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 : : : : Plaintiffs, : : v. : : COLONEL L. AARON CHAFFINCH, : individually and in his official capacity as : Superintendent of the Delaware State Police; : LIEUTENANT COLONEL THOMAS F. : MACLEISH, individually and in his official : capacity as Deputy Superintendent of the : Delaware State Police; DAVID B. MITCHELL, : in his official capacity as the Secretary of the : Department of Safety and Homeland Security of : the State of Delaware; and DIVISION OF : STATE POLICE, DEPARTMENT OF SAFETY : AND HOMELAND SECURITY, STATE OF : DELAWARE, : : Defendants. : CORPORAL B. KURT PRICE; CORPORAL WAYNE WARREN; and SERGEANT CHRISTOPHER D. FORAKER,

C.A.No.04-956-GMS

PLAINTIFFS' OPENING BRIEF IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT ON COUNTS I AND II

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] Attorneys for Plaintiffs Dated: January 25, 2006

MARTIN D. HAVERLY, ATTORNEY AT LAW MARTIN D. HAVERLY, ESQ. (#3295) Two East Seventh Street, Suite 302 Wilmington, DE 19801 (302) 654-2255 [email protected]

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TABLE OF CONTENTS NATURE AND STAGE OF THE PROCEEDING......................................................................................1 SUMMARY OF THE ARGUMENT............................................................................................................2 STATEMENT OF FACTS............................................................................................................................2 A. Plaintiffs..............................................................................................................................2 1. 2. 3. B. C. Master Corporal B. Kurt Price...............................................................................2 Master Corporal Wayne Warren............................................................................3 Sgt. Christopher D. Foraker...................................................................................5

The Longstanding Health and Safety Concerns at the FTU................................................5 Plaintiffs Sound the Alarm and Plea for Help.....................................................................5 1. Poisoning of Police Officers with Lead, Copper, Arsenic, Nitroglycerine, and Other Heavy Metals.........................................................................................6 Dangerously Low Staffing Levels..........................................................................7 Malfunctioning HVAC System..............................................................................8 Malfunctioning Bullet Trap and Conveyor System...............................................9 Hazardous Armorers Room....................................................................................9 Defective Headsets...............................................................................................10 No Protective Training or Equipment..................................................................10 Need for Professional Hazmat Crews..................................................................10 The Huge Number of Law Enforcement Officers Being Exposed to the Hazardous Conditions at the Range.....................................................................11

2. 3. 4. 5. 6. 7. 8. 9.

D. E. F. G. H.

Knowledge - Defendants Were Aware That Plaintiffs Were Speaking Out.....................11 The FTU is Shut Down in Because of Environmental Contamination.............................12 The Disastrous Conditions at the FTU Attract Widespread Media Coverage..................12 Legislators Call for Hearings and Investigations..............................................................13 Plaintiffs Speak Out and Petition the State Auditor's Office............................................13 i

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1. 2. I. J. K.

First Meeting........................................................................................................13 Second Meeting....................................................................................................14

Knowledge - Defendants Were Aware that Plaintiffs Had Spoken to the Auditor...........14 Plaintiffs' Speech to the Auditor Attracts Even More Media Attention...........................14 Repeated Retaliation Against Plaintiffs............................................................................14 1. 2. 3. Falsely Blamed for Destroying the FTU..............................................................14 Other Adverse Action...........................................................................................15 Defendants Send Plaintiffs for Numerous Fitness for Duty Hearing Exams When All They Had Requested Was Blood Testing............................................15 The DSP Historically Runs Away From Hearing Issues......................................16 Defendants Refuse to Accommodate Plaintiffs in Violation of their Long Established Practice.............................................................................................17 a. b. 6. 7. 8. Troopers With Hearing Problems Always Are Accommodated.............17 Troopers With Other Physical Injuries Also Are Accommodated..........18

4. 5.

Defendants Place Plaintiffs on Light Duty...........................................................19 Defendants Send Plaintiffs Suspension Letters, Not Light Duty Letters.............19 Defendants Violate their Historic Practice and Refuse to Give Plaintiffs Two Years of Light Duty.....................................................................................20 a. b. c. Troopers Are Always Given At Least Two Years of Light Duty...........21 Defendants Refuse To Give Plaintiffs Two Years of Light Duty...........22 MacLeish's Justification For His Refusal to Give Plaintiffs Two Years of Light Duty.................................................................................22 Plaintiffs Back Defendants Off During Discovery and Plaintiffs Are Now in Limbo.........................................................................................23

d.

9.

Defendants Violate their Historic Practice and Refuse to Let Plaintiffs Work Overtime While On Light Duty..................................................................23

L.

Evidence of Causation.......................................................................................................23 1. Knowledge of the Protected Conduct...................................................................23 ii

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2. 3. 4. 5. 6. 7. 8. 9. 10.

Demonstrated Anger, Hostility and Antagonism.................................................23 Temporal Proximity.............................................................................................24 Intentional Destruction of Evidence.....................................................................25 Violations of Laws, Rules, Policies and Procedures............................................25 Disparate Treatment.............................................................................................25 Pretext and Coverup.............................................................................................26 Falsehoods............................................................................................................26 Selective Enforcement..........................................................................................26 Underinclusiveness of a Proffered Reason..........................................................26

ARGUMENT..............................................................................................................................................27 I. II. STANDARD OF REVIEW...............................................................................................27 PLAINTIFFS ENGAGED IN FIRST AMENDMENT PROTECTED SPEECH BY SPEAKING OUT ABOUT THE PROBLEMS AT THE FTU, AND THAT SPEECH WAS A SUBSTANTIAL OR MOTIVATING FACTOR IN THE RETALIATION AGAINST THEM..................................................................................28 A. Protected Activity.................................................................................................28 1. Matter of Public Concern........................................................................28 a. Content.......................................................................................28 (1). (2). b. Health Issues.................................................................28 Mismanagement and Corruption...................................29

Form and Context.......................................................................30 (1). (2). (3). (4). (5). News Coverage.............................................................30 Legislative Concern......................................................30 The Police Department Setting.....................................30 Official Reports.............................................................30 Internal Nature of the Speech........................................31 iii

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(6). 2. B.

