Free Opening Brief in Support - District Court of Delaware - Delaware


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Case 1:04-cv-01394-GMS

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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 FOR SUMMARY JUDGMENT ON COUNTS II AND III AND FOR PARTIAL SUMMARY JUDGMENT ON COUNT I

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 17, 2006 Attorneys for Plaintiff

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TABLE OF CONTENTS NATURE AND STAGE OF THE PROCEEDING......................................................................................1 SUMMARY OF THE ARGUMENT............................................................................................................1 STATEMENT OF FACTS............................................................................................................................2 A. Count One - Gender Discrimination in the Denial of Two Promotions to Major...............2 1. 2. 3. The Prima Facie Case.............................................................................................2 The Legitimate Non-Discriminatory Reason.........................................................2 Fuentes Prong 2 in a Pretext Case - The Weight of the Evidence Proves Gender Discrimination...........................................................................................2 Fuentes Prong 1 in a Pretext Case - Weaknesses, Implausibilities, Inconsistencies, Incoherencies and Contradictions In the Defense Case...............7

4.

B.

Counts Two and Three - Retaliation for the Filing of This Lawsuit.................................11 1. 2. Plaintiff's Protected Speech and Petition Clause Activity...................................11 The First Act of Retaliation - A Confidential and Internal DSP Document About Plaintiff is Leaked to the Delaware Media................................................11 The Second Act of Retaliation - Defendants Refused to Investigate This Release.................................................................................................................11 The Third Act of Retaliation - Defendants Then Confirmed and Discussed the Nature of the IA Charges With the Delaware Media.....................................12 a. b. 5. Aviola was "Surprised" by This Order...................................................12 The Prejudicial Content of This Release................................................13

3.

4.

Substantial or Motivating Factor..........................................................................13 a. Defendants' Friendship Created a Motive to Retaliate Against the Person Who Sued Chaffinch and Caused Him to Be Suspended............13 Demonstrated Antagonism Towards Plaintiff and Her Protected Activity....................................................................................................14 (1). (2). (3). Chaffinch Demands Blind Personal Loyalty..............................14 Chaffinch's Hostile Feelings......................................................14 MacLeish's Hostile Feelings......................................................15 i

b.

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(4). c. d.

Mitchell's Hostile Feelings........................................................15

Unusually Suggestive One or Two Day Temporal Proximity.................16 Numerous Violations of Statutes, Policies, Procedures, Practices, Rules and Regulations.............................................................................16 (1). The Express and Unequivocal Confidentiality Protections of the LEOBOR..........................................................................16 DSP Rules, Regulations and Policies.........................................17 (a). (b). (c). (d). (3). Rule 10..........................................................................17 Rule 18(b)......................................................................17 Rule 19(a)......................................................................17 The DSP Code of Ethics...............................................17

(2).

An Order To Violate Any of These Statutes or Rules is an "Unlawful Order".......................................................................17 Actual DSP Policies, Practices and Procedures.........................18 (a). (b). Current Policy and Practice...........................................18 Long Time Historical Policy and Practice....................18

(4).

(5).

No Internal Affairs Investigation Resulted From These Numerous Violations.................................................................19

e. f. g.

Disparate Treatment................................................................................19 Selective Enforcement.............................................................................19 Pretext and Coverup................................................................................19 (1). (2). (3). Sgt. Christopher Foraker............................................................20 Master Corporals Price and Warren...........................................20 Captain Davis and Captain Warren............................................21

ARGUMENT..............................................................................................................................................21 I. STANDARD OF REVIEW...............................................................................................21

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II.

UNDER A COUNT I PRETEXT THEORY PLAINTIFF: 1) HAS PROVEN A PRIMA FACIE CASE THAT SHE WAS DENIED TWO PROMOTIONS BECAUSE OF HER GENDER; AND 2) HAS SUFFICIENT EVIDENCE OF PRETEXT TO GO TO THE JURY UNDER BOTH PRONGS 1 AND 2 OF FUENTES..............................................22 A. A Prima Facie Case Has Been Proven.................................................................22 1. 2. B. C. This is a Light Burden.............................................................................22 The Elements...........................................................................................23

Defendant's Burden..............................................................................................23 Plaintiff's Ultimate Burden..................................................................................23 1. Prong 1 - Abundant Weaknesses, Implausibilities, Inconsistencies, Incoherencies, and Contradictions in Defendant's Case.........................25 Prong 2 - The Weight of the Evidence Demonstrates Gender is the Reason Plaintiff Was Not Promoted.......................................................25 a. Chaffinch's Vulgar and Sexist Attitude Towards Women.........25 (1). (2). (3). (4). (5). Introduction...................................................................25 Why This Evidence is Relevant....................................26 The General Rule..........................................................26 Admissible for Proper Purposes....................................27 The Evidence The Court Has Noted.............................27 (a). (b). The Sexually Explicit Limericks and Jokes.....28 The Public References to His Genitalia In Front of Women...............................................28 The Sexual Objectification of a Secretary.......29

2.

(c). b. III.

Other Categories of Evidence....................................................29

IN COUNT II PLAINTIFF ENGAGED IN FIRST AMENDMENT PROTECTED SPEECH BY FILING HER LAWSUIT CHALLENGING ILLICIT GENDER DISCRIMINATION AND HER LAWSUIT WAS A SUBSTANTIAL OR MOTIVATING FACTOR IN THE RETALIATION AGAINST HER............................29 A. Protected Activity.................................................................................................30

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1.

Matter of Public Concern........................................................................30 a. Content.......................................................................................30 (1). (2). Gender Discrimination..................................................30 Wrongdoing, Illegality and Breach of the Public Trust..............................................................................31

b.

