IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

TRINA R. GUMBS,
Plaintiff

V. : C.A. No. Sl4C-10-015 RFS

STATE OF DELAWARE
DEPARTMENT OF LABOR,
Defendant.

MEMORANDUM OPINION
Upon Defendant’s Motion for Summary Judgrnent. Denied.

Date Subrnitted: October 12, 2017
Date Decided: January 26, 2018

Tasha Marie Stevens, Esq., Fuqua, Willard, Stevens & Schab, P.A., 26 The Circle, P.O.
Box 250, Georgetown, Delaware 19947, Attorney for Plaintiff

Kenisha L. Ringgold, Esq. and Oliver J. Cleary, Esq., Deputy Attorneys General, 820 N.
French Street, 6th Floor, Wilmington, Delaware 19801, Attorneys for Defendant

STOKES, J.

I. INTRODUCTION

This matter is presently before the Court on the motion of the Defendant, the Delaware
Department of Labor (“Defendant” or “DOL”), for summary judgment. The Plaintiff, Trina R.
Gumbs (“Plaintifi” or “Gumbs”), opposes the Motion. For the foregoing reasons, Defendant’s
Motion for Summary Judgment is DENIED.

II. FACTS

In 1996, Plaintiff began her employment with the Delaware Department of Labor Office of
Anti-Discrimination (“OAD”) as an Administrative Assistant to the Director of Industrial Affairs.
Gumbs was promoted to the position of Labor Law Enforcement Officer l in 1997, to Law
Enforcement Ofticer ll in 1999, and to Labor Law Enforcement Supervisor in 2006. In December
2011, when the OAD administrator, Regulatory Specialist Julie Petroff (“Petroff”), left her
position, Gumbs was temporarily promoted to Acting Regulatory Specialist. Her duties expanded
in accordance with this promotion. She also received a commensurate increase in pay.

In March 2012, the DOL posted the Regulatory Specialist position. Two preferred
qualifications were added to the position: (l) possession of a Juris Doctor degree and (2)
experience in employment and/or discrimination claim resolution. Acting OAD Director, Bob
Strong (“Strong”), was the hiring manager for the position. Strong reported to Secretary of Labor
John McMahon (“McMahon”).

Plaintiff applied for the Regulatory Specialist position. All of the qualified candidates,
including Gumbs, were interviewed by a panel. The interview panel consisted of two women and
one man. The panel asked each interviewee the same standard questions. Neither Strong nor
McMahon were present for Gumbs’ interview. Strong was present for a second interview with the

individual who was ultimately chosen for the position. Daniel McGannon (“McGannon”) was

eventually offered, and accepted, the position. McGannon graduated from Widener Law School
in 2010 and worked for Saltz Polisher, P.C. in employment discrimination for nearly one year.

After McGannon accepted the position, Plaintiff was informed she had not been chosen for the
job. She was also asked to assist McGannon, as he had relatively little work experience At this
point, Gumbs began to suspect she had not been selected for the position due to her gender and
age. She filed a complaint with the Equal Employment Opportunity Commission (“EEOC”)
alleging gender and age discrimination as well as Equal Pay Act violations. This was the first
complaint of this nature Gumbs had filed, either with the EEOC or the DOL. Petroff, who had
formerly held the Regulatory Specialist position, submitted an affidavit and email to the EEOC in
support of Plaintiff’s complaint. At this time, Petroff had only been provided information about
the situation by Gumbs. Petroff later returned to the OAD as Division Director. As a result, she
learned additional information about the allegations. Her assessment of Gumbs’ claim changed.
Petroff now asserts that Gumbs was a “difficult employee” and that Strong and McMahon have
never demonstrated any anti-female animus. In short, she does not believe that gender
discrimination motivated the DOL’s decision to hire McGannon.

