HAYES v. DELAWARE STATE UNIVERSITY

Citation Codes

Equivalent Citations

citation codes

Docket Number

Civ. No. 09-926-SLR.

Motions

Motion to dismiss : In Part

Attorney(S)

Barbara H. Stratton, Esquire of Knepper Stratton, Wilmington, DE, for Plaintiff. Robert A. Ranieri, Esquire of Salmon, Ricchezza, Singer Turchi LLP, Wilmington, DE, for Defendant.

Acts

Judiciary And Judicial Procedure — District Courts; Jurisdiction — Jurisdiction And Venue — Diversity Of Citizenship; Amount In Controversy; Costs
The Public Health And Welfare — Civil Rights — Equal Employment Opportunities — Definitions
Labor — Age Discrimination In Employment — Congressional Statement Of Findings And Purpose

See more information ...

Smart Summary

Please sign up to generate summary.

CONSTANCIA SIMPSON HAYES, Plaintiff, v. DELAWARE STATE UNIVERSITY, Defendant.

MEMORANDUM AND ORDER

R. EDGAR, District Judge

The jury returned a verdict finding that Darrell Frye did not intentionally set fire to the insured building. The jury awarded the following damages to Darrell and LaFonne Frye on their counterclaim under the fire insurance policy. The jury found that: (1) Darrell Frye proved the reasonable value of the fire loss and damage to the insured building is $35,000; (2) LaFonne Frye proved the reasonable value of the fire loss and damage to her business property in connection with the Trinity Learning Center is $4,500; and (3) LaFonne Frye proved loss of business income from the Trinity Learning Center in the amount of $18,000.

The Court entered a judgment in accordance with the jury's verdict. [Doc. No. 185]. There are two post-judgment motions before the Court.

I. Acuity's Motion for Judgment Notwithstanding the Verdict and/or Motion to Alter or Amend Judgment [Doc. No. 189]

Acuity Mutual Insurance Company ("Acuity") moves for judgment as a matter of law notwithstanding the jury's verdict on the issues of arson and damages. Acuity argues that the evidence at trial conclusively proves the fire was deliberately set by Darrell Frye. Because diversity jurisdiction is invoked under 28 U.S.C. § 1332, this Court applies the standard under Tennessee state law for determining when judgment as a matter of law notwithstanding the verdict is appropriate. Mike's Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 405 (6th Cir. 2006); Greene v. B.F. Goodrich Avionics Sys., Inc., 409 F.3d 784, 788 (6th Cir. 2005); Gafford v. General Electric Co., 997 F.2d 150, 170 (6th Cir. 1993); J.C. Wyckoff Assocs v. Standard Fire Ins. Co., 936 F.2d 1474, 1482 (6th Cir. 1991); Grantham and Mann, Inc. v. American Safety Products, Inc., 831 F.2d 596, 602 (6th Cir. 1987).

The Court must take the strongest legitimate view of the evidence in favor of Darrell and LaFonne Frye, allow all reasonable inferences in their favor, discard all countervailing evidence, and deny the motion where there is any doubt as to the conclusions to be drawn from the evidence as a whole. The motion should not be granted except where reasonable minds could draw but one conclusion from the evidence. Grantham, 831 F.2d at 602; Mercer v. Vanderbilt University, Inc., 134 S.W.3d 121, 130-31 (Tenn. 1977); Childress v. Currie, 74 S.W.3d 324, 328 (Tenn. 2002); Eaton v. McLain, 891 S.W.2d 587, 590 (Tenn. 1994); Williams v. Brown, 860 S.W.2d 854, 857 (Tenn. 1993); Holmes v. Wilson, 551 S.W.2d 682, 685 (Tenn. 1977). The Court may not assess the credibility of witnesses. Mairose v. Federal Express Corp., 86 S.W.2d 502, 511 (Tenn. Ct. App. 2002); Mullins v. Seaboard Coastline Ry. Co., 517 S.W.2d 198, 201 (Tenn. Ct. App. 1974).

Applying this standard of review, Acuity's motion for judgment as a matter of law notwithstanding the jury's verdict must be denied. The Court has considered all of the evidence presented at trial in the strongest legitimate view in favor of Darrell and LaFonne Frye, allowed all reasonable inferences in their favor, and discarded all countervailing evidence. The motion fails because there is reasonable doubt as to the findings and conclusions to be drawn from the evidence as a whole. The evidence at trial was not all one-sided and was not entirely in favor of Acuity.

Acuity's theory is that Darrell Frye: (1) crawled into the enclosed ceiling above the second floor of the two-story building where he deliberately set the fire using some type of accelerant or petroleum-based ignitible liquid such as lighter fluid; (2) crawled back out of the ceiling; (3) activated the smoke and heat detection systems; and (4) locked the door and left the premises.

Based on the evidence at trial, a reasonable jury could reject Acuity's theory. It would be reasonable for the jury to determine that it is implausible or unlikely that Darrell Frye intentionally set the fire.

Darrell Frye testified that he did not deliberately set the fire. The fire started inside the enclosed ceiling above the second floor. Ordinarily, people bent on committing arson do not crawl into enclosed ceilings to set fires. The timing and circumstances of the fire raise legitimate questions about whether Darrell Frye could have had sufficient time to set the fire in the enclosed ceiling and then make his escape without quickly triggering the building's fire alarm. The building's smoke and heat detection systems were on and operating at the time of the fire. The Chattanooga Fire Department has a fire station located one city block away from the burned building. The building's smoke and heat detection systems were activated by the fire and sent an alarm to the fire station. The Chattanooga Fire Department promptly responded to the alarm and put out the fire. It is reasonable to infer that Darrell Frye would have needed more time to have an opportunity to get away from the premises before the fire alarm would be triggered so as to avoid being seen or caught committing arson.

Lieutenant Terrence Andrews from the Chattanooga Fire Department testified that he responded to the fire. When Lieutenant Andrews went inside the building, he did not smell the presence of any accelerant. There is nothing in the Chattanooga Fire Department's official report about an accelerant such as lighter fluid being involved in starting the fire.

Darrell Frye presented expert testimony from a competent fire cause-and-origin investigator, Jerry Carter ("Carter"). Carter testified that in his expert opinion the exact cause and origin of the fire could not be determined because plaintiff Acuity's experts removed significant amounts of electrical wiring from the burned building before Carter began his investigation. Carter could not eliminate the possibility that the fire was caused by defective electrical wiring. In the final paragraph of his report [Defendant's Trial Exhibit 2, p. 6], Carter states: "Although no definitive cause of this fire can be related to an electrical malfunction within the enclosed ceiling space because of the alterations by prior investigators, no evidence was found to conclude that this fire was incendiary in nature."

Acuity's motion for judgment as a matter of law notwithstanding the jury's verdict will be denied because reasonable persons could draw more than one conclusion from the evidence. The jury was entitled to believe and give credence to the testimony of Darrell Frye and his expert witness, Carter. A reasonable jury could find that Acuity did not meet its burden of proving by a preponderance of the evidence that Darrell Frye intentionally set the fire.

Acuity speculates about the jury's deliberations and reasons for reaching its verdict. While the jury was deliberating, the courtroom deputy clerk noticed that one juror had temporarily exited the jury room and was visibly upset. This juror was directed to return to the jury room to continue participating in the deliberations. The Court informed counsel for the parties about this incident. The actual cause or reason for the juror being upset is unknown. It is not known whether the juror was in ill health, or upset about personal problems, or upset about something concerning the jury's deliberations. When the jury returned its verdict, the Court polled the jury. Each individual juror affirmed that it was his or her verdict. Every member of the jury affirmed that they had reached a unanimous verdict that Darrell Frye did not intentionally set fire to the building.

Plaintiff Acuity makes the following argument:

Based upon the totality of the circumstances it is easy to conclude that nine jurors believed that Acuity proved Mr. Frye burned the building and these jurors did not want to award Mr. Frye damages. It is obvious that one juror did not believe Acuity proved its case and wanted to award damages — it is logical to conclude that this juror may have believed Mr. Frye burned the building but did not want to hold Mrs. Frye accountable for Mr. Frye's actions. It is also logical to conclude that the nine jurors, in order to give a verdict, finally agreed with the one holdout juror but insisted that damages be reduced because they believed Mr. Frye burned his building. If the jury verdict was reduced for these reasons, then this Court should examine the evidence in its entirety, set aside the verdict, and enter a judgment notwith-standing the jury verdict in favor of Acuity. As a 13th juror, the Court can review the evidence presented in this case and enter a judgment notwith-standing the verdict in Acuity's favor.

[Doc. No. 190, pp. 5-6].

