       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

SUSAN PAITSEL                           :
                                        :
               Plaintiff,               :      K15C-02-030 JJC
                                        :      In and For Kent County
      v.                                :
                                        :
STATE OF DELAWARE,                      :
DEPARTMENT OF LABOR, and                :
DEPARTMENT OF                           :
TRANSPORTATION                          :
                                        :
              Defendants.               :

                            Submitted: February 12, 2016
                               Decided: April 7, 2016

                                    OPINION

            Upon Defendants’ Converted Motion for Summary Judgment
                     GRANTED in part and DENIED in part

Andre M. Beauregard, Esquire, of Brown, Shiels & Beauregard, LLC, Dover,
Delaware, Attorney for Plaintiff.

Oliver J. Cleary, Esquire, and Joseph C. Handlon, Esquire Department of Justice,
Wilmington, Delaware, Attorney for Defendants.




Clark, J.
                                  I. INTRODUCTION
        The Defendants State of Delaware, Department of Labor, and Department of
Transportation (hereinafter referred to collectively as “the State”) filed a Superior
Court Civil Rule 12(b)(6) motion to dismiss Plaintiff Susan Paitsel’s (“Paitsel’s”)
amended complaint. Paitsel alleges, inter alia, employment discrimination against the
Delaware Department of Labor (hereinafter “DOL”) and the Delaware Department of
Transportation (hereinafter “DelDOT”). The Court, after providing notice to the
parties, converted this motion to dismiss to a motion for summary judgment because
both parties supplemented the briefing with materials outside the pleadings.
       DOL was both Paitsel’s employer and the agency who accepted her charge of
discrimination pursuant to DOL’s work sharing agreement with the Equal Employment
Opportunity Commission (hereinafter “EEOC”). DOL seeks dismissal of Paitsel’s
claim for an untimely filed charge. Paitsel asserts in part that DOL caused the delay
because of an alleged conflict of interest in being both her employer and the charge
processing entity. Under the circumstances of this case, there is a genuine issue of
material fact regarding whether Paitsel’s claim against DOL is time barred.
       Paitsel also separately sued DelDOT but named that agency in the suit well after
expiration of the statute of limitations. She claims that a timely filed suit against either
the State of Delaware or DOL permits her claim against DelDOT to relate back to the
initial timely filed suit. In this instance, it does not.
       Finally, Paitsel’s federal claims are barred by the sovereign immunity granted
by the Eleventh Amendment to the United States Constitution. Accordingly, for the
following reasons, summary judgment on behalf of the State of Delaware Defendants
is GRANTED in part and DENIED in part.



                                              2
               II. PROCEDURAL AND FACTUAL BACKGROUND
      On February 27, 2015, Paitsel filed a complaint in this Court alleging
employment disability discrimination on both federal and state law grounds. The
complaint initially named DOL and one of its employees, Julianne Watkins, in her
official capacity. DOL and Watkins filed an answer and motion for judgment on the
pleadings on May 29, 2015. Thereafter, Paitsel filed an amended complaint on
September 14, 2015, adding DelDOT as a defendant, together with allegations of
violations of the Americans with Disabilities Act1, and a claim alleging breach of the
covenant of good faith and fair dealing. Furthermore, Paitsel’s amended complaint
removed Julianne Watkins as a defendant and abandoned a 42 U.S.C. § 1983 claim.
      The counts now included within Paitsel’s amended complaint include a disability
discrimination claim against DOL pursuant to the Delaware Persons With Disabilities
Employment Protection Act (“PWDEPA”)2 and the Americans with Disabilities Act
(“ADA”)3. Furthermore, the amended complaint now separately includes claims of
retaliation under the PWDEPA and the ADA targeted at DelDOT for a separate
incident. Finally, Paitsel included a count alleging a breach of good faith and fair
dealing against all Defendants. In Paitsel’s response opposing the motion, however,
she voluntarily withdrew this common law claim.
      On November 2, 2015, the State moved to dismiss the amended complaint on
Rule 12(b)(6) grounds. Both parties submitted documents supplementing their
positions, including an affidavit signed by Paitsel and a witness’s statement. Also, the


      1
          42 U.S.C.A. § 12112 et seq.
      2
          19 Del.C. § 720.
      3
          42 U.S.C.A. § 12112 et. seq.

