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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ) ) Plaintiff, ) ) v. ) ) TOWN OF SMYRNA, DAVID S. ) HUGG, III, individually and ) in his official capacity as ) Town Manager; ) BEVERLY A. HIRT, individually ) and in her official capacity ) as Director of the Smyrna ) Public Library; and ) HARVEY LEGGETT, individually ) and in his official capacity ) as Supervisor of Streets/ ) Foreman of Public Works, ) ) Defendants. ) KARI M.(SMITH)PRILLER,

C.A. No. 04-1286-JJF

DEFENDANTS' OPENING BRIEF IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

AKIN & HERRON, P.A. Bruce C. Herron Attorney I.D. No.: 2315 1220 N. Market Street, Suite 300 P.O. Box 25047 Wilmington, Delaware 19899 (302) 427-6987 Attorney for Defendants Dated: January 31, 2006

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TABLE OF CONTENTS

TABLE OF AUTHORITIES

. . . . . . . . . . . . . . . . . . . . . 4 . . . . . . . . . . . . . . 6

NATURE AND STAGE OF THE PROCEEDING

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . 7 STATEMENT OF FACTS ARGUMENT I. II. . . . . . . . . . . . . . . . . . . . . . . 8 15 15

. . . . . . . . . . . . . . . . . . . . . . . . . . SUMMARY JUDGMENT STANDARD OF REVIEW. . . . . . . .

PLAINTIFF'S CLAIM AGAINST DEFENDANT HARVEY LEGGETT MUST BE DISMISSED BECAUSE EMPLOYEES MAY NOT BE SUED UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 AND HE WAS NOT A STATE ACTOR AS REQUIRED UNDER 42 U.S.C. § 1983. . . . . . . . . . . . . . .

16

III. PLAINTIFF'S "HOSTILE ENVIRONMENT" CLAIM FOR SEXUAL HARASSMENT MUST BE DISMISSED BECAUSE DEFENDANT TOWN OF SMYRNA EXERCISED REASONABLE CARE TO PREVENT AND CORRECT ANY SEXUALLY HARASSING BEHAVIOR AND PLAINTIFF UNREASONABLY FAILED TO TAKE ADVANTAGE OF THE TOWN'S PROCEDURE FOR FILING A SEXUAL HARASSMENT COMPLAINT...17 IV. PLAINTIFF'S CLAIM THAT SHE WAS TERMINATED BECAUSE OF UNLAWFUL DISCRIMINATION SHOULD BE DISMISSED BECAUSE SHE CANNOT SHOW THAT OTHER EMPLOYEES NOT IN THE PROTECTED CLASS WERE TREATED MORE FAVORABLY. . . . . . . . . 18 PLAINTIFF'S CLAIM OF UNLAWFUL DISCRIMINATION MUST BE DISMISSED BECAUSE THERE IS NO EVIDENCE FROM WHICH A FACT FINDER COULD REASONABLY DISBELIEVE THE TOWN'S LEGITIMATE NON-DISCRIMINATORY REASONS FOR HER DISCHARGE OR BELIEVE THAT AN INVIDIOUS DISCRIMINATORY REASON WAS MORE LIKELY THAN NOT A MOTIVATING OR DETERMINATIVE CAUSE OF THE EMPLOYER'S ACTION. . . . . . . . . . . 20 THERE IS NO EVIDENCE OF RACIAL DISCRIMINATION ACTIONABLE UNDER 42 U.S.C. § 1981. . . . . . . . . 22

V.

VI.

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VII. PLAINTIFF'S RIGHTS TO DUE PROCESS WERE NOT VIOLATED BECAUSE SHE DID NOT HAVE A PROPERTY RIGHT IN CONTINUED EMPLOYMENT. . . . . . . . . . .

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VIII. DEFENDANTS HAVE NOT BREACHED THE COVENANT OF GOOD FAITH AND FAIR DEALING IMPLIED UNDER DELAWARE LAW. . 24 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 25

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TABLE OF AUTHORITIES

CASES Anderson v. Liberty Lobby, Inc. 477 U.S. 242 (1986) . . . . . . . . . . . . . . . . . . . . Board of Regents v. Roth 408 U.S. 564 (1972) . . . . . . . . . . . . . . . . . . . . Celotex Corp v. Catrett 477 U.S. 317 (1986) . . . . . . . . . . . . . . . . . . . . Cleveland Board of Ed v. Loudermill 470 U.S. 532 (1985) . . . . . . . . . . . . . . . . . . . . Faragher v. City of Boca Raton 524 U.S. 775 (1998) . . . . . . . . . . . . . . . . . . . . Fuentes v. Perskie 32 F.3d 759 (3d Cir. 1994) . . . . . . . . . . . . . . .

