       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


PAULA COSBY,                         :
                                     :
            Plaintiff,               :   K15C-06-019 JJC
                                     :   In and For Kent County
                   v.                :
                                     :
CORRECT CARE SOLUTIONS,              :
LLC,                                 :
                                     :
            Defendant.               :
                                     :

                         Submitted: November 4, 2016
                          Decided: December 6, 2016

                         MEMORANDUM OPINION

        Upon Defendant’s Motion for Summary Judgment – GRANTED

Daniel C. Herr, Esquire, Law Office of Daniel C. Herr, LLC, Wilmington,
Delaware, Attorney for Plaintiff.

Daniel A. Griffith, Esquire, Whiteford, Taylor & Preston, LLC, Wilmington,
Delaware, Attorney for the Defendant.




Clark, J.
                                        I.     Introduction
          Plaintiff Paula Cosby (hereinafter “Ms. Cosby”) worked for Defendant
Correct Care Solutions, LLC (hereinafter “Correct Care”). Her employer fired her
one day before her ninety day probationary period ran. Correct Care claims that
she failed to properly perform her job duties and follow company policy. Ms.
Cosby, on the other hand, claims that because of an unreceptive and unfair work
environment and a lack of proper training, she was unable to meet the expectations
of her employer. She now sues her former employer for (1) breach of the implied
covenant of good faith and fair dealing, and for (2) violating the Delaware
Discrimination in Employment Act (hereinafter “DDEA”)1 by terminating her
because of her race. Correct Care filed a motion for summary judgment arguing
that Ms. Cosby’s two claims fail. While there may be genuine disputes in the
record regarding whether her discharge was just or fair, there are no genuine issues
of fact regarding the two asserted claims. For the following reasons, Correct
Care’s Motion for Summary Judgment is GRANTED.


                          II.    Factual and Procedural Background
          Since this matter involves a motion for summary judgment, the facts cited
herein are those contained in the record and are viewed in the light most favorable
to Ms. Cosby, as the nonmoving party. 2 Correct Care is a contractor providing
comprehensive healthcare services to inmates in Delaware, including those at
James T. Vaughn Correctional Center (hereinafter “JTVCC”). Correct Care hired
Ms. Cosby, an African American female, as an administrative assistant in June
2013. She was an at-will employee, and Ms. Cosby’s first ninety days were her

1
    19 Del. C. §§ 710 et seq.
2
    E.g., Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).

                                                 2
probationary period. Ms. Cosby’s job responsibilities included monitoring the
company’s supply inventory, ordering new supplies, maintaining the supply
closest, and organizing patient grievances into a binder and logging those
grievances into the computer. Misty May, the person who hired Ms. Cosby, was
her supervisor. However, because Ms. May’s job responsibilities required frequent
absences from the office, Ms. Roy-Stevenson was responsible for training Ms.
Cosby despite the fact that she was also an administrative assistant on the same
professional level as Ms. Cosby.
          The relationship between Ms. Cosby and Ms. Roy-Stevenson was strained.
As alleged, and when viewing the facts in the light most favorable to Ms. Cosby,
she was treated unfairly at times, and insufficiently trained in her job
responsibilities.      For instance, according to Ms. Cosby, Ms. Roy-Stevenson’s
method of training typically consisted of her telling Ms. Cosby how to do
something and then sending her off to do it by herself.3 As a specific example,
when Ms. Cosby attempted to order paper at Ms. Roy-Stevenson’s request, Ms.
Roy-Stevenson merely told Ms. Cosby to go into the copy room and order it. 4
After Ms. Cosby realized there were several different types of paper, she informed
Ms. Roy-Stevenson that she did not know how to order the paper or what type to
order.5 Ms. Roy-Stevenson’s response was merely to tell Ms. Cosby to go into the
copy room “and order the ones from the standard.” 6 When Ms. Cosby attempted to
order the paper without further assistance, she ordered the wrong type of paper. 7

3
    Cosby Dep. 25:17-23; 30:8.
4
    Id. at 25:18–19.
5
    Id. at 25:20–21.
6
    Id. at 25:22–23.
7
    Id. at 26:2–3.