                                           3
parties provided a number of documents generated throughout the administrative
process. After reviewing the submissions, the Court converted the motion to dismiss
into a motion for summary judgment pursuant to Delaware Superior Court Civil Rule
12(b). The parties were then permitted thirty additional days to provide additional
material made pertinent to the motion by Superior Court Civil Rule 56. The discussion
of the evidence that follows reflects the evidence of record viewed in the light most
favorable to Paitsel, as the non-movant.
      Paitsel was a contract worker for Goodwill Staffing Services (“GSS”) and was
assigned at the DOL’s Division of Unemployment Insurance as a Claims
Representative from August 25, 2009 until July 1, 2011, when DOL terminated her
contract. GSS is an organization that assists individuals with disabilities in finding
suitable employment and places them in various contract positions with State agencies.
      Paitsel’s conduct at issue at DOL centers on three work days. On June 29, 2011,
Paitsel called her supervisor at the DOL stating that she would be late to work due to
an emergency with her stepdaughter. At 10:45 that morning, Paitsel called a second
time to notify her supervisor that she would not be going to work that day.
      On June 30, 2011, Paitsel arrived at work on time, but failed to notify her
supervisor when she took a forty minute break instead of the allotted fifteen minutes.
Furthermore, the State alleges DOL staff complained to a supervisor that Paitsel’s
speech was slurred and that she could hardly stand or walk. As a result, she was told
to go home.
      The next day, on July 1, 2011, Paitsel appeared at work in the same condition,
prompting a meeting with her supervisor, Julianne Watkins. At that meeting, Paitsel
explained that she was suffering from adverse effects of her new medication, Xanax,
which was prescribed to her by her doctor on June 28, 2011. Sarah Callaway, a co-

                                           4
worker of Paitsel’s, corroborated Paitsel’s position regarding the prescription medicine.
Paitsel also    provided documentation of this prescription.             Nevertheless, DOL
terminated her employment.4
       Paitsel asserts that she suffers from general anxiety disorder and bipolar disorder
which required her to take prescription medication. Paitsel further alleges that the side
effects of this medicine involved slurring words, slow speech, and difficulty articulating
words properly. Paitsel, immediately following her termination, voluntarily submitted
to a drug and breathalyzer test at Bayhealth’s walk-in clinic. The results of the tests
were negative for alcohol.          Paitsel then contacted the GSS coordinator who
administered an independent drug test to confirm the results. Paitsel alleges that when
confronted with these facts, DOL refused to engage in an interactive discussion
regarding a reasonable accommodation for her disability. Paitsel alleges that she was
wrongfully discharged as a result of her impairments.
       Paitsel was later assigned by GSS to DelDOT on August 23, 2011. Her
assignment there was terminated on September 19, 2011. The cited reason for her
termination was her inability to complete assigned functions. However, Paitsel asserts
that the reason for her termination at DelDOT was pretextual and DelDOT’s true
motivation was retaliatory in response to her complaint of discrimination at DOL based
on the medication related matter from two months prior.
       Paitsel states, by affidavit, that she presented her charges of discrimination to
the DOL Office of Anti-Discrimination on October 28, 2011, and was told by a DOL
employee that her charges would be filed in a timely fashion. The formal charges were

       4
         As an actual employee of GSS, Paitsel was placed at first with DOL. Approximately two
months later, GSS separately placed her with DelDOT. For purposes of this motion, the Court is
assuming, as have the parties in the motion papers, that Paitsel was an employee of DOL and then
DelDOT for purposes of the various discrimination claims.

                                               5
not filed, however, until November 22, 2011, after the 120 day deadline set by 19
Del.C. § 712. The formal charge against DOL accordingly did not fall within the
required time frame. Since DelDOT related allegations stemmed from September 19,
2011 conduct, the timing of the formal charges against DelDOT met the 120 day
statutory deadline for that claim. Paitsel asserts that because DOL staff assured her
that her charges would be filed in a timely fashion, she met the charge deadline as to
DOL.
       After she filed separate charges against each agency, the Equal Employment
Opportunity Commission (“EEOC”) separately investigated Paitsel’s claims of
discrimination against DelDOT and DOL. The EEOC issued a determination on
September 19, 2013 that there was reasonable cause to believe that DOL discriminated
against her based on her disability. However, the EEOC issued a no-cause finding and
a Right to Sue Letter on November 21, 2013 regarding Paitsel’s retaliation charge
against DelDOT. The EEOC issued the separate Right to Sue Letter against DOL
much later, on December 2, 2014. Paitsel filed a suit against DOL on February 26,
2015. However, she did not name DelDOT separately as a Defendant until September
14, 2015.5


                              III. STANDARD OF REVIEW
       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. 6 The test for


       5
        Paitsel did however reference DelDOT employee conduct in the original complaint. Also,
although DelDOT was not named as a defendant in the original complaint, Paitsel included the formal
charge against DelDOT as an exhibit to the original complaint.
       6
           Spence v. Funk, 396 A.2d 967, 968 (Del. 1978).

