Whaley et al v. Schiliro et al
MEMORANDUM OPINION re 44 motion for summary judgment. Signed by Judge Leonard P. Stark on 3/31/15. (ntl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MICHAEL A. WHALEY, and VALERIE
LEWIS D. SCHILIRO, Secretary, Delaware
Department of Safety and Homeland
Security, Division of State Police,
C.A. No. 12-633-LPS
Gary Aber, Aber, Baker & Over, Wilmington, DE.
Robert T. Vance, Jr., The Law Offices of Robert T. Vance, Jr., Philadelphia, PA
Attorneys for Plaintiffs
Barry W. Willoughby, William W. Bowser, Lauren E.M. Russell, Young Conaway Stargatt &
Taylor LLP, Wilmington, DE
Attorneys for Defendant
March 31, 2015
Plaintiffs Michael A. Whaley ("Whaley") and Valerie M. Robinson ("Robinson" and,
with Whaley, "Plaintiffs") filed this lawsuit on May 22, 2012, alleging discrimination. (D.I. 1 at
1) Pending before the Court is the motion for summary judgment filed by Defendant Lewis D.
Schiliro, Secretary, Delaware Department of Safety and Homeland Security, Division of Police's
("Defendant"). (D.I. 44) For the reasons discussed below, the Court will grant the motion.
Taking the record evidence in the light most favorable to Plaintiffs, as the Court is
obligated to do at this stage of the proceedings, the record shows the following. Plaintiffs, who
are African-American, were employed by the Delaware State Police ("DSP") for 23 years, from
approximately 1988 to June 2011. (D.I. 1 at 2) On June 24, 2011, both Plaintiffs entered guilty
pleas to criminal misdemeanor charges of theft by false pretense and official misconduct. (D.I.
46-5 at Al06) A third DSP officer, Sergeant Lance Willey ("Willey"), a white male (D.1. 1 at 5),
entered identical guilty pleas to the same criminal misdemeanor charges (D.I. 45 at 8).
Among other things, the DSP "is responsible for transporting mentally disabled, disturbed
or abnormal individuals to medical and/or mental health facilities." (D.I. 1 at 2) Both Plaintiffs
participated in transporting individuals to facilities. The criminal charges against them stemmed
from an administrative investigation into allegations that Plaintiffs falsely reported overtime
payments in conjunction with off-duty DSP assignments. (D.1. 45 at 3)
In particular, Whaley's superiors learned that he may have been claiming that he was
entitled to overtime payments, which reflected twice the number of hours he actually worked.
(Id.) Investigators learned that other individuals, including Robinson, may also have been falsely
reporting overtime to the DSP. (Id at 4) For instance, Plaintiffs were claiming that "TwoPerson-Transports" were necessary for certain individuals, when, in reality, only one officer
conducted the transport. (Id)
Plaintiffs contend that the practices in which they were engaged were "never objected to"
and had been going on for well over 20 years. (D.I. 1 at 6) Eventually, however, an investigation
by the Delaware Department of Justice concluded that Plaintiffs had engaged in criminal
conduct, specifically "overtime fraud and illegal compensation for hours not worked." (D.I. 45 at
7) After criminal charges were filed,
Plaintiffs and Sgt. Willey plead guilty to identical charges, and
agreed to (1) pay restitution; (2) forfeit their Council on Police
Training ("COPT") Certification; and (3) not be employed in
any law enforcement capacity in the State of Delaware going
forward. Transcripts of the plea hearings make clear that Plaintiffs
entered into their plea agreements knowingly, and with advice
(D.1. 45 at 8); (see also D.I. 46-5 at A106, A107)
"The court shall grant summary judgment if 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,
586 n.10 (1986). An assertion that a fact cannot be - or, alternatively, is - genuinely disputed
must be supported 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 the 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). If the moving party has carried its burden, the
nonmovant must then "come forward with specific facts showing that there is a genuine issue for
trial." Matsushita, 475 U.S. at 587 (internal quotation marks omitted). 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).
Plaintiffs' complaint contains three claims. (D .I. 1) In count 1, they allege that
Defendant discriminated and retaliated against Plaintiffs by denying them on the basis of race, in
violation of their rights under 42 U.S.C. § 1981. In count 2, Whaley alleges that Defendant
discriminated and retaliated against him on the basis of race and age and retaliated against him,
all in violation of his rights under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e. Finally,
in count 3, both Plaintiffs allege that their rights protected under the Delaware Discrimination in
Employment Act, 19 Del. C. § 71 l(a), were violated when Defendant discriminated and
retaliated against them on the basis of race and age.
