Naples v. New Castle County

• Court: Superior Court of Delaware
• Decided: March 30, 2015
• Docket: 11C-06-242
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY

DAVID NAPLES, ) Plaintiff ) ) v. ) ) NEW CASTLE COUNTY, a Municipal ) Corporation, DAVID M. CULVER, ) individually and in his official capacity, ) C.A. No. N11C-06-242 PRW GEORGE HAGGERTY, individually ) and in his official capacity, LATONYA ) ASHLEY, individually and in her official ) capacity, DAVID HOLSTON, ) individually and in his official capacity, ) and FRANK RUBERTO, individually ) and in his official capacity, ) ) Defendants. )

Submitted: February 25, 2015 Decided: March 30, 2015

OPINION

Upon Defendants’ Motion for Summary Judgment, GRANTED.

Leo John Ramunno, Esquire, Wilmington, Delaware, Attorney for Plaintiff.

Laura T. Hay, Esquire, Assistant County Attorney, Megan Sanfrancesco, Esquire, Assistant County Attorney, New Castle County Office of Law, New Castle, Delaware, Attorneys for Defendants.

WALLACE, J. I. INTRODUCTION

Plaintiff, David Naples, has sued his former employer and certain

supervisors for claimed violations of his constitutional rights to due process and for

defamation. His lawsuit arises out of events that took place in 2009, when he was

terminated for breaching the New Castle County Department of Land Use (the

“Department”) policies relating to his job as an Assistant Land Use Administrator.

After conducting an investigation into his work conduct, the Department

recommended his termination – a decision that was upheld by the Acting Chief of

Human Resources after she conducted a pretermination hearing. Mr. Naples then

exercised his appeal rights under the New Castle County Code (“County Code”)

and requested a hearing before the Human Resources Advisory Board (“HRAB”).

The appeal hearing was not scheduled within the time frame prescribed by the

County Code, and it was conducted in two separate sessions. The HRAB

ultimately reversed the Department’s decision to terminate Mr. Naples, finding that

although there was just cause supporting a disciplinary decision, termination was

too harsh a penalty. Mr. Naples was then reinstated after a five-month period of

suspension without pay. He now brings constitutional and defamation claims

against New Castle County (the “County”) and against the named Defendants in

their individual and official capacities. Defendants have moved for summary

-2- judgment as to all claims. For the reasons set forth below, the Defendants’ motion

is GRANTED.

II. FACTUAL AND PROCEDURAL BACKGROUND

Mr. Naples worked as an Assistant Land Use Administrator, a merit

employee position, in the New Castle County Department of Land Use from 2000

to 2009. His duties included managerial, supervisory, administrative and technical

work within the Inspection Division – one of the Department’s seven divisions.

Mr. Naples resigned from his position for a short period of time from July to

August, 2006. He left to start a job in Florida. When the Florida job fell through,

the Department hired him back.

In 2007, while still employed by the Department, Mr. Naples began working

part-time at a liquor store owned by Michelle Gillen. Mrs. Gillen is married to

Larry Gillen, Mr. Naples’ friend and a small business owner.

A. Investigation of Mr. Naples’ Departmental Policy Violations

The events giving rise to this lawsuit commenced in March, 2009, when the

Department’s Assistant General Manager George Haggerty learned that Mr.

Naples had facilitated the issuance of a permit to Mr. Gillen prior to the Board of

Adjustment (“BOA”) issuing a final written decision.1 Mr. Haggerty discussed the

1 The BOA controls the issuance of permits within the Land Use Department. Mr. Naples worked in the Inspection Division, a Land Use division which was not involved in issuing permits.

-3- permit with Mr. Naples on March 20, 2009. Mr. Naples then sent Mr. Haggerty an

email discussing his relationship with Mr. Gillen and his part-time employment at

Mrs. Gillen’s liquor store. In that email, Mr. Naples also disclosed his assistance

with another of Mr. Gillen’s permit applications about three months prior.

Mr. Haggerty consulted with the General Manager of Land Use, David

Culver, and determined that an investigation was warranted to determine whether

discipline was appropriate. Mr. Haggerty also contacted Mr. Naples’ immediate

supervisor, David Holston, and Frank Ruberto, a Land Use Administrator, to

determine whether Mr. Naples had violated any other departmental policies

warranting discipline. Mr. Culver submitted a memo to Mr. Haggerty detailing his

knowledge of Mr. Naples’ offenses. Additionally, Mr. Haggerty contacted the

Acting Chief of Human Resources Officer, LaTonya Ashley, and informed her that

an investigation into Mr. Naples’ work history was being conducted.

On March 23, 2009, Mr. Culver and Mr. Haggerty met with Mr. Naples and

advised him he was being suspended with pay. Mr. Haggerty then led an

investigation into Mr. Naples’ employment-related conduct.

During the course of the investigation, the Defendants learned that Mr.

Naples had violated numerous other Department policies. Mr. Naples was issued

five written discipline records. All five records were signed on April 14, 2009, by

-4- Mr. Culver, Mr. Ruberto, and Ms. Ashley. Mr. Naples’ signature line indicates

that on April 16, 2009, he refused to sign any of the notices.

The first discipline record detailed Mr. Naples’ inappropriate contact with

and solicitation of another public employee. On November 3, 2008 Mr. Naples

emailed a Christiana School District (“CSD”) employee, recommending his friend

Mr. Gillen’s product to reduce electrical usage. Mr. Naples had sent the email

using the County’s computer system, and he also forwarded the CSD employee’s

contact information on to Mr. Gillen on November 21, 2008. Mr. Naples then

apparently contacted the CSD employee on December 5, 2008, inquiring as to

whether she had received the information he had previously sent. This constituted

Mr. Naples’ first documented offense. It violated several New Castle County

Personnel Policy (“NCC Policy”) rules involving harming the County’s reputation

or public trust, and using County property for personal gain or personal business. 2

The recommended action was a written reprimand with review for dismissal.

Mr. Naples’ next documented offense involved his approval of a plumbing

permit without the required permit application and requisite permit fee. This

offense took place on April 24, 2008. It violated Departmental policies involving

(1) seeking to prevent harm to the public trust and the County’s reputation, and (2)

2 See New Castle County Personnel Policy Rules [hereinafter “NCC Policy”], Ex. C to Defs.’ Mot. Summ. J., Policy1.00, Rule 38; Policy 1.00, Rule 23; Policy 4.06.

-5- refusal to follow Departmental policies. 3 The recommended action was suspension

with review for dismissal.

The next discipline record documents Mr. Naples’ inspection for Mr.

Gillen’s finished basement permit on April 29, 2005. Mr. Naples reportedly

engaged in improper conduct harming the County’s reputation and public trust,

refused to follow Departmental policies and procedures, and violated provisions of

the County Code when he performed the final inspection and waived a permit

reinspection fee.4 Suspension with review for dismissal was recommended.

The next discipline record cites Mr. Naples for accepting a complimentary

ticket from Mr. Gillen for a Dallas Cowboys’ Game in Dallas, Texas, on or about

September 15, 2008. The ticket value exceeded the County’s defined de minimus

value and was not entered into a gift log. Mr. Naples’ accepting the ticket violated

the Departmental gift policy. 5 Suspension with review for dismissal was

recommended.