                                                6
sufficiency is a broad one: 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.” 7 Stated differently, a complaint will not
be dismissed unless it clearly lacks factual or legal merit.8
       As also provided in Superior Court Rule 12(b), in a Rule 12(b)(6) motion, where
“matters outside the pleadings are presented and not excluded by the Court, the motion
shall be treated as one for summary judgment and disposed of as provided in Rule 56,
and all parties shall be given a reasonable opportunity to present all material made
pertinent to such a motion by Rule 56.” There are two exceptions to the prohibition
against considering extrinsic material on a motion to dismiss: (1) where a document is
integral to a Plaintiff’s claim and is referred to in the complaint, or (2) where the
document is relied upon for something other than the proof of its contents. 9
       Summary judgment will be granted when, viewing the evidence in the light most
favorable to the nonmoving party, the moving party demonstrates that “there are no
material issues of fact in dispute and that the moving party is entitled to judgment as
a matter of law.”10 When material facts are in dispute, or “it seems desirable to inquire
more thoroughly into the facts to clarify the application of the law to the
circumstances,” summary judgment will not be appropriate.11 However, when the facts

       7
           Id. (citing Klein v. Sunbeam Corp., 94 A.2d 385 (Del. 1952)).
       8
           Diamond State Tel. Co. v. Univ. of Del., 269 A.2d 52, 58 (Del. 1970).
       9
        Furman v. DOT, 30 A.3d 771, 774 (Del. 2011) (citing Vanderbilt Income and Growh v.
Arvida/JBM Managers, 691 A.2d 609, 613 (Del. 1996)).
       10
        Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991) (citing Benge v. Davis, 553 A.2d 1180,
1182 (Del. 1989)); see also Del. Super. Ct. Civ. R. 56(c).
       11
          Ebersole v. Lowengrub, 180 A.2d 467, 468-69 (Del. 1962) (citing Knapp v. Kinsey, 249
F.2d 797 (6th Cir. 1957)).

                                                  7
permit a reasonable person to draw but one inference, the question becomes one for
decision as a matter of law.12


                                     IV. DISCUSSION
      The State moves for dismissal of Paitsel’s discrimination claims against DOL
and DelDOT alleging that (1) the State claims against DOL are time barred because of
a late filed administrative claim, (2) suit was not filed against DelDOT within the
State statute of limitations, and (3) the State is immune from the Federal discrimination
claims pursuant to the sovereign immunity granted by the Eleventh Amendment to the
United States Constitution. Paitsel opposes the State’s Motion for Summary Judgment
by alleging that she presented her claims against DOL within the deadline, but an
administrative error or purposeful delay by DOL prevented the proper filing of her
claims. She also acknowledges that money damages against a state are not recoverable
under the ADA, but claims she is nevertheless eligible for injunctive relief regarding
her federal law claim. Paitsel also argues that DOL and DelDOT, as State agencies,
should be treated as a single Defendant – the State – for purposes of notice and
therefore the ninety day suit filing deadline against DelDOT was satisfied by her suit
against DOL.


A.    Because of the nature and extent of the materials both parties offered in
      support of their positions, the matter is converted to a summary judgment
      motion pursuant to Superior Court Rule 56.

      Paitsel supplemented the record with the following documents: her affidavit; the
formal charge filed against DelDOT; documents submitted to the EEOC in furtherance


      12
           Wootten v. Kiger, 226 A.2d 238, 239 (Del. 1967).

                                               8
of the investigation; a statement by Paitsel’s co-worker Sarah Callaway; an emailed
statement from Paul Beane, Paitsel’s GSS manager; the Determination of Reasonable
Cause from the EEOC regarding Paitsel’s DOL charge; and, the Investigative Case Log
for Paitsel’s charge against DelDOT.                The State supplemented the record with its
contract with GSS, its written response filed with the EEOC contesting the DOL
charge, and the DOL charge.
           Here, both parties supplemented the Rule 12(b)(6) record with documents
outside the pleadings. After reviewing the documents in the context of the pleadings,
the Court converted the motion to one for summary judgment.                         Neither of the
exceptions to this Rule calling for conversion applied in the instant case.13 Namely,
many of the documents were not integral to the pleadings and were not specifically
incorporated into the complaint or answer. Furthermore, they were not offered for
some reason other than the proof of their respective contents. The Court felt it
appropriate to convert the motion and then gave the parties thirty additional days to
supplement the record with additional information they believed to be pertinent.
Neither party supplemented the record with additional evidence.


