     IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                 IN AND FOR NEW CASTLE COUNTY


PAULINE ADDISON,             )
                             )
                  Plaintiff, )
                             )
     v.                      )
                             ) C.A. No. N13C-05-304 MMJ
EAST SIDE CHARTER SCHOOL OF )
WILMINGTON, INC.,            )
                             )
                  Defendant. )
                             )

                       Submitted: August 20, 2014
                       Decided: September 19, 2014

               On Defendant’s Motion for Summary Judgment
                               GRANTED



                               OPINION

Timothy J. Wilson, Esquire (Argued), The Wilson Firm, LLC, Attorney for
Plaintiff

Marc S. Casarino, Esquire (Argued), Sean A. Meluney, Esquire, White and
Williams LLP, Attorneys for Defendant




JOHNSTON, J.
                 FACTUAL AND PROCEDURAL CONTEXT

       For the purposes of this Motion for Summary Judgment, the Court will set

forth the facts in the light most favorable to the non-moving party, in this case the

plaintiff.

       Plaintiff Pauline Addison (“Addison”) filed this lawsuit against Defendant

East Side Charter School of Wilmington (“East Side”) on May 29, 2013. Addison

alleges that her employment with East Side was terminated as a result of her

refusal to cover up sexual misconduct that occurred between students. Addison

claims her termination violates the Delaware Whistleblowers’ Protection Act, 19

Del. C. §§ 1701 et seq. (“Whistleblowers’ Act”), and that her termination also

gives rise to a claim for Breach of the Covenant of Good Faith and Fair Dealing.

Discovery was completed on April 17, 2014. On May 8, 2014, East Side filed this

Motion for Summary Judgment. Oral argument was heard on August 20, 2014.


                                    The Parties
       Since its inception in 1997, East Side has operated as a charter school for

inner city students within the City of Wilmington. Also in 1997, Addison began

her employment with East Side. Addison has served East Side in several different

capacities. At the time of the alleged cover up and termination, Addison was

working at East Side as a para-educator.           As a para-educator, Addison’s

responsibilities were to assist Patricia King (“King”), a teacher, in the care for and

                                          1
instruction of a classroom of students. During this time East Side was led by

Principal Dr. Lamont Browne (“Browne”), Assistant Principal Latesha Laws

(“Laws), and Dean of Discipline Andre Chin (“Chin”) (collectively “East Side

Leadership”).


                                 Underlying Incident

        On April 20, 2012, Addison was assisting King in the classroom. At some

point King was required to leave the classroom. Addison was left alone to read a

book to the students. During this reading time an underage male student (“ZZ”)

put his hands down the pants of an underage female student (“AA”). 1            AA

informed Addison about ZZ’s actions and Addison immediately separated the two.

As Addison was escorting ZZ out of the classroom, Addison encountered Chin in

the hallway. Addison informed Chin about the situation and Chin took control of

ZZ. Chin then instructed Addison to go to the office to write a report about the

incident and to call the children’s parents.

        After completing the written report, Addison gave it to Chin. Upon King’s

return to the classroom, Addison informed King about the incident. Addison then

called AA’s mother and left her a message about the incident. Days later AA’s

mother spoke with Addison to confirm that the incident had occurred the way the

mother understood it. At this point, no one from the East Side Leadership had

1
    AA and ZZ will be used to keep the names of the underage children confidential.
                                           2
spoken to AA’s mother. Additionally, Addison had not told anyone on East Side

Leadership that she had spoken to AA’s mother. The incident was not reported to

the police or the Delaware Department of Education.

      Eventually AA’s mother came to the school to discuss the incident. AA’s

mother was upset that she had only been in contact with Addison, and not any

members of East Side Leadership. During this meeting East Side Leadership told

AA’s mother that they attempted to call her several times on the day of the incident

and that King even sent a note home with AA.           AA’s mother informed the

administration that she had not received any calls, messages, or notes. King was

present during this meeting, Addison was not.

      Immediately following the meeting with AA’s mother, East Side Leadership

brought Addison in for a meeting. Laws questioned Addison about whether she

had filled out a report. Chin explained that Addison had given the report to him as

requested. During this meeting East Side Leadership expressed its dismay with

Addison that she had spoken with AA’s mother but did not disclose it to anyone in

East Side Leadership.

