Sadowski v. Suppi Construction, Inc. ( 2023 )

SUPERIOR COURT
OF THE
STATE OF DELAWARE
Sean P. Lugg Leonard L. Williams Justice Center
Judge 500 North King Street, Suite 10400
Wilmington, Delaware 19801-3733
Telephone: (302) 255-067
November 30, 2023
Kate Butler, Esq. Michelle D. Allen, Esq.
Kate Butler Law LLC Allen & Associates
1509 Gilpin Avenue, Suite 3 4520 Lancaster Pike, Suite 230
Wilmington, Delaware 19806 Wilmington, Delaware 19805
RE: Melissa Sadowski v. Suppi Construction, Inc., and Carl E. Suppi
C.A. No. N22C-11-149 SPL
Dear Counsel,
Defendants, Suppi Construction, Inc. (“SCI”) and Carl E. Suppi (“Suppi”),
have moved to dismiss Plaintiff’s, Melissa Sadowski (“Sadowski”), Amended
Complaint alleging violations of the Delaware Discrimination in Employment Act
(“DDEA”), and common law torts of assault, battery, false imprisonment, and
intentional infliction of emotional distress.1 For the reasons that follow, Defendants’
Motion to Dismiss is GRANTED in part and DENIED in part.2
1
Mot. Dism. & Op. Brf. (D.I. 25); Am. Compl. (D.I. 21).
2
In her Brief in Opposition to Defendant’s Motion to Dismiss (“Ans. Brf.”),
Sadowski “concedes that Count 7 (Negligent Infliction of Emotional Distress)
should be dismissed and consents to its dismissal.” Ans. Brf. (D.I. 27) at 13.
FACTUAL AND PROCEDURAL BACKGROUND
Sadowski is a construction project manager with more than 20 years of
experience.3 In October 2020, SCI hired her to serve “as a Project Manager
responsible for supervising contractors in the field and related tasks.”4 By August
of 2021, Sadowski was responsible for visiting and overseeing operations at
worksites.5
Sadowski, a woman, contends that the men working on the sites showed a lack
of respect for her authority as the project manager because of her gender.6 Sadowski
brought her concerns to the attention of SCI management, including Suppi, his son
Carl J. Suppi, his wife Karen Suppi, and the SCI human resources officer, Carol
Leszczynski.7 Sadowski asked Suppi to join her at worksites to “demonstrate to the
men working there that she had the authority to give them orders, and that they must
respect her.”8 But, at a worksite meeting on Friday, August 20, 2021, Suppi
undermined Sadowski’s authority and “exacerbat[ed] the increasing tension between
[Sadowski] and the men on the worksite.”9
3
Am. Compl. at ¶ 12.
4
Id. at ¶ 3.
5
Id. at ¶ 23.
6
Id. at ¶¶ 24-26.
7
Id. at ¶¶ 26-29.
8
Id. at ¶ 32.
9
Id. at ¶ 33.
2
On Tuesday, August 24, 2021, Suppi entered Sadowski’s office and yelled at
her for “taking too much time of some of the men in the field.”10 Suppi blocked the
doorway to Sadowski’s office while he yelled insults and threatened her with
physical violence.11 Suppi refused to allow Sadowski to leave her office, and shoved
her twice when she made attempts to get around him to escape.12 After some time,
Suppi allowed Sadowski to leave.13 Carl J. Suppi and Carol Leszczynski witnessed
this interaction.14 Sadowski reported the altercation to the police.15
Sadowski took leave from work to recover from the incident and requested
that SCI ensure that, going forward, she would not be left alone with Suppi. 16 SCI
responded by reducing Sadowski’s responsibilities which, in her view, further
undermined “her role and authority in front of the other male employees.”17
Nonetheless, Sadowski “agreed to do a site visit” to “clear the air” and demonstrate
that SCI supported her authority.18 This, too, failed and devolved into a shouting
10
Mot. Dism. at Exh. B, Amended Charge of Discrimination, January 27, 2022
(“Amended Charge Form”).
11
Am. Compl. at ¶¶ 34-35.
12
Id. at ¶¶ 35-36; Amended Charge Form.
13
Amended Charge Form.
14
Am. Compl. at ¶ 37.
15
Id. at ¶ 39.
16
Id. at ¶¶ 40, 41.
