Gillespie v. Hocker et al

Filing 51

MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 4/19/2017. (nmfn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
EVAN GILLESPIE,

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Plaintiff,
v.

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LT. WILLIAM HOCKER, individually and in
his official capacity as a Town of Dewey
Beach Police Officer, CHIEF PAUL
BERNAT, individually and in his official
capacity as a City of Dover Police Officer,
SGT. KEVIN KOBER, individually and in his
official capacity as a City of Dover Police
Officer, and
CITY OF DOVER, DELAWARE,

Civ. No. 15-51-SLR

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Defendants.

Daniel C. Herr, Esquire of Law Office of Daniel C. Herr LLC, Wilmington, Delaware.
Counsel for Plaintiff.
Daniel A. Griffith, Esquire, Scott G. Wilcox, Esquire, and Kaan Ekiner, Esquire of
Whiteford Taylor & Preston LLP, Wilmington, Delaware. Counsel for Defendants
Chief Paul Bernat, Sergeant Kevin Kober, and City of Dover, Delaware.

MEMORANDUM OPINION

Dated: April _li, 2017
Wilmington, Delaware

R~~trict Judge
I.

INTRODUCTION

Plaintiff Evan Gillespie ("plaintiff'') has asserted claims against Lieutenant William
Hocker ("Hocker") of the Dewey Beach Police Department (the "Dewey Beach PD"),
Sergeant Kevin Kober ("Kober") and Chief Paul Bernat ("Bernat") of the Dover Police
Department (the "Dover PD"), and the City of Dover, Delaware ("Dover") in relation to
the termination of his employment with the Dover PD. (D.I. 9) The court previously
granted motions to dismiss all of the claims asserted against Hocker and one of the
claims asserted against Dover. (D.I. 28) Currently before the court is a motion for
summary judgment on the remaining claims filed by Kober, Bernat, and Dover (the
"Dover defendants"). (D.I. 45) The court has subject matter jurisdiction over this action
pursuant to 28 U.S.C. § 1332. For the reasons discussed below, the Dover defendants'
motion for summary judgment is denied.

II.

BACKGROUND

A.

Statement of Facts

In the summer of 2014, plaintiff worked for Dewey Beach PD as a supervisor of
summer seasonal officers. (D.I. 91116) In August 2014, after accepting a full-time
employment offer from Dover PD, plaintiff resigned from his position at Dewey Beach
PD. (Id. at 111118, 19, 23) Plaintiff emailed his resignation to the Chief of Dewey Beach
PD. (Id. at 1} 23) Before leaving Dewey Beach PD, plaintiff inquired whether he had
completed all of his duties. (Id. at 1} 26-30) At the time, there was no indication that he
had not fulfilled all of his obligations. (Id. at 1} 27-30)

On September 8, 2014, plaintiff began training at the Delaware State Police
Academy (the "Academy"). (Id. at 1l 32) Shortly thereafter, Hocker, one of plaintiff's
former supervisors at Dewey Beach PD, allegedly made the following statements to
officers and agents of the Academy and Dover PD: plaintiff left his employment at
Dewey Beach PD early; he did not complete all of his police reports; he was
inappropriately unresponsive to phone calls; he wrongfully kept his Dewey Beach PD
badge; and he failed to follow the chain of command when resigning. (Id. at 1l 34)
On September 10, 2014, Kober met with plaintiff to question him about the
Dewey Beach PD allegations. (Id. at 1l1l 38, 41, 43, 52) Plaintiff denied any wrongdoing.
(Id.) Among other things, plaintiff said that, as far as he knew, he had completed all of
his police reports; he did not return Hocker's phone call on the date in question because
he never received one; he had kept his badge because he had a court appearance the
following week; and he had sent his resignation directly to the Chief of Dewey Beach
PD upon the instructions of two officers from the Dewey Beach PD. (Id.) Kober
accused plaintiff of lying with respect to each of his explanations. (Id. at 1l1l 43, 44, 54,
57) In particular, Kober claimed to have checked Gillespie's cell phone which showed a
missed call from Hocker on the date in question and checked with the court and found
that plaintiff did not have court "next week or in the future at all." (D.I. 47 at 5) Kober
memorialized his version of the facts regarding his meeting with Gillespie in a report
submitted to Bernat that same day. (D.I. 46-6, Ex. F)
On September 11, 2014, plaintiff met with Bernat who further questioned plaintiff
regarding the Dewey Beach PD allegations. (Id. at 1l1l 82, 85, 87) Plaintiff again denied
any wrongdoing. (Id. at 1l 88) Bernat was concerned about plaintiff's "truthfulness,

