Miller v. Delaware Technical & Community College et al

Filing 54

REPORT AND RECOMMENDATIONS for denial of D.I. 42 MOTION for Summary Judgment filed by Robert W. Hearn, Jr., George E. Booth, Kyle L. Serman, H. Allan Schirmer, Delaware Technical & Community College, Linford P. Faucett, III. Please n ote that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 7/20/2015. Signed by Judge Christopher J. Burke on 7/1/2015. (dlk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

MICHAEL C. MILLER, SR. d/b/a
MILLER'S LAWN SERVICE,

)
)
)
Plaintiff,
)
)
v.
)
)
DELAWARE TECHNICAL &
)
COMMUNITY COLLEGE, LINFORD
)
P. FAUCETT, III, GEORGE E.
)
BOOTH, ROBERT W. HEARN, JR.,
)
)
KYLE L. SERMAN, and H. ALLAN
SCHIRMER, each individually and in their )
official capacities,
)
)
)
Defendants.

Civil Action No. 12-216-SLR-CJB

REPORT AND RECOMMENDATION
In this action filed pursuant to 42 U.S.C. §§ 1981 and 1983, Plaintiff Michael C. Miller,
Sr., d/b/a Miller's Lawn Service ("Plaintiff'), brought suit against Defendant Delaware Technical
& Community College ("DTCC" or "the College") and Defendants Linford P. Faucett, III,

George E. Booth, Robert W. Hearn, Jr., Kyle L. Serman, and H. Allan Schirmer, in their
individual and official capacities (collectively, "Individual Defendants"). Presently pending
before the Court is Defendants' Motion for Summary Judgment ("Motion"). (D.1. 42) For the
reasons set forth below, the Court recommends that the Motion be DENIED.

I.

BACKGROUND
A.

Factual Background
1.

The Parties

1

Plaintiff, an African-American male and Delaware resident,1 is the owner and operator of
a landscaping business known as Miller's Lawn Service ("Miller's"), a sole proprietorship. (D.I.
45 at A002 at if 5, AOl 9 at if 3; D.I. 46 at A313) Defendant DTCC is an institution of higher
education created by Delaware state statute in 1966. (D.I. 43 at 2 (citing Del. Technical & Cmty.
Coll., History, https://www.dtcc.edu/about/history (last visited June 10, 2015))) DTCC operates
on four locations in Delaware, including the Jack F. Owens Campus ("the Campus" or "Owens
Campus") located in the town of Georgetown. (Id. (citing Del. Technical & Cmty. Coll., Our

Campuses, https://www.dtcc.edu/our-campuses (last visited June 10, 2015))) The one-hundred
forty-seven acre Owens Campus is known as DTCC's "birthplace." (Id. (citing Del. Technical &
Cmty. Coll., Our Campuses-Georgetown, https://www.dtcc.edu/our-campuses/georgetown (last
visited June 10, 2015))) Since 2007, DTCC has employed three landscaping contractors at the
Owens Campus: (1) Miller's, from 2007 to 2010; (2) Outdoor Design Group ("Outdoor"), from
2010 to 2013; and (3) Priority Services ("Priority''), from 2013 through the present. (D.I. 45 at
A005 at if 13, A025 at if 20; D.I. 46 at A3 78.1, A380, A400, A443)
The Individual Defendants served on a five-person panel (the "committee") assigned the
task of scoring bidders to award the 2010-2013 landscaping contract for the Owens Campus.
(D.I. 46 at A345) All five men are Caucasian. (D.I. 45 at A002-3 at iii! 7-11, A019-21 at iii! 5-9)
Defendant Faucett was the head of the committee, and at all times relevant to the Complaint was
the Director of Administrative Services at the Owens Campus. (D.I. 46 at A345, A447)
Defendant Faucett reported to the Campus Director in charge of the Owens Campus, Dr. Ileana

Plaintiff also asserts that he is a Nanticoke Indian, (D.I. 45 at A002 at if 5; D.I. 46
at A313-14), but his claims are based solely on his racial identity as an African-American, (D.I.
44 at 2 n.8; D.I. 53 at 109).
2

Smith. (Id. at A336, A521) Defendant Booth served at all times relevant to the Complaint as the
Assistant Director of Administrative Services at the Owens Campus; he was Defendant Faucett's
"right-hand man" and direct report. (D.I. 45 at A002 at if 8, A019-20 at if 6; D.I. 46 at A345.l)
Defendant Schirmer served at all times relevant to the Complaint as the Superintendent of
Grounds at the Owens Campus and also reported to Defendant Faucett. (D.1. 45 at A020 at if 9;
D.I. 46 at A474-75) Defendant Serman served at all times relevant to the Complaint as the Chair
of the Department of Applied Agriculture and was based at the Owens Campus. (D.1. 45 at A003
at if 10, A020 at if 8) Defendant Hearn served at all times relevant to the Complaint as the
Business Manager at Owens Campus. (Id. at A003 at if 9, A020 at if 7)

2.

2007 Contract
a.

Events relating to the bidding process

In September 2006, DTCC published an advertisement in the The News Journal,

soliciting bids for the landscaping contract with the Owens Campus for the period of January
2007 through January 2010 (the "2007 Contract"). (D.I. 43, ex. C at 28) For this contract,
DTCC utilized the "lowest responsible bidder" competitive bidding process, which awards the
contract to the "lowest responsive and responsible bidder whose bid conforms in all material
respects to the requirements and criteria" set forth in the invitation to bid. (D.I. 43 at 3 (quoting
Del. Code tit. 29, § 6923)) In an initial round of bidding, seven companies, including Miller's,
submitted bids. (Id., ex.Cat 28) Plaintiff was not the lowest bidder. (Id. at 29) There was a
large disparity of pricing in the bids, and for that reason, DTCC requested that the companies
rebid for the contract. (Id. at 30) This time, Plaintiff was the lowest bidder. (Id. at 29-30; D.I.
46 at A410) Ultimately, the selection committee recommended to Dr. Smith that the 2007
3

Contract be awarded to Plaintiff. (D.I. 43, ex.Lat 30)
The 2007 Contract was thereafter awarded to Plaintiff. (D.I. 45 at A005 at if 13, A025 at

if 20)

In a December 2006 letter, Defendant Faucett informed Plaintiff that "[t]he College has

high expectations with your company to bring the appearance of the grounds up to and beyond
acceptable standards of landscaping. I want this College to reflect a showplace and will accept
nothing less." (D.I. 43, ex. A) 2 In January 2007, Miller's and DTCC executed a written contract,

(id., ex. I at D0327), and DTCC elected to make the contract effective on February 1, 2007, (id.,
ex. H). The 2007 Contract included a termination option that permitted DTCC to terminate the
contract "in its sole discretion in the event that the services are not performed to its satisfaction in
its sole discretion." (Id., ex. I at D0322; see also D.I. 46 at A360.l, A480.l) Plaintiff was
retained for the entire three-year term of the 2007 Contract. (D.I. 46 at A415. l, A480. l, A528.1)

b.

Plaintiff's behavior

Defendants assert that "[ f]rom the inception of the 2007 Contract, Plaintiff exhibited a
pattern of unnecessarily litigious and argumentative behavior." (D.1. 43 at 4) 3
For example, Defendant Faucett testified that Plaintiff"had a tendency to pick people that

2

According to Defendants, DTCC conveyed this message to "each" of its
landscaping contractors, though in support, Defendants cite only to a letter sent to Plaintiff. (D.I.
43 at 2-3 & n.6-7)
3

Even prior to the inception of the 2007 Contract, Defendants assert that Plaintiff
raised an issue with a clause in a draft version of the contract, (D.1. 43, ex.Eat 6; id., ex. G at 1;
id., ex. I at D0326), and they claim that Plaintiff threatened legal action over the issue if it was
not resolved satisfactorily, (id., ex. G). During this dispute, Defendant Faucett (referring to
Plaintiff) wrote in an internal DTCC e-mail: "I am not willing to work with an individual who
goes behind people's back[s] to get his way and manipulates and bull[ies] his opinion .... I do
not want this person working for the college. I have a bad feeling about him and his tactics[.]"
(Id.; see also D.I. 46 at A350) The parties ultimately resolved this contract issue, and Miller's
thereafter began working at DTCC. (D.I. 43, exs. H & I)
4

he thought he could bully, like women, and I had one particular instance [where] two [female]
employees [were] in my office ... and he took advantage of them by being abusive and loud and
even causing one to break down and cry." (Id., ex.Cat 166) Further, Defendant Faucett claimed
that various employees had to talk to Plaintiff about the way he was doing things-specifically:
"Mr. [Terry] Hastings [then-Superintendent of Grounds and the point of contact with Plaintiff for
DTCC] had problems with him. Mr Schirmer had problems with him. Mr. Booth had a
confrontation with him. At various times, [Defendant Faucett] had him in [his] office where [he]
had to discuss different matters with" Plaintiff. (Id. at 172; see also D.I. 43 at 7 (citing id., ex.
P); D.I. 46 at A476)
The recollections of other DTCC employees as to Plaintiff's demeanor are also in the
record. Defendant Schirmer testified that he never ''butted heads" with Plaintiff. (D.I. 46 at
A476) Defendant Booth testified that Plaintiff was "somewhat confrontational and
argumentative[,]" though he could not recall any specific examples of such behavior. (D.I. 43,
ex.Mat 97; D.I. 46 at A405-06) Defendant Booth thereafter described Plaintiff as "[n]ot
aggressive and not real confrontational, but negative as in attitude .... [j]ust not the most upbeat
of people[.]" (D.I. 43, ex.Mat 97) When asked if Plaintiff was ever argumentative and
defensive, Dr. Smith replied "[y]es," but she also stated that Plaintiff was respectful and
professional in his interactions with her. (D.I. 43, ex. Lat 20; D.I. 46 at A526) And Terry
Johnson, the Owens Campus's Dean of Student Services from 2004 through December 2009,
reported that he never witnessed Plaintiff argue with anyone or raise his voice at anyone. (D.I. 46
at A536-37, A539)
c.

Plaintiff's performance
5

Defendants allege that Plaintiff"struggled mightily'' under the 2007 Contract, and was
''unable to maintain the 'showplace' effect the College administration clearly desired." (D.I. 43
at 5-7)
For example, according to Defendant Faucett, Plaintiff: (1) "did not get all of the weeds
that we were asking him to get;" (2) had to be told more than once to get the ditches and tax
ditches cut; (3) pruned trees much higher than DTCC wanted; 4 (4) caused a "hay-looking
situation" where Plaintiff cut the grass and failed to dispose ofleftover grass clippings; (5)
sprayed a herbicide underneath white pine trees to attack weeds, which stressed the trees so badly
that they dropped their needles and looked dead (before eventually returning to health); 5 ( 6)
covered people's cars with grass clippings on a couple of occasions; 6 and (7) occasionally
sprayed herbicides in flower beds, killing flowers instead of weeds. (Id., ex. C at 166-68)
Defendant Faucett also prepared a document titled "Comments on Meeting 4125107 with Mike

4

Plaintiff trimmed fifteen trees and invoiced DTCC separately for this work
because it was outside of the scope of his contract. (Id., ex. N) In September 2008, Defendant
Faucett sent Plaintiff a letter indicating that he was not "satisfied with the height of your
trimming and the price of $90.00 per tree was not what you originally quoted at $75.00 per tree."
(Id.)
Plaintiff testified that Defendant Faucett yelled at him about the trees, but that he
told Defendant Faucett that he had not sprayed any trees, and that he knew what he was doing.
(D.I. 46 at A322-23) Plaintiff explained to Defendant Faucett that the weather had been "cold,
warm, cold, warm" and the "[t]rees don't know exactly what they're doing. They will come
out[.]" (Id.) Plaintiff stated that these trees thereafter were "still standing and doing just fine."
(Id. at A322)
6

On November 1, 2007, a DTCC visitor e-mailed Defendant Faucett's assistant,
Jean Eaton, to report that he found his vehicle covered in grass and dirt after the grass had been
cut, and that this had also happened on previous occasions. (D.I. 43, ex. Q) The e-mail writer
stated that he was "thoroughly disgusted by this vendor[']s lack of respect for others['] property."
(Id.)

6

Miller" in which he noted that there were still "many weeds that needed to be sprayed or pulled
throughout the campus." (Id., ex. R) He also wrote that "Miller needs not to worry about past
performers and to treat this contract as coming in at a starting point and doing the best he can to
produce a showplace. No excuses will be acceptable as to non-performance of this contract on
Miller's behalf." (Id. (emphasis in original))
Defendant Schirmer also described deficiencies in Plaintiffs performance under the 2007
Contract. He noted that Plaintiff: (1) told him that drains clogged by leaves were not Plaintiffs
problem (although Defendant Schirmer acknowledged that Plaintiff did later take care of
removing leaves from these drains), (id., ex. J at 26, 28); (2) did not cut ornamental grasses
(because Plaintiff typically cut them in the Spring), leaving Defendant Schirmer to cut these
grasses himself in the Fall, (id. at 26-28);7 (3) did not remove weeds from a garden in the Child
Development Center on the Campus (and that Plaintiff later asserted that he did not know that
this was his responsibility), leaving Schirmer to do it, (id. at 27); (4) left flower beds full of grass,
(id. at 77); (5) did not take out mulch that "somebody" put in "over the years," which was six to
eight inches deep in places, and which caused a couple of big trees to rot, (id. at 156); and (6)
overall, "[ d]id not" meet the contract requirements, (id. at 77).
Defendant Schirmer took photographs of the landscaping at the Owens Campus, which
are in the record. (Id., ex. K; see also D.I. 46 at A506) The date on which he took these
photographs is not exactly clear from the record, however, as the photographs themselves are not

7

Plaintiff produced a document entitled "Tips and Timing for Cutting Back
Ornamental Grass" indicating that cool season ornamental grass can be trimmed back on the first
balmy, late Winter or early Spring day, and that warm season grasses can be cut back in late
Spring. (D.I. 45 at A039-41)
7

marked with any date. (D.I. 43, ex. K) 8 Defendant Schirmer testified that he took the
photographs "[i]n about the end of September, 1st of October. It was the end of[] September."
(D.I. 46 at A507) When asked what year this was, he responded, "2010, I think." (Id.) But
Defendant Schirmer also testified that the pictures were taken during the time that Plaintiff held
the Owens Campus contract (i.e., from February 1, 2007 through January 31, 2010). (Id.) When
asked ifhe took the pictures in September of the "last year when Miller's" had the contract,
Defendant Schirmer responded, "[t]hat's the only time I had anything to do with the contract,"
and then said that he took the photographs after he "took over as Superintendent of Grounds[.]"
(Id.) However, Defendant Schirmer became Acting Superintendent of Grounds in approximately

