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men and women who would work or train there.

For example,

Facilities Management wrongfully awarded the construction 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,

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to fix the problems at the FTU.

Facilities Management sought to

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

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

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.

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safety concerns about working at the FTU they were told by defendant Chaffinch's friend, "you have to die from something." 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.

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29.

But again, MacLeish and Chaffinch ignored their health

and safety concerns and did not order plaintiffs to undergo 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

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

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

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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

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.

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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 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

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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

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

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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

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'

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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 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

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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. 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

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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

take actions against him designed to drive him out or force him to retire. 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

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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. 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

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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. 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

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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 For example,

activity by the individual defendants.

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

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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

with significant hearing loss comparable to plaintiffs 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

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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

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

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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, 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

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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. 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

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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

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

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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.

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. 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

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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 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

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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 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: October 14, 2005
Firearms Training Unit / Pleadings / First 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 October 14, 2005, I electronically filed this Pleading with the Clerk of the Court using CM/ECF which will send notification of such filing to the following:

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

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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE SERGEANT CHRISTOPHER D. FORAKER, Plaintiff, v. COLONEL L. AARON CHAFFINCH, et al., Defendants. : : : : : : : : :

C.A.No.04-1207-GMS

PLAINTIFF'S ANSWERS AND OBJECTIONS TO DEFENDANTS' FIRST SET OF INTERROGATORIES Plaintiff, by and through his attorneys, hereby objects to Defendants' First Set of Interrogatories Directed to Plaintiff Foraker ("Discovery") in accordance with the numbered paragraphs as set forth below. Plaintiff reserves the right to amend or supplement the responses contained herein as may be necessary or appropriate in the future. Discovery has not concluded in this case. Plaintiff reserves the right to supplement his responses at a later time as discovery is completed. GENERAL OBJECTIONS 1. Plaintiff objects generally to Discovery insofar as it requests information or

documents which are subject to the attorney-client privilege, or which constitute trial preparation materials or attorney-client work product, or which are otherwise privileged or protected and not subject to discovery. 2. Plaintiff objects generally to Discovery to the extent that it seeks information not

relevant to this action or that does not appear reasonably calculated to lead to the discovery of admissible evidence.

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3.

Plaintiff objects generally to Discovery insofar as it requests information or

documents which constitute or contain sensitive and non-public business, medical patient, medical credentials, personal, income tax or other confidential information. Plaintiff will only produce such information, if not subject to any other objections, pursuant to an appropriate stipulation and order of confidentiality. 4. Plaintiff objects generally to Discovery insofar as it requests personal or

confidential information. Plaintiff will only produce such information, if not subject to any other objections, pursuant to an appropriate stipulation and order of confidentiality. 5. Plaintiff objects generally to Discovery insofar as it does not specify a reasonable

time or place of production or the manner of making the inspection in accordance with Fed.R.Civ.P. 34(b). Plaintiff will produce the indicated documents for inspection and copying at a time and location to be agreed upon by the parties. 6. Plaintiff objects generally to Discovery insofar as it seeks discovery of agreements

with third parties (not parties to or related to this action) which may be subject to nondisclosure and either cannot be produced without agreement of a third party or cannot be produced without an appropriate stipulation and order of confidentiality. 7. Plaintiff objects generally to Discovery insofar as it is unduly burdensome because

the discovery it seeks is already in the possession, custody or control of defendants. 8. Plaintiff's responses that follow are without prejudice to and are not a waiver of

the foregoing general objections. OBJECTIONS TO DEFINITIONS AND INSTRUCTIONS 1. Plaintiff objects to Defendants' definitions and instructions insofar as they impose

burdens on Plaintiff beyond that required by the Federal Rules of Civil Procedure or the case law

