       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                IN AND FOR NEW CASTLE COUNTY

LUGENIA ANTHONY,                           )
        Plaintiff,                         )
                                           )
            v.                             )
                                           )      C.A. No. N12A-12-006 ALR
ERIN BICKLEY and DIAMOND                   )
STATE PORT CORPORATION,                    )
         Defendants.                       )



                             Submitted: May 23, 2014
                             Decided: August 8, 2014



           Upon Defendants’ Motion for Judgment on the Pleadings
                               GRANTED




Samuel L. Guy, Esquire, attorney for Plaintiff.

William W. Bowser, Esquire, Lauren E.M. Russell, Esquire, of YOUNG
CONAWAY STARGATT & TAYLOR LLP, attorneys for Defendants.



Rocanelli, J.
         Plaintiff, Lugenia Anthony, has been employed with Defendant, Diamond

State Corporation (“Diamond State”), a governmental agency, 1 since 1998 at the

Port of Wilmington. Plaintiff is a member of the International Longshoremen’s

Association, Local 1694-1, AFL-CIO (“Union”).                 Defendant, Erin Bickley, is

Diamond State’s Safety and Training Manager. Among other responsibilities,

Bickley conducted Diamond State’s forklift certification program which Diamond

State offers regularly to employees to become certified to operate forklifts on

Diamond State property.


         Plaintiff attended the Diamond State forklift certification program operated

by Bickley in November 2010. Plaintiff received a failing grade for the course on

November 23, 2010. Plaintiff alleges that she again participated in Diamond

State’s forklift certification program in December 2012. Plaintiff alleges that she

was informed that she successfully completed the program on December 3, 2012,

and further alleges that her certification was revoked by Bickley on December 6,

2012.       Defendants deny that Plaintiff participated in any forklift training

certification classes since November 2010. 2               However, for the purpose of

consideration of Defendants’ motion, Defendants acknowledge that the Court must




1
    Diamond State was created pursuant to 29 Del. C. §§8780-8789.
2
    Def. Ans. ¶ 4-5.
                                                1
accept Plaintiff’s assertion as true, that Plaintiff took the forklift certification

course in 2012.


       Plaintiff filed this lawsuit on December 6, 2012, seeking a writ of certiorari

to review Defendants’ actions taken regarding Plaintiff’s forklift certification. In

her Complaint, Plaintiff further alleges that Bickley tortiously interfered with

Plaintiff’s employment contract with Diamond State and that Defendants violated

Plaintiff’s civil rights under 42 U.S.C. §§ 1983 and 1985 because of Plaintiff’s race

and/or gender.3

       Plaintiff’s initial pleading was a “Notice of Appeal.” Plaintiff stated that she

“does hereby appeal to the Superior Court from the revocation of a forklift operator

certificate by the Diamond State Port Corporation.”4 The Court entered an Order

on January 15, 2013 allowing Plaintiff’s petition for a writ of certiorari after a

review of Plaintiff’s assertions in Plaintiff’s Complaint.           Defendants filed an

Answer on February 18, 2013. Defendants then filed a motion for judgment on the

pleadings. The issues raised by Defendants have been fully briefed by all parties.




3
  According to Plaintiff’s Opening Brief, Plaintiff is an African American woman. Pl. Opening
Br., at 5.
4
  Plaintiff’s Notice of Appeal, D.I. 1.
                                             2
Standard of Review

       A party may move for judgment on the pleadings after the pleadings are

closed, but within such time as not to delay trial. 5 “The nonmoving party is

entitled to the benefit of any inferences that may fairly be drawn from its

pleading.”6 For purposes of considering a motion for judgment on the pleadings,

all facts must be accepted as true and all reasonable inferences must be construed

in favor of the non-moving party. 7 The plaintiff must plead sufficient facts that, if

supported by record evidence, would create a material dispute. 8 “The motion

should be granted when no material issues of fact exist and the movant is entitled

to judgment as a matter of law.” 9 However, when the pleadings present any issues

of material fact, the motion for judgment on the pleadings may not be granted. 10