This argument fails. The Court declines to engage in speculation and conjecture concerning the jury's deliberations. Courts do not speculate whether jury verdicts are the result of compromise. 75B Am. Jur.2d Trial § 1542 Compromise verdicts (2007). Moreover, Acuity asks the Court to act as a "13th juror" and weigh the evidence. In reviewing the motion for judgment as a matter of law notwithstanding the verdict, the Court does not act as a "13th juror." The Court may not assess the credibility of the witnesses. Mairose, 86 S.W.2d at 511; Mullins, 517 S.W.2d at 201. Acuity's motion for judgment as a matter of law notwithstanding the jury's verdict is DENIED.

In the alternative, Acuity moves to alter or amend the judgment pursuant to Fed.R.Civ.P. 59(e). The Court may grant a Rule 59(e) motion to alter or amend judgment only if there is: (1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent manifest injustice. Betts v. Costco Wholesale Corp., 558 F.3d 461, 474 (6th Cir. 2009); Henderson v. Walled Lake Consolidated Schools, 469 F.3d 479, 496 (6th Cir. 2006); Intera Corp. v. Henderson, 428 F.3d 606, 620 (6th Cir. 2005); GenCorp., Inc. v. Am. Int'l Underwriters Co., 178 F.3d 804, 834 (6th Cir. 1999).

Acuity's motion to alter or amend the judgment is DENIED. The Court finds that Acuity has not met its burden of showing that it is entitled to relief under Rule 59(e). Acuity has not established that the Court committed a clear error of law. There is no newly discovered evidence and no intervening change in controlling law. The Court is not persuaded that it is necessary to alter or amend the judgment to prevent a manifest injustice.

II. Motion by Darrell and LaFonne Frye for New Trial on Damages or Suggestion of Additur [Doc. No. 186]

Pursuant to Fed.R.Civ.P. 59(a)(1)(A) Darrell and LaFonne Frye move to partially vacate or set aside the judgment and for a new trial solely on the issue of damages. In the alternative, they move the Court to suggest an additur to the damages awarded by the jury's verdict pursuant to Tenn. Code Ann. § 20-10-101. [Doc. No. 186]. They argue that: (1) the jury's verdict is inadequate to compensate them; (2) the verdict is contrary to the evidence presented at trial; and (3) there is not sufficient or substantial evidence tending to support the amount of damages awarded in the verdict.

Darrell and LaFonne Frye argue that they proved they are entitled to recover damages up to the maximum limits of coverage in the fire insurance policy. The insurance policy provides coverage for fire loss to the insured building owned by Darrell Frye up to a maximum of $218,500. The policy provides coverage for fire loss to the business property of the Trinity Learning Center up to a maximum limit of $20,000. The policy also provides coverage for loss of business income derived from the Trinity Learning Center up to a maximum of $125,000.

Acuity opposes the motion. [Doc. No. 188]. Acuity argues that a new trial should not be granted solely of the issue of damages. If the Court is inclined to grant a new trial, then Acuity wants a new trial on the entire case and the issues of both damages and liability, i.e. whether Darrell Frye intentionally set fire to the insured building. Acuity contends that a new trial solely on damages would assume liability and the jury would not hear Acuity's evidence concerning its claim that Darrell Frye intentionally set fire to the insured building. Acuity says there is no reason to bifurcate the trial on the issues of liability and damages.

This argument by Acuity fails. Fed.R.Civ.P. 59(a)(1)(A) provides that the Court in its discretion may grant a new trial on all or some of the issues and to any party "after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court." Under Rule 59(a)(1)(A) the Court has the authority to grant a new trial solely on the issue of damages. Adam v. J.B. Hunt Transport, Inc., 130 F.3d 219, 226 (6th Cir. 1997); Davis v. Yovella, 110 F.3d 63 (Table, text in 1997 WL 159363, ** 3-4 (6th Cir. April 2, 1997)). The Court is not persuaded that a new trial is necessary on the issue whether Darrell Frye intentionally set fire to the insured building. The jury returned a unanimous verdict finding that Darrell Frye did not intentionally set fire to the insured building. The jury's verdict is reasonable and supported by substantial evidence. Because a reasonable jury could reach the verdict that Darrell Frye did not intentionally set fire to the insured building, the Court may not grant a new trial on this issue.

Acuity again asks the Court to indulge in speculation about the jury's deliberations. As discussed supra, Acuity speculates that a majority of the jurors felt that the fire was intentionally set by Darrell Frye and the majority agreed to a compromise verdict with one holdout juror. Acuity contends that the jury compromised by reducing the amount of damages because the majority of jurors felt that the fire was intentionally set by Darrell Frye. The Court cannot indulge in such speculation and conjecture about the jury's deliberations.

A. Motion for Suggestion of Additur Under Tenn. Code Ann. § 20-10-101

Darrell and LaFonne Frye move the Court to suggest an additur to the compensatory damages awarded by the jury's verdict pursuant to Tenn. Code Ann. § 20-10-101 which provides in part:

(a)(1) In cases where, in the opinion of the trial judge, a jury verdict is not adequate to compensate the plaintiff or plaintiffs in compensatory damages or punitive damages, the trial judge may suggest an additur in such amount or amounts as the trial judge deems proper to the compen-satory or punitive damages awarded by the jury, or both such classes of damages.

(2) If the additur is accepted by the defense, it shall then be ordered by the trial judge and become the verdict, and if not accepted, the trial judge shall grant the plaintiff's motion for a new trial because of the inadequacy of the verdict upon proper motion being made by the plaintiff.

(b)(1) In all jury trials had in civil actions, after the jury verdict has been rendered and on motion for new trial, when the trial judge is of the opinion that the verdict in favor of a party should be increased and an additur is suggested by the trial judge on that account, with the proviso that in case the party against whom the verdict has been rendered refuses to make the additur, a new trial will be awarded, the party against whom such verdict has been rendered may make such additur under protest, and appeal from the action, and appeal from the action of the trial judge to the court of appeals.

The Court will not make a suggestion of additur pursuant to Tenn. Code Ann. § 20-10-101. The Seventh Amendment to the United States Constitution generally prohibits federal courts from granting additur after trial to increase the amount of damages awarded by a jury's verdict. Dimick v. Schiedt, 293 U.S. 474, 486-87 (1935), Jimkoski v. State Farm Mutual Automobile Ins. Co., 247 Fed. Appx. 654, 663 (6th Cir. 2007); Tezak, 33 Fed. Appx. at 177-78; Clay v. Gordon, 205 F.3d 1339 (Table, text in 2000 WL 191936, * 3 (6th Cir. Feb. 10, 2000)); Strunk v. Hurley, 865 F.2d 261 (Table, text in 1988 WL 134500, * 2 (6th Cir. Dec. 16, 1988)); Traylor v. United States, 396 F.2d 837, 840 n. 4 (6th Cir. 1968).

Some federal courts recognize a narrow exception to the Dimick rule when the parties consent to additur or the amount of damages is undisputed. Clay, 2000 WL 191936, at * 3. The exception to the Dimick rule is not applicable in this case because Acuity does not consent to additur and the amount of damages awarded by the jury to Darrell and LaFonne Frye is disputed. Accordingly, the motion by Darrell and LaFonne Frye for additur pursuant to Tenn. Code Ann. § 20-10-101 is DENIED. The motion for additur is properly treated as a motion for new trial. Jimkoski, 247 Fed. Appx. at 663; Tezak, 33 Fed. Appx. at 177-78; Clay, 2000 WL 191936, at ** 3-4.

B. Standard of Review: Motion For New Trial Fed.R.Civ.P. 59

This Court's diversity jurisdiction has been invoked pursuant to 28 U.S.C. § 1332. In diversity cases, federal law governs the decision whether to grant a new trial under Fed.R.Civ.P. 59. Rush v. Illinois Central Railroad Co., 399 F.3d 705, 727 (6th Cir. 2005); Conte v. General Housewares Corp., 215 F.3d 622, 637 (6th Cir. 2000); Toth v. Yoder. Co., 749 F.2d 1190, 1197 (6th Cir. 1984).

Fed.R.Civ.P. 59(a)(1)(A) provides that the Court in its discretion may grant a new trial on all or some of the issues and to any party "after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court." Generally, this Court may grant a new trial under Rule 59 for three reasons: (1) the verdict is against the weight of the evidence; (2) the damages award is excessive; or (3) the trial was influenced by bias, prejudice, or other unfairness to the moving party. Mike's Train House, 472 F.3d at 405; Conte, 215 F.3d at 637; Holmes v. City of Massillon, 78 F.3d 1041, 1045 (6th Cir. 1996). Darrell and La Fonne Frye move for a new trial on the ground that the jury's verdict is contrary to the evidence and the award of damages is inadequate to compensate them for their fire losses within the coverage limits in the insurance policy.