17
Id. at ¶¶ 42-43.
18
Id. at ¶ 44.
3
match; Sadowski “left the site in distress.”19 Thereafter, SCI removed Sadowski
from the work schedule.20
Sadowski agreed to meet with SCI management.21 During a recorded
meeting, Carl J. Suppi threatened to fire Sadowski if she did not drop the criminal
charges against Suppi.22 At this point, Sadowski “felt she could not continue to serve
in her role” with SCI, and contends she was constructively discharged as of
September 28, 2021.23
On January 14, 2022, Sadowski filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”), alleging discrimination based on
sex in 2021.24 Subsequently, on January 27, 2022, Sadowski amended the charge to
include the Delaware Department of Labor (“DDOL”), alleged discrimination based
on sex and retaliation, and narrowed the timeframe within which this conduct
occurred to between August 15, 2021 and August 24, 2021. 25 In both documents,
Suppi alleges:
On Tuesday August 24, 2021, an incident occurred between Melissa
19
Id. at ¶ 45.
20
Id. at ¶ 47.
21
Id. at ¶ 48.
22
Id. at ¶¶ 49-50.
23
Id. at ¶¶ 51-53.
24
Id. at ¶ 6; Mot. Dism. at Exh. A, Charge of Discrimination, January 14, 2022
(“Initial Charge Form”).
25
Amended Charge Form.
4
Sadowski and Carl E. Suppi, one of the Owners of her employer, Suppi
Construction, Inc. Carl E. Suppi entered the office building and began
to scream and yell at Ms. Sadowski, accusing her of taking too much
time of some of the men in the field. Confused by this outburst, as she
had only left the office once that day to get lunch, Carl Suppi began
threatening Ms. Sadowski by telling her he was going to “kick her ass”
and using expletives while launching a verbal attack. Fearing for her
safety, Ms. Sadowski attempted to exit and asked Carl Suppi to move
he then shoved her twice and would not let her leave. After a period of
some time, Ms. Sadowski was able to leave safely. Carol Leszczinksi
(Office Manager/head of Human Resources) was present during this
incident in its entirety.26
The EEOC issued Sadowski a Determination of Charge and Notice of Right to Sue
on August 18, 2022,27 and, on February 27, 2023, the DDOL issued Sadowski a Final
Determination and Right to Sue Notice.28
Sadowski filed a complaint in this Court on November 16, 2022 and an
amended complaint on May 15, 2023 (“Amended Complaint”).29 Sadowski’s
Amended Complaint sets forth seven counts: (1) gender discrimination under the
DDEA, (2) retaliation under the DDEA, (3) assault, (4) battery, (5) false
imprisonment, (6) intentional infliction of emotional distress, and (7) negligent
26
Initial Charge Form. While there are some typographical differences between the
two forms, the allegations included on the Amended Charge Form are substantively
identical to those made on the Initial Charge Form.
27
Op. Brf. at Exh. C (“EEOC Right to Sue Letter”).
28
Ans. Brf. at Exh. A (“DDOL Right to Sue Letter”).
29
D.I. 1; D.I. 21.
5
infliction of emotional distress.30 Counts 1 and 2 arise under the DDEA, and are
asserted against both Defendants. Count 5 asserts a common law false imprisonment
claim against Suppi directly, and against SCI on a theory of respondeat superior.
The remaining counts, 3, 4, 6, and 7, assert common-law claims against Defendant
Suppi only.
Defendants moved to dismiss Sadowski’s Amended Complaint and
supplemented their motion with an Opening Brief.31 Sadowski responded and
submitted an Answering Brief in opposition.32 The Court heard oral argument from
the parties and took the matter under advisement.33
PARTIES’ CONTENTIONS
Defendants contend Sadowski: (1) failed to exhaust administrative remedies
under the Delaware Discrimination in Employment Act (“DDEA”) in violation of
19 Del. C. § 714(a);34 (2) failed to state a valid claim for gender discrimination or
retaliation under the DDEA;35 (3) failed to substantiate her claim of constructive
discharge;36 and (4) alleged claims precluded by the Delaware Worker’s
30
Am. Compl.
31
D.I. 25.
32
D.I. 27.
33
D.I. 29, 30.
34
Op. Brf. at 4.
35
Id. at 13.
36
Id. at 17.
