Fender v. Delaware Division of Revenue et al

Filing 49

MEMORANDUM. Signed by Judge Gregory M. Sleet on 9/15/2014. (mdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

MARY FENDER,

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Plaintiff,

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DELAWARE DIVISION OF REVENUE,
MICHAEL SMITH, and
THOMAS EOPPOLO,

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C.A. No. 12-1364-GMS

Defendants.
____________________________)

MEMORANDUM
I.

INTRODUCTION
The plaintiff, Mary Fender ("Fender"), filed this lawsuit against the Delaware Division of

Revenue ("DOR"), and two employees ofthe DOR, Michael Smith ("Smith") and Thomas
Eoppolo ("Eoppolo") (collectively, "the Defendants") on October 25, 2012. (D.I. 1.) The
complaint raised a number of claims under federal and Delaware law for alleged mistreatment of
Fender while employed by the DOR. Specifically, the complaint asserted claims of: (1) First
Amendment retaliation in violation of 42 U.S.C. § 1983 against all Defendants ("Count I"); (2)
violation of the Delaware Whistleblowers' Protection Act ("WP A"), under 19 Del. C. § 1701 et

seq., against all Defendants ("Count II"); and (3) tortious interference with business relationships
against all Defendants ("Count III"). Fender sued Smith and Eoppolo in both their individual and
official capacities.

On December 19, 2012, the Defendants filed a motion to dismiss for failure to state a
claim. (D.I. 9.) The court granted in part and denied in part the Defendants' motion to dismiss,
dismissing Counts I and III as against the DOR, and dismissing Count III as against Smith and
Eoppolo in their official capacities. (D.I. 17.) Additionally, in the present briefing, Fender
voluntarily dismisses Count II, as against Smith and Eoppolo, and Count III in its entirety. (D.I.
42 at 1 & n.l.) The only claims that remain, therefore, are the§ 1983 claims against Smith and
Eoppolo, and the WP A claim against the DOR. (!d.)
Presently before the court are the DOR's motion for summary judgment, and Smith and
Eoppolo's joint motion for summary judgment. (D.I. 34; D.I. 36.) For the reasons stated below,
the court will grant the Defendants' motions for summary judgment.

II.

BACKGROUND
Fender began working for the DORin July 2003 as a Senior Tax Auditor (now referred

to as Tax Auditor III). (D.I. 44, Ex. 119 at A816.) Her position was located in the Carvel
Building in Wilmington, Delaware initially, but in 2005 or 2006, she was transferred to the
"Corporate Commons" Building in New Castle, Delaware.

(Jd.) Fender worked within the

Personal Income Tax ("PIT") group, and among her job responsibilities was to create auditing
"projects," which were then assigned to other members within PIT. (!d. at A817). As part of
these projects, Fender would send out letters-typically several hundred or thousands-to people
who were believed to be non-compliant with their tax filing obligations. (!d., Ex. 79 at A542;
Ex. 119 at A818.)
Between 2009 and 2010, there was a reorganization within the DOR-the PIT and
Business Audit groups were combined as a single audit department, managed by Smith. (D.I. 44,

2

Ex. 119 at A826, A822.) Eoppolo became Fender's direct supervisor. (Id. at A826.) In April
2010, Smith transferred Fender's position back to Wilmington and requested that she return to
Wilmington by the beginning of May 2010. (!d.) Fender, however, remained at the Corporate
Commons building in New Castle until December 14, 2010. (!d. at A827.) Soon after returning,
Fender sought a transfer to the DOR office in Dover, Delaware, on December 20, 2010. (Id.)
Smith rejected her transfer application. After rejecting her transfer, Smith noted in a message to
Director Pat Carter that Fender was trying to "sell her agenda." 1 (!d., Ex. 94 at A667-68.)
Fender went to Deputy Director Colleen Yegla on December 22,2010 to complain about
the denial of transfer and general unfair treatment. (D.I. 44, Ex. 119 at A836.) Specifically,
Fender explained that Smith had recently approved a transfer request for a male employee, Bill
Kirby, from Wilmington to another DOR satellite branch.

(!d.)