July 2010, and became Superintendent of Grounds approximately July 1, 2011. (Id. at A356,
A473-74) 9
As for Dr. Smith, she recalled "times during the [2007] contract when it was [her]
observation that the grass might be too tall or there might be weeds, like in the pavement or
around beds .... and I also observed there might be mulch needed in areas." (D.I. 43, ex.Lat
24) Dr. Smith complained to Defendant Faucett that "the grass was too tall, that the weeds
needed to be pulled in certain areas .... that we needed to edge something or to ... do the

Defendants allege that Defendant Schirmer took the pictures "of the substandard
work and outright 'neglect' in order to have proof of Plaintiff's poor performance[,]" (D.I. 43 at
6), and they cite to a particular page of Defendant Schirmer's deposition transcript in support,
(id. at 6 & n.44 (citing D.I. 43, ex. J at 140)). However, this page is missing from Defendants'
submission, (see D.I. 43, ex. J), and does not appear in subsequent appendixes submitted by the
parties, (D.I. 46, 48).
9

According to Defendant Schirmer, he did not take any photographs of Outdoor's
work. (D.I. 48, ex. G at 158)
8

manicuring of the lawn." (Id. at 27) 10
Defendant Booth, for his part, made one complaint to Plaintiff during his tenure, relating
to the distribution of mulch in plant and flower beds. (D.I. 43, ex.Mat 16) The mulch depth
should have been around two or three inches deep, but in certain beds the mulch was "dumped
with a bucket and just spread around" such that it was eight to ten inches thick. (Id.)
Defendants put into the record other evidence of problems with Plaintiff's work. For
example, Plaintiff's employees caused window damage on two occasions in mid-2007. (Id., ex.
O) Defendants also contend that Plaintiff neglected certain areas of the Campus, pointing to two
May 23, 2007 work orders directed to Mr. Hastings. (D.I. 43 at 7 (citing id., ex. P)) One of these
work orders notes weeds in certain locations and requests that a particular area be leveled out and
seeded; however, the document also notes that "[w]e are thrilled with the work so far." (Id., ex.
P) The second work order states that "[ o ]ur playground seems to be an area which the lawn
service continually forgets about. We have an enormous amount of clover [] and long grass. We
just wanted to make a note so that once our playground renovations are complete we get back on
the radar." (Id.)
Plaintiff disputes the notion that he struggled mightily under the Contract, citing to other
portions of the record. (D.I. 44 at 8-11) For example, Defendant Schirmer reported that Plaintiff

10

Defendants also claim in their opening brief that "[ w ]hen asked whether she was
'pleased with [Plaintiff's] performance' [Dr. Smith] answered: 'I would have to say that no,
overall, the inconsistences and the lack of attention to detail did not please me."' (D.1. 43 at 6)
However, Defendants failed to provide a citation for this testimony, (see id.), and the pages of
Dr. Smith's testimony that Defendants did submit did not include these statements, (see id., ex.
L). Defendants reiterate this testimony in their reply brief, this time providing a citation to page
82 of Dr. Smith's deposition. (D.1. 47 at 4 & n.60) Again, however, Defendants failed to include
this page in the Appendix that accompanied their reply brief. (D.1. 48, ex. L)

9

"did a very good job cutting grass. He was there every week. Did a great job." (D.I. 46 at A509)
During a chance meeting with Plaintiff in the spring of 2013, former Dean Johnson told Plaintiff
that, with regard to Plaintiffs work under the 2007 Contract, Plaintiff '"did a good job."' (Id. at
A541) Defendant Heam testified that he had not personally observed any issues with Plaintiff's
performance, (id. at A424-25), and Defendant Serman did not make any complaints about
Plaintiff's work, (id. at A452). Defendant Booth testified that he assumed that Plaintiff had the
Campus ready for the Gala, an important annual fundraiser, for all three years of his contract.

(Id. at A402-03) 11 Dr. Smith remembers Plaintiff asking her how the grounds looked at some
point during the period of the 2007 Contract (either at a Gala or right before a Gala), and she told
him that ''the grounds look great." (Id. at A526) 12

3.

2010 Contract
a.

Lead up to the bidding process and DTCC's solicitation of bids

Although the 2007 Contract was renewable for another two-year period if both parties
agreed, (D.I. 43, ex. I at D0321), Defendant Faucett made the decision not to renew the contract
and to instead re-bid it, (D.I. 46 at A361). Dr. Smith supported this decision as being in the ''best
interest" ofDTCC. (D.I. 43, ex.Lat 45) Plaintiff's contract ended on January 31, 2010. (D.I.

11

Defendant Faucett testified that in 2000 or 2001, a company known as Trugreen
held a landscaping contract for only 60 days, (D.I. 46 at A344), when Defendant Faucett made
the decision to terminate the contract because "[t]hey were not keeping up with the grounds
cutting, and ... they ... were not going to have the campus ready in time for the Gala," (id. at
A386; see also id. at A352.1 (agreeing that he decided to terminate Trugreen's contract because
their performance was not satisfactory)).
12

For his part, when asked if Plaintiff"performed the landscaping duties and ground
maintenance under his contract[,]" Defendant Faucett responded that Plaintiff "cut the grass, that
is correct." (Id. at A352.1) When asked the same question, Defendant Schirmer answered
"[y]eah." (Id. atA478.1-78.2)
10

46 at A103)
On February 26, 2010, DTCC posted an advertisement in The News Journal to announce
to the public the bidding process for the Owens Campus landscaping contract (the "2010
Contract"). (D.I. 43, ex.Fat D9) DTCC had decided not to utilize the lowest responsible bidder
process for the bidding. Instead, DTCC listed five evaluation factors (and the weight assigned to
each) on which bidding companies would be scored, and also added an interview component to
the selection process. (D.I. 43 at 7 (citing Del. Code tit. 29, § 6924); id., ex.Fat D9; D.I. 46 at
A421-22) The evaluation factors (and their respective weights) were the following: (1) price
(50%); (2) geographical location (5%); (3) capacity to meet requirements (15%); (4)
demonstrated ability and scope (15%); and (5) experience and reputation (15%). (D.I. 43, ex. F
at D9; D.I. 46 at A421) According to Defendant Serman, the advertisement stated that
"'[i]nterviews for selected firms will occur on March 21, 2010."' (D.I. 46 at A468; see also D.I.
43, ex. F) 13 Defendant Hearn testified that DTCC decided to use this new bidding process
because the committee wanted bidders to have to submit some "professional certifications[.]"
(D.I. 46 at A420)
Next, DTCC sent out a Request for Proposals ("RFP") for the 2010 Contract that
included a list of items that each bidder was required to furnish with its bid proposal. (Id. at
Al 10-31, A416-17) These items included (but were not limited to): (1) "[p]roof of [b]usiness
[l]icenses"; (2) "[p]roof of State pesticide applicator's license in the name of the business owner,
principal or key officer"; and (3) "[p]roof of certification as a landscape professional by the

13

The copy of the advertisement provided by Defendants is largely illegible. (D.I.

43,ex.F)
11

Delaware Nursery & Landscape Association ['DNLA'] or equivalent certification by a national
or state trade group recognized within the industry'' that is "in the name of the business owner,
principal or key officer." (Id. at Al 13; see also id. at A362, A395, A454, A483) A bidder's
failure to provide the listed items would result in the bidder's disqualification. (Id. at Al 12,
A417, A496, A529) The bidding company had the burden of providing the proper proofs. (Id. at
A496. l) It was the responsibility of the committee to make sure the bidders in fact met all of the
qualifications. (Id. at A530)

b.

Submission of bids

In March 2010, DTCC held a pre-bid meeting, which was attended by six companies.

(D.I. 43, ex.Cat 58) Thereafter, seven companies, including Miller's and Outdoor, submitted
bids for the 2010 Contract. (Id. at 77)
With respect to the requirement to provide proof of business licenses, according to
Defendant Serman, bidders for the 2010 Contract were required to submit proof of Delaware
State and Georgetown (Delaware) business licenses. (D.I. 46 at A461-62; cf id. at A362
(Defendant Faucett confirming that the RFP required bidders to submit "business licenses,
pluraI'') (emphasis added)) Outdoor submitted a 2010 Delaware State Business License, but not

a business license from the town of Georgetown. (Id. at A372; see also D.I. 48, ex. D) With
respect to the requirement for a pesticide applicator's license, Outdoor submitted a "copy of [a]
pesticide license number for Ken Anderson [who is] currently [] our turf manager in charge of all
pesticide application throughout the tri-state region." (D.I. 48, ex. D) And as for the required
proof of certification by the DNLA (or its equivalent), Outdoor noted that it attached to its
proposal "a copy of application for registration to [DNLA] as well as Delaware Grounds
12

Management Association." (Id.; see also D.I. 46 at A435) 14 With respect to the Delaware
Grounds Management Association, Outdoor attached a receipt for a March 18, 201 O $50.00
check, paid to the Delaware Grounds Management Association for an "[a]ssociation [f]ee" and a
print out from the entity's website indicating that to "[.j]oin," one should access the membership
form on the website and send a check in the amount of $50.00. (D.I. 48, ex. E)
Following the submission of proposals, certain companies were immediately eliminated,
either because they lacked the necessary equipment or because they lacked the required
certifications or business licenses. (D.I. 43, ex.Cat 127-28) The committee met on March 24,
2010 to score the remaining bidders and determine which companies they would interview. (Id.,
ex. S; D.I. 46 at A422) Pursuant to that process, another company was eliminated for having a
non-responsive proposal. (D.I. 43, ex. S) Outdoor was not disqualified at this stage, and it,
along with Miller's and Priority, were selected for interviews. (D.I. 46 at A433, A485-86)

c.

Interview component and feedback from references

On March 31, 2010, the committee conducted interviews with Plaintiff(on behalf of
Miller's), Outdoor, and Priority. (Id. at A485; D.I. 43, ex T) Of the representatives for the three
interviewing companies, Plaintiff was the only African-American; Outdoor and Priority's
representatives were Caucasian. (D.I. 46 at A331, A456, A481, A486-87)
According to Defendant Faucett, Outdoor and Priority gave "very good presentations"
with "outstanding pictures." (D.I. 43, ex. Cat 170) Both companies' references also gave "rave
reviews" and said the companies had done an "excellent job." (Id. at 173-74) Furthermore, in

14

For his part, Plaintiff submitted the necessary documents regarding these three
requirements. (D.1. 46 at A132-33, Al35-36, A363, A396, A436, A495, A503-04)
13

conjunction with its sealed proposal, Outdoor provided a list of fifty-one contracts held in the
years 2006 through 2008 of similar size and scope to the Owens Campus. (Id., ex. U)
For his presentation, Plaintiff provided the committee with pictures of his work at the
Owens Campus during the past three years. (Id., ex. C at 170) According to Defendant Serman,
Plaintiff"did not do very well in his presentation[.]" (D.I. 46 at A471) Additionally, according
to Defendant Faucett, one of Plaintiffs references said that Plaintiff had an "'[a]ttitude problem;
doesn't take criticism well; likes to argue."' (D.I. 43, ex. C at 174)

d.

Scoring of the applicants

Following the interviews, the Individual Defendants each separately scored the finalists,
taking into account the five factors/criteria referenced above, as well as the interview process.
(Id., ex. T) 15 The five committee member scores were added together to provide for a total score.
(Id.) Outdoor received the best score of 482 points, followed by Priority with a total of 439

points and Miller's with 399 points. (Id.)
With regard to the factor concerning geographic location, Defendant Schirmer and
Defendant Heam explained that this was an objective category with specific point values that did
not involve the use of discretion. (D.I. 46 at A429, A493) 16 Outdoor's bid proposal stated that it

15

Dr. Smith, for her part, understood that the committee was to score each of the
bidders based on certain objective criteria. (D.I. 46 at A531-32) However, Defendant Heam
acknowledged that "if you wanted to manipulate numbers [to favor the applicant that DTCC
preferred], you could" do so through the use of these five factors (with the exception of the factor
regarding geographic location), since the scoring process as to the factors involved the use of
some committee member discretion. (Id. at A426-27)
16

If a bidder's main office was in Sussex County (the county in Delaware in which
the Owens Campus was located), it was to receive 5 points; if its main office was elsewhere in
the State but it had a location in Sussex County, it was to receive 4 points; if the firm's main
office was out of state but it had a branch in Sussex County, it was to receive 3 points; if the

14

had two geographic office locations-one in Maryland and another on DuPont Boulevard in
Georgetown, Delaware. (Id. at Al52, A434) Defendant Schirmer recalled speaking with a
representative of the United States Postal Service, who said that the DuPont Boulevard address
was Outdoor's. (D.I. 48, ex. G at 108) But Defendant Faucett explained that DTCC eventually
called the DuPont Boulevard location; when they did so, they learned that Outdoor did not yet
have a permanent location in Georgetown. (D.I. 46 at A365-67) Instead, an equipment rental
company called Iron Source was located at the DuPont Boulevard address. (Id. at A367, A369,
A494) DTCC spoke to Kenny Adams, whose company, Melvin L. Joseph & Sons Construction
Company, owned the DuPont Boulevard location. (Id. at A365-66) Mr. Adams stated that he
and Rich Crouse (an Outdoor representative who interviewed with DTCC during the 2010
bidding process) were negotiating to enter into a partnership that would use the DuPont
Boulevard location to rent equipment. (Id.) Those negotiations were never successfully
completed, however, and Outdoor never opened an office at the DuPont Boulevard address or at
any other Georgetown location. (Id. at A365-68) All five members of the committee ultimately
gave Outdoor a score of 4 for the geographical location factor (that is, a score that, according to
DTCC's bidding rules, was intended to reflect that a company's main office was elsewhere in
Delaware, but that the company had an office location in Sussex County). (Id. at Al 53-57)
With respect to the "price" factor, Defendant Hearn viewed it as an objective factor, in
the sense that the highest score should go to the lowest bidder. (Id. at A428, A43 l) Defendant
Serman also acknowledged that "[i]f one company submitted the lower bid, they would get a

firm's main office was out of state but it had a branch office in Kent County or New Castle
County (Delaware's other two counties), it would receive 1 point; and if all of the firm's
locations were out of state, it was to receive zero points. (Id. at Al 53, A429-30)
15

higher score." (Id. at A465) Defendant Faucett interpreted it differently, seeing it as
"subjective" and involving a score that focused not only on the dollar figure of the bid, but also
on the quality that DTCC would receive for that price. (Id. at A389-90) And, in Defendant
Schirmer' s eyes, although the price factor was allocated the greatest amount of points, it was not
necessarily the "most important" factor. (Id. at A497)
Ultimately, Outdoor submitted the lowest bid, at $65,750 per year. (D.I. 43, ex.Cat 132;
see also id., ex. V) Miller's price was the second lowest, at $68,868 per year. (D.I. 46 at A490-

91) Priority's price was the highest of the three, at $82,000 per year. (Id. at A364) Defendant
Faucett gave Plaintiff a score of 43 for price, gave Priority a score of 45 and gave Outdoor a
score of 47. (Id. at A152.1-53) Defendant Schirmer gave both Plaintiff and Priority the same
score of 45 for the price factor; he gave Outdoor a 48. (Id. at A154, A491)
In the end, Plaintiffs bid was not successful. (D.I. 45 at A014 at if 70, A029 at if 28; D.I.

