                                 SUPERIOR COURT
                                       OF THE
                                STATE OF DELAWARE

E. SCOTT BRADLEY                                                        1 The Circle, Suite 2
             JUDGE                                                 GEORGETOWN, DE 19947


                                  August 18, 2016


Michael P. Kelly, Esquire                       David L. Finger, Esquire
Daniel J. Brown, Esquire                        Finger & Slanina, LLC
McCarter & English, LLP                         1201 North Orange Street, 7th Floor
405 N. King Street, 8th Floor                   Wilmington, DE 19801
Wilmington, DE 19801

Darryl A. Parson, Esquire
Wilson B. Davis, Esquire
New Castle County Office of Law
87 Reads Way
New Castle, DE 19720

      RE: Grimaldi v. New Castle County, et al.
          C.A. No: 15C-12-096 (ESB)

Dear Counsel:

      This is my decision on the Motion to Dismiss the Complaint for Failure to State

a Claim filed by Defendants Thomas P. Gordon and New Castle County seeking

dismissal of the complaint filed against them by Plaintiff David Grimaldi. Gordon

is the County Executive. Grimaldi was Gordon’s Chief Administrative Officer until

Gordon terminated him on October 29, 2015. All was apparently well between

Gordon and Grimaldi until September of 2015, when Grimaldi got involved in

matters involving County Council President Christopher Bullock, County Chief of
Staff James D. McDonald, and County Risk Manager Cheryl McDonaugh.

      On September 29, 2015, County Council President Christopher Bullock told

Grimaldi that he had heard a rumor that Grimaldi was helping the political campaign

of Bullock’s potential primary opponent. Bullock told Grimaldi that he had told

Gordon to fire Grimaldi over the incident. The next day, Grimaldi and Gordon talked

about the matter. Gordon allegedly told Grimaldi that if he was going to help

Bullock’s opponent, then “you can’t work here.”

      Grimaldi was involved in matters involving the brother and son of County

Chief of Staff James D. McDonald. The County had hired Robert McDonald, Esquire

to represent the County in a lawsuit. Robert McDonald is the brother of Chief of

Staff James D. McDonald. Robert McDonald had previously represented clients in

litigation against the County. Grimaldi thought this might be a conflict of interest and

potential violation of the County Code. Grimaldi sent a text message to Gordon

about the matter and an e-mail to the County Attorney asking him to look into it.

Grimaldi never got a response from either man and nothing was ever done.

      County employees were complaining to Grimaldi that the County Merit System

was being manipulated so that James McDonald, Jr., could get a County job as an

equipment operator. James McDonald, Jr., is the son of Chief of Staff James D.

McDonald.     Grimaldi talked to Gordon about the matter on October 19, 2015.

                                           2
Gordon allegedly told Grimaldi to “back off” his investigation because he “always

took care of people’s family.”

      Grimaldi was involved in a matter involving County Risk Manager Cheryl

McDonaugh. McDonaugh was Gordon’s campaign treasurer. After returning to

office, Gordon appointed McDonaugh as an Executive Assistant.       Gordon then,

according to Grimaldi, manipulated the County Merit System so that McDonaugh

could be hired as County Risk Manager, a position that Grimaldi did not think

McDonaugh was qualified to hold. Apparently, Gordon routinely told people that

McDonaugh had graduated from the University of Delaware. Grimaldi was unable to

verify that and asked the County Chief Human Resources Officer (“CHRO”) to

review McDonaugh’s personnel file to see if she had graduated from the University

of Delaware. Gordon apparently got wind of this and told the CHRO to block

Grimaldi’s access to McDonaugh’s personnel file. Grimaldi made a formal request

under Delaware’s Freedom of Information Act for McDonaugh’s resume on

November 1, 2015. The County denied his request on November 17, 2015.

      Grimaldi believed that Gordon and McDonaugh shared a close personal

relationship. Grimaldi did not think that McDonaugh did her job very well and that

she used her close personal relationship with Gordon to engage in questionable

practices and abuse County employees.       Grimaldi discussed his concerns about

                                        3
McDonaugh with Gordon.

        On October 22, 2015, Grimaldi was driving through Elsmere, Delaware, when

he was stopped by an Elsmere police officer. Apparently, Grimaldi’s license had

been suspended for his failure to pay a traffic fine in Maryland. During the 20-minute

ticketing process, Grimaldi said to the police officer, “you know, your Mayor works

for me.” After getting the ticket, Grimaldi called County Executive Assistant and

Elsmere Mayor Steve Burg for a ride home. Grimaldi was initially unable to reach

Burg. Grimaldi’s girlfriend came to the scene and gave him a ride home. Grimaldi

and Burg spoke later that night. Burg offered to have Grimaldi’s ticket “yanked.”