B.         The evidence of record does not support summary judgment regarding
           Paitsel’s PWDEPA claim against DOL.

           The State argues that the PWDEPA claim against DOL should be dismissed
because she filed the charge untimely. The State emphasizes that the deadline to file
a discrimination charge is within 120 days of the allegedly discriminatory act, but
Paitsel’s formal charge was belatedly filed on the 144th day. Paitsel argues that she


           13
                See Furman v. DOT, 30 A.3d 771, 774 (Del. 2011) (articulating the exceptions discussed
infra.).

                                                     9
presented her charge of discrimination to the DOL on the 119th day, within the
deadline, and was assured that it would be filed in time. She asserts that the delay in
filing is due to DOL and not herself. In this regard, she argues that this statutory claim
deadline should be equitably estopped or tolled because the delay in filing was DOL’s
fault.
         A charging party may file a civil action for discrimination in the Superior Court
only after exhausting all administrative remedies and receiving a Delaware or Federal
Right to Sue Notice.14 Prior to the receipt of this notice, the administrative process
requires that “[a]ny person claiming to be aggrieved . . . shall first file a charge of
discrimination within 120 days of the alleged unlawful employment practice or its
discovery, setting forth a concise statement of facts, in writing, verified and signed by
the charging party.”15 Because time is a jurisdictional requirement, a defect created by
an untimely filing cannot be excused unless it is attributable to an administrative error.16
Furthermore, an untimely filing may be excused in certain circumstances where “the
interest of justice would not be served by inaction.”17 Therefore, if a charge is untimely
due to an administrative error that is the fault of DOL, this Court will still retain


         14
              19 Del. C. § 714(a).
         15
              19 Del. C. § 712(c)(1).
         16
           See Casteel v. State of Delaware, 2016 WL 152966, at *1 (Del. Super. Jan. 8, 2016) (Slip
Copy)(holding that untimely filing is a jurisdictional requirement that cannot be excused unless the
delay in filing is attributable to court-related personnel); see also Funk v. Unemployment Ins. Appeal
Bd., 591 A.2d 222, 225 (Del. 1991) (holding that the ten day statutory period to file an
unemployment appeal begins to run on the date of mailing unless the mailing fails to reach a party due
to some mistake made by employees of DOL).
         17
          Lively v. Dover Wipes Co., 2003 WL 21213415, *1 (Del. Super. May 6, 2003) (holding
that the UIAB may take jurisdiction of an untimely filed appeal if the lateness was tracked back to
a administrative error or if it finds that the interest of justice would not be served by inaction).

                                                 10
jurisdiction over the claim.
       Here, Paitsel asserts, via affidavit, that she presented her claim to the DOL on
October 28, 2011 which was the 119th day and within the statutory charge deadline.
Further, Paitsel states that she was assured that her charge would be filed in a timely
manner. There has been no evidence offered by the State, via affidavit or otherwise,
refuting the fact that Paitsel presented her charge on the 119th day. How the claim was
“presented” however is not clear on the record. Accordingly, there is a genuine issue
of material fact regarding whether an administrative error caused the delay in filing the
formal charge.
       Delaware’s employment discrimination statute is nearly identical to the federal
Title VII employment discrimination statute.18 Because the statutory language is
substantially similar to its Federal counterpart regarding unlawful employment
practices, the Delaware Supreme Court has held that the tests and standards used for
Title VII apply to Delaware statutory claims as well.19 In other words, Delaware takes
its interpretive lead regarding our State discrimination statutes from the Federal
interpretations due to the similarity of the statutes.20 For this reason, this Court will
look to federal interpretations to substitute for a lack of state authority on this matter.
       As noted above, Paitsel presented something pertaining to her DOL and DelDOT
claims to DOL on the 119th day. An issue remains, however, as to the sufficiency of
what Paitsel “presented” and whether that qualifies as a charge pursuant to the
governing statute. The Supreme Court of the United States has held that a charge must


       18
         See Cannon v. State of Del., 523 F. Supp. 341, 344 (D. Del. 1981) ( holding that “Delaware
State law prohibits employment discrimination in terms almost identical to Title VII itself”).
       19
            Giles v. Family Court of Delaware, 411 A.2d 599, 601-02 (Del. 1980).
       20
            Riner v. Nat'l Cash Register, 434 A.2d 375, 376 (Del. 1981).