46 at A378.l) In April 2010, DTCC awarded the 2010 Contract to Outdoor. (D.I. 46 at A374,
A378.l, A441-42) The contract commenced on April 1, 2010 and was to remain in effect until
March 31, 2013, although it contained an option for further renewal for a period of up to two
years, upon the mutual written consent of Outdoor and DTCC. (Id. at Al 58)

e.

Outdoor's performance

During Outdoor' s 2010 Contract, Defendant Schirmer testified that there were
"[a]bsolutely" weeds on campus. (Id. at A492) He also acknowledged that just as with
Plaintiffs work, there were times during the 2010 Contract period when leaves would
accumulate on Campus, and he would have to call Outdoor and ask it to remove the leaves.
(Id. at A502) And Outdoor did "the same thing that [Plaintiff] was doing" with respect to
16

deficiencies regarding grass cutting in and around tax ditches. (Id. at AS00-01) Like Plaintiff,
Outdoor also broke some windows on Campus. (Id. at A499)

4.

2013 Contract

Near the conclusion of Outdoor's contract, Defendant Schirmer was in favor ofrebidding
it. (Id. at A504-05) Meanwhile, Defendant Faucett wrote in a September 2012 e-mail that he
was "pleased with [Outdoor's] work" and was going to ask Outdoor if it was interested in a
contract extension. (Id. at A309, A379) Ultimately, however, Outdoor stopped showing up to
the Owens Campus by January 2013 (two months in advance of the March 2013 contract
completion date); as a result, Defendant Faucett did not offer Outdoor the option to renew the
contract. (Id. at A378.2-80)
Instead, DTCC awarded the new contract ("the 2013 Contract") to Priority. (D.I. 43, ex.
Cat 162; D.I. 46 at A400) No bidding took place for the 2013 Contract. (D.I. 46 at A380)
DTCC elected to hire Priority because Priority had a contract approved by the State of Delaware;
Priority was therefore considered a State vendor, such that DTCC could hire it without having to
conduct a bidding process. (D.I. 43, ex.Cat 162-63; see also D.I. 46 at A443, A533.2) Dr.
Smith approved the decision to hire Priority. (D.I. 46 at A533.2)
Defendant Faucett testified that in 2013, the Owens Campus still did not "look like a
showplace[.]" (Id. at A391) Indeed, he has never seen any landscaper achieve his goal of having
the Campus look like a showplace. (Id. at A391-93)

B.

Procedural Background

On February 22, 2012, Plaintiff filed his Complaint, asserting claims pursuant to 42
U.S.C. §§ 1981 and 1983 with respect to: (1) DTCC's non-renewal ofhis 2007 Contract; and (2)
17

DTCC's selection of Outdoor for the 2010 Contract. (D.I. 1) On May 3, 2012, this case was
referred to the Court by Judge Sue L. Robinson to "conduct all proceedings, including alternative
dispute resolution; hear and determine all motions[], through and including the pretrial
conference." (D .I. 6)
Defendants filed a motion to dismiss all claims, pursuant to Federal Rules of Civil
Procedure 12(b)(l) and 12(b)(6). (D.I. 4) The Court thereafter issued a Report and
Recommendation regarding the motion to dismiss, which recommended: (1) grant of the motion
to dismiss for failure to state a claim under Rule 12(b)(6), with respect to Plaintiff's claims
relating to the 2007 Contract; (2) denial of the motion with respect to Plaintiffs claims relating
to the 2010 Contract, on the grounds that the motion sufficiently alleged plausible claims
pursuant to Rule 12(b)(6); and (3) denial of the Rule 12(b)(l) motion as to Defendants'
arguments regarding Eleventh Amendment immunity. (D.I. 14) 17 The District Court later
adopted the Report and Recommendation in its entirety, over Defendants' objection. (D.I. 15,
28)
The case proceeded through completion of discovery, after which Defendants filed the
instant Motion. (D.I. 42) Defendants' Motion was fully briefed as of December 23, 2013, (D.I.
47), and on July 15, 2014, the Court heard oral argument regarding the Motion, (D.I. 53
(hereinafter, "Tr.")).

II.

STANDARD OF REVIEW

17

Although the Court recommended that the denial of Plaintiffs claims with regard
to the 2007 Contract be without prejudice to Plaintiffs ability to amend, (D.I. 14 at 38), Plaintiff
ultimately determined to proceed only on his claims relating to the 2010 Contract, (D.I. 44 at 1
n.l).
18

A grant of summary judgment is appropriate where "the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter oflaw."
Fed. R. Civ. P. 56(a). The moving party bears the burden of demonstrating the absence of a
genuine issue of material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 585 n.10 (1986). If the moving party meets this burden, the nonmovant must then
"come forward with specific facts showing that there is a genuine issue for trial." Id. at 587
(internal quotation marks omitted). If the nonmoving party fails to make a sufficient showing on
an essential element of its case with respect to which it has the burden of proof, the moving party
is entitled to judgment as a matter oflaw. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
During this process, the Court will "draw all reasonable inferences in favor of the nonmoving
party, and it may not make credibility determinations or weigh the evidence." Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
However, in order to defeat a motion for summary judgment, the nonmoving party must
"do more than simply show that there is some metaphysical doubt as to the material facts."
Matsushita, 475 U.S. at 586-87; see also Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d
Cir. 2005) (party opposing summary judgment "must present more than just bare assertions,
conclusory allegations or suspicions to show the existence of a genuine issue") (internal
quotation marks and citation omitted). The "mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). Facts that could alter
the outcome are "material," and a factual dispute is genuine only where "the evidence is such that

19

a reasonable jury could return a verdict for the nonmoving party." Id. at 248. "If the evidence is
merely colorable, or is not significantly probative, summary judgment may be granted." Id. at
249-50 (internal citations omitted). A party asserting that a fact cannot be--or, alternatively,
is-genuinely disputed must support the assertion either by citing to "particular parts of materials
in the record, including depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials"; or by "showing that the materials cited do not
establish the absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(l)(A) & (B).

III.

DISCUSSION
In seeking summary judgment, Defendants make two arguments. First, Defendants assert

that the Eleventh Amendment of the United States Constitution immunizes DTCC and the
Individual Defendants in their official capacities from liability. (D.I. 43 at 2, 9-16) Second,
Defendants argue that Plaintiff has failed to adduce sufficient evidence to withstand summary
judgment as to his racial discrimination claims. (Id. at 2, 16-20) The Court will address both
arguments in tum.
A.

Eleventh Amendment Immunity

Defendants first argue that DTCC and the Individual Defendants in their official capacity
are immune from suit, because DTCC is an arm of the state that is entitled to sovereign immunity
pursuant to the Eleventh Amendment (and that the Individual Defendants are thus state officials
who are also immunized from liability for official capacity claims). (D.I. 43 at 10; Tr. at 42-43)
The Eleventh Amendment provides:
20

The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.
U.S. Const. amend. XL "While the text of the Amendment does not specifically bar lawsuits
against a State by its own citizens, the 'ultimate guarantee of the Eleventh Amendment is that
nonconsenting States may not be sued by private individuals in federal courts."' Paoli v.

Delaware, Civil Action No. 06-462 (GMS), 2007 WL 4437219, at *2 (D. Del. Dec. 18, 2007)
(quoting Ed. ofTrs. of Univ. ofAla. v. Garrett, 531U.S.356, 363 (2001)). It is also well-settled
that "Eleventh Amendment immunity extends to entities that are considered arms of the state."

Paoli, 2007 WL 4437219, at *4; see also Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 42930 (1997). In other words, where the state is essentially the "real party in interest[,]" the
Eleventh Amendment will operate to bar the suit even if the state is not named as a party to the
action. Fitchikv. NJ Transit Rail Operations, Inc., 873 F.2d 655, 659 (3d Cir. 1989).

InFitchikv. New Jersey Transit Rail Operations, Inc., 873 F.2d 655 (3d Cir. 1989), the
United States Court of Appeals for the Third Circuit adopted a three-factor test to determine
whether "a suit against an entity is actually a suit against the state itselfT,]" thus implicating
Eleventh Amendment immunity. Fitchik, 873 F .2d at 659. Those factors are:
(1) Whether the money that would pay the judgment would come
from the state ...
(2) The status of the agency under state law ... ; and
(3) What degree of autonomy the agency has.

Id.; see also Paoli, 2007 WL 4437219, at *4. All of the factors are to be considered equally, with
none of them having predominant importance. Kuhn Constr. Co. v. Diamond State Port Corp.,
21

Civ. No. 10-637-SLR, 2011 WL 1576691, at *4 (D. Del. Apr. 26, 2011) (citing cases). That said,
the Supreme Court of the United States has instructed that "in close cases, where 'indicators of
immunity point in different directions,' [] the principal rationale behind the Eleventh
Amendment-protection of the sovereignty of states through 'the prevention of federal-court
judgments that must be paid out of a State's treasury,'[]- should 'remain [a court's] prime
guide."' Febres v. Camden Bd. ofEduc., 445 F.3d 227, 229-30 (3d Cir. 2006) (quoting Hess v.
Port Auth. Trans-Hudson Corp., 513 U.S. 30, 47-48, 52 (1994)). The party asserting Eleventh
Amendment immunity bears the burden of production and persuasion with respect to factual
questions that arise in the analysis. Id. at 229; Christy v. Pa. Tpk. Comm 'n, 54 F.3d 1140, 1144
(3d Cir. 1995).
The Court previously considered this issue in resolving Defendants' Motion to Dismiss.
See Miller v. Del. Technical & Cmty. Coll., Civ. Action No. 12-216-SLR-CJB, 2013 WL
1832072, at *5-12 (D. Del. May 1, 2013) (hereinafter "Miller I"). 18 After analyzing each of the
three Fitchik factors, the Court concluded that "at this stage of the litigation, there is insufficient
evidence in the record for a finding that DTCC is entitled to immunity pursuant to the Eleventh
Amendment." Miller 1, 2013 WL 1832072, at * 12. With respect to the Fitchik factors, the Court
found that"[ w]hile the second factor, DTCC's status under State law, weighs slightly in favor of
immunity, the remaining two factors, the source of the money for a judgment and the entity's

18

In setting out its decision in this Report and Recommendation, the Court will
assume familiarity with the substance of its decision in Miller I. The Court also incorporates by
reference into this Report and Recommendation its analysis of the Fitchik factors as set out in
Miller I. (See D.I. 43 at 9 n.73; D.I. 44 at 14 n. 58) Below, the Court will discuss how its
analysis in Miller I would or would not be altered by the arguments raised by the parties with
regard to the instant Motion.

22

autonomy, weigh against a finding of immunity (the latter slightly so). Id. After objection from
Defendants, the District Court adopted the Court's recommendation, explaining that "although
the arguments contained within [D]efendants' objections with respect to Eleventh Amendment
Immunity may ultimately prove to be meritorious, [D]efendants presented [the District Court]
with facts not of record before Judge Burke (and facts which may be disputable, requiring vetting
through discovery)." Miller v. Del. Technical & Cmty. Coll., Civ. No. 12-216-SLR/CJB, 2013
WL 5314871, at *1 (D. Del. Sept. 16, 2013).
The Court will now again analyze each of the Fitchik factors in order.
1.

Source of Money for a Judgment

The first Fitchik factor-whether the money that would pay the judgment would come
from the State-includes consideration of"whether payment will come from the state's treasury,
whether the [entity] has the money to satisfy the judgment, and whether the sovereign has
immunized itself from responsibility for the [entity's] debts." Fitchik, 873 F.2d at 659. When it
comes to the first Fitchik factor, "it is the [state's] legal obligation to satisfy the [entity's] debts
that carries the most weight[.]" Lang v. Pa. Higher Educ. Assistance Agency, -Fed. App'x-,
2015 WL 1787050, at *2 n.5 (3d Cir. Apr. 21, 2015); see also Cooper v. Se. Pa. Transp. Auth.,
548 F.3d 296, 303 (3rd Cir. 2008) (noting that the "crux" of this analysis is "whether the state
treasury is legally responsible for the payment of a judgment against the [entity]") (internal
quotation marks and citation omitted).
a.

