Bryson et al v. City of Wilmington et al

Filing 110

MEMORANDUM AND ORDER: Defendant Cummings's motion for summary judgment (D.I. 60 ) is granted. Defendant City of Wilmington's motion for summary judgment (D.I. 61 ) is denied. Defendants' motions to extend time (D.I. 80 and 81 ) ar e denied as moot. The parties' motions in limine (D.I. 83 , 84 , 85 , 89 , 90 and 91 ) are denied as moot. A judgment of dismissal in accordance with this Memorandum and Order will issue this date. Signed by Judge Joseph F. Bataillon on 1/11/2019. (nmg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
KURT C. BRYSON, and
CHRISTOPHER G. CONNELLY, SR.,

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Plaintiffs,
v.
CITY OF WILMINGTON, a
municipal corporation, and
BOBBY CUMMINGS,
in his individual and official capacities,
Defendants.

C.A. No. 17-133 (JFB/SRF)

MEMORANDUM AND ORDER

This matter is before the court on defendants City of Wilmington’s (“the City”) and
Bobby Cummings’s (“Chief Cummings”) motions for summary judgment (D.I. 60 and D.I.
61). This is an action for unlawful reverse race discrimination, disability discrimination,
and retaliation in employment. 1 The plaintiffs, former Police Officers of the Wilmington
Police Department (“WPD”) assert claims for violations of their Equal Protection and Due
Process rights under 42 U.S.C. §§ 1981 and 1983, reverse race discrimination under Title
VII of the Civil Rights Act of 1964 (“Title VII”), disability discrimination and retaliation under
the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and retaliation in
violation the Delaware Whistleblowers’ Protection Act (“WPA”), 19 Del. C. § 1701 et seq.

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Also pending are stipulations regarding deadlines for Daubert motions and motions in limine (D.I. 80 and
81). The stipulated dates have now passed and the motions are moot. The parties have also filed
several motions in limine (D.I. 83, 84, 85, 89, 90 and 91). In light of the Court’s disposition, those motions
will also be denied as moot.

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I.

BACKGROUND
The plaintiffs, both Caucasian, are former Wilmington Police Department (“WPD”)

police officers. They allege that the City and chief Cummings, its African-American Police
Chief, denied their requests for reinstatement because of their race. They allege that
minorities have been reinstated whereas Caucasian officers have not. Both plaintiffs also
assert a procedural due process claim against the City based on alleged deprivation of
their property interest in employment. In addition, plaintiff Bryso, alleges he was denied
reinstatement on the basis of a perceived disability. Plaintiff Connelly additionally asserts
a whistleblower retaliation claim, contending he was denied reinstatement for reporting
other police officers’ misconduct, which is a protected activity under the WPA.
Chief Cummings and the City move for summary judgment. They first challenge
the plaintiffs' procedural due process claims against the City, arguing that the plaintiffs
have no constitutionally protected property interest in re-employment as police officers
based on custom or practice.2 Next, they argue that the plaintiffs’ race discrimination
claims fail as a matter of law because the factual record does not support an inference of
discrimination.

Further, they assert that the defendants have articulated a

nondiscriminatory reason for not reinstating the plaintiffs—hiring new officers from a
previously recruited class in the Spring of 2016—and they argue that the plaintiffs have
not shown the articulated reason is a pretext.

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Further, they argue that there is no

In ruling on the defendants' motion to dismiss, the Court found the terms of the directive did not confer a
protected property interest in reinstatement to the plaintiffs. D.I. 19, Memorandum and Order at 6. The
Court found the language in directive 5.3A provides a method for reinstatement within one year but did
not mandate reinstatement—it did not meaningfully channel official discretion by mandating a defined
administrative outcome so as to create a legitimate entitlement to reinstatement. Id. The Court did find,
however, that the plaintiffs’ procedural due process claim could proceed on the theory that the City had a
custom or practice of reinstatement. Id. at 6-7.

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evidence that minorities were treated more favorably than white males. Chief Cummings
also asserts he is entitled to qualified immunity because he has discretion to “exercise
the effective performance of Police” under Police Directive 1.2 (D.I. 64-1, Ex. 1A) In
response, the plaintiffs argue that genuine issues of material fact preclude summary
judgment.
II.

FACTS
The record establishes that the plaintiffs are Caucasian males. It is undisputed

that defendant Bobby Cummings is an African-American male and has served as the
Chief of the WPD at all relevant times. Plaintiff Connelly resigned from WPD on or about
July 24, 2015 and sought reinstatement on or about March 30, 2016. Plaintiff Bryson
retired from WPD on or about July 2, 2015 and sought reinstatement in October or
November 2015. Chief Cummings was police chief from May 30, 2014 through April 13,
2017, when Bryson and Connelly applied for reinstatement.