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in the Third Circuit. 2. Plaintiff objects to Defendants' definitions and instructions to the extent they imply

an obligation to supplement answers to Discovery which impose upon Plaintiff an obligation beyond that required by Fed.R.Civ.Proc. Rule 26(e). 3. Plaintiff objects to Defendant's definitions and instructions insofar as they would

require counsel for Plaintiff to disclose their mental impressions, conclusions, opinions or legal theories in violation of Fed.R.Civ.Proc. Rule 26(b)(3). 4. Plaintiff objects to Defendants' definitions and instructions regarding claims of

privilege insofar as they impose burdens on Plaintiff beyond that required by the Federal Rules of Civil Procedure or the applicable case law. 5. Plaintiff objects to the extent that Defendants' definitions and instructions cause

each interrogatory to ask multiple questions. OBJECTIONS TO SPECIFIC INTERROGATORIES (IN ADDITION TO AND SUBJECT TO ALL THE FOREGOING OBJECTIONS) 1. Identify each person who answered or aided in answering these Interrogatories and indicate which Interrogatory each such person answered or aided in answering. Answer: Plaintiff Sgt. Christopher D. Foraker - all. Mrs. Suzanne Foraker - Answer to Interrogatory #3.

2. Identify each person who answered or aided in answering the Requests in Defendants' First Set of Requests for Production of Documents and indicate which Requests each such person answered or aided in answering. Answer: Plaintiff Sgt. Christopher D. Foraker - all.

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3. Identify all injuries or damages that Plaintiff claims in this action, including without limitation (a) harm to plaintiff's reputation, as alleged in Paragraph 51, 52 and 55 of the Complaint; (b) his isolation from society, as alleged in paragraph 53 of the Complaint; (c) his exposure to public contempt or ridicule, as alleged in paragraph 54 of the Complaint; and (d) his decreased earning capacity, as alleged in paragraph 67 of the Complaint. Specify the basis for each item of damages, provide a calculation for each amount of monetary damages, and attach to the accompanying Request for Production of Documents and Things any and all documents which support these damages. Answer: See Price et al. v. Chaffinch, et al., Answer to Interrogatory # 3 which is incorporated by reference herein. (a) Emotional distress. See Answer to Interrogatory # 13 below. (1) Expert Component. Objection. Expert discovery is governed by the scheduling order and the Federal Rules of Civil Procedure. (2) Non-Expert Component. In September 1985, now Sgt. Foraker was appointed to the Delaware State Police Academy. He was thrilled to be accepted into the profession that his two eldest brothers had chosen. It was during his tenure in the Academy that he won the Best Shooter Award in his Academy class. Early in his career, members of the Academy, Administrative and Executive Staffs advised him to "find his niche" and go after it. He pursued becoming a member of the S.O.R.T. (Special Operations Response Team) and achieved it. He pursued becoming a member of the K-9 Team and achieved that as well. Life was good. He not only worked out daily and stayed in shape but he worked and trained his dog, Eiko everyday. The pride he felt for the Division radiated through him. There was no mistaking that he was a proud Delaware State Trooper.

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In October 1997, he realized his career goal with the Delaware State Police ­ to be assigned as a full-time firearms instructor. After 12 years of being assigned to patrol duty with shift work, nights and weekends, holiday work, etc., he was finally assigned to the then named Ordnance Unit, later referred to as the Firearms Training Unit. He was on top of the world. He was truly enthused, exhilarated, excited and eager to be a firearms instructor to pour his tactical knowledge into every student to enable them to survive whatever they may encounter. After inservice or recruit training at the outside DSP Range on Denney's Road concluded, he would go to the Clark Farm Road FTU construction site to assist there. While the new FTU was under construction, he spent many long hours working to assist with the completion of the project. He worked on the following tasks: installation of the target system and target carriers; installation of the sump pumps and sprayer bars for the bullet trap; vacuuming underneath of the bullet trap; bolting the bullet trap ramps together; attached sheet metal covering over the water troughs and sump pumps; building work benches for the armorers room; installation of the floor pockets for the barricade stations on the range; assembly of picnic tables for the outside eating area; assemble and secure steel shelving in the ammunition and chemical storage rooms; installation of sound absorbing material inside of the chemical storage room where the air compressor is located; assembly of steel cage in rear of bullet trap; and cut down trees, branches and cleared debris behind the building for the picnic area. He did all of this work, in addition to his regular duties as a firearms instructor. Sgt. Foraker loved being a firearms instructor. He loved working at the FTU. He loved the DSP. During the time from October 1997 through July 2001, he was very happy. He was advancing in the organizational structure of the SORT team by assuming the Alpha Team Leader position with his planning and executing of high-risk search and arrest warrants and resolving