Whether payment will come from the State's treasury

As to the first sub-factor-whether payment will come from the state's treasury-the
Court explained in Miller I that the key inquiry here is whether, after issuing funds to an entity,
23

the State "retains ownership or control of the funds [it] appropriated to" DTCC. Febres, 445
F.3d at 227 (noting that otherwise, "once deposited in [an entity's] accounts, these funds belong
to the [entity, such that if] used to pay a judgment, we can say only that the judgment was
satisfied with the [entity's] monies"). 19 And as the Third Circuit has set out, establishing control
alone is not sufficient; rather, "state control is only significant to the funding analysis where such
control indicates state ownership of the funds." Christy, 54 F.3d at 1145-46 (citingFitchik, 873
F.2d at 661); see also Fitchik, 873 F.2d at 661 n.4 (noting that state control over an entity's funds
was only significant in this context as it relates to whether the money at issue "was actually the
state's money--either because the state had an obligation to replace it, because there were
insufficient funds in the account and the state would be obligated to pay any judgment directly, or
because the state generally treated the funds as its own") (citing Blake v. Kline, 612 F.2d 718,

19

The Court assumes, for purposes of its analysis ofthis sub-factor, that (as
Defendants assert in their opening and reply briefs) "the State provides roughly fifty percent of
the College's funding[.]" (D.I. 47 at 6 & n.77; see also D.I. 43 at 11 & n.79) Defendants'
counsel explained that State-provided funds and the remainder of the funds DTCC raises or
obtains "are commingled[,]" and that Defendants did not believe that there exists "an accounting
that could be done to say that[] this is a tuition dollar versus a State of Delaware funded dollar in
a bank account." (Tr. at 144-45)
However, it is worth noting that even as to the issue of what percentage ofDTCC's total
yearly funding is composed of State-provided funds, the record is wanting. Defendants cite to
only one document (a bill of the Delaware House of Representatives) in support of the "roughly
fifty percent" claim. But that document simply indicates that for the fiscal year ending June 30,
2012, the State provided $67,417,800 in funding to the College. H.R. 190, 146th Gen. Assemb.,
at 54 (Del. 2011), available at
http://legis.delaware.gov/LIS/lis 146.nsf/vwLegislation/RB+ 190/$ file/legis. pdf? open; see also
(D.I. 44 at 16). No record support (e.g., by way of additional documentation, or an affidavit) is
provided to indicate what percentage of the College's budget was made up of this award in the
fiscal year.
24

723-24 (3d Cir. 1979)). 20 Put differently, "state control over an entity's ability to obtain funds is
inadequate to demonstrate state ownership of the funds where the state is not shown to have a
financial interest that would be directly and adversely affected by the diminution of the funds in
question." Christy, 54 F.3d at 1146.
Defendants make a number of statements in an attempt to demonstrate State ownership of
DTCC funds that would be used to pay any judgment. (See D.I. 43 at 11 (Defendants asserting
that the State has a "strict oversight and possessory interest in College funds" that "once
deposited ... are not entirely the College's monies")) The Court summarizes these statements
below, and why they are not ultimately persuasive.
First, Defendants assert that DTCC is required to accede to certain State-related financial
procedures, including that the College: "is required to adopt the State's accounting system," to
"follow the marquee accounting document submission deadlines," and "file agency banking
reports with the State Treasurer." (Id. (citations omitted)) However, Defendants fail to explain
how DTCC's accession to these procedural requirements speak to how the State "retains
ownership or control of funds appropriated to" DTCC. Febres, 445 F.3d at 234.
Second, Defendants explain that DTCC "is required to ... submit financial
documentation regarding all relevant transactions and purchase orders to the [State Department
of Finance ('DOF')] for approval and year-end budgetary consideration." (D.I. 43 at 11 (citing

id., ex. Y); see also Tr. at 16 (Defendants' counsel stating that "if there were a settlement or
some other reason why we would be paying money to resolve this litigation, [DTCC] would have

20

If the facts relating to the degree of the state's control over an entity's funds do
not demonstrate state ownership of the funds in question, those facts may still have relevance to
the third Fitchik factor regarding autonomy. Christy, 54 F.3d at 1146.

25

to issue a purchase order to the State of Delaware Treasurer to authorize the check to be issued"))
In support, Defendants cite to a July 2010 State Executive Department Office of Management
and Budget Memorandum, directed generally to "Fiscal Officers[;]" this memorandum purports
to "define the procedures to be utilized by agencies in preparing and processing purchase orders
and requisitions[.]" (D.I. 43, ex. Y) The memorandum notes that "[a]gencies are prohibited
from creating any indebtedness or incurring any obligation for personal services, work or labor or
for property, materials or supplies except by written, printed or electronic requisition or order."
(Id.) Yet there is nothing else in the record to provide any additional context regarding this
memorandum, such as whether it in fact applies to DTCC, and, even if it does, whether the
memorandum's requirements would apply to DTCC's expenditure of funds to satisfy a legal
judgment in this case. Without any such context, the Court cannot conclude from the text of the

memorandum alone that, as to payment of any judgment here, DTCC would have to ( 1) submit a
purchase order to the DOF and (2) obtain approval from DOF in order to make payment.
Third, Defendants similarly contend that DTCC "cannot engage in any transaction or
payment without the express consent of the State. Without State approval, the College does not
have the power to disburse monies appropriated by the legislature nor monies collected from
other outside sources .... all funds ... are deposited into accounts controlled by the State[.]"
(D.I. 47 at 6 (citing D.I. 48, ex. Q); see also D.I. 43 at 11 ("To further protect State assets, the
College must seek certification from the State Treasurer in order to conduct transactions" and
"maintains jointly held bank accounts with the State of Delaware") (citing D .I. 43, ex. Z)) In
support, Defendants cite to a "Certification of State of Delaware Acting Director of Treasury
Service" and a "Resolution to Sign Negotiable Instruments"--documents relating to several
26

DTCC accounts at PNC Bank. Those documents reveal that "only the [State] Treasurer has the
authority to open and close accounts" on behalf of DTCC-but they then go on to provide DTCC

employees with the authority to, inter alia, sign checks and other negotiable instruments (without
requiring them to get State approval each time they do so). (D.I. 43, ex. Z; D.I. 48, ex. Q at
D1266; see also Tr. at 14 (Defendants' counsel acknowledging that these documents amount to
"a resolution allowing the College to sign negotiable instruments"); id. at 15-17) Thus, if
anything, these documents seem to suggest the opposite of what Defendants have alleged-that
DTCC does not have to seek State approval before engaging in any particular financial
transaction, such as deciding whether or not to make payment on a judgment in this case. 21
Fourth, Defendants claim that "all [DTCC] funds ... [are] considered State assets." (D.I.
47 at 6 (citing D.I. 48, ex. S)) In support, Defendants cite to a DOF memorandum titled "Annual
Capital Assets Inventory" directed generally to "[a]ll Department [of Finance] and School Fiscal
Officers"; the memorandum explains that reporting an inventory of capital assets (i.e., land,
buildings) to the State is necessary "to maintain an unqualified audit opinion, which directly
impacts the State's Bond rating." (D.I. 48, ex. S) However, Defendants provide no further
context as to how this inventory requirement relating to capital assets indicates how DTCC's
funds are "considered State assets" or how that should affect the key ownership-of-funds inquiry
at issue here. 22

21

At oral argument, Defendants' counsel was unable to cite to a portion of these
documents that supports the statements made in Defendants' briefs. (See Tr. at 31-33)
22

During oral argument, Defendants' counsel also asserted that "technically'' the
State Treasurer could "come[] in and when it wants to just take[] money out of [DTCC's bank
accounts] and pay[] off other debt[,]" though counsel noted that Defendants do not believe that
the State "ever would" or ever has done this. (Tr. at 145) If DTCC funds could be re27

Fifth, Defendants contend that: (1) the "liabilities of the College are considered liabilities
of the State for audit purposes"; (2) therefore "an adverse judgment would be treated as a State
liability"; and (3) "[a]ny relevant insurance policy is purchased using funds controlled by the
State; and, for that matter, any item purchased is done so with monies that the State considers its
own." (D.I. 47 at 6 (citing D.I. 48, ex. T)) In support of all of these assertions, Defendants cite
only to a DTCC document entitled "Financial Information Delaware Technical Community
College[.]" (Id.) This document does state that DTCC "is a State of Delaware agency; therefore,
the College's audits are included with those of all state agencies." (D.1. 48, ex. T) But when
asked during oral argument how this document otherwise supports the assertions above,
Defendants' counsel responded: "[W]hat this means is that when the State auditor comes in and
audits all of the State agencies, including [DTCC], it includes the College's assets and liabilities
among the global assets and liabilities of the State of Delaware on that one report." (Tr. at 1819) Had the text of the cited one-page document more clearly stated or suggested that "the
College's assets and liabilities [are included] among the global assets and liabilities of the State
of Delaware" the document would be more persuasive. Yet the language used in the document is
vague. And in the absence of further evidence of record (and thus, further clarity) on this point,
the Court cannot conclude that the exhibit speaks persuasively to the issue of State ownership of
DTCC's funds. Cf Nat'! R.R. Passenger Corp. v. Com. ofPa. Public Util. Comm 'n, No. CIV.

appropriated by the State, such a fact would be relevant to the ownership of funds inquiry
discussed in this sub-section. Cf Mitchell v. L.A. Cmty. Coll. Dist., 861 F.2d 198, 201 (9th Cir.
1988) (granting Eleventh Amendment immunity to defendant Los Angeles Community College
District where that district's "budget is made up of funds received from the state's general fund
pursuant to a state calculated formula" and some fees charged by the district's colleges "go to the
[S]tate"). However, no such evidence is of record.
28

A. 86-5357, 1997 WL 597963, at *7 (E.D. Pa. Sept. 15, 1997) (noting that a state's "authority to
review and approve [a state] [c]ommission's budget" fell short of indicating "state ownership of
the funds").
And sixth, at oral argument, the Court requested that Defendants identify "the best piece
of record evidence that substantiates that" if DTCC wishes to purchase something or otherwise
spend money, it must get State approval for each specific request. (Tr. at 29) Defendants'
counsel ultimately pointed to a memorandum from the DOF to "[a]ll Department and School
Fiscal Officers" enclosing a "Tax Exempt Certificate" form for the State of Delaware. (Id. at 139
(citing D.I. 43, ex. BB)) The memorandum explains that the Certificate should be provided to
vendors upon request. (D.I. 43, ex. BB) The Certificate states that:
In accordance with Internal Revenue Code Section 4253(1), no tax
shall be imposed under Section 4251 upon any payment received for
services or facilities furnished to the government of any State ....
This certifies that such exemption is allowable by law for the reason
that such services are being and will be furnished to and charges
will be paid from the funds of the State of Delaware.
(Id.) This document is focused solely on payments for a very particularized group of "services":

certain "communications services."23 It could be interpreted to mean that any time DTCC pays
for these particular services, the State considers such payment as being paid from the State's
"funds[.]" However, it does not support the idea that DTCC must get State approval before

23

Internal Revenue Code Section 4251 imposes a tax "on amounts paid for
communications services[,]" which is defined as "(A) local telephone service; (B) toll telephone
service; and (C) teletypewriter exchange service." 26 U.S.C. § 4251. Internal Revenue Code
Section 4253 establishes several exemptions to this tax, including an exemption for state and
local governments, and subsection (1) requires persons claiming such an exemption to "provide to
the provider of communications services a statement ... certifying that such person is entitled to
such exemption." 26 U.S.C. §§ 4253(a)-(l).
29

entering into any such transaction. And perhaps more importantly, the document does not
indicate that the State Treasurer would exercise ownership or control over funds used to pay a

judgment in this lawsuit. Indeed, none of Defendants' proffered evidence clearly demonstrates
this, nor have Defendants furnished affidavits that would bear this out. See, e.g., Nannay v.

Rowan Coll., 101 F. Supp. 2d 272, 284 (D.N.J. 2000) (applying the Fitchik factors to conclude
that the defendant college was entitled to Eleventh Amendment immunity where the State
defendants submitted, inter alia, "an affidavit from the Vice President of Administration and
Finance of Rowan University to the effect that any judgment rendered against Rowan University
would be paid directly from the State treasury through the State Tort Claims Fund .... [and] also
stat[ing] that Rowan University has set aside no funds to meet its liabilities for injury and
damages claims, such as those asserted in this lawsuit") (citation omitted).
In sum, Defendants have failed to sufficiently demonstrate that payment will come from
the State's treasury, that is, that any funds used to pay the judgment are State-owned funds.

b.

Whether DTCC has the money to satisfy the judgment

As to the second sub-factor, Defendants have not pointed to record evidence suggesting
that DTCC does not have the money to satisfy a judgment. See Christy, 54 F .3d at 1146 (stating
that "the [agency's] failure to provide pertinent information regarding its ability, or lack thereof,
to satisfy a potential judgment against it simply means that the [agency] has failed to sustain its
burden of proof on this important question"). As noted above, the record evidence suggests that
DTCC has a budget, or a pool of funding, derived in part from State-provided funds and in part
from other monies. The record indicates that DTCC utilizes those budgeted monies to pay for its
various expenditures (payments that Defendants have been unable to establish are controlled or

30

directed by the State).
Beyond that, it is worth noting that there is also some record evidence that any judgment
may actually be paid not by DTCC directly, but instead in part or in whole by an insurance
company. As Plaintiff explains, (D.I. 44 at 15 (citing D.I. 46 at A088)), in their initial
disclosures, Defendants made reference to the existence of an insurance policy that is relevant to
the claims at issue. Defendants did so by citing to Federal Rule of Civil Procedure
26(a)(l)(A)(iv)-an acknowledgment that the insurance policy in question "may be liable to
satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments
made to satisfy the judgment." Fed. R. Civ. P. 26(a)(l)(A)(iv). During discovery, Defendants in
fact produced a copy of this insurance policy, one that has a limit of $1 million per loss, and that
appears to cover both DTCC and its employees. (D .I. 44 at 15 (citing D .I. 46 at A089-99)) It
follows that it is at least possible that monies used to satisfy the judgment could come from this
insurer. (See Tr. at 77-80) And there is no indication in the record that the State (as opposed to
DTCC) pays the premiums to fund that insurance policy. (Tr. at 26-28, 84); cf Fitchik, 873 F.2d
at 661 (noting that where an entity was self-insured, in a manner that would allow it to pay some
of the claims against it with money it has set aside to cover such liabilities, this suggests the
entity "need not ask the state or anyone else for help").

c.