Additionally, Fender

complained that Eoppolo had called her on her personal cell phone while she was at a doctor's
appointment, that Eoppolo was not approving her financial transactions in a timely manner, and
that she did not approve ofthe way Eoppolo was managing her. (!d., Ex. 74 at A449-51, A458.)
Ms. Yegla was not Fender's supervisor and took no action on Fender's complaints.
Fender met several times with Ms. Yegla between December 2010 and February 2011 to
complain about problems with Smith and Eoppolo. Unsatisfied with these discussions, Fender
filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on February
11, 2011, listing Eoppolo' s unwanted phone calls and Smith's denial of her transfer request as
examples of sex and age discrimination. (D.I. 44, Ex. 129.) Fender subsequently spoke with
Ms. Yelga and Mary Jane Donnelly, the DOR's Human Resource Manager, to explain that she

1

What Smith meant by "agenda" is unclear from his deposition testimony. He stated, on the one hand, that
Fender had previously complained to him about gender discrimination within the DOR. (D.I. 44, Ex. 94 at A668.)
On the other hand, Smith later stated that Fender's agenda was her displeasure in being unable to work on projects.
(!d.)

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had filed an EEOC complaint because she was discriminated against as a female. (Id., Ex. 119 at
A831, A839). Fender ultimately did not pursue her EEOC complaint.
Fender noticed a change in her work after making her complaints to Ms. Y egla, Ms.
Donnelly, and the EEOC. 2 According to Fender, Smith and Eoppolo reprimanded her on several
occasions without cause, (D.I. 44, Ex. 44), and limited her ability to plan meetings with her
colleagues. (!d., Ex. 37.) Additionally, Eoppolo micromanaged Fender more extensively and
reduced her job responsibilities, e.g., taking projects away and limiting the number ofletters she
could send. (!d., Ex. 119 at A858-59.) Other auditors did not have their work reduced in this
way. (!d., Ex. 135, ~ 21.)
In July of 2011, Fender was involved in a car accident and left work on short-term
disability leave. (D.I. 44, Exs. 60-61.) Fender asserts that Eoppolo wrongfully reprimanded her
for not updating him with her work availability, although Fender had previously sent an update
to a member of HR. (!d., Ex. 61.) Fender was scheduled to return to work in February 2012, but
delays in her surgery pushed this date back to March 2012. (Id., Ex. 119 at A851-52.) Fender's
disability leave, however, expired in January 2012, and Durae Johann, the Return-to-Work
Coordinator for the DOR, notified Fender that her job had been terminated. (!d. at A850.)
Fender had the option of reapplying for her position, which she declined. (!d. at A850--51.) 3
Before the court are Fender's remaining claims against the Defendants. Against Smith
and Eoppolo, Fender asserts a claim for First Amendment retaliation in violation of § 1983.
Specifically, Fender argues that her complaints to Ms. Yegla, Ms. Donnelly, and the EEOC

2

The court recognizes that there are numerous factual disputes between the parties about what took place in
the time following Fender's EEOC complaint. The court adopts Fender's version of the facts at this stage. The court,
however, notes that it is unnecessary to delve extensively into these facts, as they do not materially affect the
ultimate outcome. The court also finds it unnecessary to detail facts concerning alleged violations by Ms. Yegla and
Ms. Donnelly, as they are not parties in this lawsuit.
3
The court omits as unnecessary additional facts concerning events that took place after Fender's
termination.

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constituted protected First Amendment speech, and that Smith and Eoppolo, by their subsequent
actions, impermissibly retaliated against her. (D.I. 1,

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76-80.) Against the DOR, Fender

asserts a claim for violation of Delaware's WP A. Specifically, Fender argues that her complaints
were protected whistle-blowing activity, and that adverse actions taken by the DOR in response
were in violation of the WP A. (!d., ~ 81-89.)

III.

STANDARDOFREVIEW
Summary judgment is appropriate "if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The moving party bears the burden of proving that no genuine issue of material fact
exists. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585 n.10 (1986).
A fact is material if it "could affect the outcome" of the proceeding. Lamont v. New Jersey, 63 7
F.3d 177, 181 (3d Cir. 2011 ). There is a genuine issue "if the evidence is sufficient to permit a
reasonable jury to return a verdict for the non-moving party." Id. When determining whether a
genuine issue of material facts exists, the district court must view the evidence in the light most
favorable to the nonmoving party and draw inferences in that party's favor. Wishldn v. Potter,
476 F.3d 180, 184 (3d Cir. 2007). If the moving party is able to demonstrate an absence of
disputed material facts, the nonmoving party must then "come forward with 'specific facts
showing that there is a genuine issue for trial."' Matsushita, 475 U.S. at 587 (citing FED. R. CIV.
P. 56(e)).