Motive...........................................................................31

Balancing of Interests..............................................................................31

Substantial or Motivating Factor..........................................................................32 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. Knowledge of Protected Conduct...........................................................32 Demonstrated Anger, Hostility and Antagonism....................................32 Temporal Proximity................................................................................33 Violations of Law, Policies and Procedures...........................................33 Disparate Treatment................................................................................34 Selective Enforcement.............................................................................34 Pretext and Coverup................................................................................34 Falsehoods...............................................................................................34 Intentional Destruction of Key Evidence................................................34 Underinclusiveness of a Proffered Reason.............................................35 The Big Picture........................................................................................35 Summary..................................................................................................36

C. III.

Same Decision Anyway Affirmative Defense.....................................................36

PLAINTIFFS ENGAGED IN FIRST AMENDMENT PROTECTED PETITIONING OF THE GOVERNMENT FOR REDRESS OF GRIEVANCES AND THEIR PETITIONING WAS A SUBSTANTIAL OR MOTIVATING FACTOR IN THE RETALIATION AGAINST THEM..................................................................................37 A. B. C. D. The Big Picture.....................................................................................................37 The Activities Protected.......................................................................................38 The Specifics........................................................................................................38 Substantial or Motivating Factor and Same Decision Anyway...........................39

CONCLUSION............................................................................................................................................39

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TABLE OF AUTHORITIES Cases Page

Adkins v. Rumsfeld, 389 F.Supp.2d 579 (D.Del. 2005)..............................................................28-29,33-34 Adler v. Pataki, 185 F.3d 35 (2d Cir. 1999)................................................................................................36 Anderson v. Davila, 125 F.3d 148 (3d Cir. 1997)..................................................................................37,39 Andrews v. City of Phila., 895 F.2d 1469 (3d Cir. 1990)...........................................................................35 Azzaro v. County of Allegheny, 110 F.3d 968 (3d Cir. 1997) (en banc)....................................................31 Baldassare v. State of N.J., 250 F.3d 188 (3d Cir. 2001)............................................................................30 Bedford v. SEPTA, 867 F.Supp. 288 (E.D.Pa. 1994).................................................................................32 Bieregu v. Reno, 59 F.3d 1445 (3d Cir. 1995)............................................................................................37 Boyle v. County of Allegheny, Pa., 139 F.3d 386 (3d Cir. 1998)...............................................................27 Brady v. Fort Bend County, 145 F.3d 691 (5th Cir. 1998).........................................................................36 Bray v. Marriott Hotels, 110 F.3d 986 (3d Cir. 1997)................................................................................33 Brennan v. Norton, 350 F.3d 399 (3d Cir. 2003)...............................................................28,31,33-34,38-39 Cal. Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972).....................................................38 Caver v. City of Trenton, 420 F.3d 243 (3d Cir. 2005)...............................................................................30 Charpentier v. Godsil, 937 F.2d 859 (3d Cir. 1991) ..................................................................................36 City of San Diego v. Roe, 543 U.S. 77, 125 S.Ct. 521 (2004) (per curiam)...............................................30 Connick v. Myers, 461 U.S. 138 (1983)......................................................................................................28 Cox v. Louisiana, 379 U.S. 536 (1965).......................................................................................................34 Czurlanis v. Albanese, 721 F.2d 98 (3d Cir. 1983).....................................................................................31 Dennison v. Pa. Dept. of Corr., 268 F.Supp.2d 387 (M.D.Pa. 2003)..........................................................32 Fasold v. Justice, 409 F.3d 178 (3d Cir. 2005)...........................................................................................33 Feldman v. Phila. Hous. Auth., 43 F.3d 823 (3d Cir. 1994).......................................................................34 Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410 (1979)..............................................................31 Hill v. City of Scranton, 411 F.3d 118 (3d Cir. 2005)............................................................28,32,34-36,38 v

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Holder v. City of Allentown, 987 F.2d 188 (3d Cir. 1993)...............................................................29-30,34 Howard v. Bd. of Educ. of City of East Orange, 90 Fed.Appx. 571 (3d Cir. 2003)...................................32 Kachmar v. Sungard Data Sys., Inc., 109 F.3d 173 (3d Cir. 1997).............................................................33 Keenan v. City of Phila., 983 F.2d 459 (3d Cir. 1992)...............................................................................32 Lewis v. Casey, 518 U.S. 343 (1996)..........................................................................................................37 McDonald v. Smith, 472 U.S. 479 (1985)...................................................................................................37 McGreevy v. Stroup, 413 F.3d 359 (3d Cir. 2005)................................................................................29,31 McKnatt v. State of Del., 369 F.Supp.2d 521, 523 (D.Del. 2004)..............................................................15 Miller v. Cigna, Corp., 47 F.3d 586 (3d Cir. 1995) (en banc)....................................................................32 Mitchell v. Street, 2005 WL 1993774 (E.D.Pa. Aug. 16, 2005).................................................................32 Monsanto v. Quinn, 674 F.2d 990 (3d Cir. 1982).......................................................................................31 Mount Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977)..............................................................32 Nicholas v. Pa. State Univ., 227 F.3d 133 (3d Cir. 2000)...........................................................................36 O'Donnell v. Yanchulis, 875 F.2d 1059 (3d Cir. 1989)..............................................................................30 Ostad v. Oregon Health Sciences Univ., 327 F.3d 876 (9th Cir. 2003)......................................................36 Pickering v. Bd. of Educ., 391 U.S. 563 (1968)..........................................................................................30 Powell v. Alexander, 391 F.3d 1 (1st Cir. 2004) ........................................................................................38 Pro v. Donatucci, 81 F.3d 1283 (3d Cir. 1996)...........................................................................................28 Rankin v. McPherson, 483 U.S. 378 (1987)................................................................................................31 Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000)..........................................................34 Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988)..................................................................................30 San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir. 1994)............................................................32-34,37-38 Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061 (3d Cir. 1996) (en banc)............................34 Springer v. Henry, -- F.3d --, 2006 WL 121942 (3d Cir. Jan. 18, 2006)..............................................28-29 Springer v. Henry, 2002 WL 389136 (D.Del. March 11, 2002)............................................................29-30 vi

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Stanley v. City of Dalton, Georgia, 219 F.3d 1280 (11th Cir. 2000)..........................................................36 Stewart v. Rutgers, the State Univ., 120 F.3d 426 (3d Cir. 1997)..............................................................33 Suppan v. Dadonna, 203 F.3d 228 (3d Cir. 2000).......................................................................................32 Thomas v. Collins, 323 U.S. 516 (1945).....................................................................................................37 United Mine Workers of America v. Ill. State Bar Ass'n, 389 U.S. 217 (1967)........................................37 Vazquez-Valentin v. Santiago-Diaz, 385 F.3d 23 (1st Cir. 2004)...............................................................36 Village of Arlington Heights v. Metropolitan Hous. Develop. Corp., 429 U.S. 252 (1977)......................33 Waters v. Churchill, 511 U.S. 611 (1994) (plurality opinion)....................................................................31 Watters v. City of Phila., 55 F.3d 886 (3d Cir. 1995)............................................................................29-31 We, Inc., v. City of Phila., 174 F.3d 322 (3d Cir. 1999).............................................................................38 Woodson v. Scott Paper Co., 109 F.3d 913 (3d Cir. 1997).........................................................................33 Yalowizer v. Town of Ranchester, Wyoming, 18 Fed.Appx. 745 (10th Cir. 2001)...................................36 Zamboni v. Stamler, 847 F.2d 73 (3d Cir. 1988)........................................................................................31

