Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1:04-cv-01394-GMS

Document 153

Filed 01/31/2006

Page 1 of 102

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 ANSWERING BRIEF IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON COUNTS II AND III

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: January 31, 2006 Attorneys for Plaintiff

Case 1:04-cv-01394-GMS

Document 153

Filed 01/31/2006

Page 2 of 102

TABLE OF CONTENTS NATURE AND STAGE OF THE PROCEEDING......................................................................................1 SUMMARY OF THE ARGUMENT............................................................................................................1 STATEMENT OF FACTS............................................................................................................................1 ARGUMENT................................................................................................................................................1 I. II. STANDARD OF REVIEW.................................................................................................1 THE FILING OF PLAINTIFF'S GENDER DISCRIMINATION LAWSUIT CHALLENGING THE ILLEGAL ACTIONS OF THE HIGHEST RANKING POLICE OFFICER IN THE STATE CONSTITUTES PROTECTED SPEECH AND PETITIONING OF THE GOVERNMENT FOR REDRESS OF GRIEVANCES UNDER THE FIRST AMENDMENT......................................................2 A. Petition Clause........................................................................................................3 1. 2. This Court Cannot Overrule the Third Circuit..........................................3 San Filippo is Still Good Law and Its Holding Has Been Repeatedly Reaffirmed..............................................................................3

B.

Free Speech Clause................................................................................................4 1. The Third Circuit, en banc, Has Held that Gender Discrimination by High Public Officials is a Matter of Public Concern................................4 Plaintiff's Speech Exposed Illegal Conduct by a High Public Official....5 Plaintiff's Motivations..............................................................................5 Defendants Have Waived The Pickering Balancing Defense...................7

2. 3. 4. III.

DEFENDANTS' RETALIATION AGAINST PLAINTIFF WOULD CHILL A PERSON OF ORDINARY FIRMNESS FROM EXERCISING THEIR FIRST AMENDMENT RIGHTS....................................................................................................7 A. Defendants' Unlawful Retaliation Against Plaintiff..............................................7 1. The First Act of Retaliation - A Confidential and Internal DSP Document About Plaintiff is Leaked to the Delaware Media...................7 The Second Act of Retaliation - Defendants Refused to Investigate This Release..............................................................................................8 The Third Act of Retaliation - Defendants Then Confirmed and Discussed the Nature of the IA Charges With the Delaware Media.........9 i

2.

3.

Case 1:04-cv-01394-GMS

Document 153

Filed 01/31/2006

Page 3 of 102

B. III.

The Law of First Amendment Adverse Action....................................................10

THE RECORD IS OVERFLOWING WITH CAUSAL EVIDENCE WHICH DEMONSTRATES THAT PLAINTIFF'S PROTECTED FIRST AMENDMENT ACTIVITY WAS A SUBSTANTIAL OR MOTIVATING FACTOR IN THE UNPRECEDENTED RETALIATION AGAINST HER..................................................12 A. Substantial or Motivating Factor..........................................................................13 1. Knowledge of Protected Conduct...........................................................13 a. b. c. 2. 3. 4. MacLeish's Involvement............................................................14 Mitchell's Authorization............................................................14 Chaffinch's Involvement............................................................14

Temporal Proximity................................................................................16 Demonstrated Anger, Hostility and Antagonism....................................16 Violations of Law, Policies and Procedures...........................................17 a. Longstanding DSP Policies, Practices and Procedures..............17 (1). (2). (3). Current Policy and Practice...........................................18 Long Time Historical Policy and Practice....................21 MacLeish's Justification for Violating These Policies and Practices Does Not Hold Water................21

b.

DSP Rules, Regulations and Policies.........................................22 (1). (2). (3). (4). (5). Rule 10..........................................................................22 Rule 18(b)......................................................................22 Rule 19(a)......................................................................22 The DSP Code of Ethics...............................................23 Defendants Violated All of These Rules......................23

c.

An Order To Violate Any of These Rules is an "Unlawful Order."......................................................................23 No Internal Affairs Investigation Resulted From These Numerous Violations.................................................................23 ii

d.

Case 1:04-cv-01394-GMS

Document 153

Filed 01/31/2006

Page 4 of 102

e.

The Express and Unequivocal Confidentiality Protections of the LEOBOR..........................................................................24

5. 6. 7. 8. 9. 10. B. V.

Disparate Treatment................................................................................26 Selective or Discriminatory Enforcement...............................................26 Pretext......................................................................................................27 Falsehoods...............................................................................................27 Intentional Destruction of Key Evidence................................................28 The Big Picture........................................................................................28

Same Decision Anyway Affirmative Defense.....................................................29

DEFENDANT DELAWARE STATE POLICE AND THE OFFICIAL CAPACITY DEFENDANTS ARE PROPERLY JOINED IN THIS ACTION FOR THE PURPOSES OF COLLECTING ATTORNEYS' FEES AND COSTS..........29 DEFENDANTS ARE NOT ENTITLED TO QUALIFIED IMMUNITY........................30 A. B. Introduction..........................................................................................................30 The Facts Show that Defendants Violated Plaintiff's First Amendment Rights....................................................................................................................30 Plaintiff's First Amendment Rights Were Clearly Established...........................31 1. 2. D. E. Free Speech.............................................................................................33 Petition Clause........................................................................................35

VI.

C.

Clearly Established Rights Under DSP Policies, Practices and LEOBOR..........36 Advice of Counsel Defense..................................................................................36 1. The Only Time Defendants Ever Consulted With An Attorney Was When They Wanted to Find a Way to Release Plaintiff's Confidential Information.........................................................................36 Legal Advice to Violate a DSP Rule or Regulation is an "Unlawful Order" that a Trooper Has an "Obligation" to Refuse to Follow............37 The Factual Dispute as to Defendants' Motives Must Be Resolved By the Jury..............................................................................................38 The Advice of Counsel Exception in the Qualified Immunity Context....................................................................................................38 iii

2.

3.

4.