                                                 11
be reasonably construed as a request to take an action as well as contain, at a minimum,
an allegation, and the name of the charged party.21 When an individual files a charge
of discrimination, they first complete an intake form or questionnaire.22 While the
intake questionnaire is not considered per se to be a charge, a court may treat it as a
charge if it meets the minimum requirements set.23 For instance, the United States
District Court for the Western District of Pennsylvania found that an attorney's letter
to the EEOC could constitute a charge because it contained the appropriate information
and had a request for action.24
       Various other District Courts in the Third Circuit have acknowledged that
documents other than a formal charge may satisfy the “charge” requirement as long as
they are verified.25 In EEOC regulations, verified is defined as “sworn to or affirmed
before a notary public, designated representative of the Commission, or other person
duly authorized by law to administer oaths and take acknowledgments, or supported
by an unsworn declaration in writing under penalty of perjury.”26 Federal District
Courts have found that the use of an intake questionnaire is sufficient to constitute a
charge and that later verification of a charge will relate back to the date of the




       21
         Hayes v. Delaware State University, 726 F.Supp.2d 441, 451 (D. Del. 2010) (Citing Fed.
Express Corp. V. Holowecki, 552 U.S. 389, 402 (2008)).
       22
            Id.
       23
            Id.
       24
            Steiner v. Prof’l Servs. Indus. Inc., 2009 WL 2950755, at *2 (W.D. Pa. Sept. 9, 2009).
       25
            Waites v. Kirkbride Center, 2011 WL 2036689, at *5 (E.D. PA May 23, 2011).
       26
            Id. at *4

                                                 12
questionnaire.27 Even if a plaintiff’s questionnaire contains specific language that the
completion of the form does not constitute a charge, courts may still consider it
sufficient as long as the form lists the name of the charged party, the allegation of
discrimination, and can be considered as a request for action.28
       Under Rule 56, when a non-movant is afforded the opportunity and does
establish a genuine issue of material fact, “. . .the burden again shifts to the movant to
demonstrate the absence of such disputes. . .”29 Despite opportunity, the State has
provided no contrary facts of record regarding this issue. Neither party submitted the
questionnaire or attested to the fact that nothing was presented in writing on the 119th
day. On the other hand, Paitsel’s representation in her affidavit does not specify how
she “presented” her claim. There is not sufficient evidence of record to resolve
whether what she presented qualifies as a “charge.”30 Given Patisel’s affirmative
representation in her affidavit and the lack of contradictory facts submitted by the
State, summary judgment as to Paitsel’s PWDEPA claim against DOL must be denied.

       27
         Wood v. Kaplan Props. 2009 WL 3230267, at *4 (D.N.J. Sept. 29, 2009); Joseph v.
Pennsylvania, 2009 WL 1012464, at *1 (E.D. Pa. Apr. 15, 2009).
       28
            Hayes, 726 F.Supp.2d at 452.
       29
            Appriva S'holder Litig. Co., LLC v. EV3, Inc., 937 A.2d 1275, 1287 (Del. 2007)
       30
           Paitsel primarily asserts that DOL is estopped from using the charge deadline as a defense
based on its failure to fully process the claim after it was “presented” on the 119th day. Equitable
tolling applies in circumstances “where the employer’s own acts or omissions have lulled the plaintiff
into foregoing prompt attempts to vindicate his [or her] rights.” Miller v. Beneficial Manag. Corp.,
977 F.2d 834, 845 (3d.Cir. 1992). Here, there is the unusual situation involving an employer and a
charge processing agency that are one and the same. Paitsel’s affidavit establishes a factual issue
regarding whether the requirements for equitable estoppel exist, as well whether an administrative
error excused her missing of the charge deadline. At this stage of the proceedings, DOL has offered
no other evidence of record about the exchange between Paitsel and DOL during this “presentation”
of the claim or its surrounding circumstances. A further developed factual record at trial is
appropriate regarding the estoppel defense to the timing requirement, as well as the issue regarding
possible administrative error.

                                                 13
An issue of material fact also remains as to whether the presentation referred to by
Paitsel in her affidavit satisfied the requirement for filing a charge pursuant to 19 Del.C.
§ 712.