Grimaldi declined Burg’s offer.

        Grimaldi and Gordon discussed the ticket incident by phone on October 29,

2015.     Their conversation then turned to the complaints against McDonaugh.

Grimaldi told Gordon, “every day there’s an incident with Cheryl [McDonaugh] but

you defend her 100% because your [of] [your] personal relationship.”            Gordon

responded, “hey, fuck you, Dave, you’re fired. You’re fired Dave.” Gordon then told

the press and public that he had fired Grimaldi for using his position to try to get out

of the traffic ticket.

        Grimaldi filed his six-count complaint against Gordon and the County on

December 10, 2015.

                                           4
      1. In Count I Grimaldi claims that Gordon and the County violated the New

Castle County Employee Protection Act when they fired him for reporting to Gordon

violations of the County Code by other County employees.

      2. In Count II Grimaldi claims that Gordon and the County violated the

Delaware Employee Protection Act when they fired him for reporting to Gordon

violations of the County Code by other County employees.

      3. In Count III Grimaldi claims that Gordon violated his First Amendment

Rights of freedom of political belief and association when Gordon threatened to

terminate Grimaldi if he supported a member of the same political party who was

planning to undertake a primary challenge to County Council President Christopher

Bullock.

      4. In Count IV Grimaldi claims that Gordon defamed him when Gordon told

the press and public that he fired Grimaldi for using his position to try to get out of

a traffic ticket when Gordon really fired him for complaining to Gordon about

McDonaugh.

      5. In Count V Grimaldi claims that he is entitled to a severance package

including two months’ salary and two months of extended health care benefits.

      6. In Count VI Grimaldi claims that the County violated Delaware’s Freedom

of Information Act by refusing to give him a copy of McDonaugh’s resume.

                                           5
                                  STANDARD OF REVIEW

       The standards for a Rule 12(b)(6) motion to dismiss are clearly defined. The

Court must accept all well-pled allegations as true. 1 The Court must then determine

whether a plaintiff may recover under any reasonable set of circumstances that are

susceptible of proof.2 When deciding a motion to dismiss, the Court accepts as true

all well-pleaded allegations in the complaint, and draws all reasonable inferences in

favor of the plaintiff.3 As a general rule, when deciding a Rule 12(b)(6) motion, the

Court is limited to considering only the facts alleged in the complaint and normally

may not consider documents extrinsic to it. There are two exceptions, however, to

this general rule.4      “The first exception is when the document is integral to a

plaintiff’s claim and incorporated into the complaint. The second exception is when

the document is not being relied upon to prove the truth of its contents.”5 “Where

allegations are merely conclusory, however, (i.e., without specific allegations of fact




       1
           Spence v. Funk, 396 A.2d 967, 968 (Del. 1978).
       2
           Id.
       3
           Ramunno v. Crawley, 705 A.2d 1029 (Del. 1998).
       4
        See Vanderbilt Income & Growth Assocs., L.L.C., v. Arvida/JMB Managers, Inc., 691
A.2d 609, 612 (Del. 1996).


       5
           Vanderbilt, 691 A.2d at 613.

                                                6
to support them) they may be deemed insufficient to withstand a motion to dismiss.”6

Dismissal will not be granted if the complaint “gives general notice as to the nature

of the claim asserted against the defendant.”7 A claim will not be dismissed unless

it is clearly without merit, which may be either a matter of law or fact.8 Vagueness

or lack of detail in the pleaded claim are insufficient grounds upon which to dismiss

a complaint under Rule 12(b)(6).9 If there is a basis upon which the plaintiff may

recover, the motion is denied.10

                                        DISCUSSION

                                        Counts I and II

      Grimaldi claims that the County violated the County Employee Protection Act

(“NCCEPA”)11 and the Delaware Employee Protection Act (“DEPA”)12 when it fired

him for reporting to Gordon violations of the County Code by other County




      6
          Lord v. Souder, 748 A.2d 393, 398 (Del. 2000).
      7
          Diamond State Telephone v. University of Delaware, 269 A.2d 52, 58 (Del. 1970).
      8
          Id.
      9
          Id.
      10
           Id.
      11
           NCC Code §§2.03.300-305.
      12
           19 Del. C. §1701-08.

                                                7
employees.13 The County argues that Grimaldi has failed to state a claim for which

relief may be granted because he was an at-will employee who served at the pleasure

of Gordon and, as such, could be terminated with or without cause pursuant to 9 Del.