Case 1:04-cv-01394-GMS

Document 153

Filed 01/31/2006

Page 5 of 102

CONCLUSION............................................................................................................................................40

iv

Case 1:04-cv-01394-GMS

Document 153

Filed 01/31/2006

Page 6 of 102

TABLE OF AUTHORITIES Cases Page

Adkins v. Rumsfeld, 389 F.Supp.2d 579 (D.Del. 2005).........................................................13-14,16-17,26 Adler v. Pataki, 185 F.3d 35 (2d Cir. 1999)................................................................................................29 Agosto-de-Feliciano v. Aponte-Rogue, 889 F.2d 1209 (1st Cir. 1989) (en banc)......................................11 Allah v. Seiverling, 229 F.3d 220 (3d Cir. 2000)..................................................................................11-12 Anderson v. Creighton, 483 U.S. 635 (1987)..............................................................................................32 Anderson v. Davila, 125 F.3d 148 (3d Cir. 1997)............................................................................3,9-10,36 Andrews v. City of Phila., 895 F.2d 1469 (3d Cir. 1990)...........................................................................28 Arlio v. Lively, 392 F.Supp.2d 317 (D.Conn. 2005)...................................................................................27 Assaf v. Fields, 178 F.3d 170 (3d Cir. 1999)..............................................................................................33 Atkinson v. Taylor, 316 F.3d 257 (3d Cir. 2003)........................................................................................30 Azzaro v. County of Allegheny, 110 F.3d 968 (3d Cir. 1997) (en banc)............................................4,34-35 Baldassare v. State of N.J., 250 F.3d 188 (3d Cir. 2001).................................................5-6,10,12-13,29,34 Bart v. Telford, 677 F.2d 622 (7th Cir. 1982)..............................................................................................11 Bedford v. SEPTA, 867 F.Supp. 288 (E.D.Pa. 1994)...................................................................................7 Bennett v. Hendrix, 423 F.3d 1247 (11th Cir. 2005)..................................................................................11 Bennett v. Murphy, 274 F.3d 133 (3d Cir. 2002)...................................................................................31,36 Bennett v. Murphy, 2005 WL 78581 (3d Cir. Jan. 14, 2005).....................................................................31 Bennis v. Gable, 823 F.2d 723 (3d Cir. 1987).......................................................................................10,32 Bhd. of R.R. Trainmen v. Va. Ex Rel. Va. State Bar, 377 U.S. 1 (1964)...................................................35 Bieregu v. Reno, 59 F.3d 1445 (3d Cir. 1995)............................................................................................33 Bloch v. Ribar, 156 F.3d 673 (6th Cir.1998)..............................................................................................11 Boyle v. County of Allegheny, Pa., 139 F.3d 386 (3d Cir. 1998)..............................................................1-2 Brady v. Fort Bend County, 145 F.3d 691 (5th Cir. 1998).........................................................................29 Bray v. Marriott Hotels, 110 F.3d 986, 992 (3d Cir. 1997)........................................................................17 v

Case 1:04-cv-01394-GMS

Document 153

Filed 01/31/2006

Page 7 of 102

Brennan v. Norton, 350 F.3d 399 (3d Cir. 2003).....................................................................3,6,17,2,34,36 C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159 (3d Cir. 2005).............................................................13-14 C.H. v. Olivia, 226 F.3d 198 (3d Cir.2000) (en banc).................................................................................14 Cal. Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972).....................................................35 Carroll v. Pfeffer, 262 F.3d 847 (8th Cir.2001)..........................................................................................11 Charpentier v. Godsil, 937 F.2d 859 (3d Cir. 1991)...................................................................................29 City of San Diego v. Roe, 543 U.S. 77 (2004) (per curiam).........................................................................5 Constantine v. Rectors and Visitors of George Mason Univ., 411 F.3d 474 (4th Cir. 2005)......................11 Cox v. Louisiana, 379 U.S. 536 (1965).......................................................................................................27 Crawford-El v. Britton, 523 U.S. 574 (1998)..............................................................................................31 Curley v. Klem, 298 F.3d 271 (3d Cir. 2002).............................................................................................38 Czurlanis v. Albanese, 721 F.2d 98 (3d Cir. 1983).....................................................................................34 Davis v. Zirkelbach, 149 F.3d 614 (7th Cir. 1998).......................................................................................39 Dennison v. Pa. Dept. of Corr., 268 F.Supp.2d 387 (M.D.Pa. 2003)............................................................7 Doe v. Delie, 257 F.3d 309 (3d Cir. 2001)..................................................................................................32 EEOC v. Univ. of Pa., 850 F.2d 969 (3d Cir. 1988).....................................................................................3 Fasold v. Justice, 409 F.3d 178 (3d Cir. 2005)...........................................................................................16 Feldman v. Phila. Housing Auth., 43 F.3d 823 (3d Cir. 1994)..............................................................27,34 Fernandez v. Leonard, 784 F.2d 1209 (1st Cir. 1986)..................................................................................39 Foraker v. Chaffinch, C.A.No. 02-302-JJF (D.Del. June 17, 2003) (slip op.)............................................30 Foraker v. Chaffinch, C.A.No. 02-302-JJF (D.Del. June 18, 2003) (slip op.)............................................34 Garcia v. City of Trenton, 348 F.3d 726 (8th Cir. 2003)..............................................................................11 Ginaitt v. Haronian, 806 F.Supp. 311 (D.R.I. 1992)...................................................................................39 Good v. Dauphin County, 891 F.2d 1087 (3d Cir. 1989)......................................................................32-33 Harlow v. Fitzgerald, 457 U.S. 800 (1982)............................................................................................31,39 Hicks v. Finney, 770 F.2d 375 (3d Cir. 1985).............................................................................................33 vi

Case 1:04-cv-01394-GMS

Document 153

Filed 01/31/2006

Page 8 of 102

Hill v. City of Scranton, 411 F.3d 118 (3d Cir. 2005)......................................................2-3,13,15,25,27,36 Holder v. City of Allentown, 987 F.2d 188 (3d Cir. 1993)....................................................................27,34 Hope v. Pelzer, 536 U.S. 730 (2002)...........................................................................................................32 Howard v. Bd. of Educ. of City of East Orange, 90 Fed.Appx. 571 (3d Cir. 2003).....................................7 Jalil v. Avdel Corp., 873 F.2d 701 (3d Cir. 1989).......................................................................................16 Johnson v. Lincoln Univ. of Com. System of Higher Educ., 776 F.2d 443 (3d Cir. 1985).....................6,34 Kachmar v. Sungard Data Sys., Inc., 109 F.3d 173 (3d Cir. 1997).............................................................16 Kadetsky v. Egg Harbor Township Bd. of Educ., 82 F.Supp.2d 327 (D.N.J. 2000)...................................11 Katzenmoyer v. City of Reading, 2001 WL 1132374 (E.D.Pa.).................................................................11 Keenan v. City of Phila., 983 F.2d 459 (3d Cir. 1992)...............................................................................13 Keenan v. Tejeda, 290 F.3d 252 (5th Cir.2002)..........................................................................................11 Kelleher v. City of Reading, 2002 WL 1067442 (E.D.Pa.).........................................................................11 Krouse v. American Sterilizer Co., 126 F.3d 494 (3d Cir. 1997)...............................................................16 Kunda v. Muhlenberg College, 621 F.2d 532 (3d Cir. 1980).....................................................................17 Lapinski v. Bd. of Educ. of the Brandywine Sch. Dist., 2006 WL 167443 (3d Cir. Jan. 24, 2006)...........11 Leveto v. Lapina, 258 F.3d 156 (3d Cir. 2001)...........................................................................................33 McDonald v. Smith, 472 U.S. 479 (1985)...................................................................................................35 Marrero v. Camden County Bd. of Social Serv., 164 F.Supp.2d 455 (D.N.J. 2001)..................................11 Melton v. Oklahoma City, 879 F.2d 706 (10th Cir. 1989)...........................................................................31 Miller v. Cigna, Corp., 47 F.3d 586 (3d Cir. 1995) (en banc)....................................................................13 Missouri v. Jenkins, 491 U.S. 274 (1989)...................................................................................................30 Mitchell v. Street, 2005 WL 1993774 (E.D.Pa. Aug. 16, 2005)...................................................................7 Molloy v. Blanchard, 907 F.Supp. 46 (D.R.I. 1995)....................................................................31,36,39-40 Monsanto v. Quinn, 674 F.2d 990 (3d Cir. 1982).......................................................................................34 Mount Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977)........................................................1,1,34 NAACP v. Button, 371 U.S. 415 (1963).....................................................................................................35 vii