Constitutions, Statutes and Rules U.S. Const., Amend. I...........................................................................................................................passim Fed.R.Civ.P. 8(c).........................................................................................................................................36 Fed.R.Civ.P. 56(c).......................................................................................................................................27

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NATURE AND STAGE OF THE PROCEEDING This is a civil action for compensatory and punitive damages and injunctive relief for retaliatory violations of the free speech and petition clauses of the First Amendment. Plaintiffs exercised their First Amendment rights by: (1) reporting to defendants that the health and safety of Delaware State Troopers and others were being endangered by hazardous conditions at the Delaware State Police's Firearms Training Unit ("FTU"); and (2) speaking to the Delaware State Auditor's Office about health hazards, safety concerns and other problems at the FTU, as well as mismanagement and other root causes of those dangerous conditions. Defendants retaliated against plaintiffs for their protected activities, materially changed the conditions of their employment and have made concerted retaliatory efforts to create pretextual reasons to terminate their employment. The record includes the depositions of defendant Ret. Col. L. Aaron Chaffinch, defendant Col. Thomas MacLeish, Major Joseph Papili, Major Randall Hughes, Ret. Major David Baylor, Ret. Major Joseph Swiski, Ret. Major Joseph Forester, Capt. Glenn Dixon, Capt. Ralph H. Davis, III, Capt. Nathaniel McQueen, Jr., Ret. Capt. Gregory A. Warren, Lt. Joseph Aviola, John Dillman, plaintiffs, the interrogatory answers of plaintiffs, various documents, emails and the Amended Complaint and Answer. ("Compl. & Ans.").1 This is plaintiffs' opening brief in support of their motion for summary judgment on Counts I and II - their First Amendment retaliation claims. Plaintiffs incorporate by reference and rely upon the voluminous unsealed and sealed appendix filed in the companion Foraker action, C.A.No. 04-1207-GMS.

The record includes testimony from the following cases - the companion case of Foraker v. Chaffinch; Dillman v. Chaffinch, et al., C.A. No. 02-509- KAJ, Conley v. Chaffinch, et al., C.A.No. 041394-GMS. References to Plaintiff's Answers to Interrogatories in the companion Foraker case will be referenced as "Foraker Inter. # __" and Plaintiff's Answers to Interrogatories in the present case will be referenced as "Price Inter. # __"

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SUMMARY OF THE ARGUMENT Plaintiffs engaged in First Amendment protected activity by speaking out and petitioning the government about the dangerous conditions at the FTU. In light of the overwhelming record evidence, as a matter of law, no reasonable jury could conclude that plaintiff's speech and petitioning about these hazardous conditions did not play a substantial role in the retaliation against them. Because defendants have waived their Mt. Healthy affirmative defense, summary judgment should be entered against them on Counts I and II. STATEMENT OF FACTS A. Plaintiffs. 1. Master Corporal B. Kurt Price. Master Corporal B. Kurt Price has been a Delaware State Trooper since 1985. Prior to joining the DSP, he was a police officer for the City of Dover and served as a Correctional Officer. He also served honorably in the U.S. Marine Corps. He has excelled during his DSP career and worked a wide range of assignments. In addition to patrol, he has worked undercover, in the K-9 Unit and he also served for many years on the Special Operations Response Team ("SORT") as a sniper and on the entry teams. Since 1996, he has worked at the FTU as a firearms instructor and certified armorer. (Compl. & Ans. ¶ 3; FTU3916; Price 28-30,33-34; A1612,1651,2938,1267-69). As his evaluations spanning several leadership changes at the FTU make clear, he has excelled there. (A2939-79). "Cpl. Price is an outstanding classroom instructor." (A2953, 2962,2944). "He possesses a vast amount of experience and knowledge, and demonstrates this on a daily basis in the classroom and during practical training. He leads by example and is an asset to the Division and the [FTU]." (A2954,2963,2945). Cpl/3 Price has a committed work ethic dedicated to the survival of his students. He embraces the thought that the finished product, the students' survival of a deadly encounter, is a direct reflection of his performance as a teacher and instructor. Cpl/3 Price prides himself in providing his students with tactical training as a blue print to survive the dangers they may encounter in real world situations. ***

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Cpl/3 Price has devoted his entire career to the protection, advancement and survival of others. He is able to maintain a very safe range by controlling the movement of students with proper dialog and voice inflection conducive for learning. His calm demeanor under high stress has been a standard and guide for future instructors. Many Troopers look to Cpl/3 Price and respect him for his many years of dedicated service and his commitment to train others so that they may survive any and all dangers encountered from life as a Trooper. (A2979). "Cpl. Price is always on top of Safety." (A2952,2961). He "conveys a genuine concern over the safety and well being of all his students and fellow instructors." (A2973). "Stress is ever present in Firearms Training and in the instruction of same. Cpl. Price is able to reduce stress to himself and others by presenting a safe and learning environment for all persons attending this facility." (A2955). In the same way, he has always received the highest ratings for his care of divisional equipment. (A2939,2948,2957,2969). His "[e]quipment is always kept in excellent condition substantially exceeding the standards set by the Division." (A2946,2966). "Cpl. Price's care of Equipment always and substantially exceeds the Expectations. He maintains the Firearms Training Facility equipment and his issued equipment in exemplary fashion." (A2955). As his final evaluation laments, "Cpl/3 Price's initiative and work ethic will be greatly missed and obviously absent in all areas where his positive impact and influence was evident and witnessed by many." (A3991). 2. Master Corporal Wayne Warren. Master Corporal Wayne Warren has been a Trooper since 1983. He has excelled throughout his DSP career as he worked a wide variety of assignments, including high risk drug assignments such as the Special Investigations Tactical Unit and the Governor's Task Force. He also has served on the SORT team for at least 18 years, including as its second in command. Since 2001, he has worked at the FTU as a firearms instructor in addition to his other duties. (Compl. & Ans. ¶ 4; W. Warren 20-22, 26-39; Forester 79-80; A1613,1651, 2980-85, 2633,2623,2614, 1394-99,644-45). As his evaluations make clear, Master Corporal Warren is an "outstanding Firearms