15 23 15 23 17

20, 21 22 18 15 20 24 16 20 16

Iadimarco v. Runyon 190 F. 3d 151 (3d Cir. 1999) . . . . . . . . . . . . . . . . Josey v. John R. Hollingsworth, Corp. 996 F.2d 632 (3d Cir. 1993) . . . . . . . . . . . . . . . . Matsushita Elec. Indus. Co. v. Zenith Radio Corp. 475 U.S. 574 (1986) . . . . . . . . . . . . . . . . . . . . McDonnell v. Douglas Corp. v. Green 411 U.S. 792 (1973) . . . . . . . . . . . . . . . . . . . . Merrill v. Crothall-American, Inc. 606 A. 2d 96 (Del. Supr. 1992). .. Molnar v. Booth 229 F. 3d 593 (7th Cir. 2000) . . . . . . . . . . . .

. . . . . . . . . . . . . . .

Mosca v Cole 384 F. Supp. 757 (D.N.J. 2005) . . . . . . . . . . . . . . . Murphy v. Chicago Transit Authority 638 F. Supp. 464 (N.D. Ill. 1986) . . . . . . . . . . . . .

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Pa. Coal Ass'n v. Babbitt 63 F. 3d 231 (3d Cir. 1995)

. . . . . . . . . . . . . . . .

15 18 16 22 21 16

Reeves v. Sanderson Plumbing Prod., Inc. 530 U.S. 133 (2000) . . . . . . . . . . . . . . . . . . . . Robinson v. City of Pittsburgh 120 F. 3d 1286 (3d Cir. 1997) . . . . . . . . . . . . . . .

St. Francis College v. Al-Kahzraji 479 U.S. 812 (1987) . . . . . . . . . . . . . . . . . . . . Texas Dept. Of Community Affairs v. Burdine 450 U.S. 248 (1981) . . . . . . . . . . . . . . . . . . . . Woodward v. Worland 977 F. 2d 1392 (10th Cir. 1992) STATUTES Fed. R. Civ. P. 56(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

15

Title 42 U.S.C. § 1981 . . . . . . . . . . . . . . . . . . . . 21 Title 42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . 16

Title VII of the Civil Rights Act of 1964 . . . . . . . . . . .16

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NATURE AND STAGE OF THE PROCEEDING On September 21, 2004, plaintiff Kari Priller filed a Complaint (D.I. 1) in this Court naming as defendants the Town of Smyrna, Beverley Ann Hirt, David S. Hugg, III and Harvey Leggett. The Complaint asserts several claims against the defendants under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1983 and 42 U.S.C. § 1981, as well as a state law claim for breach of an implied covenant of good faith and fair dealing. Defendants

filed an Answer and Affirmative Defenses on October 13, 2004. (D.I. 8). Pursuant to the Court's Scheduling order (D.I. 18), discovery is complete. Defendants have moved for summary This is Defendants' Opening Brief in

judgment as to all claims.

Support of their Motion for Summary Judgment.

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SUMMARY OF ARGUMENT I. II. SUMMARY JUDGMENT STANDARD OF REVIEW. PLAINTIFF'S CLAIM AGAINST DEFENDANT HARVEY LEGGETT MUST BE DISMISSED BECAUSE EMPLOYEES MAY NOT BE SUED UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 AND HE WAS NOT A STATE ACTOR AS REQUIRED UNDER 42 U.S.C. § 1983.