         The State also argues that since DOL has not promulgated regulations
implementing an enforcement mechanism as required by 19 Del.C. § 722(4)c,
enforcement is not available in this case against either agency. Section 722(4) of Title
19, Delaware Code provides that “[e]nforcement of [the PWDEPA] by persons
qualifying for protection solely under this paragraph (4)c of this section shall be
deferred until the issuance of the Secretary’s final regulation.” Neither party addressed
this issue at length in the briefing.
         Paitsel counters that her claim is made pursuant to a different paragraph, 19
Del.C. § 722(4)a, that is not impacted by that qualification. Namely, she alleges a
documented impairment as opposed to being “regarded as having such impairment.”
The Court recognizes that the provision at issue is limited solely to paragraph (4) c of
that section. Accordingly, as alleged, Plaintiff’s allegedly documented disability would
qualify for protection under the PWDEPA independent of whether DOL issued
regulations regarding enforcement under paragraph (4)c.
         Moreover, the State’s position on this issue is contradicted by its assertion in
its motion that the PWDEPA’s provisions abrogate Paitsel’s common law claim – here,
the breach of the covenant of good faith and fair dealing. If the PWDEPA was
inapplicable to Paitsel as the State alleges, Paitsel’s common law claim would not be
abrogated. The State apparently did not raise any such issue in the administrative
process as evidenced by its response to Paitsel’s charge of discrimination, included as
an exhibit to the State’s Opening Brief. It seems appropriate that if a Plaintiff must
exhaust administrative remedies, the State, as the employer must also.

                                            14
        Finally, it would be inappropriate for the State to use this provision as a shield
since it is charged with adopting such regulations. The General Assembly enacted this
statute, which addresses needed regulations, on July 11, 1988 and it became effective
180 days thereafter.31 Accordingly, an agency’s failure to enact enforcement related
regulations for over twenty years, contrary to the General Assembly’s direction, would
not be appropriate. Reading such language to permit a defense to a PWDEPA claim
would essentially allow an agency veto of a statute. This would be inconsistent with
the prohibition against open ended delegation of legislative powers to an agency.32 If
final regulations have not yet been enacted, DOL in this instance would be in violation
of the General Assembly’s clear mandate that DOL “shall adopt such rules and
regulations as may be necessary and proper to implement the policies of [the
PWDEPA].”33 The parties cited no authority other than the statute’s language in their
briefing. If Paitsel’s claim ultimately falls solely within the parameters of paragraph
(4)c., of Section 722, of Title 19, a 1988 ostensible statutory “deferral” of enforcement
is not available for DOL.

C.      Paitsel’s PWDEPA action against DelDOT is time barred and summary
        judgment must be granted on behalf of DelDOT.

        Since the alleged conduct of DelDOT followed that of DOL, there is no dispute
that a sufficient charge was filed against DelDOT within the 120 days required by 19
Del.C. § 712. However, the State argues that the statute of limitations for bringing a


        31
             66 Del. Laws ch. 337 (1988).
        32
         See Del.Const. art. II, § 1 (mandating that the “legislative power of this State shall be vested
in a General Assembly...”);
        33
             19 Del. C. § 728.

                                                   15
suit against DelDOT for an employment retaliation claim expired. Paitsel received her
Right to Sue Letter as to DelDOT on November 21, 2013. The State, accordingly,
asserts that because Paitsel failed to bring a law suit within 90 days of receiving the
Right to Sue Letter, her State claim against DelDOT is time barred pursuant to 19 Del.
C. § 714.
       In this regard, the State argues that state agencies are not fungible and a claim
against one that is time barred cannot automatically relate back to a claim against
another agency for purposes of application of this shortened statute of limitations.
Paitsel counters by asserting that the action against DelDOT is directly connected to
the action against DOL. Paitsel argues that she filed both claims with DOL on the
same day and they were both investigated together by the EEOC. She also argues that
the claims are interrelated to such a degree that the action against DelDOT should
relate back to the action against DOL.
       When receiving a Right to Sue Notice authorizing the charging party to file a
civil action for a claim, the action must be initiated within 90 days of its receipt.34 The
notices themselves reference the ninety day deadline and are directed to the claimant,
such as Paitsel. The controlling statue directs that if the charging party’s discrimination
cause of action is prosecuted in the federal forum (i.e. the EEOC), then the Federal
Right to Sue Notice is operative.35 A Federal Right to Sue Notice against DelDOT was
issued on November 21, 2013. Paitsel did not sue DelDOT until September 14, 2015,
well past the 90 day statute of limitations set forth in 19 Del. C. § 714(b). In contrast,
a separate finding by the EEOC, finding reasonable cause to believe DOL



       34
            19 Del. C. § 714(b).
       35
            Id.

