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THE NEUBERGER FIRM
ATTORNEYS AND COUNSELLORS AT LAW

TWO EAST SEVENTH STREET SUITE 302 WILMINGTON, DELAWARE 19801-3707
WWW.NEUBERGERLAW.COM EMAIL: [email protected]

THOMAS S. NEUBERGER, ESQUIRE STEPHEN J. NEUBERGER, ESQUIRE

PHONE: (302) 655-0582 FAX: (302) 655-9329

FILED UNDER SEAL October 19, 2005 The Honorable Gregory M. Sleet United States District Court District of Delaware 844 King Street Wilmington, DE 19801 RE: Conley v. Chaffinch, et al., Civil Action No. 04-1394-GMS Request for an Emergency Chambers Conference Via CM/ECF Filing

Dear Judge Sleet:

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Respectfully submitted, /s/ Thomas S. Neuberger Attorney for Plaintiff enclosures cc: Stephen J. Neuberger, Esq. (by hand) Ralph K. Durstein, Esq. (via E-mail and U.S. Mail) Stephani Ballard, Esq. (via E-mail and U.S. Mail) James E. Liguori, Esq. (via E-mail and U.S. Mail)

Conley \ Letters \ Sleet.06

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In the Matter Of:

Conley v. Chaffinch, et al.
C.A. # 04-1394-GMS

--------------------------------------------------------------------Transcript of:

Colonel L. Aaron Chaffinch
June 6, 2005 -----------------------------------------------------------------------Wilcox & Fetzer, Ltd. Phone: 302-655-0477 Fax: 302-655-0497 Email: [email protected] Internet: www.wilfet.com

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Conley Colonel L. Aaron Chaffinch

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CAPTAIN BARBARA L. CONLEY, ) ) Plaintiff, ) ) v. ) ) COLONEL L. AARON CHAFFINCH, ) individually and in his official ) capacity as the Superintendent, ) Delaware State Police; LIEUTENANT ) COLONEL THOMAS F. MACLEISH, ) individually and in his official ) capacity as the Deputy Superintendent,) Delaware State Police; DAVID B. ) MICHELL, individually and in his ) official capacity as Secretary of the ) Department of Safety and Homeland ) Security, State of Delaware; and ) DIVISION OF STATE POLICE, DEPARTMENT ) OF SAFETY AND HOMELAND SECURITY, ) State of Delaware, ) ) Defendants. )

Civil Action No. 04-1394-GMS

Deposition of COLONEL L. AARON CHAFFINCH taken pursuant to notice at the law offices of The Neuberger Firm, P.A., 2 East 7th Street, Suite 302, Wilmington, Delaware, beginning at 9:35 a.m. on Monday, June 6, 2005, before Kathleen White Palmer, Registered Merit Reporter and Notary Public. APPEARANCES: THOMAS S. NEUBERGER, ESQUIRE THE NEUBERGER FIRM, P.A. 2 East 7th Street - Suite 302 Wilmington, Delaware 19801 for the Plaintiff --------------------------------------------------WILCOX & FETZER 1330 King Street - Wilmington, Delaware 19801 (302) 655-0477
Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477

Case 1:04-cv-01394-GMS
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APPEARANCES (Continued): JAMES E. LIGUORI, ESQUIRE LIGUORI, MORRIS & YIENGST 46 The Green Dover, Delaware 19901 for Defendant Colonel L. Aaron Chaffinch RALPH K. DURSTEIN, ESQUIRE STEPHANI J. BALLARD, ESQUIRE DEPARTMENT OF JUSTICE 820 North French Street Carvel State Office Building Wilmington, Delaware 19801 for Defendants Lieutenant Colonel Thomas F. MacLeish, David B. Mitchell, and Division of State Police ALSO PRESENT: CAPTAIN BARBARA L. CONLEY ----COLONEL L. AARON CHAFFINCH, the witness herein, having first been duly sworn on oath, was examined and testified as follows: BY MR. NEUBERGER: Q. Could you state your full name for the record? A. Aaron Chaffinch. Q. Colonel Chaffinch, my staff or myself, we've taken your deposition on other occasions; isn't that correct? A. Yes, sir.

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understand, just ask me and I'll be glad to rephrase it. Is that okay? A. Yes, sir. MR. NEUBERGER: Let's do this. Let's mark this as Plaintiff's Exhibit Number 1 and then we'll be referring back and forth to this. Let me give a copy to counsel. It's a copy of the First Amended Complaint in the action. (Plaintiff's Exhibit 1 was marked for identification.) BY MR. NEUBERGER: Q. Colonel, I'm going to ask you some questions about how long you were with the force and how your career, your assignments might have tracked assignments that Captain Barbara Conley had. Okay? If you turn to paragraph 10 of that document that's in front of you on page 4, you can see there in that paragraph a listing that Barbara Conley prepared at an earlier time of her assignments starting as a patrol trooper at Troop 5 in Bridgeville in 1982 at the bottom. Do you see that? A. Yes, I do. Q. Then she works all the way up to captain, director of traffic control section in 2001. Do you see
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Q. You've even testified in two federal court cases that I was involved in; is that right? A. Yes, sir. Q. I called you as a witness in those cases; right? A. Yes, sir. Q. Now, you understand, based on that experience, that if there's any question I ask you today and any answer you give, and I call you at trial and you say something different, I can point that out to the judge and jury? A. Yes, sir. Q. You know that. Okay. Are you taking any medications or anything that would interfere with your ability to remember things? A. I don't believe so. Q. You don't take blood pressure, heart medicine, things like that? A. I don't think it would affect my memory, I don't believe. Q. But you are not on anything odd or something that affects your memory that you know of? A. Not that I'm aware of. Q. If I ever ask you a question that you don't

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that? A. Yes, sir. Q. Let me just ask you a few questions about her history. Now, she indicated that she joined the force as a patrol trooper in Bridgeville in 1982 and she'll testify to that fact. Were you assigned to Bridgeville at that time? A. Yes, sir. Q. I think she's indicated that she believes that when she started in Bridgeville, she was a patrol trooper and you would have been a trooper first class assigned in Bridgeville. Does that sound about right? A. That's correct. Q. Then she indicates she was in Bridgeville from 1982 to 1983? MR. LIGUORI: I think it's '93, Tom. MR. NEUBERGER: Yes. Thank you, Jim. All right. BY MR. NEUBERGER: Q. She has indicated during that period of time there was a time when you were assigned at Bridgeville, also? A. Part of that time, yes, sir.