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The mere existence of some evidence in support of the nonmoving party will not be
sufficient for denial of a summary judgment motion. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249 (1986). Rather, the nonmoving party must present enough evidence to enable a jury to
reasonably find for it on that issue. !d. The party opposing summary judgment must present
more than just "mere allegations, general denials, or ... vague statements" to show the existence
of a genuine issue. Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991). As such, a
nonmoving party must support their assertion that a material fact is in dispute by: "(A) 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 "(B) 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)(1). The
moving party is entitled to judgment as a matter of law if the nonmoving party fails to make a
sufficient showing on an essential element of its case for which it has the burden of proof.
Celotex, 477 U.S. at 322.

IV.

DISCUSSION
A. Count I: First Amendment Retaliation in Violation of§ 1983

Smith and Eoppolo argue that the § 1983 claims fail because (1) Fender has failed to
adduce evidence establishing a prima facie case of retaliation, and (2) they are immune from suit
under either the doctrine of qualified immunity or Delaware's Tort Claims Act, 10 Del. C.
§ 4001.

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Conversely, Fender argues that she has satisfied her burden of proof and that Smith and
Eoppolo are not immune from suit under either theory of immunity. For the reasons stated
below, the court will grant Smith and Eoppolo's motion for summary judgment.

1. Sufficiency of Evidence
"Retaliation for the exercise of constitutionally protected rights is itself a violation of
rights secured by the Constitution actionable under§ 1983." White v. Napoleon, 897 F.2d 103,
111-12 (3d Cir. 1990). It has long been established that the First Amendment bars retaliation for
protected speech.

See Crawford-£! v. Britton, 523 U.S. 574, 592 (1998); Milhouse v.

Carlson, 652 F.2d 371, 373-74 (3d Cir. 1981). Proof of a retaliation claim requires the plaintiff
to demonstrate (1) she engaged in protected activity; .(2) she was subjected to adverse actions by
a state actor; and (3) the protected activity was a substantial motivating factor in the state actor's
decision to take adverse action. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). The Third
Circuit has stated that "[g]overnment actions, which standing alone, do not violate the
Constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire
to punish an individual for exercise of a constitutional right." Mitchell v. Horn, 318 F.3d 523,
530 (3d Cir. 2003). Claims of unconstitutional retaliation must, however, be evaluated critically,
as they are "fraught with the potential for abuse." See Blizzard v. Hastings, 886 F. Supp. 405,
409 (D. Del. 1995). This is especially true in the government employment context. See Connick

v. Myers, 461 U.S. 138, 143 (1983) ("[G]overnment offices could not function if every
employment decision became a constitutional matter.").
The court looks first at whether Fender's complaints constituted protected activity. This
question is a matter oflaw. Balas v. Taylor, 567 F. Supp. 2d 654, 663 (D. Del. 2008) (citing Hill

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v. City of Scranton, 411 F.3d 118, 127 (3d Cir. 2005)). For a public employee's speech to be

protected, (1) she must have made the statements as a citizen, (2) the statement must involve a
matter of public concern, and (3) the government employer must not have an adequate
justification for treating the employee differently from a member of the public. Hill v. Borough
of Kutztown, 455 F.3d 225, 241-42 (3d Cir. 2006) (citing Garcetti v. Ceballos, 547 U.S. 410,

418 (2006)).
Fender asserts that Smith and Eoppolo retaliated against her for complaints made to Ms.
Yegla, Ms. Donnelly, and the EEOC between December 2010 and February 2011. (D.I. 38 at
A146). Fender argues that these complaints were about matters of public concern-specifically
discrimination against women "as a whole" within the DOR. (D.I. 43 at 12.) Fender, however,
is unable to point to facts in the record supporting her position that sex discrimination, as a larger
problem within the DOR, was at the heart of her complaints. In her deposition testimony, Ms.
Yegla only recounts complaints of''unfair treatment," specific to Fender-e.g., Eoppolo calling
Fender's cell phone and failing to approve Fender's financial transactions in a timely manner;
Smith and Eoppolo's refusal to grant Fender's transfer request. (D.I. 44, Ex. 74 at A448-58.)
Indeed, Ms. Yegla could not recall whether Fender's complaints were "based on gender" at all.
(!d. at A457.) Moreover, Fender's own deposition testimony fails to allege that her complaints