6
Compensation Act (“DWCA”) exclusivity statute, 19 Del. C. § 2304 et seq.37
Sadowski responds that she exhausted her administrative remedies under the DDEA
and received the requisite DDOL Right to Sue Notice.38 She argues that the tort
claims are not subject to the exclusivity provisions of the DWCA because they allege
acts committed with the specific intent to cause her injury.39 And, Sadowski
contends that her Amended Complaint sets forth sufficient facts in support of each
element of her claims and, thus, satisfies the requirements of Delaware’s pleading
standard.40
STANDARD OF REVIEW
On a motion to dismiss for failure to state a claim upon which relief can be
granted under Superior Court Civil Rule 12(b)(6),41 all well-pleaded allegations in
the complaint must be accepted as true.42 Even vague allegations are considered
well-pleaded if they give the opposing party notice of a claim.43 The Court must
37
Id. at 19.
38
Ans. Brf. at 4.
39
Id. at 10.
40
Id. at 1, 7-9; Del. Super. Ct. Civ. R. 8(a); see also VLIW Technology v. Hewlett-
Packard Co., 840 A.2d 606, 611 (Del. 2003) (“Such a statement must only give the
defendant fair notice of a claim and is to be liberally construed).
41
Del. Super. Ct. Civ. R. 12(b)(6).
42
Spence v. Funk, 396 A.2d 967, 968 (Del. 1978).
43
In re Gen. Motors (Hughes) S’holder Litig., 897 A.2d 162, 168 (Del. 2006)
(quoting Savor, Inc. v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002)).
7
draw all reasonable inferences in favor of the non-moving party.44 The Court,
however, will not “accept conclusory allegations unsupported by specific facts,” nor
will it “draw unreasonable inferences in favor of the non-moving party.”45 “[T]he
governing pleading standard in Delaware to survive a motion to dismiss is
reasonable ‘conceivability.’”46 Dismissal is not appropriate unless the “plaintiff
would not be entitled to recover under any reasonably conceivable set of
circumstances susceptible of proof.”47
ANALYSIS
I. SADOWSKI EXHAUSTED HER REMEDIES UNDER THE
DELAWARE DISCRIMINATION IN EMPLOYMENT ACT
(“DDEA”)
The DDEA provides employees protection from unlawful employment
discrimination.48 Under 19 Del. C. § 712(b), the DDEA provides the “sole remedy
for claims alleging a violation of the [DDEA] to the exclusion of all other
remedies.”49 DDEA “claims include discharging an employee or discriminating
44
In re Gen. Motors (Hughes) S’holder Litig., 897 A.2d at 168 (Del. 2006).
45
Price v. E.I. DuPont de Nemours & Co., 26 A.3d 162, 166 (Del. 2011) (citation
omitted).
46
Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Holdings, LLC, 27 A.3d 531,
537 (Del. 2011) (citation omitted).
47
Windsor I, LLC v. CWCapital Asset Mgmt. LLC, 238 A.3d 863, 871–72 (Del.
2020) (cleaned up).
48
See 19 Del. C. Ch. 7, Subch. II.
49
19 Del. C. § 712(b).
8
against an employee as to ‘compensation, terms, conditions or privileges of
employment’ based on gender.”50 The person claiming a DDEA violation must first
“file a charge of discrimination within 300 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.”51 “After investigation, the [DOL] shall issue a
determination of either ‘reasonable cause’ or ‘no reasonable cause’ to believe that a
violation occurred or is occurring . . . All cases resulting in a ‘no cause’
determination will receive a corresponding Delaware Right to Sue Notice.”52 “A
charging party may file a civil action in Superior Court, after exhausting the
administrative remedies provided herein and receipt of a Delaware Right to Sue
Notice acknowledging same.”53
Because the DDEA is patterned from 42 U.S.C. § 2000(e) of the federal Civil
Rights Act of 1964 (Title VII), “the language of the DDEA is virtually identical to
its federal counterpart.”54 “Delaware Courts take the ‘interpretive lead’ from District
Court and Third Circuit Court of Appeals decisions regarding interpretations of Title
50
Sees v. Mackenzie, 2023 WL 5202675, at *3 (Del. Super. Ct. Aug. 14, 2023)
(citing 19 Del. C. § 711(b)(1), 712(b)).