The last documented offense involved Mr. Naples’ most recent; it took place

on March 18, 2009. According to the discipline record, Mr. Naples facilitated the

issuance of a building permit for Mr. Gillen in contravention of the Departmental

3 See NCC Policy 1.00, Rule 38; Policy 1.00, Rule 21; Policy 4.1. 4 See NCC Policy 1.00, Rule 38; Policy 1.00, Rule 21; Policy 1.00, Disciplinary Action #9. 5 See NCC Policy 1.00, Rule 34; Policy 5.04; Policy 1.1.4 I.

-6- policy requiring the BOA to issue a signed decision granting a variance before a

permit may be issued. The record further indicated that Mr. Naples failed to

complete required inspection checklists and advice sections as required by

Departmental policy. For all of these incidents, including the March 18 permit

facilitation, Mr. Naples was cited for refusing to follow Departmental procedures

and policies, and for engaging in improper conduct harming the County’s

reputation and public trust. 6 Dismissal was recommended.

On April 14, 2009, Mr. Culver submitted a written recommendation to Ms.

Ashley to terminate Mr. Naples in accordance with the County Code. The letter

attached the five disciplinary records mentioned above. As the Code provides, Mr.

Naples was suspended without pay pending his pretermination hearing.7

B. Mr. Naples’ Pretermination Hearing

Ms. Ashley sent a notice to Mr. Naples on May 1, 2009, stating that she had

received a recommendation for his termination, and that he had the right to request

a pretermination hearing. Mr. Naples did so. Mr. Naples’ pretermination hearing

occurred on May 12, 2009, before Ms. Ashley. Mr. Naples had an attorney present

and Mr. Gillen as a witness. Mr. Naples presented his position to Ms. Ashley.

6 See NCC Policy 1.00, Rule 21; Policy 1.00, Rule 38; Policy 4.1; Policy 5.3. 7 See New Castle Cty. C. § 26.03.907 (“No dismissal of a permanent employee shall take effect until an opportunity for a pretermination hearing. . .”); Id. § 26.03.1001 (providing a department general manager may suspend any employee without pay for disciplinary purposes).

-7- County personnel from Land Use, Human Resources, and Legal also attended the

hearing, but they did not make a presentation. Mr. Naples was not permitted to

question any of the County’s witnesses, and he was asked to leave the room after

making his presentation.

Ms. Ashley upheld the recommendation for termination and notified Mr.

Naples of her decision by letter dated May 19, 2009. In her letter, Ms. Ashley

stated that she found the expressions of mitigating circumstances insufficient to

overturn the termination recommendation. Mr. Naples’ termination became

effective April 16, 2009.

C. HRAB Appeal and Decision

Under the County Code, merit employees have appeal rights, including: (1) a

Step I hearing before the Department General Manager; (2) a Step II hearing

before the Chief Administrative Officer and Chief Human Resources Officer; and

(3) a Step III hearing before the HRAB.8 The parties mutually agreed to waive

Step I and Step II, and, as was his right under the County Code, Mr. Naples sought

a Step III hearing before the HRAB.

Mr. Naples’ HRAB appeal hearing was conducted in two sessions. The first

session took place on August 6, 2009 (thirteen working days after the time period

required by the County Code). The appeal was heard by HRAB members. The

8 See id. § 26.03.1101.B. (providing three steps for addressing employees’ grievances).

-8- hearing could not be completed in one session due to the voluminous testimony, so

it was continued until August 24, 2009. At both sessions, Mr. Naples was

represented by counsel and had the opportunity to present witnesses and to cross-

examine the County’s witnesses.

The HRAB issued a written decision on September 23, 2009. It determined

that there was just cause supporting the County’s disciplinary actions for some, but

not all, of the alleged violations. It further found, however, that termination was

too severe of a penalty. The HRAB expressed its concern with “the use of other

events, which, in and of themselves, appear to be insignificant but used in an

attempt to show a pattern of behavior of Naples.” 9 The HRAB directed that Mr.

Naples’ termination be reversed and remanded the matter to the Office of Human

Resources to administer a reprimand for Mr. Naples’ conduct. It stated that a

period of suspension to the date of the decision would be appropriate.

D. Reinstatement and Resignation

On September 28, 2009, Mr. Naples met with representatives from the

Office of Human Resources about his reinstatement. He informed the

representatives that he did not wish to report to his previous supervisors, Messrs.

Haggerty, Ruberto, and Day. Mr. Naples was reassigned to the Code Enforcement

Department under a different supervisor. Mr. Naples retained his title of Assistant

9 See HRAB Notice of Decision, Ex. E to Defs.’ Mot. Summ. J. 8.

-9- Land Use Administrator as well as his salary and benefits, but he performed the

work of a Property Maintenance Inspector for the Rental Property Program. On

January 15, 2010, Mr. Naples resigned from this position.

III. STANDARD OF REVIEW

Under Delaware Superior Court Rule 56, grant of summary judgment “shall

be rendered” upon a showing “that there is no genuine issue as to any material fact

and that the moving party is entitled to judgment as a matter of law.” 10 Summary

judgment will not be granted if there is a material fact in dispute or if “it seems

desirable to inquire thoroughly into [the facts] to clarify the application of the law

to the circumstances.” 11 In considering the motion, “[a]ll facts and reasonable

inferences must be considered in a light most favorable to the non-moving party.” 12

IV. DISCUSSION

Mr. Naples brings essentially two categories of claims: (1) alleged

deprivations of constitutional due process; and (2) tort claims of defamation. In his

Complaint, Mr. Naples alleges the Defendants “conspired to violate [his] Civil

Rights and Constitutional Rights under Federal and State Constitution [sic].” 13 He

10 Super. Ct. Civ. R. 56(c). 11 Ebersole v. Lowengrub, 180 A.2d 467, 468-69 (Del. 1962). 12 Nutt v. A.C. & S. Co., Inc., 517 A.2d 690, 692 (Del. Super Ct. 1986). 13 Compl. ¶ 25.

-10- claims the Defendants “violated [his] Fourteenth Amendment due process rights by

depriving [him] of his property rights without due process of the law and the

Delaware Constitution and laws by their actions.” 14 He further alleges that his

Fourteenth Amendment rights to procedural due process were violated. 15

A. Delaware Constitutional Claims

Although Mr. Naples asserts in his Complaint that his civil and

constitutional rights under the Delaware Constitution were violated, this is all he

states. 16 He does not mention a specific provision of the Delaware Constitution,

and he presents no discussion or analysis of the “textual language, legislative

history, preexisting state law, structural differences, matters of particular state

interest or local concern, state traditions, and public attitudes” 17 informing a

reading of any applicable provisions of the Delaware Constitution. Mr. Naples

presents instead a conclusory assertion that Defendants violated the state

constitution. This, without more, will not support a finding that his rights under

14 Id. ¶ 31. 15 Id. ¶ 37. 16 See id. ¶¶ 25, 31. 17 Ortiz v. State, 869 A.2d 285, 291 n.4 (Del. 2008) (providing a framework for addressing Delaware Constitutional arguments); Jones v. State, 745 A.2d 856, 864-65 (Del. 1999). See also Doe v. Wilmington Hous. Auth., 88 A.3d 654, 662 (Del. 2014) (discussing framework “to determine whether a state constitutional provision affords an independent basis to reach a different result than what could be obtained under federal law.”)