to Ms. Yegla went beyond the personal. (!d., Ex. 119 at A836-37.)
Fender's EEOC complaint and subsequent discussion with Ms. Donnelly suffer the same
shortcomings. Although Fender's EEOC complaint alleged other instances of sex discrimination
within the DOR, Fender included this information as ancillary support for her individualized
claims. (!d., Ex. 129, A948-50.) Specifically, the EEOC questionnaire asked "Why do you
believe these actions [against Fender] were discriminatory?" and asked for others who were

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treated similarly. (Jd.) The complaint itself, however, was solely directed to the cell phone calls
Fender received and to her request for transfer being denied. (!d. at A949.) Similarly, Fender's
discussion with Ms. Donnelly only mentioned the EEOC complaint and "the fact that I [Fender]
was being discriminated against as a female." (!d., Ex. 119, at A839 (emphasis added)).
Taken together in light of their "content, form, and context ... , as revealed by the whole
record," these statements do not amount to protected activity under the First Amendment. See
Rankin v. McPherson, 483 U.S. 378, 384 (1987). Although Fender contends that she had made

numerous statements about wider sex discrimination within the DORin the past-as evidenced
by Smith's testimony (D.I. 43 at 12; D.l. 44, Ex. 94 at A668)-the record does not support her
contention that the specific complaints at issue dealt with the alleged environment of
discrimination at the DOR. Thus, Fender has not established that they were of public concern.
Fender is correct that she does not forfeit her right to comment on matters of public
concern simply by having a personal stake in the matter.

(!d. at 13-14); see Rode v.

Dellarciprete, 845 F.2d 1195, 1202 (3d Cir. 1988). But Fender fails to provide any evidence that

the specific complaints-to Ms. Y egla, Ms. Donnelly, and the EEOC-were anything other than
the personal grievances of an employee, seeking personal relief. 4 See Connick, 461 U.S. at 147

4

Although not identified in her briefmg, in her July 14, 2014 affidavit, Fender for the first time argues that
her complaints to Ms. Y egla included charges of discrimination against other women in the DOR and that her EEOC
complaint was to "remedy the treatment" of herself and other women. (D.I. 44, Ex. 133, mJ 5-6.) This is contrary to
Fender's previous deposition testimony, (!d., Ex. 119 at A836-37 ("Q .... And did you discuss anything else [with
Ms. Yegla] that you felt constituted gender discrimination. A. No. I was very clear in the fact that I felt because I
was a woman I didn't get the same transfer that was afforded Bill Kirby.")), and even the text of the complaint. (D.I.
1, ~ 39 ("Because of the treatment that Plaintiff was receiving ... , Plaintiff complained to Colleen Y egla. "))
Fender's affidavit does not create a genuine issue of fact under the "sham affidavit doctrine." According to
the doctrine, "if it is clear that an affidavit is offered solely for the purpose of defeating summary judgment, it is
proper for the trial judge to conclude that no reasonable jury could accord that affidavit evidentiary weight and that
summary judgment is appropriate." Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247,253 (3d Cir. 2007). The Third
Circuit adopts a "flexible approach" to the sham affidavit doctrine, and the court will not disregard an affidavit if it
is bolstered by independent evidence or when the party can explain the contradiction. !d. at 254.
But Fender's statements that she complained of broader discrimination to Ms. Yegla are unsupported, and
she gives no explanation for the shift from her prior statements. "[P]rior depositions are more reliable
than affidavits," and Fender cannot create a novel dispute, not identified in the complaint, after receiving

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("[W]hen a public employee speaks not as a citizen upon matters of public concern, but instead
as an employee upon matters only of personal interest, ... a federal court is not the appropriate
forum in which to review the wisdom of a personnel decision taken by a public agency .... ");
Montone v. City of Jersey City, 709 F.3d 181, 194 (3d Cir. 2013) ("[N]ot every statement about

sexual discrimination involves a matter of public concern . . . ." (quoting Campbell v.
Galloway, 483 F.3d 258, 269 (4th Cir. 2007))); see Torres v. City of Phi/a., 907 F. Supp. 2d 681,