                                          3
          On another occasion Ms. Cosby attempted to order hypodermic needles.
She informed Ms. Roy-Stevenson that she was unsure of what to order.8            In
response, Ms. Roy-Stevenson said “I don’t have time right now. Look on the
computer.            They are different numbers.”9   When Ms. Cosby still could not
determine what type of needles to order, she returned to Ms. Roy-Stevenson who
then gave her the name of the correct needle type.10 However, as with the paper
order, Ms. Cosby nevertheless ordered the wrong type.11 On balance, the only type
of training Ms. Cosby received from Ms. Roy-Stevenson regarding her various job
duties was Ms. Roy-Stevenson telling her what to do instead of showing her how
to complete the tasks.12
          According to Ms. Cosby, and accepted for purposes of this motion, not only
did Ms. Roy-Stevenson fail to adequately train Ms. Cosby, she treated Ms. Cosby
unprofessionally and was often rude to her. For instance, when Ms. Cosby would
ask Ms. Roy-Stevenson to do something, Ms. Roy-Stevenson would roll her eyes
at her and use a disrespectful tone.13            On one occasion, Ms. Cosby called
employees to ensure they were up-to-date on their training. 14 When she could not
reach one of the employees because she was provided a wrong number, Ms. Roy-
Stevenson accused her of not actually calling that employee. 15

8
    Id. at 26:4.
9
    Id. at 26:4–5.
10
     Id. at 26:6–8.
11
     Id. at 26:8.
12
     Id. at 26:20–21.
13
     Id. at 37:20; 46:17–18.
14
     Id. at 42:16–17.
15
     Id. at 42:3–7.
                                              4
           Despite Ms. Cosby’s allegations of inadequate training and inappropriate
treatment by Ms. Roy-Stevenson, according to Correct Care, Ms. Cosby did not
meet job expectations.          Namely, on multiple occasions, Ms. Cosby’s fellow
employees had to remind her to unpack and shelve supplies as well as to organize
the supply closet. During the time Ms. Cosby was responsible for ordering and
maintaining supplies, there was a shortage of diabetic needles which could have
had serious consequences for inmates’ health. 16 As a result, the company had to
place an urgent order for the needles and the Community Emergency Response
Team was forced to pick them up and return them to JTVCC.17
           Additionally, while Ms. Cosby was responsible for maintaining supplies, she
did not order empty sharps containers in the main medical unit. Without sufficient
sharps containers, medical providers have no safe (or legal) place to put used
needles that could be contaminated with disease. At one point, a nurse was forced
to email Ms. Cosby informing her that there were only four sharps containers left
after she told Ms. Cosby a couple days earlier that their supply was low. 18 Ms.
May also had received that email, 19 and she sent the email to Ms. Roy-Stevenson
who ensured the sharps containers were ordered. 20
           Furthermore, at the beginning of every month, the Department of Correction
(hereinafter “DOC”) requires inmate grievances to be submitted. Ms. Cosby’s job
responsibilities included compiling these grievances and logging them. On the day
the grievance reports were due to DOC, Ms. Cosby was absent from work due to

16
     Def. Ex. A.
17
     Id.
18
     Def. Ex. I (email from Jennifer Newman to Paula Cosby and Misty May on Aug. 24, 2013).
19
     Id.
20
     Id. (emails between Misty May and Tina Roy-Stevenson on Aug. 27, 2013).

                                               5
an illness and had not completed this task. Due to her inability to finish the
grievance reports, other employees were forced to file 150 grievance reports by the
end of the day.
       Finally, even when viewing all facts in the light most favorable to Ms.
Cosby, she failed to follow Correct Care’s call-out policy for missing work. The
company’s policy requires employees to notify the on-call administrator at least
four hours before the start of the shift at issue. Ms. Cosby missed three shifts and
did not adhere to the four hour call-out policy on any occasion.
       Correct Care terminated Ms. Cosby’s employment the day before her ninety
day probationary period was to end. Following her termination, Ms. Cosby sued
her former employer asserting two causes of action. First, she argues that her
termination was the result of Ms. Roy-Stevenson creating fictitious grounds to
terminate her in violation of the covenant of good faith and fair dealing. Ms.
Cosby claims that it was Ms. Roy-Stevenson’s representations to Ms. May that led
to her termination. She further argues that her mistakes were the result of Ms.
Roy-Stevenson not properly training her or interfering with her work. She also
emphasizes that she had a very real and significant health concern, requiring an
understandable and excused absence during the period at issue. 21 As such, Ms.
Cosby claims that Ms. Roy-Stevenson created the fictitious grounds that Ms. May
in turn used to terminate her.