                                            16
discriminated against Paitsel was issued on September 9, 2013. A separate Right to
Sue Notice regarding Paitsel’s claims against DOL was not issued until December 2,
2014. Paitsel then filed a timely Superior Court complaint against DOL within the
required 90 days. Paitsel did not name DelDOT in the suit by an amended complaint
until September 14, 2015. By all counts, this was well outside the statute’s limitation
period for filing a PWDEPA suit.
        The parties cited no Delaware authority on point regarding whether different
state agencies are to be treated as separate or the same regarding discrimination
actions. It is instructive, however, to consider to what extent state agencies are treated
as separate entities by other Delaware statutes.
        As the State emphasizes, the Delaware Code regarding service and return of
summons treats the state, agencies, administrative offices, and departments as separate
entities.36 Namely, 10 Del.C. § 3103, for purposes of defining sufficiency of service of
process or summons, list agencies and departments separately.37 The statute suggests
that each administrative office and agency are separate and therefore require service
to be made separately upon each. Furthermore, the Superior Court Civil Rules combine
with this statute to provide that at least two individuals must be served when suing a
state agency.38 These two individuals are (1) the chief executive officer of the state


        36
             10 Del. C. § 3103.
        37
           Section 3103 of Title 10 lists the State and its separate agencies separately when describing
requirements for service of process. Namely, that section provides , inter alia, that “[n]o service of
summons upon the State or upon any administrative office, agency, department, board or commission
of the state government, or upon any officer of the state government . . . ” are ineffective absent
service, in part, on the Department of Justice(emphasis added).
        38
          Super. Ct. Civ. Rule 4; 10 Del C. § 3103; see Johnson v. Delaware, 2013 WL 1285114,
at *4 (D. Del. March 28, 2013) (recognizing that the Federal Rules of Civil Procedure and the
applicable State Rule and Statute provide that at least two individuals must be served, the chief

                                                  17
agency being sued, and (2) the Attorney General, the Chief Deputy Attorney General,
or the State Solicitor.39 Requiring service on the chief executive officer of the agency
being sued treats each agency as separate for purposes of identification of proper
party.40
       Moreover, PWDEPA itself contemplates treating state agencies as separate
entities for purposes of exhaustion of administrative remedies and subsequent suits.
Namely, in 19 Del. C. § 710(17), a “public employer” as defined for purposes of the
PWDEPA, includes “the State of Delaware, its agencies, or political subdivisions.”41
Accordingly, in at least some respects, the Delaware statute creating the state cause of
action at issue considers state agencies to be separate and distinct public employers.
       Perhaps most germanely, Paitsel herself acknowledged that the two state
agencies should be treated separately when she filed two separate charges of
discrimination against DOL and DelDOT. Paitsel alleged separate and specific claims
against each of the respective agencies. At no point did Paitsel treat the two claims as
combined for purposes of exhausting her administrative remedies. Here, Patisel elected
to completely bifurcate her claims with two separate charges against two separate
agencies.
       As provided in the PWDEPA, “ a charging party may file a civil action in
Superior Court, after exhausting the administrative remedies . ..”42. The purpose of the


executive officer of the State agency being sued, and either the Attorney General, or the State
Solicitor.)
       39
            Id.
       40
            Id.
       41
            19 Del. C. § 710(17) (emphasis added).
       42
            19 Del.C. § 714(a).

                                                18
right to sue letter is to ensure that any subsequent suit is “within the limits of the initial
administrative charge.” 43 The administrative process Paitsel set in motion through two
separate charges generated separate Right to Sue Notices, at different times. She was
bound by law at that point to abide by the correct process as to each. Because Paitsel
did not file a law suit against DelDOT for retaliation within 90 days of receiving the
Right to Sue Letter addressing her complaint against DelDOT, the claim is now time
barred by the statute of limitations.
       Finally, even if Paitsel’s DelDOT Superior Court claim related back to the initial
filing of the complaint on February 15, 2015, it would be untimely. The 90 day
window expired more than a year before her first filing in Superior Court regarding this
case. Summary judgment dismissing Paitsel’s state claims against DelDOT is
appropriate.

D.     Paitsel’s Federal ADA Claim is Barred Pursuant to the Eleventh
       Amendment to the United States Constitution.