D.I. 64-15, Ex. 10,

Deposition of Bobby L. Cummings (“Cummings Dep.”) at 160:21-161. As Chief of Police,
Chief Cummings made the decision not to rehire the plaintiffs. Id. at 99-100; D.I. 64-16,
Ex. 11, Deposition of Clayton Smith (“Smith Dep.”) at 113; D.I. 64-17, Ex. 12, Deposition
of James Gestwicki, (“Gestwicki Dep.”) at 55-57. Both were denied reinstatement.
The plaintiffs' alleged right to reinstatement and purported property interest is
premised on Directive 5.3A of the Police Officer’s Manual. The plaintiffs allege the City
has a custom and practice of applying Directive 5.3A in a discriminatory manner.
Directive 5.3 provides:
Reinstatement Policy.
If a former officer has applied for reinstatement after separation from the
department for less than one (1) year, the conditions of employment will be
as follows: that person will be required to take a physical and psychological

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test, a physical agility test, be placed on one (1) year probation, and will not
be eligible for a promotion for a minimum of two (2) year(sic); seniority,
retirement benefits, salary grade and rank will be that of which he last
served.
D.I. 64-1, Ex. 1B, Police Manual, reinstatement Policy.
The stated reason for the denial to both Bryson and Connelly was: “Unfortunately,
the Department cannot offer you this position as we have already begun the process of
hiring candidates for the 9th Wilmington Police Academy. As such all vacancies for the
position of police officer have been allotted to the upcoming academy.” D.I. 64-10, Ex. 4,
Letter to Bryson. During his tenure, Chief Cummings did not reinstate anyone under
Directive 5.3A. D.I. 64-15, Ex. 10, Deposition of Bobby L. Cummings (“Cummings Dep.”)
at 162; D.I. 64-22, Ex. 23A, Interrogatories at 6-7. Chief Cummings’s conferred with
Inspector Clayton Smith and Captain James Gestwicki, commanding officer of Human
Resources, in making the decision because the WPD was in the process of hiring an
academy class. D.I. 64-15, Ex. 10, Cummings Dep. at 81-82. Chief Cummings testified
“[w]hat we looked at was the fact that we were hiring a new academy class coming in and
we were three-quarters of the way in the process of that." Id. at 86; see also id. at 203207. Regarding the decision not reinstate, Inspector Smith testified that:
That's the direction the department decided to go in, that we were looking
for officers who don't have 20 years of service, who can't retire the same
day, because, like I said before, there was over a quarter of the current,—
well I shouldn't say current because I'm not there. Staffing level, that those
officers can retire any given day. I don't have it in front of me. But I was
one of those individuals. So yeah, due to the responsibility to the
organization, to the community, we have to have officers there who have a
good idea that they are going to be there. We can't guarantee, like you
stated earlier, that they won’t drop out for any other reason, but knowing
that people can retire after 20 years on any given date, it's less predictable.
You can predict that those people who have 20-plus years and can leave at
any given time.
D.I. 64-16, Ex. 11, Deposition of Clayton Smith (“Smith Dep.” at 122-23).

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The record shows that a new class of recruits was hired for the Spring 2016
Academy Class. D.I. 64-25, Ex. 25, 97th WPD Academy Timeline. The process began in
January 2016. Id. The WPD needed 13 officers to meet authorized strength. D.I. 64-22,
Ex. 23A, Interrogatories. The City hired 19 officers, allowing five additional officers to
account for attrition, to attend the 97th Academy. D.I. 64-24, Ex. 24, Academy List at 2.
Chief Cummings explained:
[W]hen we hire an academy class, the academy class gets us to our
authorized paid positions on the books and we're able to hire five people
above that. Because we know we're going to lose some people through
attrition or we may lose somebody through the academy, those individuals
that are five above start to then fill in your authorized strength number. So
those paid positions are then filled in by the five excess. Those five excess
could also be attributed to the alternates that you select to fill in vacancies
until you get to appoint that you can no longer bring anymore individuals in.
So all paid positions are filled through the academy even though you're
going to lose individuals through that process, which then start to impact
your authorized strength by the time they graduate.
D.I. 64-15, Ex. 10 Cummings dep. at 105-07; see also id. at 197-200.
Cummings could not hire more than five recruits above the authorized strength.
Id. at 107; D.I. 64-17, Ex. 12, Gestwicki Dep. at 65-68. On graduating the 97th Police
Academy, the WPD was at authorized strength. D.I. 64-15, Ex. 10, Cummings Dep. at
20-24.
The City hired six white males, six black males, one white female, three black
females, two Hispanic females, and one Hispanic male. D.I. 64-24, Ex. 24, Academy List.
Six resided in the City of Wilmington, sixteen had college degrees, two had military
experience, eight had a family legacy at the police department, and eleven were first
generation police officers. Id.

