IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
LAURA GILES, ) ) Plaintiff, ) ) v. ) C.A. No. N22M-02-006 EMD ) TOWN OF ELSMERE, ) ) Defendant. )
Submitted: September 22, 2022 Decided: December 20, 2022
Upon Defendant Town of Elsmere’s Motion to Dismiss GRANTED with leave to amend
Kate Butler, Esquire, Kate Butler Law LLC, Wilmington, Delaware. Attorney for Plaintiff Laura Giles.
Scott G. Wilcox, Esquire, Moore and Rutt, P.A., Wilmington, Delaware. Attorney for Defendant Town of Elsmere.
DAVIS, J.
I. INTRODUCTION
This is a civil action seeking a writ of mandamus and damages regarding a pension plan.1
Plaintiff Laura Giles (“Chief Giles”) submitted a Petition for Writ of Mandamus and a Civil
Complaint (the “Complaint”). The Complaint asks the Court to issue a writ of mandamus
requiring the Defendant Town of Elsmere (“Elsmere”) to allow Chief Giles to participate in the
State of Delaware’s County and Municipal Police and Fire Pension Plan (“State Pension Plan”).
In addition, the Complaint seeks that the admission into the State Pension Plan be retroactive to
1 Plaintiff’s Petition for Writ of Mandamus and Civil Complaint (hereinafter “Compl.”) ¶¶ 63, 65, 69, 73. Chief Giles’ date of hire.2 On April 1, 2022, Elsmere filed Defendant Town of Elsmere’s
Motion to Dismiss (the “Motion”).3 The Motion seeks dismissal of all counts of the Complaint.
For the reasons stated below, the Court will GRANT the Motion with respect to Chief
Giles’ Petition for Writ of Mandamus. In addition, the Court will GRANT the Motion as to
Count I (Breach of the Implied Covenant of Good Faith) and Counts II, III, IV, and V-
Violations of Constitutional Rights. The Court will allow Chief Giles the opportunity to amend
the Complaint and attempt to plead the continuing tort theory raised at the hearing on the
Motion.
II. RELEVANT FACTS
Chief Giles began her career as an Elsmere police officer on November 10, 1986.4 Chief
Giles is the “first female police officer and the only female police officer certified by the State of
Delaware’s Council on Police Training to have ever served as a police officer for the Town of
Elsmere Police Department.”5 Chief Giles retired from being an Elsmere police officer in 2006.6
Because Chief Giles served as an Elsmere police officer for twenty years, Chief Giles began
receiving benefits under the then applicable Elsmere Police Pension Plan (the “Elsmere Pension
Plan”).7
Chief Giles was appointed as Chief of Police for Elsmere on or about April 25, 2011.8
Chief Giles is currently the Chief of Police for Elsmere.9 On June 30, 2011, the Elsmere Pension
2 Id. ¶ 4. 3 Defendant Town of Elsmere’s Motion to Dismiss (hereinafter “Mot.”). 4 Compl. ¶ 7. 5 Id. ¶ 5. 6 Id. ¶ 7. 7 Id. ¶ 8. 8 Id. ¶ 21. 9 Id.
2 Plan was closed to new members.10 Elsmere adopted two pension plans: (1) the Elsmere Police
Secondary Pension Plan (“Secondary Pension Plan”), and (2) the State Pension Plan.11
During a town meeting in 2011, David Craig, a member of the State Office of Pension,
informed Chief Giles that she was not eligible for the State Pension Plan.12 At a town meeting in
February 2018, Chief Giles asked about her ability to enroll in the State Pension Plan.13 Chief
Giles was informed by Mr. Craig that the decision to enroll in the State Pension Plan was
between her and Elsmere.14
In 2020, Chief Giles was reviewing the Town of Elsmere Charter and discovered Article
VII, Section 702(2)(i).15 Section 702(2)(i) of the Town of Elsmere Charter provides, “The Chief
of Police shall be entitled to and shall receive all of the benefits given to all sworn police
personnel including police pension.”16 Mr. Giles, Chief Giles’ husband, is the current Town
Manager for Elsmere and former Chief of Police for Elsmere.17 Chief Giles decided against
contacting her husband, Mr. Giles, for advice “[o]ut of a desire not to appear as though she was
seeking improper benefit by virtue of her marriage to the Town Manager.”18
Chief Giles contacted Tim Snyder (“Mr. Snyder”), the attorney representing the State
Pension Plan, for a legal opinion.19 Mr. Snyder contacted Jim McMackin (“Mr. McMackin”),
the attorney for Elsmere.20 On March 1, 2021, Mr. McMackin sent a letter to Chief Giles
explaining that she was ineligible for the State Pension Plan for the following reasons: (i) Chief
10 Id. ¶ 10. 11 Id. 12 Id. ¶ 28. 13 Id. ¶ 37. 14 Id. ¶ 38. 15 Id. ¶ 46. 16 Id. (citing Town of Elsmere Charter, Article VII, Section 702(2)(i)). 17 Id. ¶¶ 14, 47. 18 Id. ¶ 47. 19 Id. ¶ 48. 20 Id.