       If “matters outside of the pleadings are presented and not excluded by the

Court, the motion shall be treated as one for summary judgment and disposed of as




5
  Super. Ct. Civ. R. 12(c).
6
   Walker v. City of New Castle, 2014 WL 2885537, at *2 (Del. Super. June 23, 2014) (quoting
Estate of Williams v. Corr. Med. Servs., Inc., 2010 WL 2991589, at *1 (Del. Super. July 23
2010)).
7
  Silver Lake Office Plaza, LLC v. Lanard & Axilbund, Inc., 2014 WL 595378, at *6 (Del. Super.
Jan. 17, 2014).
8
   Desert Equities, Inc. v. Morgan Stanley Leveraged Equity Fund, 624 A.2d 1199, 1205 (Del.
1993).
9
  Id. (quoting Estate of Williams, 2010 WL 2991589, at *1).
10
    Atlantic Millwork Corp. v. Harrington, 2002 WL 31045223, at *1 (Del. Super. Sept. 12,
2002).
                                              3
provided in Rule 56 . . .” 11 Plaintiff, in her response to Defendant’s Motion for

Judgment on the Pleadings, provided a newspaper article, indicating that the article

will “help the Court understand the context of this case.” Plaintiff further argues

that the news article attached, which shows “[a] picture of [a] white Senator . . .

who does not work at the Port, driving a forklift, demonstrates that African

American women are treated differently.” 12 This article was not attached as an

exhibit to the Complaint. More importantly, the article is hearsay and does not

address Plaintiff’s claims that are at issue before the Court. It is therefore not

relevant.


       Moreover, in order to consider statements outside of the pleadings, Rule 56

requires affidavits made on personal knowledge and sworn or certified copies of all

statements referred to in the affidavits must be provided to the Court Rule 56(e).

“[A]n adverse party may not rest upon the mere allegations or denials of the

adverse party’s pleading, but the adverse party’s response, by affidavits or as

otherwise provided in [Rule 56], must set forth specific facts showing that there is

a genuine issue for trial.” Super. Ct. Civ. R. 56(e). In considering the motion for

judgment on the pleadings, the Court has not considered any evidence outside the

pleadings.

11
   Id. In consideration of this instant motion, the Court has excluded any documents submitted
that are outside of the pleadings.
12
   Pl. Response Br., at 12.
                                              4
PLAINTIFF’S PETITION FOR A WRIT OF CERTIORARI

       The Superior Court has the power to issue writs of certiorari that are

necessary to bring the actions in Superior Court to trial and for executing

judgments in Superior Court. 13 The writ of certiorari is “simply a form that calls

up, for review, the record from the lower court or tribunal.” 14 The purpose of the

common law writ of certiorari is “to review acts that are judicial or quasi-judicial

in nature.” 15


       An order was issued on January 15, 2013 granting Plaintiff’s request to file a

petition for writ of certiorari based on the assertions in the Complaint. However,

on the merits, Plaintiff’s petition for writ of certiorari must be denied because there

was no quasi-judicial or judicial proceeding for the Court to review. Plaintiff’s

assertions that the “decision reached [by Diamond State] is quasi-judicial” 16 and

that “[t]here should be documentation for the Court to consider,” 17 without any

reference to an actual proceeding, are not sufficient to meet the requirements for

issuance of a writ. Furthermore, there is no record for the Court to consider and no




13
   10 Del. C. 562.
14
   Maddrey v. Justice of the Peace Court 13, 956 A.2d 1204, 1213 (Del. 2008) (quoting Reise v.
Bd. of Bldg. App. Of Newark, Del., 746 A.2d 271, 273 (Del. 2000)).
15
   Dover Historical Soc. v. City of Dover Planning Comm’n, 838 A.2d 1103, 1106 (Del. 2003).
16
   Pl. Opening Br., at 8.
17
   Id.
                                              5
indication that the decision was made by Diamond State acting as a “lower

tribunal.”