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Instructor" (A2615), who "possesses a vast amount of experience and knowledge, and demonstrates this on a daily basis. He leads by example and is an asset to the Division and the Firearms Training Unit." (A2634,2624,2611). "His work is of the highest qualit[y], while very few can produce the quantity." (A2626). He "is excellent at communications, and this enables him to excel in his duties as an instructor." (A2625). "Cpl. Warren takes a lead in all aspects of Training ... His communications and character are such that he is able to provide a relaxed and educational environment for others to learn." (A2633,2623). Leadership "is a skill in which Cpl. Warren excels. Due to his knowledge, communications skills and relationships with others he is blessed with the ability to be a true and respected leader." (A2626). He is the kind of Trooper who "frequently performs more duties than are expected of him. In every instance his performance has been exemplary." (A2638). His "initiative and work ethic as a self-starter is evident as he continually seeks to improve upon the overall look and condition of the Firearms Training Facility." (A2614,2616). He "accepts direction of any and all tasks that may be assigned to him. He does not let ego or pride stand in the way of providing a safe and educational environment." (A2626). His "decision making is unquestionable." (A2626). As his supervisors consistently explain, Cpl/3 Warren "Far Exceeded Expected Results" when it came to safety at the FTU. (A2632,2622,2599). "Cpl. Warren is always on top of Safety. He ensures that all persons follow the approved safety procedures." (A2632,2622). He has "shown the ability to approach a problem, research all possible aspects, and render a sound and safe decision." (A2632,2622). "Stress is ever present in Firearms Training and [its] instruction. Cpl. Warren has the ability to reduce the stress to himself and others by presenting a safe and educational environment in which to learn." (A2625). His "care of equipment is impeccable.... Each piece of equipment is given the ultimate in care." (A2625). He has always received the highest ratings in this regard. (A2628,2618,2609,

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2598). He "maintains all equipment related to Firearms Training and all assigned [SORT] gear in an exceptional manner." (A2637,2616). 3. Sgt. Christopher D. Foraker. His distinguished background is found in the summary judgment opening brief in the companion case of Foraker v. Chaffinch, et al., C.A.No. 04-1207-GMS, that is being contemporaneously filed, and which is incorporated by reference herein. B. The Longstanding Health and Safety Concerns at the FTU. The longstanding health and safety concerns that have plagued the FTU are discussed in great detail in the contemporaneously filed summary judgment brief in the companion case, which is incorporated by reference herein. C. Plaintiffs Sound the Alarm and Plea for Help. On December 1, 2003, when Sgt. Foraker assumed command as NCOIC of the FTU, he observed and learned from Cpls/3 Price and Warren about the many health and safety problems at the FTU. Sgt. Foraker individually and on behalf of Cpls/3 Price and Warren (Price Inter. #9 p.22; A2287), immediately began to speak out, both orally and in writing, about the many problems at the FTU discussed below.2 In his Captain's words, "there was rarely a day went by Chris didn't tell us something" about the problems at the range. (G. Warren 74; A1941). "Chris did a pretty admirable job of keeping us informed." (G. Warren 87; A1944). In order to better help those to whom they were speaking and petitioning, plaintiffs also began to investigate the sources of the many problems discussed below so that they could better understand how to resolve and fix them and they also brought in experts to help them get a handle on these problems. (W. Warren 253-55, 164-73; Price 81-82; Foraker 51-53, 60-63,

(Davis 17-18; Price Inter. #13; Foraker Inter. #6 p.15, #10; MacLeish ex. 11-16; W. Warren 112-18,160-62, 175; Price 74; Foraker 57-58, 84-85, 91-92, 122, 279-80; G. Warren 60-61,63-70, 73-80, 87, 90, 114; A487-88,2301-02,067,73-77,226-27,229-36,1417-19,1429-30,1433,1279,694-95,701,703, 711,794-95,1937-42,1944-45,1950).

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158,160-61, 163-65, 260-62; A1475-76,1430-32,1280-81,693,695-96,720-21,790).3 In their supervisor's words, plaintiffs were "basically pleaing for help" and "waiving a flag going `help'" as they spoke out about the hazards at the FTU discussed below. (Davis 30,1718, 28-29; G. Warren 75; A491,487-88,490,1941). [T]hey were being honest and sincere whenever they raised a concern. Honest and sincere for their own health, the health and safety of their families, but I think overall the health and safety of us who had occasion to visit [the FTU on] at least two occasions [a year] to shoot. (Davis 29; A490). "[T]hey were trying to protect the health and safety of those who worked and trained there, as well as their families." (Davis 29; A490).4 1. Poisoning of Police Officers with Lead, Copper, Arsenic, Nitroglycerine, and Other Heavy Metals. Lead exposure and sky-rocketing blood lead levels were one of the areas of serious concern for plaintiffs. DSP doctors had told the FTU staff that much of the work they were doing at the FTU to keep the mechanical systems from falling apart involved using chemicals that acted as "a penetrating agent" and which were transporting lead directly through their skin and into their bloodstream. (MacLeish ex. 11 p.2; Price Inter. #10 p.26; Price 6366,72-73; Foraker 99; A227,2291,1276-78,705). The blood lead levels of Cpls Price and Warren had spiked and the numbers were not coming down back down. (MacLeish ex. 11 p.2; Price Inter. #10 p.25; A227,2290). As plaintiffs spoke out and explained, doing the specialized mechanical range upkeep for which they were not trained "is an unnecessary health risk ... [which] should be left to the trained professionals who can operate in this environment safely."

As Capt. Warren testified, plaintiffs were doing the right thing by investigating and gathering as much data as they could in this regard because the first thing that the higher-ups would ask for when health concerns were raised was corroborating data. (G. Warren 70; A1940). Cpls Price and Warren had previously spoken out and raised health and safety concerns during Sgt. Ashley's tenure, but their concerns fell on deaf ears as Sgt. Ashley "did not want to make any waves." (Price Inter. #11 p. 28; A2293). He told them that "you got to die from something." (Price 65; MacLeish ex. 14; Price Inter. #10 p.25; A1276,232,2290). At his deposition, Captain Warren commended Sgt. Foraker for being willing to try to protect his men and blow the whistle, even if it meant angering those at headquarters. (G. Warren 78-79; A1942).
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(MacLeish ex. 11 p.2; A227). In addition to their own safety, plaintiffs also were "extremely concerned over our health and the health of those who we train." (MacLeish ex. 14; A232).5 As Sgt. Foraker pleaded in one e-mail, "I am overwhelmed with concern for the health and safety of my staff and their wives and children." (MacLeish ex. 15; A233). He explained that as NCOIC of the unit, "I have spent much less time on the range when compared to my staff and yet my copper and lead levels are the same as the others. My lead level shot up from a 3 to a 9 and my copper is at 971 in just two months." (MacLeish ex. 15; A233).6 He explained that the "entire building is contaminated with the lead and copper and that the ventilation is circulating the contamination throughout the entire facility." (Id.). Despite the best efforts to decontaminate themselves at the end of the day, "we do not have a safe haven to escape and shed the contamination, then we are taking the contamination home to contaminate homes and expose the hazards to our wives and children." (Id.). Eventually plaintiffs discovered that the State had lied to them and that their ammunition was not made of ceramic materials and was instead made of toxic materials such as copper, zinc, arsenic and nitroglycerine. (Davis 37-40; Price Inter. #12 p.34-36; A492-93,2299-2301).7 Plaintiffs also brought in an environmental testing company which revealed that the results were off the charts for many of these heavy metals. Plaintiffs pled with their superiors for advanced medical screenings to determine whether they were being poisoned and whether their homes and families were being contaminated. (Price Inter. #12 p.35-36; A2300-01) 2. Dangerously Low Staffing Levels. The FTU was "dramatically