21
   Ms. Cosby went to the hospital on August 24, 2013 after experiencing lower abdominal pains
and an inability to urinate. Pl. Ex. M. A doctor provided her with medicine and inserted a
catheter to treat Ms. Cosby’s symptoms. Id. The hospital discharged her that same day. Id.
Despite her discharge, the catheter remained inserted in her bladder. Id. Ms. Cosby then
consulted with an Urologist on August 30, 2013. Pl. Ex. N. Her catheter was still inserted in her
bladder during this time. Id. She returned to the Urologist on September 3 and 4 of 2013. Id.
Because her condition did not improve, Ms. Cosby went back to the hospital on September 4,
2013 where a doctor removed the catheter. Pl. Ex. O. Because of this condition, Ms. Cosby
missed work September 3-5. Of note, Plaintiff does not bring suit against Correct Care for a
violation of the Family Medical Leave Act. 29 U.S.C.A. § 2611 et seq.

                                               6
          Second, Ms. Cosby alleges her termination violated the DDEA.22             She
argues that she is able to establish a prima facie case of discrimination under the
McDonnell Douglas test and eliminate Correct Care’s proffered legitimate business
reasons for the termination.23 Moreover, Ms. Cosby claims that Correct Care
treated her less favorably than others based on her race. Therefore, she argues that
the Court should draw an inference that the decision to terminate her was the
product of impermissible considerations, and she should therefore avoid summary
judgment.
          In response, Correct Care argues that the company had legitimate business
reasons to fire Ms. Cosby. As such, she is unable to show a breach of the implied
covenant of good faith and fair dealing. Correct Care also argues that Ms. Cosby is
unable to show a connection or nexus between her race and the decision to
terminate her employment. Accordingly, Correct Care argues that Ms. Cosby is
unable to maintain a claim under the DDEA.


                                    III.    Standard of Review
          Summary judgment is appropriate if the record shows “that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” 24 In doing so, the Court must accept all undisputed
factual assertions and accept the nonmoving party’s version of any disputed facts.25
The burden is on the moving party to show that there are no material facts in



22
     19 Del. C. §§ 710 et seq.
23
     McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973).
24
     Super. Ct. Civ. R. 56(c); Moore, 405 A.2d at 680.
25
     Sztybel v. Walgreen Co., 2011 WL 2623930, at *2 (Del. Super., June 29, 2011).

                                                  7
dispute.26 When the facts of record “permit a reasonable person to draw only one
inference, the question becomes one for decision as a matter of law.” 27


                                          IV.     Discussion
          Even when all inferences are drawn in the light most favorable to Ms.
Cosby, she does not demonstrate that Correct Care’s proffered reasons for her
termination were misrepresented, deceitful, or false. Accordingly, there is not a
triable issue of fact regarding the claim for breach of the implied covenant of good
faith and fair dealing. Furthermore, there are no facts of record supporting a nexus
between Ms. Cosby’s race and Correct Care’s decision to terminate her.
Accordingly, her DDEA claim must also be dismissed.



      A. Ms. Cosby’s implied covenant of good faith and fair dealing claim must be
         dismissed on summary judgment.

          Ms. Cosby argues that her termination breached the implied covenant of
good faith and fair dealing. The Delaware Supreme Court has held that there is an
implied covenant of good faith and fair dealing in every employment contract,
including at-will employment contracts.28 However, this “covenant limits at-will
employment only in very narrowly defined categories.” 29 There are only four
instances where a claim based on the breach of this covenant are actionable:

26
     Moore, 405 A.2d at 680.
27
   Friel v. Hartford Fire Ins. Co., 2014 WL 1813293, at *2 (Del. Super. May 6, 2014) aff’d Friel
v. Hartford Fire Ins. Co., 108 A.3d 1225 (Del. 2015) (citing Wooten v. Kiger, 226 A.2d 238, 239
(Del. 1967)).
28
     E.g., Merrill v. Crothall-American, Inc., 606 A.2d 96, 101 (Del. 1992).
29
     E.I. DuPont de Nemours & Co. v. Pressman, 679 A.2d 436, 441 (Del. 1996).