-11- the Delaware Constitution were violated. 18 Accordingly, the Court analyzes and

resolves Mr. Naple’s arguments under the Fourteenth Amendment of the United

States Constitution only. 19

B. Federal Substantive Due Process

To the extent Mr. Naples makes a substantive due process claim, 20 the Court

finds judgment for the Defendants thereon must be granted. If an interest is not

considered a “fundamental right,” then the alleged offending state action falls

“entirely outside the ambit of substantive due process and will be upheld so long as

the state satisfies the requirements of procedural due process.” It is well-settled

that public employment is not viewed as a “fundamental right” worthy of the

18 See Doe, 88 A.3d at 662. See also Stafford v. State, 59 A.3d 1223, 1231-32 (Del. 2012) as corrected (Mar. 7, 2013); Wallace v. State, 956 A.2d 630, 637-38 (Del. 2008) (finding conclusory statement that sentence violates the Delaware Constitution waived claim in both in this Court and the Supreme Court). 19 See Stafford, 59 A.3d at 1231-32; Ortiz v. State, 869 A.2d at 290-91. Even if Mr. Naples had properly argued an independent basis for recovery under the Delaware Constitution, our courts have interpreted the due process clause in the Delaware Constitution “‘similarly,’ ‘co- extensively’ or with substantially equivalent meaning” as under its federal due process jurisprudence. Whitwell v. Archmere Acad., Inc., 2008 WL 1735370, at *2 (Del. Super. Ct. Apr. 16, 2008); see also Cohen v. State ex rel. Stewart, CIR-ML, 89 A.3d 65, 86 (Del. 2014) (“Delaware constitutional due process is coextensive with federal constitutional due process.”); Gen. Elec. Co. v. Klein, 106 A.2d 206, 210 (Del. 1954) (“[I]n deciding a case of due process under our Constitution we should ordinarily submit our judgment to that of the highest court of the land, if the point at issue has been decided by that Court.”). 20 The substantive component of the Fourteenth Amendment Due Process Clause protects against government officials’ arbitrary exercise of power. See Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 139 (3d Cir. 2000).

-12- protection of substantive due process under federal law. 21 Mr. Naples therefore

does not meet the threshold criteria of possessing a property interest protected by

substantive due process, and the alleged violation of his due process rights will be

analyzed under procedural due process law.

C. Federal Procedural Due Process

Mr. Naples alleges both his property interest in his employment and his

liberty interest in his reputation were violated by the Defendants’ actions.

1. Property Interest

Mr. Naples must first establish that he has a property interest in his

employment that is afforded procedural due process. 22 No doubt Mr. Naples had a

qualifying property interest in his employment as a merit employee who could only

be terminated for cause. 23 Thus, Mr. Naples had a protected property interest in his

position as an Assistant Land Use Administrator.

21 Id. at 143 (viewing public employment as a “wholly state-created contract right” bearing “little resemblance to other rights and property interests that have been deemed fundamental under the Constitution”); see also Hill v. Borough of Kutztown, 455 F.3d 225, 234 n.12 (3d Cir. 2006) (Third Circuit has “held explicitly that public employment is not a fundamental right entitled to substantive due process protection”). 22 See Barber v. City of Lewes, 1997 WL 127951, at *7 (Del. Super. Ct. Jan. 31, 1997) (employee only has protected property interest if “a source independent of the Federal Constitution, such as state law, creates the right”). 23 See Stanford v. State Merit Emp. Relations Bd., 2012 WL 1549811, at *4 (Del. May 1, 2012) (termination “for cause” creates property interest in state employment); Barber, 1997 WL 127951 at *8 (dismissal for just cause creates protected property interest). The County Code provides: “[d]ismissals are discharges or separations made for delinquency, misconduct, inefficiency or inability to perform the work of the position satisfactorily.” New Castle Cty. C. § -13- Next, the Court must determine what process Mr. Naples was due. What

process is due is a matter of federal constitutional law. 24 As an “essential principle

of due process,” notice and an opportunity to be heard must precede a deprivation

of life, liberty, or property. 25 Specifically, one must be given “an opportunity for a

hearing before he is deprived of any significant property interest.” 26

In the employment context, a plaintiff with a protectable property interest is

entitled to “some kind of a hearing” before the State can deprive him of his

employment. 27 This hearing, “though necessary, need not be elaborate.” 28 The

formality and specific procedures may vary according to “the importance of the

interests involved and the nature of the subsequent proceedings.” 29 And

26.03.907. It further provides that “[w]ith the prior approval of the Chief Human Resources Officer, a department general manager may demote an employee for cause.” Id. § 26.03.1001. 24 See McDaniels v. Frick, 59 F.3d 446, 458 (3d Cir. 1995) (citing Vitek v. Jones, 445 U.S. 480, 491 (1980)). 25 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985). 26 Id. (quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971) (emphasis in original)). 27 Loudermill, 470 U.S. at 542; see also Barber, 1997 WL 127951, at *9. The pretermination hearing balances the individual’s private interest in retaining employment with the governmental interest in managing its personnel. Loudermill, 470 U.S. at 542-43. 28 Loudermill, 470 U.S. at 545. 29 Id.

-14- “something less than a full evidentiary hearing is sufficient prior to adverse

administrative action.” 30

Here, as a public employee who could only be terminated for cause, Mr.

Naples was owed “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.” 31

Now, the Court must determine whether the County 32 provided the

necessary procedures. Mr. Naples alleges it has failed to do so in three ways: (1)

the pretermination hearing lacked an impartial hearing officer; (2) the

pretermination hearing and subsequent decisions were untimely; and (3) in his

view, his post-termination hearing reinstatement violated the County Code by

permitting a suspension of greater than 30 days. 33

30 Id. 31 Id. at 546; see also Stanford v. State Merit Employment Relations Bd., 2012 WL 1549811, at *4 (Del. May 1, 2012) (process due in employment arena is some opportunity for the employee to present his or her side of the case before the termination). 32 The individual defendants were sued in their official and individual capacities. The Court will treat the claims against the Defendants in their official capacities as claims against New Castle County itself. See A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 580 (3d Cir. 2004) (“A suit against a governmental official in his or her official capacity is treated as a suit against the governmental entity itself.”). 33 Pl.’s Answering Br. Opp’n 6. Mr. Naples does not challenge whether he received adequate notice of the proceedings. See id. at 7.

-15- a. Impartial Hearing Officer

Mr. Naples alleges Ms. Ashley was not an “impartial” hearing officer

because she also took part in the investigation against him. He also surmises that

Ms. Ashley did not in fact author the pretermination hearing decision, and

complains that references to Mr. Haggerty were improperly deleted from that

decision. This purported bias, according to Mr. Naples, deprived him of

procedural due process. He argues that the “some kind of hearing” required under

Loudermill is one over which an “impartial” pretermination hearing officer, as

defined by him, presides.