Whether the State has immunized itself from responsibility for
DTCC's debts

As for the third sub-factor-whether the State has immunized itself from responsibility
for DTCC's debts-it appears undisputed that the State has not taken this step. (D.I. 43 at 12)24

24

Though again, this is an area where an affidavit or some other similar record
evidence would have helped to confirm this point.
31

It is worth remembering, however, that the key question with regard to the first Fitchik factor is
whether DTCC has established that the State is ''under any affirmative obligation to pay
[DTCC's] unassumed liabilities in the first place." Christy, 54 F.3d at 1147.
In speaking to this "affirmative obligation" issue, Defendants argue that "the State

considers the College to be a component of primary government." (D.I. 43 at 12) DTCC's
enabling statute provides that DTCC "'shall be a state agency,"' Defendants explain, and as such,
DTCC "is subject to the prohibition contained in Article VIII, Section 3 of the Delaware
Constitution that provides, in relevant part, 'no money shall be borrowed or debt created by or on
behalf of the State but pursuant to an Act of the General Assembly."' (Id. (quoting Del. Code tit.
14, § 9102 & Del. Const. art. VIII,§ 3); see also D.I. 47 at 6) Again, here the invoking of this
provision of the State Constitution, without more, just does not speak direct} y enough to the issue
in question-ifDTCC had to pay a judgment and could not, would the State consider itself to be
under an affirmative obligation to pay that debt? If the State does in fact feel that it would be
under such an obligation, there must have been myriad ways that this could have been made
clearer on the record here. But it was not.

d.

Conclusion

In Miller 1, with regard to the first Fitchik factor, the Court concluded that on the record

before it, "DTCC has failed to establish that: (1) payment for a judgment against DTCC will
come from the State's treasury (as opposed to funds controlled by DTCC itself); (2) DTCC lacks
financial resources to satisfy any judgment; and (3) Delaware would be under any obligation to
satisfy any such judgment against DTCC." Miller I, 2013 WL 1832072, at *9. The present
record has not meaningfully changed. What evidence there is suggests that DTCC's funds that
32

would be used to pay a judgment are kept in a DTCC-segregated account, are under the control
ofDTCC employees, and that those monies are used at DTCC's discretion to carry out the
school's educational purposes. See Lang, 2015 WL 1787050, at *2. Defendants have provided
insufficient evidence to support the conclusion that the monies used to pay a judgment here
would come from the State, or that the State is in any way legally obligated to pay such a
judgment. In the end, the Court cannot rely on Defendants' insufficiently supported assertions to
the contrary. Cf Griner v. Se. Cmty. Coll., 95 F. Supp. 2d 1054, 1059, 1062 (D. Neb. 2000)
(declining to extend Eleventh Amendment immunity to community college where, inter alia,
"[t]here is neither evidentiary nor statutory evidence that the state of Nebraska would necessarily
be liable for payment of a judgment rendered against [the college] in this case"). Based on the
evidence before the Court, the first Fitchik factor continues to weigh squarely in Plaintiffs favor.

2.

DTCC's Status under State Law

The second Fitchik factor involves a determination of the agency's status under state law.
This factor requires the Court to consider "how state law treats the agency generally, whether the
entity is separately incorporated, whether the agency can sue or be sued in its own right, and
whether it is immune from state taxation[.]" Fitchik, 873 F.2d at 659. In Miller I, the Court
found that only certain of these sub-factors were addressed in the record. As to the sub-factors
that were addressed, though they "d[id] not all point clearly in one direction[,]" those that were
"before the Court with sufficient clarity ... weigh[ ed] slightly in favor of a finding of
immunity[.]" Miller I, 2013 WL 1832072, at *10.
Defendants now address two of the sub-factors that were unaddressed in Miller I:
DTCC's incorporation and whether DTCC is immune from state taxation. Id. Defendants assert
33

that the evidence they have put forward establishes that ''the College has not been accorded a
separate corporate existence" and that it "has the same tax identification number as the State of
Delaware" such that it is "immune from state and federal income tax." (D.I. 43 at 12-13 & n.97
(citing D.I. 43, ex. BB); D.I. 47 at 7 (citing D.I. 48, ex. U); Tr. at 94) To support these
statements, Defendants cite exclusively to the memorandum from the DOF to "[a]ll Department
and School Fiscal Officers" enclosing the "Tax Exempt Certificate" referenced above. These
documents, on their face, indicate only that the Departments and Schools that received the
documents are exempt from paying taxes on certain communications services; they do not clearly
state that DTCC has "no separate corporate existence" and that it has the "same tax identification
number as the State." While the documents hint that Defendants' assertions may be correct,
again, this is an area where fuller record evidence would have been helpful.
As to the sub-factor addressing how state law treats the agency generally, in Miller I, the
majority of the evidence put forward weighed in favor of immunity. Miller I, 2013 WL 1832072,
at *10 (noting that DTCC is listed as a state agency in State materials and in State law, and that
State law also refers to DTCC employees as State employees). Defendants now further
supplement the record by pointing out that DTCC's Board of Trustees has been empowered to
exercise the power of eminent domain, (D.1. 47 at 7 & n.84), a fact cited in other cases as
providing indication that a state considers an entity an arm of the state. Fitchik, 873 F.2d at 663
(noting, however, that such power "does not mean that [the entity] is necessarily entitled to
[E]leventh [A]mendment immunity" since counties, municipalities, and privately owned public
utilities also held the eminent domain power).
The remaining sub-factor is whether an entity can sue or be sued in its own right. This

34

sub-factor redounds in Plaintiff's favor, as DTCC can sue and be sued pursuant to State law.
Miller 1, 2013 WL 1832072, at *10 (citing Del. Code tit. 14, § 9105(d)(4)).
In sum, since Miller I-where the record as to this second Fitchik factor was such that the

Court could only conclude that the evidence weighed "slightly'' in favor of a finding of
immunity-Defendants have added to that record. The additional evidence Defendants have
provided certainly could have been fuller or more clear in places. But taken together, it suggests
that, in the main, the State's law looks at DTCC as being closely connected to the State. Thus,
the Court concludes that the record now demonstrates that this Fitchik factor should squarely
favor a finding of immunity.

3.

DTCC's Autonomy

The third and final Fitchik factor requires the Court to determine what degree of
autonomy the entity has. Fitchik, 873 F.2d at 659. In Miller 1, the Court explained that while the
composition ofDTCC's Board of Trustees ("Board") is controlled by Delaware's Governor, and
while State law provided certain financial constraints under which DTCC must function, DTCC
also has the ability to act independently in a great many ways. Miller 1, 2013 WL 1832072, at
* 11. These included that DTCC has the ability to freely contract, to sue, to buy and sell land, to
hire employees and fix their salaries and terms of employment and to make its own rules and
regulations. Id. Accordingly, the Court concluded that this factor weighed "slightly against a
finding of immunity." Id. at *11-12 (citing cases).
Here, Defendants reiterate several facts that were addressed in the briefing on their
Motion to Dismiss, such as: (1) the fact that the Governor appoints the members ofDTCC's
Board and sets the Board's compensation, terms and qualifications; (2) the State requirement that

35

DTCC provide financial aid to needy students, and (3) the State's establishment of the salary
scale applicable to DTCC employees. (D.I. 43 at 14-15); see Miller I, 2013 WL 1832072, at *1011. Defendants also put forward new allegations meant to demonstrate DTCC's lack of
autonomy, including that: (1) the State determines DTCC's "purpose and object"; (2) DTCC is
not authorized to "borrow money in its own name or to raise funds through issuance of bonds";
(3) DTCC has "no authority to create employment positions" but is required to receive approval
from the State; (4) DTCC needs State approval if it uses State funds for course materials; (5)
DTCC is audited annually by the State; (6) the State Treasurer must certify all DTCC banking
transactions; and (7) DTCC is required to use the State credit card operations and State credit
card merchants. (D.I. 43 at 14-16)
Yet again, some of these new assertions are not clearly supported by the record. For
example:
•

Defendants' citation in support of the allegation that DTCC cannot
borrow money in its own name or raise funds through the issuance
ofbonds is to DTCC's enabling statute. (Id. at 14 n.112 (citing Del.
Code tit. 14, § 9105)) While the enabling statute may not expressly
grant DTCC the power to borrow money and raise funds through
the issuance of bonds, that does not in and of itself mean that DTCC
cannot do these things. The Court notes that the enabling statute
does give DTCC the power to accept, from any source, "grants or
contributions of money or property (conditional or otherwise) which
the Board may use for or in aid of any of its purposes[,]" the power
to "enter into contracts" and the power to "exercise all other powers
not inconsistent with" the enabling statute that may be "reasonably
necessary" to operate the College. Del. Code. tit. 14, §§
9105(d)(10), (11) & (15). At a minimum, the text of the enabling
statute does not clearly demonstrate that DTCC is without power to
borrow money or raise funds through the issuance of bonds. If
anything (and without further context provided by Defendants), the
above-cited portions of the enabling statute suggest that such
powers would not be "inconsistent" with DTCC's enumerated

36

powers and would be "reasonably necessary'' to operate the school.
•

The cited evidence does not clearly demonstrate that DTCC lacks
the "authority to create employment positions." The only
documents cited in support of this statement are a 2013 e-mail
string and memorandum. (D.I. 43 at 15 n.115-16) These
documents indicate that in 2013, the State approved the College's
request for over two million dollars in federal funds for a redesign
ofDTCC's Nursing Program-a proposal that appears to have
included a request to fund 14 new employment positions. (Id., exs.
DD & EE) In other words, at most, this evidence relates to one very
particularized instance in which State approval to fund certain
employment positions was obtained. It comes nowhere close to
supporting the blanket assertion that State approval is necessary for
the creation of any DTCC employment position. (Id. )25

•

As for course material approval, the cited record evidence only
demonstrates that "any used equipment purchase over $10,000"
requires State approval. (Id., ex. FF)

•

And, as discussed above, the record does not bear out that the State
has to "certify" all banking transactions-rather, the cited document
grants authority to DTCC employees to conduct such transactions.
(D.I. 43 at 15 & n.118 (citing id., ex. AA))

That leaves the assertions that: (1) the State establishes DTCC's overall "purpose and
object"; and (2) and DTCC is subject to state audits and is required to use the State credit card
operations and its merchants. As to the former, it is true that, pursuant to Del. Code tit. 14, §
9104, the State has set out the College's "purpose": "to operate or make available public
institutions of learning for persons who have graduated from high school or who are unable to
attend public high schools." However, the Court cannot reasonably infer that the State's

25

Meanwhile, it is worth noting that DTCC's enabling statute grants the Board the
power to "appoint or employ such other officers of the institutions, agents and employees as may
be required to carry out this chapter and to fix and determine their qualifications, duties,
compensation, terms of office or employment and all other terms and conditions of
employment[.]" Del. Code tit. 14, § 9105(d)(7).
37

articulation of this kind of broad, overarching goal is an act that itself causes significant
interference with DTCC's day-to-day activities, especially where DTCC's enabling statute gives
its Board the right to "determine the educational program of the institutions[.]" Del. Code tit. 14,

§ 9105(d)(5); see also Miller I, 2013 WL 1832072, at *11 (noting that whether the entity at issue
exercised significant autonomy in its day-to-day operations is important to the calculus here)
(citing cases). As to the latter, the State does annually audit DTCC, (D.I. 43 at 15 (citing id., ex.
GG)), and this does suggest some limits on the College's autonomy. See Lang, 2015 WL
1787050, at *2; see also Skehan v. State Sys. ofHigher Educ., 815 F.2d 244, 248 (3d Cir. 1987).
So too does the fact that DTCC uses the State's credit card operations. (D.I. 43 at 16 n.119
(citing id., ex. HH))
Summing up, Defendants' showing with respect to this Fitchik factor is not much
changed from what it was at the Motion to Dismiss stage. It is clear that the State does exert
some operational and financial constraints under which DTCC must operate. But as Plaintiff
stresses, (D.I. 44 at 17; see also Miller I, 2013 WL 1832072, at *11), DTCC also possesses the
many significant powers listed above. These powers give DTCC a real "measure of autonomy"
and the ability to take many important steps without threat of veto by the Governor or the need to
seek the legislature's prior approval. Cooper, 548 F.3d at 300; see also Bolden v. Se. Pa. Transp.
Auth., 953 F.2d 807, 820 (3d Cir. 1991) (noting that the fact that an entity's actions are "not
subject to gubernatorial veto" was a factor suggesting the entity's autonomy).
The evidence (and the case law) suggest that the decision as to this factor is a close call.
See, e.g., Lang, 2015 WL 1787050, at *2-3 (finding, at the motion to dismiss stage, that the
autonomy question was "close[,]" but that the evidence did not "weigh in favor of immunity"
38

where the entity in question was controlled by a fairly autonomous board that had the ability to
freely take many types of independent actions, but where the board was composed entirely of
individuals chosen by state officials, and where the entity was required to submit to certain state
procedural requirements); Peters v. Del. River Port Auth. ofPa. & NJ., 16 F.3d 1346, 1351-52
(3d Cir. 1994) (finding the factor to weigh "slightly" in favor of according immunity, where the
entity maintained the ability to take many important actions on its own, and had its own
corporate existence, but where its board was entirely made up of state appointees). In the end,
the Court concludes that the significant powers that DTCC's Board may exercise, combined with
the lack of any State veto power over the Board's decision-making authority, is enough to
indicate that this factor should continue to lean slightly in Plaintiff's favor or, at most, be neutral.

Cf Kuhn, 2011 WL 1576691, at *6 (finding that the autonomy factor weighed against immunity,
although the board of the entity in question was controlled exclusively by the State in terms of
composition and method of appointment, because the entity, through its enabling statute, was
able to adopt its own by-laws, engage personnel, enter into contracts in its own name, borrow
funds in its own name, and purchase and develop property, all free of threat of gubernatorial
veto).

4.

Weighing of Fitchik Factors

Having considered each of the three Fitchik factors, the Court concludes that Defendants
have failed to meet their burden to show that DTCC is an arm of the state that is subject to
immunity under the Eleventh Amendment. While the second factor, DTCC's status under State
law, weighs in favor of immunity, the first factor, the source of the money for a judgment, weighs
against that conclusion. And the third factor, regarding the entity's autonomy, either weighs
39

slightly against a finding of immunity or is, at most, neutral. To be sure, this is a close case. But
even "in close cases, where 'indicators of immunity point in different directions,"' the "'prime
guide"' for a Court should be whether the money for a judgment will be paid out of the State's
treasury. Febres, 445 F.3d at 229-30 (quoting Hess v. Port Auth. Trans-Hudson Corp., 513 U.S.
30, 47-48, 52 (1994)). And here, as noted above, that factor redounds in Plaintiffs favor.
The Court also notes that the issue was close enough that had each of Defendants'
assertions in their briefing been adequately supported by the record, the outcome might have
been different. Yet although this was Defendants' second opportunity to make a clear and
specific record on the question of sovereign immunity, the evidentiary support for their
statements was often wanting. And so, for the reasons set out above, the Court's ultimate
recommendation as to this issue must remain unchanged.

