Flores v. Danberg et al

Filing 89

MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 3/24/2015. (nmfn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

)
)

RENE FLORES,
Plaintiff,

)
)

v.

CARL C. DANBERG, MIKE DELOY,
G.R. JOHNSON, LINDA VALENTINO,
and DELAWARE DEPARTMENT OF
CORRECTION.
Defendants.

) Civ. No. 13-075-SLR
)
)
)
)

)
)
)

Stephen A Hampton, Esquire, Dover, Delaware. Counsel for Plaintiff.
Devera B. Scott, Esquire and Ryan P. Connell, Esquire, Deputy Attorneys General.
Department of Justice, Dover, Delaware. Counsel for Defendants.

MEMORANDUM OPINION

J-4-)

Dated: March
2015
Wilmington, Delaware

R.Jri!o~Judge
I. INTRODUCTION

This employment discrimination case was initiated by plaintiff Rene Flores
("plaintiff') against defendants Carl C. Danberg ("Danberg"), 1 Mike Deloy ("Deloy"), 2
G.R. Johnson ("Johnson"), 3 Linda Valentino ("Valentino"), 4 and the Department of
Correction ("DOC"). (D.I. 1, 23) Plaintiff asserts that defendants: (1) discriminated
against him based on his race and national origin; and (2) retaliated against him, in
violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. ("Title VII"), 42
U.S.C. §§ 1981 and 1983, as well as the First and Fourteenth Amendments of the
United States Constitution. Plaintiff also includes state tortious interference claims and
violations of the Delaware Whistleblowers' Protection Act, 19 Del. C. §§ 1703 and
1703(4). The court has jurisdiction pursuant to 28 U.S.C. §§ 1331and1343.
Presently before the court are defendants' motions for summary judgment. (D.I.
64, 67) The issues are fully briefed. (D. I. 65, 66, 68, 69, 70, 71, 72, 73, 74, 75, 82, 83,
84, 85, 86, 88) For the reasons that follow, defendants' motions for summary judgment
will be granted.
II. BACKGROUND

1

Former Commissioner of the Department of Correction ("DOC"). (D.I. 23)

2

Former Bureau Chief of the DOC. (D.I. 23)

3

Warden of the Sussex Correctional Institution ("SCI"). (D. I. 70 at DA 191)

4

Deputy Warden of SCI. (D.I. 70 at DA101)

Plaintiff, 5 a Hispanic male, graduated from the DOC's academy in 1994 and was
assigned to the Delaware Correctional Center, now known as James T. Vaughn
Correctional Center ("JTVCC"). (D.I. 70 at DA343-344) In 1996, plaintiff was promoted
to corporal and transferred to Sussex Boot Camp. (Id. at DA344-346) In 1998, he was
transferred to SCI. In July 2001, plaintiff was promoted to sergeant and transferred to
Morris Community Correctional Center.
In September 2001, plaintiff was promoted to lieutenant and transferred to
JTVCC. (Id. at DA348) In 2002, he was transferred back to Sussex Boot Camp and,
approximately a year later, was transferred to SCI with the rank of lieutenant.
In 2009, plaintiff interviewed for a vacant staff lieutenant position, but was not
selected as a candidate. (D.I. 69 at DA70-71) Plaintiff filed a grievance, challenging
the promotion selection process. Defendant Deloy heard the grievance, found merit to
plaintiff's contentions and recommended promotion. (Id. at DA6) However, because
another candidate had already been selected, plaintiff was promoted to a different staff
lieutenant position, with adjusted back pay.
In 2010, plaintiff applied for a vacant captain position. (Id. at DA24; D.I. 70 at
DA415) At that time, the committee6 considering candidates for positions with the rank
of captain and higher, used a numerical score sheet to evaluate and rank both objective
and subjective categories for each applicant. (D. I. 70 at DA226, DA 119) Plaintiff was

5

Plaintiff identifies his ethnicity as Aztec Indian; his father is Mexican and mother
is Caucasian. (D.I. 70 at DA321-322) Plaintiff was a member of the United States
Army from May 1987 to August 1994. (Id. at DA325-326) Plaintiff joined the Air Force
Reserves in 1994 and retired in May 2008. (Id. at DA328)
6

