Free Answering Brief in Opposition - 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' ANSWERING BRIEF IN OPPOSITION TO DEFENDANTS' MOTION FOR JUDGMENT AS A MATTER OF LAW OR IN THE ALTERNATIVE, TO AMEND THE JUDGMENT OR FOR A NEW TRIAL

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: July 7, 2006

MARTIN D. HAVERLY, ATTORNEY AT LAW MARTIN D. HAVERLY, ESQ. (#3295) Two East Seventh Street, Suite 201 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 ......................................................................................................... 1 STATEMENT OF FACTS ......................................................................................................................... 2 A. B. Plaintiffs' Job Duties as Firearms Instructors ................................................................... 2 Plaintiffs Speak Out and Petition Up the Chain of Command ......................................... 2 1. C. Why Plaintiffs Spoke and Petitioned Up the Chain of Command ....................... 3

Plaintiffs Speak Out to and Petition the State Auditor ..................................................... 3 1. First Meeting ........................................................................................................ 4 a. Plaintiffs Gave the Auditor Written Statements ..................................... 4 (1). (2). (3). b. Cpl/3 Warren's Written Statement ............................................ 4 Cpl/3 Price's Written Statement ................................................ 4 Sgt. Foraker's Written Statement .............................................. 5

Plaintiffs Gave the Auditor Oral Statements and Answered Questions ................................................................................................ 5 Plaintiffs Gave the Auditor a Concise Packet of Key Documents ......... 5 Plaintiffs Gave the Auditor Eleven Voluminous Binders of Information ............................................................................................. 6 Why Plaintiffs Spoke to the Auditor ...................................................... 6

c. d.

e. D. E.

The Defamatory Statements .............................................................................................. 6 Firearms Industry Expert Bud Fini ................................................................................... 7 1. 2. Qualifications ....................................................................................................... 7 Methodology ........................................................................................................ 9

ARGUMENT ............................................................................................................................................ 10 I. STANDARD OF REVIEW ............................................................................................ 10 A. Judgment as a Matter of Law ............................................................................. 10 i

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B. C. II.

New Trial ........................................................................................................... 11 Alter or Amend the Judgment ............................................................................ 12

GARCETTI DOES NOT AFFECT PLAINTIFFS' FIRST AMENDMENT FREE SPEECH CLAIMS .......................................................................................................... 12 A. B. C. D. Introduction ........................................................................................................ 12 The State of Third Circuit Law Prior to Garcetti .............................................. 13 The Facts of Garcetti ......................................................................................... 13 The Garcetti Court Explicitly Warned Against the Overbroad or Expansive Interpretation of the Scope of an Employee's Job Duties As the Defense Now Urges .................................................................................................................. 15 The Garcetti Court Also Explained That It Was Not Overruling Longstanding Prior Supreme Court Precedent ......................................................................... 16 1. 2. F. Speech Made Internally is Still Protected ............................................. 16 Speech About the Workplace or One's Job is Still Protected .............. 18

E.

Garcetti Does Not Impact Upon Plaintiffs' Free Speech Case .......................... 20 1. 2. Speech Up the Chain of Command ....................................................... 21 Speech to the State Auditor .................................................................. 21

III.

GARCETTI ALSO DOES NOT AFFECT PLAINTIFFS' FIRST AMENDMENT PETITION CLAUSE CLAIMS ...................................................................................... 25 A. B. Plaintiffs Engaged in Protected Petitioning Activity ......................................... 25 Garcetti Has No Impact Upon Third Circuit Petition Clause Jurisprudence ..... 25 1. 2. Garcetti Was a Free Speech Case ......................................................... 25 The Portion of the Free Speech Analysis Affected by Garcetti Has No Analogue in Third Circuit Petition Clause Jurisprudence .............. 25

IV.

THERE IS ABUNDANT RECORD EVIDENCE THAT CHAFFINCH DEFAMED SGT. FORAKER ............................................................................................................ 27 A. B. Standard of Review ............................................................................................ 27 The Basics .......................................................................................................... 27 ii

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C.

The First Flawed Defense Claim ....................................................................... 28 1. Chaffinch Blamed Sgt. Foraker For The Disastrous Conditions at the Range .............................................................................................. 28 But Chaffinch Also Testified That These Statements Were False ....... 28

2. D. E. V.

The Second Flawed Defense Claim ................................................................... 29 The Third Flawed Defense Claim ...................................................................... 30

THERE IS ABUNDANT RECORD EVIDENCE TO SUPPORT SGT. FORAKER'S DAMAGES AWARD BESIDES EXPERT FINI'S TESTIMONY ............................... 30 A. B. C. Standard of Review ............................................................................................ 30 The Basis for the Economic Damages ............................................................... 31 Fini Is a Proper Expert ....................................................................................... 32 1. 2. Qualifications ........................................................................................ 32 Reliability ............................................................................................. 33

VII.

THE COURT PROPERLY REFUSED TO GIVE A JURY INSTRUCTION ADDRESSING DECISIONMAKER CHAFFINCH'S FIRST AMENDMENT RIGHTS .......................................................................................................................... 35 THE PUNITIVE DAMAGES AWARD IS FULLY JUSTIFIED BY THE FACTS AND THE LAW ............................................................................................................. 35 A. B. Standard of Review ............................................................................................ 35 Discussion .......................................................................................................... 36 1. 2. Degree of Reprehensibility ................................................................... 36 Ratio to Compensatory Damages ......................................................... 38

VIII.

IX.