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Chief Cummings testified that in denying plaintiffs' reinstatement requests, he
followed Directive 1.0, which gives authority and responsibility to the Chief to make
decisions. D.I. 64-15, Ex. 10, Cummings Dep. at 186. Directive 1.2(A)(1) states:
The Chief of Police shall exercise all lawful powers of his office and issue
such orders as are necessary to assure the effective performance of the
Department of Police . . . [the Police Chief] is responsible for the
management of functions of planning, directing, coordinating, controlling
and staffing of all activities within the Department of Police.
D.I. 64-1, Ex. 1A, WPD Manual at 2515. Chief Cummings also testified that his preference
was to fill all vacant slots with cadets from the Academy. D.I. 70-2, Appendix, Cummings
Dep. at A305.
Several present and former officers testified about the custom and practice of the
WPD with regard to reinstatement. They largely testified that they had seen some police
officers hired back and heard of others who were not re-hired. D.I. 64-18, Ex. 13,
Deposition of Matthew Derbyshire (“Derbyshire Dep.”) at 62-63; D.I. 64-20, Ex. 15, D.I.
64-21, Ex. 16, Deposition of Thomas L. Ragonese (“Ragonese Dep.”) at 115-119, 125127. Caro Spearman, Gary Tabor and James Gestwicki all testified that it was the WPD’s
custom and practice to automatically reinstate police officers.

D.I. 64-20, Ex. 15,

Deposition of Caro Spearman, (“Spearman Dep.”) at 38-50; D.I. 64-19, Ex. 14, Deposition
of Gary G. Tabor (“Tabor Dep.”) at 36; and D.I. 64-17, Ex.12, Gestwicki Dep. at 99, 102105).

The record shows reinstatement is not automatic, the Human Resources

Department solicited input and recommendations from supervisory officers with reference
to the decision to rehire or not. D.I. 65-15, Ex. 21, H.R. records at 2355. Sergeant
Ragonese testified that the manner in which Directive 5.3 was applied depended on which
chief was in office, and on the input of the Inspectors and the Captain of Human
Resources. D.I. 64-21, Ex. 16, Ragonese Dep. at 115-16, 125-27. He admitted that he

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did not know the names of all of the police officers who had voluntarily resigned and then
attempted to be rehired under Directive 5.3. Id. at 117-119.
Bryson himself testified that he believed the Chief had discretion on whether to
rehire him or not. D.I. 64-6, Ex. 2, Bryson Dep. at 59. Bryson also stated that he did not
even know that there was a policy that allowed him to reapply to the police department
within one year until Inspector Smith told him about it at his walkout ceremony. Id. at 7879. He stated that he was aware that some people left and came back, but he was not
aware that some people were not hired back upon reapplication. Id. at 79-80. Connelly
also testified that he was not aware that some people were not hired back upon
reapplication. D.I. 64-11, Ex. 5, Deposition of Christopher Connelly ("Connelly Dep.") at
91-92. Several employees testified that they had no expectation of being rehired after
resignation. D.I. 64-18, Ex. 13, Derbyshire Dep. at 62-63; D.I. 64-19, Ex. 14, Tabor Dep.
at 36-40; D.I. 64-20, Ex. 15, Spearman Dep. at 38; D.I. 64-17, Ex. 12, Gestwicki Dep. at
99, 102-105; D.I. 64-21, Ex. 16, Ragonese Dep. at 115-119, 125-127.
Chief Cummings testified that Bryson and Connolly were the only two officers who
requested reinstatement during his tenure as Police Chief. D.I. 64-15, Ex. 10, Cummings
Dep. at 162. The record establishes that of those reinstated pursuant to Directive 5.3
prior to Chief Cummings’s tenure, two were Caucasian and two were African American.
Caro Spearman, a black male, was reinstated by Szczerba in 2012. D.I. 65-14, Ex. 20,
H.R. records. Kevin Cooper, a black male, was reinstated by Szczerba in 2006. D.I. 6515, Ex. 21, H.R. records. There is no evidence that Chief Connolly played any part in the
reinstatements. Steven Parrot, and Patrick Malloy, both Caucasian males, were rehired