       Prior to the incident with ZZ and AA, on March 29, 2012, Addison

completed an intent to return to work form for East Side. This form expressed

Addison’s intent to return to the same position in King’s class for the next school

year. On May 15, 2012, Addison amended her intent to return to work form.


                                         3
Addison indicated that she would prefer a different assignment if available, but if

not, then she would stay with King.

         On June 5, 2012, Addison had a meeting with Browne regarding her

amended intent to return to work form. Addison and Browne discussed Addison’s

poor working relationship with King. The incident between ZZ and AA was not

discussed. At the end of the meeting Addison placed her work badge on Browne’s

desk and walked out of the office. Addison did not return to work for the

remainder of the school year.


                                STANDARD OF REVIEW

         Summary judgment is granted only if the moving party establishes that there

are no genuine issues of material fact in dispute and judgment may be granted as a

matter of law. 2 All facts are viewed in a light most favorable to the non-moving

party. 3 Summary judgment may not be granted if the record indicates that a

material fact is in dispute, or if there is a need to clarify the application of law to

the specific circumstances. 4 When the facts permit a reasonable person to draw

only one inference, the question becomes one for decision as a matter of law. 5



2
    Super. Ct. Civ. R. 56(c).
3
    Hammond v. Colt Indus. Operating Corp., 565 A.2d 558, 560 (Del. Super. 1989).
4
    Super. Ct. Civ. R. 56(c).
5
    Wootten v. Kiger, 226 A.2d 238, 239 (Del. 1967).

                                          4
         The Court will not draw unreasonable inferences in the favor of the non-

moving party. 6 Courts are permitted to consider a plaintiff’s testimony to be self-

contradictory and not supported by other evidence in the record, such that no

rational juror could find in the plaintiff’s favor. 7 Therefore, a plaintiff’s testimony

must be substantiated by direct evidence found in the record. 8 Testimony that is

“replete with inconsistencies and improbabilities that no reasonable juror would

undertake the suspension of belief necessary to credit the plaintiff’s allegations,”

will not survive summary judgment.9 As a result, if the non-moving party bears

the burden of proof at trial, yet “fails to make a showing sufficient to establish the

existence of an element essential to that party’s case,” then summary judgment

may be granted against that party. 10


                                     ANALYSIS
                              Whistleblowers’ Act Claim
         The Whistleblowers’ Act was enacted to protect employees who report

violations of law for the benefit of the public.11 Under this statute, an employer is

prevented from discharging, threatening, or otherwise discriminating against an


6
  Smith v. Delaware State Univ., 47 A.3d 472, 477 (Del. 2012).
7
  Id. at 478.
8
  Id. at 477.
9
  Id. at 477-78.
10
   Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
11
     Smith, 47 A.3d at 476.
                                           5
employee regarding the employee’s compensation, terms, conditions, location or

privileges of employment in any of the four following occurrences:


            (1) The employee, or a person acting on behalf of the
                employee, reports or is about to report to a public body,
                verbally or in writing, a violation which the employee
                knows or reasonably believes has occurred or is about to
                occur, unless the employee knows or has reason to know
                that the report is false; or

            (2) An employee participates or is requested by a public
                body to participate in an investigation, hearing, or inquiry
                held by that public body, or a court action, in connection
                with a violation as defined in this chapter; or

            (3) An employee refuses to commit or assist in the
                commission of a violation, as defined in this chapter; or

            (4) The employee reports verbally or in writing to the
                employer or to the employee's supervisor a violation,
                which the employee knows or reasonably believes has
                occurred or is about to occur, unless the employee knows
                or has reason to know that the report is false. Provided,
                however that if the report is verbally made, the employee
                must establish by clear and convincing evidence that
                such report was made. 12

         Success on a claim brought under the Whistleblowers’ Act requires proof of

four elements: (1) the employee engaged in a protected whistleblowing activity; (2)

the accused official knew of the protected activity; (3) the employee suffered an

adverse employment action; and (4) there is a causal connection between the



12
     19 Del. C. § 1703(4).
                                             6
whistleblowing activity and the adverse action. 13 For purposes of this motion, only

the first and fourth elements will be discussed.