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A. You mean that I may have inherited from the previous superintendent? Q. Yes. A. Not to my knowledge. Q. I know, for example, that with reference to lieutenants and sergeants, there's testing and there's bands and things like that. At that time the Delaware State Police was using that process for those ranks; right? A. For sergeant, lieutenant, captain, yes. Q. And for captain, too? A. Yes. Q. I remember seeing information about boards of people who might interview captain candidates. A. Okay. Q. That's true, isn't it? A. Yes, sir. Q. Now, for majors there wasn't that kind of a process? A. No, sir. Q. I think you're telling me that for majors there was no process that you inherited from any of your predecessors as far as filling those two major vacancies? A. That's correct.
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specific operational background? A. Well, I think it goes without saying you'd have to be a captain. Q. Sure. A. You know what I mean. So that is one parameter, you know. So you look at the captains in the agency to make your selection and for the superintendent. And certainly education and background and experience and tenure all came into play with any selections that I made for executive staff people. Q. So you're saying that when you had to select anybody to be part of the executive staff, you considered education, background, experience, and tenure? A. That's correct. Experience within the agency. Q. While that wasn't found in any preexisting written document, those are factors you used? A. That's correct. Q. I guess I'm trying to find out: Were there other factors you used besides those four? A. Well, by background I would mean where they have been within their tenure as a trooper based on what position I'm filling. I think you understand that. That somebody that had been in an administrative position but not necessarily in an operational position probably
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Q. Are you telling me that there's no process in the union contract between the State Police and the union that applies to filling the vacancies? A. I'm not telling you that, no. Q. Is there anything in the union contract? A. Not to my knowledge. Q. I know there's that handbook, the Delaware State Police rules and regulations, it's like a two-volume blue thing I've seen with rules and regulations about the State Police. You are aware of that book; right? A. The administrative manual and the divisional manual. Q. In those two manuals, was there any process that guided your selection of the two majors for the positions we are talking about? A. I think probably there may be something in there about at the discretion of the superintendent, but there's not any specific process, no. Q. So, for example, there was no preexisting rule in writing that required that anybody selected for major have a certain educational background? A. No, sir. Q. There wasn't anything in writing that required that a person who was selected for major have any

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wouldn't get an operational job. You see what I'm saying? Those kind of things come into play with any selections that I would make for staff level positions. And compatibility with other members of the executive staff certainly would come into play, as well. Q. I'll put down as another factor compatibility with the other members of the executive staff. A. Yes. Q. So that gives me five categories. Were there any others that you considered? A. Not that I can recall. Q. I remember seeing in some of the other cases affidavits or testimony talking about as people rise to higher management levels in the State Police, it's important that they have operational experience, meaning like in patrol and actual on-the-road type experience. That's a fair statement, isn't it? A. That's one very important facet, yes. Q. So that's important. Okay. For example, with respect to Captain Barbara Conley, we know from paragraph 10 on page 4 of the complaint that's in front of you that she was a patrol trooper for eleven years at Troop 5. Do you remember that?

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promotion from the Secretary of Safety and Homeland Security James Ford, no. Q. So if I asked you for the record what were the reasons for selecting Hughes, what would you explain as the reasons why you selected Hughes? A. I don't know if I can tell you exactly the five that are there. Tenure, background, education -Q. The five are: First was education, second is background, third is experience within the Delaware State Police, fourth is tenure, and fifth is compatibility with other members of the executive staff. Okay? With that as a help, what were the reasons why you selected Major Hughes? A. Okay. Well, his tenure within the agency was very well rounded. He -- like I explained earlier, he had been to the academy as the assistant director of the academy, so he had been involved in training. He'd been in special investigations as a drug officer, so he had experience in criminal investigations. He had been a patrol sergeant and run a shift at Troop 7. He had been a traffic lieutenant at Troop 5. He had been a troop commander at Troop 5. He was a graduate of the FBI National Academy. He attained a master's degree in public administration. And he had worked his entire
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against anybody in the agency as far as work and experience on the Delaware State Police. Q. It's just that today is the time for you to give all the reasons. A. I suppose it is. Q. So are there any other reasons why you selected him over the other people? A. Not that jump right out at me. I think I've hit on them all. Q. Now, if we go to Major Eckrich, how about giving me the reasons why he was selected for the position? A. Okay. From education standpoint, he's got a master's -- a bachelor's and a master's degree. He's a graduate of Southern Police Institute in Louisville, Kentucky, which is a command school for law enforcement administrators. He's -- he had worked patrol. He had worked as a patrol supervisor, a shift commander. He had worked at both as a criminal lieutenant and a traffic lieutenant. And he'd been a troop commander. And I had worked closely with him and I knew that he would be loyal and -- loyal to me and we would be a good team to be a part of the executive staff. Q. You mentioned loyal two times, so I do want to ask you about that.
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career in Kent and Sussex counties and he was familiar with the area and the other troopers and the other administrators of those troops. Q. Are there any other reasons? A. I thought he would be compatible with the other staff members. I think I've hit -- I hit on experience. I hit on his background. I hit on his tenure and his education. So I guess that there's not any others. Q. I'm just trying to be thorough. A. Loyal to the superintendent. Q. Excuse me? A. Loyal to the superintendent. Q. Is it fair to say that that's an additional factor, or is that just within the other ones? A. That's within the others. Q. So loyal to the superintendent. What do you mean by that? A. Well, I had worked close with him and I knew that he would support me in my position as superintendent. He would also do a good job. He's always been a go-getter. He was one of the biggest workers on the road when he was on the road. He wrote his share of traffic citations. And he -- you know, he did a lot of criminal work. And I'll put his record up

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You worked with Barbara Conley over your career, too? A. Yes, I have. Q. Is there any reason for you to think she wouldn't be loyal to you if she was selected? A. No, there's not. Q. So are they all the reasons for Major Eckrich? A. The other reason that we talked about earlier is the fact that he had been in that position as a lieutenant and that is a -- that is a large factor in my decision. Q. So just so you understand I'm being fair with you, if there's anything else you said earlier, we'll include that in reasons why he was selected. Okay? A. Yes, sir. Q. Is there anything else that you remember was a reason why he was selected? A. No, sir. Q. Did you look into his disciplinary record? Let's say Eckrich right now. Did you check and see whether he had any violations, suspensions, or things like that in his record? A. I'm pretty sure he doesn't have any, but I couldn't tell you exactly for sure, but if he has

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

CAPTAIN BARBARA L. CONLEY, Plaintiff, v. COLONEL L. AARON CHAFFINCH, individually and in his official capacity as the Superintendent, Delaware State Police; LIEUTENANT COLONEL THOMAS F. MACLEISH, individually and in his official capacity as the Deputy Superintendent, Delaware State Police; DAVID B. MITCHELL, individually and in his official capacity as Secretary of the Department of Safety and Homeland Security, State of Delaware; and DIVISION OF STATE POLICE, DEPARTMENT OF SAFETY AND HOMELAND SECURITY, STATE OF DELAWARE, Defendants.