Form and Context.......................................................................32 (1). (2). (3). (4). The Police Department Setting.....................................32 Witness Intimidation in the Judicial Context................32 News Coverage.............................................................33 Legislative Concern......................................................33

2. B.

Balancing of Interests..............................................................................34

Substantial or Motivating Factor..........................................................................34 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Knowledge of Protected Conduct...........................................................35 Temporal Proximity................................................................................35 Demonstrated Anger, Hostility and Antagonism....................................35 Violations of Law, Policies and Procedures...........................................36 Disparate Treatment................................................................................36 Selective or Discriminatory Enforcement...............................................36 Pretext......................................................................................................36 Falsehoods...............................................................................................37 Intentional Destruction of Key Evidence................................................37 The Big Picture........................................................................................37

C. IV.

Same Decision Anyway Affirmative Defense.....................................................38

IN COUNT III PLAINTIFF ENGAGED IN FIRST AMENDMENT PROTECTED PETITIONING OF THE GOVERNMENT FOR REDRESS OF GRIEVANCES AND HER LAWSUIT WAS A SUBSTANTIAL OR MOTIVATING FACTOR IN THE RETALIATION AGAINST HER.....................................................................................38

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A. B. C. D.

The Big Picture.....................................................................................................39 The Activities Protected.......................................................................................39 The Specifics........................................................................................................39 Substantial or Motivating Factor and Same Decision Anyway...........................40

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

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TABLE OF AUTHORITIES Cases Page

Adkins v. Rumsfeld, 389 F.Supp.2d 579 (D.Del. 2005).............................................................................29 Adler v. Pataki, 185 F.3d 35 (2d Cir. 1999)................................................................................................38 Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917 (9th Cir. 2004)...........................................................31 Anderson v. Davila, 125 F.3d 148 (3d Cir. 1997).................................................................................39, 40 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)...............................................................................21 Andrews v. City of Phila., 895 F.2d 1469 (3d Cir. 1990)....................................................26, 27, 28-29, 37 Ansell v. Green Acres Contracting Co., Inc., 347 F.3d 515 (3d Cir. 2003)................................................27 Arlio v. Lively, 392 F.Supp.2d 317 (D.Conn. Sept. 28, 2005).............................................................27, 37 Azzaro v. County of Allegheny, 110 F.3d 968 (3d Cir. 1997)..............................................................30, 34 Baldassare v. State of N.J., 250 F.3d 188 (3d Cir. 2001).....................................................30, 31-32, 35, 38 Becker v. ARCO Chemical Co., 207 F.3d 176 (3d Cir. 2000)..................................................25, 27, 28, 29 Bedford v. SEPTA, 867 F.Supp. 288 (E.D.Pa. 1994).................................................................................34 Boyle v. County of Allegheny, Pa., 139 F.3d 386 (3d Cir. 1998)...............................................................21 Brady v. Fort Bend County, 145 F.3d 691 (5th Cir. 1998).........................................................................38 Bray v. Marriott Hotels, 110 F.3d 986 (3d Cir. 1997)..........................................................................23, 36 Brennan v. Norton, 350 F.3d 399 (3rd Cir. 2003)............................................................................36, 39, 40 Briscoe v. LaHue, 460 U.S. 325 (1983)......................................................................................................32 Cal. Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972).....................................................39 Carey v. Brown, 447 U.S. 455 (1980).........................................................................................................30 Caver v. City of Trenton, 420 F.3d 243 (3d Cir. 2005).........................................................................31, 32 Charpentier v. Godsil, 937 F.2d 859 (3d Cir. 1991)...................................................................................38 City of San Diego v. Roe, 543 U.S. 77, 125 S.Ct. 521 (2004)....................................................................33 Connick v. Myers, 461 U.S. 138 (1983)................................................................................................30, 31 Cox v. Louisiana, 379 U.S. 536 (1965).......................................................................................................36 vi

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Dennison v. Pa. Dept. of Corr., 268 F.Supp.2d 387 (M.D.Pa. 2003)..........................................................34 Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509 (3d Cir. 1992)............................................22 Fakete v. Aetna, Inc., 308 F.3d 335 (3d Cir. 2002).....................................................................................26 Fasold v. Justice, 409 F.3d 178 (3d Cir. 2005)...........................................................................................36 Feldman v. Philadelphia Housing Authority, 43 F.3d 823 (3d Cir. 1994)..................................................36 Flamm v. Am. Ass'n Of Univ. Women, 201 F.3d 144 (2d Cir.2000)..........................................................30 Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994).....................................................................................23, 24 Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978)..........................................................................22, 25 Garrison v. Louisiana, 379 U.S. 64 (1964).................................................................................................30 Glass v. PECO, 34 F.3d 188 (3d Cir. 1994)................................................................................................26 Green v. Phila. Hous. Auth., 105 F.3d 882 (3d Cir. 1997)....................................................................32, 33 Heyne v. Caruso, 69 F.3d 1475 (9th Cir. 1995)................................................................................25, 26, 28 Hill v. City of Scranton, 411 F.3d 118 (3d Cir. 2005)....................................................29-30, 35, 36, 39-40 Holder v. City of Allentown, 987 F.2d 188 (3d Cir. 1993).................................................30, 31, 32, 33, 36 Howard v. Bd. of Educ. of City of East Orange, 90 Fed.Appx. 571 (3d Cir. 2003)...................................34 Hurley v. Atlantic City Police Dept., 174 F.3d 95 (3d Cir. 1999)......................................25, 26, 27, 28, 29 Iadimarco v. Runyon, 190 F.3d 151 (3d Cir. 1999)....................................................................................22 Jalil v. Avdel Corp., 873 F.2d 701 (3d Cir. 1989).......................................................................................35 Johnson v. Louisiana, 369 F.3d 826 (5th Cir. 2004)...................................................................................30 Johnston v. Harris County Flood Control Dist., 869 F.2d 1565 (5th Cir. 1989).........................................33 Keenan v. City of Phila., 983 F.2d 459 (3d Cir. 1992)...............................................................................35 Keller v. Oriz Credit Alliance, Inc., 130 F.3d 1101 (3d Cir. 1997)............................................................23 Konits v. Valley Stream Central High Sch. Dist., 394 F.3d 121 (2d Cir. 2005)...................................30, 31 Krouse v. American Sterilizer Co., 126 F.3d 494 (3d Cir. 1997)...............................................................35 Marzano v. Computer Science Corp. Inc., 91 F.3d 497 (3d Cir. 1996)......................................................22 vii