“It is axiomatic that, in general, the Constitution requires that the state

provide fair procedures and an impartial decisionmaker before infringing on a

person’s interest in life, liberty, or property.” 34 If an individual believes that the

procedures are biased, due process requires an opportunity to present and

demonstrate that bias. 35 The challenger must first establish as a threshold matter

that the alleged bias resulted in harm or prejudice.36 Mr. Naples was afforded the

34 McKinney v. Pate, 20 F.3d 1550, 1561 (11th Cir. 1994). 35 See id. 1561-62. There are two scenarios: contemporaneous and subsequent realization that the procedures are biased. In the first scenario, where the individual recognizes the bias at the time of the proceedings, “courts usually require that the challenger contemporaneously object to the bias.” Id. at 1562. Otherwise, that objection is waived. Id. In the second scenario, where bias is recognized after the proceedings, the challenger must demonstrate that he or she has been harmed or prejudiced by the bias. Id.

-16- opportunity to present and demonstrate Ms. Ashley’s alleged bias at his Step III

hearing before the HRAB, where he posited that Ms. Ashley’s involvement in the

investigation was improper and had resulted in his termination. He makes those

same allegations here.

Even a genuine demonstration that the decisionmaker was biased “is not

tantamount to a demonstration that there has been a denial of procedural due

process.”37 The State is not required to provide an impartial decisionmaker at a

pretermination hearing. 38 Rather, the State is only obligated to provide a way for

the employee to “receive redress for the deprivations.” 39 As the Third Circuit

Court of Appeals observed, requiring pretermination decisionmakers in the

employment context to be unfamiliar with the employee and the circumstances

leading to the adverse employment action “in every instance would as a practical

matter require that termination decisions initially be made by an outside party

rather than the employer.” 40 This is not only “unduly cumbersome” for the

36 Id. (“Due process requires that the challenger have an opportunity to object to the alleged bias, and courts consequently have instituted procedures to address allegations of bias and to set aside bias-tainted outcomes. Typically, courts require that the challenger meet a threshold test of demonstrating harm or prejudice resulting from the alleged bias before they will reopen a closed case.”). 37 Id. 38 Id. 39 Id. (quoting Schaper v. City of Huntsville, 813 F.2d 709, 715-16 (5th Cir. 1987)). 40 McDaniels v. Flick, 59 F.3d 446, 460 (3d Cir. 1995).

-17- employer, but it may also be “unreasonably invasive for the employee, who may

want to keep the circumstances of his discharge private.” 41 Moreover, where the

State provides a “neutral tribunal at the post-termination stage,” allegations of an

impartial pretermination decision maker are neutralized and “excessive

pretermination precaution” is unnecessary. 42

What is more, courts have declined to find bias where the adjudicator first

acts as an investigator, without more. 43 Plaintiffs challenging a biased adjudicator

who also played an investigative role must overcome the “presumption of honesty

and integrity in those serving as adjudicators.”44

The County Code provides:

No dismissal of a permanent employee shall take effect until an opportunity for a pretermination hearing is given the employee and the department general manager gives to such employee a written statement setting forth the reasons therefor and files a copy of such statement with the Chief Human Resources Officer. 45 41 Id. 42 Id.; see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 547 n.12 (1985) (“[T]he existence of post-termination procedures is relevant to the necessary scope of pretermination procedures.”). 43 See Walls v. City of Milford, 938 F. Supp. 1218, 1225 (D. Del. 1996) (finding city employee failed to show bias in manager’s combination role of investigator and decisionmaker for employee’s suspension and termination). 44 Withrow v. Larkin, 421 U.S. 35, 47 (1975) (finding no bias in license termination procedures where board first investigated the alleged conduct and later presided over the hearing). 45 New Castle Cty. C. § 26.03.907.

-18- But County employees “should have a reasonable opportunity to be heard on

their legitimate grievances.”46 And Mr. Naples did here. Once a pretermination

decision has been reached, the employee then has three appeal steps: (1) a written

decision by the department general manager; (2) an appeal to and decision by the

Chief Administrative Officer and Chief Human Resources Officer; and (3) an

appeal to the Human Resources Advisory Board. The post-termination remedies

here provide for an entirely different arbiter at the third stage, thus providing a

neutral tribunal at a post-termination stage.

Also, there is no record evidence here that Ms. Ashley was biased in serving

as decisionmaker in the pretermination hearing after being alerted to the

investigation. Ms. Ashley was aware of the investigation, signed Mr. Naples’

discipline records, and consulted with Mr. Haggerty after the pretermination

hearing about the allegations in the discipline record. 47 These facts alone are

insufficient to overcome the presumption of honesty and integrity afforded to

adjudicators. The Court finds there is no evidentiary support in the record for a

due process claim because of Ms. Ashley’s involvement in the underlying

investigation and pretermination hearing.

46 Id. § 26.03.1101 (providing grievance procedures). 47 Latonya Ashley Dep., Ex. 1 to Pl.’s Answering Br. Opp’n at 49-52. Mr. Naples’ allegation that Ms. Ashley had others within the Office of Human Resources provide input into draft versions of the decision letter, even if true, lacks significance.

-19- b. Delays in Hearings and Decisions

While federal constitutional law provides the requirements for

pretermination procedures, post-termination proceedings are a matter of applicable

state law. 48 Merely alleging that the procedures took too long does not support a

due process claim. 49 Indeed, Delaware law holds that if only property rights are

involved, “mere postponement of the judicial enquiry is not a denial of due

process, if the opportunity given for ultimate judicial determination of the liability

is adequate.”50

Under the County Code an employee may request an appeal from a

pretermination decision. If the employee does so, the Chief Human Resources

Officer must arrange a meeting of the HRAB to conduct a hearing “at the earliest

possible date,” but no later than “thirty (30) working days” after the Chief Human

Resources Officer receives the request.

48 See Loudermill, 470 U.S. at 546 (Court looked to state administrative code for guidance on length and timing of administrative procedures in determining whether post-termination procedures violated due process rights). 49 Id. at 547 (finding a “9-month adjudication is not, of course, unconstitutionally lengthy per se”). 50 Cohen v. State ex rel. Stewart, CIR-ML, 89 A.3d 65, 87 (Del. 2014) (citing Slawik v. State, 480 A.2d 636, 646 (Del. 1984)). Cf. Phillips v. Comm’r of Internal Revenue, 283 U.S. 589, 596-97 (1931).