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critical incidents. He finally realized his career aspirations and was excited to be able to positively impact the entire 600+ member Division. He was working very hard, long hours but rarely put in for overtime ­ he was just glad to be there and to contribute. The Foraker family was very content. The relationship between Chris Foraker and his wife Suzanne was terrific ­ they were best friends. Sgt. Foraker was happy and content. On August 1, 2001, Chris Foraker was promoted to Sergeant and NCOIC of the Firearms Training Unit. In his eyes, this most certainly was the dream-job in the Division. He was in charge of a large budget, a multi-million dollar facility, the design and implementation of both academy and in-service firearms training curriculum, the testing and evaluation of many products to include weapons, ammunition, body armor, holsters, etc. He was elated. He was realizing that his hard work and dedication were paying off. Shortly thereafter, Sgt. Foraker found himself the victim of defendant Chaffinch's destructive retaliatory animus. Chaffinch transferred and set out to destroy Sgt. Foraker because Sgt. Foraker had reported Chaffinch's close personal friend for: having dangerously high levels of lead in his bloodstream; lying in the course of his duties in violation of the DSP dishonest rule (see Rule & Regulation # 15); sexually harassing and touching a vulnerable female civilian employee at the FTU; and for his poor performance. A federal court jury found that Chaffinch had illegally violated the First Amendment when he retaliated against Sgt. Foraker for his protected First Amendment speech. The case was settled post-trial and Judge Farnan ordered that Sgt. Foraker be reinstated as the NCOIC of the FTU with all of his previous duties and responsibilities. So on December 1, 2003 Sgt. Foraker was reinstated as the NCOIC of the FTU. He was elated that his good name had been restored to him and that a jury of his peers had vindicated him. He and his family hoped that they would be able to put the past behind them, move on with their -6-

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lives and get back to their normal, happy life together. Unfortunately this was not to be. Sgt. Foraker found the FTU to be in complete disarray when he returned ­ it was in a state of disaster. Then on his own and on behalf of his subordinates, he began reporting the emergency crises that existed in the facility. Months passed, and despite continually speaking out in an attempt to rectify the dangerous situation and protect the health and safety of those working and training at the facility, nothing was done. (For a listing of Sgt. Foraker's protected First Amendment speech and petition clause activity, see Answer to Interrogatory # 14 below.) Eventually the range was closed and the retaliation began. See Answer to Interrogatory # 15 below. And this illegal retaliation has utterly decimated Sgt. Foraker emotionally. (i) Emotional and Physical Problems. Sgt. Foraker has been disgusted and dismayed at the way the defendants have retaliated against him. He is shocked at the way he has been treated. He was embarrassed, humiliated, disheartened and demoralized. He feels like his whole career and everything he has worked for has been flushed down the toilet. He feels that everything he accomplished in his first lawsuit, including restoring his good name, was for naught because Chaffinch and MacLeish maliciously managed to destroy his good name anyway by their further retaliation. As the retaliation began anew, he began to suffer from chronic diarrhea and hemorrhoids. His lack of appetite was apparent and he began to lose weight. He can feel his pulse very strongly in his neck. As a result, he has had to continue daily on the blood pressure medication he was forced to begin taking during his first lawsuit. He also now suffers from severe headaches. He experiences a pervasive sense of sadness because of his feelings about what he has lost. Although he hates to admit it, tearfulness and crying have become issues. He feels a sense of tremendous shame and disgrace because of the wrongdoing he has been accused of. He feels -7-

