October 2021

Developments at the Department of Labor
Over the summer of 2021, a new Deputy Attorney General was appointed to represent the Delaware Department of Labor (DOL) primarily focused on ‘protecting’ the Delaware Workers’ Compensation Fund. Simultaneously, new policies and procedures were instituted. By letter dated July 14, 2021, the DOL stated it would deny the filing of Termination Petitions if there were no First Report of Injury and/or Agreement in the Board’s file; likewise, the DOL indicated it would consider Motions to Compel the filing of such documents with potential fines for noncompliance against employers/ carriers.
By memorandum dated July 16, 2021, the DOL indicated it would be objecting to Termination Stipulations and Orders that did not include reimbursement to the Workers’ Compensation Fund. These new WC Fund positions resulted in more litigation before the Industrial Accident Board relating to Termination Petitions.
In the case of Kristopher Small v. Fieldstone Golf Club, IAB No. 1492931, the Fund Attorney filed a Motion to Dismiss the Termination Petition, while also requesting reimbursement of all benefits paid by the Fund. The Fund Attorney’s rationale was that claimant had gone back to work during pendency of the Petition and thus consented to termination. One of our workers’ compensation partners, Nicholas Bittner, Esq., opposed the Motion, which resulted in the parties appearing at an evidentiary Hearing. In an Order dated 09/15/21, the Industrial Accident Board agreed with our legal arguments and denied the Fund Attorney’s Motion to Dismiss, finding that an active controversy still existed, which rendered dismissal inappropriate.
On September 16, 2021, by memorandum, the DOL advised that it is in the process of “revamping” all forms, and that it will only be accepting the revised forms once this task has been completed. The DOL outlined its intent to reject any forms that have been modified without the Department’s authorization. It is unclear at this time whether the DOL will consider substantial compliance (i.e., minor deviations in the forms so long as all required information is present) when accepting or rejecting documents. More information will be forthcoming once the DOL has published the new documents; it has promised that advance notice will be given before the strict requirements come into effect. Once that happens, care should be given to ensure compliance to avoid fines and rejected Petitions.
On the horizon, the Delaware Industrial Accident Board has scheduled a public meeting for October 15, 2021, at 10 AM by Zoom Meeting. The agenda includes introduction of new Board members; SB 94 – review and potential impact on IAB operations; and DSBA request on rules changes. Our office will be attending, and we will update you as to any farther developments. In the meantime, please contact any of our workers’ compensation attorneys if you have any questions or if we can be of further assistance.
Plaintiff Survives Defendants’ Motion for Summary Judgment on All Counts,
Except One
Plaintiff began her employment with one of the Defendant in 2008 as a Program Administrator in Real Estate and Housing. In May of 2017, another Defendant snuck behind Plaintiff and sexually assaulted her. Plaintiff immediately reported the incident to her supervisor, who did not address the incident. Plaintiff continued to be harassed by Defendant four other times, which consisted of Defendant attempting to talk to her and making sexual noises.
Plaintiff’s Employer informed her that the investigation was conducted, and the matter was closed.  The Employer Defendant went on to say that they had no jurisdiction over the assailant because he was a non-employee. The Employer instructed the Plaintiff to file a police report. The Plaintiff filed a police report in May of 2017 but was told her report was not officially file.  The Plaintiff filed a complaint in 2020 against her Employer and the assailant for sexual harassment, hostile work environment, intentional infliction of emotional distress and invasion of privacy. Defendants moved for summary judgment.
As for Plaintiff’s §1983 claim for sexual harassment and hostile work environment, the Defendants argued that the Plaintiff has not alleged facts sufficient to show purposed discrimination based on her gender, that certain Defendants are entitled to qualified immunity and that the Plaintiff has not alleged facts sufficient to establish liability under 1983.
To succeed on her §1983 claim, Plaintiff must prove “the existence of purposeful discrimination” by demonstrating that she “received different treatment from that received by other individuals similarly situated.” To prove sexual discrimination, Plaintiff must prove that she was treated disparately based on her gender. The Court denied the Defendant’s motion on this claim because Defendants did not provide any evidence to support their argument and the Plaintiff is entitled to obtain discovery.
To prove individual liability, “there must be some affirmative conduct by the individual that played a role in the discrimination.” Qualified immunity protects government officials from insubstantial claims unless Plaintiff can show that the official violated a statutory or constitutional right and that the right was ‘clearly established’ at the time of the challenged conduct.” Since the parties dispute whether the Defendants appropriately responded to Plaintiff’s complaints of sexual harassment, the Court found that there is a genuine dispute of material fact. Therefore, the Defendants’ summary judgment motion on this issue was denied.
As for Plaintiff’s hostile work environment claim, the Plaintiff must prove that she suffered intentional discrimination because of her sex, the discrimination was pervasive and regular, the discrimination detrimentally affected her, the discrimination would detrimentally affect a reasonable person in that position and the existence of respondent superior liability. For sexual harassment to be actionable, it “must be sufficiently severe or pervasive ‘to alter the conditions of the victim’s employment and create an abusive working environment.”
The Court found that Defendant assailant’s physical contact with Plaintiff was unacceptable, but it did not constitute severe or pervasive harassment. Therefore, the Defendant’s motion on this issue was granted.
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
Davis v. City of Wilmington, et al, 2021 WL 4477021, at *1 (D. Del. Sept. 30, 2021)
Defendants Averring the Doctrines of Res Judicata and Collateral Estoppel – While Fancy – Not Persuasive to the Court
Plaintiff was allegedly bitten by Defendant’s dog while he was employed as a landscaper. Subsequently, Plaintiff made a claim for Workers’ Compensation benefits and ultimately litigated the claim before the Industrial Accident Board (IAB). Then, Plaintiff sued Defendant.
Defendant moved to dismiss the litigation asserting the Plaintiff previously brought the same case before the IAB and therefore was barred by the doctrines of res judicata and collateral estoppel from bringing the civil action.
The Delaware Superior Court reviewed the Defendant’s position ad seriatim. The Court found that res judicata did not bar Plaintiff’s civil litigation because it involved different parties and different causes of action than the IAB case. Similarly, Plaintiff was not collaterally estopped from bringing the civil litigation because his negligence suit was not based on the same factual issues as his prior workers’ compensation case.
Plaintiff’s IAB claim was against his employer pursuant to the Delaware Workers’ Compensation Act. Therein, Defendant’s negligence was not presented, litigated, or essential to the claim. Therefore, neither doctrine barred the suit and the Defendant’s Motion to Dismiss was denied.
For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.
Timmons v. Collett, 2021 WL 4452118 (Del. Super. Ct. Sept. 29, 2021).
Delaware Achievers and Innovators Under the Age of 40! (DBT40)
Congratulations to Gregory Skolnik, partner, recipient of the 2021 Delaware Achievers and Innovators Under the Age of 40! This honor is awarded to a select group of the region’s best and brightest young professionals, all under the age of 40, who are making a difference with their intelligence, initiative, and innovation. These individuals are recognized for their leadership, vision, community service and professional accomplishments.
Best Lawyers 2021
Congratulations to both Maria Paris Newill and Patrick Rock, partners, for being recognized in the 28th edition of the Best lawyers in America. Mr. Rock for his work in litigation defense and Ms. Newill for workers’ compensation for the employer.
John Ellis, Partner, was thrilled by his stunning win at Wimbledon. His talent for tennis is so great that “The Champions” did not stand a chance!
Please contact Page Chase, Firm Administrator, to submit exciting news including, promotions, adjuster updates, accolades, accomplishments, and the like. You may also submit ads for open positions.