Panels were comprised of three members. (D.I. 69 at DA 108)

2

not the candidate selected for the position. (D.I. 69 at DA76) He filed a grievance
challenging the selection process, which was later denied. (Id. at DA77)
Subsequently, after learning that the other DOC wardens had abandoned using
numerical score sheets in favor of a more subjective candidate evaluation process
("subjective system"), defendant Johnson implemented the same procedure at SCI.
(D.I. 70 at DA226-227; DA122) The advantages of the subjective system were
explained by defendant Valentino:
I can't give you a specific. But typically, the discussion is you get the
wrong candidate because you get somebody that high seniority or
doesn't have the drive or the knowledge to do the job, and they knock
out other people. So they might have education, high seniority. And
somebody else who is a better candidate for the position encompassing
all of the qualifications would get knocked out of it because of it. And it
allows us to pick the best candidate, period.
(D.I. 70 at DA119)
In 2011, when a captain position became vacant, defendant Valentino chose
Ernest McBroom, DOC trainer/educator, and Jeannette Christian, DOC human
resources, as members of the selection panel ("the panel") 7 responsible for filling the
vacancy. (D.I. 70 at DA0121-22; DA428) Plaintiff8 submitted an application for the
captain position. (Id. at DA427) The panel interviewed candidates in March 2011. (D.I.
70 at DA124)

7

Defendant Valentino was chair of the panel.

8

Plaintiff was considered a good employee, who volunteered frequently for
additional responsibilities, requested training opportunities, and pursued career
advancement. (D.I. 80 at PA313-354) From 2007 to 2011, plaintiff attended
approximately 55 training/educational classes. (D.I. 69 at DA05)

3

On April 8, 2011, Ryan Hobbs ("Hobbs") contacted the SCl's warden's office,
complaining that plaintiff had accessed Hobbs' criminal record illegally through the
DELJIS 9 system and had disseminated the information. (D.I. 80 at PA147; D.I. 69 at
DA31) As part of an Internal Affairs ("IA") investigation launched in response to the
complaint, investigator Michael Tigue ("Tigue") interviewed Hobbs and discovered that:
(1) Hobbs was dating plaintiffs daughter Chelsea; (2) plaintiff accessed Hobbs' criminal
record between 2008 and February 2009 and shared this information with others,
resulting in Hobbs' being arrested for drugs and his residence searched; (3) Chelsea
and Hobbs had domestic problems, resulting in Chelsea obtaining a restraining order;
and (4) Hobbs waited to report plaintiffs alleged misconduct because "[Hobbs] has
been in court over issues with [Chelsea] for violating the restraining order." (D.I. 80 at
PA147)
Tigue was unable to verify whether plaintiff had in fact accessed Hobbs'
information because the DELJIS records for the pertinent time period were
inaccessible. (Id. at PA148) Consequently, Tigue reported that, "[without supporting
documentation from DELJIS, the allegations made by Hobbs [were] unsubstantiated"
and the IA investigation case was closed. (Id.)
In a letter dated April 15, 2011, defendant Valentino announced the panel's
selection for the captain position. The panel unanimously agreed that the top candidate

9

"Delaware Criminal Justice System." DELJIS is "the central state agency
responsible for providing efficient and reliable development and operation of the
hardware, software, network and database which comprise the Criminal Justice
Information System ("CJIS"). See http://deljis.delaware.gov/whatwedo.shtml (last
visited on March 16, 2015).

