Free Motion to Amend/Correct - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CORPORAL B. KURT PRICE, et al., Plaintiffs, v. COLONEL L. AARON CHAFFINCH, et al., Defendants. : : : : : : : : :

C.A.No.04-956-GMS

PLAINTIFFS' FED.R.CIV.P. 15(b) MOTION TO AMEND THE FIRST AMENDED COMPLAINT TO CONFORM TO THE EVIDENCE PRESENTED AT TRIAL Plaintiffs Move to Amend their First Amended Complaint (D.I. 45) to conform to the evidence as presented at trial pursuant to Federal Rule of Civil Procedure 15(b). The proposed Second Amended Complaint is attached hereto as Tab A. A. Introduction. A party may move to amend the pleadings to conform to the evidence at any time, even after judgment. Fed.R.Civ.P. 15(b). The issues shall be treated as having been raised in the original pleadings when they are tried by express or implied consent of the parties. Id. Accordingly, plaintiffs move to amend their First Amended Complaint to conform to the evidence as presented at trial to include two additional counts - (1) that each plaintiff engaged in protected First Amendment free speech activity when they authorized their attorney Thomas S. Neuberger to speak to the media on their behalf about their extensive statements and other speech to the State Auditor and (2) that under an equal protection rational basis analysis, defendants' acts of singling plaintiffs out and refusing to apply historic policies and practices do not pass scrutiny. Accordingly, because defendants impliedly consented to a trial on these issues by not objecting to the admitted evidence, plaintiffs move to amend the complaint to include both aforementioned

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counts. B. Plaintiffs' First Amendment Speech to the Media. On May 31, 2006 a careful jury found that plaintiffs engaged in protected activity under the First Amendment by speaking out about the hazardous conditions at the Delaware State Police's Firearms Training Unit ("FTU"). Evidence admitted at trial demonstrated plaintiffs engaged in three essential categories of speech under the First Amendment. First, plaintiffs engaged in speech up the chain of command, second plaintiffs spoke out to the State Auditors, and third they spoke to the media through their attorney Thomas Neuberger. (See PX 28 and 29). On May 31, 2006 the Supreme Court decided Garcetti v. Ceballos, 126 S.Ct. 1951 (2006). As discussed in post-trial briefing, even under Garcetti, plaintiffs' speech up the chain of command and to the Auditors remains protected since it was not made pursuant to their job duties as firearms instructors at the FTU. However, in light of the defense request to apply Garcetti in such an overbroad fashion, plaintiffs also seek to amend the Complaint as discussed above. Plaintiffs' speech to the media can certainly not be seen as part of their essential job duties given that plaintiffs were operating under a draconian gag order issued by defendants. This gag order forbade plaintiffs from defending themselves in the media or speaking to the media in any way. Plaintiffs were left with no option but to authorize their attorney to speak as their agent in order to make the public aware of the problems with the FTU and expose the hazardous environmental conditions, mismanagement, waste, incompetence and corruption related to the facility. Shortly after plaintiffs met with the State Auditors, plaintiffs authorized their attorney Thomas Neuberger to contact and communicate with Tom Eldred of the Delaware State News and Mary Allen of The News Journal and read verbatim their Auditors statements so they could -2-

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be published in the news media. Immediate news stories ran in both the News Journal and Delaware State News, informing the public of plaintiffs' speech to the Auditors, the health hazards at the FTU and the root causes of those hazards. (PX28 and 29). Plaintiffs were clearly not speaking to the media as part of their job duties, but instead as concerned citizens. It is clear that this speech to the media on plaintiffs' behalf played a substantial or motivating role in the adverse action against plaintiffs since defendants themselves testified and admitted that they were "unhappy," "displeased" and "dismayed" that plaintiffs had spoken to the Auditors and that the media had reported on it. (Chaffinch 1650-53; MacLeish 1759-60, 1762). Defendants even drew the key distinction in this regard - that they had no problems with plaintiffs' speech to the Auditor, but were instead admittedly angry that they spoke to the media. I was not upset that they were talking to the auditors, no. I was upset that it was bringing negative light to the Division of State Police in the media. (Chaffinch 1653). I "was dismayed at how the media ran the story, dismayed that the media ran the story." (MacLeish 1760). Defendants were "upset" and "not happy" that the Division was being shown in a negative light in the press. (MacLeish 1760, 1762; Chaffinch 1653 ). MacLeish admittedly thought plaintiffs were a "real pain in the ass" "at the time" their statements to the Auditors were published in the newspapers. (MacLeish 1760). Testimony from retired Major David Baylor also demonstrated that both defendants Chaffinch and MacLeish were "not happy" about plaintiffs' speech to the media, and instead were "frustrated" and "upset" with them. (Baylor 554, 556-58). He also witnessed MacLeish referring to each plaintiff as "a pain in the ass." (Baylor 556). Further, the record is full of evidence of how defendants singled out plaintiffs when other similarly situated Troopers were not singled out and that about a month after the media reported on plaintiffs' speech to the Auditors plaintiffs were found unfit for duty, were