In seeking summary judgment, Defendants make several arguments, including that the
Section 1981 claims are barred by the doctrine of sovereign immunity, all of the discrimination
claims must be dismissed due to the absence of evidence of an adverse employment action and
discriminatory intent, all of the retaliation claims must be dismissed due to the absence of
evidence of Plaintiffs engaging in protected activity and of retaliatory animus, and that all claims
must be dismissed because Defendant's actions were undertaken in the course of a criminal
prosecution. (See D.I. 45) The Court agrees with Defendant that judgment must be entered on
his behalf on all claims but discusses below only some of the bases Defendant has offered to
support this disposition. 1
Eleventh Amendment Immunity
Plaintiffs allege in count 1 that Defendant violated their rights protected under Section
1981. Section 1981 provides: "All persons within the jurisdiction of the United States shall have
the same right in every State and Territory to make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws and proceedings for the security of persons
and property as is enjoyed by white citizens, and shall be subject to like punishment, pains,
penalties, taxes, licenses, and exactions of every kind, and to no other." 42 U.S.C. § 1981(a). In
turn, 42 U.S.C.§ 1983 "provides the exclusive federal damages remedy for the violation of the
rights guaranteed by § 1981 when the claim is pressed against a state actor." Jett v. Dallas Indep.
Sch. Dist., 491 U.S. 701, 735 (1989). To prevail on a§ 1981 claim, a plaintiff is required to
plead facts demonstrating that the plaintiff is member of a racial minority, that there was intent to
discriminate on the basis of race by the defendant, and that discrimination concerned one or more
of the activities enumerated in the statute. See Hood v. NJ Dep 't of Civil Service, 680 F.2d 955,
959 (3d Cir.1982); McDuffy v. Koval, 226 F. Supp. 2d 541, 550 (D. Del. 2002).
Absent a State's consent, the Eleventh Amendment bars a civil rights suit in federal court
that names the state as a defendant. See Laskaris v. Thornburgh, 661F.2d23, 25 (3d Cir. 1981)
(citing Alabama v. Pugh, 438 U.S. 781 (1978) (per curiam)). The State of Delaware has not
waived its immunity from suit in federal court and, although Congress can abrogate a State's
sovereign immunity, it did not do so through the enactment of§ 1983. See Brooks-McCollum v.
In not discussing all of Defendants' contentions, the Court is not concluding that these
additional contentions lack merit, only that it is unnecessary to discuss them.
Delaware, 213 Fed. Appx. 92, 94 (3d Cir. Jan. 11, 2007).
DSP is a state agency for Eleventh Amendment purposes. See e.g., Grinnell-Cropper v.
Sands, 2014 WL 5012159, at *2 (D. Del. Oct. 7, 2014). "[A] suit against a state official in his or
her official capacity is not a suit against the official but rather is a suit against the official's office.
As such, it is no different from a suit against the State itself." Will v. Mich. Dep't ofState Police,
491 U.S. 58, 71 (1989) (internal citations omitted); Ali v. Howard, 353 Fed. Appx. 667, 672 (3d
Cir. Nov. 16, 2009). Thus, a suit against a DSP official in his official capacity is subject to
Eleventh Amendment immunity.
Notwithstanding Plaintiffs' belated statements to the contrary (see DJ. 53 at 9), the Court
agrees with Defendants that Plaintiffs have only alleged that they are suing Defendant in his
official capacity. (See DJ. 45 at 10) The complaint identifies Defendant as "Secretary, Delaware
Department of Safety and Homeland Security, Division of State Police." (DJ. 1 at 1) Because it
does not expressly allege Defendant is named in his individual capacity, he is assumed to be
named in his official capacity only. See Zajrael v. Harmon, 677 F.3d 353, 355 (8th Cir. 2012)
("Because [Plaintiffs] amended complaint does not specifically name the defendants in their
individual capacities, we presume that he sued them only in their official capacities.").