                                                  8
          (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 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.30

The relevant alternative here includes the fourth instance. To satisfy her burden in
this case, Ms. Cosby must show that facts of record support a reasonable inference
that Correct Care’s actions             included     “an aspect of fraud, deceit or
misrepresentation.” 31
          For Ms. Cosby to maintain a breach of the implied covenant of good faith
and fair dealing claim, she must demonstrate evidence that Correct Care
manufactured grounds for dismissal. 32 This requires a showing that the employer
actually created false grounds for firing an employee. The Delaware Supreme
Court has analyzed the implied covenant of good faith and fair dealing in terms of
fictitious grounds for termination on several occasions.33                When the Court is
required to so limit at-will employment, it does so hesitantly so as not to impair the
doctrine of at-will employment.34 As the Delaware Supreme Court held in E.I.

30
  Lord v. Souder, 748 A.2d 393, 400 (Del. 2000) (citing E.I. DuPont de Nemours & Co., 679
A.2d at 442–44).
31
     Merrill, 606 A.2d at 101.
32
   E.g., E.E.O.C. v. Avecia, Inc., 151 Fed. Appx. 162, 166 (3d Cir. 2005); Reed v. Agilent
Technologies, Inc., 174 F. Supp. 2d 176, 191 (D. Del. 2001) (stating that providing a false reason
for terminating employment was not sufficient to bring a claim for breach of this implied
covenant; Plaintiff must show that employer manufactured grounds for termination).
33
   E.g., Rizzitiello v. McDonald’s Corp., 868 A.2d 825, 830–32 (Del. 2005); Pressman, 679 A.2d
at 440–44.
34
     E.g., Pressman, 679 A.2d at 442.
                                                9
Dupont Nemours v. Pressman, “[d]islike, hatred or ill will, alone, cannot be the
basis for a cause of action for termination of at-will employment.”35 Instead, the
employee must show that the employer intentionally created false reasons to
terminate the employee36 or that the employer falsified the employee’s records.37
           Here, Ms. Cosby argues that Correct Care breached this covenant by
creating fictitious grounds to terminate her employment. Specifically, Ms. Cosby
claims that Ms. Roy-Stevenson’s representations to Ms. May led to Correct Care
firing her. She claims that her inability to order supplies correctly were the result
of Ms. Roy-Stevenson’s failure to train her. Therefore, the fact that she incorrectly
ordered supplies, resulting in a shortage of sharps containers and diabetic needles,
was the fault of Ms. Roy-Stevenson’s poor training. Furthermore, Ms. Cosby
claims that her failure to compile inmate grievances was also the result of Ms.
Roy-Stevenson controlling the flow of those grievances. Finally, Ms. Cosby points
to her phone records to show that Ms. Roy-Stevenson misrepresented her use of
the call-out line as grounds for creating fictitious reasons for termination.
However, even when examining the evidence in the light most favorable to Ms.
Cosby, she does not set forth the necessary evidence to show that Correct Care
created a fictitious record to terminate her.
           Other than nominally, Ms. Cosby does not argue that Correct Care
manufactured grounds to justify her termination. She does not argue that she
properly ordered supplies, completed the grievance log, or correctly followed
Correct Care’s procedures for missing work and that Correct Care merely lied
about these instances to justify her firing. Nor does the record reasonably support

35
     Id. at 444.
36
     Id.
37
     Rizzitiello, 868 A.2d at 831.

                                          10
such an inference.          Ms. Cosby’s own testimony acknowledges that she made
mistakes ordering supplies, which was one of several issues Correct Care identified
to justify her termination. 38 Additionally, she testified that she logged some of the
grievances correctly but did not finish all of them. 39
          Instead of arguing that Ms. Roy-Stevenson misrepresented the instances
Correct Care points to, Ms. Cosby’s basis for her breach of the implied covenant of
good faith and fair dealing claim is her contention that her shortcomings were the
fault of Ms. Roy-Stevenson. Therefore, according to Ms. Cosby, because Correct
Care fired her for mistakes she attributes to Ms. Roy-Stevenson’s failure to train
and properly supervise her, Correct Care created fictitious grounds for termination.
Such claims are insufficient to show Correct Care manufactured reasons to
terminate Ms. Cosby, particularly in light of the fact that she acknowledges that
she made these mistakes in her job responsibilities. 40
          In support of her claim, Ms. Cosby further alleges that Correct Care
misrepresented the nature of her violation of their call-out policy. In so doing, she
provides a call log from her home phone. This log was provided to support an
inference that Ms. Roy-Stevenson misrepresented that Ms. Cosby failed to use the
proper call-out procedure. Ms. Cosby points to the fact that on the days she missed
work, the log shows no calls around the time that Ms. Roy-Stevenson said Ms.
Cosby called to inform Correct Care that she was unable to work that shift.
However, the call logs only show Ms. Cosby’s home phone. The logs do not
include calls made from her cell phone despite the fact that she provided Correct

38
     Cosby Dep. 26:12–13.
39
     Id. at 27:15–17; 28:15–16.
40
   See Reed, 174 F. Supp. 2d at 191–92 (stating that where Plaintiff admitted to the wrongdoing
alleged by employer, he could not establish sufficient evidence to support a claim that employer
manufactured grounds for termination).