THE COURT PROPERLY CONSOLIDATED THE CASES ....................................... 39

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

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TABLE OF AUTHORITIES Cases Page

Allah v. Al-Hafeez, 226 F.3d 247 (3d Cir. 2000) ..................................................................................... 36 Anderson v. Davila, 125 F.3d 148 (3d Cir. 1997) .................................................................................... 27 Azzaro v. County of Allegheny, 110 F.3d 968 (3d Cir. 1997)(en banc) ........................................ 13,17,19 Baldassare v. State of N.J., 250 F.3d 188 (3d Cir. 2001) .................................................................... 13,17 Bedford v. SEPTA, 867 F.Supp. 288 (E.D.Pa. 1994) ............................................................................... 13 BMW of North America v. Gore, 517 U.S. 559 (1996) ...................................................................... 36-38 Brennan v. Norton, 350 F.3d 399 (3d Cir. 2003) ................................................................................. 20,26 Chuy v. Phila. Eagles Football Club, 595 F.2d 1265 (3d Cir.1979)(en banc ) ......................................... 30 City of San Diego v. Roe, 543 U.S. 77 (2004)(per curiam) ..................................................................... 19 Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001) ........................................ 37-38 Connick v. Myers, 461 U.S. 138 (1983) ......................................................................................... 17,19,26 Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) .............................................................. 33 Dennison v. Pa. Dept. of Corr., 268 F.Supp.2d 387 (M.D.Pa. 2003) ....................................................... 13 Doe v. Cahill, 884 A.2d 451 (Del. 2005) ............................................................................................. 27,30 Eclock v. Kmart Corporation, 233 F.3d 734 (3d Cir. 2000) ........................................................... 32-33,35 EEOC v. Univ. of Pa., 850 F.2d 969 (3d Cir. 1988) ................................................................................. 25 Ely v. Reading Co., 424 F.2d 758 (3d Cir. 1970) ..................................................................................... 24 Evans v. Port Auth. of N.Y. and N.J., 273 F.3d 346 (3d Cir. 2001) ............................................... 30,35-36 Feldman v. Phila. Hous. Auth., 43 F.3d 823 (3d Cir. 1994) ..................................................................... 13 Garcetti v. Ceballos, ­U.S.­, 126 S.Ct. 1951 (2006) ......................................................................... passim Garrison v. Louisiana, 379 U.S. 64 (1964) .......................................................................................... 28-29 General Electric v. Joiner, 522 U.S. 136 (1997) ....................................................................................... 32 Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410 (1979) ...................................................... 17,19 iv

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Goodman v. Pa. Turnpike Comm'n, 293 F.3d 655 (3d Cir. 2002) ........................................................... 11 Gutierrez v. Gonzalez, 125 Fed.Appx. 406 (3d Cir. 2005) ....................................................................... 12 Hill v. City of Scranton, 411 F.3d 118 (3d Cir. 2005) .................................................................... 12,26-27 Howard v. Bd. of Educ. of City of East Orange, 90 Fed.Appx. 571 (3d Cir. 2003) ................................. 13 Johnson v. Campbell, 332 F.3d 199 (3d Cir. 2003) .................................................................................. 11 Kernezy v. Peters, 79 F.3d 33 (7th Cir. 1996) .......................................................................................... 39 Kodrea v. City of Kokomo, Ind., 2006 WL 1750071 (S.D.Ind. June 22, 2006) ....................................... 15 Kumho Tire Company v. Carmichael, 526 U.S. 137 (1999) ............................................................... 32-34 Loughman v. Consol-Pennsylvania Coal Co., 6 F.3d 88, (3d Cir.1993) .................................................. 31 Mathie v. Fries, 121 F.3d 808 (2d Cir. 1997) ........................................................................................... 39 McNaboe v. NVF Co., 2000 WL 354366 (D.Del. March 20, 2000) ........................................................ 12 Mitchell v. Street, 2005 WL 1993774 (E.D.Pa. Aug. 16, 2005) .............................................................. 13 Monsanto v. Quinn, 674 F.2d 990 (3d Cir. 1982) .................................................................................... 17 Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977) ................................................ 19 New York Times v. Sullivan, 376 U.S. 254 (1964) ............................................................................. 28-29 North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194 (3d Cir. 1995) ...................................... 12 Pacific Ins. Co. v. American National Fire Ins. Co., 148 F.3d 396 (4th Cir. 1998) ................................. 24 Pickering v. Bd. of Educ., 391 U.S. 563 (1968) ............................................................................. 18-19,26 Price v. Chaffinch, 2006 WL 1313178 (D.Del. May 12, 2006) ................................................ 12-13,27,30 Rankin v. McPherson, 483 U.S. 378 (1987) ........................................................................................ 13,17 Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000) ............................................. 11,27,29 Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988) ............................................................................... 19 Roebuck v. Drexel Univ., 852 F.2d 715 (3d Cir. 1988) ........................................................................... 12 Ruscavage v. Zuratt, 831 F.Supp. 417 (E.D.Pa.1993) .............................................................................. 12 San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir. 1994) .................................................................... 13,26 v

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Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061 (3d Cir. 1996)(en banc) ................ 10-12,29 Spence v. Funk, 396 A.2d 967 (Del. 1978) .............................................................................................. 30 Springer v. Henry, 2002 WL 389136 (D.Del. March 11, 2002) .......................................................... 13,26 Springer v. Henry, 2004 WL 2127172 (D.Del. Sept. 16, 2004) ............................................................... 40 St. Amant v. Thompson, 390 U.S. 727 (1968) ..................................................................................... 28-29 State Farm Mut. Ins. Co. v. Campbell, 538 U.S. 408 (2003) ............................................................... 36-38 Suarez Corp. v. McGraw, 202 F.3d 676 (4th Cir. 2000) ............................................................................ 35 Tormenia v. First Investors Realty Co., Inc., 251 F.3d 128 (3d Cir. 2000) .............................................. 35 U.S. v. Downing, 753 F.2d 1224 (3d Cir. 1985) ....................................................................................... 33 U.S. v. Giampa, 758 F.2d 928 (3d Cir. 1985) ........................................................................................... 11 U.S. v. Rockwell, 781 F.2d 985 (3d Cir. 1986) ........................................................................................ 11 Waldorf v. Shuta, 142 F.3d 601 (3d Cir. 1998) ................................................................................... 32-33 Walters v. Mintec/International, 758 F.2d 73 (3d Cir. 1985) .............................................................. 35-36 We, Inc., v. City of Phila., 174 F.3d 322 (3d Cir. 1999) .......................................................................... 26 Willow Inn, Inc. v. Public Service Mutual Ins. Co., 399 F.3d 224 (3d Cir. 2005) .............................. 36-37 X-Men Sec., Inc. v. Pataki, 196 F.3d 56 (2d Cir. 1999) ........................................................................... 35