C. §1120(a).

        NCCEPA states, in part, the following:

               The County shall not discharge, threaten, reassign or otherwise
        adversely impact an employee regarding the employee’s compensation,
        terms, conditions, location or privileges of employment because:

                         A. The employee reports, in a written or oral
                 communication to an elected official, or in a written
                 communication to a non-elected public official, a suspected
                 violation of a law, rule or regulation adopted by the
                 County, the State or the United States, a violation of a
                 court order, a misuse of public funds, or an action which is
                 of substantial and specific danger to the public health,
                 safety or welfare unless the employee knows that the report
                 is without merit.

        DEPA states, in part, the following:

                (b) No public employee shall be discharged, threatened or
        otherwise discriminated against with respect to the terms or conditions
        of employment because that public employee reported, in a written or
        oral communication to an elected official, a violation or suspected
        violation of a law or regulation promulgated under the law of the United
        States, this State, its school districts, or a county or municipality of this
        State unless the employee knows that the report is false.



        13
             Grimaldi acknowledges that he has no claims against Gordon under NCCEPA and
DEPA.

                                                 8
      NCCEPA and DEPA both provide that an employee claiming a violation of

either law may bring a civil action for appropriate injunctive relief, actual damages,

or both.

      9 Del. C. §1120 (a) provides as follows:

            The County Executive shall appoint a Chief Administrative
      Officer who shall serve at the pleasure of the County Executive. The
      Chief Administrative Officer shall be qualified by education, training
      and experience for the duties to be performed.

      A person who serves “at the pleasure of another” is deemed to be an employee-

at-will who may be terminated for any reason or no reason.14

      Grimaldi argues that NCCEPA and DEPA are exceptions to §1120(a),

reasoning that actions brought pursuant to “whistleblower” laws like these are “public

policy” exceptions to the “employee-at-will” doctrine and treating them as such

advances the public’s interest in a government free of corruption.

      The County argues that NCCEPA and DEPA should not apply to Grimaldi

because (1) Grimaldi’s right to pursue reinstatement to his job under NCCEPA and

DEPA would conflict with Gordon’s right under §1120(a) to terminate him without

consequence; (2) the interpretation that best harmonizes all three laws is one that

provides that NCCEPA and DEPA do not apply to a high-level employee like



      14
           Mayer v. Hurlock, 127 A.3d 554, 559-60 (Md. App. 2015).

                                              9
Grimaldi; (3) Grimaldi’s interpretation would allow all of the high-level State

employees who serve at the pleasure of the Governor to bring a claim for

reinstatement against the Governor; (4) Grimaldi occupied such a high-level position

in County government that Gordon must be able to terminate him at his pleasure in

order to properly run the County government; (5) the Delaware Courts have only

recognized two narrow exceptions to the employee-at-will doctrine15 ; and (6) the

Delaware legislature has declined opportunities to expand those two exceptions.16

        Grimaldi and the County have both made persuasive arguments that advance

their respective positions.17 However, I believe the more persuasive argument is that

the whistleblower laws were never intended to limit the County Executive’s right to

hire and fire his Chief Administrative Officer without consequence because the

County Executive needs a Chief Administrative Officer of his own choosing in order



        15
             Finch v. Hercules Incorporated, 809 F.Supp. 309, 311 (D. Del. 1992).
        16
           In Schuster v. Derocili, 775 A.2d 1029 (Del. 2001),the Delaware Supreme Court held
that Delaware recognizes a common law cause of action for breach of a covenant of good faith
and fair dealing implied in an at-will employment contract where a plaintiff alleges that her
termination directly resulted from her refusal to succumb to sexual harassment in the workplace.
Thus, the Supreme Court recognized a cause of action that could be pursued outside the
procedural process for pursing discrimination claims set forth in the Delaware Discrimination in
Employment Statute. After Schuster was decided, the Delaware legislature amended the
Delaware Discrimination in Employment Statute to make the procedural process set forth therein
to be the exclusive remedy for discrimination claims.
        17
           Grimaldi and the County also discussed various rules of statutory construction. I did
not find any of them to be helpful.