III. PLAINTIFF'S "HOSTILE ENVIRONMENT" CLAIM FOR SEXUAL HARASSMENT MUST BE DISMISSED BECAUSE DEFENDANT TOWN OF SMYRNA EXERCISED REASONABLE CARE TO PREVENT AND CORRECT ANY SEXUALLY HARASSING BEHAVIOR AND PLAINTIFF UNREASONABLY FAILED TO TAKE ADVANTAGE OF THE TOWN'S PROCEDURE FOR FILING A SEXUAL HARASSMENT COMPLAINT. IV. PLAINTIFF'S CLAIM THAT SHE WAS TERMINATED BECAUSE OF UNLAWFUL DISCRIMINATION SHOULD BE DISMISSED BECAUSE SHE CANNOT SHOW THAT OTHER EMPLOYEES NOT IN THE PROTECTED CLASS WERE TREATED MORE FAVORABLY. PLAINTIFF'S CLAIM OF UNLAWFUL DISCRIMINATION MUST BE DISMISSED BECAUSE THERE IS NO EVIDENCE FROM WHICH A FACT FINDER COULD REASONABLY DISBELIEVE THE TOWN'S LEGITIMATE NON-DISCRIMINATORY REASONS FOR HER DISCHARGE OR BELIEVE THAT AN INVIDIOUS DISCRIMINATORY REASON WAS MORE LIKELY THAN NOT A MOTIVATING OR DETERMINATIVE CAUSE OF THE EMPLOYER'S ACTION. THERE IS NO EVIDENCE OF RACIAL DISCRIMINATION ACTIONABLE UNDER 42 U.S.C. § 1981.

V.

VI.

VII. PLAINTIFF'S RIGHTS TO DUE PROCESS WERE NOT VIOLATED BECAUSE SHE DID NOT HAVE A PROPERTY RIGHT IN CONTINUED EMPLOYMENT. VIII. DEFENDANTS HAVE NOT BREACHED THE COVENANT OF GOOD FAITH AND FAIR DEALING IMPLIED UNDER DELAWARE LAW.

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STATEMENT OF FACTS Plaintiff Kari Priller (then known as Kari Smith), a white female, began her employment with the Town of Smyrna as a parttime Library Clerk in March, 2001. (Complaint, A-2).
1

She was

hired by the Town Library Director, defendant Beverly A. Hirt. (Deposition testimony of Beverly A. Hirt, A-10). Plaintiff

became the Library's full-time Children's Program Coordinator in July, 2002. Her responsibilities included all children's (Hirt Dep., A-11; Deposition

programs conducted in the Library. testimony of Kari Priller, A-35).

Full-time Town employees are subject to an initial three to six month probationary period. Pursuant to this policy, Priller (Hirt Dep., A-12).

became a probationary employee in July, 2002.

An employee's initial probationary period may be extended an additional six months. (Town Personnel Policy, A-77-78).

Probationary employees may be dismissed at any time upon recommendation to the Town Manager. A-78). (Town Personnel Policy,

A grievance procedure through which an employee may

challenge adverse employment actions is available to nonprobationary employees. (Town Personnel Policy, A-82).

Between July, 2002 and December, 2002, Hirt had several concerns regarding plaintiff's work. An August 27, 2002 Report

References to the Appendix to Defendants' Opening Brief in Support of their Motion for Summary Judgment will be to "A- ". 8

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of Employee Counseling (A-83) notes excessive tardiness and absenteeism. Hirt reprimanded Priller for deficient performance (A-84; Priller Dep., A-36-42).

in a December 16, 2002 memo.

During the summer of 2001 or 2002 Hirt denied plaintiff's request to work in the Library after-hours. 44). (Priller Dep., A-

Hirt specifically told all Library employees, including

plaintiff, they were not allowed to be in the Library after normal working hours. (Hirt Dep., A-21-23). Several months

before December 20, 2002, Hirt told plaintiff she was not allowed to work in the Library after hours for safety reasons. Dep., A-45). Defendant Harvey Leggett, an African-American male, has been employed with the Town of Smyrna's Public Works Department since 1988. (Deposition testimony of Harvey Leggett, A-71). Prior to (Priller

December 20, 2002 plaintiff and Leggett had limited work-related interaction. Plaintiff spoke to Leggett on occasion when he came

into the Library to retrieve recycling products or make repairs. (Priller Dep., A-45-46). During the week proceeding December 20, 2002 plaintiff asked Leggett if he would help her move from her personal residence. (Priller Dep., A-48). Leggett called plaintiff at

home and they decided to go out on Thursday night, December 19, 2002 for "a beer." (Priller Dep., A-50). They met at a They

restaurant in Smyrna at 9:30 p.m.

(Priller Dep., A-50).