: : : : : : : : : : : : : : : : : : : : : :

C.A.No.04-1394-GMS

PLAINTIFF'S OPENING BRIEF IN SUPPORT OF HER MOTION TO BIFURCATE THE TRIAL OF COUNT ONE FROM COUNTS TWO AND THREE OR IN THE ALTERNATIVE TO SEVER COUNT ONE FROM COUNTS TWO AND THREE

THE NEUBERGER FIRM, P.A. THOMAS S. NEUBERGER, ESQ. (#243) STEPHEN J. NEUBERGER, ESQ. (#4440) Two East Seventh Street, Suite 302 Wilmington, DE 19801 (302) 655-0582 [email protected] [email protected] Dated: September 16, 2005 Attorneys for Plaintiffs

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counts, especially where the two trials will be successive and within the original ten days allotted to try the entire case. STATEMENT OF FACTS I. Count One - Gender Discrimination in the Denial of Two Promotions to Major. A. The Prima Facie Case. At his deposition defendant Chaffinch admitted the elements of the prima facie case. Two vacancies for promotion to Major existed in March and July of 2003. Plaintiff and all captains were considered and found to be "qualified" for these spots. But the promotions went to two males over plaintiff, a female. (Chaffinch 144-145, 183, 184-185; Dixon 93-95; Compl. & Ans. ¶¶ 89,58,61; A12,16,36-38,117,127,155-156). Plaintiff was even more qualified for the position than the two comparators. (Dixon 93-95; see Marcin 39, 49-51; Baylor 55; Pepper 57-59, 61, 65, 73-74; A57-59,61-62,76,78-79,155-156,178). B. The Legitimate Non-Discriminatory Reason. Chaffinch claims he promoted the most qualified person using five or six discretionary factors: education, background, experience, tenure, compatibility and personal loyalty to him. (Chaffinch 148-149, 179; A118,126). There were no written Orders, policies, restrictions or guidelines whatsoever on the exercise of his discretion regarding these newly created factors. (Chaffinch 145146, 168-169; A117-118,123). But as Lt. Col. Thomas Marcin testified, the process followed by the Colonel violated mandatory procedural requirements imposed on the DSP by Governor Minner and State Personnel Director Lisa Blunt-Bradley. (Marcin 38, 40, 29-37; A73-75). C. Fuentes Prong 2 in a Pretext Case - The Weight of the Evidence Proves Gender Discrimination. Through Chaffinch's own admissions and testimony of those

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who worked closely with him over the years, the record contains abundant evidence which a reasonable jury can accept to conclude that the denial of these two promotions was gender based. Both circumstantial and direct evidence of illicit intent exists. These categories of evidence follow. 1. The two promotions at issue were procedurally irregular. Governor Minner and her agent State Director of Personnel Lisa Blunt-Bradley in December 2001 imposed mandatory procedural requirements on all DSP promotions, including to Major. (Marcin 43-44, 39, 29-38, A73-77). Chaffinch defied these obligations which are designed to ensure procedural regularity in the process. (Marcin 41; Chaffinch 172; Conley 44-46; Chaffinch 127-128, 132; A76,113-114,124,444-446).1 Former Superintendent Gerald Pepper explained that numerous instances of Chaffinch's misconduct violate written Policies, Standing Orders and training by the DSP and that such conduct by Chaffinch was impermissible both on and off duty. (Pepper 30-40; A53-55). As present Col. MacLeish also admitted, police officers are "expected to conform to a higher standard of conduct than an ordinary citizen is expected to." (MacLeish 21-22; PX15; A196-197,374). Troopers "should conduct [their] private life above reproach," (MacLeish 25; A197), and regardless of whether they are on or off duty, they are to conduct themselves in a manner which will reflect favorably on the DSP. (MacLeish 38; Pepper 38-39; A55,201).2 Chaffinch has verbally stated more than once that he does not believe that females in general should even serve as troopers, (Dixon 99-100; A57), let alone as a Major. While on duty, he tells people that "women are nothing but trouble" and "women are a pain in the ass." (Dixon 77-78; see Pepper 28-31; A52-

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Chaffinch believes he can get away with anything because, as he openly brags, his close relationship with Delaware State Senator Thurman Adams will protect him. (Dixon 64-65; A148). "Uncle Thurman ... would take care of him no matter what." (Dixon 64-65; A148). "[I]f he needed anything done, he would just go to ... the Thurmanator, and it would be done." (Dixon 65; A148). Rule 4 of the DSP Rules and Regulations requires the same. (PX16; A381). Article 6 of the DSP Code of Ethics requires that an officer "lead the life of a decent and honorable person. ... [H]e will so conduct his private life that the public will regard him as an example of stability, fidelity, and morality." (PX15; A378). -42

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53,151-152). 5. Chaffinch also admits that he publically recites a long stereotypical song or poem (PX 2; A357) which indicates that all the problems of society are the fault of the Biblical person "Eve," and that it is men, symbolized by "Adam," who have to bear the penalty for women's mistakes. (Chaffinch 25-33; Conley 11-13; Downes 15; Dixon 16-18; see Pepper 35; A87-89, 136-137,186,411-413). Chaffinch also has voiced the sexual stereotype to plaintiff and others that two women cannot work together in the same office. (Conley 13-15; Baylor 29; A171,413-415). He denies this. (Chaffinch 68; A98).3 Chaffinch also has allowed another trooper, in his presence and when he had operational authority over the trooper, to disrespect plaintiff by applying the sexually offensive nickname "Puss" to her. (Conley 31-32; Dixon 48-50; Chaffinch 86; A103,144-145,431-432). He also publically refers to plaintiff by the sexually offensive and stereotypical nickname "Puss." (Dixon 49; see Pepper 29-30; A52-53, 144). Chaffinch denies this. (Chaffinch 83; A102).4 He also calls her "a bitch." (Baylor 31; see Pepper 29; A52,172). Chaffinch has allowed other troopers in the headquarters complex to disrespect plaintiff, who had the rank of captain, and to direct wolf whistles towards her. (Conley 32-34; Dixon 51-53, 112; A145,160,432434). He denies this. (Chaffinch 84; A102). He also has disrespected the first female captain in the Division (plaintiff was the second) by publically nicknaming her "Norman," the name of a most wanted fugitive. (Conley 35-36; Dixon 55-56, see Pepper 32; A53, 146,435-436). Chaffinch denies this. (Chaffinch 92, 94; A104-105). Chaffinch even has asked plaintiff private details of her sex life. (Conley 34-35; Dixon 53; A145,434-435). He denies this. (Chaffinch 92; A104). He also repeatedly has told plaintiff over the years about how she looks in a black bathing suit and that he wants to move in on her, implying have

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But as now retired Major Joseph Swiski, who was a member of Chaffinch's own inner circle Executive Staff, has testified, Col. Chaffinch "has a reputation for not being very truthful." (Swiski 57; A498).
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sexual relations with her. (Conley 46-47; A446-447). 14. One day Chaffinch saw plaintiff in a red dress and said he "would do" her. (Dixon 60-61; A147). Chaffinch also has purchased presents, such as gold earrings with little hearts on them, for plaintiff, and applies "cutesy" nicknames to her. (Conley 46-47; A446-447). The record also contains five gender based and patently offensive sexually charged limericks which reveal a demeaning attitude towards women on the part of Chaffinch. (PX 3,4; see Pepper 35-37; A54,357-358).5 Chaffinch also admitted he belongs to a private membership organization which denies membership to women and blacks. (Chaffinch 14; see Conley 7-11; Dixon 13-15; Baylor 27; A85,171,135-136,407-411). Chaffinch also tells jokes all the time. (Downes 21; see Chaffinch 64, A97,169). Plaintiff testified that 50% of his jokes are "inappropriate or demeaning to some group be it women, or blacks." (Conley 13; A413). Captain Dixon testified it is more like 70% of the time that his jokes are offensive. (Dixon 36; A141).6 Chaffinch himself also admitted that he was officially disciplined as a major for telling a sexually explicit joke about masturbation during a co-ed sensitivity training session. (Chaffinch 34-37; Conley 16-18; Dixon 2930; Pepper 13-17; A48-49,90,139-140,416-418). He also was forewarned that he would be held accountable for his off duty conduct when he was disciplined earlier in his career for being the senior