                                                   10
to carry out his policies. Gordon is the County Executive. The County Executive is

an elected position and is the highest position in County government. Grimaldi was

the Chief Administrative Officer. The Chief Administrative Officer is a non-elected

position and is the second highest position in County government. The County

Executive appoints the Chief Administrative Officer who serves at the County

Executive’s pleasure.18          Gordon is certainly entitled to work with a “second-in-

command” that is loyal, cooperative, trustworthy, and willing to carry out his policies

and directives without complaint. Once Gordon determined that he could no longer

work with Grimaldi, then it was not possible for Grimaldi to carry out his duties as

Chief Administrative Officer. Similarly, Gordon’s ability to carry out his duties as

County Executive would be jeopardized without a Chief Administrative Officer that

he could work with.        It would create an untenable situation for Gordon if a Court

forced him to accept Grimaldi as his “second-in-command” when he had lost

confidence in Grimaldi.            That is why Grimaldi and others like him in State

government who serve at the pleasure of the Governor must sacrifice their rights

under the whistleblower laws so that the County Executive and Governor can

effectively and efficiently run their respective governments and it is why I have

concluded that NCCEPA and DEPA with their job reinstatement provisions do not


      18
           9 Del. C. §1120(a).

                                               11
apply to Grimaldi. While I am confident that the Delaware Legislature is interested

in good government, as evidenced by its passage of DEPA, I certainly do not believe

that the legislature passed all of those statutes providing that the County Chief

Administrative Officer and various high-level State appointees shall serve at the

pleasure of the County Executive and Governor, respectively, only to have those

persons file lawsuits for reinstatement under NCCEPA and DEPA where applicable.

My decision, I believe, is one that gives full effect to 9 Del. C. §1120(a) and the other

“at pleasure statutes,” and only infringes on NCCEPA and DEPA by excluding from

them the County Chief Administrative Officer and those State appointees that serve

at the pleasure of the Governor. That does not seem to me to be an unreasonable

result. The alternative would create havoc at the highest levels of County and State

government. Therefore, I will dismiss Counts I and II.

                                      COUNT III

      Grimaldi claims that Gordon violated his First Amendment rights of freedom

of political belief and political association when Gordon threatened to terminate

Grimaldi if he supported a member of the same political party who was planning to

undertake a primary challenge to County Council President Christopher Bullock.

      I am satisfied that Grimaldi has properly pled a regular retaliation claim. In

order to do this, a plaintiff must allege: (1) constitutionally protected conduct; (2)

                                           12
retaliatory action sufficient to deter a person of ordinary firmness from exercising his

rights; and (3) a crucial link between the constitutionally protected conduct and the

retaliatory action.19 Grimaldi alleged in his complaint that Gordon threatened to fire

him if he supported a primary challenger to County President Christopher Bullock.

Grimaldi’s allegation meets all three of the pleading requirements. Political belief

and association are protected by the First Amendment. The threat of termination of

one’s employment would certainly deter a person of ordinary firmness from

exercising his constitutional rights. Lastly, there is no doubt that there is a direct link

between Grimaldi’s exercise of his rights and Gordon’s threat to terminate Grimaldi

for doing so.

       The contested issue regarding this claim is whether Grimaldi had to allege that

his position as Chief Administrative Officer did not require political affiliation. This

matters because the political affiliations of lower level political players are

constitutionally protected from government retaliation, whereas the political

affiliations of “policymakers” are not similarly protected.20 Policymaking staffers

may be permissibly fired based on their views and associations.21 The “policymaker’s

       19
            Thomas v. Independence Tp., 463 F.3d 285, 296 (3d Cir. 2006).
       20
          Krause v. Buffalo and Erie County Workforce Development Consortium, Inc., 425 F.
Supp. 352 (W.D.N.Y. 2006).
       21
            Id.

                                               13
exception” to the First Amendment retaliation doctrine reflects the fact that the

people’s chosen representatives must be allowed to hire aides who share their

political views and fire those aides who do not. 2 2 A “policymaker” has been defined

as someone for whom political affiliation is an appropriate requirement where there

is a rational connection between shared ideology and job performance.23

        It is well recognized that the assertion that an employment position is a policy-

making position is an affirmative defense.24 An affirmative defense cannot be raised

on a motion to dismiss because an affirmative defense does not have to be pled in the

complaint.25 However, when facts in the complaint support the affirmative defense,

then it may be considered.26 The Court may also take judicial notice of the law and

consider it as part of the complaint.27

       The factors to consider when determining whether an employee is a

policymaker are as follows:

                  Whether the employee has duties that are non-discretionary or


       22
            Id.
       23
            Id.
       24
            Krause, 425 F. Supp. 352.
       25
            Nigro v. City of Chicago, 1992 WL 112239 (N.D. Ill. May 20, 1992).
       26
            Id.
       27
            Delaware Rules of Evidence Rule 201.

                                                   14
      non-technical, participates in discussions or other meetings, prepares
      budgets, possesses the authority to hire and fire other employees, has a
      high salary, retains power over others, and can speak in the name of
      policy makers.28

      The Third Circuit has suggested that the “key factor seems to be not whether

the employee was a supervisor or had a great deal of responsibility, but whether [the

employee] has meaningful input into decision making concerning the nature and

scope of a major program.”29

      I have considered Grimaldi’s broad statutory authority, the allegations he made

in his complaint about his extensive involvement in important County activities, and

a case involving a lower-level County executive who was deemed to hold a

policymaking position requiring political affiliation and concluded that Grimaldi was

a policymaker whose job required political affiliation.