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stripped of their police powers and subsequently Cpls. Price and Warren were forced out of the Division. 1. The Jury Interrogatory Already Encompasses This Speech. Plaintiffs engaged in protected speech activity by speaking to the media through their attorney and this speech was a substantial or motivating factor in the adverse action taken against them. The interrogatory given to the jury asked them to determine whether plaintiffs have "proven that [their] protected activity under the First Amendment (speaking out about the conditions at the DSP indoor firing range) was a substantial or motivating factor in the adverse action taken against [them]?" Certainly plaintiffs speech to the media after their statements to the auditors is encompassed in their "speaking out about the conditions at the DSP indoor firing range." Thus, as a matter of law, there was sufficient evidence from which any reasonable jury could return a verdict for plaintiffs. The jury verdict should be upheld since there is abundant record evidence that plaintiffs' speech to the media through their attorney on May 12th played a role and could be found by any reasonable jury to have been a substantial or motivating factor in the adverse action taken against them. C. Equal Protection - Rational Basis. Plaintiffs' constitutional right to the equal protection of the law also has been denied under the Fourteenth Amendment of the U.S. Constitution and 42 U.S.C. § 1983. Trial evidence brought to light defendants' historic policies and practices of always accommodating Troopers with hearing problems, always accommodating Troopers with more serious or comparable injuries as plaintiffs, and always giving Troopers two years of light duty before forcing them to burn their sick/vacation/injured time and then retire. Defendants created a suspect classification by refusing to apply them to plaintiffs. The classification and discrimination which the defendants created is unable to survive a rational basis -4-

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analysis. There is no legitimate basis in fact for the treatment of plaintiffs nor is there any rational relationship to any legitimate governmental objective. D. Conclusion. Accordingly, plaintiffs move to amend their First Amended Complaint to include additional claims for First Amendment protection based on plaintiffs' protected activity by speaking to the media through their attorney and for Fourteenth Amendment equal protection under a rational basis analysis. Plaintiffs waive an opening brief in support of this Motion.

Respectfully Submitted,

THE NEUBERGER FIRM, P.A. /s/ Stephen J. Neuberger THOMAS S. NEUBERGER, ESQ. (#243) STEPHEN J. NEUBERGER, ESQ. (#4440) Two East Seventh Street, Suite 302 Wilmington, Delaware 19801 (302) 655-0582 [email protected] [email protected] Dated: July 31, 2006 Attorneys for Plaintiff

LOCAL RULE 7.1.1 STATEMENT
Counsel certifies that he contacted defense counsel to determine their position on this motion. Defendants have yet to respond. In the interests of judicial economy and to enable this

motion to be addressed at the oral argument tomorrow, plaintiffs have filed this motion.

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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CORPORAL B. KURT PRICE, et al., Plaintiffs, v. COLONEL L. AARON CHAFFINCH, et al., Defendants. : : : : : : : : :

C.A.No.04-956-GMS

ORDER This day of , 2006, it is hereby

ORDERED that plaintiffs' Motion to Amend their First Amended Complaint is GRANTED and the Second Amended Complaint attached as Tab A to plaintiffs' motion is hereby considered filed thus allowing the pleadings to conform to the evidence presented as trial pursuant to Fed.R.Civ.P. 15(b).

THE HONORABLE GREGORY M. SLEET, U.S.D.J.

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Tab A

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

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

: : : : : : : : : : : : : : : : : : : : : : : : : :

C.A.No.04-956-GMS

Jury Trial Demanded

SECOND AMENDED COMPLAINT1 1. This is a civil action for compensatory and punitive

damages and injunctive relief for retaliatory violations of the free speech clause of the First Amendment of the United States Constitution.
1

Plaintiffs exercised their First Amendment rights

Pursuant to Fed.R.Civ.P. 15(b), plaintiffs hereby amend their Complaint to conform to the evidence presented at trial. Counts III and IV have been added. -1-

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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 the 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. I. 2. JURISDICTION

The jurisdiction of this Court is invoked pursuant to 28

U.S.C. §§ 1331 and 1343(a)(3) and (4), 28 U.S.C. §§ 2201 and 2202, and the Fourteenth Amendment to the United States Constitution. The cause of action arises under 42 U.S.C. § 1983.

The claims arose in this judicial district. II. 3. THE PARTIES

Plaintiff Corporal B. Kurt Price is a citizen of the He is a

United States and a resident of Kent County, Delaware.

19 year veteran of the Delaware State Police ("DSP") assigned to the FTU as a firearms instructor. At all times material hereto,

his job performance has been outstanding. 4. Plaintiff Corporal Wayne Warren is a citizen of the He is a

United States and a resident of Sussex County, Delaware.

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21 year veteran of the DSP assigned to the FTU as a firearms instructor. At all times material hereto, his job performance

has been outstanding. 5. Plaintiff Sergeant Christopher D. Foraker is a citizen

of the United States and a resident of New Castle County, Delaware. He is a 19 year veteran of the DSP and is currently a

section chief and the non-commissioned officer in charge ("NCOIC") of the FTU. At all times material hereto, his job

performance has been outstanding. 6. Defendant Colonel L. Aaron Chaffinch is currently the He is

Superintendent of the DSP and its highest ranking officer. sued individually and in his official capacity. Since his

appointment in October of 2001 he has been a serial violator of the constitutional rights of the Troopers under his command. For

example, two federal juries have returned verdicts against him in favor of three separate troopers because of his civil rights abuses. 7. Defendant Lieutenant Colonel Thomas F. MacLeish is

currently the Deputy Superintendent of the DSP and its secondhighest ranking officer. official capacity. 8. Defendant David B. Mitchell is currently Secretary of He is sued individually and in his

the Department of Safety and Homeland Security of the State of Delaware and he is the superior to Chaffinch and MacLeish in the

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chain of command.