4

was "JB," a Caucasian, male lieutenant with bachelors and associates degrees in
criminal justice technology, perfect attendance during a two-year period, and
experience as a watch commander. 10 (D.I. 69 at DA25) The panel's second choice,
"DV", a Caucasian, male staff lieutenant with no college education. (D.I. 69 at DA25)
Plaintiff was the third ranked candidate. 11 (Id. at DA 25-26; D.I. 70 at DA123-24)
In explaining the panel's reasons for choosing JB for the position, defendant
Valentino wrote:
The selection panel was unanimously impressed by the interview with
JB. His answers were thorough, concise and well articulated. The panel
agreed that it was one of the best interviews we had witnessed in a long
time. DV's interview was very good as well, although he struggled
with a few of the questions.
(D.I. 69 at DA25-26) Defendant Valentino testified that, at his interview, plaintiff
stumbled with some of his responses. (D.I. 70 at DA123-124) Jeannette Christian's
interview notes reflect that plaintiff "rambled" at points. (D.I. 69 at DA22-24) Plaintiff
testified that the interview went very well and that the questions presented were easy.
(D.I. 70 at DA431 - 434) On May 24, 2011, plaintiff filed a grievance, complaining that
the captain selection process was deficient because: (1) the panel did not use an
objective score sheet; and (2) the panel members had never served as a watch
commander or as a captain. (Id. at DA440-48)
During this same time period, DELJIS commenced an investigation into Hobbs'
complaint as well. In a June 23, 2011 memorandum, the DELJIS Executive Committee

10

0n his last evaluation, JB received ratings of "exceeds qualifications." (D.I. 69
at DA25)
11

Plaintiff had more tenure and experience than JB. (D.I. 69 at DA27)

5

decided that plaintiff should re-sign the DELJIS directive #1 and attend security training
within 60 days. (D.I. 80 at PA149-150) Plaintiff successfully completed the training and
signed the directive within the designated time period.
On June 28, 2011, Tigue interviewed plaintiff as part of a "continuing"
investigation into the DELJIS violations. (D.I. 80 at PA151) In further explaining the
searches, plaintiff stated that, as watch commander, he occasionally had to run
registration numbers of vehicles parked in the SCI parking lot. (Id.) Tigue advised that
plaintiff's conduct violated DOC policy relating to DELJIS and DOC computer use. (Id.
at PA152) The investigation was closed.
On July 13, 2011, Truman Mears ("Mears"), SCI Security Superintendent,
commenced a disciplinary investigation into the DELJIS matter. (D.I. 70 at DA132; D.I.
80 at PA 153) Mears interviewed plaintiff, who had "nothing to add to what [he had]
stated to IA." (D.I. 80 at PA153) Mears reviewed DELJIS logs and memos, IA memos,
DELJIS directives, and a previously recorded interview of plaintiff.
In a disciplinary investigation report dated August 2, 2011, Mears concluded that
plaintiff violated DELJIS directive #1, which prohibits the dissemination of criminal
history and motor vehicle records. In support of this conclusion, Mears determined that
plaintiff used DELJIS to access the criminal history of: (1) Hobbs, on 16 occasions; (2)
"BG," a friend of Hobbs, two times; and (3) another 27 individuals, accessed on multiple
occasions. (Id. at PA154) Of these 29 people ("the list"), Mears found only one name
on the list who was a possible visitor at SCI.
On August 8, 2011, defendant Deloy conducted a hearing to consider plaintiff's
grievance over the captain position hiring process. Plaintiff and union representatives

6

were present. (D.I. 69 at DA34) Plaintiff claimed that he was not selected for the
position because he is Hispanic and that the selection process discriminated against
him. (D.I. 69 at DA34) More specifically, he asserted that he had more experience with
the duties of a captain than JB and had completed the "management development for
the future program." (Id.) Plaintiff also objected to the composition of the panel,
arguing that none of the members had ever served as a watch commander and the
members should have been chosen from an OMB list.
Defendant Deloy denied the grievance for the following reasons:
After reviewing the selection process as it occurred at SCI, it is no
way different than the selection process for captain at any other Level
5 Facility. The interview panel was diverse, experienced, educated,
and in [Deloy's] opinion, was not discriminating in any way.
(D.I. 69 at DA35)
On September 21, 2011, plaintiff filed a charge of discrimination with the Equal
Employment Opportunity Commission ("EEOC"). He alleged:
In May of 2011, I applied for a poistion as a watch commander at the
rank of captain. Despite being qualified for this position, I was not
selected for this position. Rather, a less experienced and lesser
qualified individual [JB] (not Hispanic) was selected.
Based on the above, I believe that I was not selected because I am
Hispanic, in violation of Title VII of the Civil Righst Act of 1964, as
amended.
(D.I. 69 at DA36)
In a letter dated November 29, 2011, defendant Johnson advised that plaintiff
was being considered for disciplinary action due to an external complaint that plaintiff
had illegally accessed DELJIS and "used that information to threaten the complainant."
(Id. at PA 156) Defendant Johnson instructed plaintiff that he was entitled to a fact-