                               Grimaldi’s Statutory Authority

      Grimaldi’s statutory authority as Chief Administrative Officer is set forth in 9

Del. C. §1121(a). The Chief Administrative Officer assists the County Executive

with his duties and responsibilities and, subject to the policies and directives of the

County Executive, shall have general supervision over the executive, administrative



      28
           Galli v. New Jersey Meadowlands Commission, 490 F. 3d 265, 271 (3d Cir. 2007).
      29
           Id. at 271.

                                              15
and operational departments of New Castle County.30 The Chief Administrative

Officer, on behalf of the County Executive, prepares the annual operating budget,

capital program and capital budget.31          The Chief Administrative Officer also

supervises the execution of the budget, the preparation of reports and information

concerning the status of the financial and other affairs of New Castle County in order

to keep the County Executive, County Council and the public informed as to all

offices, departments, and agencies receiving appropriations from the County.32 In

sum, Grimaldi has broad statutory authority over the County’s budget and executive,

administrative and operational departments.

                                 Grimaldi’s Complaint

      Grimaldi’s complaint lists a number of accomplishments indicating the

policymaking role he played in County government: (1) eliminating structural deficits

and producing an operating surplus in each year in office, thereby allowing the

County Executive to keep his “no tax increase” pledge; (2) restructuring the County’s

debt and realizing a $12 million saving, making it the most successful bond deal in

County history, allowing the County to shrink the year-over-year budget for only the


      30
           9 Del. C. §1121(a).
      31
           9 Del. C. §1121(b).
      32
           Id.

                                          16
fourth time it its history; (3) leading the drastic fiscal year 2015 financial turnaround,

which eliminated a mid-year $2.5 million projected deficit and replaced it with a

surplus. The surplus was large enough to allow for a one-time bonus of $750 to each

County employee while still ending the year in the black; (4) restructuring the County

employee retirement plan to avoid $600,000 in surrender fees; (5) discovering that

the County’s financial statements were wrong and misrepresented the County’s

investment risk, with 16% of the reserve portfolio in junk bonds, and moving the

portfolio to UBS and bringing investments in line with the financial statements,

thereby reducing the risk of the County’s investments and saving hundreds of

thousands of dollars per year in investment fees; (6) initiating and leading the

County’s first-ever Comprehensive Economic Development Plan, the Anti-Heroin

marketing campaign, the successful opposition to the Barley Mill Plaza rezoning,

Comprehensive Ethics Reform, the Open Government platform, the new County

Website, and the Route 9 Innovation Center and revitalization project; ( 7 ) serving

as key policy advisor to the County Executive and causing his public positions on key

progressive issues such as raising the County minimum wage, supporting marriage

equality, and opposing the Trans Pacific Partnership Agreement, which initiatives

furthered Gordon’s popularity among Democratic voters; and (8) serving as the

architect of the Delaware Board of Trade (DBOT) project, the Chemours incentive

                                            17
package, and leading the County effort in assisting the Governor’s Office for the JP

Morgan expansion project.

                                     Freeberry v. Coons

      The Third Circuit in Freeberry v. Coons33 found that position of General

Manager of the Special Services Department for the County was a policymaking

position that required political affiliation.        The General Manager of this County

department has responsibility over County infrastructure and facilities.34 It is a lower-

level position than Chief Administrative Officer.

      There is no doubt that Grimaldi was a high-level policymaker for the County.

Grimaldi held the second-highest position in the County government. Grimaldi had

supervisory authority over the executive, administrative and operational departments

of the County. Grimaldi was responsible for preparing the annual operating budget,

capital program, and capital budget for the County.              Grimaldi supervised the

execution of the budgets and the preparation of reports concerning the status of the

financial and other affairs for New Castle County. There is no doubt that there is a

strong link between policy making and budgeting.

      Grimaldi was, in his own words, deeply involved in spearheading programs


      33
           355 Fed. Appx. 645 (3d Cir. 2009).
      34
           9 Del. C. §1341.

                                                18
regarding the fiscal health of New Castle County, including: (1) eliminating deficits;

(2) restructuring the County’s debt; (3) restructuring the County employee retirement

plan; (4) investing County money in less-risky investments. Grimaldi was, again in

his own words, responsible for initiating and leading various economic development

and social programs including: (1) an anti-heroin marketing program; (2) opposing

the Barley Mill rezoning; (3) ethics reform; (4) a new County website; (5) the Route

9 Innovation Center and revitalization program; (6) the Chemours incentive package;

(7) serving as the architect of the Delaware Board of Trade project; and (8) the JP

Morgan expansion project.