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Chaffinch admits he frequently recounts these limericks in mixed company but claimed he does not do so at work, in an attempt to claim they reveal nothing of his mind set at work. (Chaffinch 41-59; A91-96). But various witnesses have testified in detail that he does recite them, even in the workplace. (Conley 18-23; Dixon 18-26; Downes 16-18; Baylor 29-30; A137139,171-172,186-187,418-423). As other officers also testified, Chaffinch also told these sexually explicit limericks while representing the DSP at national conferences for Operation CARE. (Baylor 39-42; Dixon 75; A151,174-175). In Capt. Dixon's words, "any time you would have contact with [Chaffinch], it seems like he would have a new joke, and more times than not, they were dirty jokes." (Dixon 24-25; A138). Defendant MacLeish testified that offensive jokes or other conduct of a sexual nature should have no place in the workplace. (MacLeish 50; A204). Such inappropriate joking and improper workplace behavior also violates the plain terms of the DSP's Sexual Harassment Policy. (PX16; A391). -66

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officer present when a female trooper disrobed and removed her blouse while dancing on a table at a private party. (Chaffinch 69-71; Dixon 3840; see Pepper 7-13, 25; A48-49,51,98-99,142). 21. Chaffinch also publically and in mixed company uses a nickname for his penis and brags that he has "something extra," referring to his penis. (Conley 26-30; Dixon 41-44, 80-81; A142-143,152,426-430). He denies this. (Chaffinch 72-73, 80; A99,101). But he does admit that earlier in his career he also publically named the patrol shift which he headed the "cocksters." (Conley 29-30; Dixon 57; Chaffinch 102-104; A107,146,429430). When he was the commander of Troop 5, Chaffinch installed mirrors in his office and in the bathroom so he could watch himself masturbate. (Dixon 79; A152). He denies this. (Chaffinch 65; A97). Chaffinch has publically nicknamed a female employee of the Office of Highway Safety "Trish the Dish," meaning "Trish the delicacy. You know what the connotation is there." (Conley 36-37; see Dixon 57-58; Baylor 32; Chaffinch 97-99; A105-106,146-147,172,436-437). Chaffinch also has commented publically about various women in the headquarters building, stating "oohh she tears me up" or he "would love to do her." (Dixon 60; Conley 38; Baylor 32-33; A147,172,438). He denies this. (Chaffinch 100; A106). He has publically discussed how he would like to watch a female trooper masturbate for a male trooper. (Dixon 44-47, 110; A143-144,160). Chaffinch also refers publically to another secretary in headquarters as "Lemon titties," referring to her breast size. (Conley 38-39; Dixon 62; A148,438-439). He denies this. (Chaffinch 101; A106). He also made it his "mission" (Dixon 87; A154), to remove the first and only female troop commander that the DSP has ever had. (Baylor 33-39; A172-174).7 In doing this, he ignored the advice of his entire Executive Staff who warned him that "it was not best for the organization" to remove

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23.

24.

25.

26.

27.

Lt. Col. Marcin explained that he served as trooper commander of Troop 6 for 5 ½ years. (Marcin 4, Pepper 21-22; A50-51,67). After Capt. Mary Ann Papili was appointed by Col. Pepper to that post with a start date sometime in 2000 (Pepper 19-21; A50), Chaffinch prematurely removed her from command in September 2003, only 3 years into her rotation. (Marcin 23; A72). -7-

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her. (Baylor 37-38; A173-174).8 28. During his command of the Division, Chaffinch never assigned a female to command a troop. (Chaffinch 125; A112). Reflecting his opinion of female officers, Chaffinch also diminished plaintiff's operational authority in various areas after he became Colonel. (Conley 40-44; Dixon 83-87; Baylor 58-59; A153-154,179,440-444). For example, he reduced plaintiff's job duties as Director of Traffic from what they had been when her position was previously occupied by male officers. (Baylor 54, 51-53; A177-178). Chaffinch took away "her leadership role." (Baylor 58; A179). Instead of developing policy and other similar duties, plaintiff was relegated to collecting data. (Baylor 58; A179).9 Chaffinch's promotions in the DSP simply were not based upon merit. Instead, as Major Baylor testified, Chaffinch had an "older style of management," a style of promoting his buddies. (Baylor 51; A177). "There is a perception of a good old boys network in the [DSP]." (Baylor 16; A168). Promotions "are more based on who you know and who your connections are with and who your friends are than on merit in the [DSP]." (Baylor 16; A168).10

29.

30.

D. Fuentes Prong 1 in a Pretext Case - Weaknesses, Implausibilities, Inconsistencies, Incoherencies and Contradictions In the Defense Case. 1. On the experience promotion factor, admittedly the patrol function is the "backbone of the Division." (Chaffinch 153-154; Dixon 95; Pepper 61-62; A58-59,119-120,156). Plaintiff's experience included 18 years with patrol. (Chaffinch 153; A119). But implausibly comparator Hughes had less time in patrol than plaintiff when he was promoted to oversee patrol operations in Kent and Sussex Counties. (Chaffinch 155-156; A120). Comparator

It was bad organizationally, politically and from a public relations perspective. (Baylor 37-38; A173-174). In response, Chaffinch became "agitated" and "unhappy" with them for voicing their concerns. (Baylor 35,38;A173-174). He called them "spineless." (Baylor 36;A173). (1) He also excluded her from annual national traffic conferences which her male predecessors attended. (2) He eliminated her monthly meetings with traffic lieutenants throughout the state. (3) He withheld from her knowledge of traffic related events within her authority. (4) He refused her public recognition for achievements within her command. (5) He let her be disrespected at commander's meetings. (Conley 40-44; A440-444). Despite this lengthy laundry list of offensive and improper conduct, Col. MacLeish "feel[s] very strongly" that his friend Chaffinch is an "honorable man," a "good trooper," a "good person," and a "good man" who was "a good leader" for the DSP. (MacLeish 9-12; A296-297). -810 9

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Eckrich also had less patrol experience. (Chaffinch 165; A122). So this purported factor was ignored by Chaffinch. 2. On the tenure factor, both Hughes and Eckrich also implausibly had three less years with the DSP than plaintiff. So this factor also was ignored. (Chaffinch 156, 164; A120,122). On the experience factor, Chaffinch also claims that Major Eckrich had prior financial experience which made him attractive for the position of administrative/budget major. (Chaffinch 161, Pepper 66-68; A60,121). But this emphasis on experience is weakened and contradicted by the fact that his predecessor Major Swiski had no prior budget experience going into that slot, but he performed admirably in the job (Chaffinch 162, Marcin 26; A73,122), which actually consists of managing civilian staff. (Pepper 69-71; A60-61). Moreover, plaintiff dealt with multi million dollar grant applications in her position as the Director of Traffic and had already been sent by the DSP for training in budgetary functions. (Pepper 68, Dixon 114-115, 86; Marcin 26-27; A60,73,154,161). Reliance on the compatibility factor also is weak because Chaffinch was forced to admit that "there was nothing to disqualify Barbara Conley for the promotion in the area of compatibility." (Chaffinch 167; A123). So this factor also was ignored. Reliance on personal loyalty to Chaffinch factor is again weak because Chaffinch was forced to admit that plaintiff also was loyal to him at the time. (Chaffinch 181; A126). So this factor also was ignored also. Reliance on personal loyalty again is contradicted by the fact that the DSP Code of Ethics makes such a factor improper. (PX15 - Preamble to DSP Code of Ethics; A376). Chaffinch's admitted reliance on a personal loyalty factor is contradicted a second time by now Col. MacLeish who admitted that Troopers should "never ... permit personal feelings ... or friendships to influence [their] decisions." (MacLeish 26; A198). The claim that Chaffinch had the absolute discretion to make these two promotions to Major without consulting anyone else or following any objective process is contradicted by the requirements imposed upon him by Governor Minner and Secretary Lisa Blunt-Bradley's Report which required consultation with the State Personnel Director and Gregory Chambers and his Affirmative Action office when exercising the promotion

3.

