Justice v. Danberg, Civ. No. 06-497-SLR.

• Decision Date: 29 July 2008
• Docket Number: Civ. No. 06-497-SLR.
• Citation: 571 F.Supp.2d 602
• Parties: Wilber F. JUSTICE; Plaintiff, v. Carl C. DANBERG et. al., Defendants.
• Court: U.S. District Court — District of Delaware

571 F.Supp.2d 602

Wilber F. JUSTICE; Plaintiff, v. Carl C. DANBERG et. al., Defendants.

Civ. No. 06-497-SLR.

United States District Court, D. Delaware.

July 29, 2008.

COPYRIGHT MATERIAL OMITTED

Thomas S. Neuberger, Esq. and Stephen J. Neuberger, Esq. of The Neuberger Firm, Wilmington, DE, for Plaintiff.

Marc P. Niedzielski, Esq. and Stephani J. Ballard, Esq., Deputy Attorneys General, State of Delaware Department of Justice, Wilmington, DE, for Defendants.

MEMORANDUM OPINION

ROBINSON, District Judge.

I. INTRODUCTION

Plaintiff Wilbur F. Justice ("plaintiff") filed this action against defendants Carl C. Danberg,¹ in his official capacity as Delaware Department of Correction ("DOC") Commissioner ("Commissioner"), Alan Machtinger, individually and in his official capacity as DOC Director of Human Resources ("Machtinger"), and the DOC of the State of Delaware (collectively "defendants"), pursuant to 42 U.S.C. § 1983 alleging a denial of promotion in retaliation for plaintiffs involvement in union activities in violation of United States Constitution Amendment I. More specifically, plaintiff claims that defendants intentionally misplaced his application for promotion in retaliation for his union activities, placing him in a disadvantaged position compared to the other candidates and preventing him from attaining the promotion. Before the court is defendants' motion for summary judgment and plaintiffs motion for partial summary judgment. (D.I. 50, 53) For the reasons stated below, the court finds that plaintiff did engage in a constitutionally protected activity and suffered an adverse employment action; the court, therefore, grants plaintiffs motion for partial summary judgment. (D.I. 53) Consistent with the court's order of February 4, 2008 (D.I. 48), the court finds that a genuine issue of material fact remains as to whether plaintiffs activity was a substantial or motivating factor in the adverse action. Defendants have failed to carry their burden to show otherwise; accordingly, defendants' motion for summary judgment is denied.

II. BACKGROUND²

Plaintiff worked at the DOC of the State of Delaware since 1982. (D.I. 52 at A7) He worked various positions within the DOC, rising through the ranks to be promoted to sergeant in 1988. (Id. at A8) In 1999 and in 2001, plaintiff applied for the lieutenant position of Community Work Program Coordinator ("CWPC") at the Morris Community Correctional Center ("MCCC") in Dover, Delaware; both times he was informed he did not meet the minimum qualifications. (Id. at A56) Later in 2001, he applied for and received a transfer to MCCC as a sergeant. (Id. at A9)

Beginning in 2002 and continuing into 2004, the Correctional Officers Association of Delaware ("COAD"), the union that represents all correctional officers with the rank of sergeant and below, and other unions representing employees of the DOC entered into a series of contract negotiations concerning working conditions and hours with the DOC. (Id. at A39) In 2003, plaintiff became a vice president in COAD and joined the executive board responsible for collective bargaining. (Id. at A20) The negotiations initially were attempted via face-to-face meetings; however, by 2004 the negotiations were handled with each bargaining unit in a separate room and the two sides passing proposals back and forth. (Id. at A23) Plaintiff, as a vice president of COAD representing officers from MCCC, was involved in these negotiations. (Id.) Defendant Machinger as Director of Human Resources at the DOC also took part. (Id. at A36)

These negotiations proceeded against a backdrop of a gubernatorial election campaign and substantial media coverage of DOC negotiations and of working conditions within DOC facilities. (Id. at A68-69) Media reports covered a variety of security breakdowns, such as the escape of an inmate in late 2003 and an inmate attempting suicide while on trial in April 2004. (Id. at A81) In June of 2004, a private security expert issued a negative report detailing a number of security lapses and serious flaws in procedure. (Id.) COAD began a vocal campaign against the incumbent governor and complained that staff shortages and low pay contributed to the security breakdowns at DOC facilities. (Id. at A66-73)

