                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 15-2065
                                   ________________

                               MICHAEL A. WHALEY;
                               VALERIE M. ROBINSON,
                                             Appellants

                                             v.

           LEWIS D. SCHILIRO, Secretary; DELAWARE DEPARTMENT
         OF SAFETY AND HOMELAND SECURITY, Division of State Police

                                   ________________

                           On Appeal from the District Court
                                for the District of Delaware
                               (D. Del. No. 1-12-cv-00633)
                       District Judge: Honorable Leonard P. Stark
                                    ________________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  January 15, 2016

         Before: MCKEE, Chief Judge, AMBRO, and SCIRICA, Circuit Judges

                                 (Filed: March 16, 2016)


                                   ________________

                                       OPINION*
                                   ________________

SCIRICA, Circuit Judge.

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       This is an action alleging race discrimination and retaliation. Appellants Michael

Whaley and Valerie Robinson, both African-American, were Delaware State Police

officers. After an investigation conducted by the Delaware Division of State Police

uncovered evidence they fraudulently overstated the number of hours worked, Whaley

and Robinson were charged with theft by false pretense and official misconduct,

misdemeanor charges to which they pled guilty. Subsequently the officers filed suit

against Michael Schiliro, the Delaware Secretary of Homeland Safety and Security,

contending the investigation had a racially discriminatory and retaliatory motive. The

District Court granted summary judgment in favor of Schiliro. We will affirm. 1

                                            I.

       The Delaware Division of State Police received information suggesting that some

state police officers were inflating the number of hours they worked while performing

overtime “off-duty” assignments.2 Upon investigation, the Division concluded there

were grounds for criminal prosecution. The matter was referred to the state Attorney

General who conducted a criminal investigation and brought charges against Whaley and

Robinson.3 The officers pled guilty to misdemeanor charges of theft by false pretense, 11

Del. C. § 843, and official misconduct, 11 Del. C. § 1211(3). Under the plea agreements,

1
  The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367, and we have
jurisdiction under 28 U.S.C. § 1291.
2
  As part of their duties, Delaware state police may be required to perform certain “off-
duty” assignments that are compensated at overtime rates. One of those duties—which
Whaley and Robinson were engaged in while overstating their hours—includes
transportation of individuals subject to an involuntary psychiatric commitment.
3
  A third state police officer, who is Caucasian and is not involved in this lawsuit, also
pled guilty to identical charges and paid restitution and fines in the amount of $789.12
and $500, respectively Several other officers were also investigated by the Division, but
charges were not brought against them because of insufficient evidence.
                                               2
Whaley and Robinson paid restitution and fines,4 forfeited their police training

certifications, and agreed not to work in any law enforcement capacity in Delaware again.

They retired with full pension and health benefits.

       Following retirement, Whaley and Robinson sued Michael Schiliro in his official

capacity, because his department had ultimate authority over the state police. Whaley

and Robinson alleged the Division of State Police discriminated and retaliated against

them on the basis of race in violation of federal and state statutes.5 The District Court

granted summary judgment in favor of Schiliro finding no evidence of a discriminatory

or retaliatory motive.

                                            II. 6

                                             A.

       Whaley and Robinson contend Schiliro’s department violated their civil rights

under 42 U.S.C. § 1981, which proscribes discrimination on the basis of race. 42 U.S.C.


4
  Whaley paid restitution of $2,187.11 and fines of $932.95. Robinson paid restitution of
$2,000 and fines of $1,500.
5
  Whaley and Robinson alleged violation of their civil rights under 42 U.S.C. § 1981,
Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., and the Delaware
Discrimination in Employment Act, 19 Del. C. § 711(a).
6
  We review a district court’s grant or denial of summary judgment de novo. EEOC v.
Allstate Ins. Co., 778 F.3d 444, 448 (3d Cir. 2015). Summary judgment may be
appropriately granted where there “is no genuine issue as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “To be
material, a fact must have the potential to alter the outcome of the case.” NAACP v. N.
Hudson Reg’l Fire & Rescue, 665 F.3d 464, 475 (3d Cir. 2011). When considering
whether summary judgment is appropriate, “we view the underlying facts and all
reasonable inferences therefrom in the light most favorable to the party opposing the
motion.” Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014). “An
inference based upon a speculation or conjecture does not create a material factual
dispute sufficient to defeat summary judgment.” Halsey v. Pfeiffer, 750 F.3d 273, 287
(3d Cir. 2014).
                                               3
§ 1981(a). They admitted they sued Schiliro only because he headed the department

which controlled the state police—in other words, they sued him in his official capacity.