Constitutions, Statutes and Rules U.S. Const., Amend. I ........................................................................................................................ passim 10 Del.C. § 4002 ....................................................................................................................................... 38 Fed.R.Civ.P. 42 ......................................................................................................................................... 39 Fed.R.Civ.P. 50 .................................................................................................................................... 10-11 Fed.R.Civ.P. 50(a) .................................................................................................................................... 11 Fed.R.Civ.P. 59(e) .................................................................................................................................... 12 Fed.R.Evid. 702 .............................................................................................................................. 32-33,35 vi

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Fed.R.Evid. 801(d)(1) ............................................................................................................................... 28 Fed.R.Evid. 801(d)(2) ............................................................................................................................... 28

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NATURE AND STAGE OF THE PROCEEDING Following a 12 day trial and approximately six hours of deliberations, on May 31, 2006, a seven person jury found that defendant Chaffinch and his successor defendant MacLeish acted "recklessly, maliciously, or intentionally" in retaliating against plaintiffs for exercising their protected First Amendment rights. The jury also found that Chaffinch defamed Foraker in stating to the media that Foraker was to blame for problems at the firing range, where problems stemming from poor design and construction surfaced almost immediately upon its opening in 1998 and continued through the present. The jury awarded compensatory damages of $862,395 to Price, $543,276 to Warren and $74,676 to Foraker. Each of those amounts includes $2,200 for emotional distress, injury to reputation and humiliation. Chaffinch was ordered to pay punitive damages of $15,682 to Foraker, $113,625 to Warren and $181,103 to Price - each of which is a 21% ratio of punitive to compensatory damages. MacLeish was ordered to pay punitive damages of $6,720 to Foraker, $48,697 to Warren and $77,615 to Price - each of which is a 9% ratio. This is plaintiffs' Answering Brief and Appendix in opposition to defendants' motion for judgment as a matter of law or in the alternative, to amend the judgment or for a new trial.1 SUMMARY OF THE ARGUMENT 1. The carefully crafted and narrow Garcetti decision does not work any substantial change in public employee jurisprudence on the facts of the present case. It has no effect on the free speech or petition clause issues herein. 2. The jury acted rationally in awarding compensatory damages, as easily can be determined. 3. The Court's rulings on the admission of expert testimony were correct. 4. Under the Supreme Court's carefully crafted substantive due process test for evaluating punitive damages awards, the verdict should be upheld. 5. Under

Pursuant to the Court's direction in its June 13th e-mail, the appendix does not contain the trial transcript because the transcript has already been filed with the Court. References to the trial transcript will be designated with the name of the witness testifying, followed by the page number of the transcript. E.g. (Foraker 1381).

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Delaware law the defamation rulings are correct. 6. All other rulings of the Court were correct. STATEMENT OF FACTS A. Plaintiffs' Job Duties as Firearms Instructors. Plaintiffs each testified extensively about their job duties as firearms instructors at the FTU. Firearms training is a very dangerous and stressful job. (W. Warren 241, Foraker 1442). As firearms instructors, plaintiffs were responsible for: teaching firearms use to recruits and other law enforcement officers; teaching firearms care; breaking down and servicing weapons; teaching law enforcement and survival tactics, including specialized tactical training such as interactive and low light training; teaching how to survive deadly encounters; all the while also being responsible for the bi-annual firearms recertification training required for all 650 State Troopers. (W. Warren 105-07, 194, 212; Price 704-07, 937-38; Foraker 1383, 1389-91). In addition to the thousands of law enforcement officers who train at the FTU, plaintiffs also train various citizens groups which use the facility, including the Boy and the Girl Scouts. (W. Warren 108; Price Inter. at Exhibit 2; B131-50).2 B. Plaintiffs Speak Out and Petition Up the Chain of Command. On December 1, 2003, when Sgt. Foraker reassumed 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. Each of the three plaintiffs (as well as Sgt. Foraker both individually and on behalf of Cpls/3 Price and Warren), then immediately began to speak out and petition, both orally and in writing, up the chain of command about the many problems plaguing the FTU. These problems included the following: (1) sickening and poisoning of police officers and others through exposure to lead, copper, zinc, arsenic, nitroglycerine and other heavy metals; (2) dangerously low staffing levels;

To the extent defendants may claim that plaintiffs' job responsibilities included shutting down the multi-million dollar FTU for environmental reasons, plaintiffs explained that they only had the limited authority to shut the range down for safety violations on the firing line, such as accidental discharges or Troopers passing out or fainting while holding firearms. (W. Warren 282; Price 1033). Shutting down for any other reason was a decision that would have to be made by someone of a rank much higher than our corporal and sergeant plaintiffs. (Foraker 1421; W. Warren 281; Price 964).

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(3) a malfunctioning HVAC system that would blow airborne hazards towards shooters rather than away from them; (4) a malfunctioning bullet trap and conveyor system; (5) a hazardous armorers room; (6) defective headsets; (7) the need for professional hazmat crews; and (8) the lack of protective training or equipment.3 As Cpl/3 Price explained in paraphrasing a line from the film "Forrest Gump," with all of its problems the range "was like a box of chocolates. You never knew what you were going to walk into." (Price 1026-27). 1. Why Plaintiffs Spoke and Petitioned Up the Chain of Command. Plaintiffs spoke out and "sounded the alarm" (Foraker 1405) because of the health and safety problems at the FTU. (W. Warren 255, 220-22). "It was obviously dangerous ... [and] it was a Hazmat site." (Foraker 1485). Plaintiffs spoke out because they were concerned, not only for their own health and that of their families, but also for the health and safety of everyone who had to work, train or operate in the FTU, such as recruits, law enforcement officers and even the civilian citizens. (W. Warren 221-22). They were "trying to protect" those who worked and trained there. (Foraker 1484-85). C. Plaintiffs Speak Out to and Petition the State Auditor. Happy that there was finally a government body looking into their concerns about the broken FTU and hopeful that the State Auditor would be able to help them fix the broken building, plaintiffs soon arranged a time for a meeting and interview with the Auditors. As Sgt. Foraker testified, "[w]e were hopeful that the state auditor would help us fix our range." (Foraker 1430). As discussed below and revealed in detail at trial, plaintiffs spoke to and petitioned the Auditor about the health and safety hazards plaguing the broken FTU and also about the root causes of the problems there - from government incompetence and corruption in the bidding and construction process, to the subsequent coverup that had succeeded for approximately seven

(W. Warren 198-222, 231-32, 235-36, 240-47, 252-58, 260-65, 502, 150-60; Price 940, 942, 944-47, 955-62, 988; Foraker 1394-97, 1403, 1405, 1407-22; Davis 1569-73, 1581; G. Warren 1202-06, 1212-15, 1224-25; Baylor 558-59; PX 40-44; B236-43).

