Golovan v. University of Delaware et al
MEMORANDUM OPINION regarding Motion to Amend Complaint (D.I. 30 ) and Motion for Summary Judgment (D.I. 35 ). Signed by Judge Richard G. Andrews on 11/6/2014. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
SERGUEI GOLOV AN,
Civil Action No. 13-862-RGA
UNIVERSITY OF DELAWARE, et al.,
C. Scott Reese, Esq., COOCH & TAYLOR, P.A., Wilmington, DE; Christopher Lee, Esq.,
COOCH & TAYLOR, P.A., Wilmington, DE; Ryan Lockman, Esq., MARK B. FROST &
ASSOCIATES, Philadelphia, PA; Mark B. Frost, Esq., MARK B. FROST & ASSOCIATES,
Attorneys for Plaintiff Serguei Golovan.
William E. Manning, Esq., SAUL EWING LLP, Wilmington, DE; James D. Taylor, Esq., SAUL
EWING LLP, Wilmington, DE; Gerard M. Clodomir, SAUL EWING LLP, Wilmington, DE.
Attorneys for Defendants University of Delaware, Jack Gelb, Jr., Mark Rieger, and Robin
On May 17, 2013, Serguei Golovan filed suit against Defendants University of Delaware
(the "University"), Jack Gelb, Jr., Mark Rieger, and Robin Morgan, alleging violation of
Plaintiffs procedural due process rights under the Fourteenth Amendment and breach of
contract. (D.I. 3). On May 15, 2014, Plaintiff filed a motion to amend his complaint to include
two additional claims-First Amendment retaliation and violation of Delaware's
Whistleblowers' Protection Act. (D.I. 30). The Court will grant Plaintiffs motion to amend his
Presently before the Court is Defendants' motion for summary judgment. (D.I. 35).
Defendants' motion addresses Plaintiffs two original claims and two new claims. The motion
has been fully briefed. (D.I. 36, 41 & 48). For the reasons set forth herein, Defendants' motion
for summary judgment is granted with regard to each of Plaintiffs four claims.
Because the Court is reviewing Defendants' motion for summary judgment, the Court
must view the facts in the light most favorable to Plaintiff. On July 11, 2008, Plaintiff received a
retention letter (the "Retention Letter") from Dr. Morgan, Dean of the College of Agriculture and
Natural Resources, offering Plaintiff appointment as a tenure-track assistant professor at the
University beginning September 1, 2008. (D.I. 42, Ex. 2). The Retention Letter states in
This faculty appointment is full-time and for an initial period of two
years. The probationary period for assistant professors shall
normally be no longer than six years from the date of first
appointment as assistant professor at the University of Delaware. In
your case, you would normally be eligible to be considered for
tenure not later than the 2013-2014 academic year (your sixth year
of academic service) with tenure effective, if the decision is
favorable, starting with the fall semester of the 2014-2015 academic
year. Separate and apart from your annual performance appraisal,
you will be evaluated through peer review regarding your progress
toward tenure, according to the procedures set forth in the
University's Handbook, for Faculty and the Promotion and Tenure
Policies and Procedures of the department and college.
(Id. at 23). With regard to promotion and tenure, the University's Faculty Handbook states:
Tenure-track assistant professors are appointed to full-time faculty
positions for an initial term of two years without tenure.
Reappointment at this rank are [sic] for a two-year term. The
probationary period for assistant professors is six years, divided into
three successive two-year contracts. The start of the probationary
period coincides with the effective date of initial appointment as
assistant professor. This date governs the timetables for peer review
for contract renewal and for review for promotion and tenure.
Assistant professors are expected to be considered for promotion
and tenure not later than the sixth year of full-time academic service,
with tenure effective-if the decision is favorable-starting with the
fall semester of the seventh academic year. If the decision on
promotion and tenure is negative, the seventh year of academic
service will be a terminal year. Separate and apart from annual
performance appraisal by the departmental chair, assistant
professors will be evaluated through peer review regarding progress
toward tenure according to the procedures and timetable set forth in
the Faculty Handbook. Lack of progress toward promotion and
tenure may result in contract non-renewal.
(D.1. 42, Ex. 3 at 26).
