Casale v. Town of Ocean View et al
MEMORANDUM OPINION re 6 MOTION to Dismiss. Signed by Judge Richard G. Andrews on 2/21/2013. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
TOWN OF OCEAN VIEW,
CONWAY GREGORY, individually
and in his official as Town Manager,
GORDON E. WOOD, SR., individually
and in his official capacity as a member
of the Town Council,
ROBERT R. LAWLESS, individually and
in his official capacity as a member of the
MICHELE STEFFENS, individually
and in her official capacity as a member of
the Town Council,
individually and in his official capacity as a
member of the Town Council,
PERRY MITCHELL, individually and in his
official capacity as a member of the Town
C.A. No. 12-485-RGA
Charles Snyderman, Esq., Wilmington, Delaware; Attorney for PlaintiffMicha 1 Casale.
Megan T. Mantzavinos, Esq., Wilmington, Delaware; Attorney for Defendants.
This is a motion to dismiss. Plaintiff Michael Casale files suit against Defenda ts Town
of Ocean View, Conway Gregory, Gordon E. Wood, Sr., Robert R. Lawless, Michele teffens,
Geoffrey Christ, and Perry Mitchell. 1 Casale alleges that Defendants illegally termina ed his
employment with the Town. (D .I. 1). Casale brings four claims for recovery: ( 1) a se tion 1983
procedural due process claim; (2) a breach of the implied covenant of good faith and f: ir dealing
claim; (3) a wrongful termination claim; and (4) a breach of contract claim. (D.I. 1, ~~ 29-34).
Defendants now move to dismiss all of these claims for failure to state a claim.
As this is a motion to dismiss, the following factual allegations are accepted as rue and
viewed in the light most favorable to Casale.
Casale was employed by the Town of Ocean View for 21 years as a maintenan e worker.
(D.I. 1, ~ 1). He injured his neck on February 9, 2010 while plowing snow on the job. (!d. at~
14). The injury left him temporarily disabled and he was approved for workers' comp nsation.
(!d.). He remained out of work until approximately August 18,2010, when he receive a letter
from Defendant Gregory, who is the town manager, informing him that he was termin ed due to
unauthorized absences and the Town's need to fill his position. (!d. at~~ 15-16). On
2010, Casale sent a letter in response to Defendant Gregory, as well as to Casale's sup rvisor,
Defendant McMullen, along with other municipal officials. (!d. at~ 17). The letter st ed that
Casale had been approved for workers' compensation due to his injury and that he had
continuously updated the Town in regard to his ongoing medical care. (!d.). The lette also
The Town Manager and Town Council Defendants are sued in both their individual and official capaci ies.
The proposed amended complaint (D.I. 8-1) is not materially different from the original complaint.
stated that Defendant McMullen was kept up to date on the situation and that no one i formed
Casale that his absences were considered unauthorized. (Jd.). Finally, the letter stated that
Casale intended to return to work when capable and that he contested the termination
On October 26, 2010, Casale sent another letter requesting his personnel file a
18). The letter stated that Casale was authorized by his doctor to re urn to
work on November 8, 2010. (Id.
19). Casale also sent "return to work" forms tot e Town.
(ld. ). Two days later, Defendant McMullen circulated an email among Town employe s that the
Town had received Casale's return to work forms and that Casale should not be allowe on work
premises should he appear. (ld.
20). On November 21,2010, Casale sent another letter
repeating his request for the personnel file. (Jd.
21 ). This letter also requested are ponse to
his previous letter, questioned his termination in light of Town Code§ 28-42, 3 request d
compensation for his sick leave and vacation time, and referred to his 21 years of servi e for the
Town and the fact that he never received warning of termination. (Jd.).
Casale received a November 30,2010 letter in response from the Town's attorn y,
Dennis Schrader. (Jd.
22). Schrader informed Casale that he would be permitted t inspect
his personnel file. (Id.). Schrader also represented that he would need to refer questio s
concerning Town Code§ 28-42 to the Town's insurance carrier before providing Casal an
answer. (Jd.). Casale never received an answer concerning Town Code§ 28-42. (Jd. a
Casale finally received his personnel file after he sent a third request dated December 2 , 2010.
Town Code§ 28-42 states that employees of the Town are eligible for workers' compensation leave an that an
employee shall be allowed to remain absent from work in accordance with Delaware state laws.
other documents relating to his discharge, as well as the dates of his alleged unauthori ed
(!d. at~ 24). Casale then sent a February 2, 2011 letter to Defendant Gregory stating t at the file
contained no supporting basis for the allegations that Casale had unauthorized absence . (!d. at ~
25). In response, Schrader sent a February 8, 2011 letter informing Casale that the To
required to answer questions regarding the unauthorized absences. (!d. at~ 26). After another
inquiry from Casale, Defendant Schrader responded with a February 28, 2011letter th t the
Town was not required to hold Casale's position open for as long as "[he] may choose
absent," despite Defendant Schrader's knowledge that Casale's absences were not vol
due to injury. (!d.
