IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
M. DENISE TOLLIVER,
C.A. No. KlSC-OZ-OIOWLW
Plaintiff,
v.
HIGHMARK BSBSD, INC.,
Defendant.
Submitted: March 23, 2018
Decided: May 10, 2018
ORDER
Upon Defendant’s Motion to Dismiss.

Granted in part;
With a Limited Right to File an Amended Complaint.

Ms. M. Denise Tolliver, pro se Plaintiff

Geoffrey G. Grivner, Esquire of Buchanan Ingersoll & Rooney, P.C., Wilmington,
Delaware; attorney for the Defendant.

VVITHAM, R.J.

M. Denise Tolliver v. Highmark BSBSD, lnc.
C.A. No. Kl 8C-02-010 WLW
May 10, 2018

Upon consideration of M. Denise Tolliver’s Complaint,l Highmark BSBSD,
Inc.’s Motion to Dismiss, and Ms. Tolliver’s Response, it appears that:

1. On August 6, 2014, Highmark BSBSD, Inc. (hereinafter, “Highmark”)
offered, in Writing (hereinafter, the “Hiring Letter”), to hire Ms. Tolliver as an
Associate Customer Service Representative. Upon acceptance of Highmark’s offer,
the Hiring Letter provided that Ms. Tolliver’s at-Will employment relationship With
Highmark Would begin.

2. Although the exact date of acceptance is unclear, the parties agree that Ms.
Tolliver accepted Highmark’s offer of employment.

3. On August 20, 2014, Ms. Tolliver contends that she requested permission
from Highmark to attend pre-arranged medical appointments, related to her disability,
that coincided With her forthcoming mandatory employment training

4. On August 25, 2014, as stipulated in the Hiring Letter, Ms. Tolliver reported
for the first day of her employment at Highmark. During this first day, Ms. Tolliver
again requested permission to attend the pre-arranged medical appointments related
to her disability.

5. On August 26, 2014, Highmark allegedly terminated Ms. Tolliver.2

6. On June ll, 2015 , Ms. Tolliver filed a Charge of Discrimination with the
Delaware Department of Labor (hereinafter, “DDOL”) alleging that: (a) Highmark

 

1 The facts derive from Ms. Tolliver’s Complaint and the five exhibits attached thereto.
2 Highmark disputes this, claiming instead that Ms. Tolliver voluntary resigned.

2

M Dem`se Tolliver v. Highmark BSBSD, Inc.
C.A. No. K18C-02-010 WLW
May 10, 2018

“failed to provide her With a reasonable accommodation after she requested time off
due to her disability;” and (b) that she Was terminated “for requesting days off for her
disability.”

7. On June 18, 2015, Dan McGannon, an administrator for the DDOL’s Office
of Anti-Discrimination, advised Ms. Tolliver that her previously filed Charge of
Discrimination Was transferred to the Equal Employment Opportunity Commission’ s
(hereinafter, “EEOC”) office in Philadelphia because Ms. Tolliver’s charge alleged
adverse employment Which occurred beyond the 120-day statute of limitations for
filing a charge under state law. Therefore, the DDOL did not have jurisdiction to
consider it.

8. On November 15, 2017, the EEOC issued Ms. Tolliver a Notice of Right to
Sue. The notice stipulated that the EEOC closed its file on Ms. Tolliver’s charge
because the EEOC Was unable to conclude that the information obtained established
violations of Title VII, the Americans With Disabilities Act, the Genetic Information
Nondiscrimination Act, or the Age Discrimination in Employment Act. Perhaps more
importantly, however, the notice informed Ms. Tolliver that she “may file a lawsuit
against [Highmark] under federal law based on this charge in federal or state court.”

9. On February 12, 2018, Ms. Tolliver filed her Complaint in this Court
alleging two counts. First, Ms. Tolliver contends that her termination constituted a
breach of an implied contract With Highmark because she Was deprived of Paid Time
Off (hereinafter, “PTO”) to attend previously scheduled medical appointments, even

though her hiring letter from Highmark stated that Highmark provides employees

M Dem`se Tolliver v. Highmark BSBSD, Inc.
C.A. No. K18C-02-010 WLW
May 10, 2018

with PTO. Second, Ms. Tolliver contends that Highmark violated Section 720 of the
Delaware Discrimination in Employment Act (hereinafter, “DDEA”)3 because her
termination constituted both a failure to provide a reasonable accommodation for her
disability and retaliation for requesting such an accommodation.