He is sued in his official capacity to obtain

injunctive relief which will prohibit Chaffinch and MacLeish from continuing to violate the constitutional rights of plaintiffs. 9. Defendant Division of State Police, Department of Safety

and Homeland Security, State of Delaware ("State Police" or "DSP") is an agency of the State of Delaware, which is only joined in this action for purposes of collecting attorneys' fees and costs. III. FACTS GIVING RISE TO THE ACTION A. 10. History of the FTU

The FTU was built and eventually opened in September of At the

1998 at a cost of approximately $3.3 million dollars.

time, it was touted as a state of the art firearms facility. Until its closure, it was used annually by approximately 2,000 police officers from the DSP and other local agencies, as well as by agents from the FBI, DEA and other federal agencies. 11. However, due to intentional wrongdoing by those

responsible for its construction in the Department of Administrative Services of the State of Delaware and its Division of Facilities Management ("Facilities Management"), the FTU was knowingly and purposefully improperly and dangerously constructed without proper consideration for the health and welfare of the men and women who would work or train there. For example,

Facilities Management wrongfully awarded the construction

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contract to a bidder which had not scored the highest in the application process. Instead it intentionally miscounted the

points awarded to various applicants and the project was awarded to the wrong bidder which constructed a facility which has been proven to be dangerous to the health and safety of all those who use the facility. 12. A substandard facility was built as a result of

improprieties, financial irregularities, breach of the public trust, fraud and/or corruption by public officials at the highest levels of state government. 13. After its construction, no Certificate of Occupancy was

ever issued for the facility by any properly designated independent governmental authority. As a result, numerous

problems with the facility were evident soon after its opening. For example, in November 1998, it was visually apparent that the HVAC air handling system was working improperly and was not removing lead and other bullet fragmentation from the air. 14. As a result of the problems at the FTU, range staff

began to suffer from physical symptoms, such as nasal secretions and also from elevated levels of lead in their bloodstream. 15. From 1998-2003, thousands of taxpayer dollars were

spent as numerous firms and state agencies attempted, and failed, to fix the problems at the FTU. Facilities Management sought to

hide these issues from public scrutiny, to the detriment of the

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health and safety of the men and women who worked or trained there. 16. In an attempt to reduce lead contamination caused by a

perpetually defective HVAC system which did not remove lead contaminants from the air, and to try to make the range safer, in 2001, the DSP transitioned to the use of non-lead based, frangible handgun ammunition which was used at the firing range. 17. However, the change to frangible ammunition eventually

caused numerous additional problems at the FTU, which defendant Chaffinch and Facilities Management sought to cover-up and hide from public scrutiny. For example, in the summer of 2003, the

use of this new ammunition caused the bullet-trap to malfunction and ultimately break down because it had been specifically designed to handle lead-based ammunition and not frangible ammo which dissolves into dust particles upon impact. 18. Because the bullet-trap had ceased to function, range

personnel themselves, and not Facilities Management which was the landlord for the facility, were required by hand to attempt to clean up `toxic goo' on a daily basis which consisted of various dangerous heavy metals, such as zinc and copper. The landlord

ignored such problems and instead by default range personnel were left to deal with the issue. They were not given hazardous

material training, protection or equipment to use while conducting this cleanup. Nor were professional hazardous

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material teams brought in to conduct cleanup, as is done at other firing ranges. 19. As a result of the broken bullet-trap, malfunctioning

air handling system and numerous other problems, the FTU was a hazardous place to work. This was known at all times by

defendants Chaffinch, MacLeish and Facilities Management. B. 20. Plaintiffs Speak Out to Try to Fix the Problems at the Range

On December 1, 2003, Sergeant Foraker was transferred

to the FTU and became the NCOIC. 21. For the previous 20 months defendant Chaffinch had During that

appointed a personal friend as the NCOIC of the FTU.

person's tenure conditions at the range were allowed to steadily deteriorate. Defendant Chaffinch knew of this deterioration and

covered it up because otherwise it would have exposed the fact that through personal friendship he had placed an inexperienced person in charge of the FTU. 22. On December 1st Sgt. Foraker began to immediately

observe numerous problems and safety concerns that were impairing the safe and proper functioning of the FTU and were endangering the men and women who trained or worked there. 23. Soon after, Corporals Price and Warren told Sgt.

Foraker that when they had previously expressed their health and safety concerns about working at the FTU they were told by defendant Chaffinch's friend, "you have to die from something." -7-

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24.