-20- Ms. Ashley allegedly acknowledged receipt of Mr. Naples’ request for an

appeal on June 8, 2009.51 The first session of the HRAB hearing was scheduled

for and took place on August 6, 2009, which is more than thirty days after the

request. The second session took place on August 24, 2009. Although the HRAB

hearings did not take place within the time provided for in the County Code, they

were a matter of a few weeks late. There is no genuine issue of material fact as to

this scheduling. Mr. Naples was afforded not one but two sessions of an appeal

hearing – at which he was given a full opportunity to present evidence and

arguments. This record evidence cannot support, as a matter of law, that the late

scheduling of the HRAB hearing sessions deprived Mr. Naples of due process.

c. Suspension under the County Code

Mr. Naples alleges that his suspension without pay status from April 16,

2009 until his reinstatement on September 28, 2009 52 violated the County Code,

which, in turn, violated his due process rights. 53 Section 26.03.1001 of the County

Code states: “A department general manager may, for disciplinary purposes,

51 Compl. ¶ 19. 52 Mr. Naples claims he was without pay or benefits from April 14, 2009 until September 28, 2009. Ms. Ashley’s termination letter and the HRAB decision indicate that his employment was terminated effective April 16, 2009. 53 Mr. Naples’ characterizes his complaint with the HRAB’s decision as follows. Under the heading “The Defendant’s [sic] Did Not Afford Plaintiff Appropriate Procedural Due Process,” he contends: “Plaintiff was denied his right to an impartial hearing officer and the Defendant’s [sic] violated their own time deadlines and his suspension according to their own code can not be more than 30 days during a 12 month period.” Pl.’s Answering Br. Opp’n 6.

-21- suspend without pay any employee in his or her department for a length of time not

to exceed thirty (30) days in any twelve (12) month period.” Mr. Naples believes

this provision cabins decisions of the HRAB. In his view, the HRAB lacked

authority to impose a 5-month suspension without pay.

While the clear language of § 26.03.1001 does limit suspensions imposed by

a department general manager to thirty days, there is no similar time limit on the

HRAB. Section 26.03.010 states:

Upon completion of his or her probationary period, any employee who is dismissed, demoted, suspended or otherwise disciplined, in accordance with Article 3 of this Chapter or the New Castle County discipline policy, may appeal to the Human Resources Advisory Board for review thereof, in accordance with the grievance procedures set forth in the rules and regulations. [. . .] The Board shall have the power to reduce or increase the penalties should it find them inappropriate for the offense committed.

Unlike the limitation placed on the department general managers, the County

Code grants the HRAB authority to modify penalties – that being, penalties

actually inflicted, not just possible – without restrictions. Applying the well-

established principles of statutory construction, where each provision of a code or

statute is intended for some useful purpose, it is clear that the drafters intended a

distinction between the authority to impose penalties vested in departmental

-22- general managers and that vested in the HRAB. 54 The HRAB exercised its

authority to reduce Mr. Naples’ penalty inflicted from termination to a mere 5-

month unpaid suspension.

2. Liberty Interest

Although Mr. Naples specifically alleges infringement on a property interest

in his Complaint, he also argues in his response brief that his liberty interest in his

good name and reputation was compromised by the Defendants’ alleged

defamatory remarks made during their investigation of his conduct.

An “employment action implicates a Fourteenth Amendment liberty interest

only if it (1) is based on a charge against the individual that might seriously

damage his standing and associations in his community by impugning his good

name, reputation, honor or integrity; or (2) if the charge imposed such a stigma as

to foreclose his freedom to take advantage of other employment opportunities.”55

To state a claim for deprivation of a liberty interest, the employee must establish

that he or she had a liberty interest and that defamatory statements were made

about him or her.56 This is known as the “stigma-plus” test, under which a plaintiff

54 See, e.g., Colonial Ins. Co. of Wisconsin v. Ayers, 772 A.2d 177, 181 (Del. 2001) (applying statutory construction rule that “when different terms are used in various parts of a statute, it is reasonable to assume that a distinction between the terms was intended”). 55 Barber v. City of Lewes, 1997 WL 127951, at *11 (Del. Super. Ct. Jan. 31, 1997) (citing Bd. of Regents v. Roth, 408 U.S. 564, 573 (1972)). 56 Id.

-23- must establish damage to his or her reputation “plus deprivation of some additional

right or interest.”57 If the plaintiff proceeds under a claim of damage to reputation,

the plaintiff must also prove that the published information was untrue or

misleading.58 If the employee is successful, the only process due is a name-

clearing hearing.59

Defamatory statements by themselves do not, however, amount to a

constitutional violation – state tort law may handle damage to reputation alone. 60

Just because the State “may be characterized as the tortfeasor” does not mean that

the Fourteenth Amendment Due Process Clause “should ex proprio vigore extend

to [one] a right to be free of injury.” 61 “[S]uch a reading would make of the

Fourteenth Amendment a font of tort law to be superimposed upon whatever

systems may already be administered by the States.” 62

57 Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006); Barber, 1997 WL 127951 at *11 (stigma must be accompanied by a deprivation of present or future employment). 58 Barber, 1997 WL 127951 at *12. 59 Hill, 455 F.3d at 236 (once plaintiff has established a deprivation of a liberty interest under the stigma-plus test, “the employee is entitled to a name-clearing hearing”). 60 See Paul v. Davis, 424 U.S. 693, 706 (1976). Although the United States Supreme Court “has recognized the serious damage that could be inflicted by branding a government employee as ‘disloyal,’ and thereby stigmatizing his good name,” the Court “has never held that the mere defamation of an individual, whether by branding him disloyal or otherwise, was sufficient to invoke the guarantees of procedural due process absent an accompanying loss of government employment.” Id. 61 Id. at 701. 62 Id.

-24- The crux of Mr. Naples’ deprivation of liberty interest claim is his complaint

that the Defendants made “defamatory” statements about him during their

investigation of his conduct. According to Mr. Naples, the statements Mr.

Haggerty made to witnesses or involved others during his investigation (“playing

both sides of the fence”; that he was “serving two masters”; that he was a “bad

egg”; and that he was “working for the liquor store”) were defamatory and harmed

his reputation. Mr. Naples has not, however, provided evidence that these

statements created some stigma, much less that they were in connection with a

deprivation of an additional right or interest as required under the stigma-plus

test.63 For instance, he offers no evidence that these statements: impacted Ms.

Ashley’s decision to uphold his termination; contributed to his separation from the

Department;64 or impeded his ability to find future employment. As explained

63 See Hill, 455 F.3d at 236 (“In the public employment context, the ‘stigma-plus’ test has been applied to mean that when an employer ‘creates and disseminates a false and defamatory impression about the employee in connection with his termination,’ it deprives the employee of a protected liberty interest.”) (quoting Codd v. Velger, 429 U.S. 624, 628 (1977)). See also Eastburn v. Delaware Dep’t of Transp., 2009 WL 3290809, at *5 (Del. Super. Ct. Sept. 21, 2009) (finding a name-clearing hearing is required when “a state employee is derived of a right or interest and defamed in the process”). 64 The parties did not squarely place a constructive discharge issue before the Court, although the Court did question counsel about such at the hearing. There, Mr. Naples argued that he was reassigned to a position for which he was over-qualified – performing inspections in neighborhoods where he preferred not to go. See Mot. Tr., Aug. 1, 2014, at 22:18 – 23:6. To establish a claim for constructive discharge, a plaintiff generally must show “working conditions so intolerable that a reasonable person would have felt compelled to resign.” Rizzitiello v. McDonald’s Corp., 868 A.2d 825, 832 (Del. 2005). Even a “hostile” work environment, without more, is legally insufficient to support a constructive discharge claim. Id. Mr. Naples has not submitted sufficient evidence to support such a claim here – reassignment to a position he -25- above, Mr. Naples’ deprivation-of-a-property-interest-without-due-process claim

fails. And this deprivation of liberty claim is merely a defamation claim that

should be analyzed under applicable state tort law, not federal due process law.