      Most importantly, Grimaldi, in his own words, served as a key advisor to the

County Executive and caused his public positions on key program issues to be

known, such as raising the County minimum wage, supporting marriage equality,

opposing the Trans Pacific Partnership Agreement, which initiatives furthered

Gordon’s popularity with Democratic votes. This implicates what the Third Circuit

in Galli said what may be the key factor in determining whether an employee is a

policymaker.    Grimaldi certainly had meaningful input into Gordon’s decision

making regarding the nature and scope of a number of major County programs and

he also spoke on behalf of Gordon in promoting those programs.

      Lastly, the Third Circuit in Freeberry held that the Manager of the Special

                                          19
Services Department for the County was a policymaker position that required political

affiliation.   This is a lower-level job than the one Grimaldi held. If it required

political affiliation, then there is no doubt that Grimaldi’s job did as well.

       In summary, Grimaldi was a high-level County employee that (1) had

responsibility for all of the County’s budgeting; (2) had supervising authority over

the executive, administrative and operational departments of the County; (3) initiated

and led many County financial programs; (4) initiated and led many County social

programs; (5) initiated and led many County economic development programs; and

(6) was a key advisor to, and spokesperson for, the County Executive on a number of

progressive programs that made the County Executive more popular with his

Democratic constituents.        There is no doubt that Grimaldi held a high-level

policymaking position that required political affiliation. To conclude that Grimaldi,

the second-highest County officer who had responsibility over a broad range of

County operations and programs, was not a policymaker whose position recognized

political affiliation suggests that no County employee was. That is not a reasonable

conclusion.      Therefore I will dismiss Count III because Grimaldi was unable to

allege that his job did not require political affiliation.

                                          COUNT IV

       Grimaldi claims that Gordon told the public and press that he fired Grimaldi

                                               20
for using his position to try to get out of a traffic ticket when Gordon really fired him

for complaining to Gordon about McDonough. This is what is known as “stigma-

plus” defamation claim.

       The United States Supreme Court has held that “[w]here a person’s good name,

reputation, honor, or integrity is at stake because of what the government is doing to

him, notice and an opportunity to be heard are essential.”35 When notice and an

opportunity to be heard are not provided, a plaintiff may bring “a due process claim

for deprivation of a liberty interest in reputation.”36 To prevail, the plaintiff must

demonstrate “a stigma to his reputation plus deprivation of some additional right or

interest.”37 This is referred to as the “stigma-plus” test, and in the context of public

employment, it “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.”38

       “To satisfy the ‘stigma’ prong of the test, it must be alleged that the purportedly

stigmatizing statement(s): (1) were made publicly; and (2) were false.”39 “To satisfy

       35
            Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971).
       36
            Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006).
       37
            Id.
       38
            Id. (quoting Codd v. Velger, 429 U.S. 624, 628 (1977)).
       39
            Hill, 455 F.3d at 236.

                                                 21
the ‘plus’ requirement, a plaintiff must demonstrate that the alleged defamation

harming the plaintiff’s reputation ‘occurs in the course of or is accompanied by

extinguishment of a right or status guaranteed by law or the Constitution.’”40 “The

creation and dissemination of a false and defamatory impression is the ‘stigma,’ and

the termination is the ‘plus.’ When such a deprivation occurs, the employee is

entitled to a name-clearing hearing.”41 The Third Circuit has held that “a public

employee who is defamed in the course of being terminated or constructively

discharged satisfies the ‘stigma-plus’ test even if, as a matter of state law, he lacks a

property interest in the job he lost.”42

       Gordon makes four arguments in an attempt to gain dismissal of Grimaldi’s

defamation claim:

              1. The Complaint fails to state a stigma-plus defamation claim
       because it does not plead the alleged defamatory statement with
       particularity.

       I disagree. Grimaldi alleges that Gordon told the press and public that he fired

Grimaldi for using his position to try to get out of a traffic ticket. To satisfy the

requirements of pleading defamation, a complaint must only supply sufficient notice

       40
         Mun. Revenue Servs., Inc., v. McBlain, 2007 WL 879004, at *4-5 (E.D.Pa. Mar. 19,
2007)(quoting Hill, 455 F.3d at 235).
       41
            Hill, 455 F.3d at 236.
       42
            Id. at 238.