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drank beer, left the restaurant and then went to a bar. drank more beer. (Priller Dep., A-52).

They

By the time they left (Priller Dep., A-54).

the bar they each had "three, four" beers.

After they left the bar, Plaintiff "realized that [she] shouldn't drive." A-53-54). They walked down Main Street. (Priller Dep., She decided

Plaintiff saw a large plant on the curb.

to take the plant to the Library.

They walked to the Library.

Shortly after midnight, plaintiff used her to key to enter the front door of the Library. (Priller Dep., A-55-56). a soda. Leggett entered the Library with her.

Plaintiff went into the kitchen to get According to Priller, Leggett Priller

(Priller Dep., A-57).

then attacked and raped her.

(Priller Dep., A-57-58).

reported the incident to the police later that morning. During the afternoon of December 20, 2002 Det. Graham of the Smyrna Police Department told Hirt about the incident. Dep., A-13-16). (Hirt

Over the weekend plaintiff and Hirt had an e-

mail exchange which contained a general reference to the incident. Hirt assured plaintiff she would not tell any of the (Hirt Dep.,

other Library employees about the alleged incident. A-17-18).

Priller returned to work on Monday, December 23, 2002. Hirt asked how she was doing. discuss it. Priller said she did not want to During the days after the

(Hirt Dep., A-19-20).

incident, Hirt tried to comfort Priller by talking about

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something similar that happened to Hirt as a child. Dep., A-59).

(Priller

Hirt also placed literature on Priller's desk about (Priller Dep.,

a counseling program available through work. A-60).

The police also informed Town Manager David Hugg about the incident on December 20, 2002. Hugg immediately suspended

Leggett with pay "until such time as charges are brought, or you are cleared, after which your status will be reviewed." (December 20, 2002 letter from Town Manager Hugg to Harvey Leggett, A-85). The police and Attorney General's office On January 2, 2003 the Attorney

interviewed Priller and Leggett.

General's office informed the Town that Leggett would not be prosecuted. (Hugg Dep., A-73). Hugg reinstated Leggett to a

probationary status as of January 6, 2003 with the condition that he was to have no contact with plaintiff at any time. (January A-86;

2, 2003 letter from Town Manager Hugg to Harvey Leggett, Hugg Dep., A-73, 75).

Plaintiff's six month performance evaluation took place as scheduled in early January, 2003. Hirt noted continued concerns

with plaintiff's job performance in a January 4, 2003 Employee Progress Report. (A-87). Hirt's comments regarding plaintiff's

difficulty in distinguishing between high and low priorities and having to be reminded to complete assigned tasks were continuing problems which had been noted by Hirt and discussed with

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plaintiff before the December 20, 2002 incident. A-64-66).

(Priller Dep.,

Hirt also noted Priller's violation of the Library Hirt decided to extend

Policy prohibiting after-hours access.

the length of plaintiff's probation six months "ending July 6, 2003." (A-89).

On March 10, 2003 plaintiff became upset when she saw Leggett doing work on the sidewalk outside the Library. Dep., A-61-62). (Priller

Leggett was doing work in that area while

plaintiff was in the Library because of a mix-up in the coordination of their work schedules. (Hirt Dep., A-24). Hirt

agreed to perform Priller's job of retrieving books from the book drop near the sidewalk. However, plaintiff claims that she

became upset and angry when Hirt stated "its not like he is going to attack you." (Priller Dep., A-60-61).

The next day, March 11, 2003, plaintiff requested and was granted a meeting with Town Manager David Hugg. A-61-62). (Priller Dep.,

She asked him about the process for filing a sexual He gave her copies of the sections of the Town (A-79).

harassment claim.

Personnel Policy regarding sexual harassment claims. (Priller Dep., A-62).

After the meeting, Priller called a

lawyer, determined she couldn't afford the consultation fee and decided not to file a sexual harassment complaint. Dep., A-62-63). (Priller

Other than the March 10, 2003 incident, Priller

never saw Leggett in or around the Library while she was working.

