR Corp., 2001 WL 541484, at *2 (Del. Super. Apr. 24, 2001).
      3
          Spence v. Funk, 396 A.2d 967, 968 (Del. 1978).
      4
          Id.
      5
          Id.
      6
          Thompson v. Medimmune, Inc., 2009 WL 1482237, at *4 (Del. Super. May 19, 2009).

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Kelsall v. Bayhealth, Inc.
C.A. No.: K15C-10-023 RBY
December 18, 2015

rights.” 7
       The elements for a prima facie case of a violation of the DWPA are as
follows: (1) the employee engaged in a protected whistleblowing activity; (2) the
accused official knew of the protected activity; (3) the employee suffered an
adverse employment action; and (4) there is a causal connection between the
whistleblowing activity and the adverse action.8
       The implied covenant of good faith and fair dealing is breached “when the
conduct of the employer constitutes an aspect of fraud, deceit, or
misrepresentation.”9 The traditional elements of fraud require a Plaintiff to show
that the Defendant employer: (1) had a duty to disclose material and accurate
information, but (2) misrepresented or omitted (3) material information (4) with
malice or bad faith, (5) thereby causing harm to Plaintiff’s contractual interests.10
Under Delaware law, an at-will employee may sue for breach of the covenant in
four limited circumstances:
    (I) where the termination violated public policy; (ii) where the employer
    misrepresented an important fact and the employee relied thereon either to
    accept a new position or remain in a present one; (iii) where the employer
    used its superior bargaining power to deprive an employee of clearly


       7
           Erdman v. Nationwide Ins. Co., 582 F.3d 500, 508 (3d Cir. 2009).
       8
        Addision v. East Side Charter School of Wilmington, Inc., 2014 WL 4724895, at *3
(Del. Super. Sept. 19, 2014).
       9
           Hudson v. Wesley College, Inc., 1998 WL 939712, at *12 (Del. Ch. Dec. 23, 1998).
       10
             Id.

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Kelsall v. Bayhealth, Inc.
C.A. No.: K15C-10-023 RBY
December 18, 2015

    identifiable compensation related to the employee’s past service; and (iv)
    where the employer falsified or manipulated employment records to create
    fictitious grounds for termination.11
                                        DISCUSSION
      Defendant moves to dismiss on the grounds that Plaintiff’s Complaint
contains fatal pleading defects and fails to state any claim upon which relief may
be granted. Defendant also moves to strike Plaintiff’s Response on the basis that it
relies upon an improperly filed Amended Complaint. Plaintiff has properly filed
only one Complaint, and her Response does not improperly inject new material
into the pleadings. Therefore, Defendant’s motion to strike is MOOT.
Count One - FMLA Retaliation
      Defendant asserts that Plaintiff’s Complaint does not state a prima facie
case for FMLA retaliation. The Complaint fails to plead facts showing that
Defendant is a covered employer under the FMLA, or that Plaintiff is entitled to
FMLA statutory protections. To be eligible for FMLA leave, an employee must
have worked at least 1,250 hours in the past year for an employer with fifty or
more employees.12 A plaintiff employee must include factual allegations in her
complaint showing that the FMLA applies to her employer and entitles the
employee to leave.
      Even if taken as a given that Defendant employs fifty or more individuals,
which should have been alleged, Plaintiff must still state her hours worked over

      11
           Lord v. Souder, 748 A.2d 393, 400 (Del. 2000).
      12
           29 U.S.C. § 2611.

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Kelsall v. Bayhealth, Inc.
C.A. No.: K15C-10-023 RBY
December 18, 2015

the preceding year as required. These flaws in Plaintiff’s Complaint are more than
mere technical errors. Instead, these pleading flaws are substantive barriers to
Plaintiff’s claim. Hence, subject to Plaintiff’s amended allegations, Defendant’s
motion to dismiss the claims based on FMLA retaliation is GRANTED.
Count Two - Violation of the DWPA
      Defendant next asserts that Plaintiff’s Complaint does not state a prima
facie case for a DWPA claim. The Complaint fails to plead facts showing which
law Plaintiff believed the co-worker’s bullying violated. However, the standard for
a DWPA claim is whether the Plaintiff reported conduct which she reasonably
believed to be a violation of law.13 Plaintiff’s Complaint clearly states that she
believed the conduct complained of violated the law.
      Defendant also asserts that Plaintiff’s DWPA claim fails because the statute
is limited to protecting employees who report legal violations for public benefit.
Because Plaintiff’s report was personal in nature, Defendant’s argue, the DWPA
does not apply. Defendant reads the state statute too narrowly. Delaware law
recognizes that a workplace complaint about a private or interpersonal matter may
demonstrate a violation of the DWPA.14 The DWPA aims to protect “employees
who report violations of the law for the benefit of the public,” as well as to
“provide[] a check on persons in positions of authority, by ensuring that they do
not take retaliatory action against subordinates who disclose misconduct.” 15

      13
           19 Del. C. § 1703(4).
      14
           Smith v. Delaware State University, 47 A.3d 472, 476 (Del. 2012).
      15
           Id.

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Kelsall v. Bayhealth, Inc.
C.A. No.: K15C-10-023 RBY
December 18, 2015

Defendant’s motion to dismiss on this claim is DENIED.
Count Three - Breach of Implied Covenant of Good Faith and Fair Dealing
      Defendant, finally, asserts that Plaintiff’s Complaint does not state a claim
for breach of the implied covenant of good faith and fair dealing. The doctrine of
at-will employment gives rise to an implied covenant only in a few situations,
including where the employer creates false or exaggerated records to justify
terminating an employee. Here, Plaintiff asserts that Defendant created such false
or exaggerated records to justify terminating her. Although such conduct could
form the basis for a claim, Plaintiff fails to describe her conclusory allegations
adequately with facts detailing the employment records at issue. Defendant
correctly points out that the Complaint contains no factual allegations from which
the Court could find that Defendant breached the implied covenant. Accordingly,
Defendant’s motion to dismiss the claim based on a DWPA violation is
GRANTED.
                                   CONCLUSION
      Defendant relies on too narrow a reading of the state statute underlying
Plaintiff’s second claim. However, Defendant correctly demonstrates substantive
pleading flaws in Plaintiff’s Complaint, as well as Plaintiff’s failure to state a
claim adequately for breach of the implied covenant of good faith and fair dealing.
Therefore, Defendant’s Motion to Dismiss should be DENIED in part as to Count
Two (Violation of DWPA), and GRANTED in part as to Count One (FMLA
Retaliation) and Count Three (Breach of Implied Covenant).
      For the foregoing reasons, the Defendant’s Motion to Dismiss is DENIED


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Kelsall v. Bayhealth, Inc.
C.A. No.: K15C-10-023 RBY
December 18, 2015

in part and GRANTED in part, and Defendant’s Motion to Strike is DENIED as
moot.
        IT IS SO ORDERED.
                                      /s/ Robert B. Young
                                                 J.

RBY/lmc
oc: Prothonotary
cc: Counsel
     Opinion Distribution
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