When deciding a Rule 59 motion for new trial, the Court compares the opposing proofs and weighs the evidence. The Court may set aside the jury's verdict only if the verdict is unreasonable and against the clear weight of the evidence. Nolan v. Memphis City Schools, 589 F.3d 257, 264 (6th Cir. 2009); McDonald v. Petree, 409 F.3d 724, 727 (6th Cir. 2005); Conte, 215 F.3d at 637; Barnes v. Owens-Corning Fiberglass Corp., 201 F.3d 815, 820-21 (6th Cir. 2000); Holmes, 78 F.3d at 1047-48; United States v. L.E.Cooke Co., 991 F.2d 336, 343 (6th Cir. 1993). While the Court has a duty to intervene and grant a new trial in appropriate cases, a jury's verdict should be accepted if it is one which could reasonably have been reached. If a reasonable jury could reach the challenged verdict, a new trial is improper. Nolan, 589 F.3d at 264; Rush, 399 F.3d at 727; Conte, 215 F.3d at 637; Holmes, 78 F.3d at 1048.

A motion for new trial should be denied if the jury's verdict is one is one that reasonably could have been reached, regardless of whether the trial judge might have rendered a different decision were the judge the trier of fact. Nolan, 589 F.3d at 264; Knight v. Metropolitan Government of Nashville and Davidson County, Tennessee, 136 Fed. Appx. 755, 761 (6th Cir. 2005); Walker v. Bain, 257 F.3d 660, 673 (6th Cir. 2001); Powers v. Bayliner Marine Corp., 83 F.3d 789, 796 (6th Cir. 1996); Wayne v. Village of Sebring, 36 F.3d 517, 525 (6th Cir. 1994). A jury's verdict is not unreasonable merely because different inferences and conclusions could have been drawn from the evidence or because other results are more reasonable. Nolan, 589 F.3d at 264; McDonald, 409 F.3d at 728; Strickland v. Owens Corning, 142 F.3d 353, 357 (6th Cir. 1998); L.E.Cooke Co., 991 F.2d at 343; Woodbridge v. Dahlberg, 954 F.2d 1231, 1234 (6th Cir. 1992).

The Sixth Circuit cautions that the scope of review of an award of damages by a jury is extremely narrow. The remedy of a new trial on the ground of inadequate or insufficient damages is appropriate only where the evidence indicates that the verdict awards damages in an amount that is substantially less than unquestionably proved by the undisputed evidence. If the jury's verdict is reasonable and supported by some competent, credible evidence, it is not an abuse of discretion for the trial court to deny a motion for new trial on damages. Moore v. Tennessee, 267 Fed. Appx. 450, 453 (6th Cir. 2005); Jimkoski, 247 Fed. Appx. at 663; Bell v. Johnson, 404 F.3d 997, 1003 (6th Cir. 2005); Walker, 257 F.3d at 674; Anchor v. O'Toole, 94 F.3d 1014, 1021 (6th Cir. 1996). A motion for new trial on damages is appropriate where the jury's award bears no relation to the uncontroverted evidence. Jimkoski, 247 Fed. Appx. at 663; Tezak v. Montgomery Ward Co., Inc., 33 Fed. Appx. 172, 178 (6th Cir. 2002); Davis, 1997 WL 159363, at * 3; Anchor, 94 F.3d at 1021.

After reviewing the record, the Court concludes that the motion by Darrell and LaFonne Frye for new trial under Rule 59 is GRANTED IN PART and DENIED IN PART. C. Fire Loss and Damage to Building

The insurance policy provides coverage for fire loss and damage to the insured building owned by Darrell Frye up to a maximum of $218,500. The jury awarded $35,000.

Darrell Frye presented the following uncontroverted evidence at trial concerning the loss and damage to the building, and the cost of repairs. On February 23, 2008, the Lawson Electric Company estimated that it would cost $24,250, including labor and materials, to make the necessary electrical repairs to the building. [Defendants' Exhibit D-20]. Brian White from the Lawson Electric Company testified at trial that it would cost more today to do the same work and repairs. Brian White testified that the $24,250 estimate would have to be updated and increased by approximately 10 — 15 per cent be made current. Based on the current estimate from the Lawson Electric Company, it would cost a minimum of $27,000 today to make the electrical repairs to the building.

On May 5, 2009, contractor Carlos Sweatt of Millwright Construction and Maintenance gave a written estimate of $26,677 to replace one I-beam roof support system on the building. [Defendants' Exhibit D-22]. One of the beams of the roof support system needs to be replaced because it is distorted and sagging. Carlos Sweatt testified at trial in support of the estimate and said that the job would cost more today.

On May 5, 2009, Bobby L. Jones, Sr., a home builder doing business as Jones Construction, gave a revised estimate that it would cost $149,875 to perform remodeling work inside the building. Mr. Jones also gave an estimate that it would cost an additional $12,569 to perform demolition work and remove damaged carpet, ceiling tiles, sheet rock on walls, water-damaged wood, and other debris from the building's interior. [Defendants' Exhibit D-19]. The total estimate by Jones Construction was $162,444. Mr. Jones testified at trial in support of these estimates and he said that the costs would be higher today.

Prior to the fire, there was a small leak in the building's roof and Darrell Frye had the roof covered with a tarpaulin. The leak had done some minor damage to the building. After the fire, Darrell Frye obtained an estimate for roof repair. On February 17, 2009, Jerry Wallace with the J.D. Helton Roofing Company, Inc. estimated that it would cost $7,256 to install a new roof on the building. [Defendants' Exhibit D-21]. Jerry Wallace testified that the there was not a large amount of fire damage to the existing roof. There were two layers of roof. Jerry Wallace proposed to remove the second layer of roof and replace it with a new roof to be installed on of top of the first or original roof. Due to the passage of time and additional water damage to the original roof from rain after the fire, Jerry Wallace estimated that it would cost an additional $3,000 — $4,000 today to install the new roof, over and above the 2009 estimate of $7,256. In other words, Jerry Wallace estimated that the cost today to install the new roof would be a minimum of $10,256.

When all of these estimates are added together, Darrell Frye has presented evidence that the fire loss and damage to his building exceeds the insurance policy limit of $218,500.

Lawson Electric Company $27,000 Millwright Construction and Maintenance $26,677 Jones Construction $162,444 J.D. Helton Roofing Company, Inc. $10,256 Total $226,377 Acuity at trial did not dispute the accuracy and validity of these estimates for repairing the fire damage to the insured building. Instead, Acuity concentrated its efforts on seeking to prove that Darrell Frye deliberately set fire to the building.

After reviewing the evidence, the Court concludes that the jury's verdict and award of $35,000 is unreasonable and against the clear weight of the evidence. The uncontroverted evidence established that the loss and damage to the insured building exceeded the maximum coverage limit of $218,500 in the insurance policy. A reasonable jury could not reach the verdict that the fire loss and damage to the insured building is an extremely low $35,000. The verdict of $35,000 is inadequate to compensate Darrell Frye because it is substantially less than the amount of damages that was unquestionably proved by the undisputed evidence. A new trial on the issue of damages to the building is appropriate because the jury's award of $35,000 bears no reasonable relation to the uncontroverted evidence.

The motion by Darrell Frye for a new trial is GRANTED pursuant to Rule 59 solely on the issue of determining the reasonable value of the fire loss and damage to the insured building.

D. Fire Loss and Damage to Business Property of Trinity Learning Center

The policy provides coverage for fire loss and damage to the business property of the Trinity Learning Center up to a maximum of $20,000. The jury found that the reasonable value of the fire loss and damage to the Trinity Learning Center's business property is $4,500.

The jury's verdict is reasonable and is not against the clear weight of the evidence. The verdict of $4,500 is supported by the evidence. The evidence presented at trial by Darrell and LaFonne Frye on this claim is vague and weak. Although LaFonne Frye was the owner and operator of the Trinity Learning Center, she did not testify herself concerning the current value of the numerous items of property that she claims were damaged or destroyed by the fire. Instead, LaFonne Frye relied on the testimony of Darrell Frye.

Darrell Frye was familiar with the Trinity Learning Center since he helped his wife operate the business. Darrell Frye testified that the value of the loss to the business property of the Trinity Learning Center exceeded the insurance policy limits of $20,000. After the fire occurred, Darrell Frye filled out and provided to Acuity a property inventory for the Trinity Learning Center. The inventory listed each item of damaged property claimed by the Trinity Learning Center, the year the items were purchased, and the estimated cost when purchased. The three-page inventory was introduced into evidence as Defendants' Exhibit D-24. The inventory estimates that the total value of the claimed loss to the business property of the Trinity Learning Center, based on the cost of the property when purchased, is approximately $40,000.

There are significant deficiencies in the property inventory. The inventory was not prepared and signed by LaFonne Frye, the sole owner of the Trinity Learning Center and the proper insured on this particular claim. LaFonne Frye testified that she did not recall whether she authorized Darrell Frye to sign the inventory.