On February 8, 2010, in accordance with the policies set forth in the Faculty Handbook,
Plaintiff was subject to a two-year peer review for contract renewal by the Promotion and Tenure
Committee (the "Committee") for the Department of Animal and Food Sciences (the
"Department"). (D.I. 42, Ex. 4). In a letter from the Committee to Plaintiff and the Department
Chair, Dr. Gelb, the Committee recommended that Plaintiffs contract be renewed, but expressed
concerns about Plaintiffs research and scholarship. (Id.). With regard to Plaintiffs scholarship,
the Committee gave him four votes for "Satisfactory" and one vote for "Good." (Id. at 29). The
Committee found that Plaintiff lacked a "clear research focus," and strongly recommended that
he "develop a focused research program that is centered on research efforts developed at the
University of Delaware." (Id. at 29-30). On March 2, 2010, Plaintiff received a memorandum
from Dr. Gelb, reflecting similar concerns. (D.I. 42, Ex. 5). Dr. Gelb stated that it was "vital
and in [Plaintiffs] best interest for [Plaintiff] to initiate research at the University of Delaware,"
and that "[Plaintiff] must allocate more time to [Plaintiffs] current responsibilities and less time
to previous commitments to be successful at Delaware." (Id. at 33).
In September 2010, Plaintiff discovered that a colleague, Dr. Cogburn, who served on the
Committee, was in a relationship with a female graduate student. (D.I. 46, Ex. 75 at 129:17-19).
In May 2011, Plaintiff became more concerned about Dr. Cogburn's conduct with his female
students, and believed Dr. Cogburn may have been violating the University's antidiscrimination/harassment policy. (Id. at 130: 13-17). Based on this belief, Plaintiff approached
Dr. Morgan, Dean of the College, and Dr. Keeler, Chair of the Committee, in the hallway of the
Department, and mentioned that Dr. Cogburn may have been engaged in inappropriate sexual
conduct with his female students. (Id. at 127:12-128:13). In response, Dr. Morgan and Dr.
Keeler told Plaintiff that they would look into his claim, and that he should not discuss the matter
with anyone else. (Id. at 128:15-19). The next day, Dr. Gelb came into Plaintiffs office to
inquire about Plaintiffs allegations regarding Dr. Cogburn, and told Plaintiff that he and Dr.
Morgan would "deal with it." (Id. at 131 :4-13).
After Plaintiffs discussions with Dr. Morgan, Dr. Keeler, and Dr. Gelb, Dr. Cogburn
became "frosty" toward Plaintiff, and Dr. Morgan and Dr. Gelb seemed to be "upset." (Id. at
132:6-9). In 2011, Plaintiff asked Dr. Gelb about grant money that Plaintiff had received from
Avian Biosciences Center (ABC) as a part of a four professor team, and Dr. Gelb informed him
that the money had been spent. (Id. at 147:20-148:3). In August 2011, Dr. Gelb refused to
provide additional funding for Plaintiffs provisional patent application. (D.I. 44, Ex. 29 at 20).
In 2011, Dr. Gelb also refused to renew the contract of Plaintiffs post-doctoral student. (D.I. 46,
Ex. 75 at 148: 10-14). Finally, in 2012, Plaintiff received a poor annual performance appraisal
from Dr. Gelb. (Id. at 151:1-12).
On May 18, 2012, Plaintiff received his four-year peer review for contract renewal from
the Committee, and the Committee unanimously voted not to renew Plaintiffs contract. (D.1.
42, Ex. 6). With regard to Plaintiffs scholarship, he received four "Unsatisfactory" votes, and
one "Satisfactory" vote. (Id. at 36). The Committee maintained the same concerns reflected in
Plaintiffs two-year review, finding that Plaintiff lacked the "productivity and extramural
competitive grant support" to develop a fundable research focus, and that he had "not made
acceptable progress towards a successful promotion and tenure application." (Id. at 37). On
May 25, 2012, Dr. Gelb, the Department Chair, agreed with the Committee's decision and
recommended that Plaintiffs contract renewal be denied. (D.I. 42, Ex. 7). On June 18, 2012,
Dr. Morgan, the Dean of the College, agreed with both the Committee and Dr. Gelb's assessment
and refused to renew Plaintiffs contract. (D.I. 42, Ex. 8). On September 4, 2012, Plaintiff met
with Dr. Rieger, the new Dean of the College, to discuss appealing the decision not to renew
Plaintiffs contract. (D.I. 42, Ex. 11at51). After this meeting, Plaintiff filed a formal letter of
appeal to Dr. Reiger. (D.142, Ex. 10). Upon review, Dr. Rieger upheld the decisions of Dr.