4.

5.

6.

7.

8.

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function. (Chaffinch 171-175; Marcin 39, 29-38; A73-76,124-125).11 9. Chaffinch's claim that he can draw a distinction between his offensive utterances outside the office and his utterances and conduct in the office is flatly contradicted by the testimony of his predecessor Col. Pepper and his successor Col. MacLeish who each explained that no such distinction can be made. (Pepper 33-39; MacLeish 21-22, 25, 38; A53-55,196-197,201). The Division's Rules and Regulations and Code of Ethics also contradict Chaffinch's claim. (PX15; PX16; A374,378,381). Finally, despite its subjectivity, Chaffinch claims he went through a careful deliberative process in making the two promotions at issue. (Chaffinch 148, 160-161; A118,121). This is contradicted by the testimony of his Lt. Col. Thomas Marcin who testified that Chaffinch's mind was already made up for each promotion, and in particular the decision on Major Hughes was made in just 24 hours. (Marcin 43-44, 28-29; A73,77). Major Baylor's testimony confirms this. (Baylor 16-17, 12-14; A167-168).

10.

II. Counts Two and Three - Retaliation for the Filing of This Lawsuit. A. Plaintiff's Protected Speech and Petition Clause Activity. On October 27, 2004, plaintiff filed this lawsuit. (D.I. 1; Compl. & Ans. ¶ 108; MacLeish 117-118; A19,39,220-224). B. The First Act of Retaliation - A Confidential and Internal DSP Document About Plaintiff is Leaked to the Delaware Media. Within hours of the filing of her lawsuit, an internal DSP document indicating that plaintiff faced confidential internal affairs charges was leaked to the Delaware media. (Aviola 53-55, 57-58; see PX 14; Aviola 65-67; A259-263,373). These charges were not pending in March and July of 2003 when the two challenged promotions occurred. C. The Second Act of Retaliation - Defendants Refused to Investigate This Release. Despite the release of plaintiff's confidential internal affairs information,

Chaffinch's Lt. Col. testified "I was trying to get through to Aaron that you really couldn't ignore the Bradley report." (Marcin 38, A76). -10-

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defendants refused to investigate the release to the Delaware media. (Aviola 62; MacLeish 145-150; A227-229,262). Defendants admit that they do not know if even a single question was ever asked of any DSP employees about the release of this information. (MacLeish 150; Mitchell 50; A229,285). The DSP "considered" investigating, but chose not to. (Mitchell 49-50; A284-285). D. The Third Act of Retaliation - Defendants Then Confirmed and Discussed the Nature of the IA Charges With the Delaware Media. Whenever media inquiries are made about lawsuits and other serious matters such as Internal Affairs investigations, Lt. Aviola, the PIO, is not authorized to respond. Instead, he is required to relay those inquiries to the Colonel or the Lt. Colonel who then decide what kind of a response will be given. (Aviola 15-20; A250-251). "[M]ost of the time it's pretty specific [ ] what they want said." (Aviola 20; A251). Upon learning that the Delaware media was in possession of this confidential document, Lt. Aviola followed procedure and immediately consulted with then acting Colonel MacLeish. (Aviola 55-64; MacLeish 129, 134-142; A223,225-227,260-262). MacLeish next expressly ordered Aviola to confirm and discuss the contents of this confidential document with the Delaware media. (Aviola 63-70, 76-77, 86-89; MacLeish 142, 165, 208; A227,232,243,262-265,268).12 "But for his authorization," Lt. Aviola would not have discussed the matter with the media, "other than saying `no comment.'" (Aviola 89, 70; A268,264). MacLeish's exact orders were "if you feel that it looks like

MacLeish testified that he would not have given these orders if defendant Secretary Mitchell had not "agreed and []sanctioned it or authorized it." (MacLeish 135, 142, 165; Mitchell 47-48, 56-57; A225,227,232,284,286). Thus he has laid this violation of policy and practice squarely at the doorstep of the defendant Cabinet Secretary. -11-

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one of our e-mails, then comment on it." (Aviola 63-64; A260-262). "[C]all Mr. Eldred back and give him the information." (Aviola 63; A262). Lt. Aviola complied with acting Col. MacLeish's order. (Aviola 68-70; A263-264). 1. Aviola was "Surprised" by This Order. Several times at his deposition, Aviola testified that in light of the DSP policy and practice of never commenting on or discussing previous internal affairs charges against defendants Chaffinch and MacLeish themselves, (see Facts at section II.E.4.d. below), he was "surprised" when MacLeish instead ordered him to discuss plaintiff's leaked confidential internal document with the Delaware media. (Aviola 75-76; A265). Aviola even spoke up during his meeting with MacLeish and stated, "You know, it's an internal document. We are not going to comment on that; right?" (Aviola 76; A265). But MacLeish ordered him to discuss it anyway. (Aviola 63-64; A262). 2. The Prejudicial Content of This Release. The prejudicial content of this release is clear. The released document stated that plaintiff herself was facing internal affairs charges for alleged violations of several DSP Rules and Regulations. (PX14; A373). Pursuant to MacLeish's specific order to "comment on it" (Aviola 63-64; A262), Aviola revealed to the media the inflammatory nature of the charges that plaintiff was facing - one count of sexual harassment and three counts of conduct unbecoming. (Aviola 70; PX14; A264,373).13 E. Substantial or Motivating Factor. Cause and effect evidence is abundant on our record.