In reviewing a motion filed under Federal Rule of Civil Procedure 12(b)( 6), the Court
must accept all factual allegations in a complaint as true and take them in the light mos
favorable to Plaintiff. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Christopher v.
536 U.S. 403, 406 (2002). "When there are well-ple[d] factual allegations, a court sho ld
assume their veracity and then determine whether they plausibly give rise to an entitle ent to
relief." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Such a determination is a context- pecific
task requiring the court "to draw on its judicial experience and common sense." !d.
In addition, when ruling on a 12(b)(6) motion, the Court may consider the plea ings,
public record, orders, exhibits attached to the Complaint, and documents incorporated i to the
Complaint by reference. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 32 (2007);
Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384-85 n. 2 (3d Cir. 19 4).
In regard to Defendants' motion to dismiss the Section 1983 claim for a failure o provide
procedural due process, Defendants first argue that Casale's claim must fail because he failed to
exhaust his administrative remedies. It is true that "[b]efore bringing a claim for failur to
provide due process, 'a plaintiff must have taken advantage of the processes that are a ailable to
him or her, unless those processes are unavailable or patently inadequate.'" Wilson v.
Inc., 475 F.3d 166, 174 (3d Cir. 2007) (quoting Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir.
2000)). Defendants argue that Casale never submitted a formal grievance as required y Town
Code§ 28-45. According to Defendants, Casale's August 23,2010 letter cannot be co sidered a
formal grievance. They argue that this is because the letter does not explicitly state it i intended
to serve as a grievance, as the word grievance is not mentioned in the letter, and the gr· evance
code provision is not cited. (D.I. 9, p. 8). Additionally, Defendants argue that Casale
informed that the Town did not understand that he had filed a grievance in response to
August 23, 2010 letter and gave him explicit instruction how to do so. (ld). These in
directed Casale to "address a letter to Mr. McMullen presenting [a] grievance to him" ursuant to
Town Code§ 28-45(8)(2). (D.I. 7, Exh. A at 1). According to Defendants, Casale's f: ilure to
comply with these instructions means he failed to comply with the grievance process.
Town Code§ 28-45(8)(2) details the manner in which a Town employee shoul submit a
grievance: "An employee with a grievance may, within 10 working days of the cause o
grievance, present the grievance in writing to his or her department supervisor." Secti n 2845(A) defines a "grievance" as "a formal written complaint. .. which expresses dissatis ction
concerning a condition of employment or treatment by management, supervisors, or ot er
employees." Despite Defendants' arguments to the contrary, Casale's August 23, 201 letter
satisfies these requirements. Paragraph 17 of the Complaint alleges the following: "On August
23,2010, plaintiff sent a letter to the Town of Ocean View and in particular, to defend t
Conway Gregory, Charley McMullen, an administrative official, Gordon E. Wood, Sr., the
mayor, and various members ofthe Town Council." (D.I. 1, ~17). Casale's letter spec'fically
stated that "he was contesting the termination of his employment." (Id.). Nothing
necessary. As Defendant McMullen was Casale's supervisor and explicitly addresse in this
letter, Casale complied with the requirement that the grievance be sent to the supervi or. The
fact that other individuals are also addressed is of no consequence. The fact that Cas le did not
explicitly use the word "grievance" does not alter the obvious intent of the letter to e press
dissatisfaction with his termination, which is all that is required by§ 28-45(A). Any equirement
that an employee use "magic words" to comply with the administrative complaint pro edure
must be considered overly formalistic. Finally, the Town's attorney's failure to treat
e letter as
a sufficient notice of grievance should not be held against Casale. For these reasons, t e Court
holds that Casale properly complied with administrative procedures in contesting his t rmination.
Defendants next argue that Casale failed to allege a constitutionally recogniza e
property interest as necessary to support his Section 1983 claim for a failure to provid
procedural due process. To establish a procedural due process claim, the plaintiff"mu t
demonstrate that the conduct complained of was committed by a person acting under s te law
and that the conduct deprived him [or her] of rights, privileges or immunities secured b the
Constitution." Piecknick v. Pennsylvania, 36 F.3d 1250, 1256 (3d Cir. 1994) (internal
and citations omitted). Where a plaintiff "claims a procedural due process violation, hi claim is
dependent upon the denial of a constitutionally protected property or liberty interest."~ .
Further, where "no property or liberty interest is implicated," courts need not reach the ·ssue of
qualified immunity in deciding a motion to dismiss. !d. at 1262 n. 12.
