M. Tolliver v. Trinity Parish Foundation ( 2018 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 17-2929
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M. DENISE TOLLIVER,
Appellant
v.
TRINITY PARISH FOUNDATION; DELAWARE
FUTURES, INC.; PATRICIA DOWNING; MAILE STATUTO
__________________________________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civ. No. 1-14-cv-01021)
District Judge: Honorable Leonard P. Stark
__________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 25, 2018
Before: SHWARTZ, KRAUSE, and FISHER, Circuit Judges
(Opinion filed: January 26, 2018)
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OPINION*
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PER CURIAM
Denise Tolliver appeals from orders of the District Court granting summary
judgment to the defendants and denying reconsideration. For the reasons that follow, we
will affirm.
Tolliver was employed by Delaware Futures, Inc. (“DFI”) as its Executive
Director. 1 Beginning on February 23, 2013, she took a medical leave of absence,
informing DFI’s Board of Directors of her leave via email. Tolliver was granted short-
term disability leave through DFI’s insurer, Hartford Insurance Company. On March 6,
2013, Evette Houston, whom Tolliver had placed in charge when she took her leave of
absence, was appointed Acting Executive Director of DFI. At about the same time, DFI
became aware that Tolliver had continued to work on at least one DFI matter. Regarding
this work as “unauthorized” insofar as she was on medical leave, DFI cancelled or
suspended Tolliver’s access to company email and arranged with Trinity Episcopal
Parish to have the locks changed on the building where DFI was located. Tolliver
strenuously objected to both actions but, nonetheless, was not ready to return to work.
Instead, DFI was provided with her caregiver’s statement, dated February 28, 2013,
which stated that her work limitations would tentatively last until March 8, 2013.
Tolliver did not return to work in March 2013. On April 1, 2013, DFI Board
President Bruce Kallos, now deceased, wrote to Tolliver, advising her that he needed to
know how long she expected to be on medical leave. He asked her to provide a note
from her treating physician containing this information: (1) the nature of her medical
condition; (2) her medical limitations; and (3) the length of time those limitations were
expected to continue. Kallos followed up with an email to Tolliver, clarifying that DFI
was entitled to the information requested and did not want to access her confidential
medical information beyond the requested information. In response to Kallos’ demand
for this information, on April 3, 2013, Tolliver submitted a written grievance to DFI’s
1
Because we write primarily for the parties, who are familiar with the facts and
procedural history, we will not recite them except as necessary to our discussion.
2
Executive Committee, in which she complained, in pertinent part, that Kallos’ request
amounted to harassment, given that DFI representatives had been in contact with their
disability insurer and were aware of the nature of her disability. Nevertheless, on April 9,
2013, Tolliver’s doctor provided a note stating that Tolliver was unable to return to work
until July 1, 2013, providing at least some of the information sought by Kallos.
On April 19, 2013, Board Member Maile Statuto responded to Tolliver’s
grievance on behalf of the Board’s Personnel Committee, stating that the Executive
Committee had reviewed her complaint of harassment and found it to be without merit.
Tolliver, in a response dated May 6, 2013, then made several new demands and asked
DFI to supplement her disability payments by continuing her salary. By letter dated May
13, 2013, Statuto replied and explained the reasons why Tolliver’s allegations had been
found to have no merit and further explained that it was not DFI’s policy to continue to
pay an employee’s salary while that employee was receiving short-term disability
payments. Tolliver wrote a final letter to Statuto on May 17, 2013, reiterating prior
issues, and alleging a hostile work environment, harassment, and retaliation. She
thereafter retained counsel, and all communications were conducted through the parties’
attorneys.
On June 20, 2013, Tolliver’s counsel sent DFI a letter indicating that she was
unable to perform the essential duties of her job as Executive Director. The letter
provided no anticipated return to work date, and neither Tolliver nor anyone on her
behalf had any further communication with DFI regarding her ability to return to work
after July 1, 2013. On July 15, 2013, Kallos notified Tolliver that her employment was
terminated. In his letter, he noted that DFI was aware that she had represented to its
3
disability insurer that she continued to be unable to work for medical reasons and that, in
the opinion of her treating physicians, her situation would continue indefinitely. 2 Kallos
stated that DFI could not grant her an indefinite leave of absence. On September 15,
2013, Houston was selected to replace Tolliver. 3
Following her termination, Tolliver filed suit in the United States District Court
for the District of Delaware against DFI, Trinity Parish Foundation, Inc., Statuto, and
Reverend Patricia Downing, head of Trinity Parish. Tolliver asserted these counts in her
second amended complaint:
Count I against Trinity Parish and DFI alleging race discrimination in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e,
et seq., and the Delaware Discrimination in Employment Act (“DDEA”),
19 Del. Code §§ 710, et seq.;
Count II against all defendants alleging race discrimination in violation of
42 U.S.C. § 1981;
Count III against Trinity Parish and DFI alleging age discrimination in
violation of the Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. §§ 621, et seq., and the DDEA;
Count IV against all defendants alleging retaliation in violation of Title VII,
the ADEA, and the DDEA;
Count V against Reverend Downing and Statuto alleging civil rights
violations under 42 U.S.C. § 1983;
Count VI against Trinity Parish and DFI alleging civil rights violations
under 42 U.S.C. § 1983;
Count VII against Trinity Parish and DFI alleging wrongful termination and
breach of contract;
2
Tolliver was transitioned to long-term disability on May 27, 2013, and continued to
receive benefits through August 27, 2013.