Morgan, Dr. Gelb, and the Committee not to renew Plaintiffs contract. (D.I. 42, Ex. 11).
"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 of law." FED.
R. Civ. P. 56(a). The moving party has the initial burden of proving the absence of a genuinely
disputed material fact relative to the claims in question. Celotex Corp. v. Catrett, 477 U.S. 317,
330 (1986). Material facts are those "that could affect the outcome" of the proceeding, and "a
dispute about a material fact is 'genuine' if the evidence is sufficient to permit a reasonable jury
to return a verdict for the nonmoving party." Lamont v. New Jersey, 63 7 F .3d 177, 181 (3d Cir.
2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The burden on the
moving party may be discharged by pointing out to the district court that there is an absence of
evidence supporting the non-moving party's case. Celotex, 477 U.S. at 323.
The burden then shifts to the non-movant to demonstrate the existence of a genuine issue
for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986);
Williams v. Borough of West Chester, 891F.2d458, 460-61 (3d Cir. 1989). A non-moving party
asserting that a fact is genuinely disputed must support such an assertion by: "(A) citing to
particular parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations ... , admissions, interrogatory answers, or
other materials; or (B) showing that the materials cited [by the opposing party] do not establish
the absence ... of a genuine dispute .... " FED. R. C1v. P. 56(c)(l).
When determining whether a genuine issue of material fact exists, the court must view
the evidence in the light most favorable to the non-moving party and draw all reasonable
inferences in that party's favor. Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v. Potter,
476 F.3d 180, 184 (3d Cir. 2007). A dispute is "genuine" only ifthe evidence is such that a
reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 247--49.
If the non-moving 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. See Celotex Corp., 477 U.S. at 322.
Plaintiffs amended complaint raises four distinct claims: (1) deprivation of Fourteenth
Amendment procedural due process; (2) breach of contract; (3) First Amendment retaliation; and
(4) violation of Delaware's Whistleblowers' Protection Act. (D.I. 30, Ex. 1). Defendants move
for summary judgment on each of these claims.
Procedural Due Process Claim
Plaintiff contends that Defendants violated his right to procedural due process under the
Fourteenth Amendment. "The Fourteenth Amendment prohibits state deprivations of life,
liberty, or property without due process oflaw." Thomas v. Independence Twp., 463 F.3d 285,
297 (3d Cir. 2006). In order to state a claim for violation of procedural due process a plaintiff
must show: (1) deprivation of an individual interest in "life, liberty, or property" under the
Fourteenth Amendment, and (2) failure to provide "due process oflaw." Hill v. Borough of
Kutztown, 455 F.3d 225, 234-35 (3d Cir. 2006).
1. Property Interest
Plaintiff argues that he had a property interest in continued employment at the University
until the sixth year of his employment. 1 "To have a property interest in a benefit, a person ...
Plaintiff does not argue that he had a property interest in the specific procedures set forth in the Faculty Handbook
for evaluating promotion and tenure. See Goodisman v. Lytle, 724 F.2d 818, 821 (9th Cir. 1984). Nevertheless, the
University's procedures for evaluating promotion and tenure do not significantly limit the University officials'
discretion in making promotion and tenure decisions, and thus are not constitutionally significant.
must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of
entitlement to it." Bd. of Regents ofState Colleges v. Roth, 408 U.S. 564, 577 ( 1972). Whether
a person has a legitimate entitlement to a governmental job must be answered under state law.
Hill, 455 F.3d at 234. Here, Plaintiff relies on contract law as the basis for his property interest
in continued employment. Under Delaware law, "[c]ontracts are to be interpreted as written, and
effect must be given to their clear and unambiguous terms." SV Inv. Partners, LLC v.
Thought Works, Inc., 7 A.3d 973, 983 (Del. Ch. 2010). "When a contract is clear on its face, the
court should rely solely on the clear, literal meaning of the words contained in the contract." Id.