Darrell Frye did not complete and fill in all of the blanks on the inventory form. Darrell Frye left blank and did not provide information or estimates for each item of damaged property in the following categories: replacement cost, depreciation, actual cash value, and recoverable depreciation. The items listed in the inventory were 1-3 years old at the time of the fire. The inventory does not provide an estimate for either the current replacement cost or fair market value. for each item of damaged property after depreciation. In the absence of evidence establishing the reasonable current value of the damaged property or its current replacement cost, the jury was left with the difficult task of deciphering the incomplete, vague inventory and determining the reasonable value of the fire loss and damages that should be awarded to LaFonne Frye.

The jury was entitled to assess the credibility of LaFonne Frye and Darrell Frye, and determine how much weight to give their self-serving testimony. Eaton Aerospace, L.L.C. v. SL Montevideo Technology, Inc., 129 Fed. Appx. 146, 152 (6th Cir. 2005); Walker, 257 F.3d at 674. The jury was not required to accept and believe their testimony. The jury's verdict of $4,500 is reasonable and will not be disturbed. A reasonable jury could find that LaFonne Frye failed to sufficiently prove that the value of the loss to Trinity Learning Center's business property met or exceeded the insurance policy limits of $20,000 merely by relying on the deficient property inventory prepared by Darrell Frye. The motion by Lafonne Frye pursuant to Fed.R.Civ.P. 59 for a new trial on the issue of determining the reasonable value of the fire loss and damage to the business property of the Trinity Learning Center is DENIED. E. Loss of Business Income from Trinity Learning Center

The insurance policy provides coverage for loss of business income derived from the Trinity Learning Center up to a maximum limit of $125,000. The jury found that LaFonne Frye proved $18,000 in loss of business income.

The fire in the building occurred on the night of February 9, 2009. As a result of the fire, the Trinity Learning Center closed the next day on February 10, 2009, and did not resume operations. The jury returned its verdict on April 16, 2010. The Trinity Learning Center had been closed for a little more than 14 months when the jury reached its verdict at the trial.

LaFonne Frye argues that the Court should grant a new trial because the verdict of $18,000 is against the weight of the evidence and inadequate to compensate her for loss of business income. LaFonne Frye argues that the evidence proves she had a loss of business income in excess of the insurance policy limit of $125,000. She contends that during the three-year span from 2006 — 2008, the Trinity Learning Center had an average annual gross income of $184,742.93 and an average annual net income of $68,190.16. In her motion for new trial [Doc. No. 187, p. 7], LaFonne Frye presents the following chart based on exhibits admitted into evidence at trial showing the Trinity Learning Center's annual gross income and net income for the years 2006 — 2008. Description Exhibit Gross Receipts Net Profit 2006 Federal Income Tax Return P-44 $164,260.00 $24,221.00 2007 Federal Income Tax Return P-44 $177,625.00 $51,382.00 Income for 2008 D-15 $212,343.80 $128,967.50 AVERAGE $184,742.93 $68,190.16

LaFonne Frye did not introduce into evidence a copy of the Trinity Learning Center's federal income tax return for the tax year 2008 which casts doubt on the accuracy of the numbers in her chart for 2008. In any event, the Court finds that the calculations by LaFonne Frye in her chart are incorrect. Before the Court addresses the question whether the jury's verdict is reasonable and supported by the evidence, the Court must first explain how it calculates the claim being made here by LaFonne Frye applying her method of analysis.

Based on the evidence presented at trial, the above chart by LaFonne Frye in her motion for new trial contains at least two significant errors: the net profit in 2008 is not $128,967.50 and the average annual net profit for three years is not $68,190.16. Relying on her Trial Exhibit D-15, LaFonne Frye mistakenly asserts that she has proved the Trinity Learning Center in 2008 earned a net profit of $128,967.50. However, the figure of $128,967.50 actually represents expenses incurred by the Trinity Learning Center in 2008, not net profit. In Trial Exhibit D-15, LaFonne Frye sets forth a financial summary claiming that the Trinity Learning Center in 2008 earned a gross profit of $212,343.80 and incurred $128,967.50 in expenses. The summary does not set forth a specific dollar amount that is alleged to be the net income for 2008. In the chart in her motion for new trial, LaFonne Frye mistakenly takes the $128,967.50 in business expenses for 2008 and she now contends that $128,967.50 is the net profit for 2008. This error has a substantial impact on the proper calculation of her claim regarding the average annual net profit earned by the Trinity Learning Center during the three-year span from 2006 — 2008.

To calculate the net profit for 2008, as set forth in Trial Exhibit D-15, it is necessary to start with the gross profit of $212,343.80 and deduct or subtract the $128,967.50 in expenses which results in LaFonne Frye claiming a net profit in 2008 of $83,376.30.

This correction for the 2008 net profit changes the math calculation in her chart concerning the Trinity Learning Center's average annual net income during the three-year span from 2006 — 2008. According to the data presented by LaFonne Frye, the average annual net income during the three-year span from 2006 — 2008 would be $52,993.10. Assuming arguendo that we accept the figures in Defendants' Trial Exhibit D-15 as being accurate and complete, the Court calculates the average annual net income during the three-year span from 2006 — 2008 as follows: Net profit for 2006 $24,221.00 Net profit for 2007 $51,382.00 Net profit for 2008 $83,376.30 TOTAL $158,979.30 When the total net profit of $158,979.30 for the three-year span from 2006 — 2008 is divided by 3, it yields an annual average net profit of $52,993.10. Consequently, LaFonne Frye may plausibly contend that during the three-year span from 2006 — 2008, the Trinity Learning Center had an average annual net income of $52,993.10.

The Court is not saying here that the evidence conclusively proves the Trinity Learning Center had an average annual net income of $52,993.10 during the three-year span from 2006 — 2008. Rather, this is merely a clarification of the Court's understanding of LaFonne Frye's claim and her method of calculating the loss of business income.

The Court bears in mind that after the fire on February 9, 2009, the Trinity Learning Center closed on February 10, 2009, and did not resume operations. When the jury reached its verdict at the trial on April 16, 2010, the Trinity Learning Center had been closed for 14 months. If we take the average annual net income of $52,993.10 for a 12-month period and stretch or extend it to cover the 14-month period when Trinity Learning Center was out of business, LaFonne Frye may be able to plausibly claim that she has suffered a post-fire loss of business net income in the amount of approximately $61,825. ($52,993.10 average annual net income divided by 12 months = $4,416.10 average net income per month × 14 months = $61,825.40).

In her motion for new trial, Lafonne Frye argues that she proved a loss of business income in excess of the insurance policy limit of $125,000. The Court rejects this argument. Based on the evidence at trial and utilizing her method of analysis described above, the best case scenario for LaFonne Frye is that she is in a position to plausibly claim that she has suffered, at most, a loss of business net income in the amount of approximately $61,825. Any amount greater than this simply is not be supported by the evidence.

LaFonne Frye did not do a good a job of presenting and explaining these essential calculations to the jury at trial to support her claim and method of analysis based on the average annual net income of Trinity Learning Center. Instead of providing the jury with a clear and coherent explanation of how she sought to calculate and prove her claim for loss of business income, LaFonne Frye merely provided the jury with some numbers in documents and left it up to the jury to sort it all out. If there was any confusion on the part of the jury about how to determine the amount of the loss of business income, such confusion was primarily created by LaFonne Frye.

Moreover, the evidence concerning the gross income and net income earned by the Trinity Learning Center during 2008, the year immediately preceding the fire, is weak and not very convincing. LaFonne Frye is the sole owner and the primary manager of the Trinity Learning Center. But when she testified at trial, she barely gave any proof regarding loss of business income. Although LaFonne Frye was able to produce copies of the Trinity Learning Center's federal income tax returns for 2006 and 2007, she failed to produce the 2008 federal income tax return. She contends that her copy of the 2008 federal income tax return was stored in the insured building and destroyed by the fire. LaFonne Frye never offered a credible explanation as to the reason why she did not bother to obtain records from the United States Internal Revenue Service to corroborate her claim regarding the amount of gross income and net income earned by the Trinity Learning Center during 2008. The failure to produce the 2008 federal income tax return casts a shadow of doubt over the veracity of the large amount she claims for loss of business income. Furthermore, LaFonne Frye did not present supporting testimony from the bookkeeper or accountant who prepared the 2008 federal income tax return for the Trinity Learning Center.

LaFonne Frye sought to prove her claim for loss of business income primarily through the testimony of Darrell Frye. However, Darrell Frye did not maintain the business records and he did not prepare the Trinity Learning Center's federal income tax returns. Trial Exhibit P-44 show that the Trinity Learning Center's 2006 and 2007 federal income tax returns were prepared by outside bookkeeping services or accountants, not by Darrell Frye. It would be reasonable for the jury to entertain some doubts about the credibility or reliability of Darrell Frye's testimony concerning the amount of lost business income.