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(Priller Dep., A-64). The events which led to plaintiff's termination began on June 16, 2003. Priller requested vacation leave for three days (Priller Dep., A-67-68). Hirt

beginning Monday, June 30, 2003.

reminded plaintiff she was scheduled to conduct a Summer Reading Program between 6:00 p.m. and 8:00 p.m. on Tuesday, July 1, 2003. (Priller Dep., A-68). The Children's Program Coordinator is not

permitted to take vacation on a Summer Reading Program day. (Hirt Dep., A-26). Plaintiff agreed she would conduct the program and submitted a Leave Application for 2 3/4 days. (Priller Dep., A-69). The

dates on the Leave Application signed by plaintiff and approved by Hirt were June 30, 2003 through July 2, 2003 "except 6:00-8:00 p.m., July 1, 2003." (A-90). Hirt was on vacation between June

23, 2003 and June 27, 2003.

During their discussion on June 16,

2003, plaintiff told Hirt she would drop the key to the Library's money box off to Hirt at the Library before 9:00 a.m. on Monday, June 30, 2003. the key. A-25-26). On Tuesday, July 1, 2003 Library employee Annie Lane told Hirt that plaintiff had gone to Virginia and that she had asked a part-time Library employee, Nancy Conlin, to conduct the Summer Reading Program. (Hirt Dep., A-25-26). On Wednesday, July 2, (Hirt Dep., A-25). Plaintiff failed to return (Hirt Dep.,

Hirt was forced to break into the box.

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2003, plaintiff called Hirt and told her that her car had broken down in Virginia. (Hirt Dep., A-27-29). Plaintiff did not

return to work as required on Thursday, July 3, 2003. Hirt met with Hugg to discuss plaintiff. Hirt told Hugg

that plaintiff had lied about covering the Children's Program and had falsified a vacation slip. Hirt also told Hugg that (Hirt Dep.,

plaintiff's overall work performance was down. A-30-32).

There was no discussion regarding the December 20, (Hirt Dep., A-33). Hirt made the

2002 incident with Leggett.

decision to recommended Plaintiff's discharge and prepared a written letter of termination (A-91) which was given to plaintiff upon her return to work on Monday, July 7, 2003. The December

20, 2002 incident and its aftermath had nothing to do with Hirt's decision to terminate Priller. (Hirt Dep., A-33).

Following her termination plaintiff attempted to file a grievance. A-92). (July 18, 2003 letter to David Hugg from Kari Smith,

Town Manager Hugg informed her that Town grievance

procedures did not apply because she had been dismissed at the end of her probationary period. (July 18, 2003 and July 30, 2003

letters from David Hugg to Kari Smith A-93, A-95).

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ARGUMENT I. SUMMARY JUDGMENT STANDARD OF REVIEW.

A Court shall grant summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). If the

moving party demonstrates an absence of material fact, the nonmoving party must come forward with specific facts showing there is a genuine issue for trial. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586 (1986). The Court views the underlying facts and reasonable inferences therefrom in the light most favorable to the party opposing the motion. 236 (3d Cir. 1995). Pa. Coal Ass'n v. Babbitt, 63 F. 3d 231, The mere existence of some evidence in

support of the non-moving party, however, will not be sufficient for denial of a motion for summary judgment; there must be enough evidence to enable a jury reasonably to find for the non-moving party. (1986). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 If the non-moving party fails to make a sufficient

showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to judgment as a matter of law. 317, 322 (1986). Celotex Corp v. Catrett, 477 U.S.

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II.

PLAINTIFF'S CLAIM AGAINST DEFENDANT HARVEY LEGGETT MUST BE DISMISSED BECAUSE EMPLOYEES MAY NOT BE SUED UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 AND HE WAS NOT A STATE ACTOR AS REQUIRED UNDER 42 U.S.C. § 1983.

The only claim asserted by plaintiff against defendant Harvey Leggett is for "sexual harassment...perpetrated against her." (Complaint, A-2). The claim is based on Title VII of the (A-4, A-6).

Civil Rights Act of 1964 and 42 U.S.C. § 1983.