7

finding meeting to present "any reason why" disciplinary action was unwarranted. (Id.)
On January 17, 2012, defendant Johnson held a fact-finding meeting with
plaintiff and a union representative. (Id. at PA161) During the meeting, plaintiff said
that he had accessed DELJIS because "apparently there had been an ongoing social
relationship between plaintiff's daughter and Hobbs. At some point there was police
intervention between the two, thus prompting court action." (Id.)
In response, defendant Johnson identified the individuals on the list 12 and
inquired the reason for the searches. Plaintiff provided the following explanations: (1)
nine people on the list were his family members and in order to stay proficient, DELJIS
trainers recommended users to look up family members; (2) ten people were probably
inmates or visitors at SCI because plaintiff did not know them; (3) one of his duties as
watch commander was to check the visitors and/or tag numbers of vehicles in the SCI
parking lot; (4) the deputy warden asked plaintiff to look up the son of the former
warden; (5) plaintiff explained the relationship between his daughter and Hobbs; and (6)
plaintiff denied disseminating or threatening Hobbs with the accessed information, and
only checked DELJIS to find court dates for his daughter. (Id.)
On January 25, 2012, defendant Johnson informed Bureau Chief Karl Hines that
the explanations given by plaintiff were unbelievable, deceptive and unsupported by the
evidence uncovered during the investigations. Defendant Johnson requested that

12

Defendant Johnson had determined that the list included: nine members of
plaintiffs family (including biological daughters and ex-boyfriends of plaintiffs ex-wife),
three former employees at SCI, a son of a retired deputy warden, and four high profile
offenders, including Dr. Earl Bradley, who was accessed several times. (D.I. 80 at
PA161-163)

8

plaintiff be terminated for his gross abuse of privileges. 13

(D.I. 69 at DA41-43; D.I. 70

at DA483)
On February 6, 2012, Director of Human Resources, Janet Durkee ("Durkee"),
informed plaintiff that the DOC was considering dismissing him from employment based
on the results of its investigation. (D.I. 69 at DA44) Specifically, the investigation
revealed that plaintiff had:
(1) accessed criminal history record information in DELJIS without businessrelated reasons; (2) failed to cooperate and being dishonest with the
DELJIS and IA investigators by misrepresenting [his] unauthorized searches
as work-related; and (3) performed non-work related, unauthorized
DELJIS searches while on State time.

13

ln his deposition, defendant Johnson described how he reached the decision to
terminate plaintiff,
I looked it all over. I called up to talk to the HR director, Janet [Durkee].
I conferred with her on it. I think she may have checked with somebody
else. I'm not sure. And we talked about it, and we kind of mulled it over
and pondered it. And I really couldn't make my mind up, other than the
fact of being so many inquiries, what was perceived to be less than
honest, considering the fact that there was an external complaint lodged
by someone. Whether that was validated or not, that's what generated
it all. So it's in the public sector. And I opted to proceed this way.
(D.I. 70 at DA234)

9

(Id. at DA44) Durkee 14 advised, prior to a final determination, that plaintiff was entitled

to a pre-decision meeting in order to present any reasons why dismissal was
inappropriate.
A human resources search revealed two other SCI employees had committed
DELJIS violations. (D.I. 66 at A19) One, "AS," was initially deceptive and could not
recall certain information until confronted with evidence substantiating the charges. AS
then accepted responsibility and provided the circumstances regarding the events
leading to the violation. (D.I. 80 at PA264) AS searched approximately four individuals.
(D.I. 80 at PA274) AS received a five-day paper suspension. (D.I. 70 at DA173,
DA230) The other employee, "VB," was charged with assessing information for nonwork related reasons. 15 (D.I. 80 at PA212) Throughout the investigation, VB admitted
accessing the system for other than work related reasons. (D.I. 80 at PA213) VB
explained the reasons s/he looked up certain individuals. VB did not share any of the

