                                  SUPERIOR COURT
                                        OF THE
                                STATE OF DELAWARE

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


                                   August 29, 2017

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

Karen V. Sullivan, 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: N15C-12-096 (ESB)

Dear Counsel:

      There are three matters outstanding – Damages, Amendments to the Pleadings

and Discovery.
                                      Damages

      After reviewing all of the authorities cited by the parties on the issue of

whether Grimaldi may seek compensatory damages for his stigma-plus claim, I have

concluded that he may do so. Grimaldi cited a number of cases that, at the very least,
contemplated an award of compensatory damages for a stigma-plus claim.1 I did not

view the Defendants’ cases as prohibiting compensatory damages in all circumstances

for a stigma-plus claim.2 The Defendants’ best argument is that a timely and properly

conducted name-clearing hearing would defeat Grimaldi’s claim for compensatory

damages. However, that never happened here. Grimaldi was terminated on October

29, 2015. Grimaldi was not given a new name-clearing hearing. The trial of this

matter is scheduled for July 16, 2018.         Assuming that Grimaldi prevails at trial, I do

not believe that a name-clearing hearing given nearly three years after Grimaldi’s

termination would be considered timely.

                                         The Pleadings

       Grimaldi seeks to amend his complaint by adding (1) a new paragraph 36

alleging that Gordon has continued to publicly malign Grimaldi after his termination,

and (2) new paragraphs 57-60 making it clear that Gordon is being sued in his


       1
          McGhee v. Draper, 639 F.2d 638 (10th Cir. 1981); Ersek v. Town of Springfield, 102
F.3d 79 (3rd Cir. 1996); Patterson v. City of Utica, 370 F.3d 322 (2d Cir. 2004); Warren v. City of
Junction City, KS, 207 F.Supp.2d 1216 (D. Kan. 2002); Rehberg v. Paulk, 611 F.3d 828 (11th Cir.
2010), aff’d, 566 U.S. 356 (2012); Torrey v. New Jersey, 2014 WL 941308 (D.N.J. March 11,
2014); Potter v. Board of Regents of the University of Nebraska, 844 N.W.2d 741 (Neb. 2014);
Zueck v. City of Nokomis, 513 N.E.2d 125 (Ill.App. 1987); Donato v. Plainview-Old Bethpage
Central School District, 96 F.3d 623 (2d Cir. 1996).


       2
        Board of Regents if State Colleges v. Roth, 408 U.S. 564 (1972); Paul v. Davis, 424
U.S. 693 (1976); Codd v. Velger, 429 U.S. 624 (1977); Siegert v. Gilley, 500 U.S. 226 (1991).


                                                 2
individual capacity and that the defense of qualified immunity is not available to him.

I will deny Grimaldi’s request to add a new paragraph 36. The alleged public

comments can not be a part of Grimaldi’s stigma-plus claim because they were not

made contemporaneously with his termination.3 Thus, they are of no relevance. I

will grant Grimaldi’s request to add new paragraphs 57-60. The Defendants will not

be prejudiced by Grimaldi’s clarification of the nature of the damages that he is

seeking from Gordon.

                                           Discovery

      I denied Grimaldi’s request to obtain documents related to alleged corruption

in New Castle County, concluding that they were not relevant to the merits of

Grimaldi’s claim.      I instead only ordered the Defendants to produce documents

related to Gordon’s statement about Grimaldi trying to get out of a traffic ticket.

      Grimaldi argues that the other documents support his claim for punitive

damages. Grimaldi’s theory is that he was fired because he had uncovered corruption

in New Castle County. Grimaldi argues that firing him for that reason and defaming

him in the process and continuing to publicly malign him after he was terminated

support his claim for punitive damages.         In a §1983 action a jury may be permitted

to assess punitive damages when the defendant’s conduct is shown to be motivated


      3
          Patterson, 370 F.3d 322 (2d. Cir. 2004).

                                                3
by evil motive or intent, or when it involves reckless or callous indifference to the

federally protected rights of others.4 Grimaldi cites Feldman v. Philadelphia Housing

Authority5 and Bradley v. Ramsey6 for his proposition that punitive damages are

available where government officers defame an employee as a retaliatory measure.

However, Grimaldi is in a far different situation than the employees in Feldman and

Bradley. Those employees were fired for exercising their constitutionally protected

free speech rights. Grimaldi was an at-will employee who could be fired for any

reason or no reason at all. Thus, unlike the other employees, Grimaldi had no

constitutionally protected interest in his job and he can not recover his job, making

the reason that Gordon fired Grimaldi irrelevant. Moreover, Grimaldi’s stigma-plus

claim is based upon what Gordon said about Grimaldi when he fired him. There is

a video of the traffic stop involving the Elsmere police officer and Grimaldi. That

video will either support Gordon’s statement that Grimaldi was trying to get out of

a traffic ticket or not. Gordon’s post-termination comments can not be a part of

Grimaldi’s stigma-plus claim because they were not made contemporaneously with




      4
          Smith v. Wade, 461 U.S. 30 (1983).
      5
          43 F.3d 823, 824 (3d Cir. 1994).
      6
          329 F. Supp. 617 (W.D.N.C. 2004).

                                               4
Grimaldi’s termination.7 Grimaldi’s request for documents about corruption in New

Castle County and Gordon’s post-termination comments about Grimaldi remain

denied.

      IT IS SO ORDERED.

                                             Very truly yours,

                                             /s/ E. Scott Bradley

                                             E. Scott Bradley

ESB/sal
oc: Prothonotary




      7
          Patterson, 370 F.3d 322 (2d. Cir. 2004).

                                                5