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years in ensuring that none of this information would ever see the light of day. 1. First Meeting. On May 12, 2004, plaintiffs met with several investigators from the State Auditor's Office. (Price Compl. & Ans. ¶ 39 - D.I. 45 & 51; Foraker 1429; W. Warren 298, 306, 464; Price 970, 1030-31; Rothenberger 2418; PX21; B209). At this meeting, plaintiffs did the following. a. Plaintiffs Gave the Auditor Written Statements. Plaintiffs gave the Auditor lengthy and detailed written statements that are in the record. (PX22-24; B210-28). As review of these statements makes clear, plaintiffs addressed the many, many health and safety problems plaguing the FTU and as well as the governmental improprieties and wrongdoing that led to the construction of such a broken and hazardous building.4 (1). Cpl/3 Warren's Written Statement. Cpl/3 Warren prepared a written statement and detailed chronology, and also continued and prepared a list of concerns about the facility. (PX23; B216-25). He systematically discussed and questioned the contracting, building and design process that resulted in the broken FTU. (Id. at B221). He also prepared a detailed time line, addressing the health, safety and maintenance issues that plagued the facility. (Id. at 218-20). After addressing these matters, he closed his statement and explained In summary I want to say that I am very disappointed in the lack of concern for the health and safety of everyone who trains in this facility[,] by the State Police and Facilities Management. It is apparent that politics and egos were more important than constructing a safe state of the art facility. I feel that from the initial stages of the project[,] people in administrative positions made uninformed decisions. After the construction started[,] cost cuts continued at the expense of health and safety. Facilities Management failed to oversee the entire project. The State Police should have never accepted the building until it was tested and inspected by an independent evaluator to insure that the building was safe to use. (Id. at B221). (2). Cpl/3 Price's Written Statement. Cpl/3 Price was the

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(W. Warren 300-06; Price 970; Foraker 1429-30; PX22-24; B210-18).

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most senior member of the FTU staff and he also prepared a written statement. (PX24; B226-28). In compelling terms, he described to the Auditor problems with the construction and building process at the FTU. (Id. at B226-27). He also described many of the health and safety problems that the range had faced since it opened in 1998. (Id. at B227). He explained how he believed his exposure to hazardous conditions at work was poisoning his family at home. (Id. at B228). He expressed his dismay that the Division had failed to protect him from an unsafe and hazardous working environment. (Id.). (3). Sgt. Foraker's Written Statement. In his statement, Sgt. Foraker explained in detail the sequence of events related to the health and safety issues that he faced. (PX 22; B210-15). In his words, there was a "contamination crisis" at the facility. (Id. at B215). He described how he and his men were not being given proper protective equipment and how their health was being endangered by the hazardous conditions. (Id. at B214). I have become incensed with the lack of leadership of the Department of Safety and Homeland Security, and the Department of Facilities Management, particularly with individuals who prefer to put their personal agendas above the health, safety and betterment of Division personnel and the state taxpayers. (Id. at B210) (emphasis added). He explained that "[m]y plea is not solely for myself. It is for every Delaware State Trooper as well as all other law enforcement officers that have participated and will participate in the shooting activities at the range." (Id. at B215). As Sgt. Foraker testified at trial, he and his men hoped the Auditor would help them fix this broken facility. (Foraker 1430). b. Plaintiffs Gave the Auditor Oral Statements and Answered Questions. Plaintiffs also spoke to and gave the Auditor lengthy oral statements, answered many questions and explained the FTU's many problems as described above, including hazardous working conditions. (W. Warren 299-305, 503; Foraker 1430; Rothenberger 2421-23). c. Plaintiffs Gave the Auditor a Concise Packet of Key Documents. Plaintiffs then gave the investigators a concise packet of documents, addressing many key facets

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of the long history of problems that had plagued the facility, including instances of dramatic government incompetence and wrongdoing.5 For example, one document explained that even before construction began, in 1996 the DSP knew that the HVAC system "will not work" and "will inevitably fail" as designed. (See Bryson 2185-86; PX165; B262-64). d. Plaintiffs Gave the Auditor Eleven Voluminous Binders of Information. They also delivered eleven 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; numerous reports regarding the state and condition of the contaminated facility over a seven year period; correspondence from Facilities Management; innumerable emails and other reports related to the broken facility. 6 e. Why Plaintiffs Spoke to the Auditor. In Sgt. Foraker's words, "[w]e were hopeful that the state auditor would help us fix our range." (Foraker 1430). Price added [I]n my heart, I knew it was the right thing to do. We wanted them to come in, and we wanted, especially with these auditor investigators, we wanted to show them what was wrong with the range. All we were asking for is that the state fix the problem so that we can work in a safe, healthy environment. That's all we were asking for. (Price 971). Plaintiffs wanted to protect the health and safety of all who worked at the range. My plea is not solely for myself. It is for every Delaware State Trooper as well as all other law enforcement officers that have participated and will participate in shooting activities at the range. (PX22; B215). Plaintiffs also were concerned because they were falsely "[b]eing blamed for the downfall of the operation" at the FTU and they wanted to defend themselves. (W. Warren 307; PX22; B215). D. The Defamatory Statements. Review of the earlier April 7, 2004 Delaware State

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(W. Warren 306; Price 970; Foraker 1430). (Foraker 1430, 1541-43; W. Warren 306, 502-03; Price 970; Rothenberger 2423, 2431-32).