Case 1:04-cv-01394-GMS

Document 153

Filed 01/31/2006

Page 9 of 102

Nicholas v. Pa. State Univ., 227 F.3d 133 (3d Cir. 2000)...........................................................................29 O'Donnell v. Yanchulis, 875 F.2d 1059 (3d Cir. 1989)..............................................................................34 Ostad v. Oregon Health Sciences Univ., 327 F.3d 876 (9th Cir. 2003)......................................................29 Paff v. Kaltenback, 204 F.3d 425 (3d Cir. 2000)........................................................................................32 Pickering v. Bd. of Educ., 391 U.S. 563 (1968).......................................................................................7,34 Pro v. Donatucci, 81 F.3d 1283 (3d Cir. 1996)...........................................................................................34 Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000)..................................................2,15,27 Rankin v. McPherson, 483 U.S. 378 (1987)................................................................................................34 Resident Advisory Bd. v. Rizzo, 564 F.2d 126 (3d Cir. 1977)...................................................................17 Rhodes v. Robinson, 408 F.3d 559 (9th Cir. 2005)......................................................................................11 Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997).........................................................11,13-14 Robinson v. Clemons, 987 F.Supp. 280 (D.Del. 1998)...............................................................................38 Robinson v. SEPTA, 982 F.2d 892 (3d Cir. 1993)......................................................................................16 Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988).........................................................................6,34-35 Rodriguez v. Torres, 60 F.Supp.2d 334 (D.N.J. 1999)................................................................................11 Rogers v. Powell, 120 F.3d 446 (3d Cir. 1997)...........................................................................................30 Roska v. Peterson, 328 F.3d 1230 (10th Cir. 2003).....................................................................................39 Rutan v. Republican Party, 497 U.S. 62 (1990) .........................................................................................10 San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir. 1994)............................................................3,7,26,35-36 Saucier v. Katz, 533 U.S. 194 (2001)....................................................................................................30-31 Sharrar v. Felsing, 128 F.3d 810 (3d Cir. 1997).........................................................................................38 Shehee v. City of Wilm., 67 Fed.Appx. 692 (3d Cir. May 13, 2003).........................................................11 Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061 (3d Cir. 1996) (en banc).......................27-28 Smith v. Plati, 258 F.3d 1167 (10th Cir.2001)............................................................................................11 Stanley v. City of Dalton, Georgia, 219 F.3d 1280 (11th Cir. 2000)..........................................................29 Stewart v. Rutgers, the State Univ., 120 F.3d 426 (3d Cir. 1997)..............................................................17 viii

Case 1:04-cv-01394-GMS

Document 153

Filed 01/31/2006

Page 10 of 102

Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720 (3d Cir. 1989)....................................................32-33 Sunkett v. Misci, 183 F.Supp.2d 691 (D.N.J. 2002)...................................................................................11 Suppan v. Dadonna, 203 F.3d 228 (3d Cir. 2000).................................................................................10-13 United Mine Workers of America v. Ill. State Bar Ass'n, 389 U.S. 217 (1967)........................................35 U.S. v. Lanier, 520 U.S. 259 (1997)............................................................................................................33 V-1 Oil Co. v. State of Wyoming, Dept. Of Environmental. Quality, 902 F.2d 1482 (10th Cir. 1990)......39 Vazquez-Valentin v. Santiago-Diaz, 385 F.3d 23 (1st Cir. 2004)...............................................................29 Versarge v. Township of Clinton N.J., 984 F.2d 1359 (3d Cir. 1993)..........................................................6 Village of Arlington Heights v. Metropolitan Hous. Develop. Corp., 429 U.S. 252 (1977)......................17 Washington v. County of Rockland, 373 F.3d 310 (2d Cir.2004)..............................................................11 Watters v. City of Phila., 55 F.3d 886 (3d Cir. 1995).................................................................................34 We, Inc. v. City of Phila., 174 F.3d 322 (3d Cir. 1999)...........................................................................3,36 Wilson v. Layne, 526 U.S. 603 (1999)..............................................................................................30,32-33 Woodson v. Scott Paper Co., 109 F.3d 913 (3d Cir. 1997).........................................................................16 Wright v. City of Phila., 409 F.3d 595 (3d Cir. 2005)................................................................................31 Yalowizer v. Town of Ranchester, Wyoming, 18 Fed.Appx. 745 (10th Cir. 2001)...................................29 Zamboni v. Stamler, 847 F.2d 73 (3d Cir. 1988)..........................................................................................6 Zugarek v. Southern Tioga Sch. Dist., 214 F.Supp.2d 468 (M.D.Pa. 2002)...............................................11

Constitutions, Statutes and Rules U.S. Const., Amend. I...........................................................................................................................passim Fed.R.Civ.P. 8(c).........................................................................................................................................29 Fed.R.Civ.P. 56(c).........................................................................................................................................1 11 Del.C. § 9200(b)................................................................................................................................24-25 11 Del.C. § 9200(c)................................................................................................................................24-25 11 Del.C. § 9200(c)(12).........................................................................................................................24,26 ix

Case 1:04-cv-01394-GMS

Document 153

Filed 01/31/2006

Page 11 of 102

Law Enforcement Officers' Bill of Rights...........................................................................................passim Third Circuit Internal Operating Procedures at Chapter 8.C........................................................................3

x

Case 1:04-cv-01394-GMS

Document 153

Filed 01/31/2006

Page 12 of 102

NATURE AND STAGE OF THE PROCEEDING Plaintiff relies upon the Nature and Stage of the Proceedings set forth in her Opening Brief in Support of her Motion for Summary Judgment. (D.I. 139). This is plaintiff's answering brief in opposition to defendants' motion for summary judgment on Counts II and III.1 SUMMARY OF THE ARGUMENT Plaintiff clearly engaged in protected First Amendment activity and there is abundant evidence on the Mt. Healthy causal factors, sufficient to survive summary judgment. Additionally, the unprecedented retaliation against her was sufficient to chill a person of ordinary firmness from exercising their First Amendment rights. Likewise, the claim of absolute immunity is frivolous, while long established First Amendment retaliation law and longstanding DSP confidentiality policies and practices make it clear that the defense claims of qualified immunity also are without merit. STATEMENT OF FACTS Plaintiff relies upon the exhaustive Statement of Facts contained in her summary judgment opening brief. ARGUMENT I. STANDARD OF REVIEW. A motion for summary judgment shall be granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Boyle v. County of Allegheny, Pa., 139 F.3d 386, 393 (3d Cir. 1998); Fed.R.Civ.P. 56(c). "All facts and inferences are construed in the light most favorable to the non-moving party." Boyle, 139 F.3d at 393. At summary judgment, "a court may not weigh the evidence or make credibility determinations; these tasks are left to the fact-finder." Id. To raise a genuine issue of material fact, "the

Defendants' summary judgment opening brief will be cited as "DOB" and plaintiff's own summary judgment opening brief will be cited as "POB."