In the absence of a 2008 federal income tax return, LaFonne Frye presented at trial a summary of what she alleges were the Trinity Learning Center's gross income and expenses for 2008. Defendants' Trial Exhibit D-15. Through the testimony of Darrell Frye, she introduced an IRS Form 1099-MISC federal tax form showing that the State of Tennessee paid $212,343.80 in miscellaneous income to LaFonne Frye in tax year 2008. LaFonne Frye contends that the $212,343.80 is gross income earned by the Trinity Learning Center in 2008. LaFonne Frye further introduced various other documents showing certain business expenses incurred by the Trinity Learning Center in 2008 in the total amount of $128,967.50. The summary does not set forth a specific dollar amount that is alleged to be the net income for 2008. The summary and the various documents in Trial Exhibit D-15 concerning the amount of business income and expenses in 2008 are in some ways confusing and incomplete. In reviewing Trial Exhibit D-15, a reasonable jury could have substantial doubts about whether LaFonne Frye had presented sufficient credible evidence to prove the Trinity Learning Center's correct business net income in 2008.

The net income of the Trinity Learning Center in 2008 is an especially crucial component in deciding the claim for loss of business income since 2008 is the year immediately preceding the fire on February 9, 2009. Whatever net income was earned by the Trinity Learning Center in 2008 would be very important to establish the trend in net income and provide a relevant basis for predicting or estimating the amount of net income that the Trinity Learning Center could reasonably have been expected to earn in 2009 but for the fire damage.

After reviewing the evidence, the Court concludes that the jury's verdict and award of $18,000 in loss of business income is reasonable, and it is not against the clear weight of the evidence. Plaintiff Acuity disputed and challenged the evidence concerning the loss of business income, especially with regard to LaFonne Frye's failure to produce the Trinity Learning Center's 2008 federal income tax return. A reasonable jury could reach the verdict to award $18,000 for loss of business income.

There are alternative ways that the jury could reasonably determine the post-fire loss of business income based on the evidence. For example, due to the lack of a 2008 federal income tax return for the Trinity Learning Center, it would have been reasonable for the jury to disbelieve and exclude from its calculations LaFonne Frye's relatively weak evidence concerning her claim about the amount of gross income and expenses for 2008. The Trinity Learning Center's 2006 and 2007 federal income tax returns were admitted into evidence. It would have been reasonable for the jury to estimate and determine the post-fire loss of business income by considering the Trinity Learning Center's net income only in 2006 and 2007. The net income in 2006 was $24,221 and the net income in 2007 was $51,382. The average annual net income for the two-year span from 2006-2007 is $37,801.50 ($24,221 + $51,382 = $75,603 divided by 2 = average annual net income $37,801.50). This average annual net income of $37,801.50 is far more reasonable and much closer to the jury's verdict of $18,000 compared to LaFonne Frye's unreasonable demand for the maximum insurance policy limit of $125,000.

A motion for new trial should be denied if the jury's verdict is one is one that reasonably could have been reached, regardless of whether the trial judge might have rendered a different decision were the judge the trier of fact. Nolan, 589 F.3d at 264; Walker, 257 F.3d at 673; Powers, 83 F.3d at 796; Wayne, 36 F.3d at 525. A jury's verdict is not unreasonable merely because different inferences and conclusions could have been drawn from the evidence or because other results are more reasonable. Nolan, 589 F.3d at 264; McDonald, 409 F.3d at 728; Strickland, 142 F.3d at 357; L.E.Cooke Co., 991 F.2d at 343; Woodbridge, 954 F.2d at 1234. The remedy of a new trial on the ground of inadequate damages is appropriate only where the evidence indicates that the verdict awards damages in an amount that is substantially less than unquestionably proved by the undisputed evidence. If the jury's verdict is reasonable and supported by some competent, credible evidence, it is not an abuse of discretion for the trial court to deny a motion for new trial on damages. Moore, 267 Fed. Appx. at 453; Jimkoski, 247 Fed. Appx. at 663; Bell, 404 F.3d at 1003; Walker, 257 F.3d at 674; Anchor, 94 F.3d at 1021.

Accordingly, the motion by Lafonne Frye pursuant to Fed.R.Civ.P. 59 for a new trial on the issue of determining the amount of damages for the loss of business income is DENIED.

III. Conclusion

The motion by Acuity Mutual Insurance Company for judgment as a matter of law notwithstanding the jury's verdict on the issues arson and damages [Doc. No. 189] is DENIED. Acuity Mutual Insurance Company's alternative motion pursuant to Fed.R.Civ.P. 59(e) to alter or amend the judgment [Doc. No. 189] is DENIED.

The motion by Darrell and LaFonne Frye for suggestion of additur pursuant to Tenn. Code Ann. § 20-10-101 [Doc. No. 186] is DENIED.

The motion by Darrell Frye pursuant to Fed.R.Civ.P. 59 for a new trial [Doc. No. 186] is GRANTED solely on the issue of determining the reasonable value of the fire loss and damage to the insured building owned by him.

The motion by Lafonne Frye pursuant to Fed.R.Civ.P. 59 for a new trial on the issue of determining the reasonable value of the fire loss and damage to the business property of the Trinity Learning Center trial [Doc. No. 186] is DENIED.

The motion by Lafonne Frye pursuant to Fed.R.Civ.P. 59 for a new trial on the issue of determining the amount of damages for loss of business income trial [Doc. No. 186] is DENIED.

SO ORDERED.

iff ever receive notice of non-renewal of her contract, or an offer of substantially equivalent alternative employment. ( Id. at ¶ 133,135) Since her termination from defendant, plaintiff has suffered severe economic consequences; continues to have lost wages and benefits, which will continue for an indefinite time; has suffered embarrassment, humiliation, extreme emotional distress, and anxiety; and suffered damage to her reputation. ( Id. at ¶ 136)

During a meeting in September 2006 at which plaintiff returned her DSU property, Farley alleged that Bell had given plaintiff a written notice of non-renewal on May 16, 2006; however, plaintiff was not at work on that date and never received such notice. (D.I. 16 at ¶ 132-33)

III. STANDARD OF REVIEW

In reviewing a motion filed under Federal Rule of Civil Procedure 12(b)(6), the court must accept all factual allegations in a complaint as true and take them in the light most favorable to plaintiff. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.ct. 2197, 2200 (2007); Christopher v. Harbury, 536 U.S. 403, 406 (2002). A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.ct. 1955, 1964 (2007) (interpreting Fed.R.Civ.P. 8(a)) (internal quotations omitted). A complaint does not need detailed factual allegations; however, "a plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.'" Id. at 555 (alteration in original) (citation omitted). The "[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true." Id. (citations omitted).

IV. DISCUSSION

Plaintiff asserts three counts against defendant, all in violation of Title VII, 42 U.S.C. §§ 2000(e) et seq. First, plaintiff asserts a claim of sex discrimination based on her termination from employment, defendant's prevention of plaintiff from attending various tournaments and meetings, defendant's refusal to allow plaintiff to continue coaching the women's track team for spring 2006, not providing plaintiff with a contract, and making false accusations against plaintiff. (D.I. 16 at ¶ 142-45) Plaintiff also asserts claims of gender harassment and a hostile work environment. ( Id. at ¶ 146-49) Lastly, plaintiff brings a claim of retaliation on the basis that defendant terminated plaintiff's employment, did not permit her to coach the women's track team for part of the 2006 season, prohibited her from attending various tournaments and meetings, did not provide a contract, made false accusations against her, and contacted the Leadership Institute. ( Id. at ¶ 150-53)

At issue on the present motion is the appropriate date to apply for tolling the statute of limitations, and whether plaintiff's complained-of acts are part of an ongoing violation or constitute discrete discriminatory acts. Defendant argues that many of the allegations complained of are time-barred because the acts are discrete and occurred more than 300 days before filing of the charge, which defendant argues occurred January 17, 2007. (D.I. 19 at 3) In response, plaintiff asserts that the filing date of the charge is December 4, 2006, or the date plaintiff filed her intake questionnaire with DDOL. (D.I. 22 at 21) Plaintiff also asserts that most of the actions are non-discrete insofar as they are actually part of her hostile work environment claim. ( Id. at 24-27) Plaintiff claims that, although the non-receipt of an employment contract is a discrete act, it is timely because defendant never communicated to plaintiff a final decision on this matter until the date of her termination. ( Id. at 31)

In that case, the cut off date for discrete acts is March 23, 2006.

If the court finds that the DDOL questionnaire does constitute a charge, the 300 day window extends to February 7, 2006.

Based on the forgoing, resolution of the motion at bar requires a determination, first, of whether plaintiff's DDOL questionnaire of December 4, 2006, or the EEOC filing of January 17, 2007, constitutes a charge for the purposes of calculating the applicable statute of limitations, and second, a determination of which acts are discrete acts to which the statute of limitations applies.