51
19 Del. C. § 712(c)(1).
52
19 Del. C. § 712(c)(3).
53
19 Del. C. § 714(a).
54
Ennis v. Del. Transit Corp., 2015 WL 1542151, at *5 (Del. Super. Ct. Mar. 9,
2015) (cleaned up).
9
VII.”55 “Delaware State Courts look to the tests formulated by the McDonnell
Douglas Corp. v. Green line of cases for guidance with regard to cases grounded on
an alleged violation of the DDEA.”56 Because it is unlikely that an employer who
discriminates will announce discriminatory intent, the McDonnell Douglas
framework “allow[s] plaintiffs to proceed without direct proof of illegal
discrimination where circumstances are such that common sense and social context
suggest discrimination occurred.”57
Counts 1 and 2 of Sadowski’s Amended Complaint allege gender
discrimination (Count 1) and retaliation (Count 2) in violation of the DDEA. To
bring these claims in this Court, Sadowski must first comply with the statutorily
established administrative process of the DDEA. The record before the Court
establishes that she has done so.
Under 19 Del.C. § 712(b), the Delaware Department of Labor has jurisdiction
“over all cases arising under this chapter, affording review and oversight of
employment practices in Delaware.”58 It is not until “termination of the
administrative process by the Department” that a plaintiff may file a civil action in
55
Id. (cleaned up).
56
Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
57
Iadimarco v. Runyan, 190 F.3d 151, 157 (3rd Cir. 1999).
58
19 Del.C. § 712(b).
10
the Superior Court alleging unlawful employment practices.59 “The parameters of a
civil action are defined by the scope of the administrative investigation which can
reasonably be expected to grow out of the charge of discrimination.”60 And the
claims in the subsequent civil action must be limited to “the scope of the [DDOL]
investigation which can reasonably be expected to grow out of the charge of
discrimination[.]”61 To address Defendant’s challenge, the Court must determine
whether Sadowski complied with the requirements of § 712(b), and, that she did so
with regard to the claims now before the Court.
A charge of discrimination must be initially filed with the DDOL “within 300
days of the alleged unlawful employment practice or its discovery.”62 Sadowski
filed an Amended Charge of Discrimination on January 27, 2022, alleging
59
Id.; 19 Del. C. § 711(b)(1).
60
Floray v. Dargan Extensions, LLC, 2016 WL 4442210, at *3 (Del. Super. Ct. Aug.
19, 2016) (citing Webb v. City of Phila., 562 F.3d 256, 263 (3rd Cir. 2009)).
61
Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-399 (3d Cir. 1976) (“In
order to comply with the spirit of the Act, there must be some limitation on suits in
the district court so that the Commission will have the first opportunity to examine
the allegations of discrimination. Courts have generally determined that the
parameters of the civil action in the district court are defined by the scope of the
EEOC investigation which can reasonably be expected to grow out of the charge of
discrimination, Gamble v. Birmingham Southern R.R. Co., 514 F.2d 678 (5th Cir.
1975); Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970), including
new acts which occurred during the pendency of proceedings before the
Commission, Oubichon v. North American Rockwell Corp., 482 F.2d 569 (9th Cir.
1973)”).
62
19 Del. C. §§ 712(b), (c)(1).
11
discriminatory conduct occurring in August of 2021.63 The Amended Charge was
therefore timely filed.
Defendants argue that the Amended Charge evidences Sadowski’s failure to
present the DDEA allegations to the DDOL.64 They contend that the form lacks a
DDOL case number and a “check” in the box to elect referral to the DDOL. 65 But
the Amended Complaint supports a reasonable inference that Sadowski dually filed
the Amended Charge with the DDOL because it alleges that she received a DDOL
Right to Sue Letter.66 The DDOL provided her notice of her right to sue on February
27, 2023, and she filed her May 15, 2023 Amended Complaint within 90 days of
receipt of that notice. While the path leading to Sadowski’s Amended Complaint
may tread slightly off the beaten track, she ultimately complied with statutory
requirements.
The Court understands Defendants’ argument that “there is no evidence that
the DDOL had record of the charge before February 2023”67 to challenge both the
existence and timeliness of Sadowski’s charge, but the DDOL did act on Sadowski’s
allegations in February 2023. At this stage, the Court must construe the extant record
63
See Amended Charge.
64
Op. Brf. at 4.
65
Id.
66
Am. Compl. at ¶ 9.