3
Houston held the position of Executive Director until her resignation on September 1,
2016.
4
Count VIII against all defendants alleging intentional infliction of
emotional distress;
Count IX against all defendants alleging violations of the whistleblower
provisions of the Sarbanes-Oxley Act 18 U.S.C. § 1514A, as set forth in the
Delaware Whistleblower’s Protection Act, 19 Del. Code §§ 1701-08, et
seq.;
Count X against all defendants alleging violations of the Employee
Retirement Income Security Act (“ERISA"), 29 U.S.C. § 1140 and § 1141;
Count XI against all defendants alleging defamation;
Count XII against all defendants alleging disability discrimination under
the Rehabilitation Act of 1973, 29 U.S.C. §§ 701, et seq.;
Count XIII against DFI alleging violations of confidentiality and invasion
of privacy; and
Count XIV against Trinity Parish and Reverend Downing for tortious
interference.
After Tolliver was deposed, the defendants moved for summary judgment, Fed. R.
Civ. 56(a). The District Court, in an order entered on August 2, 2017, granted that
motion, explaining its reasoning in a thorough opinion addressing each count in
Tolliver’s second amended complaint, see Tolliver v. Trinity Parish Foundation, Inc.,
2017 WL 3288119 (D. Del. August 2, 2017). In an order entered on September 5, 2017,
the District Court denied Tolliver’s timely filed motion for reconsideration.
Tolliver appeals. We have jurisdiction under 28 U.S.C. § 1291. In her amended
pro se brief, Tolliver contends that the District Court took three years to decide her civil
action, causing her prejudice; that the District Court favored the defendants’ version of
the facts in deciding the summary judgment motion; that the District Court was biased
against her; and that her claims of disability and age discrimination, retaliation, and
breach of an implied covenant of good faith and fair dealing presented genuine factual
5
issues for trial. These are the only contentions we will review; all other claims and issues
are deemed forfeited. See Laborers’ International Union v. Foster Wheeler Corp., 26
F.3d 375, 398 (3d Cir. 1994) (issue is waived unless party raises it in opening brief;
passing reference to issue will not suffice to bring that issue before this Court). 4
We will affirm. Summary judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The moving party “bears the initial responsibility
of informing the district court of the basis for its motion, and identifying those portions”
of the summary judgment record which demonstrate the absence of a genuine dispute of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party
meets its burden, the nonmoving party then must present specific facts that show there is
a genuine issue for trial. Fed. R. Civ. P. 56(c)(1), (e)(2); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The District Court is required to view the facts in the
light most favorable to the non-moving party and make all reasonable inferences in her
favor, see Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). Ultimately,
however, a court should grant summary judgment where the non-movant’s evidence is
merely colorable or not significantly probative, id. at 249-50, because, “[w]here the
record taken as a whole could not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial,” Matsushita Electric Industrial Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks removed).
4
Moreover, we will affirm the District Court’s determination, without further discussion,
that Tolliver’s breach of an implied covenant of good faith and fair dealing claim did not
present a triable issue, and thus that summary judgment in favor of the defendants was
proper on this Count.
6
In awarding summary judgment to the defendants on Tolliver’s age and disability
discrimination claims under Title VII, § 1981, Delaware law, and the Rehabilitation Act,
the District Court noted and applied the appropriate legal standards. The Court reviewed
the summary judgment evidence and concluded that a trial on Tolliver’s claims was not
warranted. Our review de novo of the summary judgment record leads us to the same
conclusion. See Alcoa, Inc. v. United States, 509 F.3d 173, 175 (3d Cir. 2007) (appellate
court reviews district court’s grant of summary judgment de novo). We write primarily
to address Tolliver’s Title VII and Rehabilitation Act claims of discrimination and
retaliation.