         Even if there was a quasi-judicial proceeding for the Court to review, two

threshold conditions must be met in order for the Court to grant a writ of certiorari:

(1) the judgment must be final and (2) there must be no other available basis for

review. 18 Plaintiff’s petition for writ of certiorari fails because there is no final

judgment to review. Diamond State made a decision regarding the terms and

conditions of Plaintiff’s employment.         Moreover, Plaintiff does not meet the

second element of the threshold test because Plaintiff can seek review of Diamond

State’s decision not to certify Plaintiff for forklift operation through other means.

Plaintiff is a Union member and, therefore, a grievance process is available to

Plaintiff.     Plaintiff argues that “[u]nion and non-union workers may require

certification to serve as forklift operators. There may not be any administrative

remedies available to anyone at the Port.” 19 However, the question for this Court

is not whether non-Union members have administrative remedies available.

Rather, it is only relevant that Plaintiff was a Union member, and therefore

alternative administrative remedies are available to Plaintiff through the Union




18
     Maddrey, 956 A.2d at 1213.
19
     Pl. Opening Br., at 7.
                                          6
grievance process. Accordingly, Plaintiff has not presented a claim for a writ of

certiorari upon which relief can be granted.


PLAINTIFF’S CLAIM OF TORTIOUS INTERFERENCE OF CONTRACT

       Plaintiff’s Complaint alleges that Bickley “tortuously interfered with

[Plaintiff’s] opportunities . . . associated with being certified as a forklift

operator,”20 including Plaintiff’s opportunities to seek forklift opportunities outside

of Diamond State. Defendants argue that they are entitled to judgment as a matter

of law because Bickley acted within the scope of Bickley’s authority as an agent of

Diamond State and therefore cannot interfere with Diamond State’s own contract

with Plaintiff.


       Tortious interference with a contract requires: (1) a contract; (2) about which

respondent knew; (3) an intentional act that is a significant factor in causing the

breach of such contract; (4) without justification; and (5) that causes injury. 21

However, in a tortious interference claim, “an agent for a party to a contract cannot

. . . interfere with her principal’s own contract, provided that the agent does not

exceed the scope of her authority.” 22 In other words, the party that tortiously




20
   Compl., ¶ 15.
21
   Estate of Carpenter v. Dinneen, 2007 WL 2813784, at *5 (Del. Ch. April 11, 2007).
22
   Id. at *7.
                                              7
interferes with a contract must be a “stranger” to the contract itself as well as a

stranger to the business relationship underpinning the contract. 23


       Bickley was Diamond State’s Safety and Training Manager. In the scope of

Bickley’s employment, Bickley had the authority to conduct training classes and

determine which employees had satisfied the requirements for forklift operator

certificates.    Even considering the facts in the Complaint in the light most

favorable to Plaintiff, if Bickley issued the forklift operator certificate to Plaintiff

and then later revoked it, Bickley would be acting within the scope of authority as

the Safety and Training Manager. Therefore, as an agent of Defendant, Bickley is

a part of the underlying contract and business relationship between Defendant and

Plaintiff, not a stranger to the contract.24 Accordingly, Plaintiff has not pleaded a

claim for tortuous interference with contract upon which relief can be granted.


PLAINTIFF’S CIVIL RIGHTS CLAIMS UNDER 42 U.S.C. §§ 1983 and
1985
       Plaintiff alleges that Defendants violated Plaintiff’s civil rights under 42

U.S.C. §§1983 and 1985 because of Plaintiff’s status as an African American

woman and by depriving Plaintiff of her property interest when the forklift

certification was declined or revoked. Defendant argues that Plaintiff’s claims of

23
   Tenneco Auto., Inc. v. El Paso Corp., 2007 WL 92621, at *5 (Del. Ch. Jan. 8, 2007).
24
   Plaintiff concedes this point as an alternative argument in Paragraph 14 of the Complaint,
stating “[i]n the alternative, Erin Bickley revoked the certification, acting within his authority as
an agent of the Diamond State Port Corporation.” Compl., ¶ 14.
                                                 8
gender and race discrimination are conclusory and insufficient to sustain Plaintiff’s

claim. Plaintiff argues that the pleadings allege sufficient facts to support a claim

of race and/or gender based discrimination.