Here, Casale argues that he had a recognizable property interest in his continued
employment with the Town. If Casale did have such a property interest, he cannot be d rived
of it without due process. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (198 ). To
have a property interest in continued employment, a person "must have more than a un lateral
expectation of it. He must, instead, have a legitimate claim of entitlement to it." Bd. 0 Regents
ofState Colleges v. Roth, 408 U.S. 564, 577 (1972); see Elmore v. Cleary, 399 F.3d 27 , 282 (3d
Cir. 2005). Property interests may be created by state or federal statute, municipal ordi
by an express or implied contract. Bishop v. Wood, 426 U.S. 341, 344 (1976).
In Delaware, there is a "heavy presumption" that employment, "unless otherwis
expressly stated, is at-will in nature with duration indefinite." Bailey v. City ofWilmin ton, 766
A.2d 477, 580 (Del. 2001). Casale's allegations do not rebut this "heavy presumption.'
Casale argues that the circumstances of his employment created a constitutional y
recognizable interest. (D.I. 8, pp. 11-12). 4 The Complaint refers to Section 28-42 oft
Code, which provides that employees on workers' compensation may remain absent fr m work,
and that while absent, benefits and other leave accrue as though on regular duty. (D.I. , ~
31(b)). The Complaint also refers to Section 6-1 ofthe Town's employment manual,
provides for disciplinary procedures, requires the severity of the disciplinary measures
related to the seriousness of the offense, and states that dismissal is the removal of an e ployee
"for cause," which is defined as including "repeated, unauthorized absence." Casale als alleges
that Defendants knew that Casale's absences were not unauthorized. (!d. at ~ 31 (c)). C sale
further alleges that Defendants defied the manual's requirement that department superv sors
allow a grievance to be identified and offer the employee an opportunity to be heard by a
decision maker prior to termination. (!d.
31 (d)). Finally, Casale alleges that he ha a
contractual interest in employment and Defendants' actions amount to a breach of this
Although Casale argues in his opposition brief that his property interest is contractual in nature, he also oints to
the Town Code to support his claim. The Court will thus analyze both the alleged statutory source as we I as the
alleged contract sources to determine whether a property interest existed.
It is true that an employment contract may create a constitutionally recognizabl interest
sufficient to support a Section 1983 claim. See Bowers v. City of Wilmington, 723 F. S pp. 2d
700, 707 (D. Del. 201 0). Casale fails, however, to allege facts supporting the existenc of a
"termination for cause" contract between himself and the Town. An employee is not d prived of
a constitutional right when he is removed from a position that was terminable at the wi 1 of his
employer. Bishop, 426 U.S. at 348. "[A]n enforceable expectation of continued publi
employment ... can exist only if the employer, by statute or contract, has actually gran d some
form of guarantee." !d. at 345.
An examination of the sources relied upon by Casale reveals that the Town nev r
guaranteed him any form of employment protection through code or contract.
§ 28-42 creates no property expectation in employment:
A. Eligibility. All employees shall be eligible for workers' compensation leave hile
physically incapacitated because of an on-the-job sickness of injury covered by he
Delaware Workmen's Compensation Act.
(2) Duration. The employee shall be allowed to remain absent from wor m
accordance with Delaware State laws.
Section 28-42 does envision that the Town will comply with Delaware workers' compe sation
requirements. This, however, did not provide Casale with a general expectation of con ·nued
employment, as it does not create a "termination for cause" employment relationship, n r does it
confer any property right. It instead refers to a limited Delaware state law exception to he
general "at-will" rule that an employee can be fired for any reason. 5 This exception is t at an
The fact that laws provide exceptions to the default "at-will" employment relationship does not confer t e
employee with an expectation of continued employment, i.e., a protected property interest.
employee may not be retaliated or discriminated against for filing a workers' com pens tion
claim. Santora v. Red Clay Canso!. Sch. Dist., 2012 WL 5360885, *7 (D. Del. 2012). The
allegations here may be sufficient to state a claim for workers' compensation retaliatio , but
Town Code § 28-42 does not give rise to a positive general guarantee of continued em loyment.
Absent such a guarantee, Casale has not alleged facts rebutting the "heavy presumptio " that his
employment was of an "at-will" nature. See Bowers, 723 F. Supp. 2d at 708. He there ore has
not established a protected property interest.