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News article (PX25; B229-232)7 and the American Police Beat Magazine story (PX26; B233-35) reveal the following defamatory statements made by Chaffinch: 1. When discussing the FTU with reporters, he acknowledged there were problems but indicated the blame lies with one or two troopers under his command, meaning Sgt. Foraker (emphasis added). "The previous sergeant in charge did a good job," implying that Sgt. Foraker did not do a good job. "Things changed in December when another sergeant [Foraker] came in. That's at least a portion of where the ball was dropped," (brackets and emphasis added), indicating that Sgt. Foraker did not do a good job. "I think people who live in glass houses shouldn't throw stones. It's a lot dirtier now. Things seemed in their proper place in the fall. I've never seen it like this," implying that there were no problems under Sgt. Ashley and all of the problems must be attributable to Sgt. Foraker. "When I was here in the fall, everything was going as well as the previous times I'd been here," suggesting that there were no problems under Sgt. Ashley and all of the problems must be attributable to Sgt. Foraker. He also claimed that when he was there in the fall, "There was some discoloration of the bullet trap but that was about it," implying that Sgt. Ashley did his job and Sgt. Foraker did not. "We will work collectively with Administrative Services to make corrections and establish a standard operating procedure protocol . . . If the people that are assigned here now don't feel that protocol is part of their protocol, they will be assigned elsewhere," falsely implying that Sgt. Foraker is unwilling to follow protocols. (emphasis added). He continued to praise Sgt. Ashley while implying that Sgt. Foraker was not doing his job by stating, " . . . the bullet trap required hands-on, daily cleaning . . . Sgt. Ashley was willing to do that. I cannot say that Sgt. Foraker was willing to do that. He was interested in instruction and teaching people how to shoot. He did not feel (bullet trap cleaning) was part of his purview. He felt that was putting him in harm's way."

2.

3.

4.

5.

6.

7.

8.

(PX25-26; B229-35). E. Firearms Industry Expert Bud Fini. 1. Qualifications. A review of Bud Fini's trial testimony (Fini 851-913) and Curriculum Vitae, (PX90; B245-49), reveals that he is more than qualified to testify about the

PX25 has been copied and altered from its original form at trial to accommodate the appendix format. There are no alternations to the substance of the article.

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hiring practices and employee compensation packages within the tight knit firearms company community. He has worked in the firearms industry for almost 30 years, and for 27 years he worked in management. (Fini 863). He began in 1976 as a salesman for Remington Arms. Placed on the fast track, within three years he was promoted to management. In addition to being made Assistant Manager of National Accounts, he was placed on the Interview Committee. (Fini 864865). All of the potential sales candidates for field positions and other positions within the company would come to headquarters to be interviewed. As a member of the committee, he interviewed those people, reviewed their resumes and reported to management his thoughts on their qualifications for the position they were seeking. (Fini 865, 878). He became Regional Manager in 1981, Worldwide Manager of Firearms in 1984, and Director of Marketing Communications in 1991. (PX90; Fini 865-866; B246-47). He left Remington in 1996 and subsequently worked as a consultant for Savage, SigArms and Rizzini USA, among others. At all of these firearms companies, he was involved in hiring. (Fini 866-67). As this Court noted during the pretrial conference, Fini has worked for nearly every major company within the firearms industry. (Pretrial Conf. 30-31; PX90; B245-48). As a manager for 27 years within the firearms industry, he was responsible for hiring and approving transfers of employees. (Fini 868, 878-81, 899-900) . Many times he prepared the actual job descriptions themselves. (Fini 878). He has reviewed over 500 resumes for firearms industry positions (Fini 878-879), conducted at least 80 one-on-one interviews (Fini 868, 881) and conducted informal background checks. (Fini 879). Altogether, he was involved in personally hiring approximately 30 employees and directly involved in transferring approximately 50-60 people. (Fini 879). Altogether, he hired approximately 17 employees for the positions in the law enforcement section of the industry for which he believes plaintiff Foraker would be qualified. (Fini 899-900).

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Compared to other industries in the United States, the firearms industry is a very small, tight knit community. (Fini 877, 887). Apparently, very little is published as to compensation packages and hiring practices within this community. Indeed, the sales force survey relied upon by defendants' economist did not include a break down for salespeople in the firearms industry. (Sullivan 2311).8 2. Methodology. Fini explained the hiring process in the tight knit firearms industry: prepare a job description, advertise the job and/or managers identify someone they know in the industry who should be considered for the job, review initial resumes, first round of interviews, follow-up calls made to substantiate information garnered at the first interview, a second round of interviews with the best candidates, and then extend a job offer. (Fini 868-869, 877, 887).9 The bad publicity at the FTU would certainly be brought to light during this process and the fact that Foraker had an issue in his background would severely damage his chances of obtaining employment in the firearms industry. (Fini 861-862, 882, 884, 892-894). In a similar situation, a prior sexual harassment complaint in the background of a potential candidate came to light and caused the candidate to lose the job. (Fini 861-862). Defendants' argument that Fini could not identify anyone else in Foraker's particular situation is spurious and merely highlights the malicious and reckless nature of defendants' actions against Foraker. Certainly if an

Contrary to defendants unsubstantiated assertions, most Human Relations departments in the firearms industry simply handle the mechanical aspects of the hiring process (i.e. insuring that the candidate's resume was accurate and drug testing). (Fini 880). Management's role was to insure that the individual had the skills and expertise necessary to handle the job and to make sure that the candidate was a good fit for the company. (Fini 880-881). Because Remington Arms was part of Dupont, its Human Relations department had a broader role which included a consensus effort between the managers and Human Relations. Even so, at Remington it was a consensus effort for which Fini had significant input similar to his input elsewhere. (Fini 880-81). Fini keeps himself abreast of what is reasonable compensation within the industry by networking with other managers within this tight knit community. He attends national conventions. It is common to pick up the phone and ask other managers within this small community. (Fini 877, 887).
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employee is defamed in the press for "dropping the ball" within the context of his firearms training unit job, then there would be a negative affect upon managers such as Fini when the person defamed applies to work in the firearms industry. Fini further noted that the issue would not go away after a few years, given the tight knit community which is the firearms industry and the fact that the internet will always allow access to the negative news articles about Foraker. (Fini 912-913). Fini explained that especially for employees in the law enforcement section of the firearms industry, the area for which Foraker is most qualified, managers look for clean cut individuals who have a background like plaintiff Foraker in law enforcement, especially as an armorer, who had excellent communication skills. (Fini 881-882, 892-895). Foraker would understand the products and how to use them, and he could talk the same language as the armorers who typically purchase firearms on behalf of law enforcement agencies, and he had an excellent resume. (Fini 894-895). In the year 2002, in connection with Foraker's first lawsuit, Fini reviewed Foraker's resume and met with him. At that time, he determined that he would still make a fine candidate in the law enforcement section of the firearms community. (Fini 892-895). Later, after the negative media publicity which gave rise to the present case, Fini opined that Foraker now was severely damaged and could not get a job in the industry. (Fini 884). ARGUMENT I. STANDARD OF REVIEW A. Judgment as a Matter of Law. In the en banc Sheridan decision, our Circuit clearly stated that under Rule 50 "we must look at the evidence in the light most favorable to ... the verdict winner, and draw all reasonable inferences in [his] favor." Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1072 (3d Cir. 1996) (en banc). "Under Rule 50, a court [only] should render judgment as a matter of law when `a party has been fully heard on an issue and