Thus, summary judgment on any and all due process claims is GRANTED to the

Defendants.

D. Defamation Claims

Mr. Naples alleges Defendants “committed slander per se as well as libel

and slander by telling all that would listen that Mr. Naples was terminated from

employment because he violated NCC Policy 1.00 Rule 34 by accepting any

financial or other rewards or gifts for service rendered and engaged in improper

conduct.” 65 Mr. Naples specifically claims that the Defendants made the following

“defamatory” statements: (1) that Mr. Naples was “playing both sides of the

fence”; (2) that he was “serving two masters”; (3) that he was a “bad egg”; (4) that

he was “working for the liquor store”; and (5) that he was an “a**hole.” Mr.

Naples further alleges that Mr. Culver “called [him] a criminal on at least two

occasions,” including during the HRAB hearing.66

personally finds less desirable, without more, is not enough to show intolerable conditions compelling resignation. 65 Compl. ¶ 28. 66 After the Court requested clarification on the specific statements made by any Defendant that Mr. Naples was alleging were defamatory (Trans. I.D. # 55967620), Mr. Naples only -26- The statute of limitations in Delaware for defamation claims is two years. 67

Defamation claims accrue on the date the alleged defamatory statement is

communicated to a third party. 68 According to Mr. Naples, the statements Mr.

Haggerty made to third parties during his investigation (“playing both sides of the

fence”; “serving two masters”; “bad egg”; and “working for the liquor store”) all

were made between March 25, 2009 and April 16, 2009. 69 Mr. Naples did not file

his complaint until June 24, 2011. Mr. Naples’ defamation claims as to these four

statements are therefore time-barred.

Mr. Naples claims he heard the fifth statement after he had already been

reinstated. Mr. Naples testified in his deposition that about a month after his

reinstatement, he was walking down the hallway next to the code enforcement

addressed the five enumerated above. See Pl.’s Supplemental Mem. 2. The Court assumes Mr. Naples is not abandoning his claim as to the statements Mr. Culver made at the HRAB hearing. 67 DEL. CODE ANN. tit. 10, § 8119 (2014) (“No action for the recovery of damages upon a claim for alleged personal injuries shall be brought after the expiration of 2 years from the date upon which it is claimed that such alleged injuries were sustained. . .”); DeMoss v. News-Journal Co., 408 A.2d 944, 945 (Del. 1979) (affirming lower court’s application of § 8119 to libel claim); Abbott v. Gordon, 2008 WL 821522, at *23 (Del. Super. Ct. Mar. 27, 2008) (applying § 8119 in defamation claim). 68 Abbott, 2008 WL 821522, at *23 (citing Williams v. Howe, 2004 WL 2828058, at *3 (Del. Super. Ct. May 3, 2004). 69 See David Allen Naples Dep., Ex. A to Defs.’ Resp. to Pl.’s Supplemental Mem. at 159:17-160:24 (testimony regarding the “bad egg” statement); Id. at 159:19 (referring to “serving two masters” comment); see also Pl.’s Resp. to Defs.’ First Set of Interrogs. No. 9 (“Between 3/25/09 and 4/16/09, George Haggerty interrogated Robert Paolo in Wayne Merrit’s office about his relationship with me. According to Paolo, Haggerty stated that ‘Naples is playing both sides of the fence and serving two masters,’ ‘working for the liquor store’ and he called me a ‘bad egg’.”).

-27- office when he overheard a conversation in which “Naples” and “a**hole” were

used “in the span of about ten to fifteen seconds.” 70 He claims Defendants Frank

Ruberto and David Holston were involved in the conversation. 71 Mr. Naples also

testified that about that same time he overheard another conversation from the

hallway outside of the code enforcement office involving one of his colleagues and

Mr. Ruberto. Mr. Naples says on that occasion he heard “we got that guy,”

although he did not hear his name uttered.72

Defamation consists of the “twin torts” of libel (written defamation) and

slander (spoken defamation).73 Defamation is generally understood as “a false

publication calculated to bring one into disrepute.”74 The elements under

Delaware law are: (1) a defamatory communication; (2) publication; (3) reference

to the plaintiff; (4) the third party’s understanding of the communication’s

defamatory character; and (5) injury. 75 The general rule is that slander is not

actionable without proof of special damages. 76 There is, however, an exception to

70 David Allen Naples Dep., Ex. A to Defs.’ Resp. to Pl.’s Supplemental Mem. at 68:8 – 69:16. 71 Id. 70:7-11. 72 David Allen Naples Dep., Ex. F to Defs.’ Mot. Summ. J. 72:1-17. 73 Read v. Carpenter, 1995 WL 945544, at *2 (Del. Super. Ct. June 8, 1995). 74 Id. (citing Spence v. Funk, 396 A.2d 967, 970 (Del. 1978)). 75 Read, 1995 WL 945544, at *2. 76 Spence, 396 A.2d at 970 (Del. 1978). -28- that rule for the four “traditional” categories of defamation, commonly called

slander per se, where proof of special damages is not required.77 The four

categories constituting slander per se are statements which: (1) malign a person’s

trade, profession, or business; (2) impute a crime; (3) impute a loathsome disease;

(4) impute a woman is unchaste. 78 Libel, on the other hand, is actionable without

proof of special damages.79

Mr. Naples complains of Mr. Culver’s testimony during the post-termination

hearing that his “initial concern . . . as [he] dug deeper . . . was . . . that there could

be criminal activity that could also have been involved with this action.” 80 This

reference is the sole factual support for Mr. Naples’ slander per se claim. Mr.

Culver made this statement during the HRAB hearing at which the investigation

into Mr. Naples’ termination for violating departmental policies was at issue.

Defendants argue that the Mr. Culver’s statement is, if considered

defamatory, privileged. Delaware law recognizes an absolute privilege “that

protects from actions for defamation statements of judges, parties, witnesses and

attorneys offered in the course of judicial proceedings so long as the party claiming

77 Read, 1995 WL 945544, at *2; Spence, 396 A.2d at 970. 78 Spence, 396 A.2d at 970. 79 Id. at 971 (no special damages required for libel “whether the defamatory nature is apparent on the face of the statement or only by reference to extrinsic facts”). 80 Pl.’s Response to Defs.’ First Set of Interrogs. No. 9.

-29- the privilege shows that the statements issued as part of a judicial proceeding and

were relevant to a matter at issue in the case.’” 81 Alternatively, a qualified or

conditional privilege may attach to “communications made between people who

have a ‘common interest for the protection of which the allegedly defamatory

statements that are made’ or which are ‘disclosed to any person who has a

legitimate expectation in the subject matter.’” 82

Mr. Naples argues in response that the statements were not privileged

because they were made with malice. A defendant forfeits the conditional

privilege defense if the plaintiff can show it was exercised in bad faith, with

malice, or with knowledge of falsity or desire to cause harm. 83 There is no record

evidence to support this essential showing by Mr. Naples.