                                 Parties’ Contentions

        Addison contends that East Side’s failure to report the incident to the

Department of Education constitutes a violation under the Whistleblowers’ Act.

Addison argues that East Side’s anti-bullying policy is a sufficient standard to

support the finding of a violation under the Whistleblowers’ Act. Addison argues

East Side’s anti-bullying policy was implemented pursuant to 14 Del. C. § 4112D,

Delaware’s school bullying prevention statute, which required Browne to report

the incident to the Department of Education. Addison further argues that East Side

attempted to induce her to cover up the incident. Finally, Addison argues that her

refusal to cover up the incident was the primary basis for her termination as an East

Side employee.

        East Side disputes Addison’s characterization of the incident, arguing that it

would not be considered reportable under East Side’s anti-bullying policy.

Additionally, East Side contends a violation did not occur in this case because the

Whistleblowers’ Act only protects employees who report illegalities committed by

an employer.      Finally, East Side argues that Addison was not terminated by



13
     19 Del. C. § 1703.
                                           7
Browne, and that even if she were, her termination was not causally related to the

incident between ZZ and AA.


          Addison Did Not Participate in Protected Whistleblowing Activity

         To prove the existence of protected whistleblowing activity Addison first

must show that a violation of the Whistleblowers’ Act occurred.          Under the

Whistleblowers’ Act, a violation is defined as an act or omission by an employer,

or an agent thereof, “that is materially inconsistent with, and a serious deviation

from, standards implemented pursuant to a law, rule, or regulation, promulgated

under the laws of this State…”14

         As a preliminary matter, the Court finds that the misbehavior of ZZ towards

AA cannot be used to constitute a violation claim under the Whistleblowers’ Act.

The Whistleblowers’ Act specifically defines a violation as an “act or omission by

an employer.” 15 It is clear that the focus of the statute is on misbehavior of the

employer.

         In this case, the actual incident involving ZZ and AA could not be a

violation. Addison conceded during her deposition that no one employed by East

Side committed any inappropriate touching of AA. Accordingly, this misbehavior

is not a violation because no employee of East Side was involved.


14
     19 Del. C. § 1702(6)(a).
15
     Id.
                                          8
         The Court also finds that Addison’s report of the incident to Chin does not

give rise to a claim under the Whistleblowers’ Act. At the time of Addison’s

report to Chin, East Side had not taken any actions regarding the incident. Again,

East Side, as the employer, had not committed the requisite act or omission to be

considered a violation. Therefore, Addison must point to some specific act or

omission by East Side that occurred subsequent to the incident to succeed on her

claim.

         The Court finds Addison’s assertion -- that East Side’s anti-bullying policy

required a report to the Department of Education -- to be merely speculative.

Addison testified at deposition that at the time of the incident she was not aware of

any statutory duty requiring East Side Leadership to further report the incident.

Additionally, Addison did not make any outside inquiries or reports concerning the

incident until after her employment with East Side ended and she retained counsel.

Employee actions subsequent to termination ordinarily cannot be the basis for a

valid whistleblower claim.

         Moreover, the Whistleblowers’ Act is a shield to protect employees who

report employers who engage in activity that is illegal, or activity tending to be

more on the side of illegalities.16 In this instance, East Side’s failure to report to

the Department of Education was not in violation of any legal obligation. First,


16
     Smith, 47 A.3d at 476.
                                           9
Chin conducted an investigation after the incident. Second, after concluding the

investigation, Chin did not believe ZZ’s actions rose to the level of conduct

covered by the anti-bullying policy. Third, based on Chin’s investigation and

Addison’s written report, Browne and the rest of East Side Leadership did not

believe the incident invoked the anti-bullying policy. The Court is satisfied that

the conclusions of East Side Leadership were reasonable.           The steps taken

following the incident also were reasonable, and do not indicate any improper

motives or illegal actions by East Side.

      Further, the Court finds that the undisputed facts do not support a reasonable

inference that there was a cover up. The facts in the record that Addison relies on

to support the alleged cover up only can be reasonably attributed to Addison’s

failure to communicate effectively with East Side Leadership.         Following the

incident, Addison was aware that East Side Leadership was attempting to inform

AA’s mother about the incident. However, East Side Leadership did not become

aware that Addison had spoken to AA’s mother until AA’s mother came in for a

meeting with Chin, Laws, and King.