14

At her deposition, Durkee testified about why she found plaintiff's justifications
implausible:
And, he also said that certain people had asked him to run DELJIS checks
for them when they could have done it themselves. When we went back
and asked them had they done it, had they asked plaintiff to do it, they
said no. Also, when I said that looking at plaintiffs education and, you
know, his background and all of that, could that be aggravating, because
it was someone who had been with the company for a long period of time.
So obviously, this is somebody who is very ambitious, successful,
someone who had a lot of education and training, someone who
should have known better. So then all of that combined adds up to
why his situation would be different. .... Whether or not he could be
trusted.
(D.I. 70 at DA185)
15

VB searched via DELJIS approximately ten individuals. (D.I. 80 at PA213-

228)
10

information with anyone and "there was no external complaint generated." (Id.) VB
received a three-day paper suspension.
Although plaintiff never denied looking up people on DELJIS, defendant Johnson
testified that plaintiff's case was different because of "the amounts of inquiries, the
types of inquiries and the people, some of which were employees" and accessing
specific offender and complaint information made plaintiff's case much more substantial
than the other two employees. (D.I. 70 at DA230) Also, the way that plaintiff's conduct
was discovered was different than the other two employees. Significantly, the impetus
of the investigation was the call from a member of the public (Hobbs) reporting to the
warden's office about inappropriate conduct (later verified) by an SCI employee.
(D.I. 70 at DA171, 233)
In correspondence to the EEOC dated February 10, 2012, plaintiff amended his
original complaint to add a charge of "retaliation" based on his termination for the
DELJIS violations. (D.I. 69 at DA46) Plaintiff asserted that he was being singled out
and retaliated against for, among other things, filing the claim of discrimination
regarding the captain position. (Id. at DA46-49)
On March 6, 2012, defendant Danberg had a meeting with plaintiff to give him
the opportunity to provide a reason why he should not be dismissed. (D.I. 70 at DA261,
DA487; D.I. 80 at PA172-173) Also present at the meeting were union members and
defendants Johnson and Durkee. (D.I. 69 at DASO) Defendant Danberg was prepared
to reverse the termination decision and save plaintiff's job. (D.I. 70 at DA265, DA270)
As the meeting progressed, however, defendant Danberg became convinced that
plaintiff was lying about the reasons for searching on DELJIS. (Id. at DA262, DA51) At
11

the conclusion of the meeting, defendant Danberg said he would take the matter under
consideration. On April 2, 2012, Defendant Danberg 16 advised plaintiff that "the

16

Defendant Danberg testified about his decision:

When I was holding the hearing or the meeting with plaintiff, I specifically
asked him about his running of information through DELJIS repeatedly ....
He indicated that he had run the history of Hobbs. He explained the
issue with the abusive relationship with his daughter and why he ran
both Hobbs and acquaintances of Hobbs. But there were several
additional individuals whose information he ran. And when he was
confronted with that information, my recollection is that he said he must
have run that license plate because it was a car parked in the parking lot.
Well, it was a person closely associated with Hobbs. I found that the and there was no evidence that that person had ever visited the facility.
So I found that his creation of why he ran their license plate number, their
information run through the system to be fabricated with regard to *
*
*
He indicated in particular, that he had run the - I don't remember if it was an
employee or the child of an employee. I don't remember that. But he
indicated that he was requested by former Deputy Warden Mike Brittingham
to run information or to get information from - I don't remember who it was
that he was asked to run. Well, at my request, Mr. Brittingham was asked,
and he was no longer employed by the department. He didn't owe the
department anything. He didn't even have to respond. And he said: No,
I never asked him to do that and why would I have asked him to do that
when I have my own DELJIS access? I didn't need him to run it.
And I found Mr. Brittingham to be more credible than plaintiff. And then
he ran Dr. Bradley's information through the system, as well. And he
said that he ran it because Representative John Atkins had contacted
him and specifically asked him to run it. And the problem with him sitting
across the table like this from me and telling me that, what he had no way
of knowing is that John Atkins had requested that information from me. And
so I didn't believe him at the time. But I personally called Representative
Atkins and asked him whether or not he had ever asked that information
of plaintiff. And his response to me was: No, why would I do that? I asked
you. And so based on those conversations, I concluded that plaintiff was
lying to me and he was lying to my face.
In addition, during the hearing I advised him that this was his opportunity.
Regardless of what he said in prior interviews, whatever he had said in the
DELJIS information, this was his opportunity to tell me the truth and set this
record correct. Yet throughout this interview with me, the representative
asked me - had to repeatedly or felt compelled to repeatedly caution her
12