In addition to concerns about their blood lead levels at any one time, plaintiffs also were concerned with the "time weighted averages of exposure" due to their being continuously exposed to this environment over such a long period of time. (Foraker 155-56; A719).
6

5

As Cpl/3 Warren's doctor told him, copper is not his "liver's friend." (W. Warren 173;

A1432). Information regarding the toxic health affects of lead, copper and arsenic are in the record and were included in the information plaintiffs later provided to the State Auditors. (A2854-76)
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understaffed" (Davis 14; A487), and plaintiffs continually spoke out about these problems and how more personnel were needed in order to safely operate the range. (See MacLeish ex. 12; Foraker 74; A228,699). Industry instructor to student safety ratios require 1 instructor for every 2 or 3 students. (Davis 14; A487). At the FTU, the ratio was 1 instructor for every 10 students. (Id.). Because of these dangerously low levels of staffing, "as far as safety goes, [it was] just a nightmare." (Id.). 3. Malfunctioning HVAC System. The State of Delaware's own standards require that the air supply be blowing 75 cfm down range at the firing line. (MacLeish ex. 4; A211). As the record cited in the companion case makes clear, the ventilation system fails to meet the state's own standards. It has never worked as required, cannot remove toxins from the air and in fact blows air and toxins 180 degrees in the wrong direction into the respiratory zones of the shooters. So plaintiffs sounded the alarm about these problems. (Price Inter. #12 p.33-34; A2298-99). For example, "[w]e are experiencing significant air flow problems at the range," problems which have "only been `band aided' over time when complaints have been made." (MacLeish ex. 13 p.1; A230). The smoke on the firing line was so dense that one instructor could barely see the student in his charge. (Id.). Plaintiffs also explained that there was a "reddish haze" suspended in the air which was being "inhaled by the instructors and students. When anyone blows their nose, a large amount of reddish debris is discharged. Students and instructors also complain of a copper penny taste in their mouth" as well as other serious health problems such as nosebleeds, headaches and chronic fatigue. (MacLeish ex. 13 p.1; Price Inter. #12 p.35; A230,2300). After contacting experts, plaintiffs explained that they were told "you don't want to walk into the reddish cloud and you definitely do not want" to breathe it in. (MacLeish ex. 13 p.1; Foraker 50-51; A230,693). Continuing, plaintiffs explained that "this problem constitutes a potentially unsafe and unhealthy working environment detrimental to our good health and inconsistent with departmental goals

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and objectives." (MacLeish ex. 13 p.1; A230). 4. Malfunctioning Bullet Trap and Conveyor System. The bullet trap also was not working properly. There was a "major problem" with its conveyer belt system which had been broken and destroyed due to the DSP not using professionals to maintain the system. (MacLeish ex. 14; W. Warren 69-70; A232,1406-07). As plaintiffs explained, the mechanical operation of this very expensive equipment should not be left for amateurs in the mechanical field to tweak but for professionals who have the training and experience to make proper scientific and calculated adjustments and measurements when necessary. My expertise as well as the entire FTU staff lies in firearms, officer safety and force training. We do not possess the training, skills and knowledge or the time necessary to properly maintain the system at its optimal performance. (MacLeish ex. 11 p.1; A226). This complicated system was breaking down in numerous respects. (Price Inter. #10 p.22-24, #11 p.29-30, #12 p.33-34; MacLeish ex. 13 p.1-2; Foraker 3538; G. Warren 49,100-101; A2287-89,2294-95,2299-2303,230-31,689-90,1401,1414).8 When the machine would break down, the bullet residue would harden and turn to concrete, which causes even more problems for the already beleaguered system. (Foraker 80, 113; A700,708). Relatedly, many companies simply refused to come in and even try to repair the bullettrap because of the dangers of lead exposure arising from it. (Foraker 76; A699). Other professionals indicated to Sgt. Foraker that maintaining the bullet-trap was a full time job that should be done by highly trained professionals, not by amateurs. (Foraker 76,74,78,82; A699701).9 5. Hazardous Armorers Room. Similarly, plaintiffs were being sickened by

Many of these problems were caused by the change from non-frangible ammunition (ammo made of lead) to frangible ammunition (non-leaded ammo, made of copper, zinc, arsenic and nitroglycerine) and the fact that the trap only was designed for non-frangible ammunition. (Price 56-57, 51, 48; Davis 38-40; A1272-74,493). As Sgt. Foraker testified, everything was breaking down at once at the range and this was causing even more problems. "It was getting to where it was too time consuming what was going on and there were so many other things, so many other things at the facility that was going on that was wrong or that was broken or that needed attention and so forth." (Foraker 79,96-97; A700,704). As discussed above, there were not enough staff to safely run the facility.
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the toxic fumes in the armorer's room when cleaning weapons. (Price Inter. #11 p.31-32, #12 p.34; W. Warren 82-85; A2295-96,2299,1410). 6. Defective Headsets. Plaintiffs also spoke out about unsafe headsets that they were being forced to use at the range which were causing safety problems on the range itself. (Foraker Inter. #10 p.22-23; Price Inter. #11 p.32-33, #12 p.34-36; W. Warren 82, 86-89; Foraker 127; A74-75,2296-97,2299-2301,1410-11,712). 7. No Protective Training or Equipment. In Chaffinch's own words, the FTU was "not a safe place to work." (Chaffinch 153; A463). It "was a hazardous situation for [plaintiffs] and for anybody who trained in that facility at all." (Baylor 207; A314). Yet despite these admitted hazards, plaintiffs were never given training in hazardous material cleanup, disposal or abatement. They were never given protective equipment to wear such as Tyvex suits, moon suits, respirators or even little booties for their feet (Chaffinch 60-62; MacLeish 64-65; Price Inter. #10 p.24-27; W. Warren 151-52; Foraker 24; G. Warren 164-65; A440-41,109,228992, 1427,686,1963), all of which violates the State of Delaware's own standards that require, for example, the use of a respirator when cleaning firing range lead. (MacLeish ex. 4; A212). 8. Need for Professional Hazmat Crews. As plaintiffs repeatedly explained to defendants, even the State was telling them that "lead contamination will always be present and a health danger" at the range. (MacLeish ex. 11 p.1; A226). Plaintiffs told MacLeish that to properly operate the bullet trap "would require a full time professional that would also need to be equipped with the proper protective gear and trained in the handling of hazardous lead and other heavy metals." (Id. at p.1-2; A226-27). Plaintiffs explained that they had called in experts, who "concurred that professionals would be needed for the safe and efficient operation of the entire bullet trap system." (Id. at p.2; A227). In one report that plaintiffs submitted to defendants, they explained that one expert had stated that "any range, whether green or lead, should be attended to by professionals certified and trained in the safe cleaning, handling and disposal of any