67
Op. Brf. at 10.
12
in the light most favorable to Sadowski. The Amended Complaint suggests that the
charge was referred to the DDOL within the 300-day period, and the record is devoid
of facts to the contrary.68 The record shows Sadowski exhausted the administrative
remedies under the DDEA before presenting her claims to this Court.
The administrative charge serves as the yardstick against which the Court
measures, or ascertains, administrative exhaustion as a prerequisite to filing an
action at law.69 The administrative pre-suit requirements, which include filing a
charge and receiving a right-to-sue letter from the DDOL, are “essential parts of the
statutory plan, designed to correct discrimination through administrative conciliation
and persuasion if possible, rather than by formal court action.”70 The Supreme Court
has also emphasized that a fundamental aim of the pre-suit requirements is to “give
prompt notice to the employer” and “encourage the prompt processing of all charges
of employment discrimination.”71
68
Similarly, Defendants’ argument that the Amended Charge is “silent as to any
state law claims” is unavailing because “the language of the DDEA is virtually the
same as its federal counterpart,” Ennis, 2015 WL 1542151, at *5, and a complainant
may file the same charge simultaneously with the EEOC and the DDOL.
69
Op. Brf. at 12 (citing Simko v. United States Steel Corp., 992 F.3d 198 (3d Cir.
2021) cert. denied, 142 S. Ct. 760 (2022)). As explained above, Delaware Courts
follow the guidance provided by District Court and the Third Circuit Court of
Appeals when assessing the provisions of the DDEA. See supra n.53.
70
Simko, 992 F.3d at 206.
71
Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109, 121, 122 S.Ct. 2061,
153 L.Ed.2d 106 (2002).
13
The Third Circuit Court of Appeals has explained that “the ‘relevant test’ for
determining whether a later claim needs to be exhausted despite the filing of a
previous charge is a two-pronged inquiry into whether ‘the acts alleged in the
subsequent . . . suit are fairly within the scope of [1] the prior EEOC complaint, or
[2] the investigation arising therefrom.”72 “The exhaustion inquiry is highly fact
specific.”73 The Court must evaluate the administrative charge and the alleged
unexhausted claim “on a case-by-case basis.”74
Sadowski’s Amended Charge alleges gender discrimination and retaliation
occurring between August 15, 2021, and August 24, 2021. Sadowski’s claims under
the DDEA (Counts 1 and 2) encompass the events within that timeframe and the
alleged discriminatory or retaliatory acts arising therefrom. Suppi’s alleged site-
visit outburst and subsequent office attack fall squarely within this time frame.
Further, the Amended Complaint alleges that gender discrimination occurred when
SCI ignored “her requests not to have to be in the presence of Defendant [Carl]
Suppi” following the August 24, 2021 incident.75 And the claim more broadly states
that “Suppi’s acts and omissions constituted discrimination on the basis of
72
Simko, 992 F.3d at 207 (quoting Waiters v. Parsons, 729 F.3d 233, 237 (3d Cir.
1984)).
73
Simko, 992 F.3d at 207.
74
Id.
75
Am. Compl. ¶ 57.
14
[Sadowski’s] gender that is causally related to the adverse employment actions taken
against her.”76 These claims flow from the conduct alleged in the administrative
charge, and the Court finds that they were administratively exhausted and are
properly raised in the Amended Complaint sub judice.
II. Sadowski’s Gender Discrimination and Retaliation Claims Survive
A claim for gender discrimination requires Sadowski to prove: (1) she
belonged to a protected class, (2) she was qualified for the position, (3) she was
terminated, and (4) the circumstances surrounding the termination give rise to an
inference of illegal discriminatory motive.77 Defendants do not contest that
Sadowski, a woman, belonged to a protected class, nor do they challenge her
qualifications; rather, they contend that Sadowski fails to establish (1) that she was
terminated, and (2) that the facts give rise to an inference of illegal discriminatory
motive on behalf of Suppi or SCI.
To satisfy the element of termination, Sadowski must allege that she was
either terminated or constructively discharged. Constructive discharge includes
threats of discharge, suggestion or encouragement of resignation, a demotion or
reduction of pay or benefits, involuntary transfer to a less desirable position,
76
Am. Compl. ¶ 58.
77
Conley v. State, 2011 WL 113201, at *4 (Del. Super. Ct. Jan. 11, 2011).