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prior to 2014. D.I. 70-3, Appendix, Tabor Dep. at A483; D.I. 70-2, Appendix, Ragonese
Dep. at A343, A350; D.I. 64-15, Ex. 10, Cummings Dep. at 158.
There is evidence that other police officers were denied reinstatement over the
years, including Adrian Davis, a black male, who was denied reinstatement to the police
department by Chief Pratcher in 1996. D.I. 73-1, Ex. 27, Affidavit of James Gestwicki;
D.I. 65-12, Ex. 18, H.R. records. Richard Amsel, a white male, was denied reinstatement
by Chief Szczerba in 2006. D.I. 65-13, Ex. 19, H.R. records. Although the plaintiffs
contend Amsel was disabled, the record shows he had no physical or mental disabilities
and was denied reinstatement because supervisors reported he was less than truthful
and had a poor attitude. Id. Apart from Amsel and Davis, the record indicates that only
five other people applied for reinstatement pursuant to Directive 5.3: Cooper, Spearman,
Parrot, Malloy, and Patrolman Dorsey, an African-American male whose first name is not
identified. D.I. 70-2, Appendix, Ragonese Dep. at A343-43. There is no evidence in the
record that shows whether Dorsey was rehired pursuant to Directive 5.3 or reinstated as
a result of an appeal of administrative discipline. Id.
The plaintiffs point to the reinstatement of Master Sergeant Allison Saunders, an
African-American female, who was reinstated by Chief Cummings after having been
involuntarily terminated, but the record shows she was reinstated after an Appeal Board
decision and not pursuant to Directive 5.3. D.I. 70-2, Appendix, Cummings Dep. at A28183; D.I. 65-17, Ex. 26, H.R. records. Chief Cummings testified that Directive 5.3 did not
factor into Saunders’s rehiring, because she had been fired related to disciplinary
charges. D.I. 70-2, Appendix, Cummings Dep. at A283. Similarly, the record shows that
Maureen Binkley, a Caucasian female was involuntarily discharged, but appealed the

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decision and was reinstated. D.I. 65-11, Ex. 17, H.R. records. Connelly testified that he
believed Officer David Yanish was reinstated, but there is no other evidence to support
that testimony. D.I. 64-11, Ex. 5, Connelly Dep. at 13-17. Ragonese testified that
someone by the name of Jeffrey McGaha, a Caucasian, was not reinstated by Cummings,
but there is no other evidence of that fact. D.I. 70-2, Appendix, Ragonese Dep. at A358.
Bryson testified Chief Cummings made a comment at roll-call that he was only
going to hire women and minorities.

D.I. 70-1, Appendix, Bryson Dep. at A188.

Derbyshire testified that at roll call, Chief Cummings said “[s]omething to the effect of
what you said, you know, I'm going to make it a priority to promote and transfer, you know,
women and minorities, something to that effect.” D.I. 70-3, Appendix, Derbyshire Dep. at
A370. Derbyshire stated that he thought the statement demonstrated a bias against
Caucasian officers, but not applicants. Id. Ragonese testified he had heard rumors that
Cummings said in roll call that he was going to go out of his way to promote females and
African-American males. D.I. 70-2, Appendix, Ragonese Dep. at A356. Connolly testified
that Chief Cummings had never made such a statement in his presence, but he had heard
other people say that Chief Cummings had said he would hire more minorities and
women. D.I. 64-11, Connolly Dep. at 34.
Chief Cummings acknowledged that he was looking to diversify in the WPD as to
the City’s demographics, meaning a cross dynamic of race, sex and ethnicity. D.I. 70-2,
Appendix, Cummings Dep. at A307. He stated he also looked at college experience, lack
of college experience, living in the city, legacies in the police department, military
background and age. Id. at A307-09.

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Uncontroverted testimony shows that between 2014 and 2016, Chief Cummings
promoted eleven Caucasian males, one African-American male, and one Caucasian
female. D.I. 73-3, Ex. 29, WPD Eligibility List at 3018-19. From 2016 to 2018, Chief
Cummings promoted four people: a Caucasian female, a Hispanic male, an AfricanAmerican male, and a Caucasian male. Id. The remaining promotions during that time
period were made by Chief Tracy after Chief Cummings retired. D.I. 73-3, Ex. 29, WPD
Sergeant and Lieutenant Promotional System Eligibility List at 3021-22. Chief Cummings
promoted two African-American men to the rank of Inspector—Clayton Smith and Elmer
Harris. D.I. 70-2, Cummings Dep. at A272. He promoted a Caucasian male and an
African-American male to the rank of Captain—Andrew Brock and James Gestwicki. Id.
Plaintiff Bryson testified that on the day of his retirement, Inspector Clayton Smith,
also a black male, told him that he could come back within one year. D.I. 70-1, Appendix,
Bryson Dep. at A184. Bryson stated that Chief Cummings nodded in agreement. Id. at
A198.