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Matczak v. Frankford Candy and Chocolate Co., 136 F.3d 933 (3d Cir. 1997)...................................22, 23 McDonald v. Smith, 472 U.S. 479 (1985)...................................................................................................39 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).........................................................................22 McGreevy v. Stroup, 413 F.3d 359 (3d Cir. 2005).....................................................................................34 Miller v. Cigna, Corp., 47 F.3d 586 (3d Cir. 1995)....................................................................................35 Mitchell v. Street, 2005 WL 1993774 (E.D.Pa. Aug. 16, 2005).................................................................34 Mount Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977)..............................................................35 NAACP v. Clairborn Hardware Co., 458 U.S. 886 (1982).........................................................................30 Nicholas v. Pa. State Univ., 227 F.3d 133 (3d Cir. 2000)...........................................................................38 O'Donnell v. Yanchulis, 875 F.2d 1059 (3rd Cir. 1989)..............................................................................33 Ostad v. Oregon Health Sciences Univ., 327 F.3d 876 (9th Cir. 2003)......................................................38 Pickering v. Bd. of Educ., 391 U.S. 563 (1968)..........................................................................................33 Powell v. Alexander, 391 F.3d 1 (1st Cir. 2004).........................................................................................39 Pro v. Donatucci, 81 F.3d 1283 (3d Cir. 1996)...............................................................................30, 32, 33 Rankin v. McPherson, 483 U.S. 378 (1987)................................................................................................34 Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000)..........................................................37 Robinson v. SEPTA, 982 F.2d 892 (3d Cir. 1993)......................................................................................36 Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988)......................................................................31, 33, 34 Saint Mary's Honor Ctr. v. Hicks 509 U.S. 502 (1993)..............................................................................24 San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir. 1994)..........................................................34, 36, 39, 40 Sempier v. Johnson & Higgins, 45 F.3d 724 (3d Cir. 1995)..................................................................22-23 Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061 (3d Cir. 1996)..............22, 23, 24, 25, 36, 37 Simpson v. Kay Jewelers, Div. of Sterling, 142 F.3d 639 (3d Cir. 1998)...................................................22 Springer v. Henry, 2002 WL 389136 (D.Del. March 11, 2002).................................................................33 Stanley v. City of Dalton, Georgia, 219 F.3d 1280 (11th Cir. 2000)..........................................................38 viii

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Stewart v. Rutgers, The State Univ., 120 F.3d 426 (3d Cir. 1997).......................................................22, 36 Suppan v. Dadonna, 203 F.3d 228 (3d Cir. 2000).......................................................................................35 Swartzwelder v. McNeilly, 297 F.3d 228 (3d Cir. 2002)............................................................................32 Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981)..................................................................22 Vazquez-Valentin v. Santiago-Diaz, 385 F.3d 23 (1st Cir. 2004)...............................................................38 Village of Arlington Heights v. Metropolitan Hous. Develop. Corp., 429 U.S. 252 (1977)......................36 Watson v. Fort Worth Bank and Trust, 487 U.S. 977 (1988).....................................................................22 Waters v. Churchill, 511 U.S. 661 (1994)...................................................................................................34 Watters v. City of Phila., 55 F.3d 886 (3rd Cir. 1993).................................................................................34 We, Inc., v. City of Phila., 174 F.3d 322 (3d Cir. 1999).............................................................................40 Williams v. Hepting, 844 F.2d 138(3d Cir. 1988).......................................................................................32 Woodson v. Scott Paper Co., 109 F.3d 913 (3d Cir. 1997)...................................................................35, 36 Yalowizer v. Town of Ranchester, Wyoming, 18 Fed.Appx. 745 (10th Cir. 2001)...................................38

Constitutions, Statutes and Rules U.S. Const., Amend. I...........................................................................................................................passim U.S. Const., Amend. XIV.....................................................................................................................passim 11 Del.C. § 9200(b)...............................................................................................................................16, 17 11 Del.C. § 9200(c) ....................................................................................................................................16 11 Del.C. § 9200(c)(12)..............................................................................................................................16 Federal Rule of Civil Procedure 8(c)..........................................................................................................38 Federal Rule of Civil Procedure 56(c)........................................................................................................21