                                              11
Care with both her home and cell phone numbers. Therefore, even if she called the
call-out line, cellular phone calls would not show on the logs provided by Ms.
Cosby.41
          Furthermore, two of the three days Ms. Cosby references to show Ms. Roy-
Stevenson lied about her use of the call-out procedure were days where she
indisputably missed work. The record establishes that Ms. Cosby emailed her
supervisor on September 3 and September 5 informing her that she would not be
able to make it to work. 42        When reviewing the corresponding phone logs relied
upon by Ms. Cosby, the logs also do not show Ms. Cosby made any calls within
the time frame she would have needed to call in order to be in compliance with the
company’s call-out policy. 43
          Moreover, in the email Ms. Cosby sent to her supervisor on September 3,
2013 she indicated that she called Ms. Roy-Stevenson at 7:05 and 9:15 a.m. to
inform her that she would be missing work that day. 44 On September 5, 2013, Ms.
Cosby emailed her supervisor at 8:13 a.m. to inform her that she would be missing
work that day. 45 As Ms. Cosby’s shifts started at 7:00 a.m., her timing clearly did
not comply with the company’s call-out policy, which required at a minimum four
hours advance notice.46 Ms. Cosby’s own testimony confirmed that she did not
follow the call-out policy. Namely, she testified that she would call-out around
7:00 a.m. or a little before 7:00 a.m. for her shift that began at 7:00 or 7:30 that
41
     Def. Ex. I (email from Paula Cosby to Misty May on September 5, 2013).
42
     Def. Ex. I (emails from Paula Cosby to Misty May on September 3 and September 5, 2013).
43
     Pl. Ex. Q.
44
     Def. Ex. I (email from Paula Cosby to Misty May on September 3, 2013).
45
     Def. Ex. I (email from Paula Cosby to Misty May on September 5, 2013).
46
     Def. Ex. F.

                                               12
morning.47 By Ms. Cosby’s own admission, she did not comply with Correct
Care’s call-out policy.      There are no facts of record permitting an inference
otherwise.
         While Correct Care may have treated Ms. Cosby unfairly by providing little
to no training and creating an unreceptive work environment, such an inference
does not satisfy the standard required to maintain an implied covenant of good
faith and fair dealing claim. At most, Ms. Cosby’s evidence demonstrates dislike
or ill will which is not actionable under the implied covenant of good faith and fair
dealing according to the Delaware Supreme Court’s decision in Pressman.48 Even
when examining the facts in a light most favorable to Ms. Cosby, there is no
evidence of record permitting an inference that Correct Care manufactured a
fictitious record to justify her termination. By Ms. Cosby’s own testimony, she
acknowledged her mistakes in ordering supplies, her inability to complete the
grievance log in a timely manner, and her failure to comply with Correct Care’s
call-out procedure. Therefore, Ms. Cosby cannot maintain a claim for a breach of
the implied covenant of good faith and fair dealing. 49 Accordingly, Correct Care’s
Motion for Summary Judgment on Ms. Cosby’s breach of the implied covenant
claim is GRANTED.




47
     Cosby Dep. 60:13–16.
48
  E.I. DuPont de Nemours & Co. v. Pressman, 679 A.2d 436, 444 (Del. 1996) (stating “[d]islike,
hatred or ill will, alone, cannot be the basis for a cause of action for termination of at-will
employment”).
49
  See Reed v. Agilent Technologies, Inc., 174 F. Supp. 2d 176, 191–92 (D. Del. 2001) (granting
Defendant’s Motion for Summary Judgment on the implied covenant claim because Plaintiff
admitted to the wrongdoing alleged by employer, and therefore, Plaintiff could not establish
sufficient evidence to support a claim that employer manufactured grounds for termination).