To the extent Mr. Culver’s reference to criminal activity qualifies it for

consideration as slander per se, Mr. Naples fails to otherwise establish that it is

defamatory. Mr. Culver did not state that Mr. Naples was a criminal – he was

instead expressing the goal of his part of the investigation: to determine if any

criminal activity was underway. This is a true statement of his concerns that there

81 Barker v. Huang, 610 A.2d 1341, 1345 (Del. 1992). 82 Gilliland v. St. Joseph’s at Providence Creek, 2006 WL 258259, at *9 (Del. Super. Ct. Jan. 27, 2006) (citations omitted). 83 Meades v. Wilmington Hous. Auth., 2005 WL 1131112, at *2 (Del. May 12, 2005).

-30- could be criminal activity. “Truth is an absolute defense to a defamation action.” 84

Thus, the factual record cannot support a defamation claim as a matter of law.

Additionally, it remains an undisputed fact that Mr. Naples was in fact

initially terminated in part because of his violations of the departmental gift policy.

Thus, this statement, to the extent Mr. Naples believes it actionable, likewise

cannot give rise to a defamation claim.

Mr. Naples’ claim regarding those statements would fail as a matter of law,

even if they were defamatory. The Defendants are protected here by conditional

privilege. Mr. Culver’s statement made at the HRAB hearing was made to those

who had a legitimate interest in deciding whether to uphold the Department’s

termination decision, and it was made for that purpose. Further, the statement

exhibits no actual malice. Thus, even if the Court could parse an issue of material

fact as to whether Mr. Culver’s comment was slander per se, as a matter of law, his

statement was protected by qualified privilege that Mr. Naples has failed to

demonstrate in the evidentiary record was forfeited.

84 Davis v. W. Ctr. City Neighborhood Planning Advisory Comm., Inc., 2003 WL 908885, at *4 (Del. Super. Ct. Mar. 7, 2003) aff’d, 836 A.2d 513 (Del. 2003) (citing DeBonaventura v. Nationwide Mut. Ins. Co., 428 A.2d 1151, 1155 (Del. 1981)).

-31- Finally, as to the conversations Mr. Naples allegedly heard in the hallway

near the code enforcement office, the Court finds that these cannot support a claim

for slander.

While the Court may draw reasonable inferences from the evidence in the

light most favorable to a non-moving plaintiff, it will not draw unreasonable

inferences. 85 Summary judgment may be granted if the evidence is “merely

colorable, or is not significantly probative.” 86 Mr. Naples could not state that the

conversation where he heard “we got that guy” even referred to him, thus failing to

establish a requisite element of defamation. As to the words “Naples” and

“a**hole” being uttered within ten to fifteen seconds, the Court, drawing

reasonable inferences in the light most favorable to Mr. Naples, the non-moving

party here, cannot find these alone support a claim for defamation. Again, the

reference to Mr. Naples separated in time from an isolated expletive is, at best,

merely colorable evidence of a defamatory comment aimed at Mr. Naples. But

even if the Court were to find otherwise, this would be the expression of an

opinion. Such expressions are generally not actionable.87

85 Smith v. Delaware State Univ., 47 A.3d 472, 477 (Del. 2012) (“This Court will not draw unreasonable inferences in favor of the non-moving party.”) 86 Health Solutions Network, LLC v. Grigorov, 2011 WL 443996, at *2 (Del. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986) (emphasis in original)). 87 Sunstar Ventures, LLC v. Tigani, 2009 WL 1231246, at *7 (Del. Super. Ct. Apr. 30, 2009) (“[P]ure statements of opinion are not actionable. . .”). Where an opinion implies the -32- Viewing the facts in the light most favorable to Mr. Naples, the non-moving

Plaintiff, and drawing all reasonable inferences in his favor, the Court cannot find

the existence of a genuine issue of a material fact on Mr. Naples’ timely filed

defamation claims. Summary judgment is therefore GRANTED to the

E. Implied Covenant of Good Faith and Fair Dealing

Defendants seek dismissal of Mr. Naples’ allegation that “Defendants’

actions violated Delaware’s covenant of good faith and fair dealing.” 88 Mr. Naples

argues that the Defendants manufactured false grounds for his termination, which

“revolved around” an alleged feud between Mr. Haggerty and Mr. Gillen. Mr.

Naples also argues that a certain memo prepared by Defendant David Holston for

Mr. Haggerty’s investigation provided misinformation about his conduct that led to

his termination.

assertion of an objective fact, and if that fact may be found to be false, that may, however, support a claim for libel. Id. The Court must therefore consider whether the statement, “considered from the viewpoint of the average” recipient, in its entire context, implies a false assertion of fact. Id. Referring to another in a crude, but graphic, anal term, to the average recipient, would not imply a fact, let alone a false assertion of a fact. The Court need not address this statement any further. 88 Compl. ¶ 34.

-33- The implied covenant of good faith and fair dealing can be triggered by,

inter alia, an employer’s manufacturing fictitious grounds for termination. 89 But,

the covenant is narrowly construed.90

Here, there is no record evidence that the decision to terminate Mr. Naples

was based on Mr. Haggerty’s purported dislike of Mr. Gillen or on any information

that was not documented and supported by departmental records. Nor is there

evidence that the five disciplinary actions that served as the basis for the initial

termination recommendation – a recommendation addressed and remediated by the

HRAB to a mere suspension – were “manufactured” by the Defendants. Mr.

Naples therefore does not have sufficient evidence to support any claim for a

breach of the implied covenant of good faith and fair dealing here. Judgment as a

matter of law is, therefore, due the Defendants and is GRANTED on this claim.

F. Intentional Infliction of Emotional Distress (“IIED”)

Mr. Naples alleges in his Complaint that the Defendants “intended to inflict

distress upon [him]” by acting in “bad faith with malice and deceitful acts and

manufacturing false grounds in an attempt to terminate [him] . . . intentionally and

89 E.I. DuPont de Nemours & Co. v. Pressman, 679 A.2d 436, 443-44 (Del. 1996). 90 Id. at 442.

-34- recklessly without probable cause or merit.” 91 This alleged “outrageous and

extreme” conduct “caused [him] extreme emotional distress.”92

The Defendants have moved for summary judgment on this intentional

infliction of emotional distress claim. They contend that Mr. Naples has failed to

present any evidence of extreme or outrageous conduct here. Moreover,

Defendants say the alleged harm took place “beginning in March 2009,” 93 but the

complaint was not filed until June 2011. Defendants argue the two-year statute of

limitations for personal injuries therefore bars Mr. Naple’s IIED claim. 94

Mr. Naples did not respond to the Defendants’ arguments in his initial

briefing, at oral argument, or in his supplemental briefing. The Court will

therefore GRANT, as unopposed, summary judgment as to the IIED claim. 95

G. Conspiracy Claims

Delaware law defines civil conspiracy as “the combination of two or more

persons or entities either for an unlawful purpose, or for the accomplishment of a

91 Compl. ¶ 40. 92 Compl. ¶ 41. 93 Defs.’ Mot. Summ. J. 28. 94 See DEL. CODE ANN. tit. 10, § 8119 (2014); Lankford v. Scala, 1995 WL 156220, at *5 (Del. Super. Ct. Feb. 28, 1995) (dismissing plaintiffs’ IIED claims “[b]ecause emotional injuries are personal injuries for statute of limitations purposes, [and] a two-year limitations period applies to such claims.”). 95 See Super. Ct. Civ. R. 56(e) (“If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.”).