686 (E.D. Pa. 2012) ("[P]ublic employees' complaints about personal discrimination are not
matters of public concern when ... they do not involve elected officials, there is no claim of a
wider pattern of inappropriate conduct, the complaint is only about an individual's own abuse
and mistreatment, and the conduct was limited in scope and duration." (citing Bell v. City of
Phi/a., 275 F. App'x. 157, 159 (3d Cir. 2008))). 5

Because Fender's complaints did not constitute speech on matters of public concern, the
court declines to comment on the additional elements ofFender's § 1983 retaliation claim, or on
Smith and Eoppolo's immunity arguments. As a result ofFender's failure to established a prima
facie case of First Amendment retaliation, the court grants Smith and Eoppolo's motion for

summary judgment.

B. Count II: Violation of Delaware's Whistleblowers' Protection Act

The DOR asserts that Fender's WPA claim fails because (1) Eleventh Amendment
sovereign immunity bars suit against a state agency, and (2) Fender has failed to adduce
sufficient evidence to establish a prima facie case of a WP A violation.
Defendants' summary judgment motions. See id. at 253. The court disregards these conflicting statements in
Fender's affidavit and fmds there is no genuine dispute of material fact.
5
The court notes that Fender has simply failed to establish a prima facie case for First Amendment
retaliation in violation of§ 1983. The court expresses no view on whether Fender has made a prima facie case of
Title VII discrimination or retaliation, which Fender has not asserted.

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Conversely, Fender argues that Delaware has waived its sovereign immunity with respect
to the WPA and that she has satisfied her burden of proof. For the reasons stated below, the
court will grant the DOR's motion for summary judgment.

1. Eleventh Amendment Immunity
The Eleventh Amendment prevents federal courts from entertaining "any suit in law or
equity, commenced or prosecuted against one of the United States by citizens of another state."
U.S. CONST. amend. XI. Therefore, in general, states and their agencies and departments
are immune from suit brought by private parties in the federal courts, "regardless of the nature of
the relief sought." Pennhurst State Sch & Hasp. v. Halderman, 465 U.S. 89, 100 (1984). The
only exceptions to this general rule are (1) where the state has consented to suit or (2) where
Congress has clearly indicated its intent to abrogate state immunity. !d. at 98-100. In both
exceptions, intent to permit suit must be ''unequivocally expressed." !d. at 99.

This case

involves an application of the WP A, a Delaware statute, so only the former exception is at issue.
The DOR and Fender disagree as to whether Delaware has consented to suit in cases
implicating the WP A. Fender argues that the language of the WP A indicates a clear intent by the
Delaware General Assembly to waive immunity. (D.I. 42 at 15). In support, Fender points to
Tomei v. Sharp, which states: "[Delaware] has given itself the right to be sued and the employee

a right to sue. This acts as a waiver. The General Assembly has, therefore, clearly evidenced an
intent that the State not enjoy immunity as to the violations specified in the [WPA]." 902 A.2d
757, 765 (Del. Super. Ct. 2006) (footnote omitted). The DOR, however, argues that Delaware
has only waived its sovereign immunity in state court, but it has not consented to suit in federal
court, as required under the Eleventh Amendment. (D.I. 34 at 13-14.)

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The court agrees with the DOR.

"A State's constitutional interest in immunity

encompasses not merely whether it may be sued, but where it may be sued." Pennhurst, 465
U.S. at 99 (emphasis in original). As such, "[a] state can waive its sovereign immunity from
suit in state court without waiving the eleventh amendment's bar to suits against the state in
federal court." Leadbeater v. Port Auth. Trans-Hudson Corp., 873 F.2d 45, 48 (3d Cir. 1989);
see also Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 306 (1990) ("A State does not

waive its Eleventh Amendment immunity by consenting to suit only in its own courts .... "). In
order to find a waiver, moreover, "[ c]onsent to suit in federal court must be by 'most express
language or by such overwhelming implications from the text as [will] leave no room for any
other reasonable construction."' Leadbeater, 873 F.2d at 48 (second alteration in original)
(quoting Welch v. Tex. Dept. ofHighways & Pub. Transp., 483 U.S. 468,473 (1987)).
Fender has failed to point to any "express language" or "overwhelming implications" of
WPA as to satisfy her "stringent" burden. !d.