Moreover, prior to Defendant filing his motion for summary judgment, Plaintiffs' counsel
stipulated that Plaintiffs were suing Defendant only in his official capacity. (See DJ. 57 at C1213) Finally, Plaintiffs did not provide any evidence that Defendant personally engaged in
unlawful conduct. (See DJ. 46-7 at A162-63, A205-06) (Plaintiffs' deposition testimony) 2
Even in their brief - which is argument and not evidence - Plaintiffs assert only that
Defendant "by virtue of his position, clearly acquiesced in the violation of Plaintiffs' rights" (D.I.
53 at 9), not that he individually and personally violated their rights.
Accordingly, the Court will grant summary judgment to Defendant on Plaintiffs' claims
for violation of Section 1981.
Lack of Evidence of Adverse Employment Action
Defendant is entitled to summary judgment on Plaintiffs' claims that they were
discriminated against on the basis of race or age because there is not evidence in the record from
which a reasonable finder of fact could find that Plaintiffs suffered any adverse employment
action, which is an element Plaintiffs would be required to prove in order to prevail on their
claims under Section 1981, Title VII, and the DDEA. Each of these claims is subject to the
burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
for governing Title VII claims. See also Jackson v. Temple Univ. Hosp., Inc., 501 Fed. Appx.
120, 123 (3d Cir. 2012) ("[C]laims under 42 U.S.C. § 1981 are governed by standards identical
to those applicable to ... Title VII claims."); Shah v. Bank ofAm., 346 Fed. Appx. 831, 834 n.2
(3d Cir. 2009) (holding that claims under DDEA are subject to same analysis as Title VII).
One aspect of Plaintiffs' primafacie case is that they suffered an adverse employment
action. See Jones v. School Dist. of Phi/a., 198 F .3d 403, 410 (3d Cir. 1999). "An adverse
employment action can generally be demonstrated by a hiring, firing, failure to promote,
reassignment with significantly different responsibilities, or a decision causing a significant
change in benefits." Greer v. Mondelez Global, Inc., 590 Fed. Appx. 170, 173 (3d Cir. 2014)
(citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 749 (1998)). "Constructive discharge"
requires evidence that working conditions were "so intolerable that a reasonable person would
have felt compelled to resign." Pa. State Police v. Suders, 542 U.S. 129, 147 (2004).
Here, there is no evidence of any adverse employment action, including constructive
discharge. Instead, the undisputed evidence establishes that Plaintiffs were prosecuted by the
Delaware Department of Justice, were convicted, and were permitted, nonetheless, to retire with
their full pension and health benefits. (See D.I. 46-7 at Al57, Al58, Al 75, Al 76, A214)
Plaintiffs' inability to work any longer with the DSP was due to decisions made by Plaintiffs in
response to actions taken by the prosecutors. Plaintiffs were represented by counsel when they
pled guilty to criminal charges and when they agreed, as part of their pleas, to retire and agree not
to work any longer as police officers. On this record, no reasonable factfinder could find that
Plaintiffs suffered an adverse employment action.
Accordingly, the Court will grant summary judgment to Defendant on all of Plaintiffs'
race and age discrimination claims.
Lack of Evidence of Retaliation
Plaintiffs have failed to adduce evidence sufficient to support their prima facie case of
retaliation. To meet their burden, Plaintiffs must demonstrate that they: ( 1) engaged in protected
activity, (2) suffered an adverse employment action after or contemporaneously with their
protected activity, and (3) a causal nexus between the protected activity and the adverse
employment action. See Smith v. Perdue Farms, 2014 WL 1409950, at *8 (D. Del. Apr. 11,
The Court has already addressed the lack of evidence of any adverse employment action.
Moreover, the record is devoid of evidence that Plaintiffs undertook any protected activity having
any temporal proximity to the conduct giving rise to the allegations in the complaint. While
Robinson filed a discrimination lawsuit in 1999, her case was resolved in 2003, while the events
alleged in the complaint occurred in 2011. Whaley never complained of discrimination while
employed by the DSP and only initiated an administrative proceeding (with the U.S. Equal
Employment Opportunity Commission) in August 2011, several months after he had left
employment with the DSP.
Accordingly, the Court will grant summary judgment to Defendant on all of Plaintiffs'
For the reasons stated above, Defendant's Motion for Summary Judgment (D.I. 44) will
be granted. An appropriate Order follows.
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