Plaintiff's claim under Title VII should be summarily dismissed because it covers employers, not employees. Robinson v. City of

Pittsburgh, 120 F. 3d 1286, 1293-94 (3d Cir. 1997); Molnar v. Booth, 229 F. 3d 593, 599 (7th Cir. 2000). The alleged act committed by Leggett which forms the basis of plaintiff's claim was not committed "under color of law." Murphy v. Chicago Transit Authority, 638 F. Supp. 464, 466-68 (N.D. Ill. 1986) (Co-workers cannot be liable under § 1983 where their alleged harassment of plaintiff had no relation to the powers and duties entrusted to them by their government employer). Because Leggett's alleged act occurred during the

course of a private social interaction with plaintiff which had no connection to his duties as a Town employee, he was not a state actor for purposes of § 1983. F. 2d 1392, 1400-01 (10th Cir. 1992). See Woodward v. Worland, 977 There is no legal basis

for plaintiff's claim against Leggett and he is entitled to judgment as a matter of law. 16

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III. PLAINTIFF'S "HOSTILE ENVIRONMENT" CLAIM FOR SEXUAL HARASSMENT MUST BE DISMISSED BECAUSE DEFENDANT TOWN OF SMYRNA EXERCISED REASONABLE CARE TO PREVENT AND CORRECT ANY SEXUALLY HARASSING BEHAVIOR AND PLAINTIFF UNREASONABLY FAILED TO TAKE ADVANTAGE OF THE TOWN'S PROCEDURE FOR FILING A SEXUAL HARASSMENT COMPLAINT. An employer is not liable to an employee for a hostile work environment if (a) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (b) the plaintiff employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer. (1998). Faragher v. City of Boca Raton, 524 U.S. 775, 807-808

Here, defendant Town Manager Hugg acted promptly by

suspending Leggett after learning of plaintiff's allegation regarding the after hours incident. When Hugg learned that

Leggett would not be charged with a crime he acted reasonably by reinstating Leggett with the condition that he was to have no contact with plaintiff. with plaintiff. When plaintiff later became upset about a remark made by defendant Hirt, Hugg gave plaintiff a copy of the Town's sexual harassment procedure and complaint policy. to file a complaint. Plaintiff chose not Leggett in fact had no further contact

Her failure to utilize the anti-harassment

policy promulgated by the Town bars her hostile environment claim.

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IV.

PLAINTIFF'S CLAIM THAT SHE WAS TERMINATED BECAUSE OF UNLAWFUL DISCRIMINATION SHOULD BE DISMISSED BECAUSE SHE CANNOT SHOW THAT OTHER EMPLOYEES NOT IN THE PROTECTED CLASS WERE TREATED MORE FAVORABLY.

When a plaintiff alleges that she was discharged due to unlawful discrimination she establishes a prima facie case by showing (1) she is a member of a protected class; (2) she was qualified for the position; (3) she was discharged; and (4) other similarly situated employees not in the protective class were treated more favorably. Josey v. John R. Hollingsworth Corp., Here, there is no evidence

996 F.2d 632, 638 (3d Cir. 1993).

that other similarly situated employees were treated more favorably then plaintiff. Plaintiff cannot rely on a comparison with the Town's treatment of Leggett. He was a Public Works employee. She

worked in the Town Library.

Because their job duties and work

environment were completely separate and distinct, the Town had no obligation to engage in a continuing comparison of their work performance and employment-related actions taken by their superiors. In any event, there were documented problems of dishonesty and deficiency in plaintiff's work performance between December, 2002 and July, 2003. Mr. Leggett. There is no such evidence with respect to

See Reeves v. Sanderson Plumbing Prod., Inc., 530

U.S. 133, 141 (2000) (To demonstrate intent to discriminate by an 18

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employer, a plaintiff alleging disparate treatment based upon a protected trait must produce sufficient evidence upon which one could find that the protected trait actually motivated the employer's decision).

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V.

PLAINTIFF'S CLAIM OF UNLAWFUL DISCRIMINATION MUST BE DISMISSED BECAUSE THERE IS NO EVIDENCE FROM WHICH A FACT FINDER COULD REASONABLY DISBELIEVE THE TOWN'S LEGITIMATE NON-DISCRIMINATORY REASONS FOR HER DISCHARGE OR BELIEVE THAT AN INVIDIOUS DISCRIMINATORY REASON WAS MORE LIKELY THAN NOT A MOTIVATING OR DETERMINATIVE CAUSE OF THE EMPLOYER'S ACTION.

Once a plaintiff demonstrates a prima facie case of discrimination, the burden shifts to the employer to produce "some legitimate non-discriminatory reason" for the action taken. McDonnell v. Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). The

employer is not required to persuade the Court that the legitimate, non-discriminatory reason actually motivated its decision. Mosca v Cole, 384 F. Supp. 757, 763 (D.N.J. 2005).