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NATURE AND STAGE OF THE PROCEEDING This is a civil action to remedy intentional gender discrimination by defendant Chaffinch when he twice denied to plaintiff promotion to administrative budget Major and operations Major for Kent and Sussex County. This also is a public employee free speech and petition clause case arising from defendants' unprecedented actions of releasing and then discussing plaintiff's confidential internal affairs charges with the media, all within hours of the filing of her lawsuit. The record includes the depositions of defendant Ret. Col. L. Aaron Chaffinch, defendant Col. Thomas MacLeish, defendant Secretary David Mitchell, Captain Glenn Dixon, Ret. Major David Baylor, Ret. Col. Gerald Pepper, Ret. Lt. Col. Thomas Marcin, Captain Harry Downes, Ret. Major Joseph Swiski, Major Randall Hughes, Major Paul Eckrich, Lt. Joseph Aviola, Deputy Attorney General Michael Tupman, the interrogatory answers of plaintiff, various documents and the Amended Complaint and Answer. (Hereinafter "Compl. & Ans.").1 This is plaintiff's opening brief and appendix in support of her motion for summary judgment on Counts II and III and for partial summary judgment on Count I. SUMMARY OF THE ARGUMENT 1. Under a pretext theory, plaintiff has demonstrated a prima facie case of gender discrimination in promotions which gives rise to a reasonable inference that gender was the reason she was twice denied promotion to Major. In light of the non-discriminatory reason given there also is overwhelming evidence of pretext on which a jury can rely. 2. Plaintiff engaged in First Amendment protected activity by filing her gender discrimination lawsuit and in light of the overwhelming record evidence, as a matter of law, no

The record includes testimony from the present case, as well as from the following cases: Dillman v. Chaffinch, et al., C.A.No.02-509-KAJ (D.Del.); Bullen, et al. v. Chaffinch, et al., C.A.No.021315-JJF (D.Del.); Price, et al. v. Chaffinch, et al., C.A.No.04-0956-GMS (D.Del.); Foraker v. Chaffinch, et al., C.A.No.04-1207-GMS (D.Del.).

1

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reasonable jury could conclude that the filing of her suit did not play a substantial role in the retaliation against her. And because defendants have waived their Mt. Healthy affirmative defense, summary judgment should be entered against defendants on Counts II and III. STATEMENT OF FACTS A. Count One - Gender Discrimination in the Denial of Two Promotions to Major. 1. The Prima Facie Case. At his deposition Chaffinch admitted the elements of the prima facie case. Two vacancies for promotion to Major existed in late 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; A100,110,310,16,12,36-38). In addition to Chaffinch, both comparators also admit that plaintiff was qualified for these positions. (Eckrich 113-14; Hughes 100-01; A732-33,825). Several witnesses indicate she 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; A310,541,543-44,282,593-95,597-98). 2. The Legitimate Non-Discriminatory Reason. Chaffinch claims he promoted the most qualified person using six discretionary factors: education, background, experience, tenure, compatibility and personal loyalty to him. (Chaffinch 148-149, 179; A101,109). There were no preexisting written Orders, policies, restrictions or guidelines whatsoever on the exercise of his discretion regarding these newly created factors. (Chaffinch 145-146, 168-169; A100-01,106). 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 38,40,28-42; A540-41). And Chaffinch failed to consult with Secretary Blunt-Bradley about this process. (Blunt-Bradley 5657,74; A1365,1370). 3. Fuentes Prong 2 in a Pretext Case - The Weight of the Evidence Proves

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Gender Discrimination. Through Chaffinch's own admissions and testimony of those 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, 28-42, A538-42). Chaffinch defied these obligations which are designed to ensure procedural regularity in all promotions. (Marcin 41; Chaffinch 172; Conley Inter. 44-46; Chaffinch 127-128, 132; A541,107,1039-41,96-97).2 Chaffinch's 6 factors do not include promoting diversity in the state workforce which violates Gov. Minner's Executive Order 10 (Blunt-Bradley 92; Exec. Order 10; A1374, 1214), which Chaffinch has previously sworn he follows to the letter and has striven to implement. (Chaffinch 39-40; A1089; Chaffinch 71-74,76-77; A1155-58,1160-61). 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 was impermissible both on and off duty. (Pepper 30-40; 587-89). 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; A167-68,216). Troopers "should conduct [their] private life above reproach," (MacLeish 25; 168), 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; A172,589).3 Chaffinch has verbally stated more than once that he does not believe that females in general should even serve as troopers, (Dixon 99-100; A311), let alone as a Major.

2.

3.

4.

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; A302; Dixon 91; A685). "Uncle Thurman ... would take care of him no matter what." (Dixon 64-65; A302). "[I]f he needed anything done, he would just go to ... the Thurmanator, and it would be done." (Dixon 65; 3002). Chaffinch is "a very powerful person, he has political ties that are very strong." (Dixon 72-73; 680). As Chaffinch admitted, politics play a role in the day to day operations of the DSP. (Chaffinch 157; A649). Because of this, as one commander stated, opposing Chaffinch "would be the start of ending my career with the State Police." (Dixon 73; A680). Rule 4 of the DSP Rules and Regulations requires the same. (PX16; A223). 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; A220).
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5.

While on duty, he tells people that "women are nothing but trouble" and "women are a pain in the ass." (Dixon 77-78; cf. Pepper 28-31; A305-06,586-87). Chaffinch also admits that he publicly recites a long stereotypical song or poem (PX 2; A114) 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 Inter. 11-13; Downes 15; Dixon 16-18; cf. Pepper 35; A70-72,1006-08,322,290-91,588). Chaffinch also has voiced the sexual stereotype to plaintiff and others that two women cannot work together in the same office. (Conley Inter. 13-15; Baylor 29; A100810,275). 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 Inter. 31-32; Dixon 48-50; Chaffinch 86; A102627,298-99,86). He also publicly refers to plaintiff by the sexually offensive and stereotypical nickname "Puss." (Dixon 49; cf. Pepper 29-30; A298,586-87). Chaffinch denies this. (Chaffinch 83; A85).4 He also calls her "a bitch." (Baylor 31; cf. Pepper 29; A276,586). 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 Inter. 3234; Dixon 51-53, 112; A1027-29,299,314). He denies this. (Chaffinch 84,91; A85,87). He also has disrespected the first female captain in the Division (plaintiff was the second) by publicly nicknaming her "Norman," the name of a most wanted fugitive. (Conley Inter. 35-36; Dixon 55-56, cf. Pepper 32; A1030-31,300,587). Chaffinch even has asked plaintiff private details of her sex life. (Conley Inter. 34-35; Dixon 53; A1029-30,299). 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 sexual relations with her. (Conley Inter. 46-47; A1041-42). One day Chaffinch saw plaintiff in a red dress and said he "would do" her. (Dixon 6061; A301). Chaffinch also has purchased presents, such as gold earrings with little hearts on them, for plaintiff, and applies "cutesy" nicknames to her. (Conley Inter. 46-47; A1041-42).