A. Statute of Limitations

Under Title VII, plaintiff must file a charge within 180 days of the complained-of conduct. 42 U.S.C. § 2000e-5(e)(1). In states that have an entity with the authority to grant or seek relief regarding an alleged unlawful practice (so-called "deferral states"), a plaintiff who files a grievance with that agency has 300 days from the time of the employment practice to file the charge with the EEOC. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002). Delaware is such a state. See Maynard v. Goodwill Indus. of Del. and Del. County, Inc., 678 F. Supp. 2d 243, 250 (D. Del. 2010) (citing 42 U.S.C. § 2000e-5(e)).

As noted previously, on December 4, 2006, plaintiff visited the DDOL to file a charge of discrimination. (D.I. 16 at ¶ 137) While there, she completed an intake questionnaire and met with a DDOL investigator. ( Id.) DDOL required plaintiff to return on January 17, 2007 to verify her charge. ( Id.) DDOL issued a final determination on June 22, 2009, concluding that "there is reasonable cause to believe that an unlawful

This charge of discrimination is a joint charge between DDOL and the EEOC. (D.I. 16 at ¶ 138)

This section of plaintiff's amended complaint represents an addition from her original complaint, which merely stated that she filed charges with DDOL and the EEOC on January 17, 2007. (D.I. 1 at ¶ 131)

employment practice has occurred." ( Id. at ¶ 139; see also D.I. 16, ex. 2) Plaintiff argues that the January 17, 2007 verified charge of discrimination relates back to her December 4, 2006 DDOL intake questionnaire for purposes of tolling the statute of Iimitations. (D.I. 22 at 21) Defendant, on the other hand, argues that the DDOL questionnaire is not a charge of discrimination and the proper filing date of the charge is January 17, 2007. (D.I. 19 at 12)

Verification is necessary to "insure against catchpenny claims of disgruntled, but not necessarily aggrieved, employees." Edelman v. Lynchburg Coll., 535 U.S. 106, 115 (2002). A verification may relate back to the initial filing, to ensure that complainant does not unknowingly forfeit his rights. See id. The EEOC requires no response from an employer until verification of the charge. See id.

If plaintiff's DDOL intake questionnaire constitutes a charge, the applicable cut off date for claims that the court may consider is February 7, 2006. If not, the time bar applies to all claims before March 23, 2006.

The Supreme Court has stated that, for a filing to be construed as a charge, it must contain, at a minimum, an allegation and the name of the charged party and reasonably be construed as a request to take action. See Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008). While an intake questionnaire is not per se sufficient to constitute a charge, a court may treat it as a charge if it meets the above requirements. See id. at 401,405. However, simply filing an intake questionnaire does not give rise to an inference that an employee is requesting action. See id. at 405. In Holowecki, the Supreme Court found respondent's filing of an intake questionnaire sufficient to constitute a charge because it contained more detailed information than the minimum required by 29 C.F.R. § 1626.8(b) and also included an affidavit with a request to "[p]lease force Federal Express to end their age discrimination plan[.]" Id. at 404-05.

This regulation provides that a charge should contain: (1) the names and contact information for the person making the charge and the charged entity; (2) a statement of facts describing the alleged discriminatory act; (3) the number of employees of the charged employer; and (4) a statement as to whether or not the charging party has initiated state proceedings. Nevertheless, a charge is sufficient where it is in writing and contains both the name of the prospective respondent and a general allegation as to the discriminatory act. See Holowecki, 552 U.S. at 396.

Before Holowecki, the Third Circuit had enunciated that an intake questionnaire is not sufficient to constitute a charge. See Bailey v. United Airlines, 279 F.3d 194, 199 n. 2 (3d Cir. 2002); see also Phillips v. DaimlerChrysler Corp., Civ. No. 01-247, 2003 WL 22939481, at *2 (D. Del. Mar. 27, 2003) (finding that, because an intake questionnaire serves a different purpose than a charge, plaintiffs DDOL questionnaire does not constitute a charge). The question now arises whether Holowecki alters that finding with respect to a Title VII claim. While this court has not considered the issue, others in this Circuit have. The United States District Court for the District of New Jersey has found the use of an intake questionnaire as a charge sufficient and stated that later verification would relate back to the date of the intake questionnaire. See Wood v. Kaplan Props., Civ. No. 09-1941, 2009 WL 3230267, at * 4 (D.N.J. Sept. 29, 2009) (unpublished opinion). In Wood, unlike the case at bar, the questionnaire had language stating that it could be taken as a charge. Specifically, the form stated that "[w]hen this form constitutes the only . . . written statement of allegations of employment

It is important to note that Holowecki arose under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-64, whereas the current case is under Title VII, which has a stricter standard for filing a charge. See Martin v. Pa. Dep't of Corr., Civ. No. 2:07-cv-0587, 2008 WL 4279761, at *5 (W.D. Pa. Sept. 12, 2008).

discrimination, the Commission will . . . consider it to be a sufficient charge of discrimination under the relevant statute(s)." See id. at *4 n. 2.

The United States District Court for the Eastern District of Pennsylvania has found that an intake questionnaire containing the same language as that in Wood constituted a charge where it contained the only written statement of allegations of employment discrimination and also tracked language for Title VII claims. See Joseph v. Pennsylvania, Civ. No. 06-4916, 2009 WL 1012464, at *1 (E.D. Pa. Apr. 15, 2009). Because the language on the form was clear as to the definition of a charge, the court found that it need not comply with the Holowecki requirement that it contain a specific request for action. See id.

In another case in this Circuit addressing what can constitute a charge, 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 met the Holowecki requirements. See Steiner v. Prof'l Servs. Indus., Inc., Civ. No. 09-723, 2009 WL 2950755, at *2 (W.D. Pa. Sept. 9, 2009). The Steiner court noted that the letter clearly constituted a request for remedial action. See id. The letter at issue in Steiner explicitly stated, "[c]onsider this [Steiner's] signed and dated charge. . . . Prepare your charge document and contact my client directly to expedite processing." Id. at *1.

The same court also found that where the only form filed was an intake questionnaire, but not a formal charge, the court might consider it a request for action. See Rupert v. PPG Indus., Inc., Civ. No. 08-723, 2009 WL 596014, at *15 (W.D. Pa. Feb. 26, 2009). The Rupert court allowed plaintiff's intake questionnaire to count as a charge because the EEOC activated its dispute resolution process in response. Id. at *17. Additionally, the Director of the Pittsburgh EEOC filed a sworn affidavit stating that the receipt of a general intake questionnaire would satisfy charging requirements and indicate to the EEOC a clear intent on the part of plaintiff for the EEOC to act. Id. He further stated that the EEOC deems the date receipt of an intake questionnaire as the date of a charge. Id.

In contrast to the forms used in Wood and Joseph, plaintiff's questionnaire specifically states that completion of the form does not constitute a charge. (D.I. 19 at 12; D.I. 23, ex. 1) Because the form lists the name of the charged party and contains an allegation of discrimination, it may be acceptable under Holowecki. (D.I. 23, ex. 1) However, unlike Steiner and Holowecki, plaintiff's questionnaire does not contain any specific request for action, and there is no evidence that plaintiff made any other request for action in an accompanying affidavit or letter. ( Id.)

Specifically, plaintiff's DDOL form states, "I believe this action was taken against me because of my sex, age, race[, and] national origin." (D.I. 23, ex. 1)

Unlike in Rupert, it is unclear in the instant case whether the DDOL instituted its dispute resolution process in response to plaintiff's questionnaire. As to the EEOC proceedings, plaintiff simply states that on completion of the intake questionnaire, she met with a DDOL investigator who required her to return on January 17, 2007 to verify her charge. (D.I. 16 at ¶ 137) Even if the DDOL did immediately institute proceedings, Rupert does not indicate that this, in itself, is sufficient to constitute a charge. Indeed,

In fact, the DDOL did not issue a final determination finding "reasonable cause to believe that an unlawful unemployment practice has occurred" until June 22, 2009. ( Id. at ¶ 138) This extended lapse in time makes it difficult to infer that proceedings began at the filing of the intake questionnaire.

in Rupert, one of the three EEOC forms filed by plaintiffs had language noting that "[a]II charges must state an issue which is what happened to you. You must state what protected class you fall under which is the basis for discrimination." Rupert, 2009 WL 596014, at *17 (emphasis in original). Here, plaintiffs form refers not to a charge, but to a "complaint." (D.I. 23, ex. 1) Additionally, some of the Rupert plaintiffs indicated that they had already engaged assistance of counsel, which the court interpreted as an objective indicator that plaintiffs sought to activate EEOC proceedings, rather than simply obtain information. Rupert, 2009 WL 596014, at *17.

Plaintiff urges the court to adopt the approach taken in Steiner, in which plaintiff says the court found the date of the intake questionnaire controlling over the date of a later-signed charge of discrimination because the delay in official filing could be attributed to the agency, not plaintiff. (D.I. 22 at 22) The court does not read Steiner to say that a charge should relate back to the intake questionnaire simply because the agency delayed filing. Rather, the Steiner court found that the official charge related back to the letter sent by Steiner's attorney precisely because it met the Holowecki requirement that it be a request to take remedial action through the statement "[c]onsider this [Steiner's] signed and dated charge. . . . Prepare your charge document and contact my client directly to expedite processing." Steiner, 2009 WL 2950755, at *1-2.