                                             22
of the communications complained of to allow the defendant to defend himself.43

Grimaldi readily acknowledges that he told the police officer who stopped him, “you

know, your Mayor works for me.” Grimaldi’s allegation is certainly straight forward

and leaves no doubt exactly what he is complaining about. I am satisfied that

Grimaldi’s allegation about his termination together with his admitted statement to

the police officer who stopped him adequately puts Gordon on notice of the

allegations against him.

             2. The Complaint fails to state a stigma-plus defamation claim
       because it impermissibly bases a stigma-plus claim on a true statement.

       Gordon argues that Grimaldi’s claim fails because it is based on a true

statement. The true statement made by Grimaldi is that he told the police officer who

stopped him that, “you know, your Mayor works for me.” Gordon’s authority for his

argument is the United States Supreme Court’s decision in Codd v. Velger.44 In

Codd, the plaintiff’s personnel file showed that he had been dismissed because while

as a trainee police officer he had put a revolver to his head in an apparent suicide

attempt. The Supreme Court ruled that the statement was not defamatory because the

plaintiff never alleged that the report of his suicide attempt was false. Grimaldi’s case



       43
            Bushnell Corp. v. ITT, Corp. 973 F. Supp. 1276, 1287 (D. Kan. 1997).
       44
            429 U.S. 624 (1977).

                                                23
is different. While Grimaldi acknowledges that he told the police officer, “you know,

your Mayor works for me,” Grimaldi clearly alleges that Gordon’s statement about

him trying to get out of a traffic ticket was false. Thus, Gordon’s argument fails

because the allegedly false statement is not the admittedly true statement.

            3. The Complaint fails to state a defamation claim because it
      impermissibly bases a stigma-plus claim on “pure opinion,” which
      cannot be defamatory as a matter of law.

      Gordon notes that a “pure opinion” is one that is based on stated facts or facts

that are known by the parties or assumed by them to exist.45 Pure expressions of

opinion are protected under the First Amendment and are not defamatory.46               I

certainly can not conclude, on a motion to dismiss for the failure to state a claim, that

Gordon’s statement is pure opinion. Whether Grimaldi tried to use his position to get

out of a ticket by saying to the police officer that, “you know, your Mayor works for

me,” is to me more of a question of fact because it relates to Grimaldi’s intent and,

as such, one to be decided by the jury after it hears Grimaldi’s explanation for why

he made that statement.

             4. The Complaint fails to state a stigma plus defamation claim
      because it does not allege any harm to Grimaldi’s reputation caused by
      a false statement versus harm caused by his own conduct.


      45
           Riley v. Moyed, 529 A.2d 248, 251 (Del. 1987).
      46
           Id.

                                               24
       Gordon argues that his statement about Grimaldi is substantially true. Gordon

also argues that the fact that he allegedly gave a false reason for terminating Grimaldi

can not provide a basis for Grimaldi’s stigma-plus defamation claim. Gordon uses

this to argue that Grimaldi has not properly stated a stigma-plus defamation claim

because Grimaldi has not alleged that Gordon’s statement foreclosed Grimaldi from

any other employment. Grimaldi alleges, in part, that Gordon’s statement damaged

Grimaldi’s good name, reputation, honor or integrity.

       “To satisfy the ‘stigma’ prong of the test, it must be alleged that the purportedly

stigmatizing statement(s): (1) were made publicly; and (2) were false.”47 “To satisfy

the ‘plus’ requirement, a plaintiff must demonstrate that the alleged defamation

harming plaintiff’s reputation ‘occurs in the course of or is accompanied by

extinguishment of a right or status guaranteed by law or the Constitution.’”48 “The

creation and dissemination of a false and defamatory impression is the ‘stigma,’ and

the termination is the ‘plus.’ The Third Circuit has held that “a public employee who

is defamed in the course of being terminated or constructively discharged satisfies the

‘stigma-plus’ test even if, as a matter of state law, he lacks a property interest in the



       47
            Hill, 455 F.3d at 236.
       48
         Mun. Revenue Servs., Inc., v. McBlain, 2007 WL 879004, at *4-5 (E.D.Pa. Mar. 19,
2007)(quoting Hill, 455 F.3d at 235).

                                             25
job he lost.”49

       Grimaldi has pled the required elements. Grimaldi alleges that Gordon told the

press and public that he terminated Grimaldi because he used his position to try to get

out of a traffic ticket. Quite simply, Grimaldi was a public employee who was

allegedly defamed in the course of being terminated. As I have noted before, the

Third Circuit has concluded that this is an adequately-pled stigma-plus defamation

claim.50 Therefore, I will not dismiss Count IV.