The initial published article that resulted is in the record. (Del. State News, 10/29/04; A501). Numerous similar articles soon followed in the weeks and months to come. -12-

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1. Defendants' Friendship Created a Motive to Retaliate Against the Person Who Sued Chaffinch and Caused Him to Be Suspended. All three defendants are friends. Chaffinch and MacLeish are friends. (Chaffinch 187; Baylor 20; A128,169).14 They are on a first name basis. (MacLeish 98; A216). Chaffinch chose MacLeish to serve as his Lt. Colonel, which was a "big deal" to MacLeish and a true "honor." (MacLeish 97; A215). They socialized together, even when Chaffinch was on leave for sexually inappropriate workplace misconduct. (PX 18; MacLeish 100-102; A216-217, 511). In MacLeish's own words, he and Chaffinch are "joined at the hip." (MacLeish 9; A296) Similarly, defendant Mitchell also likes and is friends with Chaffinch and MacLeish. (Mitchell 28, 43, 51; A279,283,285). 2. Demonstrated Antagonism Towards Plaintiff and Her Protected Activity. a. Chaffinch Demands Blind Personal Loyalty. Chaffinch expects "blind loyalty" from all those in the DSP. (Dixon 105; A158). "You have to just follow him ... and if you don't, he is done with you. You may suffer any consequences from that." (Dixon 105; A158). Now retired Major Baylor, who served on Chaffinch's Executive Staff for several years, also testified that "personal loyalty" is a factor that Chaffinch considered when making personnel decisions. (Baylor 20-21; A169). Defendant MacLeish (MacLeish 64; A207), and Chaffinch himself admitted to the same. (Chaffinch 179; A126). Captain Dixon worked closely with Chaffinch in Sussex County for seventeen

Because of their close friendship, MacLeish even promoted a retirement party in Chaffinch's honor. (MacLeish 102-115; PX19; A217-220,399-400). -13-

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years. He testified, Chaffinch "is very vindictive" and "use[s] his rank or office in the state police to be vindictive." "[I]t is common knowledge ... you would not cross him ... because of his vindictiveness. You knew that your career would pretty much stop." (Dixon 71-72; A150).15 b. Chaffinch's Hostile Feelings. Four witnesses directly testified about Chaffinch's fury with plaintiff. Chaffinch was "mad" and "angry" at plaintiff for bringing her lawsuit. (Dixon 69-70; A149-150). He was "ang[ry]," "displeased" and "pissed off" about the suit. (Mitchell 36; A281). Chaffinch was "upset," "unhappy" "[h]e wasn't pleased" and instead "was obviously displeased" about the suit. (MacLeish 120121; A221). He "wasn't too pleased" and was visibly "upset." (Aviola 79, 82, 84; A266267). He very well may have used some colorful language and other profanity to describe it. (Aviola 79; A266). Chaffinch was so angry about plaintiff's lawsuit that he even took his anger out on Captain Dixon. (Dixon 69; A149). After plaintiff's lawsuit was filed, Chaffinch refused even to mention plaintiff's name. (Dixon 71; A150). He does not like it when people sue him. (Baylor 60; A179). c. MacLeish's Hostile Feelings. MacLeish admits that he also was "unhappy" with plaintiff. (MacLeish 179; A236). He was "annoyed" and "displeased with her conduct and actions" in bringing this lawsuit. (MacLeish 179-180; A236). He repeatedly admitted that he was "unhappy" and"disappointed" by the lawsuit. (MacLeish 125-126, 131, 180-181; A222-224,236). "Do I like it? No, I do not." (MacLeish 126;

Captain Dixon even expressed concern that despite Chaffinch's retirement, he would still find a way to retaliate against him because of Dixon's truthful subpoenaed deposition testimony, (Dixon 72; A150), perhaps by way of Chaffinch's close friendship with defendants MacLeish, Mitchell and Senator Thurman Adams. -14-

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A223). He told Lt. Aviola that he was "unhappy," "upset," "disappointed" and "displeased." (MacLeish 131-132, 180-181; A224,236). MacLeish was "personally disgusted" with some of plaintiff's allegations in her suit and was "disgusted" with the lawsuit itself. (MacLeish 132-133; A224). Lt. Aviola confirmed that MacLeish expressed these feelings. (Aviola 82, 84; A267). MacLeish also was unhappy that plaintiff's lawsuit caused the DSP to be cast in a negative light in the local Delaware as well as the regional Philadelphia and Baltimore news media. (MacLeish 127, 181-182; A223,236-237).16 Indeed, he "would be very pleased" to get the DSP off of the front pages of the newspapers. (MacLeish 133-134; A224-225). d. Mitchell's Hostile Feelings. Like MacLeish, Mitchell also was not happy that plaintiff had filed a lawsuit. (Mitchell 29; A279). He "[w]asn't happy" that the suit resulted in his having to focus his attention on the DSP to the neglect of other agencies in his charge, (Mitchell 37; A281), or that the DSP was "getting hammered heavy" in the press. (Mitchell 40, 52-53, 11-12; A275,282,285). Mitchell was "disappointed" in the filing of plaintiff's lawsuit. (MacLeish 143-144; A227). He has not enjoyed the "negative press" about the Division. (Mitchell 15; A276). 3. Unusually Suggestive One or Two Day Temporal Proximity. On October 27, 2004, plaintiff filed this lawsuit. (D.I. 1; Compl. & Ans. ¶ 108; MacLeish 117-118; A19,39,220-221). The leak, for which each individual defendant had a motive, occurred within hours. Immediately thereafter, on either October 27th or the 28th, the

Plaintiff's lawsuit attracted a great deal of local, regional and national media attention. (Mitchell 30-31; A280). -15-

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media followed up with inquiries to Lt. Aviola asking for confirmation and for comment. (Aviola 53; A259). No story would run without confirmation of the authenticity of the leak. That same day, defendant MacLeish ordered that Aviola give confirmation and comment on the confidential material. (Aviola 55-70; A260-264). 4. Numerous Violations of Statutes, Policies, Procedures, Practices, Rules and Regulations. "[T]he confidentiality of internal documents and internal information is something which is valued in the Delaware State Police." (Baylor 11; A167). But contradictorily however, longstanding statutes, policies, rules and standing orders were violated by defendants. a. The Express and Unequivocal Confidentiality Protections of the LEOBOR. The Law Enforcement Officers' Bill of Rights is something that DSP officers know about and think is important because Troopers value its privacy protections. (Aviola 20-21; A251). The relevant portions of it require that: Whenever a law-enforcement officer is under investigation ... the investigation ... shall be conducted under the following conditions: *** All records compiled as a result of any investigation ... shall be and remain confidential and shall not be released to the public. 11 Del.C. § 9200(c) and (c)(12). This statute is in no way "unclear." (Aviola 28; A253). The statute's confidentiality protections protect Troopers at the rank of Captain, such as plaintiff, and below. See 11 Del.C. § 9200(b). The statute also expressly states that these protections do not apply to either the Superintendent or the Deputy Superintendent, such as defendants Chaffinch and MacLeish. (MacLeish 153, 156-157;

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PX6; A229-230,505); accord 11 Del.C. § 9200(b).17 b. DSP Rules, Regulations and Policies. The Division's written Rules and Regulations reflect the official policy of the DSP. (MacLeish 39, 43-44; A201202). As Rule 1 itself states, these Rules and Regulations must be followed. (PX16; MacLeish 46-47; Mitchell 20; A203,277,381).18 (i). Rule 10. This rule requires that "Members shall treat as confidential the official communications and business of the Division." (PX16; MacLeish 39; A201,383). (ii). Rule 18(b). This rule requires that "Any information obtained in an official capacity shall not be disclosed either in writing or orally to any unauthorized person, and no officer will divulge any matter that is his duty to keep secret." (PX16; MacLeish 42-43; A202,384). (iii). Rule 19(a). This rule requires that "A member shall give information to the news media in accordance with procedures established by the Division." (PX 16; MacLeish 43-44; A202,384). (iv). The DSP Code of Ethics. The Preamble to the DSP's