hallmark of a law enforcement officer is honesty" and the appropriate penalty for the
violations was termination of employment. (0.1. 69 at OA50) Plaintiff's union voted not
to take the dismissal to arbitration. (0.1. 66 at A17)
On October 15, 2012, the EEOC notified plaintiff that it was closing its file
because its investigation had not established violations of statutes. (0.1. 69 at OA52)
Plaintiff was further advised of his "right to sue" within 90 days of receipt of the EEOC
correspondence. On January 11, 2013, plaintiff filed the instant complaint. (0.1. 1)

Ill. STANDARD OF REVIEW
A court shall grant summary judgment only if "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law." Fed. R. Civ. P. 56©. The moving party bears
the burden of proving that no genuine issue of material fact exists. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.10 (1986). "Facts that

could alter the outcome are 'material,' and disputes are 'genuine' if evidence exists from
which a rational person could conclude that the position of the person with the burden
of proof on the disputed issue is correct." Horowitz v. Fed. Kemper Life Assurance Co.,
57 F.3d 300, 302 n.1 (3d Cir. 1995) (internal citations omitted). If the moving party has
demonstrated an absence of material fact, the nonmoving party then "must come

client that perhaps he didn't understand that he needed to tell me the
truth. I was firmly convinced, when I left that room, that he had lied to me
and that he had lied to me repeatedly.
(0.1. 70 at OA262)

13

forward with 'specific facts showing that there is a genuine issue for trial."' Matsushita,
475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e)). The court will "view the underlying facts
and all reasonable inferences therefrom in the light most favorable to the party
opposing the motion." Pa. Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995). The
mere existence of some evidence in support of the nonmoving party, however, will not
be sufficient for denial of a motion for summary judgment; there must be enough
evidence to enable a jury reasonably to find for the nonmoving party on that issue. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). 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 of law.
See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). With respect to summary

judgment in discrimination cases, the court's role is "to determine whether, upon
reviewing all the facts and inferences to be drawn therefrom in the light most favorable
to the plaintiff, there exists sufficient evidence to create a genuine issue of material fact
as to whether the employer intentionally discriminated against the plaintiff." Revis v.
Slocomb Indus., 814 F. Supp. 1209, 1215 (D. Del. 1993) (quoting Hankins v. Temple
Univ., 829 F.2d 437, 440 (3d Cir. 1987)).

IV. DISCUSSION
Plaintiff claims that defendants discriminated against him by denying him a
promotion to the rank of captain because he is Hispanic. Plaintiff contends that he was
fired in retaliation for filing the EEOC charge. (D.I. 23) Although defendants have

14

moved for summary judgment based on various grounds, for simplicity the court will
consider the dispositive issues related to the captain position and termination.
Title VII prohibits employment discrimination against "any individual" based on
that individual's "race, color, religion, sex, or national origin." 42 U.S.C. §
2000e-2(a)(1 ). Title VII also prohibits employers from retaliating against employees for
complaining of discrimination based on race, color, religion, sex, or national origin. 42
U.S.C. § 2000e-3(a).
Section 1981 similarly provides that:
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.
Plaintiff's racial discrimination and retaliation claims are analyzed under the
burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973); see also, Patterson v. McLean Credit Union, 491 U.S. 164, 186,
(1989) (applying framework to claims under 42 U.S.C. § 1981). Under this framework,
a plaintiff must establish a prima facie case of discrimination or retaliation by showing
that: (1) he is a member of a protected class; (2) he is qualified for the position; (3) he
suffered an adverse employment action; and (4) the action occurred under
circumstances that give rise to an inference of unlawful discrimination, such as might
occur when a similarly situated person not of the protected class is treated differently.