Tolliver alleged that DFI terminated her due to her age and her disability and
retaliated against her for engaging in protected activity. Tolliver would have to prove at
trial that DFI’s reason for terminating her was a pretext for discrimination, Texas Dep’t
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981), or provide other evidence of
discrimination, St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 509-11 (1993). She had
to either discredit DFI’s proffered reasons for terminating her or show that discrimination
was more likely than not a cause of her termination. Cf. Fuentes v. Perskie, 32 F.3d 759,
764 (3d Cir. 1994) (addressing summary judgment standard). The summary judgment
record establishes that, when Tolliver’s authorized medical leave ended on July 1, 2013,
she failed to return to work. Moreover, her attorney advised DFI’s Board that she was
receiving long-term disability benefits, and further represented to the Board that Tolliver
was unable to perform the essential duties of her job as Executive Director. None of the
summary judgment evidence shows or suggests that Tolliver ever asked to return to work
and/or asked for and was denied a work-related accommodation, notwithstanding her
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contentions to the contrary, see Appellant’s Pro Se Brief, at 4. Tolliver was never able to
identify a date by which she would be capable of performing all essential functions of her
job as Executive Director, nor she did ask for an accommodation relating to her duties.
These undisputed facts establish for purposes of summary judgment that DFI’s reason for
terminating her was not a pretext for age or disability discrimination. Specifically with
respect to Tolliver’s claim of disability discrimination, a leave of absence, as a general
matter, may be a reasonable accommodation, but an indefinite leave of absence is not.
See Hwang v. Kansas State University, 753 F.3d 1159, 1161-62 (10th Cir. 2014) (“[A]n
employee who isn’t capable of working for [six months] isn’t an employee capable of
performing a job’s essential functions -- and … requiring an employer to keep a job open
for so long doesn’t qualify as a reasonable accommodation.”).
Attached to Tolliver’s opposition to summary judgment is a transcript of a voice
mail left by Houston for Tolliver on March 13, 2013. Even if we assume that this item
satisfies Rule 56(c)(1)(A), it is insufficient evidence of discrimination. In her voice mail,
Houston told Tolliver that she had spoken with Kallos, and, although nothing was
“official,” he said that he was taking DFI in a different direction that did not include
either of them. Houston said that she personally was not interested in “fighting it”
because she had a long career ahead of her and was willing to leave DFI behind. She
expressed the view that her energy and efforts on behalf of DFI had not been appreciated.
This evidence offered by Tolliver that Kallos may have wanted to take DFI “in a different
direction,” without more, neither undermines DFI’s proffered reason for terminating her
nor shows that age or disability discrimination was more likely than not a cause of her
termination. See Fuentes, 32 F.3d at 764.
8
Tolliver’s claim that DFI retaliated against her by firing her after she complained
to Statuto about a hostile work environment and after she made a charge of
discrimination also fails. Title VII prohibits retaliation by making it unlawful for
employers to discriminate against “any individual . . . because [s]he has opposed any . . .
unlawful employment practice” or because that individual has “made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing.” 42
U.S.C. § 2000e-3(a). To establish retaliation, a plaintiff must proffer evidence to show
that (1) she engaged in activity protected by Title VII; (2) the employer took an adverse
employment action against her; and (3) there was a causal connection between the
plaintiff’s participation in the protected activity and the adverse employment action. See
Moore v. City of Philadelphia, 461 F.3d 331, 341-42 (3d Cir. 2006). To establish
causation at the prima facie stage, a plaintiff must introduce evidence about the “scope
and nature of conduct and circumstances that could support the inference” of a causal
connection. Farrell v. Planter’s Lifesavers Co., 206 F.3d 271, 279 (3d Cir. 2000).
Tolliver failed to produce evidence of a causal link between her protected activity and her
termination. 5 Tolliver’s employment was not terminated until (1) she did not return to
work after the expiration of her approved leave had expired; and (2) her attorney stated
that she was unable to perform the essential duties of her job as Executive Director; and
(3) neither Tolliver nor anyone on her behalf had any further communication with DFI
regarding her ability to return to work after July 1, 2013. These valid reasons for her
termination undermine for summary judgment purposes any claim that her termination
5
Tolliver signed her charge of discrimination directed to the Delaware Department of
Labor on July 24, 2013, which was after her termination, but in it she stated that she
presented her complaint to that agency on June 20, 2013.
9
was retaliatory. Accordingly, summary judgment for the defendants on the retaliation
claim also was proper.
Last, Tolliver contends that the District Court was unfair to her by construing the
facts in a light more favorable to the defendants, and that undue delay prejudiced her
case. Appellant’s Pro Se Brief, at 1-2, 8. We do not agree that the District Court’s
application of the summary judgment standards was improper here. And, although
Tolliver commenced her civil action in August 2014, she amended her complaint a
number of times and filed numerous motions, discovery took some time to complete, and
her case was at one time referred for mediation. In any event, Tolliver failed to show that
she was prejudiced in any way by the District Court’s management of her civil action.
Accordingly, we reject Tolliver’s argument of bias and unfair delay as meritless, even
assuming that it might provide an independent basis for reversing an award of summary
judgment.
Tolliver’s motion for reconsideration was properly denied by the District Court
because she did not argue an intervening change in the law, new evidence, or a clear error
of law. See Max’s Seafood Café v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999).
For the foregoing reasons, we will affirm the orders of the District Court granting
summary judgment to the defendants and denying reconsideration. The appellees’
motion to supplement the appendix is granted.
10