B.

Sufficiency of Evidence

Plaintiff asserts that Defendants' choice to award the 2010 Contract to Outdoor was
discriminatory. He claims that Defendants thus violated his rights under 42 U.S.C. § 1981
("Section 1981 ") and deprived him of equal protection of the law as guaranteed by the
Fourteenth Amendment, in violation of 42 U.S.C. § 1983 ("Section 1983"). (D.I. 1) Defendants
respond that Plaintiff failed to establish sufficient evidence to make out these claims. (D.I. 43 at
16-20; D.I. 47 at 8-10) For the reasons discussed below, the Court disagrees with Defendants
and recommends denial of the Motion on these grounds.
Section 1981 provides that "[a]ll persons ... shall have the same right ... to make and
enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws
and proceedings ... as is enjoyed by white citizens[.]" 42 U.S.C. § 1981. Section 1983 provides
40

a remedy for deprivations of rights established elsewhere in the Constitution or federal laws.
Estate ofSmith v. Marasco, 318 F .3d 497, 505 (3d Cir. 2003). In order to prevail under both
statutes, the plaintiff must prove ''purposeful discrimination." Anderson v. Wachovia Mortg.
Corp., 621 F .3d 261, 268 (3d Cir. 2010) (stating that "[ t]he burden of a [Section] 1981 plaintiff is
to prove purposeful discrimination") (internal quotation marks and citation omitted); Chambers
ex rel. Chambers v. Sch. Dist. ofPhi/a. Bd. ofEduc., 587 F .3d 176, 196 (3d Cir. 2009) ("To
bring a successful claim under [Section] 1983 for a denial of equal protection, plaintiffs must
prove the existence of purposeful discrimination.") (internal quotation marks and citation
omitted).
In the absence of direct evidence of discrimination, a plaintiff may prove race

discrimination through the familiar burden-shifting analysis developed by the United States
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Anderson, 621
F.3d at 270; Smith v. Walgreen Co., 964 F. Supp. 2d 338, 344 (D. Del. 2013). This burdenshifting framework applies to both Plaintiffs Section 1981 and 1983 claims, and the Court will
therefore consider them together. McKenna v. Pac. Rail Serv., 32 F.3d 820, 825 n.3 (3d Cir.
1994); Chandler v. City ofNewark, No. CIV. A. 99-668-GMS, 2001WL902209, at *3 (D. Del.
July 31, 2001).
Under the McDonnell Douglas framework: ( 1) a plaintiff must first set forth sufficient
evidence to establish a prima facie case of race discrimination; (2) the defendant must then set
forth a legitimate non-discriminatory reason for its actions; and, if it does (3) the plaintiff must
then raise a material factual dispute regarding whether the defendant's proffered reasons were a
pretext for discrimination. Ugorji v. NJ. Envtl. Infrastructure Trust, 529 F. App'x 145, 150-51
41

(3d Cir. 2013); Anderson, 621 F.3d at 270-71.
1.

Plaintiff's Prima Facie Case

To establish aprimafacie case in this context, a plaintiff must show that: "(1) [he] is a
member of a protected class; (2) [he] submitted an application or bid which met the requirements
for an available contract; (3) [his] application or bid was ultimately rejected; and (4) the contract
was ultimately awarded to an individual who is not a member of a protected class." Allstate
Transp. Co., Inc. v. Se. Pa. Transp. Auth., No. CIV. A. 97-1482, 2000 WL 329015, at *7-8 (E.D.

Pa. Mar. 27, 2000) (adopting the primafacie standard set out for public bidding cases in Brown
v. Am. Honda Motor Co., 939 F.2d 946, 949 (11th Cir. 1991)). 26 A plaintiff must establish his
primafacie case by a preponderance of the evidence. Smith, 964 F. Supp. 2d at 344.
In their briefing, Defendants do not challenge the first three elements of Plaintiff's prima

facie case (that Plaintiff is an African-American, submitted an appropriate bid, and had that bid

rejected). They argue, however, that Plaintiff did not sufficiently establish the fourth element.

26

The Third Circuit has not yet had occasion to determine the proper elements of a
prima facie case in the public bidding context. In such cases, other courts have modified the
McDonnell Douglas framework for a prima facie case, using two different formulations. One is
the standard set out by the United States Court of Appeals for the Eleventh Circuit in Brown v.
Am. Honda Motor Co., 939 F.2d 946 (11th Cir. 1991), articulated above. Another is that set by
the United States Court of Appeals for the First Circuit, which established a more rigorous
standard in T & S Serv. Assoc., Inc. v. Crenson, 666 F.2d 722, 725 (1st Cir. 1981). Specifically,
the T & S Serv. Court required the plaintiff to show that: (1) the plaintiff is a minority-owned
firm; (2) the plaintiff's bid met the specifications required of those competing for the contract;
(3) the plaintiff's bid was significantly more advantageous to the defendant than the bid actually
awarded; and (4) the defendant selected another contractor. T & S Serv., 666 F.2d at 725. Here,
the Court agrees with the Allstate decision, cited above, in finding that the "Brown elements
represent the appropriate standard" as "[t]he rigorous T & S standard is not consistent with the
spirit of the McDonnell Douglas structure in which the presentation of a prima facie case
presents only a light evidentiary hurdle for the plaintiff." Allstate, 2000 WL 329015, at *7. And
indeed, both parties here have pointed to the Brown standard as the appropriate framework to
use. (See D.I. 44 at 18; D.I. 47 at 8; Tr. at 61)
42

(D.I. 47 at 8; Tr. at 61-66; see also D.I. 43 at 20) That is, Defendants contend that Plaintiffhas
"submit[ted] nothing more than guesswork" regarding the racial status of Outdoor's ownership.
(D.I. 47 at 8)
With respect to this element, Plaintiff states that at the time DTCC awarded the 2010
Contract to Outdoor, Outdoor's "owner and president was Jeffrey Thompson, a Caucasian."
(D.I. 44 at 3) In support, Plaintiff primarily points to the following testimonial evidence of
record, (id.):
(1)

Plaintiff's testimony, (D.I. 46 at A334):
Counsel:
Plaintiff:

(2)

Defendant Faucett's testimony, (id. at A374-75, A378.l):
Counsel:

Faucett:
Counsel:
Faucett:
Counsel:

Faucett:
Counsel:
Faucett:
(3)

Who is the owner of Outdoor Design?
I believe that's Mr. Jeffrey Thompson, who is
Caucasian.

And at that time [April 2010], Outdoor Design
Group's owner and president was Jeffrey Thompson;
is that correct?
That's my recollection, yes.
And isn't it true that Jeffrey Thompson is a
Caucasian?
That's my recollection, yes ....
You told us that [at the time the 2010 Contract was
awarded] your recollection is the owner was Jeffrey
Thompson, correct?
Correct.
So isn't it true that the 2010 to 2013 contract
ultimately was awarded to a non-African-American?
Correct.

Defendant Schirmer's testimony, (id. at A481-82):
Counsel:
Schirmer:
Counsel:
Schirmer:

And whose names are under "Outdoor Design"?
Looks like Jeff and Rick.
And who's Jeff?
I'm not sure what his title is or who he is.
43

Counsel:
Schirmer:
Counsel:
Schirmer:
Counsel:
Schirmer:
Counsel:
Schirmer:
Counsel:
Schirmer:

\VasthatJeffThompson?
Don't know.
\\Tho is "Rick"?
\V ell, I'm assuming that's Rich Crouse.
\\That is your understanding of his role at Outdoor
Design?
One of the owners.
Jeff is a Caucasian male; is that correct?
Yes, again, he looks Caucasian. I don't know his
family tree, either, so ...
Rick Crouse looks Caucasian as well?
The same thing .... The same answer; he looks to
be Caucasian, but don't know his family tree. I do
not know.

This testimony above supports the inference that Outdoor was owned by Mr. Thompson
and/or Mr. Crouse, and that both men are Caucasian. 27 Two pieces of documentary evidence
further bolster that conclusion. The first is the 2010 Contract itself, in which a "Vendor"
signature line titled "Jeffrey L. Thompson, President" is struck through, and the document is
signed instead for Outdoor by Mr. Crouse, who lists his title as "Member[.]" (D.I. 46 at A166)
The second is a set of handwritten notes of the pre-selection interview with Outdoor, in which
Outdoor is listed as being represented by "Jeff & Rick" (which appears to be a reference to Mr.
Thompson and Mr. Crouse). (Id. at A167) 28
"The burden of establishing a prima facie case 'is not intended to be onerous."'

27

It is true that during Defendant Faucett's deposition, Defendants' counsel told him
that Outdoor was a limited liability company and established that Defendant Faucett did not
understand the ownership structure of such a company, such that Defendant Faucett therefore did
not "have any way of knowing who the actual owners of Outdoor [are]." (D.I. 48, ex.Cat 154;
see also D.I. 47 at 1 & n.6) But that does not change Defendant Faucett's previous testimony
that, based on the information he had prior to the deposition, he believed Outdoor's owner to be
Mr. Thompson.
28

For their part, Defendants have not pointed to any record evidence suggesting that
there were, in fact, other Outdoor owners or that any such persons may have been non-Caucasian.
44

Romdhani v. Exxon Mobil Corp., Civil Action No. 07-715-JJF, 2011 WL 722849, at *12 (D. Del.
Feb. 23, 2011) (quoting Sempier v. Johnson & Higgins, 45 F.3d 724, 728 (3d Cir. 1995)). In the
end, the Court is unconvinced that Plaintiff need make a more robust showing than he has as to
the fourth element. The best record evidence is that Outdoor had one, or perhaps two owners in
2010, and that both were of a race outside of the protected class. Viewing the evidence in the
light most favorable to Plaintiff, as it must at this stage, the Court finds that Plaintiff has
sufficiently established each element of his primafacie case of racial discrimination.

2.

Defendant's Legitimate, Non-Discriminatory Reason

Under McDonnell Douglas, the burden next shifts to Defendants. McDonnell Douglas,
411 U.S. at 802. This "relatively light burden" is satisfied by introducing evidence which, taken
as true, would permit the conclusion that there was a nondiscriminatory reason for their
unfavorable action. Fuentes v. Pers/de, 32 F.3d 759, 763 (3d Cir. 1994); see also Luta v.
Delaware, 847 F. Supp. 2d 683, 687 (D. Del. 2012). The Defendants "need not prove that the
tendered reason actually motivated [their] behavior, as throughout this burden-shifting paradigm
the ultimate burden of proving intentional discrimination always rests with the plaintiff."
Fuentes, 32 F.3d at 763.
Here, Defendants explain that DTCC "had countless, nondiscriminatory reasons for
awarding the 2010 Contract to Outdoor[,]" (D.I. 43 at 19), and proceed to list no fewer than 23
such reasons, (D .I. 4 7 at 9-10). These reasons include just about any problem that any Individual
Defendant (or Dr. Smith) had with Plaintiffs prior work during the 2007 Contract term, and just
about any deficiency any Individual Defendant saw in Plaintiffs 2010 Contract bid (as compared
to Outdoor's bid). (Id.)
45

For purposes of this Motion, at least, both parties agree that these 23 "reasons" may be
grouped into five broad categories (the "five categories"): (1) Outdoor's bid was superior and
contained all necessary components; (2) Outdoor bid a more competitive price; (3) Outdoor's
interview presentation was very good; (4) Plaintiff demonstrated a pattern of argumentative and
difficult behavior; and (5) Plaintiff demonstrated poor performance under the 2007 Contract and
an inability to maintain the Campus as a "showplace." (D.I. 44 at 3; Tr. at 117; see also Tr. at
146-47); see also Abramson v. William Paterson Coll. ofNJ., 260 F.3d 265, 282-83 (3d Cir.
2001) (analyzing a host of proffered legitimate, non-discriminatory reasons by grouping them
into "two categories"). These five categories certainly constitute legitimate and nondiscriminatory reasons for the award of the 2010 Contract to Outdoor instead of Plaintiff. And
Plaintiff does not appear to dispute that this step of the McDonnell Douglas test has been
satisfied. (See D.I. 44 at 3, 18-19 (setting out Defendants' explanations for their adverse action
and thereafter proceeding to the pretext inquiry)) Accordingly, Defendants have met their burden
here.

3.

Pretext

Because Defendants have satisfied their burden of production, the burden shifts back to
Plaintiff to establish, by a preponderance of the evidence, that Defendants' reasons for their
actions are pretext for discrimination. Fuentes, 32 F.3d at 763. In order to show pretext,
Plaintiff must "point to some evidence, direct or circumstantial, from which a factfinder could
reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that
an invidious discriminatory reason was more likely than not a motivating or determinative cause
of the employer's action." Id. at 764. In this Circuit, this two-pronged test is known as the
46

Fuentes test. Luta, 847 F. Supp. 2d at 688.
Under prong one of the Fuentes test:
[T]he plaintiff cannot simply show that the [defendant's] decision
was wrong or mistaken, since the factual dispute at issue is whether
discriminatory animus motivated the [defendant], not whether the
[defendant] is wise, shrewd, prudent, or competent. ... Rather, the
non-moving plaintiff must demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in
the [defendant's] proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them unworthy of
credence ... and hence infer that the [defendant] did not act for the
asserted non-discriminatory reasons.

Fuentes, 32 F.3d at 765 (internal quotation marks, brackets and citations omitted) (emphasis in
original); see also Luta, 847 F. Supp. 2d at 688. In other words, "a plaintiff may satisfy this
standard by demonstrating, through admissible evidence, that the [defendant's] reason was not
merely wrong, but that it was 'so plainly wrong that it cannot have been the [defendant's] real
reason."' Jones, 198 F.3d at 413 (quoting Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101,
1109 (3d Cir. 1997)); see also Luta, 847 F. Supp. 2d at 688. Cases analyzed under this prong
survive summary judgment "when the [defendant's] stated reason for termination is so
implausible that a reasonable fact-finder could not believe it." Luta, 847 F. Supp. 2d at 688
(internal quotation marks and citation omitted).
In a case such as this one, where the defendant has presented a "bagful of legitimate

reasons," a plaintiff is not required to offer evidence to discredit every one of those reasons;
instead he must "cast substantial doubt on a fair number of them[.]" Fuentes, 32 F.3d at 764 n.7;

see also Tomasso v. Boeing Co., 445 F.3d 702, 707 (3d Cir. 2006); (D.I. 44 at 18 n.68; Tr. at 69
(Defendants' counsel agreeing that this is the proper form of analysis)). This is because

47

discrediting a "fair number" of the movant's explanations "may impede the [defendant's]
credibility seriously enough so that a factfinder may rationally disbelieve the remaining proffered
reasons, even if no evidence undermining those remaining rationales in particular is available."
Fuentes, 32 F.3d at 764 n.7.
Here, the Court concludes that Plaintiff has cast substantial doubt on four of Defendants'
five categories of legitimate reasons (all but the quality of Outdoor' s interview presentation).
The Court will discuss its conclusion as to these four categories in more detail below.

a.