6.

7.

8.

9.

10. 11.

12.

13.

14.

15.

16.

Now retired Major Joseph Swiski has testified that Col. Chaffinch "has a reputation for not being very truthful." (Swiski 57; A60). Unlike Chaffinch, Captain Dixon has a reputation as being truthful (Marcin 16; A535), as does plaintiff Capt. Conley. (Hughes 101; A825).

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17.

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, which he recited often after becoming Colonel. (Conley 57-63; PX 3,4; cf. Pepper 3537; A927-29,115-16,588).5 Chaffinch also admitted he belongs to a private membership organization which denies membership to women and blacks. (Chaffinch 14; see Conley Inter. 7-11; Dixon 13-15; Baylor 27; A68,1002-06,289-90,275). Chaffinch also tells jokes all the time. (Downes 21; see Chaffinch 64, A323,80). Plaintiff testified that 50% of his jokes are "inappropriate or demeaning to some group be it women, or blacks." (Conley Inter. 13; A1008). Captain Dixon testified it is more like 70% of the time that his jokes are offensive. (Dixon 36; A295).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 Inter. 16-18; Dixon 29-30; Pepper 13-17; A73,1011-13,29394,583). 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 officer present when a female trooper disrobed and removed her blouse while dancing on a table at a private party. (Chaffinch 69-71; Dixon 38-40; cf. Pepper 7-13,25; A81-82,296,581-82,585). Chaffinch also publicly and in mixed company uses a nickname for his penis and brags that he has "something extra" in his pants. (Conley Inter. 26-30; Dixon 41-44, 80-81; A1021-25,296-97,306). He denies this. (Chaffinch 72-73,80; A82,84). But he does admit that earlier in his career he also publicly named the patrol shift which he headed the "cocksters." (Conley Inter. 29-30; Dixon 57; Chaffinch 102-104; A1024-25,300,90). 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; A3006). Chaffinch has publicly 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 Inter. 36-37; see Dixon 57-58; Baylor 32; Chaffinch 97-99; A1031-32,300-01,

18.

19.

20.

21.

22.

23.

24.

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; A74-79). But various witnesses have testified in detail that he does recite them, even in the workplace. (Conley Inter. 18-23; Dixon 18-26; Downes 16-18; Baylor 29-30; A1013-18,291-93,322-23,275-76). 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; A278-79,305). 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; A292). Defendant MacLeish testified that offensive jokes or other conduct of a sexual nature should have no place in the workplace. (MacLeish 50; A175). Such inappropriate joking and improper workplace behavior also violates the plain terms of the DSP's Sexual Harassment Policy. (PX16; A223).
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276,88-89). 25. Chaffinch also has commented publicly about various women in the headquarters building, stating "oohh she tears me up" or he "would love to do her." (Dixon 60; Conley Inter. 38; Baylor 32-33; A301,1033,276). He has publicly discussed how he would like to watch a female trooper masturbate for a male trooper. (Dixon 44-47, 110; A297-98,314). Chaffinch also refers publicly to another secretary in headquarters as "Lemon titties," referring to her breast size. (Conley Inter. 38-39; Dixon 62; A1033-34,302). He also made it his "mission" (Dixon 87; A308), to remove the first and only female troop commander that the DSP has ever had. (Baylor 33-39; A276-78).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 her. (Baylor 37-38; A277-78).8 During his command of the Division, Chaffinch never assigned a female to command a troop. (Chaffinch 125; A95). Reflecting his opinion of female officers, Chaffinch also diminished plaintiff's operational authority in various areas after he became Colonel. (Conley Inter. 40-44; Dixon 83-87; Baylor 58-59; A1035-39,307-08,283). 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; A281-82). Chaffinch took away "her leadership role." (Baylor 58; A283). Instead of developing policy and other similar duties, plaintiff was relegated to collecting data. (Baylor 58; A283).9 Chaffinch's promotions in the DSP simply were not based upon merit. For example, Chaffinch had an "older style of management," a style of promoting his buddies. (Baylor 51; A281). "There is a perception of a good old boys network in the [DSP]." (Baylor 16; A272). Promotions in the DSP are not based on merit. (Baylor 16; A272). The State EEO and AA officer testified that in the "professionals" EEO-4 statistical
7

26.

27.

28.

29.

30.

31.

32.