       The State argues that Paitsel’s ADA claim is barred by the Eleventh Amendment
to the United States Constitution. The State asserts that it is immune to suits without
the State’s consent under constitutionally protected sovereign immunity. Paitsel
responds by acknowledging that although states are immune from law suits seeking
money damages, they are still subject to injunctive relief under certain circumstances.
       The ADA is a federal statute that prohibits employers, including on its face
states, from “discriminating against a qualified individual with a disability because of
the disability of such individual in regard to job application procedures, the hiring,


       43
         Twillie v. Eerie School District, 575 Fed. Appx. 28, at *31 (3d Cir. 2014)(citing Antol v.
Perry, 82 F.3d 1291, 1295-96 (3d Cir. 1996)).

                                                19
advancement, or discharge of employees, employee compensation, job training, and
other terms, conditions, and privileges of employment.”44 Under the ADA, an employer
must make reasonable accommodations to the known physical or mental limitations of
an otherwise qualified individual with a disability unless the employer can show that
the accommodation would result in an undue hardship to the business.45
       The Supreme Court of the United States has expressly held that ADA suits
against states are barred by the Eleventh Amendment.46 In this regard, the Eleventh
Amendment grants immunity from law suits by private individuals against non-
consenting states.47 It provides that “[t]he Judicial power of the United States shall not
be construed to extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another state, or by Citizens or Subjects of any
Foreign State.”48 This guarantee has been extended to suits by citizens against their
own states.49 As the U.S. Supreme Court further recognized, “[t]his jurisdictional bar
applies regardless of the nature of relief sought.”50 A sovereign’s immunity may only
be waived by unequivocal express consent by the state.51 Paitsel does not identify any
such alleged express consent by the State of Delaware.

       44
           See Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 360-61 (2001)
(citing 42 U.S.C. §§ 12112(a), 12111(2), (5), (7).)).
       45
            See Id. at 361 (citing 42 U.S.C. § 12112(b)(5)(A)).
       46
            Id. at 360.
       47
            Id. at 363.
       48
            Id.
       49
            Id.
       50
            Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984).
       51
            Id. at 99.

                                                 20
       Patisel emphasizes, however, that an exception to this general rule exists and has
been recognized by the U.S. Supreme Court.52 Paitsel is correct in that a law suit
challenging the constitutionality of a state official’s action is not considered a challenge
against the State.53 When a plaintiff sues a state official alleging a violation of federal
law, the Court may award an injunction that governs future conduct, but may not award
retroactive monetary relief.54 Full sovereign immunity does not apply under this
exception because an official who acts unconstitutionally is stripped of his or her
official or representative character.55 Retroactive relief is, however, still barred by the
Eleventh Amendment and any award must be prospective.56 This exception exists
because the “Eleventh Amendment does not prevent a federal court from directing a
state official to bring his conduct into conformity with federal law.”57
       This exception does not apply here. Paitsel’s amended complaint no longer
includes a state official as a named defendant. Setting aside the fact that equitable
jurisdiction resides in Chancery Court, the individual sued in the initial complaint has
been removed as a party.58 Because no such claim exists, the exception to the Eleventh


       52
            Id. at 102.
       53
            Id.
       54
            Id. at 102-03.
       55
            Id. at 104.
       56
            Id. at 103; Rochester v. White, 503 F.2d 263, 267 (3rd Cir. 1974).
       57
            Rochester, 503 F.2d at 267.
       58
          Paitsel’s amended complaint seeks, inter alia, equitable prospective relief through various
mandatory injunctions. The Superior Court, while not possessing inherent equitable authority, is
granted the limited authority to order prospective equitable relief in PWDEPA actions pursuant to
19 Del.C. § 715. For the reasons cited, however, the Eleventh Amendment bars Paitsel’s ADA
claims in this instance.

                                                  21
Amendment permitting prospective injunctive relief does not apply. Therefore,
summary judgment as to Paitsel’s ADA claim against DOL and DelDOT must be
granted.


                              V. CONCLUSION
      For the foregoing reasons, the Court GRANTS summary judgment dismissing
Paitsel’s ADA claims and PWDEPA claims against DelDOT without prejudice.
Furthermore, summary judgment regarding Paitsel’s breach of the covenant of good
faith and fair dealing claim is also GRANTED. Finally, the Court DENIES DOL’s
summary judgment motion regarding Patisel’s PWDEPA claims.


                                            /s/Jeffrey J Clark
                                                 Judge




JJC/jb
Via File & ServeXpress




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