The events giving rise to this action developed in the months of July and August 2004. The DOC posted an announcement of vacancy for a CWPC position at MCCC on July 7. (Id. at A83) On July 12, a female correctional counselor was abducted and sexually assaulted by an inmate at the Delaware Correctional Center; this led to a six and a half hour hostage crisis and ended only after a Certified Emergency Response Team ("CERT") officer shot and killed the inmate. (Id. at A80) On July 15, plaintiff timely filed his application for the posted CWPC promotion, and received a stamped copy of the application. (Id. at A13) At some point in the next few days, plaintiffs application was lost.³ (Id. at A83; D.I. 54 at ¶ 48; D.I. 60 at ¶¶ 47-64) As a result, plaintiffs name was left off the certification list of qualified candidates, prepared on July 22, which functions as a list of candidates to be interviewed.⁴ (D.I. 52 at 84; D.I. 51, Op. at 2) Also on July 22, in response to the events that culminated in the assault of the female counselor, COAD members planned a seven day work action to refuse to work voluntary overtime to bring attention to what they perceived as a crisis in staffing that management was ignoring in the contract negotiations; this action was not sanctioned by COAD. (D.I. 52 at A74) The immediate effect of this action by union members was felt in the Court and Transportation Department of the DOC and resulted in a number of inmates missing hearing dates since those staff positions are normally filled by correctional officers working voluntary overtime (Id. at A15) On August 5, the DOC filed suit against COAD and the executive board members individually as a result of the union members' job action; the case was decided in favor of the union. (Id. at A89)

Meanwhile, plaintiff asserts that on August 10, DOC Human Resources ("HR") notified the five other employees on the certification list prepared on July 22 (which excluded plaintiff) that interviews for the CWPC position had been scheduled for August 16. (D.I. 54 at ¶ 55; D.I. 60 at ¶¶ 47-64) On August 13, plaintiff inquired with HR on the progress of his application and was told by an HR employee that interviews had not yet been scheduled and that plaintiff was still listed as an applicant for the CWPC position. (D.I. 54 at ¶ 53; D.I. 60 at ¶¶ 47-64) After receiving these reassurances, plaintiff went on vacation. (D.I. 52 at A84-85) On August 16, plaintiff was informed of the interviews scheduled for the CWPC position, returned from vacation, and confronted the same HR employee about the situation. (Id. at A85) Plaintiffs name was added to the certification list and he was scheduled for a last minute interview for the same day, August 16.⁵ (D.I. 54 at ¶ 64; D.I. 60 at ¶¶ 47-64)

The interview panel consisted of three individuals, the supervisor of the CWPC position Kent Raymond, probation supervisor Michael Records, and MCCC administrative assistant Rosalie Jackson. (D.I. 51, Op. at 3) The panel ranked the candidates for their performance during the interview, then made a recommendation to Warden Vincent Bianco at MCCC for the final decision. (Id.) After the interviews were completed, plaintiff placed second in the interview panel's rankings behind Hansel Fuller. (Id.) The principle distinguishing factor between Fuller and plaintiff was stated to be the former's "on his feet performance and his ability to clearly and concisely answer questions."⁶ (D.I. 54 at ¶ 87; D.I. 60 at ¶¶ 80-89) The panel recommended Fuller to Warden Bianco; Fuller was offered, and accepted, the position. (D.I. 51, Op. at 3) On September 23, 2004, plaintiff filed a grievance under Delaware law. (Id.) This grievance being unsuccessful, plaintiff filed an appeal to the Merit Employee Relations Board ("MERB") on January 21, 2005. (Id.) The Board found in plaintiffs favor. (Id.) On August 11, 2006, plaintiff filed this suit pursuant to 42 U.S.C. § 1983 for alleged employment retaliation for exercising his First Amendment rights. Plaintiff retired from the DOC as a Sergeant on February 1, 2007. (D.I. 58 at ¶ 25) On May 18, 2007, the DOC appealed the MERB decision resulting in the Delaware Superior Court decision dated August 23, 2007, reversing MERB's decision and found in favor of defendants. (D.I. 51, Op. at 4)

III. STANDARD OF REVIEW

A court shall grant summary judgment only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the burden of proving that no genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 10, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "Facts that could alter the outcome are `material,' and disputes are `genuine' if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct." Horowitz v. Fed. Kemper Life Assurance Co., 57 F.3d 300, 302 n. 1 (3d Cir.1995) (internal citations omitted). If the moving party has demonstrated an absence of material fact, the nonmoving party then "must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (quoting Fed.R.Civ.P. 56(e)). The court will "view the underlying facts and all reasonable inferences therefrom in the light most favorable to the party opposing the motion." Pa. Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir.1995). The mere existence of some evidence in support...