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hazardous materials present, thereby minimizing the risk to all parties." (MacLeish ex. 16 p.1, 3; A234-36). MacLeish's own internal memos attest to this. (MacLeish ex. 3 p.2; A209). 9. The Huge Number of Law Enforcement Officers Being Exposed to the Hazardous Conditions at the Range. In addition to the training of recruit Troopers and the twice annual firearms qualifications for the 600+ active troopers (Foraker 64, 145; Aviola 23; A696, 716,1675), numerous additional law enforcement agencies and individuals also were exposed to the hazardous conditions at the range. A partial list of the agencies, groups and the names of the many police officers who have trained there is in the record. (See Price Inter. at Ex.2; A2357-75). It includes the FBI, Secret Service, numerous municipal agencies, as well as young children and citizens as part of public outreach initiatives. (Id.).10 D. Knowledge - Defendants Were Aware That Plaintiffs Were Speaking Out. MacLeish admits that he knew that plaintiffs were speaking out about problems at the range and raising their concerns through the chain of command. (MacLeish 41-44,54-56, 122-23, 126, 131, 133, 143-44, 149; A103-04,107,124-26,129-30). For example, within weeks of his return, on December 19, 2003 Sgt. Foraker e-mailed MacLeish about "Emergency Range Issues," in which he brought many of the problems at the FTU directly to MacLeish's attention. (MacLeish ex. 11; A226). Additionally, MacLeish briefed Chaffinch on what he was hearing and learning. (MacLeish 143-44, 152-53; Chaffinch 108-09,112-13,125-27; A129,131,452-53,456-57) Plaintiffs also raised these health and safety issues directly with MacLeish in addition to sending them up through the chain of command. (W. Warren 130-40, 201-205; Price 10210,114-116; Foraker 54-56, 128, 141, 159, 166, 240-41, 253; MacLeish ex. 15; Price Inter. #14;

The record indicates that on a yearly basis, the total number of rounds fired as part of the training given to Federal, State and Local law enforcement officers at the FTU was approximately 558,000. (A2852-53).

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A1422-24,1439-40,1286-89,694,712,715,720,722,785,788,233,2302-03).11 Indeed, MacLeish was taken aback and surprised by the fact that at some meetings, all three of plaintiffs showed up to try to get the problems addressed. (Price 116; A1289).12 Both Capt. Davis and Capt. Warren also testified that they raised plaintiffs' concerns directly with defendants. (Davis 20-23; G. Warren 71-73,87,90-91,114-21,123,129-30, 136-37, 140-42,180-81,220; A488-89,1940,1944-45,1951-58,1967,1977). As Capt. Davis testified, health and safety concerns "of this magnitude absolutely would be sent through the chain of command." (Davis 21; A488). Capt. Davis also wrote to Sgt. Foraker in response to an e-mail about the serious problems caused by under-staffing, stating I "will continue to address your concerns with the staff," meaning the Executive Staff which includes defendants. (MacLeish ex. 12; Davis 22-23; A228,489). Capt. Warren began to raise plaintiffs' concerns with MacLeish within a week of Sgt. Foraker being reinstated to the FTU. (G. Warren 72; A1940). But he had trouble getting MacLeish's attention as MacLeish kept avoiding him and cancelling their meetings. (G. Warren 81-84,105-06,115,220; A1942-43,1948-49,1951,1977). E. The FTU is Shut Down in Because of Environmental Contamination. On March 19, 2004, the FTU was shut down because of environmental contamination. (Compl.& Ans. ¶ 35; A1629,1656). F. The Disastrous Conditions at the FTU Attract Widespread Media Coverage. The disastrous conditions at the FTU attracted widespread media attention throughout the State

But as Sgt. Foraker explained, very often, MacLeish simply did not want to talk about the problems at the range. He would say, "I'm not here for that." (Foraker 56, 240-41; A694,785). As Cpl. Price testified, MacLeish responded to him by saying that because they worked in a firing range, they should expect to have high levels of lead, copper and other toxins in their bloodstream and should expect to have hearing loss. (Price 110,104; Foraker 139, 255, 258-59; G. Warren 171-73; A1288,1286,715, 788-89,1965). Sgt. Foraker's performance evaluation for this time period also praises him for immediately bring these many problems to the attention of the Executive and Academy Staffs upon his return to the FTU. (A838-39). He was praised for his "Distinguished" performance in this regard for "immediately identifying safety issues" that jeopardized the health and safety of all who trained there. (A839).
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of Delaware. (MacLeish ex. 17; Chaffinch ex. 3; Compl. & Ans. ¶ 37; MacLeish 151,157; Chaffinch 131; A131-32, 458,1630,1656,2639-41,2704-2800). As one local paper wrote, the FTU is "an embarrassing white elephant the state has tried to ignore." (A2712). Chaffinch admittedly "wasn't happy" that plaintiffs' speech about the conditions at the FTU caused the DSP to receive negative media attention. (Chaffinch 146, 144; A461-62). He wanted these negative stories to stop and felt plaintiffs were causing them. (Id.). Similarly, MacLeish also admittedly does not like any adverse media attention brought to bear on the DSP. (MacLeish 133-34; A1219-20). In Capt. Yeomans' words, MacLeish was "frustrated" and "upset" with plaintiffs. (A2021). G. Legislators Call for Hearings and Investigations. Numerous state legislators also publicly called for legislative probes and other intervention. (See A2714-17,2719-22,2729-31, 2734-38). H. Plaintiffs Speak Out and Petition the State Auditor's Office. Following immediately on the heels of the media and legislative attention, Governor Minner and members of the General Assembly asked the State Auditor's Office to investigate the problems at the FTU. (Compl. & Ans. ¶ 38; Price Inter. #5 p.19; MacLeish 154, 157; Price 142-43,153-55; G. Warren 214; A1630,1657,2284,2739-43, 132,1296,1298-99,1976). Plaintiffs at two interviews then spoke out to and petitioned the Auditors about the problems at the FTU. 1. First Meeting. On May 9, 2004, plaintiffs met with several investigators from the State Auditor's Office. (Price Inter. #5 p.19; Compl. & Ans. ¶ 39; W. Warren 211-225; Price 141-44; Foraker 272; A2284,2739-43,1630-31,1657,2801,2804,1442-45,1295-96,793). (1) They gave the investigators lengthy, detailed written statements that are in the record. (W. Warren 215-17; Price 144-47; Foraker 272; A2805-23,1443,1296-97,793). These statements addressed the many, many health and safety problems plaguing the FTU. (Id.). (2) They also spoke and gave the Auditor lengthy oral statements, answered many questions and explained the