       Furthermore, “where a remedy before an administrative agency is provided,

relief must be sought by exhausting this remedy before the courts will either

review any action by the [administrative body] or provide an independent

remedy. 25 Plaintiff has not exhausted administrative remedies required to bring a

proper claim of civil rights violations before the Court. Plaintiff was a member of

the Union, which provided for a grievance process.                  A grievance process is

sufficient to protect a plaintiff’s due process rights. 26 Plaintiff has not participated

in the grievance process and, therefore, has not exhausted her available

administrative remedies as to her civil rights claims.


       Even if Plaintiff had exhausted administrative remedies, Plaintiff has failed

to demonstrate a prima facie case of discrimination under §§1983 and 1985.

Claims of race and gender based discrimination under §§1983 and 1985 claims

must be evaluated according to the McDonnell-Douglas 27 framework, which is a

25
   Levinson v. Del. Comp. Rating Bureau, Inc., 616 A.2d 1182, 1187 (Del. 1992).
26
   Jones v. McCarnan, 1993 WL 19675, at *3 (Del. Super. Jan. 13, 1993). See Dykes v. Se. Pa.
Transp. Auth., 68 F.3d 1564, 1571 (3d Cir. 1995) (“Due process is flexible and calls for such
procedural protections as the particular situation demands.”)
27
   Evans v. Port Auth. of N.Y. and N.J., 438 Fed. App’x 117, 118 (3d Cir. 2011) (holding that the
lower court properly applied the McDonnell-Douglas framework to the §1983 claim). Other
jurisdictions have reasoned that the McDonnell-Douglas framework applies to §1985 claims, as
                                               9
three-step burden-shifting analysis. 28 In order to establish a prima facie case of

discrimination, Plaintiff must show: (1) she is a member of a protected class; (2)

she is qualified for the position; (3) she suffered an adverse employment action

despite being qualified; and (4) the circumstances give rise to an inference of

unlawful discrimination.29         Plaintiff cannot meet a prima facie claim of

discrimination when the allegations in the Complaint are “naked assertions devoid

of further factual enhancement.” 30          The Court will not consider “conclusory

allegations that lack specific supporting factual allegations.”31


       In Plaintiff’s Complaint, Plaintiff merely alleges that Bickley, as an

employee of Diamond State, “conspired with others (sic) employees on account of

Lugenia Anthony’s status as an African American Woman” 32 and “violated the

Due Process rights of Lugenia Anthony.” 33 Plaintiff argues that those allegations

in the Complaint, along with Exhibit 1 to Defendants’ Answer, which is a list of

passing or failing employees for the November 23, 2010 forklift certification

training, demonstrates racial or gender animus or discrimination. The Exhibit does



the United States Supreme Court applied the McDonnell-Douglas analysis to employment
discrimination claims, it also applies to § 1985 discrimination claims outside of the employment
context. Vakilian v. Shaw, 335 F.3d 509 (6th Cir. 2003).
28
   Mitchell v. Wachovia Corp., 556 F. Supp. 2d 336, 346 (D. Del. 2008).
29
   Id. (citations omitted); Mc Donnell Douglas Corp., 411 U.S. at 802.
30
   Golod v. Bank of America Corp., 403 Fed. App’x 699, 701 (3d Cir. 2010).
31
   Ramunno v. Cawley, 705 A.2d 1029, 1034 (Del. 1998).
32
   Compl., ¶ 27.
33
   Compl., ¶ 30.
                                              10
not show any race or gender based discrimination sufficient to bring additional

factual context to the allegations in Plaintiff’s Complaint. Therefore, the mere

assertions of racial or gender discrimination are not sufficient to survive the motion

for judgment on the pleadings.


      Accordingly, Plaintiff has not pleaded a claim for civil rights violations upon

which relief can be granted.


      NOW, THEREFORE, Defendants’ Motion for Judgment on the

Pleadings is hereby GRANTED. Judgment shall enter in favor of Defendants.

      IT IS SO ORDERED 8th this day of August, 2014.

                                       Andrea L. Rocanelli
                                       _______________________________
                                       The Honorable Andrea L. Rocanelli




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