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integrity, and credibility." (D.I. 46 at 6) Following this discussion, Bernat informed
plaintiff he was terminated from Dover PD and handed him a termination letter. (Id. at

1J1J 93, 95) The letter outlined that plaintiff was being terminated because he was not
truthful concerning questions asked of him relating to his employment with Dewey
Beach PD. (Id. a 1J 96) Bernat relied upon Kober's report to terminate plaintiff. (D.I. 466, Ex. F)
Upon returning home after his termination from Dover PD, plaintiff noticed an
email from the Chief of Dewey Beach PD indicating that he needed to fix portions of two
police reports. (Id. at 1J 117-121) The email was sent while plaintiff was training at the
Academy and did not have access to email. (Id.) Plaintiff has submitted phone records
and court scheduling records tending to indicate, respectively, that he never received a
phone call from Hocker on the date in question and that he had to make a court
appearance on September 16, 2014 and October 21, 2014 to provide testimony as a
police officer. (D.I. 47 at 7)

B.

Procedural History

On March 4, 2015, plaintiff filed a first amended complaint asserting seven
claims: a procedural due process claim under 42 U.S.C. § 1983 against Hocker (count
1); the same type of claim against Kober and Bernat (count 2); a claim for breach of the
implied covenant of good faith and fair dealing against Dover (count 3); a defamation
claim against Hocker, Kober, and Bernat (count 4); a municipal liability claim under 42
U.S.C. § 1983 against Dover (count 5); a substantive due process claim under 42
U.S.C. § 1983 against Kober and Bernat (count 6); and a promissory estoppel claim
against Dover (count 7). (D.I 9) On July 22, 2015, the court granted Hocker's motion

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for summary judgment, treated as a motion to dismiss. (D.I. 28) At the same time, the
court granted in part and denied in part the Dover defendants' motion to dismiss. (Id.)
As a result, count 1, count 7, and those portions of count 4 asserted against Hocker
were dismissed. On September 2, 2016, the Dover defendants moved for summary
judgment on all surviving claims. (D.I. 45) Plaintiff conceded that he cannot contest the
motion as to counts 2, 4, and 5, thereby leaving only counts 3 and 6 for the court to
decide. (D.I. 47)

Ill.

STANDARD OF REVIEW
"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 bears the burden of
demonstrating the absence of a genuine issue of material fact. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 415 U.S. 475, 586 n. 10 (1986). A party asserting that a fact
cannot be-or, alternatively, is-genuinely disputed must support the assertion either by
citing to "particular parts of materials in the record," or by "showing that the materials
cited do not establish the absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact." Fed. R. Civ. P.
56(c)(1)(A) & (B). If the moving party has carried its burden, the nonmovant must then
"come forward with specific facts showing that there is a genuine issue for trial."

Matsushita, 415 U.S. at 587 (internal quotation marks omitted). The court will "draw all
reasonable inferences in favor of the nonmoving party, and it may not make credibility
determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150 (2000).

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To defeat a motion for summary judgment, the non-moving party "must present
more than just bare assertions, conclusory allegations or suspicions to show the
existence of a genuine issue." Podohnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d
Cir. 2005) (internal quotation marks omitted). Although the "mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment," a factual dispute is genuine where "the
evidence is such that a reasonable jury could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "If the evidence is merely

colorable, or is not significantly probative, summary judgment may be granted." Id. at
249-50 (internal citations omitted); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) (stating that entry of summary judgment is mandated "against a party who fails to
make a showing sufficient to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of proof at trial").

IV.

DISCUSSION
The Dover defendants have moved for summary judgment on plaintiff's

substantive due process claim against Kober and Bernat (count 6) and breach of the
implied covenant claim against Dover (count 3). (D.I. 45) According to the Dover
defendants, plaintiff has no evidence supporting either claim. (D.I. 46 at 11-13, 16)
Each claim will be addressed in turn.