3 Giles accepted employment after being informed she could not enroll in a new pension plan; (ii)
Chief Giles was already vested in the Elsmere Pension Plan in 2011; (iii) Elsmere and Chief
Giles have been paying social security since 2011; and (iv) Chief Giles had not been paying into
the pension plan since 2011.21
On July 2, 2021, Chief Giles filed a Charge of Discrimination against Elsmere.22 Chief
Giles alleged that she was consistently denied entry into the State Pension Plan based on her
sex.23 On September 25, 2021, Elsmere filed a Position Statement, where it denied all
allegations of discrimination.24 On November 5, 2021, the Equal Employment Opportunity
Commission issued a right to sue.25
On February 3, 2022, Chief Giles filed the Complaint.26 Chief Giles requests a Writ of
Mandamus to order Elsmere to enter Chief Giles into the State Pension Plan.27 Chief Giles also
asserts the following civil claims:
Count I. Breach of the Implied Covenant of Good Faith,
Count II. Violation of the Delaware Constitution Article I, Section IX, and the Fifth and Fourteenth Amendments of the United States Constitution (Property Interest),
Count III. Violation of the Delaware Constitution Article I, Section IX, and the Fifth and Fourteenth Amendments of the United States Constitution (Due Process),
Count IV. Violation of the Delaware Constitution Article I, Section XXI, and the Fourteenth Amendment of the United States Constitution (Equal Protection), and
Count V. Violation of Delaware Constitution Article XV, Sections IV and X (Emoluments of Office and Prohibition on Disqualification on the Basis of Sex).28
21 Id. ¶ 51. 22 Id. ¶ 54. 23 Id. 24 Id. ¶ 55. 25 Id. ¶ 56. 26 Id. 27 Id. ¶ 60. 28 Id. ¶¶ 63, 67, 70, 74, 78.
4 On April 1, 2022, Elsmere filed this Motion.29 On April 29, 2022, Chief Giles filed a
Response in Opposition to Defendant Town of Elsmere’s Motion to Dismiss the Complaint
under Civil Rule 12(b)(6) (the “Opposition”).30 The Court held a hearing on the Motion and the
Opposition on September 22, 2022. At the conclusion of the hearing, the Court took the Motion
under advisement.
III. PARTIES’ CONTENTIONS
A. THE MOTION
Elsmere moves to dismiss the petition for Chief Giles’ Writ of Mandamus and all civil
claims within the Complaint.31 First, Elsmere argues that the Writ of Mandamus is barred by the
statute of limitations.32 Elsmere contends that because Chief Giles seeks to have her claim
applied retroactively to the date of her hire, the claim arose on April 25, 2011.33 Elsmere
contends that the retroactive application is evidence that the claim is time barred.34 Elsmere also
argues that a writ of mandamus is inapplicable, because the duty to enroll in a pension plan is
discretionary.35 Second, Elsmere argues that Chief Giles’ claim for breach of the implied
covenant of good faith claim is time barred.36 Elsmere contends that even if the claim was not
time barred, Chief Giles has failed to prove fraud, deceit, or misrepresentation to establish a
breach of the implied covenant of good faith.37 Third, Elsmere argues that Chief Giles’ claims
29 Mot. 30 Response in Opposition to Defendant Elsmere’s Motion to Dismiss the Complaint under Superior Court Civ. R. 12(b)(6) (hereinafter “Opp.”). 31 Mot. 32 Id. ¶ 5. 33 Id. 34 Id. 35 Id. 36 Id. ¶ 10. 37 Id. ¶ 11.