      Prior to that meeting, East Side made several attempts to make the facts of

the incident known to AA’s mother. Addison testified that immediately following

the incident Chin instructed her to go to the office and write a report outlining the

facts as they happened. Addison also testified that Chin instructed her to call AA’s


                                           10
mother to inform her of the incident. Addison did call AA’s mother, and left her a

message. Several days later Addison actually spoke with AA’s mother, confirming

to her that the incident occurred. During this time Addison did not inform anyone

in East Side Leadership that she had actually spoken to AA’s mother regarding the

incident.

      Addison’s only evidence of an alleged cover up is Addison’s own testimony

that Laws told Addison to get the story straight to protect the school. However,

Addison failed to provide further detail about the supposed lie Laws encouraged

her to spread. Instead, Addison relied on a subjective interpretation of Laws’

comment to mean that Laws was telling Addison to lie about the facts of the

incident. Additionally, Addison did not present any evidence that the facts of the

incident or East Side’s handling of the incident were not discussed at the meeting

with AA’s mother. Nor did Addison provide evidence that King did not send a

note home with AA to give to her mother the day after the incident. Finally, there

is no evidence that anyone directed Addison not to report the incident to any

person or legal authority.

      Considering the totality of the circumstances, an alleged cover up is not a

reasonable inference. There is no evidence in the record that shows East Side

Leadership was trying to hide the facts of the incident from AA’s mother.




                                        11
      Therefore, the Court finds that Addison did not participate in protected

whistleblowing activity.


No Causal Connection between Alleged Termination and Whistleblower Activity

      Assuming, arguendo, Addison did engage in protected whistleblower

activity, Addison still must show a causal connection between that whistleblowing

activity and the alleged adverse employment action. Addison has the burden to

show that the primary basis for the alleged termination was Addison’s protected

whistleblowing act. 17 For the purposes of this motion only, the Court will assume

that Addison was terminated from her employment with East Side.

      The Court finds there are certain undisputed facts surrounding the timing

and reasons for Addison’s termination. Prior to the incident between ZZ and AA,

Addison filled out an intent to return to work form indicating her desire to return to

King’s room the following school year. Soon after the incident, Addison amended

her intent to return form asking that she be moved to another classroom if possible.

Addison testified that her working relationship with King had deteriorated, which

prompted the amended intent to return form. On June 5, 2012, following the

amendment, Addison had a meeting with Browne regarding her employment at the

school. The incident between ZZ and AA was never discussed at the meeting. At


17
  19 Del. C. § 1708; see also Smith v. Delaware State Univ., 2011 WL 5843625, at
*1 (Del. Super.), aff’d, 47 A.3d 472 (Del. 2012).
                                         12
the end of the meeting Addison placed her badge on Browne’s desk and did not

return to work for the remainder of the school year.

        In Smith v. Delaware State University, 18 this Court granted summary

judgment in favor of the employer on an employee’s whistleblower claim. The

Court determined that there was no evidence of actual retaliatory conduct by the

employer. The Court noted that the employee did not develop the whistleblower

theory until well after being separated from employment.

        The facts in this case are analogous to those in Smith. The Court finds that

Addison’s termination was not in retaliation for reporting a violation of East Side.

The record evidence demonstrates that Addison’s amendment to her intent to

return form was made because of the deteriorating work relationship between

Addison and King. There is nothing to suggest that it was a retaliatory act by East

Side. Further, the lack of discussion about the incident between Browne and

Addison does not support the allegation that Addison’s termination was in

retaliation for her role in the incident. As in Smith, it appears from the record that

Addison’s whistleblower claim was completely undeveloped until well after her

employment with East Side ended -- when Addison retained counsel.

        Addison also testified that King continually made comments to Addison

concerning her questioning of East Side Leadership’s handling of the incident.


18
     2011 WL 5843625, at *1-2 (Del. Super.).
                                         13
However, there is no evidence in the record that King had hiring or firing authority

for East Side. The Court finds as a matter of law that the alleged comments of a

supervising co-worker are not sufficient to causally connect Addison’s termination

and her purported whistleblowing activity.

