        IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                        IN AND FOR KENT COUNTY

BROOKS WITZKE,            )
                          )            C.A. No. K13M-07-005 JTV
                          )
         Plaintiff,       )
                          )
     v.                   )
                          )
KENT COUNTY SOCIETY FOR   )
THE PREVENTION OF CRUELTY )
TO ANIMALS, INC., and     )
DELAWARE ANIMAL CARE &    )
CONTROL,                  )
                          )
         Defendants.      )


                          Submitted: May 19, 2014
                          Decided: August 29, 2014


Gregory A. Morris, Esq., Liguori & Morris, Dover, Delaware. Attorney for
Plaintiff.

Shannon L. Brainard, Esq., Marshall, Dennehey, Warner, Coleman & Goggin,
Wilmington, Delaware. Attorney for Defendants.


                           Upon Consideration of
                        Defendants’ Motion to Dismiss
                                GRANTED




VAUGHN, President Judge
Witzke v. KCSPCA
C.A. No. K13M-07-005 JTV
August 29, 2014

                                      OPINION
      This action was brought by the plaintiff, Brooks Witzke, after he was
terminated from his position as an Animal Control Officer. The defendants are the
Kent County Society for the Prevention of Cruelty to Animals, Inc. and Delaware
Animal Care & Control. It is a mandamus action seeking various relief including a
hearing consistent with the Law Enforcement Officers Bill of Rights (“LEOBOR”),
Delaware law and the defendants’ policies, reinstatement of his position, removal of
documents relating to this action in his personnel file and the defendants’ records, and
compensatory damages.
      The defendants have filed a Motion to Dismiss the Amended Complaint under
Superior Court Civil Rule 12(b)(6) for failure to state a claim upon which relief can
be granted.
                                       FACTS
      In the Amended Complaint the plaintiff alleges that in January 2011 he was
hired by the defendants as an Animal Control Officer. On December 6, 2011, the
plaintiff was terminated from his position. On December 9, 2011, the plaintiff filed
a written rebuttal requesting an appeal and opportunity to be heard regarding his
termination. There was no appeal or hearing.
      On July 12, 2013, the plaintiff filed a Complaint against the defendants
alleging three causes of actions. On April 25, 2014, the plaintiff amended his
Complaint. Count I alleges that the defendants violated the LEOBOR by not granting
a hearing in accordance with 11 Del. C. Ch. 29. Count II alleges that the defendants
made direct post-hire promises to the plaintiff that he would be entitled to a full

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Witzke v. KCSPCA
C.A. No. K13M-07-005 JTV
August 29, 2014

appeal hearing before being terminated and breached said promises when the
defendants did not provide any appeal hearing. Additionally, in Count II, the plaintiff
alleges that the defendants breached their own policies and longstanding practices by
not allowing an appeal in his case and imposing punishment outside the penalty
guidelines as set forth in their written policies. Count III alleges that the defendants
breached the implied covenant of good faith and fair dealing by failing to grant the
plaintiff’s appeal request or provide a hearing.
                                STANDARD OF REVIEW
       “[T]he governing pleading standard in Delaware to survive a motion to dismiss
is reasonable ‘conceivability.’”1 The Court will limit its review of the motion to
dismiss to the well-pleaded allegations in the complaint, but will draw all reasonable
factual inferences in favor of the non-moving party. 2 In considering the defendant’s
motion to dismiss, the court must deny the motion unless the plaintiff could not
recover under any reasonably conceivable set of circumstances.3 This
“conceivability” pleading standard asks whether there is any, even a remote,
possibility of recovery.4




       1
         Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Hldgs, LLC, 27 A.3d 531, 537
(Del. 2011).
       2
           Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005).
       3
           Cent. Mortg. Co., 27 A.3d at 536.
       4
           Id. at 537.

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Witzke v. KCSPCA
C.A. No. K13M-07-005 JTV
August 29, 2014