1

-1-

Case 1:04-cv-01394-GMS

Document 153

Filed 01/31/2006

Page 13 of 102

[summary judgment] opponent need not match, item for item, each piece of evidence proffered by the movant, but simply must exceed the 'mere scintilla' standard." Id. (internal punctuation omitted). The Third Circuit recently revisited summary judgment standards in the First Amendment retaliation context. The recent opinion in Hill v. City of Scranton, 411 F.3d 118 (3d Cir. 2005), held that when an employer moves for summary judgment, even the uncontradicted testimony of interested witnesses supporting the employer, such as supervisors, employees and other workers, should not be considered or otherwise weighed in the summary judgment balancing. "[W]hen evaluating a summary judgment motion a court should not consider even uncontradicted testimony of an interested witness where that testimony supports the movant." Hill, 411 F.3d at 131 n.22 (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 149-151 (2000)); see also Hill, 411 F.3d at 129 n.16. Thus, the Hill decision reaffirms long existing Third Circuit and Supreme Court precedent and dictates that the defense reliance herein upon testimony and affidavits from its own employees and even one of its attorneys is misplaced at the summary judgment stage due to their obvious bias, fear of losing their jobs or other retaliation. Thus, their testimony should be excluded from the Court's analysis of summary judgment issues. Additionally, defendants' own testimony should be disregarded because, as defendants, they certainly are "interested witness[es]" under Hill. 411 F.3d at 131 n.22. II. THE FILING OF PLAINTIFF'S GENDER DISCRIMINATION LAWSUIT CHALLENGING THE ILLEGAL ACTIONS OF THE HIGHEST RANKING POLICE OFFICER IN THE STATE CONSTITUTES PROTECTED SPEECH AND PETITIONING OF THE GOVERNMENT FOR REDRESS OF GRIEVANCES UNDER THE FIRST AMENDMENT. Defendants claim that as a matter of law, the filing of plaintiff's lawsuit does not constitute protected activity under the First Amendment. (DOB at 27-34). Defendants are clearly mistaken.

-2-

Case 1:04-cv-01394-GMS

Document 153

Filed 01/31/2006

Page 14 of 102

A. Petition Clause. 1. This Court Cannot Overrule the Third Circuit. First, defendants invite this Court to overrule long established Third Circuit petition clause precedent. Specifically, they ask the Court not to follow San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir. 1994), because defendants believe it "suffers from many legal flaws and, frankly, some tortuous logic." (DOB at 31). Although certainly a novel request, unfortunately for defendants, a district court cannot overrule or simply ignore binding Third Circuit precedent. EEOC v. Univ. of Pa., 850 F.2d 969 (3d Cir. 1988) (noting that a "district court ... lacks the authority to overrule an opinion" of the Third Circuit). Indeed, not even a panel of the Third Circuit can overrule a previous panel's decision. Only the Circuit sitting en banc can do that. See Third Circuit Internal Operating Procedures at Chapter 8.C. So despite the fact that defendants do not like the reasoning, legal analysis or conclusion of the Third Circuit in San Filippo, it still must be followed and it should have gone without saying that of course this Court will follow binding legal precedent. 2. San Filippo is Still Good Law and Its Holding Has Been Repeatedly Reaffirmed. Secondly, defendants are simply wrong on their petition clause legal analysis. The Third Circuit has repeatedly reaffirmed San Filippo's holding. See, e.g. Anderson v. Davila, 125 F.3d 148, 161-63 (3d Cir. 1997); Brennan v. Norton, 350 F.3d 399, 417 (3d Cir. 2003). Indeed, as the Circuit held again just last summer, "[i]n this circuit, any lawsuit brought by an employee against a public employer qualifies as protected 'petition' under the First Amendment so long as it is not 'sham litigation.'" Hill, 411 F.3d at 126. Defendants do not assert that plaintiff's lawsuit was a sham, thus, it is clear that the filing of plaintiff's lawsuit is protected by the petition clause.2

Defendants have misrepresented the holding of We, Inc. v. City of Phila., 174 F.3d 322 (3d Cir. 1999), which even a cursory analysis of the We footnote which defendants cite reveals. (DOB at 33). See We, 174 F.3d at 330 n.2.

2

-3-

Case 1:04-cv-01394-GMS

Document 153

Filed 01/31/2006

Page 15 of 102

B. Free Speech Clause. 1. The Third Circuit, en banc, Has Held that Gender Discrimination by High Public Officials is a Matter of Public Concern. Citing Eleventh Circuit precedent, defendants also invite this Court to again ignore settled Third Circuit law in the free speech arena. (DOB at 29). In Azzaro v. County of Allegheny, 110 F.3d 968 (3d Cir. 1997) (en banc), the Third Circuit addressed the issue of whether gender discrimination by a high public official is a matter of public concern. The en banc Court held that it clearly is. Id. at 978-79. As the Court stated, We believe this form of discrimination, when practiced by those exercising authority in the name of a public official, is as much a matter of public concern as racial discrimination practiced under similar circumstances. Id. at 978. Additionally, the Circuit explained that Azzaro's speech about gender discrimination by a high public official was speech that "brought to light actual wrongdoing on the part of one exercising public authority that would be relevant to the electorate's evaluation of the performance of the office...." Id. It also did not matter to the Court that Azzaro's primary motive in speaking out was her concern to save her own job and that of her husband. Id. at 979. Because of the nature of her speech and its value to the public at large, the Court nonetheless held that it was on a matter of public concern. Id. The en banc Azzaro opinion is the end of the matter. Defendant Chaffinch was the highest ranking police officer in the State of Delaware, and was the Superintendent of the DSP, an important public agency. As plaintiff's summary judgment opening brief explains in great detail, while holding that position, he regularly debased and degraded women with his words and actions, both in the workplace and outside of it. Plaintiff's lawsuit exposed Chaffinch's despicable and degrading behavior and also exposed that he had repeatedly denied her promotion because of her gender in violation of the Fourteenth Amendment. As in Azzaro, this type of gender discrimination and other sexually inappropriate behavior by a high public official like