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there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.'" Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 149 (2000) (quoting Fed.R.Civ.P. 50(a)). Rule 50 motions "should be granted sparingly," and only "where the record is critically deficient of the minimum quantum of evidence in support of the verdict." Johnson v. Campbell, 332 F.3d 199, 204 (3d Cir. 2003) (internal punctuation omitted). Thus, the "[k]ey to surviving a Rule 50 motion is a legally sufficient evidentiary basis for the verdict." Goodman v. Pa. Turnpike Comm'n, 293 F.3d 655, 665 (3d Cir. 2002). There must be "evidence upon which the jury could properly find a verdict." Id. "[I]n entertaining a motion for judgment as a matter of law, the court should review all of the evidence in the record." Reeves, 530 U.S. at 150. "In doing so ... the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Id. Importantly for our present case, also "it must disregard all evidence favorable to the moving party that the jury is not required to believe." Id. at 151. "[T]he court should give credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses." Id. (internal punctuation omitted). Great deference is given to the jury's role because "[o]ne of the oldest established rules of Anglo-American jurisprudence is that the jury is the arbiter of credibility of witnesses." U.S. v. Giampa, 758 F.2d 928, 935 (3d Cir. 1985); see e.g. Sheridan, 100 F.3d at 1072. Likewise, "[i]t is well settled that where there is a conflict or contradiction of evidence, the question should be submitted to the jury." U.S. v. Rockwell, 781 F.2d 985, 990 (3d Cir. 1986). "It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts." Id. B. New Trial. The judicial conscience is shocked and a new trial should be granted

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only when a feather or scintilla of evidence in the scales results in a verdict, despite the "great weight" of the evidence against it. Sheridan, 100 F.3d at 1076.10 The "great weight" of the evidence test is a "stringent standard" to ensure that the role of the jury as the fact finder is not usurped. Id. "[T]his stringent standard is necessary to ensure that a district court does not substitute its judgment of the facts and the credibility of the witnesses for that of the jury. Such an action effects a denigration of the jury system and to the extent that new trials are granted the judge takes over, if he does not usurp, the prime function of the jury as the trier of facts." Id. (internal punctuation omitted). C. Alter or Amend the Judgment. "Rule 59(e) permits motions to amend or alter a judgment and may be granted to submit new, previously undiscovered evidence or to correct a clear error of law or prevent manifest injustice." Gutierrez v. Gonzalez, 125 Fed.Appx. 406, 417 (3d Cir. 2005). The moving party "must rely on one of three major grounds: (1) an intervening change in controlling law; (2) the availability of new evidence not available previously; or (3) the need to correct a clear error of law or prevent manifest injustice." North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995); McNaboe v. NVF Co., 2000 WL 354366, *20 (D.Del. March 20, 2000). "Motions under Rule 59(e) should be granted sparingly because of the interests in finality and conservation of scarce judicial resources." Ruscavage v. Zuratt, 831 F.Supp. 417, 418 (E.D.Pa.1993); see also McNaboe v. NVF Co., supra. II. GARCETTI DOES NOT AFFECT PLAINTIFFS' FIRST AMENDMENT FREE SPEECH CLAIMS. A. Introduction. The three step free speech retaliation paradigm is well known. See Price v. Chaffinch, 2006 WL 1313178, *2-3 (D.Del. May 12, 2006); Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005). The only step now challenged by defendants is the first - the

The motion should be granted "only where a miscarriage of justice would result if the verdict were to stand." Sheridan, 100 F.3d at 1076; see Roebuck v. Drexel Univ., 852 F.2d 715, 736 (3d Cir. 1988) (new trial only when "the verdict is contrary to the great weight of the evidence, thus making a new trial necessary to prevent a miscarriage of justice").

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protected activity test. Following extensive summary judgment briefing on the subject (D.I. 84, 98, 103), the Court previously ruled against defendants on this step, holding as a matter of law that plaintiffs had engaged in protected First Amendment free speech. Price, 2006 WL 1313178, *3.11 Accordingly, the issue presently before the Court is a narrow one - the impact on this proceeding of Garcetti v. Ceballos, ­ U.S. ­, 126 S.Ct. 1951 (2006). B. The State of Third Circuit Law Prior to Garcetti. Prior to Garcetti, in the Third Circuit speech by an employee that was required by his ordinary job duties was protected by the First Amendment. See Feldman v. Phila. Hous. Auth., 43 F.3d 823, 829-31 (3d Cir. 1994) (internal auditor); Baldassare v. State of N.J., 250 F.3d 188, 196-97 (3d Cir. 2001) (investigator). C. The Facts of Garcetti. Garcetti involved the written "work product" of a supervising prosecuting attorney, Garcetti, 126 S.Ct. at 1960, which was alleged to be protected speech. In his federal lawsuit this prosecutor agreed that he had "prepared [this] memorandum `pursuant to his duties as a prosecutor.'" Id. The Supreme Court was most careful to note the limited scope of its holding by pointing out factually in the four paragraphs found at p. 1960 that there was no reasoned dispute that this written memo was part of "his daily professional activities." (emphasis added). Indeed, the Court then went on at p. 1961 and emphasized that its ruling was not intended "to articulate a comprehensive framework for defining the scope of an employee's duties in cases where there is room for serious debate." But on the facts of the case