In October 2015, Plaintiff left the DOL to work f`or the Kent County Family Court. Because
her employment with the State continued, Gumbs retained her State email account On November
10, 2015, the State served a Request for Production on Gumbs in her Federal Equal Pay Act claim.
As part of her production, Gumbs included Charge Detail Reports. The Reports contain private
information of individuals filing discrimination complaints with the OAD. The EEOC demanded
that the confidential documents be destroyed. Gumbs complied. At Gumbs’ deposition the DOL

questioned her about this situation, but Gumbs invoked her Fifth Amendment right against self-

incrimination Defendants argue that Plaintiff’ s uncooperativeness has prejudiced its ability to
ascertain facts necessary to assert defenses against Plaintiff`s complaint
III. TITLE VII STANDARD

Title VII of Chapter 42 of the United States Code reads, in pertinent part, “It shall be an
unlawful employment practice for an employer to fail or refuse to hire or to discharge any
individual, or to otherwise discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s race, color, religion,
sex, or national origin.”] To assess a claim under Title Vll, the Court must apply the McDonriell

Douglas burden shifting procedure.2 According to McDonriell Douglas, the plaintiff must first

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establish a prima facie case of unlawful discrimination in the workplace. To establish a prima

facie case, the plaintiff must show: (1) she belongs to a protected category; (2) she applied and
was qualified for a job for which the employer was seeking applicants; (3) despite her
qualifications, she was rejected; and (4) this action occurred under circumstances that give rise to
an interference of unlawful discrimination4 In Wagonhoffer v. Visioriquest Naiional Lta'., the
Delaware Superior Court noted that the Plaintiff has only a minimal burden when establishing her
prima facie case.5 This requirement is not meant to be “’onerous’_[the plaintiff] need only
present ‘sufficient evidence to allow a fact finder to conclude that the employer is treating some
people less favorably than others based on a trait that is protected. . ..”’6

Once the prima facie case is established, the burden shifts to the defendant to “articulate some

legitimate, non-discriminatory reason for the employee’s rejection.”7 The defendant must only

 

142 U.S.C.A. § 2000e-2(1).

2 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

3 Id. at 802.

4 Jones v. Sch. Dist. OfPhiladelphia, 198 F.3d 403, 410 (3d Cir. 1999) (internal citations omitted).

5 Wagonhoj‘er v. Visionquest National Lta'., 2016 WL 3947952, at * 6 (Del. Super. Ct. July 18, 2016).
6 Ia'. at *4 (internal citations omitted).

7 Jones, 198 F.3d at 410 (internal citations omitted).

produce a reason for the adverse action; proof that the articulated reason was the cause of the
adverse treatment is not required.8

Assuming the defendant met its burden of production, the burden shifts back to the plaintiff to
prove by a preponderance of evidence that defendant’s reasons “were not its true reasons, but were
a pretext for discrimination.”9 Only after all of these burdens have been met, can a Title Vll
violation be found.

lV. PARTIES’ CONTENTIONS

On August 3, 2017, the DOL filed this Motion for Summary Judgment. Defendant makes
several arguments in support of its Motion. First, the DOL asserts that Gumbs cannot carry the
initial burden of establishing a prima facie case of unlawful discrimination because she cannot
show she was passed over for the position due to gender discrimination According to the DOL,
the interview team ultimately selected McGannon because he possessed a higher level of academic
achievement, i.e., a juris doctor degree, and a more varied professional background Defendant
wrote, “there is no evidence that DOL conducted the interview process in a manner that would
give an inference of discriminatory practice.”10 The DOL claims that Gumbs has not presented
any evidence to the contrary.

Furthermore, Defendant argues that it has produced a legitimate business reason for selecting
McGannon over Gumbs. For the DOL to overcome its burden under McDonnell Douglas, it must
only articulate a legitimate, non-discriminatory reason for the adverse hiring. In Defendant’s view,
“DOL’s burden is satisfied because the evidence, i. e. , the DOL’s job Regulatory Specialist posting,

candidate’s qualification records, interview team notes, and the interview team’s recommendation

 

8 St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 512 (1993).
9 Jones, 198 F.3d at 410 (internal citations omitted).
10 Def.’s Opening Br. Supp. Mot. Summ. J. 27.

lead to the natural conclusion that there was a nondiscriminatory reason for the employment
decision.”11 The DOL further explains the interview team’s decision to recommend McGannon
for hire by stating, “Mr. McGannon’s private sector experience, education, three-year experience
in research, experience in policy administration, quasi-judicial proceedings, experience in
narrative writing, possession of a juris doctor and answers provided during the interview, caused
the interview team to select him over all the other candidates.”12 According to Defendant, Gumbs
simply did not possess all of these qualities, notably a juris doctor degree, and she did not interview
as well as McGannon. Additionally, Defendant highlighted that the interview team’s second
choice for the position was a woman, which, in the DOL’s view, undercuts Gumbs’ discrimination
claim even further.