-4-

Case 1:04-cv-01394-GMS

Document 153

Filed 01/31/2006

Page 16 of 102

Chaffinch are inherently matters of public concern. In the Supreme Court's words, "public concern is something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication." City of San Diego v. Roe, 543 U.S. 77, 83-84 (2004) (per curiam). As was explained in plaintiff's opening brief, the public concern in plaintiff's speech has been overwhelming demonstrated by the flood of media attention it brought, the News Journal's actions in intervening in this lawsuit because of the overwhelming public interest, the actions of Delaware legislature, as well as defendants own actions in suspending Chaffinch for seven months because of his sexually inappropriate behavior which this lawsuit exposed. (POB at 29-34). 2. Plaintiff's Speech Exposed Illegal Conduct by a High Public Official. Additionally, police officers swear to uphold and protect the U.S. Constitution. Here plaintiff's lawsuit exposed that Chaffinch has repeatedly violated the highest law in the land. So in the Third Circuit, a Circuit which is much more welcoming to civil rights cases than many other Circuits which defendants apparently prefer, "[d]isclosing corruption, fraud and illegality in a government agency is a matter of significant public concern." Baldassare v. State of N.J., 250 F.3d 188, 196 (3d Cir. 2001) (emphasis added); accord id. at 197 (speech that seeks "to bring to light actual or potential wrongdoing or breach of the public trust" by public officials is of the "utmost public concern"). Plaintiff's lawsuit exposed Chaffinch's illegal behavior. Her lawsuit brought the bright light of public scrutiny to bear upon Chaffinch's wrongdoing while holding high public office. So as a result the case law dictates that her lawsuit was on a matter of public concern. 3. Plaintiff's Motivations. Defendants also claim that plaintiff's lawsuit should not be protected because she seeks relief personal to her. (DOB at 27). Essentially, defendants claim that plaintiff's motive in bringing the lawsuit was only to help herself and not

-5-

Case 1:04-cv-01394-GMS

Document 153

Filed 01/31/2006

Page 17 of 102

women as a class. First, plaintiff wholeheartedly disagrees with such a characterization of her motivations. Plaintiff believes that women Troopers, as a class, are now much better off in the DSP since Chaffinch was forced into retirement as a result of her suit. Someone had to speak up and oppose how Chaffinch treats women, and plaintiff is proud to have blazed that path for other women. But even under the relevant legal paradigms, although motive of the speaker is one factor to be considered, Versarge v. Township of Clinton N.J., 984 F.2d 1359, 1364 (3d Cir. 1993), "complete reliance on [the employee's] motivation for speaking is inappropriate." Rode v. Dellarciprete, 845 F.2d 1195, 1201 (3d Cir. 1988). "[T]he speaker's motive, while often a relevant part of the context of the speech, is not dispositive." Brennan, 350 F.3d at 413. "[T]he mere fact that an employee's statement is an outgrowth of his personal dispute does not prevent some aspect of it from touching upon matters of public concern." Johnson v. Lincoln Univ. of Com. System of Higher Educ., 776 F.2d 443, 451 (3d Cir. 1985) (internal punctuation omitted). Indeed Common sense suggests that public employees, no less than other employees, will be more likely to speak out when they are disgruntled or personally dissatisfied with some aspect of their employment or employer. Nevertheless, the harm that results from silencing or chilling public speech is neither negated nor mitigated merely because the speaker may have harbored motivations that were less than altruistic. Brennan, 350 F.3d at 413. As the Third Circuit has observed, "it is unlikely that any employee who lacks a personal interest in the subject that gives rise to the speech in question would file a lawsuit to vindicate her or her First Amendment rights." Zamboni v. Stamler, 847 F.2d 73, 78 (3d Cir. 1988). In other words, even if an employee has a personal stake in the outcome or is even motivated by ill will, her speech may still be of public concern. "[M]otivations will rarely, by themselves, justify silencing speech that otherwise addresses matters concerning the public." Brennan, 350 F.3d at 413. It is the nature and value of the speech itself that matters most. Baldassare, 250 F.3d at 197; Brennan, 350 F.3d at 413. As is discussed above and in plaintiff's

-6-

Case 1:04-cv-01394-GMS

Document 153

Filed 01/31/2006

Page 18 of 102

opening brief, the nature and value of plaintiff's speech is exceptionally high. (POB at 30-34). Accordingly, for these reasons, and those discussed in greater detail in plaintiff's opening brief, her lawsuit was clearly on a matter of public concern. 4. Defendants Have Waived The Pickering Balancing Defense. As discussed in plaintiff's opening brief, the Pickering v. Bd. of Educ., 391 U.S. 563 (1968) "balancing test comes into play only if the public employer concedes that it dismissed an employee because of the employee's protected speech but contends that it was justified in doing so." San Filippo, 30 F.3d at 434 n.11 (emphasis added).3 If the employer denies that it dismissed the employee because of his protected speech, the balancing test "has no application." Id. Accordingly, because defendants flatly deny that they retaliated against plaintiff because of her speech, the balancing test "has no application." Id. Consequently, plaintiff's speech is protected by the First Amendment. III. DEFENDANTS' RETALIATION AGAINST PLAINTIFF WOULD CHILL A PERSON OF ORDINARY FIRMNESS FROM EXERCISING THEIR FIRST AMENDMENT RIGHTS. A. Defendants' Unlawful Retaliation Against Plaintiff. 1. 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; A131-35,160). These charges were not pending in March and July of 2003 when the two challenged promotions occurred. As to the defense claim that there is no evidence pertaining to when the leak occurred.

Accord Howard v. Bd. of Educ. of City of East Orange, 90 Fed.Appx. 571, 575 n.6 (3d Cir. 2003); Dennison v. Pa. Dept. of Corr., 268 F.Supp.2d 387, 399 (M.D.Pa. 2003); Mitchell v. Street, 2005 WL 1993774, *2 n.5 (E.D.Pa. Aug. 16, 2005); Bedford v. SEPTA, 867 F.Supp. 288, 295 n.8 (E.D.Pa. 1994).