Bryson testified that Chief Cummings did not attend a Southbridge Civic

Association meeting where Bryson was given an award. Id. at A192-94.
Connelly testified that shortly before he retired, he reported an Internal Affairs
Division officer, Captain Brock, for driving with a suspended license. D.I. 64-11, Ex. 5,
Connolly Dep. at 119-21. He was later given a written reprimanded for improper use of
computer records in doing so. D.I. 65-4, Ex. 6A, Administrative Investigation documents.
Other officers were also investigated and disciplined. Id. After that incident, he was given
a one-day suspension for another infraction, failure to report a traffic accident, that had
occurred prior to his reporting of captain Brock. D.I. 64-11, Ex. 5, Connolly Dep. at 101.
He contends the disciplinary action was in retaliation for reporting Captain Brock. Id. at

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101-02. The record shows the incident was investigated before the Brock incident. Id.
at 101-05; D.I. 65-4, Ex. 6A. The record shows that Connolly had been disciplined or
reprimanded for other incidents during his employment. D.I. 65-4, Ex. 6A. There is
evidence that other officers were also disciplined for various offenses but there is little
similarity as to the severity of the incidents. Id.; D.I. 65-10, Ex. 9B, H.R. records.
The record shows Bryson took a one-month stress reassignment in 2014 when he
was placed temporarily in the Human Resources office. D.I. 70-1, Bryson Dep. at A200;
64-6, Ex. 2, Bryson Dep. at 52; D.I. 65-3, Ex. 3F, Correspondence dated Dec. 14, 2014.
During that time, he maintained his status as a police officer. D.I. 65-2, Ex. 3D. A
reasonable accommodation was granted for one month, and then he then went back to
full time police work. Id. The defendants were aware of Bryson's anxiety in December
2014 when he made a written request to be reassigned. Id. at 56. D.I. 64-6, Ex. 2, Bryson
Dep. at 52, 56; D.I. 65-3, Ex. 3F, Correspondence dated Dec. 14, 2014. After one month,
he was cleared to return to full duty. D.I. 65-2, Ex. 3D.
Connolly testified that he felt Chief Cummings decisions were racially motived
based on Chief Cummings’s statements at rollcalls where he said he would hire and
promote more minorities and females. D.I. 70-1, Appendix, Connolly Dep. at A215.
Connolly also testified that he thought minority police officers were promoted or placed in
specialty departments that were beyond their level of competence or experience. D.I. 701, Appendix, Connolly Dep. at A218-221.

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III.

LAW
A.

Summary Judgment Standards

“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., 475 U.S. 574, 586 n. 10 (1986). A party asserting that a fact cannot be—or,
alternatively, is—genuinely disputed must supported that contention either by citing to
“particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those
made for the purposes of the motion only), admissions, interrogatory answers, or other
materials,” or by “showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P. 56(c)(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, 475 U.S. at 587 (internal quotation
marks omitted). The court will “draw all reasonable inferences in favor of the nonmoving
party, and it may not make credibility determinations or weigh the evidence.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
To defeat a motion for summary judgment, the non-moving party must “do more
than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita, 475 U.S. at 586–87; see also Podobnik v. U.S. Postal Serv., 409 F.3d 584,
594 (3d Cir. 2005) (stating that the party opposing summary judgment “must present more

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than just bare assertions, conclusory allegations or suspicions to show the existence of a
genuine issue”) (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 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”). Thus, the “mere existence
of a scintilla of evidence” in support of the nonmoving party's position is insufficient to
defeat a motion for summary judgment; there must be “evidence on which the jury could
reasonably find” for the nonmoving party. Anderson, 477 U.S. at 252.
B.

Procedural Due Process

Property interests arise from independent sources such as state rules or
understandings that confer specific benefits. See Perry v. Sindermann, 408 U.S. 593,
601 (1972); Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 572–78 (1972). “‘To
have a property interest in a benefit, a person clearly must have more than an abstract
need or desire’ and ‘more than a unilateral expectation of it. He must, instead, have a
legitimate claim of entitlement to it.’” Town of Castle Rock v. Gonzales, 545 U.S. 748,
756 (2005) (quoting Bd. of Regents of State Colleges, 408 U.S. at 564). Generally,
practices, policies or customs that involve considerable discretionary decision-making do

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not create a legitimate claim of entitlement to employment. See Robb v. City of Phila.,
733 F.2d 286, 292–93 (3d Cir. 1984) (although Pennsylvania law provides public
employees with a limited right to continued employment, such employees have no
legitimate claim of entitlement either to continued employment on the same job or to
promotion, because those involve discretionary decisions of supervisors); Burns v.
Sullivan, 619 F.2d 99, 104 (1st Cir.1980) (where promotions are, under state law, based
in part on discretionary judgments of high city officials, no property interest in a promotion
can exist); Anderson v. City of Phila., 845 F.2d 1216, 1221 (3d Cir. 1988) (presence on
an eligibility list alone is insufficient to create a “legitimate entitlement” triggering
procedural due process protections).
C.