5 for violations of constitutional rights are without merit and time barred by the two-year statute of
limitations for personal injuries.38
B. THE OPPOSITION
Chief Giles asserts that she properly pled the causes of action alleged in the Complaint
and that her claims are not barred by the statute of limitations.39 Chief Giles argues that when
she was appointed as Chief of Police for Elsmere in 2011, she was wrongfully deemed ineligible
to join the State Pension Plan.40 Chief Giles contends that Elsmere’s “material
misrepresentation” and “failure to correct” was a breach of Elsmere’s duty of the implied
covenant of good faith and fair dealing as her employer.41 Chief Giles claims that Elsmere’s
breach of duty resulted in violations of Chief Giles’ state and federal constitutional rights.42
IV. STANDARD OF REVIEW
The standard of review upon a motion to dismiss under Civil Rule 12(b)(6) allows for a
broad test of sufficiency.43 The test asks “whether a plaintiff may recover under any reasonably
conceivable set of circumstances susceptible of proof under the complaint.”44 When viewing a
motion to dismiss, the Court (i) accepts all well pleaded factual allegations as true, (ii) accept
even vague allegations as “well pleaded” as long as the opposing party is put on notice, (iii) draw
all reasonable inferences in favor of the non-moving party, and (iv) only dismiss if the plaintiff
would not be entitled to recover under any reasonable circumstances.45 However, the Court must
“ignore conclusory allegations that lack specific supporting factual allegations.”46
38 Id. ¶ 14. 39 Opp. ¶¶ 8, 13, 25. 40 Compl. ¶¶ 1, 3. 41 Opp. ¶ 13. 42 Id. 43 Spence v. Funk, 396 A.2d 967, 968 (Del. 1978). 44 Id. 45 See Central Mortg. Co. v. Morgan Stanley Mortg. Cap. Holdings LLC, 27 A.3d 531. 535 (Del. 2011) 46 Ramunno v. Crawley, 705 A.2d 1029, 1034 (Del. 1998).
6 V. DISCUSSION
Chief Giles has statute of limitations problems. The Court notes that the Complaint seeks
damages and relief related to conduct that occurred as early as April 25, 2011. On April 25,
2011, Chief Giles took on the new position of Chief of Police for Elsmere. The, on June 30,
2011, the Elsmere Pension Plan was closed. Town meetings in 2011 and 2018 involved issues
relating to enrollment in the State Pension Plan. Chief Giles did not undertake any independent
inquiry as to the State Pension Plan until 2020. Chief Giles did not file the Complaint until
February 3, 2022. The Complaint, however, fails to allege any facts that would give rise to
tolling or alike.
As pled, the Court must dismiss certain of Chief Giles’ claims on just statute of
limitations grounds. Chief Giles made arguments during the September hearing that might
support a continuing tort and/or relief that is not retroactive to 2011. For the reasons set forth
below, the Court will grant the Motion, but the Court will also grant leave to amend the
Complaint to allow Chief Giles to restate claims.
A. WRIT OF MANDAMUS
A writ of mandamus is “appropriate only where the plaintiff is able to establish a clear
legal right to the performance of a non-discretionary duty.”47 The writ is only granted when the
right which is sought to protect is clearly established.48 A writ of mandamus is not granted if the
right is doubtful, or the duty is discretionary.49 For a duty to be ministerial, it “must be
47 Remedio v. City of Newark, 337 A.2d 317, 318 (Del. 1975) (citing McCoy v. State ex rel. Allee, Del Ct. Err. & App., 36 A. 81 (1897)). 48 Darby v. New Castle Gunning Bedford Ed. Ass’n, 336 A.2d 209, 211 (Del. 1975) (citing McCoy, 26 A. 81 (1897)). 49 Id.
7 prescribed with such precision and certainty that nothing is left to discretion or judgment.”50
Under 10 Del. C. §8106, a three-year statute of limitation is placed on a cause of action based on
a statute.51 A claim involving the initial right to receive pension may be barred by the statute of
limitations.52 However, once the right to receive a pension is established, the right to receive
each installment is a continuing right.53
Chief Giles argues Elsmere failed to exercise its non-discretionary duty to enter Chief
Giles into the State Pension Plan.54 In July 2011, the mayor and city council of Elsmere enacted
an “opt-out” provision for beneficiaries of the Elsmere Pension Plan.55 The opt-out provision
would allow beneficiaries to participate in the Secondary Pension Plan.56 The Secondary
Pension Plan allowed participants to bridge the gap between the Elsmere Pension Plan and the
State Pension Plan until the police officer became vested and qualified for the State Pension
Plan.57
Elsmere argues that Chief Giles’ Petition for Writ of Mandamus is barred due to the
statute of limitations.58 Elsmere contends that because Chief Giles is seeking to have the writ
applied retroactively to the date of her hire, her claim arose on April 25, 2011.59 Elsmere argues
that it should follow that the right to a claim expired on April 25, 2014.60
The Court finds that the statute of limitations has run for Chief Giles’ Petition for Writ of
Mandamus—as presently pled. While Chief Giles may have a right to join the State Pension
50 Darby, 336 A.2d 209, 211 (Del. 1975) (internal citation omitted). 51 10 Del.C. §§ 8106, 8106(a). 52 Williams v. Levine, 1977 WL 185713, at *1 (Del. 1977) (citing Dillon v. Board of Pension Commissioners, 116 P.2d 37 (Cal. Supr. 1941)). 53 Id. 54 Compl. ¶¶ 4, 59. 55 Id. ¶ 26. 56 Id. 57 Id. ¶ 27. 58 Mot. ¶ 5. 59 Id. 60 Id.