3

-7-

Case 1:04-cv-01394-GMS

Document 153

Filed 01/31/2006

Page 19 of 102

(DOB at 9-10). Lt. Aviola testified that he received a telephone call the same day or the day after the suit was filed from Tom Eldred, ace reporter for the Delaware State News. (Aviola 53-55; A131-32). Eldred related to Aviola that he had in his possession what he believed to be an internal DSP e-mail stating that plaintiff was being brought up on internal affairs charges. (Aviola 54; A132). Eldred wanted confirmation that the e-mail was in fact an internal DSP document and he wanted comment on the contents of the e-mail. (Aviola 54-55; A132). Notably, Aviola did not testify that he received the call from Eldred prior to the suit being filed. Instead, he testified that he received the call only after plaintiff filed her lawsuit. (Aviola 53-54; A131-32). Given that Eldred did not call about the e-mail until after the lawsuit was filed, it is a fair inference (all the more so at summary judgment where plaintiff receives all the inferences) that the e-mail had not yet been leaked to him prior to the suit being filed. 2. The Second Act of Retaliation - Defendants Refused to Investigate This Release. Despite the release of plaintiff's confidential internal affairs information, defendants refused to investigate the release to the Delaware media. (Aviola 62; MacLeish 145-150; Mitchell 49-50; A134,198-200,258-59). 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; A200,259). The DSP "considered" investigating, but chose not to. (Mitchell 49-50; A258-59). In MacLeish's words, "an inquiry" was conducted, but "it was basically impossible" to conduct an "investigation" because they did not know where to start to investigate. (MacLeish 147; A199). Defense protestations to the contrary aside (DOB at 21-23), defendant MacLeish was very clear in his testimony and took pains to point out that an "investigation" was not conducted because amazingly there were "no suspects" at that time. (MacLeish 147; A199).4

Plaintiff notes that even a school child would have thought that Chaffinch would be a good suspect given that he had the motive to retaliate given that he was the one who had been sued by plaintiff less than 24 hours earlier. Or perhaps one of Chaffinch's close friends within the Division might have

4

-8-

Case 1:04-cv-01394-GMS

Document 153

Filed 01/31/2006

Page 20 of 102

3. 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; A122-23). "[M]ost of the time it's pretty specific [ ] what they want said." (Aviola 20; A123). 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; A132-34,194,196-98). 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; A134-37,140,198,203,214). As Aviola testified, MacLeish's exact orders were[C]all Mr. Eldred back and give him the information. ... Once you look at the document, if you feel that it looks like one of our e-mails, then comment on it. (Aviola 63-64; 134). Aviola testified that, pursuant to MacLeish's order, he did in fact comment beyond the four corners of the document,5 and explained to reporter Eldred that plaintiff was facing charges for conduct unbecoming and sexual harassment. (Aviola 70; A136).6 been a good place to start the DSP's investigation and search for suspects. But alas, the DSP had "no suspects" and so could not investigate. (MacLeish 147; A199). This contradicts the explicit defense contention that "[t]here is absolutely no evidence that any information beyond verification of the four corners of the document was supplied to reporter Eldred, or to any other party." (DOB at 26). The defense claim that Aviola could have otherwise answered an ordinary inquiry from reporter Eldred as to what #4 and #40 of the DSP rules and regulations were (DOB at 16) misses a very fundamental point of First Amendment jurisprudence. It has long been established that "an otherwise legitimate and constitutional government act can become unconstitutional when an individual demonstrates that it was undertaken in retaliation for his exercise of First Amendment speech." Anderson, 125 F.3d at 161. As far as it relates to the First Amendment, "motives of government officials are indeed relevant, if not dispositive, when an individual's exercise of speech precedes government action affecting that individual." Id. If MacLeish's order to Aviola to confirm and comment was
6 5

-9-

Case 1:04-cv-01394-GMS

Document 153

Filed 01/31/2006

Page 21 of 102

"But for his authorization," Lt. Aviola would not have discussed the matter with the media, "other than saying `no comment.'" (Aviola 89,70; A140,136). Q. Based on your past practice, would you have commented to Reporter Eldred unless MacLeish had given you the authority to comment? A. No, I would not have. (Aviola 70; A136). Notably, the defense claim that no news story ran in the Delaware media as a result of defendants' unprecedented confirmation and comment is equally without merit. (DOB 11). Defendants ignore the October 29, 2004 Delaware State News article that is in the record. (A44). Defendants also ignore other evidence in this regard. (Conley Inter. at p.52; A1047) B. The Law of First Amendment Adverse Action. In the First Amendment context, "the constitutional violation is not in the harshness of the sanction applied, but in the imposition of any disciplinary action for the exercise of permissible free speech." Bennis v. Gable, 823 F.2d 723, 731 (3d Cir. 1987) (public employee context) (emphasis added). It "is implicated whenever a government employee is disciplined for his speech." Id. As the U.S. Supreme Court took pains to note (and as the Third Circuit has recognized), [T]he First Amendment ... protects state employees [not only just from dismissals] but also from even an act of retaliation as trivial as failing to hold a birthday party for a public employee ... when intended to punish her for exercising her free speech rights. Rutan v. Republican Party, 497 U.S. 62, 76 n.8 (1990) (public employee context) (internal punctuation omitted) (emphasis added); accord Suppan v. Dadonna, 203 F.3d 228, 234 (3d Cir. 2000) (public employee context). "The effect on freedom of speech may be small, but since there is no justification for harassing people for exercising their constitutional rights it need not

motivated by the filing of plaintiff's lawsuit, then assuming arguendo that despite what might have been "an otherwise legitimate" government action, that action is made illegal because "it was undertaken in retaliation for the exercise of [plaintiff's] First Amendment speech." Id. Motives are key in this context. That is why such causal determinations are the reserved province of the fact-finder. See Baldassare, 250 F.3d at 195.

-10-

Case 1:04-cv-01394-GMS

Document 153

Filed 01/31/2006

Page 22 of 102

be great in order to be actionable." Suppan, 203 F.3d at 235(quoting Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982)). Adverse action is found if "retaliatory conduct [is] sufficient to deter a person of ordinary firmness from exercising his First Amendment rights." Suppan, 203 F.3d at 235 (internal punctuation omitted) (emphasis added); accord Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000); Shehee v. City of Wilm., 67 Fed.Appx. 692, 694 (3d Cir. May 13, 2003) (public employee context); see Lapinski v. Bd. of Educ. of the Brandywine Sch. Dist., 2006 WL 167443, *2 (3d Cir. Jan. 24, 2006) (public employee context) (reversing the district court for failing to apply the person of ordinary firmness standard in a First Amendment retaliation case).7 Put another way, the retaliatory actions must be sufficiently severe to "cause reasonably hardy individuals" to refrain from protected activity. Agosto-de-Feliciano, 889 F.2d at 1217.8 This is an objective test, not a subject one. Garcia v. City of Trenton, 348 F.3d 726, 729 (8th Cir. 2003).9 As was discussed in plaintiff's opening brief as well as herein, within hours of the filing of plaintiff's lawsuit, defendants violated numerous longstanding DSP policies, practices,
7