15
alteration of job responsibilities, and unsatisfactory job evaluations.78 Here, it is
reasonably conceivable that the combined effect of Suppi yelling at Sadowski for
taking up too much time of the men in the field, SCI reducing her worksite oversight
responsibilities, SCI removing her from the work schedule, and SCI threatening her
termination if she did not drop the charges against Suppi constituted her constructive
discharge – Sadowski reasonably felt she could not return to work. Treating these
well-pleaded allegations as true, Sadowski sufficiently pled constructive discharge.
To establish discriminatory motive, Sadowski 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.”79 Here, Sadowski, a
woman, was charged with supervising a group comprised predominantly, if not
exclusively, of men. Suppi and SCI favored Sadowski’s male subordinates and
refused to support Sadowski in her role. The Amended Complaint asserts Sadowski
had the authority and responsibility to direct her male subordinates to perform the
work as she saw fit but lacked the support and backing of her employer when she
attempted to do her job.80 Rather, her male subordinates ignored her direction
because SCI and Suppi were loath to act. As this Court has recognized, “a plaintiff
78
Clowes v. Allegheny Valley Hosp., 991 F.2d 1159, 1161 (3d Cir. 1993).
79
Ennis, 2015 WL 1542151, at *5.
80
Am. Compl. at ¶¶ 23-33.
16
is almost exclusively confined to proving [her] case with indirect evidence [because]
‘. . . an employer who discriminates will almost never announce a discriminatory
animus or provide employees or courts with direct evidence of discriminatory
intent.’”81 The Amended Complaint alleges sufficient facts to support a reasonable
inference that SCI and Suppi engaged in gender discrimination by condoning
employee disobedience because Sadowski is a woman.
A claim for retaliation discrimination requires Sadowski to prove: (1) she
engaged in a protected activity; (2) she suffered an adverse employment action; and
(3) there was a causal connection between the protected activity and the adverse
action.82 Sadowski reported her gender discrimination to her supervisors and
suffered a near immediate adverse employment action when Suppi, SCI’s owner,
allegedly assaulted her.83 Then, in the wake of that incident, and while Sadowski
attempted to recover, SCI reduced her work. The Court finds that the Amended
Complaint sufficiently alleges claims for relief under the DDEA for gender and
retaliation discrimination to survive a motion to dismiss.
81
Ennis, 2015 WL 1542151, at *5 (quoting Iadimarco v. Runyan, 190 F.3d 151, 157
(3d Cir. 1999)).
82
Ennis, 2015 WL 1542151, at *5.
83
Am. Compl. ¶¶ 26-33.
17
III. SADOWSKI SUFFICIENTLY PLEADS CONSTRUCTIVE
DISCHARGE
As explained above, Sadowski has sufficiently pled constructive discharge to
satisfy that element of her DDEA claims.84
IV. SADOWSKI’S INTENTIONAL TORT CLAIMS ARE NOT
BARRED BY WORKER’S COMPENSATION EXCLUSIVITY
Defendants argue that Sadowski’s tort claims are barred because the Delaware
Worker’s Compensation Act (“DWCA”) provides the sole remedy for work-related
injury claims.85 The DWCA provides that “every employer and employee, adult and
minor, shall be bound by this chapter respectively to pay and to accept compensation
for personal injury or death by accident arising out of and in the course of
employment, regardless of the question of negligence and to the exclusion of all
other rights and remedies.”86 But the Delaware Supreme Court has determined that
allegations involving “a true intent by the employer to injure the employee” fall
outside of the DWCA and remain actionable as common law tort claims.87 To avoid
“the exclusivity provision of 19 Del. C. § 2304, a party, therefore, must allege
84
See supra pp. 15-16.
85
Op. Brf. at 19. Sadowski concedes that her claim of Negligent Infliction of
Emotional Distress (Count 7) must be dismissed (Ans. Brf. at 13); the Court,
therefore, assesses the application of the DWCA to Sadowski’s intentional tort
claims.
86
19 Del. C. § 2304.
87
Rafferty v. Hartman Walsh Painting Co., 760 A.2d 157, 159 (Del. 2000).
18
specific, intentional tortious conduct.”88 Sadowski does so here; therefore, her
claims of assault, battery, and false imprisonment are not barred by the DWCA.