Defendant further asserts that Gumbs is unable to establish that the reason given by the DOL
for McGannon’s hire is pretext. She has not demonstrated any weaknesses, implausibilities,
inconsistencies, or contradictions in the DOL’s reasoning. Therefore, according to Defendant,
Gumbs cannot recover for a Title VII gender discrimination claim.

Finally, Defendant argues that Gumbs’ invocation of her Fifth Amendment privilege against
self-incrimination unduly prejudices the DOL’s ability to ascertain facts necessary to assert
defenses against her allegations The DOL asserts that Gumbs may not invoke her Fifth
Amendment right becasue she instituted the suit, and is now using this right to prevent the
defending party from learning information necessary to its defense. The DOL further explains that
it “has the right to ascertain when the documents were stolen, to whom the information was

disseminated, and if the documents were stolen while Plaintiff was a DOL employee.”13 As the

 

11 Id.
12 Ia'. at 30.
13 Id. at 34-35,

final part of this argument, Defendant claims that under the equitable doctrine of unclean hands
Gumbs’ suit should be dismissed.

Conversely, Gumbs argues that summary judgment should be denied, as there are disputed
issues of material fact that give rise to an inference of unlawful gender discrimination Her chief
complaints are that (1) McGannon was not qualified and (2) the OAD declined to hire another
qualified female that possessed both of the newly added preferred qualifications

According to Gumbs, McGannon was not qualified for the Regulatory Specialist position
Underlying this argument is her belief that she was more qualified for the position, which, in
Gumbs’ view, calls the DOL’s decision into question One of the job requirements was
“experience in policy administration which includes planning, developing, implementing and
evaluating policies and procedures.”14 Nothing in McGannon’s application materials or from his
interview indicates that he had experience planning, developing, or implementing policies and
procedures, only that he had previously evaluated policies and procedures Gumbs asserts that the
use of “and” in the requirement shows that a qualified applicant would possess experience in all
four areas of policy work. Thus, in Plaintiff’s view, McGannon did not meet this requirement

Moreover, Plaintiff asserts that the DOL’s discriminatory action is also evidenced by its
decision not to hire another female who possessed both preferred qualifications One applicant,
Elvira Berry (“Berry”), met both of the newly added preferred qualifications However,
McGannon was hired over Berry. Thus, Gumbs believes that the interview Was the determining
factor. She cites law supporting the proposition that subjective promotion criteria are often used
to disguise unlawful discrimination, and claims that was the case here. Therefore, Gumbs believes

that the jury could infer gender discrimination

 

14 Pl.’s Answering Br. Opp’n Def.’s Mot. Summ. J. 13.

Finally, Gumbs relies upon her accounts of Strong and McMahon’s condescending and
disrespectful behavior toward women to show that they both had negative feelings toward women.
Gumbs states that McMahon frequently referred to the all-female staff at OAD as “you girls” or
“young ladies.” She also claims that Strong was known to feel that women often “bitched and
complained” and, on one occasion, called a woman a “bitch.” Petroff also mentioned in her email
to the EEOC that Strong had pressured her not to hire a female for an open position, referring to
the candidate as “that girl.”15

Gumbs links her above claims to the fact that Defendant has denied that McMahon or
Strong were directly involved in the interview process, which contrasts Gumbs’ allegation that one
of the members of the interview panel told her that Strong would be making the ultimate decision
Thus, she argues that the DOL has attempted to cover up the involvement of either Mcl\/Iahon or
Strong in the interview process in order to appear not to have been influenced by anti-female
opinions Plaintiff makes no distinction between involvement in the interview process and being
the ultimate decision maker.

In addition, Plaintiff argues that she has presented sufficient facts to convince a jury that
the reasons the DOL gave for McGannon’s hire were mere pretext. She first asserts that
Defendant’s explanation that the interview team found McGannon to be the most qualified
candidate due to his academic and professional background is pretext because the DOL relied on
the statements of Jeremy Fixler (“Fixler”), the current Human Resources Manager, to make this
claim. Fixler was hired by the DOL in 2016, more than four years after McGannon’s hire and only
a few months before he left the DOL. Therefore, Gumbs takes issue with Fixler’s account of the

hiring process, given that he was not employed by Defendant at that time. She also points out

 

15 Petroff has since claimed that her position on this issue has changed, and that she does not feel gender
discrimination caused Defendant to hire McGannon. Gumbs attributes this change to Petroff`s return to OAD.