Numerous other courts have adopted this standard. See e.g. Bennett v. Hendrix, 423 F.3d 1247, 1254-55 (11th Cir. 2005); Washington v. County of Rockland, 373 F.3d 310, 320 (2d Cir.2004); Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir.2002); Carroll v. Pfeffer, 262 F.3d 847, 850 (8th Cir.2001); Smith v. Plati, 258 F.3d 1167, 1176 (10th Cir.2001); Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir.1998); . Agosto-de-Feliciano v. Aponte-Rogue, 889 F.2d 1209, 1217 (1st Cir. 1989) (en banc); Bart, 677 F.2d at 625; Rodriguez v. Torres, 60 F.Supp.2d 334, 349 (D.N.J. 1999); Kadetsky v. Egg Harbor Township Bd. of Educ., 82 F.Supp.2d 327, 337 (D.N.J. 2000); Katzenmoyer v. City of Reading, 2001 WL 1132374, *2 (E.D.Pa.); Marrero v. Camden County Bd. of Social Serv., 164 F.Supp.2d 455, 467 (D.N.J. 2001); Sunkett v. Misci, 183 F.Supp.2d 691, 708 (D.N.J. 2002); Kelleher v. City of Reading, 2002 WL 1067442, *5 (E.D.Pa.); Zugarek v. Southern Tioga Sch. Dist., 214 F.Supp.2d 468, 476-77 (M.D.Pa. 2002). This is an easier standard to meet than the statutorily based adverse action test in the Title VII context. See Robinson v. City of Pittsburgh, 120 F.3d 1286, 1297-1300 (3d Cir. 1997) (setting forth the stricter Title VII standard); Rodriguez, 60 F.Supp.2d at 345 n.10 (recognizing the distinction between the adverse action standards in the First Amendment and Title VII contexts). Because this is an objective standard, a plaintiff need not demonstrate that she actually was deprived of her First Amendment rights. See Constantine v. Rectors and Visitors of George Mason Univ., 411 F.3d 474, 500 (4th Cir. 2005). Indeed, "[s]peech can be chilled, even when not completely silenced." Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005); see Constantine, 411 F.3d at 500 ("The cause of action targets conduct that tends to chill such activity, not just conduct that freezes it completely").
9 8

-11-

Case 1:04-cv-01394-GMS

Document 153

Filed 01/31/2006

Page 23 of 102

customs and rules and released to and discussed with the media the fact that plaintiff was facing confidential internal affairs charges. This was an unprecedented action. Indeed, when faced with similar, if not identical, circumstances relating to media inquiries into defendants' own internal affairs charges, defendants always refused to comment. As the causal evidence discussed below makes clear, by releasing this information, defendants intended to punish and humiliate plaintiff for exercising her First Amendment rights. The release of such confidential information is certainly sufficient to make a person of ordinary firmness think twice about exercising their First Amendment rights. Any reasonably hardy individual would think twice about filing a lawsuit if confidential information about them will be released. Indeed, who would dare to stand up and file a lawsuit if they know that the defendant then will release confidential information about them to the media where it will then be published on a local and regional scale? Few, if any individuals would do so. Importantly however, the adverse action standard is satisfied if the "retaliatory conduct [is] sufficient to deter a person of ordinary firmness from exercising his First Amendment rights." Suppan, 203 F.3d at 235. All that is needed is a chill, and the defense efforts certainly meet this standard. To the extent that the Court has any doubts in this regard, because the question of whether a retaliatory action would chill a person with an ordinary backbone from exercising their rights is a question for the fact finder, see Suppan, 203 F.3d at 235; Allah, 229 F.3d at 225; Baldassare, 250 F.3d at 195, this is uniquely a question to be resolved by a jury. Additionally, in light of the standard of review in which plaintiff receives all the inferences, it is clear that plaintiff has met her burden and that summary adjudication for lack of adverse action is inappropriate. III. THE RECORD IS OVERFLOWING WITH CAUSAL EVIDENCE WHICH DEMONSTRATES THAT PLAINTIFF'S PROTECTED FIRST AMENDMENT ACTIVITY WAS A SUBSTANTIAL OR MOTIVATING FACTOR IN THE UNPRECEDENTED RETALIATION AGAINST HER. Defendants claim that there is no record evidence to meet plaintiff's First Amendment burden on causation. As discussed below and in plaintiff's summary judgment opening brief,

-12-

Case 1:04-cv-01394-GMS

Document 153

Filed 01/31/2006

Page 24 of 102

defendants are mistaken. A. Substantial or Motivating Factor. Following the determination that her conduct was constitutionally protected, plaintiff must demonstrate that this conduct was a "substantial" or "motivating factor" in the relevant decision. Suppan, 203 F.3d at 235; Mount Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). "But for" causation is not needed. Suppan, 203 F.3d at 236. "`Substantial factor' does not mean `dominant' or `primary' factor." Hill, 411 F.3d at 126 n.11. Instead, a plaintiff need only show that her protected First Amendment rights "played any substantial role in the relevant decision." Suppan, 203 F.3d at 236; see Miller v. Cigna, Corp., 47 F.3d 586, 597 n.9 (3d Cir. 1995) (en banc) ("played a role" in the adverse decision). This is a question of fact, not one of law. Baldassare, 250 F.3d at 195. Plaintiff notes that the overwhelming causal evidence in this regard was discussed in great detail in her opening brief. However, plaintiff will discuss that evidence in even greater detail below. 1. Knowledge of Protected Conduct. Sufficient evidence must be produced to demonstrate that the defendants knew of the protected activity. Keenan v. City of Phila., 983 F.2d 459, 466 (3d Cir. 1992). Here, all defendants were aware of the filing of plaintiff's lawsuit. (Compl.& Ans. ¶ 109; MacLeish 117-20; Mitchell 28-30; A19,39,191-92,253-54). Supervisor liability also may be established 1) "through allegations of personal direction or of actual knowledge and acquiescence," or 2) "through proof of direct discrimination by the supervisor." Id. Importantly, "[w]here a supervisor with authority over a subordinate knows that the subordinate is violating someone's rights but fails to act to stop the subordinate from doing so, the factfinder may usually infer that the supervisor 'acquiesced' in (i.e., tacitly assented to or accepted) the subordinate's conduct." Robinson, 120 F.3d at 1294; accord Adkins v. Rumsfeld, 389 F.Supp.2d 579, 585-86 (D.Del. 2005). "To impose liability on the individual defendants, Plaintiffs must show that each one individually participated in the alleged constitutional violation or approved of it." C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 173 (3d Cir. 2005) (citing