Race Discrimination

Caucasian plaintiffs subjected to reverse discrimination may invoke § 1981 against
defendants for the differential treatment of the plaintiffs on the basis of race. McDonald
v. Santa Fe Trail Transp. Co., 427 U.S. 273, 286-87 (1976). Similarly, Title VII's terms
apply equally to whites as they do to racial and ethnic minorities. Hicks v. ABT Assocs.,
Inc., 572 F.2d 960, 967 (3d Cir. 1978).
Appellant's claims of disparate treatment under Title VII, and §§ 1981 and 1983
must be analyzed under the test articulated in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973). Sherrod v. Philadelphia Gas Works, 57 F. App'x 68, 73 (3d Cir.
2003). Under McDonnell Douglas, in order to make out a prima facie case, a plaintiff
must show that: 1) he or she is a member of a protected class; 2) he or she was qualified
for her position; 3) he or she suffered an adverse employment action; and 4) the action
occurred under circumstances giving rise to an inference of discrimination. Id. When a

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plaintiff bringing a race discrimination claim under Title VII is not a member of a racial
minority and is, instead, asserting a claim for “reverse discrimination,” the prima facie
framework is modified such that the plaintiff must: (1) “present[ ] sufficient evidence to
allow a reasonable factfinder to conclude (given the totality of the circumstances) that the
defendant treated plaintiff less favorably than others because of [his] race,” and (2) that
he has suffered an adverse employment action. Iadimarco v. Runyon, 190 F.3d 151, 163
(3d Cir.1999) (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978) (noting
the obvious distinction that the history of discrimination against minorities that gives rise
to an inference of discrimination does not create the same inference where the plaintiff is
not a minority); see also Medcalf v. Trs. of Univ. of Penn., 71 F. App'x 924, 927 (3d Cir.
2003); Coulton v. Univ. of Penn., 237 F. App'x 741, 747 (3d Cir. 2007).

A memo

promoting diversity “is not, in and of itself, sufficient to establish a prima facie case of
illegal discrimination.” Id. “An employer has every right to be concerned with the diversity
of its workforce, and the work environment.” Id. Moreover, the race of the individual
responsible for a hiring decision is “insufficient to establish a prima facie case of
discrimination without more.” Iadimarco, 190 F.3d at 156; see also Coulton, 237 F. App'x
at 747–48.
“After the plaintiff establishes a prima facie case, the defendant then must
articulate a legitimate, nondiscriminatory reason for the hiring decision.” Medcalf, 71 F.
App’x at 927. “This burden ‘is one of production, not persuasion; it can involve no
credibility assessment.’” Id. (quoting Reeves v. Sanderson, 530 U.S. at 142).
A plaintiff can show pretext sufficient to defeat a motion for summary judgment or
judgment as a matter of law by “point[ing] to some evidence, direct or circumstantial, from

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which a fact finder could reasonably either (1) disbelieve the employer's articulated
legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely
than not a motivating or determinative cause of the employer's action.” Medcalf, 71 F.
App’x at 927 (quoting Iadimarco, 190 F.3d at 166). The evidence that rebuts “the
employer's proffered legitimate reasons ‘must allow a factfinder reasonably to infer that
each of the employer's proffered nondiscriminatory reasons . . . was either a post hoc
fabrication or otherwise did not actually motivate the employment action.” Id. (quoting
Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)). The plaintiff must show “such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
employer's proffered legitimate reasons for its action that a reasonable factfinder could
rationally find them ‘unworthy of credence,’ and hence infer ‘that the employer did not act
for [the asserted] nondiscriminatory reasons.’” Id. at 927-28 (quoting Fuentes, 32 F.3d at
765).
A plaintiff must do more than show that the defendant's proffered reason was
wrong or mistaken—he must demonstrate that the defendant acted with discriminatory
animus. Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 283 (3d Cir. 2001).
A plaintiff can meet this burden by pointing to evidence “that the employer has previously
discriminated against her, that the employer has discriminated against other persons
within the plaintiff's protected class or within another class, or that the employer has
treated more favorably similarly situated persons not within the protected class.” Simpson
v. Kay Jewelers, 142 F.3d 639, 645 (3d Cir. 1998). Where a plaintiff presents evidence
of similarly situated non-class members to sustain his burden at the pretext stage, he