Outdoor's bid was superior and contained all necessary
components

Among their "bagful" of reasons, Defendants proffer that "Outdoor submitted a far
superior bid package .... [that] without any legitimate dispute[] contained all necessary
components." (D.I. 43 at 19) Plaintiff responds by arguing that Outdoor "did not ... meet the
minimum qualifications for the job[,]" as its bid "lacked at least three of the job's minimum
requirements: local business license, pesticide license, and DNLA certification." (D.I. 44 at 1,
3-5) Drawing all reasonable inferences in Plaintiff's favor, for the reasons discussed below, a
reasonable jury could agree with Plaintiff and find that Defendants' arguments to the contrary are
unworthy of credence.

(1)

Local business license

The College's RFP for the 2010 Contract required each bidder to furnish with his bid
"[p]roof of [b ]usiness [l]icenses." (D.I. 46 at Al 13) And, as described above, while Outdoor's
bid package included a Delaware Business License, it did not include a business license from the
town of Georgetown. (D.I. 44 at 4; see also D.I. 46 at A372; D.I. 48, ex. D) With respect to this

48

missing component, Defendants assert the following:
Bidders for the 2010 Contract did not have to submit a Town of
Georgetown business license. As was explained by each of the
Individual Defendants, the bidders were only required to produce
"the State of Delaware business license[;]" in regards to the
Georgetown license: "[i]fthey obtained that, that was on them. If
they did not, they were under the peril of the Town of Georgetown
if they did not get that license." [citing D.I. 48, ex. C (Defendant
Faucett's deposition) at 39] Faucett further testified: the [RFP]
"did not require [submission of the Town of Georgetown business
license]. The town required it." [citing id. at 41] Thus, it was not
a component of the RFP.
(D.I. 47 at 1; see also Tr. at 71)
Defendants paint an inaccurate picture of the testimony in three respects. First, in support
of their statement that "each" of the Individual Defendants testified that bidders only had to
submit a State business license, Defendants provide but a single citation (to the deposition of
Defendant Faucett). If the other four committee members testified to such a fact, the Court is left
with no direction regarding the location of that testimony in the record. Second, and to the
contrary, at least one committee member, Defendant Serman, explicitly testified that bidders
were in fact required to submit proof of a Georgetown business license (along with a Delaware
State business license). (D.I. 44 at 4 (citing D.I. 46 at A461-62); cf D.I. 46 at A362 (Defendant
Faucett confirming that the RFP stated that each bidder shall furnish proof of "business licenses,
plural")) And third, Defendant Faucett's testimony (to which Defendants cite above) relates
specifically to Plaintiff's 2007 Contract, not the 2010 Contract bidding process. (See D.I. 48, ex.
Cat 38-41 (Defendant Faucett discussing the business licenses that Plaintiff was required to have
pursuant to his 2007 Contract))
In sum, there is evidence of record to indicate that bidders were required to submit a town
49

of Georgetown business license, and it is undisputed that Outdoor did not do so. Defendants'
arguments and citations in support of the idea that no such license was required are both
inapposite and inaccurate.

(2)

Pesticide license

In response to Plaintiffs assertion that "Outdoor never proved it had the proper pesticide
license[,]" (D.I. 44 at 4), Defendants state:
From Outdoor's bid package: "Attached is a copy of pesticide
license number for Ken Anderson. He currently is our turf
manager in charge of all pesticide applications throughout the tristate region." Outdoor had the required pesticide applicator's
license.
(D.I. 47 at 1; see also Tr. at 71) However, Defendants ignore the RFP's requirement that the
pesticide applicator's license be "in the name of the business owner, principal or key officer."
(D.I. 46 at Al 13 (emphasis added); see also id. at A362, A395, A483) Outdoor's bid package
describes Anderson as a "turf manager"-not as a business owner, principal or officer. (D.I. 48,
ex. D) Indeed, when asked whether Outdoor had submitted the required pesticide applicator's
license, Defendant Schirmer testified that Outdoor "didn't prove it, to me" that it had done so.
(D.I. 46 at A496) Accordingly, on this record, a factfinder could reasonably determine that
Outdoor clearly failed to present the committee with the required pesticide license.
(3)

DNLA certification or its equivalent

In response to Plaintiffs contention that Outdoor did not tum in proof of certification by
the DNLA or equivalent certification, (D.I. 44 at 4), Defendants argue that:
The RFP only required "proof of certification as a landscape
professional by the [DNLA] or equivalent certification." Similar to
Plaintiff, Outdoor provided proof of membership in Delaware
50

Ground[ s] Management Association, which was an accepted
equivalent association.
(D.I. 4 7 at 1-2)
It is not disputed that at the time of the 2010 Contract decision, while Outdoor had
applied for DNLA certification, (D.I. 46 at A435), it had not received such certification.
Defendants' argument that Outdoor had provided sufficient proof of an "equivalent" certification
is based on two pieces of evidence: (1) Outdoor's submission of a receipt for a March 18, 2010
$50.00 check, paid to the Delaware Grounds Management Association for an "[a]ssociation
[f]ee"; and (2) testimony by Defendant Serman regarding the Delaware Grounds Management
Association. (D.I. 47 at 2 & n.13 (citing to D.I. 48, ex. E & ex.Fat 46))29 What is lacking here,
though, is any evidence indicating that paying an association fee to the Delaware Grounds
Management Association is the "equivalent" to obtaining "certification as a landscape
professional" from the DNLA. Indeed, what record evidence there is suggests that it was not.
On a DTCC bid proposal checklist regarding the Outdoor application, although every
other bid requirement was checked off, the requirement for "[p]roof of [p]rofessional
[l]andscaper [c]ertification" was unchecked. (D.I. 46 at Al 49) 30 And with regard to Defendant
Serman's testimony (again, the only testimony that Defendants point to in asserting that Outdoor

29

Although the name of the organization appears to be the "Delaware Grounds
Management Association[,]" (D.I. 48, ex. E), in Defendant Serman's deposition, he refers to the
organization as the "Delaware Grounds Maintenance Association[,]" (id., ex.Fat 46). It does
not appear disputed that Mr. Serman was in fact speaking about the "Delaware Grounds
Management Association" in the relevant portion of his deposition, and the Court will assume so
hereafter.
30

Instead, there is a handwritten question mark next to that entry, followed by the
handwritten phrase: "[c]opies of membership applications DE Nurserymen[.]" (D.I. 46 at A149)
51

met this requirement), Defendant Serman was asked "you didn't see proof of an [DNLA-]
equivalent certification as a landscape professional [issued by] some other national or state trade
group recognized within the industry from Outdoor[] in 2010; correct?" to which Defendant
Serman responded, "[t]hat's correct." (Id. at A467-68) In view of this evidence, a reasonable
jury could believe that Outdoor failed to submit sufficient proof of certification by DNLA or an
equivalent certification. 31

(4)

Conclusion

In sum, Plaintiff has presented sufficient evidence to "cast substantial doubt" on

Defendants' assertion that they awarded the 2010 Contract to Outdoor over Plaintiff because,

inter alia, Outdoor "submitted a far superior bid package .... contain[ing] all necessary
components." A reasonable jury could simply disbelieve Defendants' reason, finding this
explanation so plainly wrong that it is unworthy of credence.

b.

Outdoor bid a more competitive price

Another of Defendants' reasons for selecting Outdoor over Plaintiff is that Outdoor
"offered a more competitive price." (D.I. 43 at 19) It is undisputed that Outdoor submitted the
lowest bid of the three companies that were interviewed-Outdoor's bid was $65,750 per year,
Plaintiffs bid was $68,868 per year and Priority's bid came in as the highest at $82,000 per year.

31

It is worth noting at this point, as Plaintiff does, (D.I. 44 at 4 n.14), that Defendant
Heam explained that his ''understanding" of why DTCC made the switch from the open bidding
process utilized for the 2007 Contract to the sealed bidding process for the 2010 Contract was
because DTCC "wanted to have some professional certifications within the RFP," (D.I. 46 at
A420). And yet, as to three of the licenses/certifications that DTCC ultimately required of
bidders (i.e., the requisite proof of professional landscaper certification, the requisite proof of
state pesticide applicator's license and the requisite proof of business licenses), a reasonable
factfinder could conclude that the winning bidder (Outdoor) failed to provide sufficient proof of
all three.

52

(D.I. 43, ex.Cat 132; D.I. 46 at A364, A490-91) However, evidence proffered by Plaintiff
regarding the pricing criterion is so contradictory that it casts real doubt on whether Defendants
followed their own rules regarding implementation of the criterion. And that evidence (along
with the other evidence referred to in Section III.B.3) in tum casts sufficient doubt on whether
Defendants actually relied on this criterion at all as a reason why Outdoor was selected.
As an initial matter, the record contains contradictory evidence concerning whether the
scoring criteria, as a whole, was intended to be subjective or objective. Defendants' briefing
characterizes the scoring as the former. (See D.I. 43 at 8 (stating that "the Individual Defendants
separately scored the contractors using the subjective criterion stated above" (emphasis added));
D.I. 47 at 5 & n.65 ("[T]he grading criteria was not objective. Each committee member testified
that grading required use of their discretion and that countless factors may influence a bidder's
score.") (citing solely to Defendant Schirmer's deposition)) Underscoring this, Defendant Hearn
acknowledged that "I guess if you wanted to manipulate numbers [to allow DTCC to select the
applicant that it wanted], you could[.]" (D.I. 46 at A426-27) Meanwhile, Dr. Smith testified that
it was her understanding that the committee would score each applicant based on objective
criteria. (D.I. 44 at 5 (citing D.I. 46 at A532) (Dr. Smith stating that "[a]ll [ofDTCC's]
processes are objective and according to guidelines"))
As Plaintiff sets out, (D.I. 44 at 6-7 & n.25), the inconsistency in whether scoring was
supposed to be objective or subjective permeated the application of the pricing criterion. At least
two committee members viewed this category as objective-in the sense that the lowest bidder
should get the highest score. (D.I. 46 at A428 (Defendant Heam), A431 (same), A465
(Defendant Serman)) Defendant Faucett, on the other hand, viewed the pricing criterion as
53

subjective--one in which an applicant was scored not simply on the amount of their bid, but on
the quality DTCC would get for that bid amount. (Id. at A389-90) And Defendant Schirmer, for
his part, did not even view the pricing criterion as the "most heavily weighted" of the five
categories-even though it was explicitly described as such (worth 50% of an applicant's total
score) in the News Journal advertisement. (Id. at A497; see, e.g., id. at Al 52.1) Even though
Priority's bid was higher than Plaintiffs by over $13,000 per year, Defendant Schirmer gave
Priority and Plaintiff the same score as to the pricing criterion, while Defendant Faucett gave
Priority a higher score than Plaintiff on price. (Id. at Al52.l, A152.2, A491)
All ofthis evidence could suggest to a reasonable fact finder that Defendants' application
of the pricing criteria was internally inconsistent, even contradictory. 32 As such (and in light of
the other evidence regarding pretext set out herein), a reasonable fact finder could disbelieve that
Defendants had any uniform view that Outdoor's lower price bid was a reason that motivated the
award of the 2010 Contract.

c.

Plaintiff demonstrated a pattern of bad or difficult behavior

32

Defendants' application of the "[g]eographical [l]ocation" criterion similarly
suggests not only that (1) Defendants did not follow their own rules in the 2010 Contract
application process; but (2) they failed to do so to such a degree that it casts doubt on the idea
that Defendants uniformly relied on any one of these criterion in deciding that Outdoor should be
awarded the 2010 Contract. (D.I. 44 at 6) All five committee members gave Outdoor scores of
"4" for geographical location, a score that was supposed to reflect that an entity's "[m ]ain office
[was] in state [and that the entity also had a] location in Sussex County." (D.I. 46 at A153-57)
And yet the undisputed evidence appears to be that: (1) Outdoor's bid proposal stated that
Outdoor had two geographic office locations-one out-of-state in Maryland and another in
Georgetown; and (2) when Defendants attempted to confirm this, they learned that Outdoor did
not, in fact, yet have a permanent location in Georgetown. (Id. at A152, A365-69, A434, A494;
D.I. 48, ex. G at 108) Under the objective scoring system listed on DTCC's Interview Form, this
should have resulted in Outdoor receiving a "O" for "[g]eographical [l]ocation[,]" not a "4." (D.I.
46 at A153-57)
54

Another of the reasons Defendants cite for not awarding the 2010 Contract to Plaintiff is
Plaintiffs behavior. Defendants contend that Plaintiff was: (1) "argumentative and
confrontational;" (2) a "bully" and "abusive and loud" to the degree of causing a DTCC
employee to break down and cry; and (3) argumentative when asked to pay for repairs to several
windows that he broke. (D.I. 47 at 9-10 (internal quotation marks and citation omitted))
Drawing all reasonable inferences in Plaintiffs favor, he has cast substantial doubt on
this reason by pointing out contradictory, inconsistent testimony from Defendants, as well as by
citing testimony describing Plaintiffs behavior in a positive light. For example:
•

In describing the myriad ways in which Plaintiff "struggled
mightily'' under the 2007 Contract, Defendants state that Defendant
Booth described Plaintiff as '"confrontational and argumentative."'
(D.I. 43 at 5-6 & n.49 (quoting id., ex.Mat 97)) But as Plaintiff
notes, Defendant Booth was unable to provide a single example of
Plaintiff acting in this way, and went on to describe his own
interactions with Plaintiff as "not aggressive and not real
confrontational." (D.1. 44 at 8 n.30 (citing D.I. 46 at A406))

•

Defendant Booth's testimony, in addition to being inconsistent in
this regard, also appears to contradict Defendant Faucett's
testimony. In explaining how Plaintiff had a "difficult personality''
Defendant Faucett cited the fact that "[Defendant] 'Booth had a
confrontation with [Plaintiff]."' (D .I. 43 at 6 (quoting id., ex. C at
172)) Yet as noted above, Defendant Booth could not cite any
example of such a confrontation in his testimony.