Rather, she discusses the WPA's predecessor

statute and the "inherent" immunity in the WPA. 6 (D.I. 42 at 15). This showing is insufficient.
The court finds that Delaware has not consented to be sued in federal court under the WP A. The
DOR, as a Delaware state agency, is immune from suit in federal court under the Eleventh
Amendment for Fender's WP A claim.
2. Sufficiency of Evidence
Alternatively, the court finds that there is also no genuine issue for the factfinder on
which Fender could succeed in her WPA claim against the DOR.

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Fender cites two federal court cases interpreting the WPA's predecessor statute, 29 Del. C. § 5115, to
support her argument that the WPA waived Delaware's Eleventh Amendment immunity in federal court. (D.I. 42 at
15 & n.8); see Hauge v. Brandywine Sch. Dist., 131 F. Supp. 2d 573 (D. Del. 2001); McHugh v. Bd. ofEduc. of the
Milford Sch. Dist., 100 F. Supp. 2d 231 (D. Del. 2000). However, neither of these cases actually discusses Eleventh
Amendment immunity, and the Eleventh Amendment does not apply to school boards, the defendants in those cases.
See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977).

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The WP A provides:
employer shall not discharge, threaten, or otherwise
discriminate against an employee regarding the employee's
compensation, terms, conditions, location, or privileges of
employment:
(1) Because the employee, or a person acting on behalf of
the employee, reports or is about to report to a public body,
verbally or in writing, a violation which the employee
knows or reasonably believes has occurred or is about to
occur ....
19 Del. C. § 1703 (emphasis added).
An

Additionally, the WP A defines ''violation" to be:
An act or omission by an employer ... that is:

a. Materially inconsistent with, and a serious deviation from,
standards implemented pursuant to a law, rule, or regulation
promulgated under the laws of this State, a political subdivision
of this State, or the United States, to protect employees or other
persons from health, safety, or environmental hazards while on
the employer's premises or elsewhere; or
b. Materially inconsistent with, and a serious deviation from,
financial management or accounting standards implemented
pursuant to a rule or regulation promulgated by the employer or
a law, rule, or regulation promulgated under the laws of this
State, a political subdivision of this State, or the United States,
to protect any person from fraud, deceit, or misappropriation
of public or private funds or assets under the control of the
employer.
I d. § 1702(6) (emphasis added).
The statute is clear: in order to have an actionable claim under the WP A, an employee must have
"blown the whistle" on a violation as defined by the statute.
Fender argues that her complaints to Ms. Yegla, Ms. Donnelly, and the EEOC about sex
discrimination (in violation of Title VII) are sufficient to create a genuine issue under the WP A.
(D.I. 42 at 17.) However, this argument ignores the express language of the statute limiting
violations to cases involving "health, safety, or environmental hazards" or "fraud, deceit, or
misappropriation of ... funds or assets under the control of the employer." 19 Del. C.§ 1702(6).

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These defined categories demonstrate the WPA's limited application in "protecting employees
who report violations oflaw for the benefit of the public." See Smith v. Del. State Univ., 47 A.3d
472, 476 (Del. 2012) (emphasis added). Fender does not try and fit her sex discrimination
claims-regardless of whether they are individual or more widespread-within the language of
the statute; rather, she merely states that "complaints of said sex discrimination would be
protected by the WPA." (D.I. 42 at 17). This conclusory assertion is not supported. 7 Fender has
failed to establish a prima facie violation of the WP A. Thus, the court will grant the DOR's
motion for summary judgment.

V.

CONCLUSION

For the foregoing reasons the court will grant both Smith and Eoppolo's motion for
summary judgment and the DOR's motion for summary judgment.

Dated: September

J2, 2014

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In its order granting in part and denying in part the Defendants' motion to dismiss, the court found that
Fender had sufficiently alleged facts to survive the motion to dismiss. (D.I. 17 at 2-3 n.l.) Specifically, the court
stated that Fender's allegations concerning past-due tax revenues were sufficient to "anchor" her WPA claim with
§ 1702(6)(b). (/d.) Fender no longer pursues this argument in her present briefing, and the allegations in the
complaint are insufficient to raise a genuine issue for the factfinder.

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