The Court's conclusion that plaintiffs had engaged in protected speech necessarily included the required lesser included legal findings that plaintiffs had spoken out on matters of public concern including the hazardous conditions at the FTU - and that plaintiffs' interests as citizens in speaking out about such paramount matters outweighed the government's interests as an employer. See Azzaro v. County of Allegheny, 110 F.3d 968, 976 (3d Cir. 1997) (en banc); Rankin v. McPherson, 483 U.S. 378, 384-85, 388 (1987); Springer v. Henry, 2002 WL 389136, *3-5 (D.Del. March 11, 2002). Importantly, even in the absence of the Court's prior ruling, because defendants never conceded that they took the adverse action against plaintiffs because of their speech, under Third Circuit precedent they waived any disruption defense. See San Filippo v. Bongiovanni, 30 F.3d 424, 434 n.11 (3d Cir. 1994); Howard v. Bd. of Educ. of City of East Orange, 90 Fed.Appx. 571, 575 n.6 (3d Cir. 2003); Dennison v. Pa. Dept. of Corr., 268 F.Supp.2d 387, 399 (M.D.Pa. 2003); Mitchell v. Street, 2005 WL 1993774, *2 n.5 (E.D.Pa. Aug. 16, 2005); Bedford v. SEPTA, 867 F.Supp. 288, 295 n.8 (E.D.Pa. 1994).

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the "controlling factor [] is that his expressions were made pursuant to his duties as a calendar deputy." Id. at 1959-60. That consideration - the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case distinguishes Ceballos' case from those in which the First Amendment provides protection against discipline. Id. at 1960. In other words, prior precedent was left undisturbed and the holding was a narrow one, for indeed the first sentence of the Opinion declares the continuing vitality of public employee free speech jurisprudence. Id. at 1955 ("It is well settled that "a State cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression."). As discussed at length at section A. of the Facts above, plaintiffs were expert firearms instructors at the Training Unit. As they testified extensively at trial, their ordinary job duties were: to teach recruits how to shoot; to teach bi-annual firearms recertification to every State Trooper as well as to other law enforcement officers; and to teach tactics and the use of force to law enforcement officers. That is what they were employed to do, not to speak out about hazardous material exposure, be it up the chain of command or to the State Auditor. Their claims are in no way comparable to those in Garcetti where the plaintiff did not dispute that his written memorandum was generated in the ordinary course of his supervisory duties and that it concerned fundamental daily routine core job responsibilities. There is no reasoned contention in our present case that it was the routine job duty of any plaintiff to report governmental mismanagement, corruption, or health or safety hazards. They were not environmental or other ombudsmen. As each plaintiff explained, job safety as part of their job duties only extended to ensuring that recruits and police officers used their firearms in a safe manner that would not kill or endanger the other officers on the firing line or in the field. As discussed in section A. of the Facts, if a recruit pointed his firearm at another officer on the firing line, that would be a safety

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violation which they were required to remedy because it was within the scope of their job duties. But hazardous working conditions arising from a broken building, a broken HVAC system and exposure to lead, copper, zinc, arsenic, nitroglycerin and other heavy metals obviously was beyond the scope of their duties. They were not environmental engineers or industrial hygienists, but only firearms instructors. Plaintiffs only spoke out about these matters because they are honorable, dedicated and conscientious men who care about the health and safety of others, not because their job duties required it. Indeed, the record reveals that even the Director of Facilities Management testified that air quality, environmental safety and the functioning of the broken HVAC system was his Department's responsibility, and thus not the ordinary or routine job responsibilities of plaintiffs. (Furman 2343, 2348-50). D. The Garcetti Court Explicitly Warned Against the Overbroad or Expansive Interpretation of the Scope of an Employee's Job Duties As the Defense Now Urges. The Court cautioned that it would not allow government employers to gut the free speech protections of their employees by way of overly broad job descriptions that bear little or no relation to what the employee ordinarily actually does. The Court explained that it would not elevate form over substance and instead it would look at what an employee actually does before analyzing what speech is required by their ordinary duties and which speech is not. We reject ... the suggestion that employers can restrict employees' rights by creating excessively broad job descriptions. ... The proper inquiry is a practical one. Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee's written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee's professional duties for First Amendment purposes. Garcetti, 126 S.Ct. at 1961-62 (emphasis added). Subsequent lower court decisions applying Garcetti also have recognized this limitation and requirement of its holding. See Kodrea v. City of Kokomo, Ind., 2006 WL 1750071, *7-8 (S.D.Ind. June 22, 2006) (noting Garcetti's rejection of the suggestion that a public employer can restrict an employee's rights via overly broad job descriptions and finding that the speech at issue was not part of that plaintiff's "ordinary job

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responsibilities" or "core function."). Thus, the Supreme Court has explained that a "practical" approach must be taken in determining what speech is actually required by an employee's ordinary job duties and what is not. Garcetti, 126 S.Ct. at 1961. As explained above, a practical approach to plaintiffs' job duties herein reveals that they were required to teach people how to shoot various types of firearms - not report on hazardous environmental conditions at the disastrous FTU, be it up the chain of command or to the State Auditor. Unlike Mr. Ceballos, whose job was to investigate false affidavits, their job was not to investigate environmental hazards or mismanagement. That was the job of Facilities Management. (Furman 2343, 234850). E. The Garcetti Court Also Explained That It Was Not Overruling Longstanding Prior Supreme Court Precedent. The Supreme Court also noted that (1) speech made internally in the workplace (rather than externally to the media or others) was still protected, as is (2) speech addressing a public employee's job or workplace. Garcetti, 126 S.Ct. at 1959. All of plaintiffs' speech falls into both of these still protected categories. 1. Speech Made Internally is Still Protected. The Garcetti Court explained that it was not overruling the long line of Supreme Court cases holding that internal speech receives First Amendment protection. That Ceballos expressed his views inside his office, rather than publicly, is not dispositive. Employees in some cases may receive First Amendment protection for expressions made at work. See, e.g. Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410, 414 (1979). ... [I]t would not serve the goal of treating public employees like any member of the general public, ... to hold that all speech within the office is automatically exposed to restriction. Garcetti, 126 S.Ct. at 1959. Thus, the fact that Ceballos' speech was raised internally to his supervisors rather than externally to the media was not dispositive. Similarly, the fact that plaintiffs' speech was raised internally to their supervisors up the chain of command, and also then later to the State Auditor, and not to the media, does not trump plaintiffs' claims. The Supreme Court's reasoning in this regard is not surprising given its numerous