15

Cole v. Delaware Technical and Community College, 459 F. Supp. 2d 296, 303 (D. Del.

2006). The question of whether a plaintiff has established this prima face case is a
question of law to be determined by the court. Sarullo v. U.S. Postal Serv., 352 F.3d
789, 797 n. 7 (3d Cir. 2003).
If the plaintiff successfully establishes a prima facie case, the burden then shifts
to the defendant to articulate some legitimate nondiscriminatory reason for the adverse
employment action. McDonnell Douglas, 411 U.S. at 802. If this burden is met, the
plaintiff must then demonstrate that the defendant's asserted rationale is pretextual. Id.
804-05.
The McDonnell Douglas framework does not apply in employment discrimination
or retaliation cases where there is direct evidence of discrimination. Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 511 (2002). Plaintiff17 at bar has presented no direct

evidenced of discrimination. He suggests that the deposition testimony and documents
demonstrate that SCI has "long had a subjective promotional process for officers" that
has allowed selection panels to disregard an objective scoring process in order to
promote non-minority candidates. (D.I. 82) Specifically, in 2010, under the objective
system, plaintiff scored ahead of JB and DV. In 2011, under the subjective system,
plaintiff was ranked third, behind JB and DV. Plaintiff contends that this change was
not due to his "bad interview," but to an intentional adjustment to scores to prevent
plaintiff from being promoted.

17

Plaintiff's opposition to the summary judgment motions contains little legal
analysis. He submits over 13 pages of "facts," ostensibly, from which the court is called
upon to independently cull and piece together specific supporting references.
16

Defendants submit that plaintiff was not selected because of his poor interview
performance, specifically, plaintiff stumbled with some answers. In contrast, the
selection panel considered JB's interview the best they had witnessed in a long time
and found his answers "through, concise and well-articulated." (D.I. 69 at DA25-26)
Poor performance in an interview is recognized as a legitimate nondiscriminatory
reason for failure to hire or promote. Carr v. New Jersey, 534 Fed. Appx. 149, 152 (3d
Cir. 2013); McCann v. Astrue, 293 Fed. Appx. 848, 852 (3d Cir. 2008); Green v. Potter,
No. 08-597, 2010 WL 2557218, at *5 (D. N.J. June 23, 2010). The court finds that
defendants have presented evidence that, although the interviewers considered him
qualified, he was ranked third behind JB and DV. It is undisputed that all the
candidates were asked the same questions by the panel. The interviewers took notes
and made comments on the responses. One of the interviewers, defendant Valentino,
testified that plaintiff stumbled in his responses.
Having found that defendants have articulated a legitimate, nondiscriminatory
reason for the failure to hire plaintiff, the burden shifts back to plaintiff to show that
defendants' explanation was merely a pretext for its actions. While plaintiff seems to
suggest that the hiring and promotional history at SCI, with respect to ranks higher than
captain, demonstrates discriminatory intent, the court concludes that plaintiff has failed
to show sufficient evidence from which a reasonable juror could conclude that
defendants' legitimate, nondiscriminatory reason was pretext. The court will grant
summary judgment for defendants on this claim for racial discrimination in violation of
Title VII and § 1981.

17

To establish a prima facie claim for retaliation under Title VII, plaintiff must show
that: (1) he engaged in a protected activity; (2) there was an adverse employment
action after or contemporaneous with the protected activity; and (3) the protected
activity and the adverse employment action were causally linked. Moore v.

Philadelphia, 461 F.3d 331, 340-41 (3d Cir. 2006); Hussein v. UPMC Mercy Hosp., 466
Fed. Appx. 108, 112 (3d Cir. 2012). The protected activity must be the "but-for" cause
of the defendants' alleged retaliatory action under the causation prong of the prima
facie case. Univ. Of Tex. S. Med. Ctr. V. Nassar,_ U.S._, 133 S.Ct. 2517 (2013).
If the plaintiff proves a prima facie retaliation claim, the McDonnell Douglas
burden-shifting analysis applies in which the defendant is then obligated to advance a
legitimate, non-retaliatory purpose for its adverse employment action. Moore, 461 F.3d
at 342. If the defendant does so, the burden shifts back to the plaintiff to prove the
defendant's adverse action was a pretext for retaliation. Id. Where the plaintiff fails to
raise a genuine issue of material fact for each element of his retaliation claim, summary
judgment should be granted to the defendant. Krouse v. Am. Sterilizer Co., 126 F.3d
494, 503 (1997).
Plaintiff argues that he engaged in activity protected by Title VII by reporting
racial discrimination to the EEOC and, as a result, suffered a materially adverse
employment action - termination. He avers that deposition testimony and documents
support a causal connection between his reporting the racial discrimination and his
termination.