Beginning December 1, 2003, and continuing through the

present, on behalf of himself and Corporals Price and Warren, Sgt. Foraker began to speak out and relay their joint concerns up the chain of command about the hazardous health and physical conditions at the FTU, in an attempt to have those problems fixed and thus protect the health and safety of all those who came into contact with the range. 25. Sgt. Foraker, on behalf of himself and Corporals Price

and Warren, also spoke out and contacted Facilities Management in an attempt to have the problems at the range rectified. 26. One example of their protected speech occurred on

December 19, 2003, when Sgt. Foraker e-mailed defendant MacLeish and also Major Eckrich and reported that the health and safety of Troopers were being endangered by the problems at the FTU. 27. But defendant MacLeish ignored their health and safety

concerns and, for example, did not order plaintiffs to undergo medical or occupational testing to look into their health and well-being. 28. Similarly, on February 20, 2004, Sgt. Foraker e-mailed

Major Eckrich and expressed his concerns that the conditions at the range were contaminating the staff at the FTU. Major Eckrich

then relayed these concerns to defendants MacLeish and Chaffinch. 29. But again, MacLeish and Chaffinch ignored their health

and safety concerns and did not order plaintiffs to undergo

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medical or occupational testing to look into their health and well-being. 30. All of plaintiffs' speech and concerns were relayed up

the chain of command to defendants Chaffinch and MacLeish. 31. concerns. However, the DSP hierarchy dismissed plaintiffs' For example, in January 2004, defendant MacLeish told

plaintiffs to "just put on a paper dust mask to protect yourself" and that it is expected that they would have health problems from working at a firing range. Likewise, defendants MacLeish and

Chaffinch did not order plaintiffs to undergo medical or occupational testing to look into their health and well-being. 32. But plaintiffs were not the only ones concerned with or

being adversely effected by the hazardous conditions at the FTU. 33. For example, in January 2004, police academy recruits

training at the FTU complained of nosebleeds, sore throats, headaches and a "penny taste" in their mouths. 34. Despite having their concerns ignored by defendants in

the DSP hierarchy, plaintiffs continued to speak out and diligently work to have the hazardous conditions at the FTU corrected. For example, they went and spoke out to a federal

authority and defendants learned of this. C. 35. The Range is Shut Down Due to Environmental Contamination

On March 19, 2004 the problems at the range finally

came to a head and the FTU was shut down because of environmental contamination. A federal official who plaintiffs had located -9-

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demanded that the FTU be closed as a result of the building not being fit for occupancy. But again neither defendants

Chaffinch or MacLeish ordered plaintiffs to undergo medical or occupational testing to look into their health or well-being. 36. In a March 20, 2004 article in the Delaware State News,

a Captain, who was also the Director of Training for the DSP, described the condition of the range as follows: "This pistol range is the absolute epitome of a project from hell since its very inception." "At the end of this week, nobody will be The building will be abandoned as of

allowed in the building. Friday. 37.

The entire building is contaminated with lead." The closing of and problems related to the FTU

attracted widespread media attention in both the downstate and upstate newspapers. D. 38. Plaintiffs Also Speak to the State Auditor's Office Because of the catastrophic condition of the FTU and

the various issues of paramount public importance which its closing raised, on Tuesday, April 20, 2004, Governor Ruth Ann Minner called upon the State Auditor to investigate the problems at the FTU. Leaders in the Delaware General Assembly made a

similar request. 39. As part of this investigation, on May 12th and again on

July 28th, 2004 plaintiffs met with, were interviewed by and turned over voluminous documentation to three investigators of the State Auditor's office. Plaintiffs also spoke out to the -10-

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Auditors in written form by submitting to them lengthy individual written statements which addressed numerous issues of public concern. 40. Plaintiffs spoke to the auditors about health hazards, Plaintiffs also

safety concerns and other problems at the range.

spoke out about the root causes of these problems, such as improprieties in the bidding and construction process of the FTU, which resulted in an unsafe building being constructed. 41. At all times plaintiffs spoke out on issues of public

concern under the First Amendment and sought to bring to light actual or potential wrongdoing or breach of the public trust by high public officials and also sought to bring to light and fix the hazardous conditions at a state facility which were endangering the health and safety of state employees and numerous others. 42. The media reported on plaintiffs' May 12th remarks,

which incensed and antagonized defendants Chaffinch and MacLeish when they learned of this. They then decided to retaliate

against plaintiffs, order them to fitness for duty exams, fabricate reasons to fire them and to drive them from their positions as State Troopers. 43. By its content, form and context, at all times

plaintiffs spoke out about matters of public concern. 44. All of plaintiffs' speech was non-disruptive of any

legitimate interest of their employer and was on matters of -11-

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public concern to their employer, as well as the General Assembly, the Governor of Delaware, the news media, voters and the public at large. Their speech related to matters of

political, social and other concern to the community. 45. Plaintiffs were acting in good faith and with honest

motives at all times when they exercised their First Amendment rights to freedom of speech. At all times, plaintiffs believed

their speech to be true and plaintiffs' speech is in fact true. Plaintiffs were not being disloyal by speaking out. Instead,

they were trying to protect their fellow Troopers and members of the public who were being injured and otherwise placed in harms way by the dangerous conditions at the FTU. 46. The public concern in and value to the community at

large of being free to hear plaintiffs' speech outweighs any asserted government interest in the effective and efficient provision of services. 47. Nothing plaintiffs said interfered with the regular Plaintiffs' speech did not interfere with

operations of the DSP.