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contradictions in Fixler’s statement and McGannon’s deposition The primary contradiction is
that the Fixler statement claims McGannon had experience in all areas of policy administration,
whereas McGannon stated in his deposition that he could not remember developing, planning, or
implementing policies

Gumbs also argues that Defendant has given different reasons for McGannon’s hire in this
case than it did in its position paper to the EEOC for Gumb’s claim or Berry’s claim. The DOL
alleged in the Gumbs position paper that McGannon was chosen because he had a juris doctor
degree. In the Berry position paper Defendant alleged that the interview team believed that
“McGannon’s responses to their questions and his overall performance during the interview
supported the recommendation.”16 Here, Defendant has mentioned McGannon’s favorable
professional background for the first time. According to Gumbs, these inconsistencies should be
sufficient to lead a reasonable factfinder to disbelieve Defendant’s proffered reasons for
McGannon’s hire.

Gumbs final argument regards her Fifth Amendment protection against self-incrimination
with respect to the confidential Charge Detail Inquiries. She claims to have been privy to various
types of confidential information during her time at the OAD, far more than just the Charge Detail
Inquiries. Gumbs also claims that any confidential information was disclosed in an effort to fully
respond to Defendant’s Request for Production and that the information was only provided to
defense counsel, not publically disseminated, Moreover, Gumbs argues she did not possess any
malicious intent. In Gumbs’ view, Defendant is not prejudiced by her unwillingness to divulge

further information on this matter, especially since the DOL has not explained how additional

 

16 Id. at 19.

information would benefit its defense of her discrimination claim. Therefore, Plaintiff feels she
should not be compelled to testify in light of her Fifth Amendment ri ght.
V. STANDARD OF REVIEW

A. Summary Judgmeni Standara'

The Court may grant summary judgment if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to summary judgment as
a matter of law.”17 The moving party bears the initial burden of showing no material issues of fact
are present.13 lf the moving party properly supports their motion, the burden then shifts to the non-
moving party to rebut the contention that no material issues of fact exist.19 In considering a motion
for summary judgment, the Court must review the record in a light most favorable to the non-
moving party.20 The Delaware Supreme Court illustrates the parameters of granting summary
judgment as follows:

Under no circumstances, however, will summary judgment be granted when, from
the evidence produced, there is a reasonable indication that a material fact is in
dispute. Nor will summary judgment be granted if, upon an examination of all the
facts, it seems desirable to inquire thoroughly into them in order to clarify the
application of the law to the circumstances21
VI. ANALYSIS
Plaintiff easily establishes the first three elements of her prima facie case. First, as a female,

she belongs to a protected category of people. Second, the DOL was seeking applications for the

regulatory specialist position for which Gumbs applied and was qualified. That Gumbs was

 

17 Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).

18 Id. at 681.

19 Merrill v. Crothall-American, Iric., 606 A.2d 96, 99 (Del. 1992).
20 Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).

21 Id. at 468.

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qualified for this position is evidenced by the fact that she met with the interview panel, as only
qualified applicants were interviewed. Lastly, it is not disputed that Plaintiff was rejected and the
job was given to McGannon instead. However, the parties dispute whether the fourth element of
the prima facie case is satisfied, that this action occurred under circumstances giving rise to an
interference of unlawful discrimination

The Court must examine the hiring process and the circumstances surrounding Plaintiff’ s
eventual denial to determine whether unlawful gender discrimination influenced the DOL’s
decision The Court notes that its responsibility is not to question the wisdom of the DOL’s hiring
choices, but to ensure that no discriminatory animus existed. Nothing about the interview process
was inappropriate The interview panel consisted of two women and one man. Each candidate
was asked the same five standard questions Additionally, neither Strong nor McMahon Were
involved in the initial interviews The fact that Strong met with McGannon in a second interview
does not challenge the legitimacy of the initial process That meeting was simply another step in
the process

However, the Court is concerned about the alleged comments made by both Strong and
McMahon that, if indeed spoken, demonstrate a bias against women According to Gumbs,
McI\/Iahon was known to refer to the all-female staff at OAD as “young ladies,” which can be
construed as condescending and discriminatory. Also, according to Gumbs, Strong was known to
feel that women frequently “bitch and complain,” and, on at least one occasion, referred to a
woman as a “bitch.” These comments are unacceptable, especially when spoken in the workplace.
The existence of such a work environment would support Gumbs’ assertion that gender

discrimination influenced the DOL’s hiring process Thus, in viewing the facts presented in the

ll

light most favorable to the Plaintiff, there are still issues of material fact in dispute with regard to
Gumbs’ prima facie case

The DOL produced a reason for its decision to hire McGannon over Gumbs, namely that
McGannon was more qualified for the position than Plaintiff. However, Gumbs argues that this
reason is merely pretext.