8 Plan, the Complaint alleges that right began on April 25, 2011. Because the statute of limitations
is three years for a cause of action based on a statute, Chief Giles needed to seek the initial right
to the State Pension Plan by April 25, 2014. Chief Giles did not bring this claim until February
2022. In addition, Chief Giles has not plead any facts that support tolling of the three-year
period. Accordingly, the Court GRANTS the Motion as to the Petition for Writ of Mandamus
seeking retroactive relief back to April 25, 2011.
B. BREACH OF THE IMPLIED COVENANT OF GOOD FAITH
Every contract in Delaware has an implied obligation of good faith and fair dealing.61 In
a claim for breach of the implied covenant of good faith, the Court must “extrapolate the spirit of
the agreement through the express terms and determine the terms that the parties would have
bargained for to govern the dispute had they foreseen the circumstances under which their
dispute arose.”62 However, the Court will not imply a contractual obligation where the contract
expressly addresses the issue of the alleged wrong.63 Ultimately, “to state a claim for breach of
an implied covenant of good faith and fair dealing, the Plaintiffs must identify a specific implied
contractual obligation.”64 To constitute a breach of the implied covenant of good faith, the
employee must prove the employer acted with “fraud, deceit, or misrepresentation.”65 A claim
for breach of the implied covenant of good faith has a three-year statute of limitations.66
61 Kelly v. McKesson HBOC, Inc., 2002 WL 88939, *10 (Del. Super. 2002) (citing Chamison v. Healthtrust, Inc., 735 A.2d 912, 920 (Del. Ch. 1999)). 62 Id. 63 Id. (internal citations omitted). 64 Id. (internal citations omitted). 65 Merrill v. Crothall-American, Inc., 606 A.2d 96, 101 (Del. 1992) (citing Magnan v. Anaconda Industries, Inc., 429 A.2d 492, 494 (Conn. Super. 1980)). 66 Schuster v. Derocili, 775 A.2d 1029, 1034 (Del. 2001) (citing Ayres v. Jacobs & Crumplar, P.A., 1996 WL 769331 (Dec. 31, 1996)).
9 In the Complaint, Chief Giles asserts a claim for breach of the implied covenant of good
faith and fair dealing against Elsmere.67 Chief Giles argues Elsmere violated its duty by not
correcting the assertion that Chief Giles could not join the State Pension Plan.68 Chief Giles
contends that she was never asked to waive her right to participate in any current or future
pension plans.69 Chief Giles claims that the first time she was informed that she could not join
the State Pension Plan was by David Craig at a town meeting in 2011.70 Chief Giles maintains
that Mr. Craig, a member of the State Office of Pension, was acting with apparent authority to
bind Elsmere to Mr. Craig’s representation.71 Chief Giles contends she detrimentally relied on
this misrepresentation from Mr. Craig and Elsmere had the “affirmative duty to correct the false
assertion.”72 However, Chief Giles fails to allege that Elsmere or Mr. Craig impeded Chief Giles
from seeking advice from a third-party on whether she had a right to join the State Pension Plan.
Elsmere asserts that Chief Giles claim for a breach of the implied covenant of good faith
is barred by the statute of limitations.73 Elsmere argues the employment relationship between
Elsmere and Chief Giles began on April 25, 2011.74 Elsmere contends any claim for breach of
the implied covenant of good faith as it relates to the State Pension Plan should have been filed
by April 25, 2014.75
Elsmere also contends that Chief Giles has failed to state a claim that she entered her
position as Chief of Police under fraud, deceit, or misrepresentation.76 Elsmere notes that Chief
Giles accepted employment under the condition that she would not join a second retirement
67 Compl. ¶ 63. 68 Id. ¶¶ 29, 30. 69 Id. ¶ 22. 70 Id. ¶ 28. 71 Id. ¶ 29. 72 Id. ¶ 30. 73 Mot. ¶ 10. 74 Id. 75 Id. 76 Id. ¶ 12.