the DSP's interests in: crime fighting; fostering trust and confidence among officers; protecting the safety of officers or other members of the community. 48. Plaintiffs' speech did not threaten the authority of Nothing plaintiffs said damaged

defendants to run the DSP.

their relationship with defendants or with any of their superior officers. Plaintiffs did not impugn the integrity of their -12-

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supervisors. 49. Plaintiffs' speech did not have a detrimental impact on

any close working relationship for which personal loyalty, trust and confidence are necessary. of defendants. Plaintiffs are not the alter egos

Organizationally, plaintiffs are four and five Defendants are

ranks below defendants in the chain of command. the Colonel and Lieutenant Colonel. sergeant and two corporals. 50.

Plaintiffs are a mere

Any disruption that was caused in the DSP was not

caused by plaintiffs' speech but was instead caused by the very problems that plaintiffs' speech was in fact intended to address. 51. In their positions as employees of DSP at the FTU, Rather,

plaintiffs did not make or formulate DSP policy.

formulation of DSP policy is left up to the Superintendent and Deputy Superintendent of the DSP. E. 52. Retaliation Against Plaintiffs

The individual defendants were aware of plaintiffs'

protected speech, described above, and it antagonized them. 53. Defendants then deliberately set out upon a course of

conduct designed to retaliate against plaintiffs because of their protected speech and to dismiss them from the DSP at the cost of their careers and livelihoods. Defendants Chaffinch and MacLeish

did a 180 degree about face from blissful indifference to plaintiffs' health to demanding that they undergo repeated fitness for duty exams. Defendants believed that this course of -13-

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retaliation would allow them to continue their practice of ignoring and covering up the problems at the FTU, protecting their friends at the expense of loyalty to all the men and women who they command, and thus save themselves from further public contempt and ridicule arising out of their failed leadership of the State Police. 54. For example, immediately after Corporal Price was

interviewed a second time on July 28th by State Auditor investigators, defendant MacLeish ordered him to report to him so he could be interrogated about his interview. Plaintiff's legal

counsel then promptly sent an email directly to MacLeish and demanded the right to accompany his client to that interrogation. MacLeish ignored that demand, never replied, and then ordered Price to be interrogated without his legal counsel present upon penalty of severe punishment. Nor would he even allow a Union

representative to attend the interrogation. MacLeish then interrogated Price without counsel present. 55. Throughout the course and as a result of plaintiffs'

protected speech, defendants retaliated against plaintiffs in numerous ways, including: (a) False charges of misconduct by each plaintiff were made to each investigator for the State Auditor's Office charging that it was the plaintiffs themselves and not Facilities Management and the leadership of the DSP who were responsible for all of the problems with the FTU. These false charges were tantamount to threats or suggestions of discharge. (b) They were forcibly and improperly sent for fitness -14-

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for duty examinations which were intended to be a pretextual vehicle to dismiss them from the DSP. (c) Their job responsibilities were materially altered and they have been placed on light duty status, forbidden from wearing their police uniforms, performing their regular duties and prohibited from using a firearm to protect the public, enforcing laws or otherwise protecting the public. 56. False charges of misconduct and dereliction of duty

have been leveled against plaintiffs by defendants Chaffinch and MacLeish. Blame for the abysmal condition of the FTU has been

placed at their feet by defendants. 57. Additionally, less than a week after initially speaking

to the Auditor's office, defendant MacLeish, acting on behalf of and with the knowledge and consent of defendant Chaffinch, ordered that plaintiffs be sent for trumped up fitness for duty examinations. 58. Fitness for duty examinations are a well-known tool for

eliminating whistleblowers in police agencies in the State of Delaware. 59. An officer who is found not to be fit for duty cannot

act as a police officer in the State of Delaware. 60. An officer who is found to be unfit for duty is put on

temporary light duty status, where he is prohibited from using his firearm, wearing a uniform, enforcing laws and protecting the public. Within one year, the officers then are forcibly retired

with resultant severe financial loss for their families due to the deprivation of their salaries and reduced pensions. -15-

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61.

Fitness for duty examinations were conducted on

plaintiffs by a DSP doctor soon after. 62. On June 18th, plaintiff Corporals Price and Warren then

were put on light duty status because they allegedly had failed their fitness for duty examinations due to hearing loss. Price

and Warren have since in writing been prohibited from using their firearms, wearing a uniform, enforcing the laws and protecting the public. They have been explicitly ordered to run the other

way if they observe a crime in progress, such as a crime of violence on another citizen who they are otherwise sworn to protect at the risk of their own lives. They have been ordered

to violate the very core of their code as police officers, to protect the public. 63. On July 15, 2004, plaintiff Foraker passed his fitness

for duty examination conducted by a DSP doctor. 64. Instead of being happy that plaintiff Foraker had

passed his fitness for duty exam and had been given a clean bill of health by DSP doctors, the DSP promptly scheduled him for a second opinion in the hopes that he would fail the second examination. 65. By their actions described above and otherwise,

defendants have made it clear that they intend to force plaintiff Foraker out of the DSP. On a daily basis defendants continue to

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F.