10. On March 20, 2018, Highmark filed a Motion to Dismiss Ms. Tolliver’s
Complaint. First, Highmark contends that Ms. Tolliver’s Complaint should be
dismissed because her “implied contract” claim is time barred pursuant to 10 Del. C.
§ 8106. The claim also fails because, according to Highmark, Ms. Tolliver does not
have a contractual right, implied or otherwise, to take PTO. Second, Highmark
contends that Ms. Tolliver’s DDEA “disability and retaliation” claim should be
dismissed as untimely because Ms. Tolliver did not file a charge with the DDOL
within 120 days of the alleged adverse employment practice.

l l. On March 23, 2018, Ms. Tolliver filed her Response to Highmark’s Motion
to Dismiss. First, Ms. Tolliver contends that her implied contract claim is not barred
because it falls under the “at-will employment exceptions,” more specifically,
“public-policy, implied contract and covenant of good faith.” Second, Ms. Tolliver
contends that her DDEA “disability and retaliation” claim should not be governed by
the 120-day statute of limitations, referenced by Highmark, because 19 Del. C. §
712(c)(l) was amended to increase the limitations period to 300 days. In the

alternative, Ms. Tolliver contends that her Complaint should not be dismissed

 

3 See 19 Del. C. § 720.

M Dem`se Tolliver v. Highmark BSBSD, Inc.
C.A. No. K18C-02-010 WLW
May 10, 2018

because the “EEOC on August 29, 2016 issued its Enforcement Guidance on
Retaliation and Related Issues which shows that [Highmark] indeed acted
unlawfully.” Third, Ms. Tolliver contends that, “[u]nder FEPA, issuance of DelaWare
Right to Sue is a curable defect in so far as notice is provided to the court prior to
trial.”
STANDARD OF REVIEW

12. When deciding a motion to dismiss under Superior Court Civil Rule
12(b)(6), all well-pleaded allegations in the complaint must be accepted as true.4 The
test for sufficiency is a broad one, that is, the complaint will survive the motion to
dismiss so long as “a plaintiff may recover under any reasonably conceivable set of
circumstances susceptible of proof under the complaint.”5 Stated differently, a
complaint will not be dismissed unless it clearly lacks factual or legal merit.6 In
considering a motion to dismiss under Rule 12(b)(6), the Court generally may not
consider matters outside the complaint.7 However, documents that are integral to or
incorporated by reference in the complaint may be considered.8

DISCUSSION

 

4 Spence v. Funk, 396 A.2d 967, 968 (Del. 1978).

5 Id. (citing Klein v. Sunbeam Corp., 94 A.2d 385 (Del. 1952)).

6 Diamona' State Tel. Co. v. Univ. of Del., 269 A.2d 52, 58 (Del. 1970).
7 See Super. Ct. Civ. R. 12(b).

8 See In re Sam‘a Fe Pac. Corp. S ’holder Litig., 669 A.2d 59, 70 (Del. 1995).

5

M Dem`se Tolliver v. Highmark BSBSD, Inc.
C.A. No. K18C-02-010 WLW
May 10, 2018

Count I.' Breach of Implied Contract

13. In Delaware, there is a three-year statute of limitations for actions based on
a promise.9 The limitations period starts to run when the cause of action accrues.10
Highmark terminated Ms. Tolliver on or about August 26, 2014. Yet, Ms. Tolliver
filed the Complaint in the instant matter on February 12, 2018, more than three years
and five months after Highmark’s supposed breach of its alleged promise to provide
Ms. Tolliver PTO for her medical appointments11 Therefore, regardless of Whether
or not an implied contract actually existed, Ms. Tolliver’s first claim is barred by the
statute of limitations.12

Count II: DDEA Claim

14. In order to bring a civil action in Superior Court pursuant to the DDEA, a

claimant must exhaust his or her administrative remedies and procure a Delaware

 

9 See 10 Del. C. § 8106(a) (providing that “no action based on a promise . . . shall be brought
after the expiration of 3 years from the accruing of the cause of action . . . .”).