                                        Count V

       Grimaldi claimed that he was entitled to a severance package including two

months’ salary and two months of extended health care benefits. Grimaldi has

withdrawn this claim.

                                        Count VI

       Grimaldi claims that the County violated the Delaware Freedom of Information

Act by refusing to give him a copy of Cheryl McDonaugh’s current resume.

       The County argues that McDonaugh’s resume is not a public record because

it (1) is part of her personnel file, and (2) pertains to pending or potential litigation.




       49
            Hill, 455 F.3d at 238.
       50
            Id.

                                            26
                                          Personnel Files

       29 Del. C. §10002 (l)(1) provides that a public record does not include:

             Any personnel, medical or pupil file, the disclosure of which
       would constitute an invasion of personal privacy, under this legislation
       or under any State or federal law as it relates to personal privacy.

       McDonaugh was the successful applicant for the Risk Manager’s job. Under

Delaware law, it is not an invasion of the personal privacy of a successful applicant

for a job for the government to disclose to the public information the successful

applicant disclosed during the application process.51 The information submitted by

unsuccessful applicants is treated differently because disclosure may embarrass or

harm them.52 Their present employers, should they seek new work, may learn that

other people were better qualified for a competitive appointment.                A successful

applicant would not be subject to the kind of embarrassment that the unsuccessful

applicant would face.53 The successful applicant’s identity is known and the fact that

they have decided to leave their former employer or current position is also known.

In such cases, the public’s legitimate interest in knowing information about the




       51
            Del. Op. Atty. Gen. 99-IB03 (April 28, 1999).
       52
            Id.
       53
         Core v. U.S. Postal Service ,730 F.2d 946, 949, (4th Cir. 1984); Arizona Board of
Regents v. Phoenix Newspapers, Inc., 806 P.2d 348, 352 (Ariz. 1991).

                                                 27
candidate who got the job outweighs the privacy interest of the successful applicant.54

Thus, I conclude that the County’s disclosure of McDonaugh’s resume would not

constitute an invasion of her personal privacy.

                                    Pending Litigation

       29 Del. C. §10002(l)(9) provides that a public record does not include:

              Any records pertaining to pending or potential litigation which are
       not records of any court.

       The County argues that Grimaldi’s request for McDonaugh’s resume pertains

to this litigation because it would support his belief that McDonaugh never graduated

from the University of Delaware. Grimaldi argues that McDonaugh’s resume does

not pertain to this litigation because it will not prove or disprove any element of the

claims that he is pursuing. The rationale for the “pending litigation exception” is that

it recognizes the practical reality that when parties to litigation against a public body

seek information relating to the litigation, they are not doing so to advance “the

public’s right to know,” but rather to advance their own personal stake in the

litigation.55 Delaware courts will not allow litigants to use FOIA as a means to obtain




       54
            Id.
       55
         ACLU v. Danberg, 2007 WL 901592, at *4 (Del. Super. March 15, 2007) (citing Mell
v. New Castle County, 835 A.2d 141, 147 (Del. Super. 2003).

                                             28
discovery which is not available under the Court’s rules of procedure.”56

      I have concluded that Grimaldi’s request for McDonaugh’s resume is very

much related to this litigation because she and her resume are part of one of

Grimaldi’s claims against Gordon.        The “Background” portion of Grimaldi’s

complaint has 31 paragraphs. Ten of them involve McDonaugh. In Count IV of

Grimaldi’s complaint, he alleges, in part, that Gordon fired him for criticizing

McDonaugh. Grimaldi goes on to allege that Gordon told the press and public that

he fired Grimaldi for using his position to get out of a traffic ticket in an effort to

cover up his real reason for firing Grimaldi. Thus, if McDonaugh’s resume shows

that she did not graduate from the University of Delaware – which Grimaldi certainly

believes, as evidenced by his allegations in paragraph 19 of the Complaint – then it

would tend to prove Grimaldi’s allegation that the real reason that Gordon fired him

was for complaining about McDonaugh, a woman that Gordon was allegedly very

close to. Thus, I conclude that McDonaugh’s resume is not a public record because

it falls within the “pending litigation exception.” Accordingly, I will dismiss Count

VI of Grimaldi’s Complaint because it seeks information that is not a public record

under Delaware’s Freedom of Information Act.




      56
           ACLU, 2007 WL 901592.

                                          29
                                 CONCLUSION

      I have dismissed Counts I, II, III and VI. I did not dismiss Count IV. Grimaldi

has withdrawn Count V.

      IT IS SO ORDERED.

                                              Very truly yours,

                                              /s/ E. Scott Bradley

                                              E. Scott Bradley


ESB/sal
oc: Prothonotary




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