“The tort of assault requires that the actor act with the intent of causing a
harmful or offensive contact with the persona of another, or an imminent
apprehension of such contact, and the person is thereby put in imminent
apprehension of such contact.”89 Sadowski alleges that Suppi intentionally caused
her to fear for her safety when he approached her, blocked her from exiting her office
and yelled that he was going to “kick her ass.” These allegations are sufficient to
state a claim for Suppi’s intentional assault upon Sadowski.
“[T]he tort of battery is the intentional, unpermitted contact on the person of
another which is harmful or offensive.”90 Sadowski alleges that Suppi shoved her
twice while yelling at her and intending to prevent her from leaving her office. These
allegations are sufficient to support a claim for Suppi’s intentional battery of
Sadowski.
“The elements of a claim for false imprisonment are: (a) a restraint which is
both (b) unlawful and (c) against one's will.”91 “The restraint may be accomplished
88
Id. at 161.
89
Tilghman v. Delaware State University, 2012 WL 3860825, at *5 (citing
Restatement (Second) of Torts § 21 (1965)).
90
Tilghman, 2012 WL 3860825, at *5 (quoting Brzoska v. Olson, 665 A.2d 1355,
1360 (Del. 1995)).
91
Hunt ex rel. DeSombre v. State, 69 A.3d 360, 368 (Del. 2013) (cleaned up).
19
by physical force, by threats of force or intimidation or by assertion of legal
authority.”92 Sadowski alleges that Suppi restrained her from leaving her office
through force, that his restraint was unlawful, and that he ignored her multiple
requests to leave the office. Because Suppi intentionally deprived Sadowski of her
freedom of movement, her claim is not barred by the exclusivity provision of the
DWCA.93
To state a claim for IIED, a plaintiff must allege “extreme and outrageous
conduct” that “intentionally or recklessly” causes severe emotional distress.94 Even
if the alleged conduct constitutes “tortious or even criminal” acts toward the
plaintiff, it does not necessarily, by itself, rise to the level of “extreme and outrageous
conduct.”95 The conduct must be “so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community."96 Mere insults or
indignities, even by persons abusing their positions of authority over the subject, do
92
Id.93
See Lynch v. Mellon Bank of Delaware, 1992 WL 51880, at *4 (Del. Super. Ct.
Mar. 12, 1992).
94
Root v. MaidPro Wilmington, 2022 WL 17039161, at *3 (Del. Super. Nov. 17,
2022).
95
Id. (discussing the “Restatement’s comment as to what conduct might be
sufficiently extreme and outrageous to warrant IIED liability.”)
96
Id.20
not give rise to liability.97 It is “extremely rare to find conduct in the employment
context that will rise to the level of outrageousness necessary [for IIED]." 98 In
Tolliver, the Court found that “no reasonable jury could find that Defendants
engaged in conduct that was so severe that a reasonable person could not be expected
to endure it.”99 Here, Sadowski alleges she suffered discrimination in employment,
insults, assault, battery, and false imprisonment at the hands of Suppi. This
recitation of facts “to an average member of the community [could] arouse his
resentment against the actor, and lead him to exclaim ‘Outrageous!’”100 At this
stage, viewing the record in the light most favorable to Sadowski, she presents a
conceivable claim of IIED which is not precluded by DWCA exclusivity.
CONCLUSION
The Court, as it must in considering a motion to dismiss, has accepted all well-
pleaded allegations in the complaint as true, and has drawn all reasonable inferences
in favor of Sadowski, the non-moving party. Sadowski presents facts upon which
recovery is conceivable. In reaching this conclusion, the Court does not, because it
must not, assess the relative strength of these allegations. Applying these well-
97
Restatement 2nd Torts, Comment (e) § 46.
98
Tolliver v. Trinity Parish Foundation, 2017 WL 3288119 (D. Del. Aug. 2, 2017)
(citing Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988)).
99
Id. at *15.
100
Root, 2022 WL 17039161, at *3 (citing Restatement (Second) of Torts § 46(d)).
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established principles to the limited facts presently before the Court, and accepting
Sadowski’s concession as to Count 7, Defendants’ Motion to Dismiss is
GRANTED as to Count 7 and DENIED as to the balance of the Amended
Complaint.
IT IS SO ORDERED.
_______________ _________
Sean P. Lugg, Judge
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