The Historic Practice in the DSP Regarding Hearing Loss 66. It is the historic policy, practice and custom of the

DSP to stay away from, ignore and otherwise remain purposefully ignorant about the hearing ability of Troopers. 67. This historic policy, practice and custom is driven by First, an inability to find medical hearing

two concerns.

standards applicable to the work that police officers do. Second, a fear that large numbers of Troopers have suffered hearing loss already. Thus even if standards are available, it

is feared that their application would result in the forced retirement of a large portion of the active force. 68. Additionally, the DSP has historically overlooked or

accommodated any Trooper when hearing loss issues have arisen. 69. For example, it is well-known throughout the DSP that

one Major's hearing was so bad that he had to wear a hearing aid in the course of his duties. But this officer was not sent for a

fitness for duty exam, placed on light duty, or forcibly retired from the DSP. 70. Likewise, there are and have been numerous additional

officers in the DSP whose hearing abilities are similar or worse than plaintiffs, but their hearing loss has been intentionally overlooked and ignored by defendants. For example, one

comparable trooper with hearing loss greater than Corporal Warren has been allowed to operate as a uniformed patrol officer with complete police powers. -17-

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71.

Additionally, it is virtually unprecedented for the DSP Family

to inquire into medical issues for its Troopers.

physicians are allowed to sporadically certify medical fitness for duty. management. 72. The totality of retaliatory adverse action taken by Otherwise, medical fitness for duty is ignored by

defendants against plaintiffs are sufficient to deter a person of ordinary firmness from exercising their First Amendment right to freedom of speech. 73. A reasonable person of ordinary firmness would be

deterred from exercising their First Amendment right to freedom of speech when threatened with false charges of misconduct, repeated fitness for duty examinations, severely diminished job responsibilities and discharge. 74. There is a causal link between First Amendment

protected activity on matters of public concern and the adverse action described above. This is demonstrated by: (a) above. The temporal proximity of events, as indicated For example, less than a week after speaking to

the Auditor's office, plaintiffs were singled out and sent for unprecedented fitness for duty examinations. There was no concern for such fitness for duty from December 2003 through March 2004 when plaintiffs repeatedly spoke out to defendants about the health dangers of the FTU and their own health problems. -18-

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There was no such concern when in January 2004 Police Academy recruits complained of health issues when they had served there only weeks, instead of the years plaintiffs were exposed. There was no such concern

when the range publically was shut down in March 2004. But only a few days after plaintiffs spilled the beans to the Auditors on May 12th by turning over to them voluminous documentation on the misdeeds involving Facilities Management and the range and gave lengthy written statements about conditions at the FTU, only then were plaintiffs allegedly unfit for duty. (b) Circumstantial evidence of a pattern of

antagonism following protected activity, as demonstrated by Chaffinch going on WBOC-TV Salisbury and attacking plaintiffs on television; MacLeish's hostile remark that plaintiffs should "just put on a paper dust mask to protect yourself" and that it is expected that they would have health problems from working at a firing range; defendants incensed and antagonized reactions to media reports on plaintiffs' first interviews with the Auditors; and MacLeish's hostile interrogation and browbeating of Corporal Price and refusal to allow him to have his attorney present to defend him after Price had spoken to the Auditors. c) Personal knowledge and awareness of protected -19-

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activity by the individual defendants.

For example,

defendants knew plaintiffs had spoken out to a federal authority which finally forced defendants' hand and made them close the FTU. Additionally defendants knew

of the heavy media coverage of plaintiffs' speech. (d) Violation of DSP policies, procedures,

practices and customs by ignoring the longstanding DSP policy of purposeful ignorance regarding hearing loss and other medical issues. It is the policy of the DSP

once a Trooper has graduated from the Police Academy to leave all medical issues relating to whether or not he or she can serve in a police capacity in the ultimate hands of the family physician of that Trooper and not to independently inquire further if that physician sporadically certifies that the Trooper is fit for duty. (e) Disparate treatment between plaintiffs and

other similarly situated State Troopers both past and present. For example, there is the trooper with

hearing loss greater than Corporal Warren who was allowed to serve on patrol with full police powers. There is the Major who had to wear a hearing aid who never was sent for a fitness for duty exam or had his status questioned. There are numerous other Troopers

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who the defendants refuse to examine. (e) The actions of the defendants once they sent

plaintiffs for fitness for duty exams which reveal that they were not looking for disinterested objective medical advice but instead were seeking to create a distorted and manufactured medical record to use against plaintiffs. For example, once Sgt. Foraker

passed his exam, he was ordered to submit to another in a vain hope to find something to use against him. Medical records also were withheld from medical examiners if they would have favored plaintiffs. (f) The actions in falsely blaming plaintiffs for

problems at the FTU, when the record reveals that problems were publically known to be historic and the fault of Facilities Management and a friend of defendant Chaffinch. (g) 75. The evidence as a whole.