                                 CONTENTIONS
      The defendants contend that the plaintiff was not entitled to LEOBOR
procedures because he wasn’t an officer under the LEOBOR definition; that the
alleged company policy does not give rise to a claim for an at-will employee who is
terminated; that the alleged post-hire promises do not modify the employee’s at-will
status; that the plaintiff did not reasonably rely on the alleged post-hire promises or
take action to his detriment; and that the plaintiff failed to make any allegations
sufficient to establish a claim for breach of the implied covenant of good faith and
fair dealing in an at-will employment context.
      The plaintiff contends that his supervisor promised the plaintiff that he would
be given a full appeal hearing before the KCSPCA board before any termination but
failed to provide such an appeal; and that he reasonably relied on the post-hire
promises, longstanding policies and practices and took action to his detriment by
failing to seek new employment or filing for unemployment benefits.
                                   DISCUSSION
      The defendants move to dismiss Count I because, they contend, the plaintiff
was not a “law enforcement officer” as defined by LEOBOR and thus does not
qualify for the LEOBOR protections or procedures. The plaintiff concedes that the
LEOBOR does not apply to him. Therefore, Count I will be dismissed.
      The defendants contend that Count II should be dismissed because company
policy cannot form the basis of a claim for an at-will employee. Under Delaware law,
employee handbooks or written best practices are not given the binding effect of a


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Witzke v. KCSPCA
C.A. No. K13M-07-005 JTV
August 29, 2014

contract absent clear language in the handbook to the contrary.5 Therefore, there is
no enforceable contractual right arising from the mere existence of an employee
handbook, particularly when the employee has at-will status.6 The plaintiff simply
contends that the defendants “acted to deny and deprive [him] of the protection and
requirements available to him under the written personnel policies and long-standing
practice of Defendants in processing and imposing discipline to law enforcement and
animal control officers.” Count II of the Amended Complaint fails to allege any
written contract or enforceable policies or procedures that would entitle the plaintiff
to an appeal hearing or due process regarding his termination. I conclude that the
plaintiff cannot base his claim on the informal written policies or practices included
in his Amended Complaint.
      Additionally, the defendants argue that Count II should be dismissed because
the plaintiff’s promissory estoppel claim, based on company policy in an employee
handbook, does not modify an employee’s at-will status. While an employee’s status
as an at-will employee will bar that employee from asserting a breach of employment
contract claim against the employer, it does not necessarily prohibit a claim based on
promissory estoppel.7 “In order to state a claim for promissory estoppel, plaintiff
must allege (i) the making of a promise; (ii) with the intent to induce action or



      5
          Gaines v. Wilmington Trust Co., 1991 WL 113613, at *2 (Del. Super. June 3, 1991).
      6
          Id.
      7
          Konitzer v. Carpenter, 1993 WL 562194 at *6 (Del. Super. Dec. 29, 1993).

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Witzke v. KCSPCA
C.A. No. K13M-07-005 JTV
August 29, 2014

forbearance based on the promise; (iii) reliance; and (iv) injury.”8 The plaintiff’s
Amended Complaint alleges that his superior made a promise of a full appeal hearing
before his termination, but does not include facts that support that the promise was
made “in the expectation to induce [his] action.”9 The plaintiff fails to provide action
or inaction that he did in reliance of his supervisor’s promise. His Amended
Complaint alleges that he was harmed because he did not seek new employment or
file for unemployment, but logically that reliance does not relate to an appeal hearing.
The defendants remained free to terminate the plaintiff at any stage, because the
plaintiff was an at-will employee. I conclude that the plaintiff cannot base Count II
on long standing policies and practices or promissory estoppel.
      Finally, the defendants move to dismiss Count III because the plaintiff failed
to allege any facts that would support the specific claim of breach of the implied
covenant of good faith and fair dealing. In alleging a breach of the implied covenant
pertaining to an employment context, the plaintiff must plead at least one of the
following: (1) his termination violates public policy; (2) the employer misrepresented
important facts, inducing an employee to either stay or accept new employment; (3)
the employer used its superior bargaining power to deprive the employee of clearly
identifiable compensation related to the employee’s past services; or (4) the employer
manipulated employment records to create fictitious grounds for termination.10 The


      8
           Lord v. Souder, 748 A.2d 393, 399 (Del. 2000).
      9
           Id. at 400.
      10
           E.I. DuPont de Nemours & Co. v. Pressman, 679 A.2d 436, 442 - 44 (Del. 1996).

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Witzke v. KCSPCA
C.A. No. K13M-07-005 JTV
August 29, 2014

plaintiff’s Amended Complaint does not contain facts that would demonstrate any of
the four categories for an implied covenant claim. I conclude that the plaintiff has not
plead a cognizable claim for breach of the implied covenant of good faith and fair
dealing.
                                   CONCLUSION
      For the foregoing reasons, the Defendants’ Motion to Dismiss is granted with
prejudice.
      IT IS SO ORDERED.


                                       /s/ James T. Vaughn, Jr.

oc:   Prothonotary
cc    Order Distribution
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