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FTU's many problems. (See Price Inter. #5; Price 144-47; Foraker 272-73; A2284, 129697,793). (3) They then gave the investigators a concise packet of documents, addressing many key facets of the long history of problems that had plagued the facility (Price 155; A2824-51, 1299). (4) They also delivered 11 large volumes and binders of documentation, addressing: the long history of problems at the FTU, beginning in the early 1990s; irregularities in the bidding process; reports regarding the contaminated facility; correspondence from Facilities Management; innumerable e-mails and other reports related to the broken facility. (See W. Warren 218-19; Price 142, 155; A2802-03, 1444, 1296,1299) 2. Second Meeting. Plaintiffs met with the Auditor a second time on July 28, 2004. At this meeting, they continued to speak out, answer questions and address the many problems at the FTU. (Price Inter. #16 p.39; Compl. & Ans. ¶ 39; Price 141-42, 157-61; Foraker 272; A2304,1630,1657,1295-96,1299-1300,793). I. Knowledge - Defendants Were Aware that Plaintiffs Had Spoken to the Auditor. Defendants were aware that plaintiffs had spoken out to the Auditor. (MacLeish 158-62; Chaffinch 131-34; Price 135-37; A133-34,458-59,1294). J. Plaintiffs' Speech to the Auditor Attracts Even More Media Attention. Plaintiffs' speech to the Auditor also attracted widespread media attention, including front page headlines. (Compl. & Ans. ¶ 42; A1631,1657, 2761-65,2757). Chaffinch was admittedly unhappy that plaintiffs' speech resulted in the media running negative stories about the DSP. (Chaffinch 134-36, 145; A459,461). In the same way, MacLeish was "dismayed" by the fact that plaintiffs had spoken to the Auditor and the media had reported on it. (MacLeish 162; A134). K. Repeated Retaliation Against Plaintiffs. 1. Falsely Blamed for Destroying the FTU. As discussed in the summary judgment brief being filed in the companion case, defendants first launched a local, national and international media campaign, falsely blaming plaintiffs for destroying the FTU. As Major

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Baylor testified, when Chaffinch publicly attacked the men, he understood that he was referring to the "whole group of individuals" at the range, including plaintiffs. (Baylor 389,391; A399). Plaintiffs certainly understood Chaffinch to be attacking them. (See, e.g. Price Inter. #3 p.10, 12, #17; A2275,2277,2305-06). 2. Other Adverse Action. See also the retaliatory actions described in the companion case in the opening brief at section I of the Facts therein. 3. Defendants Send Plaintiffs for Numerous Fitness for Duty Hearing Exams When All They Had Requested Was Blood Testing. In early 2004, after speaking out about the hazardous conditions at the FTU, plaintiffs sought blood testing to determine their levels of lead and other heavy metal exposure from working at the FTU. Plaintiffs did not request hearing tests. Yet the DSP sent them for hearing tests anyway, despite the fact that they were not requested. (Price Inter. #12 p.36; Foraker Decl. ¶¶ 4-7; A2301, 2987). If a trooper requested blood tests to address lead and heavy metal exposure, the DSP would not also send them for hearing tests. As the 25 year former DSP Director of Personnel testified, if this was done, it would be "unusual." (Dillman 149-151, 159, 157-58, 3-5,110-13; A2525-27,2535,253334,2379-81,2486-89). Subsequently, defendants continued and ordered them to undergo at least three unprecedented fitness for duty hearing exams to try to retire them. (Compl. & Ans. ¶ 63-64; Foraker Decl. ¶3; A1636-37, 1661,2986).13 In fact, Sgt. Foraker was repeatedly cleared by DSP doctors, yet defendants continued to order him for more in order to find a pretext to retaliate against and get rid of him. In other words, Sgt. Foraker was repeatedly cleared and found to be fit for duty, yet defendants continued to send him for multiple additional fitness for duty exams because they were not happy with the answer they kept receiving. (Foraker 264-66; Foraker

The retaliatory use of fitness for duty exams by the DSP is already well-known in our District. See McKnatt v. State of Del., 369 F.Supp.2d 521, 523 (D.Del. 2004) (noting the jury's finding that the DSP had sent an officer for a retaliatory fitness for duty exam).

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Inter. #15; Foraker Decl. ¶ 10; A791,87-88,2988).14 4. The DSP Historically Runs Away From Hearing Issues. The DSP does not have a policy, practice or custom of requiring Troopers to get their hearing regularly tested once they graduate from the Academy. (Baylor 168-69; Yeomans 54,61-62; A281,2025-27).15 The evidence reveals that the DSP has historically run away from hearing loss issues and avoids them at all costs out of fear that a large percentage of the Division will be found to have hearing loss. (Dillman 145; Dillman ex. 1; Foraker 136; A2521,2877,714). It does not require physicians to even test hearing in annual physicals. (Dillman 22,144; A2398,2520). As Major Baylor testified, the DSP does not look into hearing issues - your family doctor simply had to check a box on the form, and the DSP would not look into it further. (Baylor 38; Dillman ex.1; Dillman 143-44; A249, 2877, 2519-20). As the former 25 year DSP Director of Personnel explained, "we stayed away from the [hearing] issue completely." (Dillman ex. 1; Dillman 143-44; A2877, 2519-20). DSP HR does not require looking into hearing issues. (Baylor 167-69; A281). In the present personnel director's words, "our hearing testing ... leaves a lot to be desired." (Yeomans 60; A2026). In addition to the DSP's fear that testing hearing would end up with a large number of injured officers, the Division also never could find any appropriate hearing standards on the topic, and this was another reason hearing loss was avoided. (Dillman ex.1; Dillman 143-44; Yeomans 55-58; A2877, 2519-20, 2025-26).16 Defendants also withheld from examining physicians and others exculpatory medical records which could prevent the slanted results they were seeking. (Price Inter. #20 p.42-43; A2307-08; see, e.g. A3880-82). There has never been a requirement of the DSP "that you had to see their doctor or your family doctor to see if your hearing had been impaired from listening to the loud explosions" of weapon discharges. (Baylor 37; Dillman 145; A248,2521). The DSP was afraid that otherwise "we could lose a whole bunch of people." (Dillman 145; A2521). An illustrative example in keeping with the DSP's aversion to hearing issues, is found in the medical records of plaintiff Cpl/3 Warren who received a hearing test on December 4, 2003. The DSP's own doctor found that although he had some high frequency hearing loss, it was not sufficient to refer him to an audiologist or an ear specialist. (A3883-84). It was not until later, after he and his fellow plaintiffs spoke out about the hazardous conditions at the FTU that the DSP rushed to send them for
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5. Defendants Refuse to Accommodate Plaintiffs in Violation of their Long Established Practice. Historically, the DSP always tries to accommodate any injured trooper by finding or creating a job within the Division in order to keep them on the payroll. (Baylor 8586,105-06; Price 173-74, 191-92; Price Inter. #3 p.9; Dillman 47; A260-61,265-66,1303-04, 1308, 2274,2423). It is the "practice and custom" of the DSP "to try to take care of people who have been hurt on the job." (Baylor 85; A260). It is the "policy," "practice and custom" of the DSP "to try to avoid" a Trooper having to lose his job because of an on-the-job injury. (Baylor 86, 105-06; A261,265-66). An injured Trooper who can still perform a job can be placed in numerous available positions throughout the DSP aside from patrol. (Baylor 86; A261). Major Baylor listed dozens of such positions where Troopers with hearing injuries can be placed and accommodated. (Baylor 55-85, 118-19; A253,260,269). One of the factors in this decision to accommodate an injured trooper is where their specialties and expertise lies. (Dillman 161-62; A2537-38).17 a. Troopers With Hearing Problems Always Are Accommodated. The DSP practice as to troopers with hearing loss bears this out. As its own medical records reveal, Major Joseph Forester had serious hearing problems from the time he was a corporal in 1980, yet he was accommodated for 20 years. Eventually, he simply wore hearing aids. The Superintendent told him that his hearing issues did not "create a problem" and he was never sent for a fitness for duty exam, never sent for a second or third opinion, and his police powers were never diminished. None of his hearing problems apparently interfered with his abilities to perform his particular duties. (Forester 66-100, 26-28,48-49,50,52-54,56-57,60-61; Forester ex.1; Dillman 169; Compl. & Ans. ¶ 69; A631-65,591-93,613-15, 617-19, 621-22, 625-26, 3600-