                                              13
      B. Ms. Cosby’s DDEA claim must also be dismissed on summary judgment.

          In addition to the breach of the implied covenant claim, Ms. Cosby also
argues that Correct Care violated the DDEA when it decided to terminate her
employment. The language of the DDEA is virtually identical to 42 U.S.C. §
2000(e) of the federal Civil Rights Act of 1964 (Title VII). Accordingly, when
construing the DDEA, Delaware courts look to how the federal courts in the Third
Circuit and the District of Delaware have construed Title VII cases. 50 Based on
this guidance from federal courts, the Delaware Supreme Court adopted the test set
forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green
for determining whether a plaintiff can maintain a DDEA claim. 51 The McDonnell
Douglas test requires the plaintiff to establish
          (i) that he belongs to a racial minority; (ii) that he applied and was
          qualified for a job which the employer was seeking applicants; (iii)
          that, despite his qualifications, he was rejected; and (iv) that, after his
          rejection, the position remained open and the employer continued to
          seek applicants from persons of complainant’s qualifications. 52

          In order to establish this prima facie case, a plaintiff must prove these
elements by a preponderance of the evidence, which can be done by showing
evidence that the employee was treated less favorably by his or her employer
because of his or her status as a member of a protected class.53 If the plaintiff can
satisfy this initial burden, the employer must then “articulate some legitimate,


50
  E.g., Riner v. Nat’l Cash Register, 434 A.2d 375, 376 (Del. 1981); Giles v. Family Court of
Delaware, 411 A.2d 599, 601–02 (Del. 1980).
51
     E.g., Riner, 434 A.2d at 601; Giles, 411 A.2d at 376.
52
     McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
53
     E.g., Mosca v. Cole, 217 Fed. Appx. 158, 161 (3d Cir. 2006).

                                                  14
nondiscriminatory reason for the employee’s rejection.” 54 If the employer can
make this showing, the plaintiff must be given the opportunity to show the
employer’s stated reason for rejection was merely a pretext for prohibited
discrimination. 55
          When reviewing the termination of an employee rather than the hiring
process, as was the context of the McDonnell Douglas case, courts look to whether
the employee was terminated because of her status in a protected class. In other
words, there must be a connection or nexus between the adverse employment
decision and the employee’s status as a member of the protected class.56
Accordingly, when a court is confronted with a DDEA claim based on termination,
the fourth element of the McDonnell Douglas test requires the court to determine
whether there was a connection or nexus between the firing decision and
membership in a protected class.57
          Here, Ms. Cosby is able to easily satisfy the first three elements of the
McDonnell Douglas test. She is a member of a protected class, race, because she
is African American. She was qualified for the job evidenced by the fact that
Correct Care hired Ms. Cosby for the position. Ms. Cosby suffered an adverse
employment decision in that she was fired. There are no facts of record in this
case, however, supporting the final element of the McDonnell Douglas test.




54
     McDonnell Douglas Corp., 411 U.S. at 802.
55
     Id. at 804.
56
   See Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 366 (3d Cir. 2008) (requiring the
Plaintiff to show a nexus between her pregnancy and her termination to make the prima facie
showing of discrimination required under the McDonnell Douglas framework).
57
     E.g., id.; Ennis v. Del. Transit. Corp., 2015 WL 1542151, at *5 (Del. Super. Mar. 9, 2015).

                                                 15
          To satisfy this final element, Ms. Cosby must show that there is a connection
between the adverse employment decision and her race.58 In order to make this
showing, she must present evidence that Correct Care treated her less favorably
than others due to her race.59 The only evidence she cites regarding being treated
differently based on race is that Caucasian employees were physically handed a
key to their office, while Ms. Cosby had to wait for Ms. Roy-Stevenson to open the
office for her.60 While this may provide a reasonable inference that Ms. Cosby was
treated differently on this occasion, there is no evidence of a connection between
her termination and the fact that she is African American. Neither side argues that
this incident had any bearing on Correct Care’s termination decision. Accordingly,
Ms. Cosby has not demonstrated a connection or nexus between her race and
Correct Care’s decision to terminate her employment. Therefore, she does not
identify evidence satisfying her initial burden of establishing a prima facie case of
discrimination and cannot sustain a DDEA claim.
          Even if Ms. Cosby were able to establish a prima facie case of
discrimination by providing a connection between her race and the termination
decision, the balance of the analysis independently provides that Ms. Cosby’s
DDEA claim fails.           First, Correct Care adequately rebuts any presumption of
discrimination by providing legitimate, nondiscriminatory reasons for its decision.