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previous opinions explaining that internal speech receives protection. For example, in the groundbreaking Givhan case cited by the Garcetti Court, a public school teacher followed her internal chain of command and went to her principal and spoke out against racially discriminatory employment practices and policies in the school in which they both worked. Givhan, 439 U.S. at 412-13. For the Court, Justice Rehnquist explained that Neither the [First] Amendment itself nor our decisions indicate that this freedom [of speech] is lost to the public employee who arranges to communicate privately with his employer rather than to spread his views before the public. We decline to adopt such a view of the First Amendment. Id. at 415-16. Much the same, the present Price plaintiffs also raised their protected concerns about hazardous health practices at the FTU internally up the chain of command in the DSP.12 The Third Circuit also has had repeated occasion to address the issue of internal speech and has followed the well established Supreme Court precedent outlined above.13 Thus, it is

Similarly, in Connick v. Myers, 461 U.S. 138, 149 (1983), a district attorney circulated an internal questionnaire addressing, inter alia, whether public employees were being pressured to work on political campaigns. Recognizing the Givhan holding about internal speech, id. at 148 n. 8, the Court found that this area of speech touched on a matter of public concern, even though it was raised internally. Id In the same way, in Rankin v. McPherson, 483 U.S. 378 (1987), an employee in a county constable's office was fired for expressing privately to another employee in the workplace her displeasure with President Reagan's policies and her hope that his would be assassin would have better luck next time. Here, the Supreme Court again recognized the holding in Givhan and found the employee's speech to be protected. Id. at 386 n.11. Freedom of speech is not "lost to the public employee who arranges to communicate privately with his employer rather than to spread his views before the public." Monsanto v. Quinn, 674 F.2d 990, 994 (3d Cir. 1982). Internal dissemination of information and ideas can be as important to effective self-governance as public speeches. Thus, if the content and circumstances of an internal communication are such that the message conveyed would be relevant to the process of self-governance if disseminated to the community, that communication is public concern speech, even though it occurred in a private context. Baldassare, 250 F.3d at 197 (internal punctuation omitted) (overruled on other grounds by Garcetti, supra) (quoting Azzaro, , 110 F.3d at 978). Similarly, in Azzaro, 110 F.3d 968, the Third Circuit held that a female county employee's internal reports of sexual harassment by a high ranking county official were protected, id. at 981, even though they were raised up her internal chain of command to her supervisor, id. at 971, and eventually to the county human resources department. Id. at 971-72.
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clear that plaintiffs' internal speech remains protected even after Garcetti. 2. Speech About the Workplace or One's Job is Still Protected. The Garcetti Court also explained that it was not overruling the long line of Supreme Court precedent holding that speech about the workplace or the speaker's job also is protected. The memo [at issue] concerned the subject matter of Ceballos' employment, but this, too, is nondispositive. The First Amendment protects some expressions related to the speaker's job. See, e.g.[Pickering v. Bd. of Educ., 391 U.S. 563, 573 (1968)]; Givhan, [439 U.S.] at 414. As the Court noted in Pickering: "Teachers are, as a class, the members of the community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal." 391 U.S. at 572. The same is true of many other categories of public employees. Garcetti, 126 S.Ct. at 1959 (emphasis added). Thus, the fact that Ceballos' speech also addressed aspects of his employment was not dispositive. Similarly, that plaintiffs' speech addressed the very hazardous conditions in which they were forced to work for many years is not dispositive of their claims. No one was in a better position to know what ailed the broken FTU than plaintiffs - the very firearms instructors who have labored, worked and inhaled the numerous toxins contaminating that facility for many years. As was recognized by the Supreme Court, the key case in this regard is Pickering, which held that the question of school funding was a matter of legitimate public concern in a democratic society and that "free and open debate [on such matters] is vital to informed decisionmaking...." Pickering, 391 U.S. at 571-72. Continuing, as quoted above in Garcetti, the Pickering Court held that teachers are in the best position to know what ails the schools they work in and it is "essential that they be able to speak out freely on such questions without fear of retaliat[ion]." Id. at 572. Much like the teacher in Pickering, plaintiffs knew the hazards plaguing the FTU better than anyone. It is essential that they be able to speak freely about them without the fear of retaliation because vital overarching public policy reasons require that fiascos such as the FTU see the light of day to better inform the public about the operation of its

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government. In City of San Diego v. Roe, 543 U.S. 77, 125 S.Ct. 521 (2004) (per curiam), the Supreme Court again addressed why it is imperative that public employees be able to speak out about workplace matters without fear of retaliation. The Court explained that Underlying the decision in Pickering is the recognition that public employees are often the members of the community who are likely to have informed opinions as to the operations of their public employers, operations which are of substantial concern to the public. Were they not able to speak on these matters, the community would be deprived of informed opinions on important public issues. City of San Diego, 125 S.Ct. at 525 (citing Pickering, 391 U.S. at 572). The [Supreme] Court has recognized the right of employees to speak on matters of public concern, typically matters concerning government policies that are of interest to the public at large, a subject on which public employees are uniquely qualified to comment. Id. at 523-54 (citing Pickering, supra; Connick, supra). As trial in this case revealed, plaintiffs were uniquely situated to offer informed opinions about the exposure and poisoning of thousands of law enforcement personnel at their broken facility but the defense would deny them a remedy for the retaliation they endured.14 The Third Circuit also has repeatedly discussed the issue of speech addressing matters in the workplace and its holdings have been consistent with this same precedent. Much like the Supreme Court's Givhan decision, in Rode v. Dellarciprete, 845 F.2d 1195, 1202 (3d Cir. 1988), the Court held that speech by a police department employee addressing race discrimination in the workplace was protected. Similarly, in Azzaro, 110 F.3d at 981, the Third Circuit en banc held

On several other occasions the Supreme Court has found speech to be protected even though it addressed matters found in the employee's own workplace. For