Lt. Col. Marcin explained that he served as trooper commander of Troop 6 for 5 ½ years. (Marcin 4, Pepper 21-22; A532,584-85). After Capt. Mary Ann Papili was appointed by Col. Pepper to that post with a start date sometime in 2000 (Pepper 19-21; A584), Chaffinch prematurely removed her from command in September 2003, less than 3 years into her rotation. (Marcin 23; Conley 70-71; A537,931). It was bad organizationally, politically and from a public relations perspective. (Baylor 37-38; A277-78). In response, Chaffinch became "agitated" and "unhappy" with them for voicing their concerns and called them "spineless." (Baylor 35,36,38; A277-78). (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 Inter. 40-44; A1035-39).
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category, which consists solely of majors, captains and lieutenants, as of Dec. 1, 2001 the DSP was under represented by females by 50% when compared to a finely tuned available labor market for women. (Chambers 29; A1490-91; Chambers 128-130; A1266-68; PX5 at 12-13; A1391-1466). In the absence of discrimination against women this should not be occurring. (Chambers 22; A1489; Chambers 128-130,116-117; A1266-68,1254-55). 4. Fuentes Prong 1 in a Pretext Case - Weaknesses, Implausibilities, Inconsistencies, Incoherencies and Contradictions In the Defense Case. Education Factor 1. The claim that both comparators were promoted because one had a master's degree and another was working to that goal is weak because Major Hughes admitted neither Col. Chaffinch or Col. MacLeish have such a degree and its absence did not hold them back. (Hughes 128-29; A832). The education claim also is weak because plaintiff is a dean's list college graduate with nearly a straight "A" record (Eckrich Ex. 1; A749-53). Hughes was in the bottom 15% of his college class and even the bottom 30% in his major. (Hughes Ex 1; Hughes 21-23; A863,805-06). Eckrich was in the bottom third of his (Eckrich Ex 2; Eckrich 18-19; A759-61,709) but claimed he did well in college. (Eckrich 30; A712). The master's degree claim is weak because Chaffinch apparently ignored the actual personnel department records of educational achievement which showed no masters work for Hughes and demonstrated that he actually had seven less total educational credits than plaintiff and Chaffinch had no other independent knowledge of such schooling. (Hughes Ex.1; Hughes 10,14; A859,803-04). All three also were later sent to respected command schools by the DSP, where Barbara did "exceptionally well" in Chaffinch's words. (Hughes 27-29; A807). Again, the education claim is weakened by the fact that plaintiff here had a solid 3.67 (A-) grade average, which is not overshadowed by the record of the two comparators. (Eckrich Ex. 3; Hughes 24-28, Eckrich 27,19; A763,806-07,711,709). Background Factor 5. The claim of superior background for Hughes is weakened by his own admission that when he was officially promoted on November 1, 2003 he was facing an open one year internal affairs investigation which began in October 2003 of his covering up crimes and physical abuse of a female by another male trooper. (Hughes 43-65; Hughes Ex. 2; A81116,868-73).10

2.

3.

4.

To his credit, Capt. Dixon repeatedly refused Chaffinch's direction to cover up these crimes. (Dixon 46-47,85-89,103-107,108-112; A674,683-84,688,690). Sadly, such criminal behavior has been standard operating procedure during defendants' tenure at the top of the DSP. Testimony revealed that MacLeish also interferes in criminal investigations to protect his personal friends. (MacLeish 116; A191).

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6.

Any reliance on plaintiff's decades old summary discipline record prior to the two promotions in 2003 is weakened by Major Hughes' explanation of the summary discipline system where up to 40 hours punishment can be agreed to. Plaintiff's record here consists of old minor summary punishment offenses, such a being overweight, etc. (Hughes 35-37; A809) (Conley ex. 3; A1542-43). This background claim is contradicted when plaintiff's superior job evaluation is compared with Eckrich when they both served as traffic lieutenants in 2000. (Eckrich Ex 8, 7; A768-84) Plaintiff's individual scores were higher with three ratings of exceptional and none for Eckrich. Overall she had done a "fantastic job," (Eckrich Ex. 8; A778) while the job for Eckrich was a "challenge" with "some setbacks." (Eckrich Ex. 7; A770). A claim of superior background is contradicted by Eckrich's last written evaluation prior to his promotion to Major. (Eckrich Ex. 7; A768-75) His decision making, organizational skills and ability to handle stress are only average (Id.; A768-70). His goals imply that he is not guiding his two shifts appropriately (Id.; A771) and there are various negative performance comments found in the first four lines of Item XII. (Id.; A774). The `background' factor is also weak because when this term is found on DSP employment application records it reveals that Eckrich had marijuana involvement and an alcohol arrest on his record, (Eckrich Ex. 6; A776-67). He also had originally repeatedly failed in seeking admission to various police forces. (Eckrich Ex. 6; A764) Plaintiffs' background record was clean. (Eckrich Ex. 1; A746-75). Experience Factor

7.

8.

9.

10.

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; A104,596). The experience claim is flatly contradicted by Eckrich's two written job evaluations when served about 18 months as the lieutenant in his present section. He received 20 "Cs" and 6 "Ds" for his performance and requested a transfer out to stop his failing performance. (Eckrich Ex. 10; A785-91). Earlier, the most he could obtain were all "Cs" and he distinguished himself in no way. (Eckrich 11; A792-98). It is weak to claim that two average performances in a job make you attractive to head the section. This emphasis on financial 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 26-27; Eckrich 80; A105,538,724), which actually consists of managing civilian staff. (Pepper 69-71; A597). 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; Eckrich Ex. 3; A596,315,308,538,763). The prior experience with budgets claim is also weak because Eckrich had about 18 months in the function prior to his promotion (Eckrich Ex. 10,11; A785-98) and plaintiff had two years as the Director of Traffic. (Conley 7; A915).

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13.

On the experience promotion factor, admittedly the patrol function is the "backbone of the Division," (Chaffinch 153-154; Dixon 95; Pepper 61-62; Eckrich 70; A102-03,310,59495,722), and Plaintiff's experience included 18 years with patrol. (Chaffinch 153; A102). But implausibly comparator Hughes had only 13 years in patrol when he was promoted to oversee patrol operations in Kent and Sussex Counties. (Chaffinch 155-156; Hughes 80; A103,820). Comparator Eckrich also had only 10 years patrol experience. (Chaffinch 165; Eckrich 71-72; A105,722). So this purported factor was ignored by Chaffinch. Tenure Factor

14.