•

In similar fashion, although Defendants rely on Dr. Smith's
testimony, wherein she responded "yes" (without any elaboration)
when asked if Plaintiff was ever argumentative and ever defensive,
(D.I. 43 at 6 (citing id., ex.Lat 20)), Dr. Smith also stated "yes"
when asked if Plaintiff was respectful and professional, (D .I. 44 at 8
(citing D.I. 46 at A524)).

•

Defendants also highlight Defendant Faucett's testimony that
'"[Defendant] Schirmer had problems with [Plaintiff]"' in depicting
Plaintiffs allegedly difficult behavior. (D.1. 43 at 6 (quoting id., ex.
55

C at 172)) However, Defendant Schirmer testified that he "never
butted heads" with Plaintiff. (D.I. 44 at 8 (citing D.I. 46 at A476))
•

Defendants further note that Defendant Faucett described Mr.
Hastings as having '"problems with [Plaintiff,]"' (D.I. 43 at 6
(quoting id., ex.Cat 172)), but they have not pointed to evidence in
the record from Mr. Hastings himself substantiating this claim.

Likewise, Defendants have not cited to additional evidence in the record, aside from
Defendant Faucett's testimony, regarding the alleged incident in which Plaintiff was abusive and
loud to two women. (D.I. 43 at 5 & n.27 (citing id., ex.Cat 166)) In light of the ways in which
both Defendants Booth and Schirmer appeared to contradict Defendant Faucett's testimony
regarding Plaintiffs behavior (set out above), a reasonable fact finder could conclude that
Defendant Faucett's otherwise unsubstantiated statement deserves little weight.
The same could be said of Defendants' claim that Plaintiff"refus[ed] to take
responsibility" for broken windows on Campus. (D .I. 4 7 at 3; see also id. at 10) Defendant
Faucett's testimony is all that there is in the record regarding this claim. (See id. at 3 (quoting
D.I. 48, ex.Cat 163-64)) Defendants do include in the record a June 2007 letter from Defendant
Faucett to Plaintiff regarding broken windows; this letter, however, does not provide any hint
that Plaintiff refused to accept responsibility for or make payment regarding the windows. (D.I.
43, Ex. 0)33

33

Defendants also assert, as one of their 23 reasons for awarding the 2010 Contract
to Outdoor, that "Plaintiff refused to remove leaves when asked," (D.I. 47 at 9), a reason that
could arguably also fall into the "difficult behavior" category. Defendants reiterate this
allegation at least two additional times. (Id. at 3 (stating that "Plaintiff ... consistently resisted
all instruction" with respect to leafremoval); see also D.I. 43 at 6 (asserting that according to
Defendant Schirmer, "Plaintiff refused to remove leaves")) However, as Plaintiff sets out, (D.I.
44 at 10 (citing D.I. 46 at A479)), it is reasonable to infer that this allegation is contradicted by
the evidence. To support the allegation, Defendants cite to one page of Defendant Schirmer's
testimony in which he explained that when the Campus experienced a big wind or storm, "a
56

Accordingly, nearly all that exists in the record regarding Plaintiffs allegedly
"argumentative, combative, and difficult" behavior, (D.I. 43 at 19), is testimony from Defendant
Faucett-testimony that is clearly contradicted in at least some respects by other individuals. In
light of this, and giving Plaintiff the benefit of all reasonable inferences, a reasonable factfinder
could rationally find this explanation unworthy of credence.

d.

Plaintiff demonstrated poor performance and an inability to
maintain the Campus as a "showplace"

Plaintiffs ability to sufficiently cast doubt on the above three non-discriminatory reasons
referenced above might amount to casting substantial doubt on a "fair number of' Defendants'
"bagful" of proffered rationales for their bidding decision. However, the Court will also examine
a fourth explanation for Defendants' decision: that Outdoor was awarded the 2010 Contract
because Plaintiffs performance under the 2007 Contract was poor. This appears to be the central
category of reasons that Defendants rely upon for their decision, as a majority of Defendants' "23
reasons" fall into this bucket. (D.I. 47 at 9-10) And there is some suggestion in the case law that
where a plaintiff calls into question some of a defendant's "bagful" of reasons, but not the
"primary explanations" which would themselves be adequate grounds for the unfavorable action,
then the plaintiff cannot succeed in making out a case of discrimination under Fuentes. See

Anderson v. Equitable Res., Inc., Civil Action No. 08-952, 2009 WL 4730230, at *11 (W.D. Pa.

whole lot of stuff comes down at once .... you need to get in right away to pick [leaves] up
because if you don't, they go right to the drains[.]" (D.I. 43 at 6 (citing id., ex. J at 26))
Defendant Schirmer asked Plaintiff to remove these leaves, and "if [he was] not mistaken,
[Plaintiff] said that it's not his problem that the drains are clogged[,]" to which Defendant
Schirmer replied, '"if you take care of the leaves, then everybody is good.'" (Id., ex. J at 26)
Moments later (two deposition pages later), Defendant Schirmer stated "[t]he leafremoval
[Plaintiff] did take care of." (Id. at 28)
57

Dec. 4, 2009); Carrier v. City of Plainfield, Civil Action No. 07-2739 (SRC), 2009 WL 3681896,
at *3, *6 (D.N.J. Nov. 4, 2009) (explaining that where the defendant presented a bagful of
reasons for promoting another employee over the plaintiff, the plaintiff"may not need to cast
doubt on every one of [the] [d]efendant's proffered reasons" but "must, however, cast doubt on
the core facts that the employer has put forward as the legitimate reason"); cf Tomasso v. Boeing
Co., 445 F .3d 702, 707-11 (3d Cir. 2006) (conducting the "bagful" of reasons analysis and

concluding that the plaintiff"has cast sufficient doubt on [the defendant's] primary explanations
for his layoff under Fuentes") (emphasis added).
To be sure, certain Individual Defendants offered various criticisms of Plaintiffs
performance during their depositions. (D.I. 43 at 5-7; D.I. 47 at 2-4, 9-10; see also supra p. 6-9)
Additionally, there exists at least some documentary evidence (mainly from the early part of the
contract term) suggesting specific deficiencies: (1) the November 2007 e-mail from a DTCC
visitor reporting that his vehicle was covered in grass, (D.I. 43, ex. Q); (2) Defendant Faucett's
April 2007 meeting notes (recorded approximately three months after Plaintiff began work) in
which he wrote that there were "still" many weeds that needed tending to and that mulching was
incomplete, (id., ex. R); and (3) the May 2007 work orders noting that weeds and long grass
existed on a particular area of the campus (although one order also reported being "thrilled with
the work so far"), (id., ex. P). 34
However, and though the issue is close, the Court finds that if Plaintiff is given the

34

There are also Defendant Schirmer' s photographs depicting various landscaping
issues, although it is less than clear when exactly he took them (and even his purported
explanation of why he took them, cited by Defendants, is missing from the record). See supra p.
7-8 & n.9.
58

benefit of all reasonable inferences, he has sufficiently cast doubt on this explanation. The Court
comes to this conclusion for several reasons.
At the outset, it is compelling that the 2007 Contract contained a provision granting
DTCC the unilateral right to terminate Plaintiffs contract at any time if landscaping services
were not performed to DTCC's satisfaction. (D.I. 44 at 11 n.42 (citing D.I. 46 at A360.l,
A480.l)) Indeed, the notion that DTCC would terminate Plaintiffs contract ifit was unhappy
with his performance was further conveyed to Plaintiff on at least two other documented
occasions. (See D.I. 43, ex. A (Defendant Faucett's December 2006 letter to Plaintiff advising
that "I want this College to reflect a showplace and will accept nothing less" (emphasis added);
id., ex. R (Defendant Faucett, in his comments regarding an April 2007 meeting with Plaintiff,
records that Plaintiff should "do[] the best he can to produce a showplace" and "[ n ]o excuses will
be acceptable as to non-performance of this contract on Miller's behalf." (emphasis in original)))
Yet Plaintiff was retained for the entire term of the 2007 Contract. (D.I. 44 at 11 n.42 (citing D.I.
46 at A415.l, A528.1); see also D.I. 46 at A360.l) Of course, there could be reasons why
DTCC, though unhappy with Plaintiffs performance, let him finish the 2007 Contract term. But,
on the other hand, a factfinder could view Defendants' explanation that Plaintiff demonstrated
"substandard" performance under the 2007 Contract with some suspicion. If that was the case, it
might ask, then why did DTCC not do what it repeatedly said it would do in such a
scenario-and, indeed what it did do with respect to another landscaping company, Trugreen,
(see D.I. 44 at 8 n.33 (citing D.I. 46 at A386))-accept nothing less than a showplace, and
terminate the contract?
Next, although Defendants assert that their decision was based in part on the fact that
59

"Plaintiff was ... unable to maintain [a] 'showplace' effect[,]" (D.I. 43 at 7), Defendant Faucett
testified that no landscaper has been unable to "get [the campus] looking like a showplace[,]"
(D.I. 44 at 11 (citing D.I. 46 at A391-93)). Although Outdoor did not produce a showplacequality effect, for example, Defendant Faucett wished to renew Outdoor's Contract as of the time
period very near the end of that contract term. (D.I. 46 at A379, A392-93) 35 A reasonable
factfinder could view this reason as demonstrating inconsistency in Defendants' explanation for
not selecting Plaintiff. Cf Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 320 (3d Cir.
2000) (where the plaintiff argued that "other employees with poor scores for administrative and
organizational ability were nevertheless awarded the 'preferable' positions purportedly denied
her because of those weaknesses[,]" explaining that "[t]hat allegation, if proven, would support a
finding of discrimination").
Moreover, there are a number of pieces of evidence depicting Plaintiffs performance
under the 2007 Contract in a positive light: ( 1) Defendant Schirmer testified that Plaintiff did a
"great job" cutting grass; (2) former Dean Johnson told Plaintiff he did a "'good job"' under the
contract; (3) Defendant Hearn personally witnessed no issues with Plaintiffs performance; (4)
Defendant Serman made no complaints about Plaintiffs work; (5) Defendant Booth assumed the
Campus was ready for the Gala for all three years during the 2007 Contract; and (5) Dr. Smith
told Plaintiff that the "grounds look great" at or before a Gala. (D.I. 44 at 8 & n.32-33 (citations

35

In their reply brief, Defendants attempt to cast Plaintiffs allegation that "Faucett
sought to renew Outdoor" as an "inaccurac[y,]" since the record shows that "Faucett did not offer
to renew Outdoor." (D.I. 47 at 1, 3) However, the record clearly demonstrates that as of
September 2012, Defendant Faucett ''wished to renew Outdoor's contract." (D.I. 44 at 11 n.41
(citing D.I. 46 at A309, A379)) The record also shows that Outdoor was not retained at least in
significant part because Outdoor stopped showing up to the Campus a few months before its
contract was scheduled to end. (D.I. 46 at A378.2-80)

60

omitted))
Finally, with respect to at least some of the criticisms set out by Defendants-such as
Defendant Faucett's accusation that Plaintiff harmed trees with weed killer, or Defendant
Schrimer' s complaint that Plaintiff improperly cut ornamental grasses-there is some conflict in
the testimonial evidence. Defendants suggest that they believed that these problems existed, but
Plaintiff attempts to contradict that evidence, asserting that he knew what he was doing and his
actions were appropriate. (Id. at 10 (citations omitted))
The Court finds that, viewing the current evidence in a light most favorable to Plaintiff,
there remains a genuine issue of material fact regarding whether Plaintiffs performance under
the 2007 Contract was deficient to such a degree that it motivated Defendants to award the 2010
Contract to Outdoor. In light of the evidence set out above, it is possible that a factfinder could
credit Defendants' explanation. On the other hand, a reasonable factfinder, considering all of the
evidence, could find Defendants' explanation to be a sufficiently weak one that is "unworthy of
credence."

e.

Conclusion

By establishing that four of the five categories of explanations provided by Defendants
are reasonably disbelievable, Plaintiff has succeeded in casting doubt on a "fair number" of
Defendants' ''bagful" of legitimate reasons for not awarding Plaintiff the 2010 Contract. See
Fuentes, 32 F.3d at 763. Accordingly, the Court concludes that a reasonable factfinder could be

justified in finding that Defendants' credibility is undermined to such a degree that it casts doubt
on Defendants' true motivation for awarding the contract to Outdoor. The Court hastens to add
that its conclusion here is in no way meant to suggest that Defendants are indeed guilty of
61

discrimination, or that Plaintiff will ultimately be able to prevail on his claims. Rather, Plaintiff
has demonstrated that genuine issues of material fact exist, that they preclude summary
judgment, and that the case should move on to the trial stage. 36
IV.

CONCLUSION
For the reasons set forth above, the Court recommends that Defendants' Motion be

DENIED. 37
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(l)(B), Fed. R.
Civ. P. 72(b)(1 ), and D. Del. LR 72.1. The failure of a party to object to legal conclusions may
result in the loss of the right to de novo review in the district court. See Henderson v. Carlson,
812 F.2d 874, 878-79 (3d Cir. 1987); Sincavage v. Barnhart, 171 F. App'x 924, 925 n.1 (3d Cir.
2006).
The parties are directed to the Court's Standing Order for Objections Filed Under Fed. R.
Civ. P. 72, dated October 9, 2013, a copy of which is available on the District Court's website,
located at http://www.ded.uscourts.gov.

Dated: July 1, 2015
Christopher J. Burke
UNITED STATES MAGISTRATE JUDGE

36

Because Plaintiff presented sufficient evidence under prong one of the
Fuentes test to discredit Defendants' "bagful" of reasons for awarding the 2010 Contract to
Outdoor instead of to him, the Court need not address Plaintiffs secondary arguments with
respect to the second prong, (D.I. 44 at 11-13). Cf Horner v. Allegheny Gen. Hosp., Civil Action
No. 07-1634, 2010 WL 724452, at *16 (W.D. Pa. Mar. 1, 2010).
37

The Court recommends that Defendants' request for costs under 42 U.S.C. §
1988, (D.I. 47 at 10; Tr. at 7), also be DENIED.
62