10 plan.77 Also, Elsmere passed a resolution authorizing entry into the State Pension Plan in June
2011.78 Elsmere argues that Chief Giles could not have been misled about her eligibility for the
State Pension Plan, because Elsmere had not yet approved entry into the plan when she was hired
in April 2011.79
As pled, the statute of limitations bars Chief Giles’ claim for a breach of the implied
covenant of good faith. This Court also finds that Chief Giles fails to allege that Elsmere acted
with fraud, deceit, or misrepresentation when she entered her position as Chief of Police. Any
confusion that Chief Giles may have experienced regarding the ability to enroll in a different
pension plan is not evidence of misrepresentation. Chief Giles has not asserted a specific
contractual duty where the implied covenant of good faith can be interpreted. Therefore, the
Court GRANTS the Motion as to Count I.
C. VIOLATIONS OF CONSTITUTIONAL RIGHTS
Chief Giles realleges and relies upon the same facts to support her claims for Counts II,
III, IV, and V.80
1. Count II—Violation of the Delaware Constitution Article I, Section 9, and the Fifth and Fourteenth Amendments of the United States Constitution (Property Interest)
Article I, Section 9, of the Delaware Constitution, provides that courts must be open to
remedy injury to persons or possessions without unreasonable delay or expense.81 This section
also provides that suits may be brought against the State.82
Property interests are not created by the Constitution.83 Instead, property interests “are
created and their dimensions are defined by existing rules or understandings that stem from an
77 Id. 78 Id. ¶ 15. 79 Id. 80 Compl. ¶¶ 61-80. 81 Del. Const. art. 1, § 9. 82 Id.
11 independent source such as state law.”84 Delaware has a two-year statute of limitations for
personal injury actions, which include civil rights actions.85 Further, “to have a property interest
in a benefit, a person clearly must have more than an abstract need or desire for it.”86 The
plaintiff must have actual entitlement to the benefit.87
Chief Giles claims that she has been deprived of her constitutionally protected property
interest under the Delaware Constitution and the United States Constitution.88 Chief Giles
asserts that the pension plan is one of the “material terms of compensation for her employment as
Chief of Police for the Town of Elsmere since April 2011.”89 Chief Giles also argues that she
first became aware of the “misrepresentations upon which she had acted in reliance” in 2020
when she discovered Article VII, Section 702(2)(i)), of the Town of Elsmere Charter.90
Elsmere counters, contending that Chief Giles’ claims for constitutional violations are
time barred by Delaware’s two-year statute of limitations.91 Elsmere also contends that Chief
Giles’ claims for constitutional violations fail to state claims.92 Elsmere claims that the
constitutional provisions which Chief Giles relies on are irrelevant to her claim for eligibility for
the State Pension Plan.93 Finally, Elsmere argues that entry into the pension plan could not have
been a “material term” of her employment in April 2011, because Elsmere did not join the State
Pension Plan until after her date of hire.94
83 Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). 84 Id. 85 10 Del. C. § 8119; see Marker v. Talley, 502 A.2d 972, 975-76 (Del. Super. 1985). 86 Id. 87 Id. 88 Compl. ¶ 65. 89 Id. 90 Id. ¶ 46. 91 Mot. ¶ 14. 92 Id. ¶ 15. 93 Id. ¶¶ 18-20. 94 Id. ¶ 16.
12 The Court finds that Chief Giles’ claim for property interest is time barred by the statute
of limitations. Adhering to Delaware’s two-year statute of limitations for personal injury
actions, Chief Giles’ “actual entitlement” to the benefit of entry into the pension plan ended on
April 25, 2013. Even though Chief Giles claims that she first became aware of Article VII,
Section 702(2)(i), of the Town of Elsmere Charter in 2020, Chief Giles first became aware in
2011 at a town meeting that she would not be able to join the State Pension Plan. As such, a
cause of action for property interest accrued in 2011 and expired in 2013.