-13-

Case 1:04-cv-01394-GMS

Document 153

Filed 01/31/2006

Page 25 of 102

C.H. v. Olivia, 226 F.3d 198, 201-02 (3d Cir. 2000) (en banc)). a. MacLeish's Involvement. Defendants have not contended that MacLeish was not involved in the decision to release plaintiff's internal affairs information to the Delaware media - nor could they since he gave the order to Aviola to release and discuss the information at issue. (Aviola 63-70,76-77,86-89; MacLeish 142,165, 208; A134-37,140, 198, 203,214). b. Mitchell's Authorization. Defendants do however contend that Mitchell had no involvement. (DOB at 23-24). Yet defendant 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; A196,198,203,258,260). Q. Would you have made the decision to authorize the release if Secretary Mitchell hadn't agreed and []sanctioned it or authorized it? A. No. (MacLeish 135; A196). Thus, despite Mitchell's own tainted denials of involvement, fellow defendant MacLeish's testimony makes clear that Mitchell "acquiesced in (i.e., tacitly assented to or accepted)" and otherwise "fail[ed] to act to stop" MacLeish's retaliatory actions despite Mitchell's ability to do so. Robinson, 120 F.3d at 1294; Adkins, 389 F.Supp.2d at 585-86. Under settled Third Circuit law, Mitchell's failure to stop MacLeish's actions despite his clear ability, opportunity and authority to do so, is sufficient to establish that Mitchell "individually participated in the alleged constitutional violation or approved of it." C.N., 430 F.3d at 173. c. Chaffinch's Involvement. Defendants also contend that there is no evidence of Chaffinch's involvement in any retaliatory actions. (DOB at 24-25). Plaintiff notes that there would be a great deal more evidence of Chaffinch's involvement if defendants had not erased Chaffinch's computer hard drive and forever destroyed the Arch system messages that plaintiff had expected to use to prove involvement with direct evidence. However, there is more than sufficient circumstantial evidence to demonstrate

-14-

Case 1:04-cv-01394-GMS

Document 153

Filed 01/31/2006

Page 26 of 102

Chaffinch's involvement despite his self-serving denials - denials that are to be disregarded given our present summary judgment posture and the standard of review. See Hill, 411 F.3d at 131 n.22; Reeves, 530 U.S. at 149-151; Hill, 411 F.3d at 129 n.16. As defendant Mitchell admitted, Chaffinch was "ang[ry]," "displeased" and "pissed off" about the filing of plaintiff's lawsuit. (Mitchell 36; A255). And there is a great deal of record evidence that Chaffinch and MacLeish are "buddies" and "friends." (Chaffinch 16-17; MacLeish 7; A614,375; Chaffinch 187; Baylor 20; A111,273). In fact, MacLeish publicly brags that he and Chaffinch are "joined at the hip." (MacLeish 9; A375). Thus, it is a fair inference that Chaffinch's good buddy MacLeish was acting at Chaffinch's direction when he retaliated against plaintiff, the person who had hurt and upset his good friend. This inference is strengthened all the more in light of the record evidence that Chaffinch expects "blind loyalty" from all those under his command and his history of vindictiveness and vengefulness towards those who oppose him. (See POB at 14). Additionally, in light of defendants' destruction of evidence, the compelling temporal proximity, the violation of numerous DSP policies, practices and customs and the other categories of causal evidence discussed below, it is a fair inference that Chaffinch was in fact involved in the retaliation against plaintiff. Defendants contend that Chaffinch was "immediately" relieved of command and was not present on DSP property and so could not have leaked the internal affairs e-mail to the Delaware media. (DOB at 10 n.6). Notably, defendants have not given a record cite for this allegation - no doubt because it is patently false. Plaintiff notes that Lt. Aviola testified that Chaffinch was at headquarters the day the suit was filed. It was only later that Chaffinch was summoned to defendant Mitchell's office where he was suspended later that same day. (Aviola 78-80; A138). Given that Chaffinch was at HQ and was visibly "upset" by the filing of plaintiff's lawsuit (Aviola 83; A139) and certainly had the motive to retaliate against the person who had exposed his vile conduct, he had plenty of time and opportunity to release the e-mail in question to the

-15-

Case 1:04-cv-01394-GMS

Document 153

Filed 01/31/2006

Page 27 of 102

media before Mitchell suspended him. Of course, again, plaintiff acknowledges that some of the best evidence of Chaffinch's retaliatory intent and actions was located his Arch text messaging system on his DSP computer, which defendants destroyed despite its relevance and the pendency of this litigation. 2. Temporal Proximity. "[T]emporal proximity between the protected activity and the [retaliation] is sufficient to establish a causal link." Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997). The Third Circuit has found that the temporal link alone can establish causation when the retaliation occurs within two days of the protected conduct, Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989), because such a short period of time is "unusually suggestive." Krouse v. American Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997). This "is an obvious method by which a plaintiff can proffer circumstantial evidence sufficient to raise the inference that [his] protected activity was the likely reason for the adverse action." Kachmar v. Sungard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997) (internal punctuation omitted). As discussed above, some retaliation occurred within ours of the filing of plaintiff's suit while the rest of the retaliation occurred the very next day. 3. Demonstrated Anger, Hostility and Antagonism. Evidence of anger, hostility and other antagonism also demonstrates causation. It is well established that "a plaintiff can establish a link between his or her protected behavior and subsequent discharge if the employer engaged in a pattern of antagonism in the intervening period." Woodson, 109 F.3d at 920-21; accord Adkins, 389 F.Supp.2d at 586 ("antagonism toward Plaintiff" proof of causation); see Robinson v. SEPTA, 982 F.2d 892, 895 (3d Cir. 1993). For example, evidence that a defendant is "irritated" or otherwise angered by a plaintiff can be compelling evidence of causation. See Fasold v. Justice, 409 F.3d 178, 190 (3d Cir. 2005) (defendant "irritated" by

-16-

Case 1:04-cv-01394-GMS

Document 153

Filed 01/31/2006

Page 28 of 102

protected conduct).10 As discussed in plaintiff's opening brief, there is compelling record evidence from defendants and their agents that they all were "mad," "angry," "upset," "pissed off," "unhappy," "disappointed" and otherwise displeased at plaintiff because of the filing of her lawsuit. (POB at 14-16). 4. Violations of Law, Policies and Procedures. Violations of laws, rules and procedures also are proof of causation and wrongdoing. See Village of Arlington Heights v. Metropolitan Hous. Develop. Corp., 429 U.S. 252, 267 (1977) ("Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role. Substantive departures, too, may be relevant, particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached."); Stewart v. Rutgers, the State Univ., 120 F.3d 426, 434 (3d Cir. 1997) (departures from the normal procedural sequence afford evidence that improper purposes are playing a role); see Bray v. Marriott Hotels, 110 F.3d 986, 992, 994 (3d Cir. 1997); Kunda v. Muhlenberg College, 621 F.2d 532, 539 (3d Cir. 1980); Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 143-44 (3d Cir. 1977); Adkins, 389 F.Supp.2d at 586 (violations of Air Force policies are probative of causation in First Amendment retaliation context). As discussed in plaintiff's opening brief (POB at 16-19) and in greater detail below, the record is overflowing with abundant evidence of the numerous policies, procedures, practices, standing orders, rules and regulations that were violated by defendants when they retaliated against plaintiff. a. Longstanding DSP Policies, Practic