The terms of Plaintiffs employment agreement with the University are clearly
established by the language in the Retention Letter and Faculty Handbook. The Retention Letter
states: "Separate and apart from your annual performance appraisal, you will be evaluated
through peer review regarding your progress toward tenure, according to the procedures set forth
in the University's Handbook, for Faculty and the Promotion and Tenure Policies and Procedures
of the department and college." In addition, the Faculty Handbook states: "Tenure-track
assistant professors are appointed to full-time faculty positions for an initial term of two years
without tenure. Reappointment at this rank are [sic] for a two-year term. The probationary
period for assistant professors is six years, divided into three successive two-year contracts."
The Faculty Handbook also states that "[l]ack of progress toward promotion and tenure may
result in contract non-renewal." The plain meaning of the language is clear-Plaintiff was hired
for a probationary period of six years, made up of three two-year contracts. The Faculty
Handbook makes clear that Plaintiffs contract renewal would be based on adequate progress
toward promotion and tenure, as judged by the peer review process.
Additionally, the record shows that Plaintiff did not have an expectation of continued
employment. Plaintiff received an e-mail from the Department Chair prior to his two-year
review stating that "[a] favorable two-year review will be the basis for offering [Plaintiff] a two-
to his four-year review as well. (D.1. 36, Ex. N). Plaintiff was made well aware, in his
employment agreement and in subsequent correspondence, that he was not entitled to renewal of
year reappointment/contract." (D.I. 36, Ex. F). Plaintiff received a nearly identical e-mail prior
his contract, and that if his contract was renewed, it was only for two years. Any reappointment
was contingent on a favorable review. Thus, even in the light most favorable to Plaintiff,
Plaintiff fails to establish that he had a property interest in continued employment after four
2. Liberty Interest
Plaintiff also argues that Defendants deprived him of a liberty interest by terminating his
employment in a manner that prevented him from obtaining subsequent employment. It is well
settled that reputation alone is not a protected interest under the Fourteenth Amendment. Hill v.
Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006) (citing Paul v. Davis, 424 U.S. 693, 712
(1976)). To determine whether a person has been deprived of a liberty interest in reputation,
courts apply the "stigma-plus" test, which requires a plaintiff to show "a stigma to his reputation
plus deprivation of some additional right or interest." A public employee is deprived of a
protected liberty interest "when an employer creates and disseminates a false and defamatory
impression about the employee in connection with his termination." Id. Under the stigma-plus
test, "the creation and dissemination of a false and defamatory impression is the 'stigma,' and the
termination is the 'plus."' Id. "To satisfy the 'stigma' prong of the test, it must be alleged that
the purportedly stigmatizing statements(s) (1) were made publicly, and (2) were false." Id.
Here, Plaintiff has failed to show the creation or dissemination of any false or defamatory
statements regarding his termination. The only statements made about Plaintiff, so far as the
record shows, were contained in letters sent to him by the Committee, Department Chair, and
Dean of the College regarding Plaintiffs peer review for contract renewal. Plaintiff argues that
his inability to obtain subsequent employment is evidence of stigma, but Plaintiff has failed to
allege that any of Defendants' statements were disseminated publicly. Further, Plaintiff has not
alleged that any of Defendants' statements were false. Thus, Plaintiff has failed to establish the
In addition, Plaintiff has failed to allege that Defendants made any charges against him in
connection with the non-renewal of his contract. In Roth, the Court held that a non-tenured
assistant professor was not deprived of a liberty interest because "in declining to rehire the
[professor], [the university] did not make any charge against him that might seriously damage his
standing and associations in his community." Roth, 408 U.S. at 573. The Court noted that the
university "did not base the nonrenewal of [the professor's] contract on a charge, for example,
that he had been guilty of dishonesty, or immorality." Id Here, like Roth, Defendants made no
charge against Plaintiff that he was guilty of "dishonesty," "immorality," or the like. Rather, the
record shows that Defendants decided not to renew Plaintiffs contract based on the Committee's
evaluation in Plaintiffs four-year review. As the Court in Roth stated, "It stretches the concept
too far to suggest that a person is deprived of 'liberty' when he simply is not rehired in one job
but remains as free as before to seek another." Roth, 408 U.S. at 575. Plaintiff was not subject
to stigmatizing statements, and remains free to seek future employment. Therefore, Plaintiff has
not been deprived of a liberty interest in his reputation.