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must show with some specificity that the comparators were more favorably treated. Id.
at 645.
E. ADA - Perceived Disability
In order to prevail on a claim under the ADA, a claimant must prove that he is
disabled within the meaning of the statute, proving that he has a physical impairment that
limits a major life activity, has a record of such an impairment, or is “regarded as” having
such an impairment. Wilson v. MVM, Inc., 475 F.3d 166, 179 (3d Cir. 2007). A plaintiff
can only prevail if he or she shows that the employer thought the plaintiff was disabled
within the meaning of the statute. Wilson, 475 F.3d at 179. To meet that standard, the
plaintiff must establish that the employer mistakenly believed that the plaintiff had an
impairment that substantially limits one or more major life activities or mistakenly believed
that an actual non-limiting impairment substantially limits one or more major life activities.
Id. The analytical framework set forth in McDonnell Douglas is also applied when there
is an alleged violation of the ADA. See Olson v. General Elec. Astrospace, 101 F.3d 947,
951 (3rd Cir. 1996).
F. Retaliation
The Third Circuit allows a plaintiff to “rely on a ‘broad array of evidence’ to
demonstrate a causal link between his protected activity and the adverse action taken
against him.” Marra v. Phila. Hous. Auth., 497 F.3d 286, 302 (3d Cir. 2007) (quoting
Farrell v. Planters Lifesavers Co., 206 F.3d 271, 284 (3d Cir. 2000)). “In certain narrow
circumstances, an unusually suggestive proximity in time between the protected activity
and the adverse action may be sufficient, on its own, to establish the requisite causal
connection.” Id. (internal quotations marks omitted). On the other hand, the “mere

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passage of time is not legally conclusive proof against retaliation.” Id. (quoting Robinson
v. Se. Pa. Transp. Auth., 982 F.2d 892, 894 (3d Cir. 1993)) (internal quotation marks
omitted). A court may need to assess other factors as well—“[w]here the time between
the protected activity and adverse action is not so close as to be unusually suggestive of
a causal connection standing alone, courts may look to the intervening period for
demonstrative proof, such as actual antagonistic conduct or animus against the
employee, or other types of circumstantial evidence, such as inconsistent reasons given
by the employer for terminating the employee or the employer's treatment of other
employees, that give rise to an inference of causation when considered as a whole.” Id.
(citation omitted). In any event, a plaintiff “cannot establish that there was a causal
connection without some evidence that the individuals responsible for the adverse action
knew of the plaintiff's protected conduct at the time they acted.” Daniels v. Sch. Dist. of
Phila., 776 F.3d 181, 196 (3d Cir. 2015).
The Delaware WPA provides protection against wrongful discharge to an
employee who refuses to aid or commit a violation or reports the violation to the employer
or a public body. 19 Del. C. § 1703. For purposes of the statute, a violation includes “an
act or omission by an employer . . . that is: . . . [m]aterially inconsistent with, and a serious
deviation from, financial management or accounting standards implemented pursuant to
a rule or regulation” of the employer or by law. 19 Del. C. § 1702(6)(b). Under the Act, a
plaintiff bears the burden of establishing her protected conduct was the primary basis for
the retaliation. 19 Del. C. § 1708.

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IV.

DISCUSSION
A.

Procedural Due Process

The Court first finds that the plaintiffs have not shown a custom or practice that
would give rise to a legitimate claim of entitlement to reinstatement. The facts do not
support a finding that plaintiffs had a constitutionally protected property interest in
reinstatement as police officers with the City after retirement. The plaintiffs have not
established that it was a custom or policy of the WPD to automatically allow reinstatement
of retirees within one year. Application of Directive 5.3 was sporadic and inconsistent.
Some officers were reinstated and some were not. Numerous police officers testified that
they did not believe that they had the right to automatic reinstatement. Plaintiff Bryson
himself testified that he thought Chief Cummings had discretion in deciding to reinstate
an officer. The evidence shows that officers had been denied reinstatement in the past.
Over the course of more than twenty years, only a handful of retirees sought
reinstatement under the directive. The plaintiffs have not shown that they had a legitimate
claim of entitlement to be reinstated as a result of any consistently applied custom or
policy. Accordingly, the plaintiffs have no right to procedural due process under the
Fourteenth Amendment and the defendants are entitled to summary judgment on the
plaintiffs’ procedural due process claim.
B.

Race Discrimination

Because there is no right to reinstatement, the plaintiffs arguably cannot show they
suffered an adverse employment action. But, assuming the denial of reinstatement would
qualify as an adverse action, the plaintiffs have not presented evidence sufficient for a
reasonable factfinder to conclude (given the totality of the circumstances) that the