The Court will next analyze Casale's argument that contract created his employ ent
property right. "In the government context, ... employment contracts that contain a 'ju t cause'
provision create a property interest in continued employment." Wilson v. MVM, Inc., 4
166, 177 (3d Cir. 2007). Casale alleges that certain statements within his employee m
guaranteed that he would not be terminated absent cause. (See D.l. 1, ~ 31(c)). In Del
however, an employee manual that does not designate a specific term of employment c
alter the employee's "at will" employment status. Heideck v. Kent Gen. Hasp., Inc., 44
1095, 1097 (Del. 1982); Biliski v. Red Clay Canso!. Sch. Dist. Bd. of Educ., 2008 WL 399660,
*4 (D. Del. 2008). Casale does not allege that the employment manual granted a speci c term of
employment, and therefore cannot rely on the manual as altering the "at-will" nature o
employment in contract.
Casale also argues that his allegations regarding a breach of the implied coven t of good
faith and fair dealing may serve as a recognizable contractual property interest deprivat on to
support the procedural due process claim. Casale cites Bowers in support. Casale is co ect that
Bowers analyzed a claim for the breach of the implied covenant of good faith and fair d aling as
possibly giving rise to the property right of expected continued employment.
Supp. 2d at 709. The Court, however, cannot agree with Bowers in this aspect. Federa law is
clear; for an employee to sustain a procedural due process claim, he must establish so e
expectation greater than "at-will" employment. 6 Delaware law is also clear; the establi hment of
the breach of the implied covenant of good faith and fair dealing does nothing to imply a
"termination for cause" relationship. See Merrill v. Crothall-Am., Inc., 606 A.2d 96, 1 2 (Del.
1992). It instead has to do with ensuring that the employer complies with a certain mi ·mal good
faith baseline in the discipline of its employees. See id at 101.
In fact, when the Delaware Supreme Court first expressly recognized the breac of the
implied covenant of good faith and fair dealing claim in the employment context, it spe t
considerable effort justifying this recognition in light of the presumed "at-will" nature f most
employment relationships. 7 The Court made clear that the establishment of the claim d es not by
itself transform the nature of the relationship from "at-will" to "termination for cause." It instead
merely creates a limited exception to an employment relationship that still must be und rstood as
essentially "at-will" in nature. For these reasons, Casale cannot support his procedural ue
process claim. 8
The Supreme Court's following discussion is relevant: "In Board of Regents v. Roth, we recognized th t the
nonretention of an untenured college teacher might make him somewhat less attractive to other employer , but
nevertheless concluded that it would stretch the concept too far 'to suggest that a person is deprived of li erty when
he simply is not rehired in one job but remains as free as before to seek another.' This same conclusion a plies to the
discharge of a public employee whose position is terminable at the will ofthe employer when there is no ublic
disclosure of the reasons for the discharge." Bishop v. Wood, 426 U.S. 341, 348 (1976)(intemal citations omitted).
"Our Jaw provides a heavy presumption that a contract for employment, unless otherwise expressly stat
will in nature, with duration indefinite. See Heideck v. Kent General Hospital, Inc., Dei.Supr., 446 A.2d
(1982). Just as this presumption protects employers from being liable on the employment contract for a
beyond which future events dictate termination, the covenant of good faith, in this context, protects empl
receiving under the contract Jess than what was bargained for." !d. at 102.
d, is at095, I 096
This does not preclude Casale from establishing an independent breach of the implied covenant of good faith and
fair dealing claim.
The Court thus grants Defendants' motion to dismiss Casale's Section 1983 clam for a
failure to provide procedural due process. The Court also holds that amendment of thi claim
would be futile. Indeed, Casale attached a proposed amended pleading to his oppositio brief
(D.I. 8-1), and his revised allegations do not change the result. In light of the recogniti n that the
federal question claim is not viable, the Court declines to reach Defendants' motion to ismiss
the state law claims for breach of the implied covenant of good faith and fair dealing, beach of
contract, and wrongful termination. Instead, the Court, pursuant to 28 U.S.C. § 1367(c (3), will
decline to exercise supplemental jurisdiction over the state law claims. The statute pro ides that
"[t]he district court may decline to exercise supplemental jurisdiction over a claim" if" he
district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C §
1367(c)(3). This is a decision that is left to the discretion ofthis Court. Annulli v. Pan kkar, 200
F.3d 189, 202 (3d Cir. 1999). The focus of this discretion is on whether the dismissal fthe
pendent claims best serves the principles of judicial economy, convenience, fairness, a d comity.
These factors favor dismissal. The case is in its early stages as the parties have ot yet
engaged in discovery, and thus little judicial economy or convenience will be lost by re uiring
Casale to pursue his remaining claims in state court. There is no fairness concern, as C sale and
his lawyers "knowingly risked dismissal of his pendent claims when they filed suit in fi deral
district court and invoked the Court's discretionary supplemental jurisdiction power." d.
Finally, comity favors dismissal, as the state court is best positioned to consider purely tate law
claims. For these reasons, the Court dismisses the remaining state law claims.
An order will issue.