3. Sufficient Process
Even if Plaintiff had been deprived of a property or liberty interest, Defendants provided
Plaintiff with sufficient due process to satisfy the requirements of the Fourteenth Amendment.
Plaintiff argues that he was deprived of due process because the peer review process lacked
"written rating criteria, standards, [and] procedures." (D.I. 41 at 20). Plaintiff, however, fails to
provide any case law supporting this proposition. "The essential requirements of due process ...
are notice and an opportunity to respond." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
546 (1985). In the context of public employment, a "tenured public employee is entitled to oral
or written notice of the charges against him, an explanation of the employer's evidence, and an
opportunity to present his side of the story." Id. Here, Plaintiff was not a tenured professor, but
received all three of the due process requirements for tenured public employees.
The record shows that Plaintiff received more than adequate notice of his four-year
review and the Department's intention not to renew his contract. Plaintiff received an e-mail
from Dr. Gelb on August 18, 2011, almost a year before Plaintiffs four-year review, informing
Plaintiff that his four-year review would take place in the coming year. (D.I. 36, Ex. N). In this
e-mail, Dr. Gelb explained that Plaintiffs four-year review would be conducted by the
Committee and that the review would be based on "evidential materials presented in [Plaintiffs]
dossier." (Id.). Plaintiff was also informed that Dr. Gelb would review Plaintiffs dossier as
Department Chair and make a recommendation to the Dean of the College, who would then
review Plaintiffs dossier and make a final recommendation. (Id.) Dr. Gelb made clear that "[a]
favorable four-year review will be the basis for offering [Plaintiff] a two-year
reappointment/contract." (Id.). After Plaintiffs four-year review, Plaintiff received letters from
the Committee, Department Chair, and Dean, informing Plaintiff that his contract would not be
renewed after his second two-year term. The Committee, Department Chair, and Dean's letters
all provided detailed reasoning as to why Plaintiffs contract was not recommended for renewal.
Thus, Plaintiff received more than sufficient notice to satisfy the due process requirement.
Plaintiff also argues that his appeal was insufficient because his claims were not reviewed
"de nova." The Court disagrees. On appeal, Dr. Rieger, the new Dean of the College, met with
Plaintiff to discuss the Committee's decision, reviewed Plaintiffs dossier, and re-read the letters
from the Committee, Dr. Gelb, and Dr. Morgan. In a letter to Plaintiff on August 29, 2012, Dr.
Rieger instructed Plaintiff to focus his appeal on: "(1) errors of fact that may have led to a
misrepresentation of [Plaintiffs] body of work; and (2) new and relevant information about
[Plaintiffs] performance that was not considered previously by the committee or Dean Morgan."
(D.I. 42, Ex. 9 at 45). Plaintiff then submitted a formal letter to Dr. Rieger detailing the grounds
of his appeal and arguing for reconsideration. After reviewing Plaintiffs appeal, Dr. Rieger
found that Dr. Morgan, Dr. Gelb, and the Committee had accurately assessed Plaintiffs
performance, and upheld their decision not to renew Plaintiffs contract. The record shows that
the appeal process gave Plaintiff ample opportunity to "present his side of the story," and thus
provided Plaintiff with sufficient due process. For the reasons stated above, summary judgment
is granted in favor of Defendants with regard to Plaintiffs due process claim.
Breach of Contract Claim
Plaintiff argues that Defendants breached his employment agreement by refusing to
renew his contract after his second two-year term. As stated above, "[ c]ontracts are to be
interpreted as written, and effect must be given to their clear and unambiguous terms." SV Inv.
Partners, LLC v. ThoughtWorks, Inc., 7 A.3d 973, 983 (Del. Ch. 2010). "When a contract is
clear on its face, the court should rely solely on the clear, literal meaning of the words contained
in the contract." Id.
Here, the Retention Letter clearly refers to the Faculty Handbook regarding the
University's policies on promotion and tenure. The Faculty Handbook makes clear that Plaintiff
was hired for a six-year probationary period, consisting of three consecutive two-year contracts. 2
Pursuant to the Faculty Handbook, Plaintiff was subject to a peer review after each two-year
period to determine whether his contract would be renewed. The Committee had the right to
vote against Plaintiff's contract renewal, and did so, according to the policies and procedures set
forth in the Faculty Handbook. Plaintiff's employment agreement is unambiguous on its face,
and thus, must be interpreted based on the plain meaning of its terms. Therefore, summary
judgment is granted in favor of Defendants with regard to Plaintiff's breach of contract claim.