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defendant treated the plaintiffs less favorably than others because of their race so as to
present a prima facie case. The plaintiffs rely on bare assertions, conclusory allegations,
suspicions, and vague subjective perceptions or beliefs to support their claims.
The evidence shows that the employees who were reinstated under Directive 5.3
were reinstated by prior Police Chiefs and not by Chief Cummings. The plaintiffs place
much reliance on the fact the Chief Cummings denied reinstatement to every Caucasian
that applied, without acknowledging that only the two plaintiffs, both Caucasian, applied
for reinstatement during Chief Cummings’s tenure. There is no evidence suggesting that
an African-American retiree’s request for reinstatement would have been honored. The
plaintiffs have not shown that others were treated more favorably because of their race
so as to create an inference of discriminatory animus.
The evidence relied on by the plaintiffs in opposition to the defendants’ motion has
little probative value. Any statistics are meaningless in such a small sample. Out of six
employees who requested reinstatement under Directive 5.3 in the past twenty-five years,
four were rehired and two were not: Richard Amsel (Caucasian) and Adrian Davis (African
American). Two reinstated employees were Caucasian and two were African American.
There is no evidence in the record that race or disability was considered for any
reapplicant. The Court can deduce no inference of discrimination for that evidence.
The defendants have propounded a legitimate, nondiscriminatory reason for the
denials—filling vacancies with the incoming recruit class, who were less likely to retire
suddenly and would provide continuity. The rationale appears to be a legitimate business
reason for taking the action. The plaintiffs have not shown that the reason is weak,
implausible, inconsistent, incoherent, or contradictory. There is no evidence to show that

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the rationale is not deserving of credence. The plaintiffs have not refuted the defendants’
legitimate

nondiscriminatory rationale

for denying

the

plaintiffs’ requests

for

reinstatement.
Even if the plaintiffs had established a prima facie case of unlawful reverse
discrimination, the defendants would still prevail because the plaintiffs have failed to
present evidence from which a reasonable factfinder could conclude that the defendant's
proffered legitimate nondiscriminatory reason for denying reinstatement is pretextual.
The plaintiffs provide no evidence of racial animus. They principally rely on the Police
Chief’s stated desire to hire more minorities and women. That statement, however, does
not necessarily reflect a discriminatory animus. The Police Chief did not state he would
hire minorities and women to the exclusion of Caucasians, and the record shows he did,
in fact, hire and promote Caucasians. Maintaining a diverse work force is a legitimate
business objective. The Court divines no discriminatory animus from a stated desire to
promote diversity in a police force. Nor can the Court infer a discriminatory motive in
Chief Cummings’s promotion of African Americans to high ranking posts, without some
showing that the officers were somehow unqualified. On this record, there is no evidence
from which a reasonable jury could conclude that the plaintiffs were treated less favorably
because they are Caucasian. The plaintiffs’ evidence, when considered in conjunction
with the uncontested evidence presented by the defendants, falls far short of the quantum
of proof necessary for a “reasonable factfinder to conclude (given the totality of the
circumstances) that the defendant treated plaintiff less favorably than others because of
[his] race.” Iadimarco, 190 F.3d at 163.

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Similarly, the plaintiffs did not present evidence that shows a genuine issue of fact
on either disability discrimination or retaliation. They did not present evidence beyond
subjective beliefs and conjecture that the asserted reasons for the denials of
reinstatement were a pretext for unlawful motives.
The record shows Connolly received appropriate discipline for a violation of policy.
He did not dispute or challenge the discipline at the time.

The instigation of the

investigation of his failure-to-report incident pre-dated the incident that allegedly triggered
retaliation. He cannot rely on any temporal connection to show causation. Connolly has
not shown that any retaliation was the result of his engaging in a protected activity.
Bryson’s one-month reassignment to desk duty did not affect the terms of his
employment or retirement in any way. The record shows he received a reasonable
accommodation.

As for reinstatement, he arguably did not suffer any adverse

employment action since he had no right to reinstatement. Even if he did, he has not
produced evidence sufficient to rebut Chief Cummings’s proffered nondiscriminatory
rationale for the denial of reinstatement. He has not shown that his perceived disability
was the motivation for denial of his request for reinstatement.
There is not sufficient evidence before the court to allow a reasonable factfinder to
disbelieve the employer's articulated legitimate reason, because there is no evidence in
the record that casts doubt on the plausibility of the reason. Contrary to the plaintiff’s
assertions, there are nondiscriminatory reasons for preferring a new recruit class to fill
vacancies, rather than retirees. There is insufficient evidence from which a reasonable
factfinder could conclude that either retaliation for a protected activity or disability
discrimination motivated Chief Cummings’s denial of reinstatement.

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In light of this disposition, the Court need not address the municipal liability and
qualified immunity issues.
THERFORE, IT IS ORDERED THAT:
1.

Defendant Cummings’s motion for summary judgment (D.I. 60) is granted.

2.

Defendant City of Wilmington’s motion for summary judgment (D.I. 61) is
denied.

3.

Defendants’ motions to extend time (D.I. 80 and 81) are denied as moot.

4.

The parties’ motions in limine (D.I. 83, 84, 85, 89, 90 and 91) are denied as
moot.

5.

A judgment of dismissal in accordance with this Memorandum and Order
will issue this date.

Dated this 11th day of January 2019.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

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