58
     E.g., Doe, 527 F.3d at 366; Ennis, 2015 WL 1542151, at *5
59
     E.g., Mosca v. Cole, 217 Fed. Appx. 158, 161 (3d Cir. 2006).
60
  After a theft in the office occurred, Correct Care determined the best way to secure the office
was to restrict access to keys to three individuals. Those who did not have keys had to have one
of the three individuals with keys unlock their office. Ms. Roy-Stevenson was one of the three
individuals who had access to a key. Ms. Cosby along with several other employees had to have
Ms. Roy-Stevenson unlock their offices. There is evidence that Ms. Roy-Stevens physically
handed her key to some Caucasian employees so they could unlock their offices despite being a
violation of the new security protocol. However, Ms. Roy-Stevenson refused to hand her key to
two African American employees and instead made them wait for her to unlock their office.

                                                 16
Correct Care’s reason for termination was that Ms. Cosby failed to meet the
expectations of the job because she failed to properly order supplies, failed to
maintain the supply closet in an orderly fashion, failed to complete the grievance
logs, and failed to follow the company’s call-out procedure. As such, even if Ms.
Cosby had made the required showing to establish a prima facie case of
discrimination, Correct Care satisfied its rebuttal burden under the McDonnell
Douglas test.
           Consequently, setting aside the lack of a nexus discussion above, under this
alternative analysis, the burden then shifts back to Ms. Cosby to show that Correct
Care’s proffered reasons for terminating her were merely a pretext for
discrimination.        To make this showing, Ms. Cosby must offer “specific and
significantly probative evidence that the [defendant’s] alleged purpose is a pretext
for discrimination.” 61 At this stage, Ms. Cosby would be required to offer evidence
sufficient to convince the fact-finder that Correct Care’s stated reasons for the
termination were false.62 Ms. Cosby can accomplish this by “demonstrating such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
the employer’s proffered legitimate reasons for its action.” 63 Such evidence must
be sufficient for the fact-finder to “infer that the employer did not act for [the
asserted] non-discriminatory reasons.”64
           In an attempt to satisfy this burden, Ms. Cosby again emphasizes that Ms.
Roy-Stevenson failed to adequately train her and interrupted her work to give her

61
     Boggerty v. Stewart, 14 A.3d 542, 554 (Del. 2011).
62
  See Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994) (requiring the plaintiff to convince the
fact-finder that the employer’s proffered reason for termination was false).
63
     Id.
64
     Id.

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new tasks to complete. Ms. Cosby argues this precluded her from completing her
designated work assignments. She also claims Ms. Roy-Stevenson misrepresented
to Ms. May the quality of her work and missed shifts. Ms. Cosby argues that these
facts satisfy the burden of showing that Correct Care’s legitimate reasons for
termination were merely a pretext for discrimination.
      Ms. Cosby’s proffered evidence does not reach the level of “significantly
probative evidence” that Correct Care’s alleged purpose is a pretext. She did not
provide any evidence that she actually met Correct Care’s expectations. Namely,
she did not offer any evidence that she properly ordered supplies, properly
maintained the supply closet, or properly completed the grievance log, nor did Ms.
Cosby show she properly complied with Correct Care’s call-out procedure for
missing work. She did not provide any evidence to demonstrate any weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in Correct Care’s
reasons for terminating her. Accordingly, Ms. Cosby did not meet the burden for
showing Correct Care’s reasons for termination were merely a pretext for
discrimination.
      Consequently, even if Ms. Cosby could establish a prima facie case of
discrimination by satisfying all four elements of the McDonnell Douglas test, she
does not identify sufficient evidence for summary judgment evaluation purposes to
show that Correct Care’s legitimate reasons for terminating her employment were
merely a pretext for discrimination.      Therefore, she is unable to satisfy the
requirements for maintaining a DDEA claim. As such, Correct Care’s Motion for
Summary Judgment on Ms. Cosby’s DDEA claim is GRANTED.


                                  V.     Conclusion
      Even after considering all evidence in the light most favorable to the Ms.
Cosby, she cannot maintain a claim under the implied covenant of good faith and
                                         18
fair dealing or under the DDEA. Since there are no material facts in dispute,
Correct Care is entitled to judgment as a matter of law. Accordingly, Defendant
Correct Care Solution’s Motion for Summary Judgment is GRANTED.


                                                /s/Jeffrey J Clark
                                                     Judge




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