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humiliated and demoralized. This in turn angers him because of how much of his career and his life he has dedicated to the FTU and the DSP. He is disheartened and crushed because everything he has ever worked for has been taken away from him. (ii) Impact on his Family and Social Relationships. Although he is stoic at work, all the stress comes out in his home life. Neither he nor his wife Suzanne can sleep at night they are so upset. He has to take sleep aids because this has consumed all of his thoughts. He has nightmares and flashbacks. He wakes up in the middle of the night, afraid that someone may be in the house. Then he has to get up and check on his children to put his mind at ease. But even when he awakens in the morning, he is not rested because of the very limited amount of sleep he has gotten. He is constantly fatigued and at a loss for energy. He has lost interest in various pursuits. He no longer exercises the way he once did because of how down and fatigued he feels. He feels physically debilitated. It is extremely trying and tiring for Sgt. Foraker and Suzanne Foraker to hide their distraught emotional state from their children. The children want their father back and Suzanne Foraker wants her husband back. The Foraker children have had to endure under the nightmarish retaliatory acts of defendants Chaffinch and MacLeish since they were 6 and 4, and it breaks Sgt. Foraker's heart to see them hurting. It hurts him and he wonders how long does he have to tell his children that if you do the right thing, you will be rewarded. At times, the stress becomes too much to bear for him because it is on his mind all of the time. Sgt. Foraker is suffering under the weight of knowing the negative impact that defendants' retaliation has had on his family. For example, Sgt. Foraker becomes irritable and angry because of the retaliatory actions taken against him by defendants, and he then uncharacteristically snaps or yells at his girls or his wife because he is so distraught about what defendants are doing to him. His heart aches every time he sees his two -8-

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little girls upset and crying when he is irritable and angry. It hurts him as he sees how his girls suffer over how he has been transformed as a result of defendants' actions. All of this weighs on him a great deal. Sgt. Foraker is a tough man, a very stoic individual. But although he does not like to admit it, frequently he finds himself close to tears or despite his best efforts actually crying when with his family. He does not want to allow himself to cry in front of his children and his wife because he does not want them to think less of him. He constantly feels down and depressed. Additionally, he has trouble trusting people because of what has occurred and he has withdrawn socially and avoids those with whom he once was close. Sometimes, he felt like he could not trust extended family. He has found himself much more guarded in whom he socializes with and has trouble opening up like he did before with close friends. He feels isolated, like he is on an island. Thus, many of the relationships he valued and cherished have been damaged and fallen away as a result of this retaliation. His intimate and love life with his wife, which had always been very passionate, has been tremendously effected in a great many negative ways. Additionally, he no longer shares his feelings openly with his wife as he had always done in the past. He avoids telling her about what he is dealing with because he does not want to bring her down or have her suffer under the same weight that defendants have forced him to bear. The experience of trying to deal with what defendants have done to him has been one of the ultimate tests of Sgt. Foraker's marriage. If not for their strong faith in the Lord, Sgt. Foraker doubts that their marriage would have been able to survive this at all. (iii) Distress About His Now Bleak Future Employment Prospects. Defendants have surely destroyed Sgt. Foraker's future employment opportunities and this has -9-

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upset Sgt. Foraker a great deal as he must now struggle with how he will provide for his family. This is especially troubling because Sgt. Foraker sees his major identity as a husband, father and provider for his family, but now he will not be able to provide for his dear wife and children. He has to struggle with how he won't be able to obtain employment in the firearms industry or any other related industry. Sgt. Foraker is anxious and extremely worried about his future career prospects. How does it look when someone who has dedicated their life to firearms training is blamed for being an incompetent coward who destroyed a multimillion dollar firearms training facility. His future post-DSP career has been destroyed and he is crushed because of that. Additionally, because Suzanne Foraker is a stay-at-home, home-school mother, the prospect of Sgt. Foraker not being able to find work in the future puts an enormous amount of pressure on Sgt. Foraker. No longer will Sgt. Foraker ever be able to leave the DSP and obtain a lucrative position in the firearms industry. He will not be allowed into that small nucleus of tight-knit, well-informed specialists. As vendors have said, "Perception is reality and the perception is wrong doing." (b) Injury to Reputation. See above. See also Answer to Interrogatory # 13 below which is incorporated by reference herein. See Price et al. v. Chaffinch, et al., Answer to Interrogatory # 3 which is incorporated by reference herein. (c) Humiliation. See above. Additionally, Sgt. Foraker is humiliated because, as discussed above and below, he has worked his entire career to reach the pinnacle of firearms expertise in the DSP. And upon reaching that point, defendants have falsely accused him of being an incompetent coward who destroyed the very multimillion dollar firearms training facility in which he worked. This is demoralizing and humiliating to him. Sgt. Foraker is very passionate about his -10-

