Free Motion for Summary Judgment - District Court of Delaware - Delaware

Case 1:04-cv-01394-GMS

Document 138

Filed 01/17/2006

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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.

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C.A.No.04-1394-GMS

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON COUNTS II AND III AND FOR PARTIAL SUMMARY JUDGMENT ON COUNT I

Pursuant to Fed.R.Civ.P. 56, for the reasons stated in the accompanying Opening Brief, and there being no disputed issue of material fact, plaintiff Capt. Barbara L. Conley Moves that the Court issue an Order granting her summary judgment and finding that (1) Under Count II, as a matter of law - plaintiff engaged in protected First Amendment free speech by filing her lawsuit, and this protected speech was a substantial or motivating factor in the retaliation against her. And because defendants have waived their Mt. Healthy affirmative

Case 1:04-cv-01394-GMS

Document 138

Filed 01/17/2006

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defense, plaintiff has established liability. A trial on damages is ordered. (2) Under Count III, as a matter of law - plaintiff engaged in protected First Amendment petitioning of the government for redress of grievances by filing her lawsuit, and this protected petitioning was a substantial or motivating factor in the retaliation against her. And because defendants have waived their Mt. Healthy affirmative defense, plaintiff has established liability. A trial on damages is ordered. (3) Under Count I, plaintiff has established a prima facie case of gender discrimination in promotions under the Fourteenth Amendment. Additionally, she has sufficient evidence to go to the jury under both prongs of Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994).

Respectfully Submitted, THE NEUBERGER FIRM, P.A. /s/ Stephen J. Neuberger 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, 2005 Attorneys for Plaintiff

Case 1:04-cv-01394-GMS

Document 138

Filed 01/17/2006

Page 3 of 5

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.

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C.A.No.04-1394-GMS

ORDER This ______ day of _________________, 2006, there being no material issue in dispute, pursuant to Fed.R.Civ.P. 56, the Court grants summary judgment in favor of plaintiff Captain Barbara L. Conley on Counts II and III, and partial summary judgment in favor of plaintiff on Count I. It is hereby Ordered that(1) Under Count II, as a matter of law, plaintiff engaged in protected First Amendment free speech by filing her lawsuit, and this protected speech was a substantial or motivating factor in the retaliation against her. And because defendants have waived their Mt. Healthy affirmative

Case 1:04-cv-01394-GMS

Document 138

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defense, plaintiff has established liability. A trial on damages is ordered. (2) Under Count III, as a matter of law, plaintiff engaged in protected First Amendment petitioning of the government for redress of grievances by filing her lawsuit, and this protected petitioning was a substantial or motivating factor in the retaliation against her. And because defendants have waived their Mt. Healthy affirmative defense, plaintiff has established liability. A trial on damages is ordered. (3) Under Count I, as a matter of law, plaintiff has established a prima facie case of gender discrimination in promotions under the Fourteenth Amendment. Additionally, she has sufficient evidence to go to the jury under both prongs of Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994).

_________________________________________ THE HONORABLE GREGORY M. SLEET

Case 1:04-cv-01394-GMS

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CERTIFICATE OF SERVICE I, Stephen J. Neuberger, being a member of the bar of this Court do hereby certify that on January 17, 2006, I electronically filed this Motion with the Clerk of the Court using CM/ECF which will send notification of such filing to the following:

Ralph K. Durstein III, Esquire Department of Justice Carvel State Office Building 820 N. French Street Wilmington, DE 19801 James E. Liguori, Esquire Liguori, Morris & Yiengst 46 The Green Dover, DE 19901

/s/ Stephen J. Neuberger STEPHEN J. NEUBERGER, ESQ.

Conley/ Pleadings / Motion for SJ