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Viewing the facts in the light most favorable to the non-movant, plaintiff's Title VII
retaliation claim cannot survive a motion for summary judgment. Plaintiff has
established the first and second prongs of a prima facie case, however, he has not
demonstrated that the filing of the EEOC charge was the "but- for" reason for the
termination. Although the filling of the EEOC charge and the termination occurred
within a short time period, temporal proximity alone is insufficient to overcome a
defendant's allegations of pretext. Andes v. N.J. City Univ., 419 Fed. Appx. 230, 234
(3d Cir. 2011) (finding that court erred in focusing exclusively on temporal proximity
when it found no causal connection between the protected activity and the alleged
retaliatory conduct); Kachmarv. SunGard Data Sys., 109 F.3d 173, 178 (3d Cir. 1997)
("It is important to emphasize that it is causation, not temporal proximity, that is an
element of plaintiffs prima facie case, and temporal proximity merely provides an
evidentiary basis from which an inference can be drawn.").
Moreover, a closer examination of the events reveals that an intervening and
independent event caused plaintiff's termination, that is, the DELJIS investigation. On
April 8, 2011, Hobbs contacted the warden's office, complaining that plaintiff had
accessed Hobbs' criminal record illegally through DELJIS. As a result, an IA
investigation was launched. On April 15, 2011, defendant Valentino announced that
the panel had chosen JB for the captain position, not plaintiff. Plaintiff filed a grievance
on May 24, 2011 and the EEOC charge on September 21, 2011, subsequent to the
DELJIS investigation.
This investigation ultimately revealed that plaintiff had committed extensive
DELJIS violations. Plaintiff was afforded several opportunities to address and explain
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his conduct. Yet plaintiff continued to offer explanations that proved implausible and/or
false. Defendant Danberg was prepared to reverse the termination recommendation.
During their March 6, 2012 meeting, however, defendant Danberg concluded that
plaintiff was not telling the truth. Since he considered honesty a "hallmark of a law
enforcement officer," defendant Danberg concluded that plaintiff's deception was
sufficiently compelling to warrant termination. This is a non-retaliatory and legitimate
reason for the termination. Plaintiff has presented nothing demonstrating that
defendant Danberg ordered termination because plaintiff had initiated an EEOC charge.
Similarly, the record does not evince that any of the other defendants acted against
plaintiff because of the EEOC charge.
With respect to the claims under the Fourteenth Amendment's right of equal
protection under 42 U.S.C. § 1983, a plaintiff must demonstrate purposeful
discrimination in order to prevail. Andrews v. City of Philadelphia, 895 F.2d 1469, 1478
(3d Cir. 1990). The McDonnell Douglas framework applies to allegations of racial
discrimination. Stewart v. Rutgers, The State University, 120 F.3d 426, 432 (3d Cir.
1997). Both parties rely on the arguments made under plaintiff's Title VII claim with
regard to plaintiff's equal protection claim based on race discrimination. Accordingly,
for the same reasons the court provided for finding against plaintiff on his Title VII claim,
a summary judgment on his equal protection claim shall be entered as well.
Having concluded that summary judgment of the federal claims is appropriate,
the court will exercise its discretion and will decline to exercise supplemental jurisdiction
over plaintiff's claims for tortious interference and under the Whistleblowers' Act. See
28 U.S.C. § 1367©; see also, Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 63920

40 (2009) (noting purely discretionary abuse of standard of review); De Asencio v.
Tyson Foods, Inc., 342 F.3d 301, 309 (3d Cir. 2003).

V. CONCLUSION
For the reasons stated, defendants' motions for summary judgment are granted.
An order shall issue.

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