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career and he has worked hard to reach and achieve the position he is in now. But everything he has accomplished, everything he has worked for has been taken from him by defendants. He must deal with the constant, `what did you do' questions from people who want to know how he destroyed a multimillion dollar state facility. It is humiliating to have to deal with the stares from people he does not even know. It is hard to deal with the stares from fellow troopers in the relatively close-knit community that is the DSP. Even when he tries to explain that he did not destroy the facility, oftentimes he is met with disbelief, disbelief that the Colonel would lie about something that important. The perception in the DSP and throughout the general public is that he did something wrong. Sgt. Foraker has been forced to labor under this tremendous shame and disgrace. (d) Diminished earning capacity. Objection. Expert discovery is governed by the scheduling order and the Federal Rules of Civil Procedure. (e) Economic losses. Objection. Expert discovery is governed by the scheduling order and the Federal Rules of Civil Procedure.

4. Do you contend that any admissions with regard to the issues in this lawsuit have been made by any party to the lawsuit or by any party's agent, servant or employee? If so, identify the person who made the admission and the substance of the admission. If the admission is contained in a document, identify the document. Answer: Objection. Vague, overbroad and unduly burdensome. Calls for a legal conclusion. Moreover, the question is a thinly veiled attempt to prematurely obtain the mental impressions, conclusions, opinions and/or legal theories of Plaintiff's counsel in violation of Fed.R.Civ.Proc. Rule 26(b)(3). In addition, discovery is just beginning and the record in this -11-

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regard remains to be developed. Without waiving the objections, yes. The persons who made the admissions and the substance of the admissions are found in the depositions, trial testimony, sworn affidavits, Answers and answers to interrogatories in the following cases: Foraker v. Chaffinch, C.A. No.02-302-JJF (D.Del.); Dillman v. Chaffinch, et al., C.A. No. 02-509-KAJ (D.Del.); Bullen and Giles v. Chaffinch, et al., C.A. No. 02-1315-JJF (D.Del.); Conley v. Chaffinch et al., C.A. No. 04-1394-GMS (D.Del.). They are also found in the media articles, TV broadcast, Auditor's Report, emails and other documents concerning the Firearms Training Unit and its personnel.

5. For each statement published by Defendants, or which you believe was published on their behalf, that was false and defamatory, identify: (a) the contents of the statement; (b) when each statement was made, and (c) to whom each statement was made. Answer: Objection. Calls for a legal conclusion. Moreover, the question is a thinly veiled attempt to prematurely obtain the mental impressions, conclusions, opinions and/or legal theories of Plaintiff's counsel in violation of Fed.R.Civ.Proc. Rule 26(b)(3). In addition, discovery is just beginning and the record in this regard remains to be developed. Notwithstanding and subject to said objections: See Price et al. v. Chaffinch, et al., Answers to Interrogatories at Exhibit 1 - FTU Rough Timeline of Events. See the voluminous documentation produced in response to the request for production of documents, which is incorporated by reference herein. -12-

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All of the statements made by defendants Chaffinch and MacLeish to members and representatives of the Delaware, Maryland, national and international media, before, during and after their April 6, 2004 tour of the FTU, including the following: "Chaffinch acknowledged problems, but indicated the blame lies only with one or two troopers under his command." "When I was here in the fall, everything was going as well as the previous times I'd been here.....I think people who live in glass houses shouldn't throw stones. It's a lot dirtier now. Things seemed in their proper places in the fall. I've never seen it like this.....The previous sergeant did a good job....Things changed in December when another sergeant came in. That's at least a portion of where the ball was dropped." "He praised Sgt. Ashley for his work at the range. `Because of the frangible ammunition we were using, the bullet trap required hands-on, daily cleaning,' he said. `Sgt. Ashley was willing to do that. I cannot say 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.'" These and other similarly defamatory statements were made to representatives of the Delaware State News, the News Journal, WBOC-TV, American Police Beat magazine and other media outlets that are still to be discovered in this case, and were subsequently published by those outlets or in those publications. Some of the defamatory statements were subsequently republished again as well. Additionally, Chaffinch and MacLeish ratified and adopted the defamatory statements of Secretary Homer as their own. Moreover, Chaffinch and MacLeish also published their false accusations to members of the DSP. For example, in the presence of members of his Executive Staff, Chaffinch falsely accused Foraker of destroying the FTU, stating "the mess at the range is all Foraker's fault." -13-

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In the same way, Chaffinch and MacLeish, maliciously and in bad faith, also published their false accusations to members of the State Auditor's office.