Gumbs’ chief argument focuses on the inconsistencies found in the position papers submitted
to the EEOC for Gumbs and Berry’s discrimination claims She believes that the inconsistences
undermine the DOL’s credibility in claiming non-discriminatory motivations for hiring
McGannon. The Gumbs position paper claimed that McGannon was chosen for the position
because he possessed a juris doctor degree The Berry position paper stated that McGannon was
offered the position because he was a stronger interviewee with better qualifications In the Court’ s
view these inconsistencies are understandable. There was no nefarious intent behind the fact that
slightly varied reasoning was given for McGannon’s hiring. The main point remains the same: in
the eyes of the DOL, McGannon was the more qualified candidate

However, the Court does not find the inconsistencies in Petroff’ s email regarding the EEOC
claim and her later statements about the lack of discrimination at the OAD to be so harmless If
believed, her email to the EEOC seriously calls into question the DOL’s non-discriminatory
reasons for hiring McGannon. In her April l, 2014 letter to an EEOC representative, Petroff
alleged various shortcomings pertaining to Strong and McMahon’s leadership and represented that
she believed the OAD had violated civil rights laws.22 She also stated that Gumbs was a well-
respected member of the EEOC community and that she was qualified to serve as Regulatory

Specialist.23 At her June 22, 2017 deposition, Petroff maintained that she did not always see eye

 

22 App. Def.’s Opening Br. Supp. Mot. Summ. J. A181-82.
23 Id.

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to eye with Strong and McMahon and that she disagreed with some of the ways the OAD was run
under McMahon’s leadership.24 However, she appeared to back off of her previous position stated
in the email that civil rights laws had been violated when McGannon was chosen over Gumbs
Petroff stated that while at the OAD she neither received any complaints regarding Strong or
McMahon from females nor heard either man make statements that would have shown animus
against women.25 When asked whether there was any gender discrimination in the organization,
Petroff responded that she could not recall any discrimination against women.26

Thus, the credibility of Petroff s email to the EEOC is called into question Such questions of
credibility are left to the jury.27 If the jury chose to believe the contents of Petroff s email, it could
show that the DOL’s proffered non-discriminatory explanation is merely pretext. In short, these
contradictions create genuine issues of material fact as to whether the proffered justification for
McGannon’s hire is only pretext. Therefore, summary judgment is not appropriate

Finally, the Court would like to address the Fifth Amendment self-incrimination issue First
of all, Plaintiff cannot use her Fifth Amendment protection as both a sword and a shield.28 Since
she has alleged gender discrimination and brought this suit against Defendant, Plaintiff cannot now
impede the DOL’s ability to develop its defense Therefore, Gumbs must provide complete
information to Defendant. Furthermore, in this context, Gumbs’ privilege against self-
incrimination concerns the equitable remedy of reinstatement Considering that as Regulatory

Specialist Plaintiff was placed in a position of confidence and trust, it would be imprudent to allow

 

24 Ia’. at A13, A19.

25 Ia'. at A15, A19.

26 Id. at A15.

27 McFaa’den v. Delaware Racing Ass'ri, 2007 WL 2677132, at *3 (Del. Super. Ct. Sept. 3, 2007).

211 S.E.C. v. Graystone Nash, Inc., 25 F.3d 187, 191 (3rd Cir. 1994)(“In a civil trial, a party’s invocation of the
privilege may be proper, but it does not take place in a vacuum; the rights of the other litigant are entitled to
consideration as well.”); Gutierrez-Roa'riguez v. Cartagena, 822 F.2d 553, 577 (lst Cir. 1989)(“A defendant may
not use the fifth amendment to shield herself from the opposition’s inquiries during discovery only to impale her
accusers with surprise testimony at trial.”).

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her to return this position with the misuse of the confidential information After knowingly
committing a wrongful act, it is inappropriate for Gumbs to be again placed in a position with such
a degree of authority. In this posture, Gumbs will not be permitted to seek the equitable remedy
of reinstatement
VII. CONCLUSION
Given that issues of material fact remain, Summary judgment is inappropriate Defendant’s
Motion for Summary Judgment is DENIED.

IT IS SO ORDERED.

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