10 SmithKline Beecham Pharm. C0. v. Merck & Co., 766 A.2d 442, 450 (Del. 2000).

11 Ms. Tolliver contends, in her Response to Highmark’s Motion to Dismiss, that she was
actually provided notice of her termination on December 16, 2014. But, even if this is true, such a
distinction is irrelevant because Ms. Tolliver filed her Complaint more than three years from this
date as well.

12 The Court declines to toll the statute of limitations in this case, despite Ms. Tolliver’s
request, because Ms. Tolliver has failed to raise a recognized tolling doctrine applicable to 10 Del.
C. § 8106. And, although the Court has reviewed Ms. Tolliver’s pleadings in detail, the Court is
unable to identify any facts that would trigger one of the following recognized tolling doctrines: “( 1)
inherently unknowable injuries; (2) fraudulent concealment; [or] (3) equitable tolling.” In re Dean
Witter P’ship Litig., 1998 WL 442456, at *5-6 (Del. Ch. July 17, 1998).

6

M Denise Tolliver v. Highmark BSBSD, Inc.
C.A. No. K18C-02-010 WLW
May 10, 2018

Right to Sue Notice.13 Those administrative remedies, as set forth in 19 Del. C. §
712, require a claimant to first file a charge of discrimination with the DDOL not
more than 120 days after the alleged unlawful employment practice or its discovery.14
Here, it is uncontested, that Ms. Tolliver filed a charge of discrimination with the
DDOL on June 11, 2015, more than six months after the 120-day deadline.15
Therefore, Ms. Tolliver’s second claim is also barred as untimely.16
CONCLUSION
15. In consideration of the foregoing, Highmark’s Motion to Dismiss is hereby

GRANTED because both of the claims asserted by Ms. Tolliver in her Complaint are

 

13191)€1.€_ §714.

14 At the time Ms. Tolliver filed her charge of discrimination, the DDEA required “[a]ny
person claiming to be aggrieved by a violation of this chapter [to] first file a charge of discrimination
within 120 days of the alleged unlawful employment practice . . . .” 19 Del. C. § 712(c)(l).
Although the statute was amended to extend the filing deadline to 300 days, the amendment only
became effective on July 19, 2016, more than a year after Ms. Tolliver filed her charge. Thus, the
120-day limitation applies.

15 And again, even if the actual date of Ms. Tolliver’s termination was December 16, 2014,
her claim of discrimination Would still have been untimely as it would exceed the 120-day deadline
by more than two months. Thus, like Ms. Tolliver’ s breach of implied contract claim, this difference
is irrelevant even if true.

16 See Bomberger v. Benchmark Buila'ers, Inc., 2017 WL 1377595, at *2 (D. Del. Apr. 13,
2017) (where the district court dismissed count two of the'plaintiff’ s complaint - alleging violations
of the DDEA by the plaintiffs former employer _ because the plaintiff had previously failed to
submit a charge of discrimination to the DDOL within the 120-day limitations period prescribed by
19 Del. C. § 714). See also Paitsel v. State, 2016 WL 1424828, at *4 (Del. Super. Apr. 7, 2016)
(where this Court stipulated that time is a jurisdictional requirement and cannot be excused unless
it is attributable to an administrative error).

.M. Denise Tolliver v. Highmark BSBSD, Inc.
C.A. No. K18C-02-010 WLW
May 10, 2018

barred as untimely. However, since Ms. Tolliver is representing herself pro se and
apparently misunderstood the Federal Right to Sue Notice that she received from the
EEOC,17 the Court finds that it is necessary to allow Ms. Tolliver to amend her
Complaint. Therefore, although Ms. Tolliver’s state law claims are barred, the Court
will grant Ms. Tolliver 90-days from the date of her receipt of this Order to amend
her Complaint so that she may, in accordance with her Federal Right to Sue Notice,
assert any claims that she might have under federal law.18

IT IS SO ORDERED.

/S/ William L. Witham. Jr.
Resident Judge

WLW/dmh

 

17 Ms. Tolliver seemingly missed the portion of the Federal Right to Sue Notice that stated
that she “may file a lawsuit against [Highmark] under federal law based on this charge in federal or
state court.”

18 F or clarification, ninety-days is not an arbitrary time period chosen by the Court. Rather,
it is the time prescribed by the EEOC in the Federal Right to Sue Notice for filing a lawsuit after
receipt of that notice.