Plaintiff argues that Defendants' refusal to renew his employment contract constitutes
retaliation in violation of his First Amendment rights. A First Amendment retaliation claim
requires a plaintiff to show: (1) constitutionally protected conduct; (2) retaliatory action
sufficient to deter a person of ordinary firmness from exercising his or her constitutional rights;
and (3) a causal link between the constitutionally protected conduct and the retaliatory action.
Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006).
Plaintiff alleges that he did not receive the Faculty Handbook along with his employment agreement, and thus is
not bound by the Faculty Handbook's provisions. (D.l. 41 at 12). I reject this argument because the Retention
Letter clearly incorporates the Faculty Handbook by reference. Under Delaware law, "[w]here a contract is
executed which refers to another instrument and makes the conditions of such other instrument a part of it, the two
will be interpreted together as the agreement of the parties." Lipson v. Anesthesia Servs., P.A., 790 A.2d 1261, 1278
(Del. Super. Ct. 2001). Here, the Retention Letter states: "Separate and apart from your annual performance
appraisal, you will be evaluated through peer review regarding your progress toward tenure, according to the
procedures set forth in the University's Handbook, for Faculty and the Promotion and Tenure Policies and
Procedures of the department and college." Therefore, the Retention Letter and Faculty Handbook are to be
interpreted together and form Plaintiffs entire employment agreement.
1. Protected Conduct
Plaintiff argues that his statements regarding Dr. Cogburn were protected speech under
the First Amendment. "A public employee's statement is protected activity when (1) in making
it, the employee spoke as a citizen, (2) the statement involved a matter of public concern, and (3)
the government employer did not have an adequate justification for treating the employee
differently from any other member of the general public as a result of the statement he made."
Hill v. Borough of Kutztown, 455 F.3d 225, 241-42 (3d Cir. 2006) (internal quotation marks
omitted) (citing Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)). "A public employee does not
speak 'as a citizen' when he makes a statement pursuant to his official duties." Id. at 242.
"[W]hen public employees make statements pursuant to their official duties, the employees are
not speaking as citizens for First Amendment purposes, and the Constitution does not insulate
their communications from employer discipline." Garcetti, 54 7 U.S. at 421.
Plaintiff argues that he spoke as a citizen when reporting Dr. Cogburn, and not pursuant
to his official duties as a professor. (D.I. 50). Plaintiff testified to making a verbal report to Dr.
Morgan, Dr. Keeler, and Dr. Gelb in May 2011, regarding possible sexual harassment by Dr.
Cogburn toward his female students. (D.I. 46, Ex. 75 at 127:12-128:13; 131:4-13). The Third
Circuit has "consistently held that complaints up the chain of command about issues related to an
employee's workplace duties-for example, possible safety issues or misconduct by other
employees-are within an employee's official duties." Morris v. Phila. Haus. Auth., 487 F.
App'x 37, 39 (3d Cir. 2012) (citing Hill, 455 F.3d at 242). In Plaintiffs complaint, Plaintiff
alleged that he "reasonably believed that Dr. Cogburn was violating the University antidiscrimination/harassment policy," and pursuant to that policy, Plaintiff was "required to report
said violations." (D.1. 30, Ex. 1 iii! 36-37). Plaintiff made his statements pursuant to his official
duties as a professor, under the University's anti-discrimination/harassment policy, and thus, did
not make his statements as a citizen.
Plaintiff also argues that his speech involved a matter of public concern. "An employee's
speech addresses public concern when it can be fairly considered as relating to any matter of
political, social, or other concern to the community." Feldman v. Phi/a. Haus. Auth., 43 F.3d
823, 829 (3d Cir. 1994) (internal quotation marks omitted) (citing Connick v. Myers, 461 U.S.
138, 146 (1983)). "The content of the speech may involve a matter of public concern if it
attempts to bring to light actual or potential wrongdoing or breach of public trust on the part of
government officials." Baldassare v. New Jersey, 250 F.3d 188, 194 (3d Cir. 2001) (internal
quotation marks omitted). Thus, there is no doubt that Plaintiffs report addressed a matter of
public concern. Nevertheless, since Plaintiff was not speaking as a citizen when reporting Dr.