"It is sufficient if the defendant's evidence raises a genuine issue of material fact as to whether it discriminated against the plaintiff." Texas Dept Of Community Affairs v. Burdine, 450 U.S.

248, 254 (1981). Here, the Town, through Ms. Hirt, has clearly produced legitimate, non-discriminatory reasons for Priller's discharge. The Leave Application signed by Priller and approved by Hirt required that Priller return to work to conduct a Summer Reading Program. Priller did not appear to conduct the program. She

failed to obtain her superior's approval to have another employee cover the program. Priller also failed to return to work as 20

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required on July 7, 2003.

Hirt documented her dissatisfaction

with other aspects of plaintiff's job performance, including excessive absenteeism, tardiness, failure to follow through on assigned tasks and difficulty in distinguishing between high and low priorities, both before and after the December 20, 2002 incident. Because the Town has met its burden, plaintiff can survive summary judgment only by pointing to evidence "from which a fact finder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action." at 764. Fuentes, 32 F. 3d Hirt

Plaintiff here can point to no such evidence.

terminated plaintiff because of (1) her belief that plaintiff lied to her and falsified a vacation slip and (2) dissatisfaction with her job performance. There is nothing in the record to suggest an improper discriminatory motive. Pure speculation is not a basis on which See Texas

a reasonable jury can return a verdict for plaintiff.

Dept. Of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). (The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against plaintiff remains at all times with the plaintiff).

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VI.

THERE IS NO EVIDENCE OF RACIAL DISCRIMINATION ACTIONABLE UNDER 42 U.S.C. § 1981.

The purpose of Title 42 U.S.C. § 1981 is to provide a remedy for discrimination based upon race, color or national origin. St. Francis College v. Al-Kahzraji, 479 U.S. 812 (1987). Plaintiff can point to no evidence that she was discriminated against because she is white. Plaintiff's claims asserted

pursuant to 42 U.S.C. § 1981 (A-5) should therefore be dismissed. See Argument V supra; Iadimarco v. Runyon, 190 F. 3d 151 (3d

Cir. 1999) (In order to establish a prima facie case of reverse discrimination, plaintiff must present sufficient evidence to allow a reasonable fact finder to conclude that the defendant treated plaintiff less favorably than others because of her race).

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VII. PLAINTIFF'S RIGHTS TO DUE PROCESS WERE NOT VIOLATED BECAUSE SHE DID NOT HAVE A PROPERTY RIGHT IN CONTINUED EMPLOYMENT. A public employee has a property right in her employment protected by due process only if a source independent of the Federal Constitution, such as state law, creates that right. Board of Regents v. Roth, 408 U.S. 564, 577 (1972); Cleveland Board of Ed v. Loudermill, 470 U.S. 532 (1985). Here, there is no independent source which gave plaintiff a property right in continued employment. She was a probationary

employee who was terminated at the end of her probationary period. The Town Personnel Policy gives non-probationary Because

employees the right to use the grievance procedure.

plaintiff was a probationary employee, she had no right to a hearing under the grievance procedure.

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VIII.

DEFENDANTS HAVE NOT BREACHED THE COVENANT OF GOOD FAITH AND FAIR DEALING IMPLIED UNDER DELAWARE LAW.

In Merrill v. Crothall-American, Inc., 606 A. 2d 96 (Del. Supr. 1992) the Delaware Supreme Court held that every employment contract made in Delaware includes an implied covenant of good faith and fair dealing. In order to show a breach of this

implied covenant, plaintiff must show the conduct of the employer constituted "an aspect of fraud, deceit or misrepresentation." Id. at 101. The record here contains no evidence of any fraud, Defendants are therefore entitled

deceit or misrepresentation.

to judgment as a matter of law as to plaintiff's state law claim.

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CONCLUSION For the foregoing reasons, defendants Town of Smyrna, Beverly Ann Hirt, David S. Hugg, III and Harvey Leggett respectfully request that judgment be entered on their behalf.

AKIN & HERRON, P.A. /s/ Bruce C. Herron Bruce C. Herron Attorney I.D. No.: 2315 1220 N. Market Street, Suite 300 P.O. Box 25047 Wilmington, Delaware 19899 (302) 427-6987 Attorney for Defendants Dated: January 31, 2006

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