numerous fitness for duty exams and audiological testing. In fact, as Dillman testified, the FTU might be the best place to put an officer with hearing injuries because if appropriate hearing protection is used, the noise levels can be controlled. (Dillman 166; A2542).
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17, 2545, 1637-38, 1661) (See Tab A and Sealed Appendix - A3600-18, 3620-21).18 As numerous officers testified, even with the hearing aids, Forester still could not hear, yet the DSP never got rid of him. (Baylor 87-96; Papili 25-26; A261-63, 1826-27). In fact, very often his hearing aids shorted out on hot and humid Delaware days and would not work at all. (Forester 82; A647). MacLeish himself also testified about Cpl. John Powell and how this former artillery officer was nearly deaf. "Every other word you said to him, he said huh." He had serious hearing loss, but he was kept on the job anyway and not forced out like plaintiffs. (MacLeish 172-73; A136). Yet neither Forester nor Powell were ever placed on light duty, nor were their police powers suspended as defendants have done to plaintiffs. Instead, they were accommodated.19 b. Troopers With Other Physical Injuries Also Are Accommodated. Additionally, the record reveals that numerous troopers with other injuries comparable to those of plaintiffs have been accommodated by the DSP and not forced out. As the medical records summarized in Tab A and the Sealed Appendix explain (A3618, 3623-24, 3657-70), Sgt. Steve Swain was injured on the job in July 1983 as a result of a traffic accident. He suffered severe vocal dysfunction, along with back and neck injuries. As a result, he is unable to vocally articulate and communicate with others. Yet the DSP has taken care of and accommodated him for 23 years - up to and including the present day - by placing him as an

Plaintiffs have prepared a summary/survey pursuant to Fed.R.Evid. 1006 that is attached at Tab A and also is in the appendix at A3618-19. This two page document also serves as a table of contents to the summary survey contained in the sealed appendix at A3620-56. This summary pulls together key portions of the voluminous medical records (A3657-3847) and deposition testimony regarding the accommodation comparators and the 2+ years of light duty comparators and further demonstrates how plaintiffs have been singled out and not accommodated in violation of DSP practice. Plaintiffs simply want "to be accommodated as a lot of other troopers are in the [DSP] who have injuries." (W. Warren 196; A1438). Plaintiffs want "the same treatment as other troopers" before them. (W. Warren 199; Price 173; A1439,1303). This is what they have done "in the past. They have set a precedent." (W. Warren 209; A1441).
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Evidence Technician where he is able to work despite his vocal limitations and inability to communicate. (W. Warren 199-200; Price 171; Baylor 158-59; Papili 76; Yeomans 154; A1439,1303,279,1839, 2050). Similarly, Sgt. David Henderson also suffered from a severe and permanent back injury. He was accommodated and permitted to work as a supply officer, where his physical limitations would not put him in a position where he would have to make arrests. (Yeomans 95-98; Baylor 117-19,313; A2035-36, 268, 340) (Tab A, Sealed Appendix - A3644). 6. Defendants Place Plaintiffs on Light Duty. Six weeks after they spoke to the Auditor, in a letter dated June 25, 2004, defendants placed plaintiffs Price and Warren on 50 weeks of light duty and they were ordered to separate from the Division one year later by June 10, 2005. (MacLeish 195-97; Baylor 160-61; Baylor ex. 1-2; Price 189; W. Warren 206-07; Yeomans ex. 2-3; Yeomans 194,165, 169-70, 172, 184-85; A142,279,301-04,1307,1441,210002,2060, 2052-54, 2057).20 Ordering plaintiffs to retire when they have not had two years on light duty is "unusual." (Baylor 169; A281). Following several requests for short extensions, MacLeish then ordered that plaintiffs had to retire by August 10, 2005, 58 weeks later. (MacLeish 201-02; A143-44). 7. Defendants Send Plaintiffs Suspension Letters, Not Light Duty Letters. MacLeish sent plaintiffs letters, ostensibly placing them on light duty. (Baylor ex. 1-2; A). But these letters are not the norm in the DSP. (Dillman 170; A2546). Plaintiffs were forbidden: from wearing their uniforms; from using their weapons; from preventing crimes in progress; and from exercising their police powers. (Baylor ex. 1-2; W. Warren 207-08; A301-04, 1441). In Major Baylor's words, these letters are "unusual." (Baylor 151-52; A277). Former Director of Personnel Dillman testified that these types of letters are not usually used to place a trooper on

Failure to follow such an order to retire can have grave consequences to a Trooper - such as jeopardizing their pension. (Baylor 122-23; A270).

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light duty. (Dillman 170; A2546). Many of these restrictions are ones that are imposed on troopers who are on "suspended status" for some type of wrongdo