In sum, plaintiff's intake questionnaire appears to satisfy the first two Holowecki requirements by calling for the name of the charged party and the asking for a brief description of the complaint. However, the form refers only to filing a "complaint" (unlike Rupert), it specifically states that it "does not constitute the filing of a charge" (unlike Wood and Joseph), and plaintiff did not specifically request action (unlike Holowecki and Steiner). (D.I. 23, ex. 1) (emphasis added) Thus, even assuming (as we must on defendant's motion) that DDOL took action after plaintiff filed her intake questionnaire, it is deficient under Holowecki and cannot constitute a charge of discrimination. The appropriate charge date, therefore, is January 17, 2007, and the date before which discrete claims are time-barred is March 23, 2006.

B. The Nature of the Violations

Defendant challenges certain of plaintiff's allegations as time-barred, specifically: (1) plaintiffs complaints about reduction in her work duties; (2) defendant's refusal to provide an employment contract; (3) elimination of plaintiff's assistant; (4) the "written and oral reprimand" from Bell (i.e., the "demeanor memo"); (5) the removal from travel itinerary; (6) not being permitted to coach her sport through the end of the 2006 season; (7) being prohibited from attending various meetings and tournaments; and (8) defendant's allegedly false accusations against her. (D.I. 19 at 7-8, 16, 19) Defendant asserts that these are discrete acts which, having occurred before March 23, 2006, are time barred. ( Id.) In addition defendant appears to suggest that any act that occurred before March 23, 2006 is a discrete act that is time-barred. ( Id. at 16-19)

Plaintiff contends that defendant reads her claims wrongly. Rather than asserting a number of discrete acts, many of the acts that defendant alleges are timebarred are components of her hostile work environment claim. (D.I. 22 at 16-18) Plaintiff further contends that the acts provide background information and context for her retaliation and sex discrimination counts. ( Id.) Plaintiff concedes that the non-provision of a contract is a discrete act, but contends that it is timely because it did not accrue until at least May 8, 2006. ( Id.)

In a hostile work environment claim, so long as one act making up the hostile environment occurred within the applicable statutory period, the claim is timely. See Morgan, 536 U.S. at 118. This does not apply, however, if the acts complained of are discrete discriminatory or retaliatory acts. See id. at 122. The Supreme Court has enunciated several discrete acts: termination; failure to promote; denial of transfer; and refusal to hire. Id. at 114. In contrast, "when the workplace is permeated with `discriminatory intimidation, ridicule, and insult . . . sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' Title VII is violated." Id. at 116 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). The Third Circuit's application of Morgan includes in the concept of discrete acts wrongful suspension, wrongful discipline, denial of training, and wrongful accusation. See O'Connor v. Newark, 440 F.3d 125, 127 (3d Cir. 2006). However, under Morgan, even where an act is time-barred, a plaintiff may still assert the existence of prior acts as background evidence supporting a timely-filed claim. See Morgan, 536 U.S. at 113.

Based on Morgan and O'Connor, only plaintiffs termination, the alleged wrongful accusations, and the failure to provide plaintiff with a contract are discrete acts which are subject to the time bar. In contrast, the reduction in plaintiff's duties, the elimination of her assistant, and the removal from travel activities are not discrete acts, but make up part of plaintiff's hostile work environment claim. With respect to the demeanor memo, if this is found to be a wrongful reprimand as defendant contends, it would be a time-barred discrete act under O'Connor. (D.I. 19 at 19) However, plaintiff contends that it is part of her hostile work environment claim. (D.I. 22 at 18) Looking at the facts in the light most favorable to the plaintiff, at this time it is impossible to determine whether this memo is a reprimand; therefore, the court cannot say that the memo is a discrete act subject to the time bar.

1. Hostile work environment

To determine the existence of a hostile work environment, the Third Circuit has enunciated a two-part test. First, plaintiff "must demonstrate that at least one act occurred within the filing period. . . ." West v. Phila. Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995) (citing United Airlines, Inc. v. Evans, 431 U.S. 553, 558 (1977)). The West court noted that, when a sexual harassment claim is based on the existence of a hostile environment, it may straddle both sides of "an artificial statutory cut-off date" because such violations are continuing in nature. Id. at 755 (citing Jenson v. Eveleth Taconite Co., 824 F. Supp. 847, 877 (D. Minn. 1993)). In West, the trial court excluded much of the evidence predating the 300-day statutory period. See id. at 756. However, the Third Circuit noted that "[t]his strict application is not appropriate . . . where the existence of hostility and the employer's awareness of hostility can long predate the 300-day period." Id. Because a hostile work environment claim is not a "sum of

discrete claims," the court must look at the totality of the circumstances of the work environment. Id. at 756.

As noted above, the court has found the cutoff date for claims to be March 23, 2006. Plaintiff meets part one of the test by alleging a number of non-discrete acts that occurred after the triggering of the time bar. For example, an e-mail from Sessoms on April 19, 2006 in response to plaintiff's email about her stress suggests the administration's tolerance of Hooper's behavior. (D.I. 16 at ¶ 103, 104) Additionally, despite being advised that plaintiff would begin to report directly to Bell on March 22, 2006 (one day before the start of the time bar), Hooper continued his abusive and intimidating behavior, threatening plaintiff that he could take steps to get her fired. ( Id. at ¶ 94-96) Although not noted explicitly in plaintiff's amended complaint, it appears that this behavior continued into April 2006, based on a memo plaintiff submitted to human resources complaining of Hooper's "continuing intimidating, harassing, hostile and abusive behavior." ( Id. at ¶ 97) Having established that at least one part of plaintiff's hostile work environment claim falls within the statute of limitations period, this claim is not time-barred.

Part two of the Third Circuit's test looks to whether the harassment is something "more than the occurrence of isolated or sporadic acts of intentional discrimination." West, 45 F.3d at 755 (citing Jewett v. Int'l Tel. Tel. Corp., 653 F.2d 89, 91 (3d Cir. 1981)). In Morgan, the hostile environment consisted of managers who "made racial jokes, performed racially derogatory acts, made negative comments regarding the capacity of blacks to be supervisors, and used various racial epithets." Morgan, 536 U.S. at 120. While there is no allegation in the present case that managers made direct comments about the capacity of women employees or made off-color jokes, plaintiff sufficiently paints a picture of a pervasive atmosphere of "discriminatory intimidation" towards women, particularly with respect to the firing and demotion of a number of senior women administrators, the continual lessening of plaintiff's duties, and the allegedly hostile and abusive attitude of Hooper. (D.I. 16 at ¶ 28, 35-39, 41, 47-53) Morgan, 536 U.S. at 116 (citing Harris, 510 U.S. at 21). Additionally, plaintiff has alleged that supervisors tolerated this atmosphere. (D.I. 16 at ¶ 57-59, 64-66) As the court noted in West, "[a] hostile work environment is like a disease. It can have many symptoms, some of which change over time, but all of which stem from the same root." West, 45 F.3d 756. Here, as there, it appears "[t]he etiology in this case [may be] pure gender bias." Id.

2. Retaliation and sex discrimination

Title VII states, "it shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful practice by this subchapter." 42 U.S.C. § 2000e-3(a). Retaliation exists where plaintiff engages in protected activity, after which the employer takes adverse action that is causally connected to the protected activity. See Mitchell, 556 F. Supp. 2d at 350 (citing Berry v. Delaware, Civ. No. 06-217, 2008 WL 906104, at *3 (D. Del. April 1, 2008) (unpublished decision)).

Plaintiff alleges five instances of protected activity. First, plaintiff alleges that on November 4, 2005, she called Bell to ask for help "dealing with" Hooper's intimidating behavior towards her because she was a woman. (D.I. 16 at ¶ 57) Second, following threats from Hooper, plaintiff again complained to Bell about Hooper's behavior. ( See id. at ¶ 64) Third, on March 10, 2006, plaintiff met with Sessoms to complain that Hooper treated her in an abusive and harassing manner, and did not treat male administrators in the same way as women. ( Id. at ¶ 76-81) Plaintiff alleges that Bell was outraged about the meeting. ( Id. at ¶ 82) Soon after this meeting, Hooper determined that the head trainer, a female, could no longer work with male athletes. ( Id. at ¶ 83) In the fourth instance of alleged protected activity, plaintiff told Hooper that she believed this action against the head trainer was sex discrimination. ( Id. at ¶ 84) Lastly, on April 16, 2006 plaintiff wrote a letter to Farley about the March 20 "demeanor memo" and to complain about Hooper's continuing intimidating, abusive, and hostile behavior, and asking for "respect and a less hostile work environment." ( Id. at ¶ 97-99) Plaintiff provided Sessoms with a copy of this letter. ( Id. at ¶ 100)

Plaintiff, in her complaint, alleges six separate actions that she claims are retaliation for the above protected activity: (1) her allegedly unlawful termination; (2) defendant's prohibition on plaintiffs coaching of the women's track team for the balance of the spring 2006 season; (3) defendant's prohibition of plaintiffs attendance at the MEAC spring and summer meetings and the NCAA regional qualifying tournament; (4) defendant's false accusations against plaintiff; (5) defendant's refusal to provide plaintiff with an employment contract; and (6) defendant's contact with the Leadership Institute. (D.I. 16 at ¶ 152) Plaintiff also asserts numbers 1 through 5 of the above acts in her sex discrimination claim. ( Id. at ¶ 144) The analysis, for the purposes of applying the statute of limitations to these acts, is the same for sex discrimination as retaliation.