6. As to each statement published by defendants, or which you believe was published on their behalf, that you claim was false, state why you contend it was false and why you believe defendant Chaffinch knew or recklessly disregarded the alleged fact it was false at the time it was published. Answer: Objection. Unduly burdensome. Calls for a legal conclusion. The question is a thinly veiled attempt to prematurely obtain the mental impressions, conclusions, opinions and/or legal theories of Plaintiff's counsel in violation of Fed.R.Civ.Proc. Rule 26(b)(3). Moreover, discovery is just beginning and the record in this regard remains to be developed. Notwithstanding and subject to said objections: See the voluminous documentation produced in response to the request for production of documents, which is incorporated by reference herein. See Price et al. v. Chaffinch, et al., Answers to Interrogatories at Exhibit 1 - FTU Rough Timeline of Events. See Price et al. v. Chaffinch, et al., Answer to Interrogatory # 5, 6, 7, 9, 10, 11, 12, 13, 15, which are incorporated by reference herein. Additionally, it is common knowledge in the DSP that the FTU has been plagued with many many problems since its very inception. It is well-known throughout the Division that the facility has never worked properly. From the long-standing problems of lead contamination, to dangerously high levels of lead in the bloodstream of the staff. From the perpetually malfunctioning HVAC system, to the roof that began to collapse because it could not hold its own -14-

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weight. From non bullet resistant doors, to the rain that poured down through the leaky and porous roof. From the lack of a baffled ceiling to protect Troopers against dangerous ricocheting bullets, to the malfunctioning bullet trap and its toxic goo. From the lack of a fire suppression and sprinkler system in this building that stores large amounts of live ammunition, to the wrong air filters on the perpetually malfunctioning HVAC system. From the broken zamboni, to the lack of any standard operating procedures for the facility. The FTU has never worked as designed. Defendant Chaffinch knew about all of these problems. Virtually everyone in the DSP knew that the FTU was a mess and had not worked properly. Secondly, the numerous problems of lead contamination and the dangerous levels of lead in the blood of the Trooper staff were significant issues in the original case of Foraker v. Chaffinch, C.A. No.02-302-JJF (D.Del.). Defendant Chaffinch knew about these problems. He, members of his Executive Staff and many others testified about them under oath, in depositions and in open Court in front of Judge Farnan and the federal court jury that found Chaffinch guilty of violating the First Amendment when he retaliated against Sgt. Foraker for speaking out about, among many other things, health concerns arising out of lead contamination at the FTU. Thirdly, defendants Chaffinch and MacLeish also knew from four months worth of documents provided from December 2003 to March 2004 that his accusations were false. Foraker spoke out about and relayed up the chain of command the emergency range issues beginning in early December 2003 and continued to do so through the closing of the range in March 2004 (and even continuing thereafter). Because of the many concerns being relayed up the chain of command, defendants Chaffinch and MacLeish knew about the dangerous conditions at the range but nonetheless held off on doing anything about it. The February 3, 2004 swipe surface sample results from Environmental Solutions, an -15-

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agency brought in by the FTU staff, Lt. Davis and Captain Warren, (and not by the Administration or Executive Staff), confirmed the suspicions of the FTU members that the building was contaminated everywhere. The April 13, 2004 Harvard Environmental Report confirmed that the entire facility was contaminated. All of this information was relayed up the chain of command to defendants Chaffinch and MacLeish. Yet rather than try to help the many men and women who were being exposed to and were suffering from all of these many problems, they instead falsely and maliciously blamed them for destroying a facility that everyone in the DSP knows was sick and broken from the very beginning. Additionally, Chaffinch and MacLeish knew that Secretary Homer's own claims were false, that she was just trying to save herself and her agency from public ridicule for failing in their duty to build and maintain a safe and healthy firing range, for their abysmal failure to ever fix any of the many problems that plagued the FTU and for failing in their duty not to poison state employees. But because Chaffinch and MacLeish were so preoc