Defendant MacLeish admits that his strained justification for the DSP's actions in releasing and discussing plaintiff's confidential internal affairs information "could be construed" as "a back door" and as "an end run" around LEOBOR's protections. (MacLeish 162; A232). Defendants will falsely claim that their deputy attorney general authorized them to break the law. (MacLeish 135,139; A225-226). But Secretary Mitchell and Major Baylor both testified that the DAG has no authority to do this and that such an order is an "unlawful order" that should not be followed. No DAG can order a Trooper to violate standing orders or other laws. (Mitchell 21-25; Baylor 9-11; A166-167,277-278). Morever, MacLeish also admitted that the DAG only gave him advice, and that he made the ultimate decision, with Mitchell's concurrence, to release the information. (MacLeish 140, 165; A226,232). He is "not trying to hide behind" the DAG. (MacLeish 165; A232). -1718

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own Code of Ethics requires that "Whatever I see or may hear of a confidential nature or that is confided to me in my official capacity will be kept secret unless revelation is necessary in the performance of my duty." (PX 15; MacLeish 25-26; A197-198,376). This is something that "is very important for a state trooper." (MacLeish 25-26; A197198). c. An Order To Violate Any of These Statutes or Rules is an "Unlawful Order. Defendant Secretary Mitchell is the cabinet Secretary responsible for the DSP. He has a long history in law enforcement. (Mitchell 5-10; A273-275). As Mitchell testified at some length, any order to violate the written DSP Rules and Regulations or other laws - even if ordered to do so by DSP legal counsel - is an "unlawful order" and a Trooper has an obligation to disobey such an order. (Mitchell 20-27; A277279). Major Baylor also testified that an order to release internal confidential information, even when coming from the DAG, would be an unlawful order in violation of "clearly expressed" DSP rules and regulations. (Baylor 9-11; A166-167). d. Actual DSP Policies, Practices and Procedures. (i). Current Policy and Practice. Lt. Aviola, the current PIO for the DSP, admitted at his deposition that the standard policy, practice and procedure of the DSP is that "we do not comment on the specifics of [an] internal complaint." (Aviola 35, 50, 71-72; A255,259,264). It is the "policy" of the DSP to "`no comment' or refuse to discuss the specifics" of internal affairs and other internal personnel matters. (Aviola 50, 72; A259,264). MacLeish admitted the same. (MacLeish 156; A230). This also is the "practice" and the "standard response." (Aviola 71,75; A264-265). Indeed, defendants tellingly admitted in their Answer, and the record is undisputed,

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that when the Delaware news media had previously and repeatedly inquired about the numerous Internal Affairs investigations, violations and convictions of defendants Chaffinch and MacLeish (who are explicitly excluded from LEOBOR's confidentiality protections), the DSP has always refused to comment in any way, shape or form because of the DSP policy of not commenting on internal personnel matters. (Compl. & Answer ¶¶ 129-135, A22-24,40).19 The documentary record confirms this (PX8-13; A359-372), as does the testimony of Lt. Aviola and defendant MacLeish himself. (Aviola 32, 34-35, 3940, 47, 50; MacLeish 151-152, 154-156; A254-256,258-259). This is the "policy," "practice," and "standard response" of the DSP. (Aviola 50, 71, 75; MacLeish 156; A230,259,264-265). (ii). Long Time Historical Policy and Practice. This also has been the longstanding practice in the PIO for well over a decade. For example, retired Major David Baylor served in the PIO as a corporal beginning in September 1989 and then in 1992 was promoted to sergeant and served as the Director of the PIO. Then, after he was promoted to Major in 2002, he had authority and responsibility for the operation of the PIO. Major Baylor retired in August 2004. (Baylor 5, 21-23; A165,169-170). He said the DSP's policy "was pretty much that we would never really confirm or deny or comment on internal affairs matters." (Baylor 23-24; A170). Moreover, "[t]hat [is] pretty much standard practice in law enforcement." (Baylor 23; A170). e. No Internal Affairs Investigation Resulted From These

Chaffinch and MacLeish have been the subject of numerous internal affairs investigations and convictions while they held the positions of Colonel and Lt. Colonel of the DSP. (MacLeish 115-117, 110-111, 114-115, 150-151, 156-158, 167, 169, 173, 175, 177-178, 192; Aviola 49-50, 74; PX8-13; A219-220,229-231,233-236,239,258-259,265,359-372). -19-

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Numerous Violations. Yet despite all of these things, as discussed above, defendants refused to ever investigate this release of confidential information which violated LEOBOR, as well as numerous DSP policies, procedures, practices, rules, regulations and standing orders. (Aviola 62; MacLeish 145-150; Mitchell 49-50; A228-229,262,284-285). This refusal to investigate independently violates several additional DSP rules. For example, Rule 1 requires that all laws, rules and regulations must be obeyed, and Rule 3 requires that any Trooper with knowledge of a violation of either the law or the rules and regulations immediately report such violations to Internal Affairs for investigation. (PX16; A381). 5. Disparate Treatment. As discussed above, there is a clear and striking contrast between the stonewalling and refusal to comment that occurred after media inquiries about numerous IA charges Chaffinch and MacLeish faced and the wealth of statutorily mandated confidential information nonetheless released about plaintiff's IA charges. ARGUMENT I. THERE IS ABUNDANT RECORD EVIDENCE OF ALL THE ELEMENTS OF A GENDER DISCRIMINATION PROMOTIONS CASE. A. A Prima Facie Case Has Been Proven. Under the first step of the three step "pretext" or "indirect evidence" framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981), the record demonstrates that plaintiff has proven a prima facie case that she was denied promotion because of her gender. The McDonnell Douglas framework applies to claims brought under §1983. Stewart v. Rutgers, The State Univ., 120 F.3d 426, 432 (3d Cir. 1997). -20-

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Tab C

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In the Matter Of:

Conley v. Chaffinch, et al.
C.A. # 04-1394-GMS --------------------------------------------------------------------Transcript of: Captain Glenn Donald Dixon July 13, 2005 -----------------------------------------------------------------------Wilcox & Fetzer, Ltd. Phone: 302-655-0477 Fax: 302-655-0497 Email: [email protected] Internet: www.wilfet.com

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Conley Captain Glenn Donald Dixon

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Chaffinch, et al. July 13, 2005 Page 1

v. C.A. # 04-1394-GMS

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CAPTAIN BARBARA L. CONLEY, ) ) Plaintiff, ) ) Civil Action v. ) No. 04-1394-GMS ) COLONEL L. AARON CHAFFINCH, ) individually and in his official ) capacity as the Superintendent, ) Delaware State Police; LIEUTENANT ) COLONEL THOMAS F. MACLEISH, ) individually and in his official ) capacity as the Deputy Superintendent, ) Delaware State Police; DAVID B. MITCHELL) Individually and in his official ) capacity as Secretary of the Department ) of Homeland Security, State of Delaware;) and DIVISION OF STATE POLICE, DEPARTMENT) OF SAFETY AND HOMELAND SECURITY, State ) of Delaware, ) ) Defendants. ) Deposition of CAPTAIN GLENN DONALD DIXON taken pursuant to notice at the law offices of The Neuberger Firm, P.A., 2 East 7th Street, Suite 302, Wilmington, Delaware, beginning at 9:30 a.m., on Wednesday, July 13, 2005, before Eleanor J. Schwandt, Registered Merit Reporter and Notary Public. APPEARANCES: THOMAS S. NEUBERGER, ESQ. THE NEUBERGER FIRM, P.A. 2 East 7th Street, Suite 302 Wilmington, Delaware 19801 for the Plaintiff (Appearances continued on page 2.) WILCOX & FETZER 1330 King Street - Wilmington, Delaware 19801 (302) 655-0477
Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477