On the tenure factor, both Hughes and Eckrich also implausibly had 3 or 3 ½ less years with the DSP than plaintiff. (Eckrich Ex 5, Eckrich 33-34, Hughes 30; A1287-89,71213,808). So this factor also was ignored. (Chaffinch 156,164; A103,105). Compatibility Factor

15.

Reliance on the compatibility factor 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; A106). Eckrich testified plaintiff got along with everyone, including Chaffinch. (Eckrich 81; A724). So this factor also was ignored. Personal Loyalty Factor

16.

Reliance on a personal loyalty to Chaffinch factor is again weak because Chaffinch was forced to admit that plaintiff also was loyal to him in 2003. (Chaffinch 181; A109). So this third factor also was ignored. 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; A216). 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; A169). Claim that Inappropriate Sexual Conduct in the Workplace Excluded Her

17.

18.

19.

The claim that this factor was considered by Chaffinch, and that plaintiff had a disqualifying history in this regard, is very weak in light of the deposition testimony of Chaffinch on the six factors he used in the promotions. Nowhere in the careful questioning did he ever indicate in any way that inappropriate sexual conduct in the workplace was included in any of his factors. (Chaffinch 148-149,179; A101,109). This after the fact assertion is implausible because such allegations are not substantiated in any preexisting written employment record or job evaluation found anywhere in plaintiff's written evaluations prior to the promotions in 2003. (Hughes Ex. 3-7; A874908,1290-1347). It also is implausible because Major Hughes explained that such repeated misconduct would be reported under the categories of "relationships," "contribution to the organization," and "leadership" on those evaluations. But there is nothing but the highest

20.

21.

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commendations for plaintiff's workplace conduct in these categories. (Hughes Ex. 3-7; Hughes 103-28,130-34; A874-908,826-34).11 22. The claim is contradicted by the fact that Major Hughes also testified that during his long history with plaintiff as a coworker plaintiff never did any of this. (Hughes 108,111, 113,115; A827-29). It is also contradicted by Major Eckrich who testified that whenever he served with plaintiff she never engaged in inappropriate workplace behavior. (Eckrich 78; A724). The claim is contradicted by the fact that similar conduct did not exclude Hughes from promotion. The record contains at least three sexually inappropriate emails he directed to plaintiff and one sexually suggestive cartoon. (Hughes Ex. 8-11; Hughes 134-152; A1348-49,911,834-38).12 The claim is also contradicted by Hughes' admission that sexual cartoons, jokes and sexual bantering are found throughout the DSP workplace and it is a means of easing the tension of a stressful job. (Hughes 136-37,143,145; A834,836). The specific claim that plaintiff and another trooper had sex while a fugitive was under a rug in the same room is contradicted by the fact that plaintiff never faced IA charges over such an incident and her written evaluations in that mid 1980s time period contain no reference to this defamatory allegation. (Hughes Ex. 7, Hughes 130-133; A1318-47,833). Instead plaintiff progressed through her career to Captain until she hit the glass ceiling of Major. Other 27. 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 BluntBradley's Report which required consultation with the State Personnel Director and Gregory Chambers and his Affirmative Action office when exercising the promotion

23.

24.

25.

26.

Plaintiff "maintains a positive relationship with co-workers." (Hughes Ex. 3; A881). She "has the skills, knowledge and ability to positively influence others within the department." (Hughes Ex. 4; A894). She "maintains a high level of credibility with her subordinates and peers." (Hughes Ex. 5; A899). She is "a tremendous asset to me and Troop 5 ... her attitude towards the Division and its values are outstanding." (Id.; A908). As Chaffinch himself wrote, she "maintains a harmonious relationship with all of her subordinates." (Hughes Ex. 6; A1293). She "is a very good leader with above average interpersonal skills." (Id.; A1294). She "possesses excellent interpersonal skills." (Id.; A1300,1304). When plaintiff was a lieutenant reporting to then Capt. Hughes, he invited her to come on over after he picked up his "`slave boy' outfit." (Hughes Ex. 9; Hughes 139-145; A909-10,835-36). Then he offered to give her an "injection" which would "slide it in, I mean squeeze it in, no, no I mean fit [,] gotta go it's getting hot in here." (Hughes Ex. 11; Hughes 147-152; A911,837-38). The suggestive cartoon is of a big breasted woman. (Hughes Ex. 8; Hughes 134-138; A1348,834-35).
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function. (Chaffinch 171-175; Marcin 39, 29-38; AA107-08,538-41).13 In yet another case, Chaffinch previously admitted that State Personnel was supposed to be involved in the process. (See Chaffinch 85-87; A1100-01). 28. Chaffinch's claim that he can draw a distinction between his offensive utterances outside the office and his utterances are 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; A587-89,167-68,172). The Division's Rules and Regulations and Code of Ethics also contradict Chaffinch's claim. (PX15; PX16; A220,223). Despite its subjectivity, Chaffinch claims he went through a careful deliberative process in making the two promotions at issue. (Chaffinch 148,160-161; A101,104). 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; A542,538). Major Baylor's testimony confirms this. (Baylor 16-17,12-14; A271-72). B. Counts Two and Three - Retaliation for the Filing of This Lawsuit. 1. 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; A19,39,19192). 2. 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. 3. 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;

29.

Chaffinch's Lt. Col. testified "I was trying to get through to Aaron that you really couldn't ignore the Bradley report." (Marcin 38; A541). Secretary Blunt-Bradley testified that "in our routine meetings, I would expect that we would discuss it." (Blunt-Bradley 97-98; A1375-76). Outside the context of this case, Chaffinch has previously testified the same. (Chaffinch 39-40; A1089).