2. Counts III and IV—Violations of the Delaware Constitution Article I, Sections 9 and 21, and the Fifth and Fourteenth Amendments of the United States Constitution (Due Process and Equal Protection)
The Due Process clause prevents government officials from abusing their power by
oppressing others.95 To decide whether a substantive due process was violated, the court must
decide if the government action “shocks the conscience.”96 Substantive due process analysis
includes an inquiry as to whether an asserted right “has any place in our Nation's traditions.”97
The Equal Protection clause provides that no state “shall deny to persons within its
jurisdiction the equal protection of the laws.”98 To establish a claim for a violation of equal
protection rights, a plaintiff must show (1) they are a member of a protected class; (2) they were
treated differently from a similarly situated person who is not a member of that class; and (3) the
difference in treatment was due to their race, gender or membership in that protected class.99
95 Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). 96 Id. at 847. 97 Washington v. Glucksberg, 521 U.S. 702, 722 (1997). 98 U.S. Const. amend. XIV. 99 See Bradley v. U.S., 299 F.3d 197 (3d Cir.2002)
13 Chief Giles seeks to enforce her property interest rights under the fundamental notions of
due process and equal protection.100 Elsmere asserts that Chief Giles’ claims are without merit
and are barred by the running of the statute of limitations.101
This Court finds that Chief Giles has not provided any reasonably conceivable set of
circumstances that support her contention that Elsmere violated her constitutional right to due
process or equal protection. Chief Giles does not provide any set of facts that would lead this
Court to find that Elsmere’s conduct shocks the conscious. Further, Chief Giles does not provide
any evidence to suggest that she was treated differently than every other Elsmere employee. The
Complaint sets out a scenario where, in 2011, every Elsmere employee was given the same
information about the pension plans and could choose how to proceed with their preferred plan.
3. Count V—Violation of Delaware Constitution Article XV, Sections 4 and 10 (Emoluments of Office and Prohibition on Disqualification Based on Sex)
Article XV, Section 4, of the Delaware Constitution prohibits the adoption of a law that
would diminish the salary or emoluments of a public officer after their election or
appointment.102 Article XV, Section 10, of the Delaware Constitution states, “No citizen of the
State of Delaware shall be disqualified to hold and enjoy any office, or public trust, under the
laws of this State, by reason of sex.”103
Chief Giles claims that Elsmere deprived her of entry into the pension plan because of
her sex.104 Chief Giles asserts that she has been “intentionally paid less than a similarly situated
male employee based on an assumption that [Elsmere] would be ‘saving money’ by hiring a
100 Opp. ¶ 25. 101 Id. n.1. 102 Del. Const. art. 15, § 4. 103 Del. Const. art. 15, § 10. 104 Compl. ¶¶ 76-80.
14 woman as Chief of Police who happened to be married to the Town Manager.”105 Further, Chief
Giles claims that she experienced “shame and humiliation” after realizing that she had been
deprived of entry into the pension plan “by virtue of the fact she was a woman… .”106
Elsmere asserts that Article XV, Sections 4 and 10, of the Delaware Constitution do not
apply to Chief Giles’ claim of gender discrimination.107 Elsmere contends that Article XV,
Section 4, cannot apply here, as Chief Giles is not a public officer, nor was a law passed that
diminished her salary or emoluments.108 Elsmere also argues that Article XV, Section 10, cannot
apply here, as she has presented no facts to support her claim that she was deprived of entry into
the pension plan due to her sex.109
This Court agrees with Elsmere. The Court finds that Chief Giles does not allege fact
that support a reasonably conceivable set of circumstances that Elsmere discriminated against her
by reason of sex. The Court notes that Chief Giles is female, but Chief Giles does not allege
facts that support her claim that Elsmere purposefully discriminated based on sex. Chief Giles’
assumption that she was deprived of entry into a pension plan because she is a woman is not
sufficient to support a finding that Elsmere disqualified her from joining the pension plan for
being a woman.
VI. CONCLUSION
For the reasons stated above, the Court GRANTS the Motion. However, the Court will
grant Chief Giles leave to amend the Complaint. As plead, Chief Giles was on notice of
potential claims as early as 2011. Chief Giles has not plead any facts that support any tolling of
applicable statutes of limitation. At the hearing, Chief Giles made an argument regarding
105 Id. ¶ 42. 106 Id. ¶ 44. 107 Id. ¶¶ 19-20. 108 Id. ¶ 19. 109 Id. ¶ 20.
15 continuing torts and/or petitioning for mandamus as to a present right to join the State Pension
Plan. The Court will allow Chief Giles twenty (20) days to amend the Complaint to assert claims
as argued at the hearing but not previously pled.
IT IS SO ORDERED
Dated: December 20, 2022 Wilmington, Delaware
/s/ Eric M. Davis Eric M. Davis, Judge
cc: File&ServeExpress