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Conley Captain Glenn Donald Dixon

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Chaffinch, et al. July 13, 2005
Page 4

v. C.A. # 04-1394-GMS
Page 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

APPEARANCES (Continued): STEPHANI J. BALLARD, ESQ. RALPH K. DURSTEIN, ESQ. DEPARTMENT OF JUSTICE 820 North French Street Carvel State Office Building Wilmington, Delaware 19801 for the Defendants Lieutenant Colonel Thomas F. MacLeish, David B. Mitchell, and Division of State Police ALSO PRESENT: CAPTAIN BARBARA L. CONLEY CAMILLE M. MARTIN, Law Clerk ---------(Mr. Durstein not present at this time.) GLENN DONALD DIXON, the witness herein, having first been duly sworn on oath, was examined and testified as follows: EXAMINATION BY MR. NEUBERGER: Q. Could you state your full name for the record. A. Yes, Glen Donald Dixon. Q. Okay. And you are a captain in the Delaware State Police? A. I am. Q. And is it fair to say you have testified in court before? A. I have.
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your present assignment. When did you graduate from the academy? A. 1988. Q. 1988. A. I began in June of '88 and graduated in the fall. Q. Okay. What was your first assignment? A. It was at State Police Troop 5 in Bridgeville. Q. Troop 5. So that was a, what do you call them, patrol? A. Patrol troop. Q. All right. A. Yes. Q. So Troop 5, and how long were you there? A. I was there until I was promoted to sergeant, which was about nine, nine years, and then I moved over to Troop 4 in Georgetown. Q. Let me see. Troop 4. Was it six months in the academy? Three months? A. I think back then it was like a four-month period. Q. Four months. So would it have been the end of '88 when you went to Troop 5 or the very beginning of '89? A. It was actually around, with the field training
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Q. Okay. And have you ever had your testimony taken in a deposition before? A. Maybe once or twice. Q. Okay. So you are a little bit familiar? A. Yes. Q. Okay. Well, what happens is the court reporter types up the questions and answers. You have the right to look it over when it is done to see if she made a mistake in taking down an answer or something to make corrections. Do you understand that? A. Yes, I do. Q. Okay. And then at trial, at trial, if you said something different than today, I would have the opportunity to point that out to the judge and jury. You understand that? A. Yes. Q. Okay. So I don't want you to do any guessing. So try to answer to the best of your ability. Or if I ask a question that's a stupid question, you don't understand, just ask me to rephrase it and I'll be glad to do it. Okay? A. All right. Q. Thanks. Now, could I ask you very quickly, we will just march through when you went to the academy to

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in it, I trained in field training in Woodside, after field training I went down there end of November, early December, around there. Q. That's when you started at Troop 5? A. Yes. Q. Okay. And then if we say nine years -A. Well, I was promoted in '96. Q. '96, sergeant? A. Yes. Q. All right. So '96 is when you went to Troop 4 then? A. Yes. Q. All right. How long did you stay at Troop 4? A. About a year-and-a-half, and then I transferred back to Troop 5. Q. Okay. So that would be some time in '98? A. Mm-hmm. Q. Back to Troop 5? A. Yes. (Mr. Durstein present at this time.) Q. All right. So sometime in '98 you transferred back to Troop 5. Is that still at the rank of sergeant? A. Yes. Q. Okay. And what happened next?

2 (Pages 2 to 5) Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477

Case 1:04-cv-01394-GMS
Conley Captain Glenn Donald Dixon

Document 92

Filed 10/19/2005

Page 37 of 64
Chaffinch, et al. July 13, 2005
Page 72

v. C.A. # 04-1394-GMS
Page 70

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A. Yes. Q. Okay. Based on your observations, after the lawsuit was filed was he mad at Captain Conley? A. Yes. I believe, I'm sure he still is mad. Q. Right. Do you remember any other feelings or emotions he demonstrated towards Captain Conley after the lawsuit was filed in the whole period of time up to the present? A. Nothing strikes me specifically after the lawsuit was filed. He, after that, for the most part he -- well, he wouldn't bring that lawsuit up specifically around the troop. So no, I guess my answer is no. Q. Well, you heard this remark about Trooper Scott Gray. You told us about that? A. Yes. Q. And that the colonel was upset at not having been invited to a party, right? A. Yes. Q. And you heard the remark the colonel made about you should remember who transferred you into detectives, right? A. Yes. Q. Did you observe the colonel to be exhibiting any hostility towards Captain Conley indicating he felt she
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to be vindictive over your 17 years of working with him? A. Yes. Q. You have observed him to mention he has powerful friends in political circles? A. Yes. Q. Are you saying that you have observed him to use his rank or office in the state police to be vindictive? A. Yes. You know, it is common knowledge, like I said before, I think, that you don't -- you would not cross him, you would not report him on anything because of his vindictiveness. You knew that your career would pretty much stop. I mean, it concerns me now, going through this, even though he is still not the colonel or not presently the colonel. Q. Now, I've subpoenaed you to testify today? A. Yes. Q. You understand that? A. Yes. Q. There is a court order requiring you to come here today, right? A. Yes. Q. And I have never even met you before today, have I?
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was ungrateful or things like that towards Colonel Chaffinch? MS. BALLARD: Object to the form. Q. You can answer the question. I'm asking you what you observed. Did you observe -A. After the lawsuit had been filed? Q. Yes, after the lawsuit, him to exhibit any anger at her thinking she was ungrateful to him? A. He wouldn't bring her name up around me afterwards. Q. Okay. So previously he would mention Captain Conley in your presence? A. Yes. Q. And you are saying after the lawsuit was filed he would never mention Captain Conley again in your presence? A. Not that I recall, no. Q. Okay. Is the colonel, based on your working with him and having dealt with him over 17 years, the kind of person who a reasonable person should fear he would retaliate against them? MS. BALLARD: Object to the form. A. He is very vindictive. Q. Okay. Now, are you saying you have observed him

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A. No. Q. Okay. I passed you in the waiting room here and didn't even know who you were, right? A. Right. Q. So you have never met with me and discussed any facts relating to this case; is that true? A. No -- yes, that is true. Q. I want to jump back to the up jump the monkey limerick. Do you remember there was one about a monkey? A. Yes. Q. I'm going to give you some setting, early part of 2003, in Captain Conley's office, in traffic, Captain Harry Downes being there, and that would make you a Lieutenant Dixon there at the same time. The colonel coming in at some point in time and during the course of it him reciting the up jump the monkey limerick. Do you remember whether that happened around that time? A. Yes. I think Harry was a lieutenant. I thought you said captain. I think he was a lieutenant. Q. Okay. 2003, Columbus, Ohio, CARE conference? A. Yes. Q. You are attending, and I think your wife went with you? A. Yes.

19 (Pages 70 to 73) Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477

Case 1:04-cv-01394-GMS
Conley Captain Gl