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A134,198-200). 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). 4. 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).14 "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). MacLeish's exact orders were "if you feel that it looks like one of our e-mails, then comment on it." (Aviola 63-64; A134). "[C]all Mr. Eldred back and give him the information." (Aviola 63; A134). Lt. Aviola complied with acting Col. MacLeish's order. (Aviola 68-70; A135-36). a. 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

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). Thus he has laid this unprecedented violation of policy and practice squarely at the doorstep of the defendant Cabinet Secretary.

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discussing previous internal affairs charges against defendants Chaffinch and MacLeish themselves, (see Facts at section B.5.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; A137). 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; A137). But MacLeish ordered him to discuss it anyway. (Aviola 63-64; A134). b. 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; A160). Pursuant to MacLeish's specific order to "comment on it" (Aviola 63-64; A134), 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; A136,160).15 5. Substantial or Motivating Factor. Cause and effect evidence is abundant. a. Defendants' Friendship Created a Motive to Retaliate Against the Person Who Sued Chaffinch and Caused Him to Be Suspended. Chaffinch and MacLeish are admittedly "buddies" and "friends." (Chaffinch 16-17; MacLeish 7; A614,375; Chaffinch 187; Baylor 20; A111,273). MacLeish publicly brags that he and Chaffinch are "joined at the hip." (MacLeish 9; A375). He "feel[s] very strongly" that his good 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; A375-76). They are on a first name basis. (MacLeish 98; A187). Chaffinch chose MacLeish to serve as his Lt. Colonel, which was a "big deal" to MacLeish and a true "honor." (MacLeish 97; A186). They socialized together, even when Chaffinch was on leave for sexually inappropriate workplace misconduct. (PX 18; MacLeish 100-102; A241-

The initial published article that resulted is in the record. (Del. State News, 10/29/04; A44). Numerous similar articles soon followed in the weeks and months to come.

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44,187-88). MacLeish is so close to Chaffinch that he thinks that the numerous lawsuits, jury verdicts, and court opinions upholding these jury verdicts against his good buddy are meritless. (See MacLeish 107-114; A189-91). Similarly, defendant Mitchell also likes and is friends with Chaffinch and MacLeish. (Mitchell 28,43,51; A253,257,259). b. Demonstrated Antagonism Towards Plaintiff and Her Protected Activity. (1). Chaffinch Demands Blind Personal Loyalty. Chaffinch has always expected "blind loyalty" from all those in the DSP. (Dixon 24; A668; Dixon 105; A312). "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; A312; Dixon 85; A683). Chaffinch himself has repeatedly admitted that "personal loyalty" is a factor he considers when making personnel decisions. (Chaffinch 158-159; A650; Chaffinch 179; A109). Several other witnesses, including MacLeish have confirmed this. (MacLeish 64; Baylor 20-21; A178,273). Captain Dixon worked closely with Chaffinch in Sussex County for 17 years. (Dixon 77, 90,92,4; A681,685,663; Dixon 7-10; A288-89). He testified that 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; A304; Dixon 24,44; A668,673). "He goes after people ... if he feels that anyone has betrayed him. That's his makeup." (Dixon 44; A673).16 (2). 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; A303-04). He was "ang[ry]," "displeased" and "pissed off"

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; A304), perhaps by way of Chaffinch's close friendship with defendants MacLeish, Mitchell and Senator Thurman Adams.

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about the suit. (Mitchell 36; A255). Chaffinch was "upset," "unhappy," "[h]e wasn't pleased" and instead "was obviously displeased" about the suit. (MacLeish 120-121; A192). He "wasn't too pleased" and was visibly "upset." (Aviola 79,82,84; A138-39). He very well may have used some colorful language and other profanity to describe it. (Aviola 79; A138). Chaffinch was so angry about plaintiff's lawsuit that he even took his anger out on Captain Dixon. (Dixon 69; A303). After plaintiff's lawsuit was filed, Chaffinch refused even to mention plaintiff's name. (Dixon 71; A304). He clearly does not like it when people sue him. (Baylor 60; A283). (3). MacLeish's Hostile Feelings. MacLeish admits that he also was "unhappy" with plaintiff. (MacLeish 179; A207). He was "annoyed" and "displeased with her conduct and actions" in bringing this lawsuit. (MacLeish 179-180; A207). He repeatedly admitted that he was "unhappy" and "disappointed" by the lawsuit. (MacLeish 125-126,131,180181; A193-95,207). "Do I like it? No, I do not." (MacLeish 126; A194). He told Lt. Aviola that he was "unhappy," "upset," "disappointed" and "displeased." (MacLeish 131-132,180-181; A195, 207). MacLeish was "personally disgusted" with some of plaintiff's allegations in her suit and was "disgusted" with the lawsuit itself. (MacLeish 132-33; A195). Lt. Aviola confirmed that MacLeish expressed these feelings. (Aviola 82,84; A139). 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; A194,207-08).17 Indeed, he "would be very pleased" to get the DSP off of the front pages of the newspapers. (MacLeish 133-134; A195-96). (4). Mitchell's Hostile Feelings. Like MacLeish, Mitchell also was not happy that plaintiff had filed a lawsuit. (Mitchell 29; A253). 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

Plaintiff's lawsuit attracted a great deal of local, regional and national media attention. (Mitchell 30-31; A254).

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Case 1:04-cv-01394-GMS

Document 139

Filed 01/17/2006

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his charge, (Mitchell 37; A255), or that the DSP was "getting hammered heavy" in the press. (Mitchell 40,