First Amendment protected activity was a substantial or

motivating factor in the adverse action taken against plaintiffs. The natural probative force of the evidence demonstrates causation. 76. The defendants cannot prove by a preponderance of the

evidence that absent a constitutional violation, plaintiffs would have had adverse employment action taken against them anyway. 77. As a direct and proximate result of the actions of the -21-

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defendants as detailed herein, plaintiffs have or will suffer lost wages, earnings and benefits, diminished earning capacity now and upon their retirement, loss of DSP pensions and benefits, decreased employment and earnings opportunities, and other pecuniary losses, emotional pain, suffering, disappointment, anger, inconvenience, mental anguish, loss of enjoyment of life, mental and physical pain, physical injury, anguish, humiliation, embarrassment, injury to reputation, and other non-pecuniary losses and injury. IV. 78. ALLEGATIONS REGARDING THE DEFENDANTS' CONDUCT The individual defendants' actions violated clearly

established federal constitutional rights of which any reasonable official would have known, including more than three decades of Supreme Court and Third Circuit case law prohibiting retaliation against public employees for protected speech. 79. At all times material hereto the individual defendants

participated in, authorized, and sanctioned the federal constitutional deprivations described above which illegally retaliated against plaintiffs. 80. At all times material hereto the individual defendants The federal

and their agents were acting under color of law.

constitutional deprivations described herein are fairly attributable to the State. 81. The actions of the defendants and their agents or

employees were deliberately, intentionally, willfully, -22-

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purposefully, and knowingly done in violation of federal constitutional rights and because of the exercise of those rights. 82. The defendants either knew or showed a negligent or

reckless disregard for the matter of whether their conduct violated federal constitutional rights. 83. Their actions were outrageous and taken with evil

motive, in bad faith, out of personal animus and without any reasonable grounds to support them. 84. Their actions were wanton and malicious or taken with

reckless indifference to federal constitutional rights. 85. The exercise of rights under the U.S. Constitution made

a difference in all actions adverse to plaintiffs. 86. The exercise of these rights was a motivating,

substantial or determinative factor in all actions adverse to plaintiffs. 87. The individual defendants' actions were willful,

reckless and oppressive. 88. The defendants' actions were motivated by bias, bad

faith, and improper motive. 89. The defendants' actions constitute an abuse of

governmental power. 90. The defendants did not reasonably believe that the

actions they took were necessary to accomplish any legitimate governmental purpose. -23-

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91.

The defendants' actions do not further any narrowly

drawn important, substantial or compelling governmental interest. 92. The defendants' actions are not so reasonable as to

further any governmental interest asserted and do not closely fit the goal of serving those governmental interests. COUNT I (FREE SPEECH CLAUSE) 93. Plaintiffs repeat and reallege paragraphs 1 - 92 set

forth above. 94. The defendants took action adverse to plaintiffs as a

direct and proximate result of and in retaliation for plaintiffs' First Amendment protected speech on matters of public concern. There is a temporal and causal relationship between plaintiffs' aforementioned protected speech, and adverse employment action. First Amendment protected activity was a substantial or motivating factor in the adverse employment action. The

defendants cannot prove by a preponderance of the evidence that absent a constitutional violation they would have had grounds to adversely treat plaintiffs. 95. Plaintiffs' constitutional right to freedom of speech

has been denied under the First Amendment of the U.S. Constitution and 42 U.S.C. § 1983. COUNT II - (PETITION CLAUSE) 96. Plaintiffs repeat and reallege paragraphs 1 - 95 set

forth above. 97. The defendants took action adverse to plaintiffs as a -24-

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direct and proximate result of and in retaliation for their exercise of their First Amendment right to petition the government for redress of grievances. There is a temporal and

causal relationship between plaintiff's aforementioned protected petitioning and adverse employment action. First Amendment

protected activity was a substantial or motivating factor in the adverse employment action. The defendants cannot prove by a

preponderance of the evidence that absent a constitutional violation they would have had grounds to adversely treat plaintiffs. 98. Plaintiffs' constitutional right to petition the

government for redress of grievances has been denied under the First Amendment of the U.S. Constitution and 42 U.S.C. § 1983. COUNT III - (FIRST AMENDMENT - SPEECH TO THE MEDIA) 99. Plaintiffs repeat and reallege paragraphs 1 - 98 set

forth above. 100. Each plaintiff engaged in protected First Amendment

free speech activity when they authorized their attorney Thomas S. Neuberger to speak to the media on their behalf after they gave extensive statements and documents to the State Auditor about hazardous environmental conditions at the FTU, mismanagement, waste, incompetence and corruption. 101. Their attorney did speak out on their behalf to Tom

Eldred of the Delaware State News and Mary Allen of the News Journal about plaintiffs speech to the Auditors. -25For example,

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their attorney read their written Auditors statements to the reporters verbatim. 102. Each plaintiff used this speech by their attorney as a

means of legally getting around the gag order which had been imposed by defendants to deprive the public of information about their broken government. 103. Immediate news stories ran in both the News Journal

and Delaware State News, informing the public of plaintiffs' speech to the Auditors, the health hazards at the FTU and the root causes of those hazards. 104. Chaffinch and MacLeish each were angry about what

plaintiffs exposed through the news stories. 105. Chaffinch and MacLeish tried to find a grounds to

formally discipline plaintiffs because their attorney spoke on their behalf, but were unable to do so. 106. Chaffinch and MacLeish then singled plaintiffs Price

and Warren out to be found unfit for duty on June 18th and to suspend their police powers on June 25th, when similarly situated officers in the past had not been so treated who had identical or comparable medical issues. 107. Written policies were then violated regarding

plaintiffs, such as, for example, the rule requiring commanding officers to contact them weekly to ensure how they were holding up during their medical absences. 108. Long established policies and practices also were -26-

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violated by defendants.