Cogburn, it is irrelevant that he was speaking about a matter of public concern. Therefore,
Plaintiffs statements are not protected speech under the First Amendment.
2. Retaliatory Action and Causal Link
Plaintiff also fails to show a causal link between Plaintiffs report and Defendants'
retaliatory action. In order to show a causal link, the protected activity must have been a
substantial factor in the alleged retaliatory action. Hill v. Borough of Kutztown, 455 F.3d 225,
241 (3d Cir. 2006). "To establish the requisite causal connection a plaintiff usually must prove
either (1) an unusually suggestive temporal proximity between the protected activity and the
allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a
causal link." Lauren W ex rel. Jean W v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). For
timing alone to be enough to establish a causal link, "the timing of the alleged retaliatory action
must be unusually suggestive of retaliatory motive before a causal link will be inferred."
Thomas v. Town of Hammonton, 351F.3d108, 114 (3d Cir. 2003) (internal quotation marks
omitted). In cases where temporal proximity is not close enough to be "unduly suggestive," then
the appropriate test is the "timing plus other evidence test." Id.
Plaintiff argues that after he reported Dr. Cogburn's possible sexual harassment to Dr.
Morgan, Dr. Keeler, and Dr. Gelb in May 2011, Defendants engaged in a series ofretaliatory
acts against him. (D.1. 41 at 15). The Court finds that Plaintiff's vague allegations are not
sufficient to meet Plaintiff's burden of showing unusually suggestive temporal proximity, a
pattern of antagonism, or conduct that is unusually suggestive of retaliatory motive. First,
Plaintiff alleges he was denied grant money in 2011 as a result of his report, but fails to provide
an approximate date for when the grant money was denied. (D.I. 46, Ex. 75 at 147:20-148:3).
Further, the ABC grant was awarded to a team of four professors including Plaintiff in 20092010, and thus Plaintiff had been denied this grant money for over a year before making his
sexual harassment report. (D.1. 42, Ex. 1 at 21). Second, Plaintiff requested funding to file a
provisional patent on August 1, 2011, three months after Plaintiff's report. (D.1. 44, Ex. 29 at
20). Dr. Gelb informed Plaintiff that day that the Department and College would not be able to
fund Plaintiff's provisional patent application. (Id.). Plaintiff then received an e-mail from the
University's Technology Transfer Center on March 5, 2012, ten months after Plaintiff's sexual
harassment report, informing him that the University would not pursue "conversion" of
Plaintiff's provisional patent "due to the very early stage of the invention." (D.1. 45, Ex. 55 at
40). Third, Dr. Gelb did not renew Plaintiff's post-doctoral student in 2011, but Plaintiff fails to
provide an approximate time for when this event occurred. (D.I. 46, Ex. 75 at 148:10-14). Even
in the light most favorable to Plaintiff, these isolated events do not meet the unusually suggestive
temporal proximity standard, do not amount to a pattern of antagonism, and do not otherwise
suggest a retaliatory motive.
Plaintiff also attributes his negative 2011 annual appraisal to retaliation. (Id. at 151: 112). The Third Circuit has declined to infer a causal link for purposes of retaliation where the
employee's negative performance evaluations predate the protected activity. See Shaner v.
Synthes, 204 F.3d 494, 507 (3d Cir. 2000). Prior to Plaintiffs report of sexual harassment in
May 2011, Plaintiff had received three consecutive subpar annual appraisals and one lackluster
two-year review. (D.I. 36, Exs. I & G). The Committee's decision not to renew Plaintiffs
contract after his four-year review was entirely consistent with Plaintiffs prior evaluations.
(Id.). Plaintiffs annual appraisals from 2008-2011 all reflected concerns about Plaintiffs
research focus and his progress in developing his own research. (D.I. 36, Exs. I & M). In
Plaintiffs 2010 annual appraisal, the one immediately preceding Plaintiffs report of sexual
harassment, the Department Chair wrote "there was little evidence that [Plaintiff] has progressed
at UD in developing his own research program." (D.I. 36, Ex. I at 24). In Plaintiffs two-year
review in February 2010, the Committee gave Plaintiffs scholarship four "Satisfactory" votes,
and found that his research lacked a clear focus. (D.I. 36, Ex. G at 4-5). The Department
Chair's letter to Plaintiff after his two-year review implored Plaintiff to allocate more time to
research at the University and less time to prior commitments from his former university. (D.I.