Although plaintiff does not specifically state the following as part of her retaliation or sex discrimination claims, she also asserts that on December 15, 2005 Hooper threatened to fire her; and that on or about February 21, 2006, she learned that Hooper had removed her from the travel schedule for a basketball game that she was to attend in Daytona Beach, Florida. ( Id. at ¶ 63, 71-73) These acts appear to be in response to alleged protected activity. Because these are not discrete actions under Morgan or O'Connor, they are not time-barred.

a. False accusations

With respect to plaintiffs claims of false accusation, plaintiff alleges that, following her March 10, 2006 meeting with Sessoms, Hooper's harassment increased and that, on March 20, he sent her e-mails with allegedly false accusations about her failure to follow proper procedure or complete a job description for her position. ( Id. at ¶ 87-88) On March 22, Hooper made another allegedly false accusation against plaintiff, asserting that she circumvented procedure by requesting the release of two student athletes and did not inform him of an academic waiver request. ( Id. at ¶ 91-92) Wrongful accusation is a discrete act under O'Connor and plaintiff's allegations in this respect before March 23, 2006 are time-barred. See O'Connor, 440 F.3d at 127.

On April 19, 2006, three days after plaintiffs letter to Farley about Bell's "demeanor memo," plaintiff received an e-mail questioning her about the granting of a release from defendant to a student athlete, accusations which plaintiff claims are false. (D.I. 16 at ¶ 101-02) Plaintiff asserts that, following her April 16, 2006 letter to Farley, Bell, on about April 26, 2006, sent a memo to Farley recommending that plaintiff be placed on administrative leave for allegedly influencing a student athlete to transfer to

another university. ( Id. at ¶ 107, 110) On or about April 27, 2006, Farley notified plaintiff that she was to be placed on administrative leave. ( Id. at ¶ 109-10) On May 8, upon returning from back-to-back track meets out of state, Bell fired plaintiff without giving her any written notice of non-renewal of contract or any formal termination letter. ( Id. at ¶ 112-16)

On May 10, 2006 Bell instructed plaintiff that she was no longer authorized to represent defendant at any meeting or function after May 14, 2006. ( Id. at ¶ 120) Plaintiff was no longer permitted to coach the women's track team for the remaining 2006 season, and was prohibited from attending the MEAC spring and summer meetings and the NCAA regional qualifying tournament. ( Id. at ¶ 125, 127) Additionally, sometime prior to the last Leadership Institute meeting in June, defendant contacted the Leadership Institute to explain that plaintiff was no longer an employee and could not represent defendant at the Leadership Institute. ( Id. at ¶ 128) Plaintiff claims that these actions were retaliatory. (D.I. 22 at 16) Because these acts occurred after the March 26, 2006 time bar, it is not necessary to determine whether they are discrete.

b. Plaintiff's contract and termination of employment

Defendant contends that the court should dismiss and strike any claims about plaintiffs contract (asserted in count I, sex discrimination and count III, retaliation) because the decision not to renew was made prior to March 23, 2006. (D.I. 19 at 20) Plaintiff concedes that the nonrenewal is a discrete act but asserts that dismissal would be inappropriate because a cause of action regarding contract status only accrues once the employer's decision is definitive and the employer has explicitly communicated that decision to the employee. (D.I. 22 at 31)

Plaintiff's citations to other cases involving defendant on similar issues are persuasive. The Supreme Court has held that the statute of limitations begins to run when an employment decision is made and the employee has been notified. See Del. State Coll. v. Ricks, 449 U.S. 250, 259 (1980). In determining what is a definitive communication, this court has found that "seesaw representations" to plaintiff about his employment are not definitive statements regarding the plaintiff's employment status even where a provision in plaintiff's contract stated that it would terminate after one year. See Ohemeng v. Del. State Coll., 643 F. Supp. 1575, 1577, 1580 (D. Del. 1986). In Ohemeng, plaintiff had received a letter containing a provision that his contract for the 1983-84 school year was terminal after one year-in other words, that it would not be renewed. See id. at 1577. Ohemeng, upon becoming aware of the termination provision, met with his department chair, who assured him he would not be terminated. See id. Additionally, towards the end of the school year, Ohemeng was assigned to teach four classes in the following school year. See id. The court found that, although Ohemeng had entered a terminal contract, it was reasonable for him to infer based on defendant's representations that the university was offering him continued employment. See id. at 1579-80. More recently, this court found that, where a plaintiff received notice that she would receive a terminal contract for the 1994-95 school year, but was later told by the president of the university that he was not aware that her contract was terminal and that she would receive 90-day notice before termination, a decision had not been

definitively made and explicitly communicated to her. See Lamb-Bowman v. Del. State Univ., Civ. No. 98-658, 1999 WL 1250889, at *1-2, *8 (D. Del. Dec. 10, 1999). The Lamb-Bowman court relied heavily upon the fact that the university had indicated to plaintiff that if she improved in certain areas, reconsideration of the terminal provision would be possible, but also noted that the president's representations that plaintiff would receive 90-day notice could cause plaintiff to reasonably believe the university had modified her contract. See id. at *1, *6, *8.

Plaintiff in the case at bar alleges to have experienced similar "seesaw representations" as those made in Ohemeng and Lamb-Bowman. Plaintiff asserts that her superiors viewed her favorably, and that she believed that she would receive a longterm contract in spring of 2005. (D.I. 16 at ¶ 13-17, 19) Plaintiff also points out that she never received the required 30-day written notice of nonrenewal of contract. ( Id. at ¶ 21,116) When plaintiff asked administration and human resources about her contract, she was given conflicting responses. ( Id. at ¶ 24, 44) Further, plaintiff was promoted in July 2005 and told that she would become a full time administrator after the end of the 2005-06 school year, suggesting that defendant intended to keep plaintiff in its employ. ( Id. at ¶ 31) These allegations are similar to the situation in Ohemeng, in which plaintiff had excellent performance reviews, and was assigned to teach for the following school year despite representations that his contract was terminal. See Ohemeng, 643 F. Supp. at 1577.

Although plaintiff eventually stopped asking about her contract, she asserts that this decision was not based on having received a definitive answer about the issue, but because she feared for her job. (D.I. 16 at ¶ 45) Assessing the facts in the light most favorable to the plaintiff, it appears that, as in Ohemeng and Lamb-Bowman, defendant did not definitively and explicitly communicate to plaintiff that she would not receive a contract. The first time plaintiff was made aware of any definitive stance on her employment was upon termination on May 8, 2006. ( Id. at ¶ 116) Therefore, plaintiffs claim regarding the nonissuance of a contract is not time-barred.

Despite the fact that termination is a discrete act subject to the statute of limitations, because plaintiffs firing occurred after March 23, 2006, it occurred well within the 300-day look back period and, therefore, is not time-barred. See Morgan, 536 U.S. at 114.

V. CONCLUSION

In sum, the court finds that the DDOL questionnaire does not constitute a charge, and the applicable date for the statute of limitations is March 23, 2006. However, the court also finds that many of plaintiff's claims are not time-barred. Time-barred claims include allegations of wrongful accusation prior to March 23, 2006. These claims are dismissed; however, per Morgan, plaintiff may still put on evidence of these accusations to provide background supporting her remaining claims. See Morgan, 536 U.S. at 113. Further, because defendant made no explicit communication to plaintiff regarding the status of her contract before March 23, 2006, this claim is not time-barred. All other claims following March 23, 2006 may proceed. Lastly, because plaintiff alleged parts of her hostile work environment claim that occurred after March 23, 2006, plaintiff's hostile work environment claim may proceed.

For the aforementioned reasons, defendant's motion to dismiss is granted in part and denied in part. An appropriate order shall issue.

ORDER

At Wilmington this 29th day of July, 2010, consistent with the memorandum opinion issued this same date;

IT IS ORDERED that defendant's motion to dismiss the amended complaint (D.I. 18) is granted in part and denied in part.

CONSTANCIA SIMPSON HAYES, Plaintiff, v. DELAWARE STATE UNIVERSITY, Defendant.

Comments