For example:

always accommodating

Troopers with hearing problems; always accommodating Troopers with more serious or comparable injuries; always giving Troopers two years of light duty before forcing them to burn their sick/vacation/injured time. 109. The proffered justification for the treatment of

plaintiffs also is under-inclusive in that defendants did not also test the hearing of other officers who worked at the range. 110. There is abundant evidence of antagonism towards

plaintiffs, of a cover-up and intentional falsehoods which also demonstrate causation. 111. Price and Warren were subsequently prematurely forced

to retire by the DSP. 112. Plaintiffs' constitutional right to freedom of speech,

specifically - to speak to the media about matters of the utmost public concern - has been denied under the First Amendment of the U.S. Constitution and 42 U.S.C. § 1983. COUNT IV - (FOURTEENTH AMENDMENT - RATIONAL BASIS) 113. Plaintiffs repeat and reallege paragraphs 1 - 112 set

forth above. 114. Defendants have historic policies and practices of:

always accommodating Troopers with hearing problems; always accommodating Troopers with more serious or comparable injuries; always giving Troopers two years of light duty before forcing them to burn their sick/vacation/injured time. -27-

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115.

Defendants singled plaintiffs out and refused to apply

these historic policies and practices to plaintiffs. 116. This classification and discrimination which the

defendants created cannot survive rational basis analysis. 117. There is no legitimate basis in fact for the treatment of plaintiffs nor is there any rational relationship to any legitimate governmental objective. 118. Plaintiffs' constitutional right to the equal

protection of the law has been denied under the Fourteenth Amendment of the U.S. Constitution and 42 U.S.C. § 1983.

Wherefore , plaintiffs pray that the Court:
A. B. Enter judgment against the defendants. Enter a declaratory judgment declaring the acts of the defendants to be a violation of plaintiffs' constitutional rights. C. Enter a judgment against the defendants Chaffinch and MacLeish, jointly and severally, for compensatory damages, including lost wages, back pay, pension and other benefits, for future or front pay, loss of earning capacity, emotional distress, humiliation, embarrassment, and injury to reputation. D. Enter separate judgments against defendants Chaffinch and MacLeish for punitive damages.

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E.

Issue a mandatory injunction directing defendant Mitchell to closely monitor all contact between defendants Chaffinch or MacLeish and plaintiffs and to prohibit any retaliation against or harassment of the plaintiffs by Chaffinch or MacLeish, upon penalty of finding Mitchell in contempt of Court.

F.

Award back pay to compensate plaintiffs for the loss of overtime assignments due to their being placed on light duty.

G.

Issue a reparative injunction directing plaintiffs be taken off of light duty status and put back on full duty status at the FTU.

H.

Issue a mandatory injunction ending the continuing illegal actions of defendants Chaffinch and MacLeish and barring them from considering protected speech whenever considering taking any employment action concerning plaintiffs.

I.

Issue a reparative injunction directing that individual defendants Chaffinch and MacLeish place a signed document in each plaintiffs' personnel file apologizing for their illegal violations of plaintiffs' constitutional rights.

J.

Issue a reparative injunction directing that individual defendants Chaffinch and MacLeish issue -29-

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public written apologies to plaintiffs and run their apologies in the Delaware State News, the News Journal and on WBOC-TV Salisbury, MD. K. Enjoin the defendants from retaliating against plaintiffs. L. Award plaintiffs attorneys' fees, costs and pre and post judgment interest for this action. M. Require such other and further relief as the Court deems just and proper under the circumstances.

THE NEUBERGER FIRM, P.A.

/s/ Stephen J. Neuberger THOMAS S. NEUBERGER, ESQUIRE (#243) STEPHEN J. NEUBERGER, ESQUIRE (#4440) Two East Seventh Street, Suite 302 Wilmington, DE 19801 (302) 655-0582 [email protected] [email protected] Attorneys for Plaintiffs Of Counsel: JACOBS & CRUMPLAR, P.A. THOMAS C. CRUMPLAR, ESQUIRE (#942) Two East Seventh Street P.O. Box 1271 Wilmington, DE 19899 (302) 656-5445 Dated: July 31, 2006
Firearms Training Unit / Pleadings / Second Amended Complaint.FINAL

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CERTIFICATE OF SERVICE I, Stephen J. Neuberger, being a member of the bar of this Court do hereby certify that on July 31, 2006, I electronically filed this Motion with the Clerk of the Court using CM/ECF which will send notification of such filing to the following:

Robert Fitzgerald, Esquire Montgomery McCracken Walker & Rhoads, LLP 123 South Broad Street Philadelphia, PA 19109 Richard M. Donaldson, Esquire Montgomery McCracken Walker & Rhoads, LLP 300 Delaware Avenue, Suite 750 Wilmington, DE 19801

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

FT U /Briefs / M otion to Am end Com plaint.final

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