-35- lawful purpose by unlawful means, resulting in damage.” 96 Civil conspiracy is not

an independent cause of action in Delaware – it must arise from some underlying

wrong. 97

The essence of Mr. Naples’ civil conspiracy claim is that because emails

were exchanged between Department managers conducting the investigation, the

Defendants “were involved in a conspiracy to illegally and unlawfully terminate”

Mr. Naples’ employment. 98 Without a clearer statement of the underlying wrong,

the Court must assume that Mr. Naples is alluding to his claims for denial of due

process and defamation to support his civil conspiracy claim. As these claims lack

evidentiary support, Mr. Naples cannot establish an underlying wrong on which to

hang his civil conspiracy claim. Summary judgment is GRANTED on this claim.

96 Brooks-McCollum v. Shareef, 2006 WL 3587246, at *3 (Del. Super. Ct. Nov. 1, 2006). 97 Delaware follows the majority approach in requiring the existence of an underlying tort for a civil conspiracy claim. See, e.g., Ramunno v. Cawley, 705 A.2d 1029, 1039 (Del. 1998); Nicolet, Inc. v. Nutt, 525 A.2d 146, 149-50 (Del. 1987) (setting forth elements plaintiff must prove for civil conspiracy, including “an unlawful act done in furtherance of the conspiracy”). See also Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396 (3d Cir. 2000) (noting the general rule that “civil conspiracy may not exist without an underlying tort is a common one” and noting it was unaware of any jurisdiction that recognized a civil conspiracy claim without separate tortuous conduct). 98 Pl.’s Answering Br. Opp’n 12. Mr. Naples also uses the unemployment division’s finding that he was terminated without “good cause” to claim that the parties acted outrageously and in bad faith. As explained below, that definition is inapplicable in this context, and Mr. Naples’ reliance on it here is misplaced. See infra note 102.

-36- H. Qualified Immunity as to Claims Against Defendants in Their Individual Capacities

Having found that the Defendants are not liable in their official capacities

for any of Mr. Naples’ claims, the Court must next determine whether they are in

their individual capacities. Defendants have raised the defense of qualified

immunity.

Whether the Defendants are due qualified immunity depends on whether

they knew their actions violated clearly established constitutional rights. Qualified

immunity shields government officials from personal liability for civil damages

unless the Plaintiff can show “(1) that the official violated a statutory or

constitutional right, and (2) that the right was ‘clearly established’ at the time of

the challenged conduct.”99 That is, if a government official “reasonably believes

99 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This is a two-prong test. The United States Supreme Court “recently reaffirmed that lower courts have discretion to decide which of the two prongs of qualified-immunity analysis to tackle.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011) (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)). This alleviates the need for the Court to have to determine a novel question of constitutional law that will end up having no effect on the case’s outcome. See Pearson, 555 U.S. 223 at 237 (“There are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right.”). Here, there is no novel question of constitutional law: it is clearly established that a public employee has a property interest in his employment when a statutory condition of that employment is that he may only be terminated for cause. See Hill v. Borough of Kutztown, 455 F.3d 225, 234 (3d Cir. 2006) (finding that a person has legitimate property interest in a job where she has “more than a unilateral expectation of continued employment . . . [that is] a legitimate entitlement to such continued employment,” which is in turn determined by reference to state law); see also Stanford v. State Merit Employee Relations Bd., at *4 (Del. May 1, 2012) (finding a state employee had a property interest “derived from the ‘for cause’ standard imposed by state law”).

-37- that his or her conduct complies with the law,” 100 qualified immunity will apply.

Qualified immunity “balances two important interests – the need to hold public

officials accountable when they exercise power irresponsibly and the need to shield

officials from harassment, distraction, and liability when they perform their duties

reasonably.” 101

Defendants argue they are protected in their individual capacities by

qualified immunity. According to Mr. Naples, his termination as a merit employee

allegedly without just cause 102 evidences the Defendants’ attempt to violate his

constitutional rights – in other words, that the Defendants knew they were violating

his clearly established right to due process. This was, Mr. Naples argues, not the

performance of a discretionary function and therefore does not give rise to

qualified immunity. Mr. Naples says Ms. Ashley was aware of her role as the

100 Pearson, 555 U.S. at 244. 101 Id. at 231. 102 Support for Mr. Naples’ claim there was no just cause to terminate him mainly comes from the Division of Unemployment Insurance’s decision. Defendants argue this reliance is misplaced because the HRAB’s test for “just cause” does not and need not incorporate the definition of “just cause” in the unemployment context. The Court agrees that the Unemployment Insurance division’s definition of “just cause” is inapplicable here. See Vann v. Town of Cheswold, 2007 WL 2319775, at *2 (Del. Super. Ct. Aug. 2, 2007) (finding the term “just cause” lacks a single definition in “the broad spectrum of legal issues under the umbrella of employment law,” and that courts have been “reluctant to define just cause”); AFSCME, Council 81, Registered Nurses Unit, Local 2305 v. State, 2014 WL 1813279, at *2 (Del. Ch. Apr. 30, 2014) (noting the parties did not specifically incorporate the unemployment compensation definition of just cause in their collective bargaining agreement’s standard for discipline).

-38- impartial hearing officer, yet she violated that impartiality by conferring with Mr.

Haggerty, who was running the investigation, before and after the hearing.

Defendants respond that Ms. Ashley’s role as hearing officer, the minor

scheduling delays, and the HRAB’s reinstating and suspending Mr. Naples were

not clearly established violations. They argue they relied on the applicable County

Code provisions at the time, which they used to guide their conduct. Defendants

also note that they were aware of other cases where other reinstated employees

were initially suspended for more than 30 days.

Mr. Naples has produced no evidence that the Defendants here knew they

were violating clearly established constitutional rights. In fact, the Court has found

that Mr. Naples has produced no evidence that the Defendants did violate any of

his rights to due process as discussed above. 103 Not one of the Defendants can,

therefore, be liable in his or her individual capacity; each is entitled to judgment as

a matter of law. Summary judgment as to the claims against each Defendant in his

or her individual capacity is GRANTED.

V. CONCLUSION

On the record before the Court, there is insufficient evidence to support Mr.

Naples’ constitutional and defamation claims against the Defendants in their

103 See McDaniels v. Frick, 59 F.3d 446, 461 (3d Cir. 1995) (“Inasmuch as the pretermination procedures did not violate [plaintiff’s] rights, the individual defendants could not be liable.”).

-39- official and individual capacities. Accordingly, for the reasons stated above, the

Defendants’ Motion for Summary Judgment is GRANTED.

IT IS SO ORDERED.

/s/ Paul R. Wallace PAUL R. WALLACE, JUDGE

Original to Prothonotary cc: All counsel via File & Serve

-40-