A.

Substantive Due Process

The Due Process Clause of the Fourteenth Amendment contains a substantive
component that bars arbitrary, wrongful government action "regardless of the fairness of
the procedures used to implement them." Zinermon v. Burch, 494 U.S. 113, 125

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(1990). To prove a substantive due process claim under 42 U.S.C. § 1983, a plaintiff
must show that defendant, acting under the color of state law, interfered with a
constitutionally protected liberty or property interest. Bd. of Regents v. Roth, 408 U.S.
564, 569 (1972); DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592 (3d Cir. 1995);
C&C Const. Rehab. Specialists v. Wilmington Haus. Auth., 1996 WL 190011, at *2 (D.
Del. Mar. 20, 1996). Plaintiff asserts that Kober and Bernat interfered with his liberty
interest in pursuing a "calling or occupation,'' which the Third Circuit has recognized as
an interest secured by the Fourteenth Amendment. Thomas v. Independent Township,
463 F.3d 285, 297 (3d Cir. 2006). To find that the interference violated the Fourteenth
Amendment, plaintiff must show that Kober and Bernat acted arbitrarily, irrationally, or
with an improper motive, or that Kober and Bernat's conduct was so egregious it
"shocks the conscious." Gillespie v. Hocker, 2015 WL 4468922, at *5 (D. Del. July 22,
2015).
Kober and Bernat argue that plaintiff can present no evidence of arbitrary,
irrational, or wrongful government action. (D.I. 46 at 12) Plaintiff, however, claims that
Kober lied to cause his termination and Bernat memorialized that lie in plaintiff's
termination letter. (D.I. 47 at 10) Plaintiff has submitted evidence tending to show that
he was truthful about each of his explanations given to rebut the Dewey Beach PD
allegations. Specifically, plaintiff has submitted phone records showing that he did not
receive a phone call from Hocker on the date in question, court scheduling records
showing that he had a court appearance in the near future, and an email from the
Dewey Beach PD regarding unfinished police reports which was sent while plaintiff did
not have access to email at the Academy. (D.I. 47 at Exs. K, M, & N) If a jury finds that

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plaintiff was telling the truth, then the jury may also find that Kober and Bernat were not
being truthful, and used fabrications to cause plaintiff's termination. Plaintiff has at least
created a genuine issue of material fact concerning the truthfulness of Kober and Bernat
and whether these fabrications resulted in a deprivation of substantive due process.
For these reasons, the Dover defendants' motion for summary judgment on the
substantive due process claim (count 6) is denied.

B.

Implied Covenant of Good Faith and Fair Dealing

Every employment relationship, including at-will employment, contains an implied
covenant of good faith and fair dealing. Merrill v. Crotha/1-American, Inc., 606 A.2d 96,
101 (Del. 1992). Relevant to this case, the covenant is violated when an employer
falsifies or manipulates an employment record to create fictitious grounds for
termination. DuPont de Nemours & Co. v. Pressman, 679 A.2d 436, 440 (Del. 1996).
Defendants' argument, in essence, is that "Plaintiff was appropriately terminated for
dishonesty." (D.I. 46 at 15) As stated in the previous section, however, plaintiff has
submitted evidence tending to contradict the Dover defendants' assertions that plaintiff
lied about the Dewey Beach PD allegations. (See D.I. 47 at Exs. K, M, & N) Thus,
plaintiff has raised a genuine issue of material fact regarding whether Kober lied
concerning plaintiff's phone records, upcoming court dates, and awareness of
outstanding police reports, all in order to cause plaintiff's termination. Kober
memorialized his version of events in a report submitted to Bernat which Bernat relied
upon and adopted in plaintiff's termination letter. For these reasons, plaintiff has
established a genuine issue of material fact regarding whether Kober and Bernat

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manufactured fictitious grounds to terminate plaintiff. The Dover defendants' motion for
summary judgment on the implied covenant claim (count 3) is denied.

V.

CONCLUSION
For the foregoing reasons, the Dover defendants' motion for summary judgment

is denied. (D.I. 45)

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