“But a suit against a state official in his or her official capacity is not a suit against the

official but rather is a suit against the official’s office. As such, it is no different from a

suit against the State itself.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)

(citations omitted). Because Whaley and Robinson press their claims against a state

actor, 42 U.S.C. § 1983 “provides the exclusive federal remedy for violation of the rights

guaranteed in Section 1981.” Jett v. Dallas Ind. Sch. Dist., 491 U.S. 701, 735 (1989);

McGovern v. Phila., 554 F.3d 114, 121 (3d Cir. 2009). Although they failed to plead a

claim under Section 1983, the District Court analyzed their Section 1981 claim under

Section 1983, and we do so as well.

       The Eleventh Amendment of the United States Constitution bars claims under

Section 1983 against state actors unless the state has waived its sovereign immunity.

Here, the parties do not dispute that the Department of Safety and Homeland Security is a

state agency for sovereign immunity purposes, and Delaware has not waived its

sovereign immunity. See Del. Dep’t of Health and Soc. Servs. v. Sheppard, 864 A.2d 929

(Del. 2004); see also Neeley v. Samis, 183 F. Supp. 2d 672, 678 (D. Del. 2002).

        Whaley and Robinson attempt to avoid this legal barrier by contending they sued

Secretary Schiliro in his official and individual capacities. Although individual suits

against government officials are not barred by sovereign immunity, see MCI Telecomm.

Corp. v. Bell Atl. Pa., 271 F.3d 491, 503, 506 (3d Cir. 2001), they did not plead a claim

against Schiliro individually and we cannot infer one from their Complaint. Even if we

                                                4
could infer an individual claim, the record is devoid of any evidence Schiliro was

personally involved in the investigation. Whaley’s and Robinson’s theory of individual

liability against Schiliro is based solely on his position as ultimate head of an agency

which controls the Division of State Police. But a suit against a government official in a

civil rights action “cannot be predicated solely on the operation of respondeat superior.”

See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005); MCI Telecomm. Corp., 271

F.3d at 506.

       Accordingly, we agree with the District Court that Whaley’s and Robinson’s

Section 1981 claims and Section 1983 claims are barred by sovereign immunity.

                                             B.

       Whaley and Robinson also contend they were discriminated and retaliated against

on the basis of their race in violation of Title VII of the Civil Rights Act, 42 U.S.C. §

2000e et seq., and the Delaware Discrimination in Employment Act (“DDEA”), 19 Del.

C. § 711(a).7 Title VII and the DDEA both prevent discrimination by an employer on the

basis of race. Faush v. Tuesday Morning, Inc., 808 F.3d 208, 212 (3d Cir. 2015);

Schuster v. Derocili, 775 A.2d 1029, 1033 (Del. 2001). We analyze these claims under

the same framework, using the burden-shifting scheme set forth in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-04 (1973). See Schuster, 775 A.2d at 1033; Riner v.


7
  Robinson conceded in her memorandum of law in opposition to summary judgment that
she was not asserting claims under Title VII or the Delaware Discrimination in
Employment Act because she did not file an administrative charge of discrimination with
the Equal Employment Opportunity Commission or the Delaware Department of Labor.
But the District Court ruled on those claims, and she appears to assert them on appeal.
We need not decide whether there has been a waiver because we conclude those claims
would fail even if they were not waived.
                                             5
Nat’l Cash Register, 434 A.2d 375, 376 (Del. 1981).

       We agree with the District Court that Whaley and Robinson have presented no

evidence that could support a prima facie case of discrimination or retaliation. Makky v.

Chertoff, 541 F.3d 205, 214 (3d Cir. 2008); Moore v. Phila., 461 F.3d 331, 340-41 (3d

Cir. 2006). Beyond their conjecture, they presented no evidence they were investigated

and charged with crimes because of their race. See Halsey 750 F.3d at 287. On the

contrary, the record demonstrates they were charged with crimes because they were

violating the law.

                                           IV.

       We will affirm the grant of summary judgment to defendant.




                                            6