36, Ex. H). It is clear from the record that Plaintiffs negative reviews predated his sexual
harassment claim and were consistent throughout his time at the University.
Finally, the Committee was made of five members who voted unanimously, by way of
individual secret ballot, against renewing Plaintiffs contract. (D.I. 42, Ex. 6). Dr. Keeler had
knowledge of Plaintiffs report. There is no evidence in the record, however, that the other four
members of the Committee had this knowledge. 3 It follows that four out of the five professors
on the Committee decided not to renew Plaintiffs contract without knowledge of Plaintiffs
report. Plaintiff also argues that Dr. Morgan and Dr. Gelb had knowledge of Plaintiffs report
and both wrote letters approving the Committee's decision. (D.I. 41 at 12-13). Regardless of
Dr. Morgan and Dr. Gelb's knowledge of Plaintiffs report, their approval of the Committee's
decision was reviewed and affirmed by Dr. Rieger on appeal. (D.I. 42, Ex. 11). There is no
evidence in the record that Dr. Rieger had any knowledge of Plaintiffs report, and thus, there is
no causal link between Plaintiffs report and Dr. Rieger's decision to uphold the Committee's
decision. Viewing the evidence in the light most favorable to Plaintiff, the Court finds no causal
link between Plaintiffs report and the non-renewal of his contract. For all the reasons set forth
above, summary judgment is granted in favor of Defendants with regard to Plaintiffs First
Amendment retaliation claim.
Under the Delaware Whistleblowers' Protection Act (WPA):
An employer shall not discharge, threaten, or otherwise discriminate
against an employee regarding the employee's compensation, terms,
conditions, location, or privileges of employment ... because the
employee reports verbally or in writing to the employer or to the
employee's supervisor a violation, which the employee knows or
reasonably believes has occurred or is about to occur ....
19 Del. C. § 1703(4).
A violation is defined as an act or omission that is "[m]aterially inconsistent with, and a
serious deviation from, standards implemented pursuant to a law, rule, or regulation promulgated
Dr. Cogburn was on the Committee. Even if Dr. Cogburn knew that he had been reported for sexual harassment,
there is no evidence that he would have known who reported him.
under the laws of this State .... " Id. § 1702(6). If the employee makes a verbal report, the
employee must establish that the report was made by "clear and convincing evidence." Id. §
1703(4). The burden of proof is on the employee to show that the employee's protected conduct
was "the primary basis for the discharge, threats, or discrimination." Id. § 1708.
The analysis under the WP A is similar to that for Plaintiffs First Amendment retaliation
claim. Plaintiff has failed to show that his report was the primary basis for the non-renewal of
his contract. It is clear from the record that the Committee was concerned with Plaintiffs
performance prior to his report regarding Dr. Cogburn. The Committee and Dr. Gelb both urged
Plaintiff to focus his research in his two-year review. (D.I. 42, Ex. 4). In each of Plaintiffs
annual appraisals leading up to 2011, Plaintiff was advised to further develop his research at the
University. (D.I. 36, Ex. I). In Plaintiffs 2011 appraisal, Plaintiff was informed that his
accomplishments in research were still "lower than anticipated." (D.I. 36, Ex.Mat 47).
Plaintiffs four-year review was consistent with Plaintiffs two-year review and each of his
annual appraisals. Plaintiff has failed to offer any evidence to show that his protected conduct
was "the primary basis for discharge, threats, or discrimination." 4 Therefore, the Court grants
summary judgment in Defendants' favor with regard to Plaintiffs whistleblower claim.
For the reasons set forth above, the Court will grant Plaintiffs motion to amend the
complaint, and will grant summary judgment in favor of Defendants on all counts. A separate
Order consistent with this Memorandum Opinion will be entered.
There is a serious question as to whether Plaintiff has offered sufficient evidence to show he made the report he
claims to have made. Other than his own testimony at deposition, there is not a shred of evidence in the record
indicating that he made the report. It seems unlikely that a jury would be able to find clear and convincing evidence
that Plaintiffs report was made. Ultimately, though, the issue involves a question of credibility, and questions of
credibility are not suitable for resolution on summary judgment.
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