      Therefore, the Court finds there is no causal connection between Addison’s

alleged termination and the alleged whistleblower activity.


        Breach of the Covenant of Good Faith and Fair Dealing Claim

      In Delaware, “there is an implied covenant of good faith and fair dealing in

every employment contract made.” 19 The covenant of good faith and fair dealing

limits at-will employment in very few instances. 20 These instances, known as the

Pressman categories, are: (1) where the termination violates public policy; (2)

where the employer misrepresented an important fact and the employee relied

thereon either to accept a new position or remain in a present one; (3) where the

employer used its superior bargaining power to deprive an employee of clearly

identifiable compensation related to the employee’s past service; and (4) where the

employer falsified or manipulated employment records to create fictitious grounds

for termination. 21 Here, only Pressman categories one and four are at issue.


19
   Jordan v. Town of Milton, 2013 WL 105319, at *12 (D. Del.).
20
   Shomide v. ILC Dover, Inc., 521 F.Supp.2d 324, 333 (D. Del. 2007).
21
   Lord v. Souder, 748 A.2d 393, 400 (Del. 2000) (citing E.I. DuPont de Nemours
and Co. v. Pressman, 679 A.2d 436, 441 (Del. 1996)).
                                         14
                                Parties’ Contentions

         Addison argues that East Side breached the covenant of good faith and fair

dealing because East Side’s termination of Addison violates public policy; and that

East Side falsified employment documents. East Side disputes Addison’s claims,

arguing no employment records were falsified, and that Addison’s termination

does not violate public policy because East Side did not engage in any illegal

conduct. East Side also argues that Addison’s claim for breach of the covenant of

good faith and fair dealing should be dismissed because it is duplicative of

Addison’s claim under the Whistleblowers’ Act.


       There is Insufficient Evidence to Sustain Pressman Public Policy Claim

         A Pressman public policy claim requires that a “clear mandate of public

policy be threatened by the termination.” 22 “As a result an employee must assert a

public interest recognized by some legislative, administrative, or judicial authority,

and the employee must occupy a position with responsibility for that particular

interest.” 23   In Delaware, only cases where an employee questions the legal

propriety of the employer’s conduct will satisfy the Pressman public policy




22
     Jordan, 2013 WL 105319, at *12 (internal quotations omitted).
23
     Id.
                                          15
standard. 24 Employees questioning ethical impropriety by an employer do not

satisfy Pressman.25

      For example, in Paolella v. Browning-Ferris, Inc., the Court denied

summary judgment because the plaintiff presented sufficient evidence that

Browning-Ferris created a fraudulent billing scheme, instructed the plaintiff to lie

to customers, and fabricated weigh tickets. 26 The Third Circuit held that if these

facts were proven, they would constitute a violation of Delaware’s theft by false

pretenses statute.27 Thus, the Pressman public policy exception was applicable.28

      Conversely, in Jordan v. Town of Milton, summary judgment was granted

where the plaintiff testified at a pre-termination hearing that the Chief of Police

allegedly altered officers’ time sheets.29 The Court reasoned that the plaintiff’s

termination did not satisfy the Pressman public policy standard because no

criminal charges were pursued against the Chief of Police, and it was not clear that

the Chief of Police’s conduct was illegal.30

      Here, consistent with Jordan, the Court finds that Addison has not satisfied

the Pressman public policy standard.            As discussed under Addison’s


24
   Paolella v. Browning-Ferris, Inc., 158 F.3d 183, 191 (3d. Cir. 1998).
25
   Id.
26
   Id. at 188.
27
   Id. at 192.
28
   Id.
29
   Jordan, 2013 WL 105319, at *13.
30
   Id.
                                         16
Whistleblowers’ Act claim, there is no clear record evidence suggesting that East

Side’s conduct following the incident was illegal. Nor were any criminal charges

pursued against East Side.      Therefore, the concerns surrounding East Side’s

handling of the incident are more ethical than legal.

      The Court also finds Addison’s Pressman public policy claim to be

duplicative of her claim under the Whistleblowers’ Act. When a claim for breach

of the covenant of good faith and fair dealing is based on allegations of violating

public policy, it cannot survive where it is preempted by a specific statute that

grants relief. 31 In Shomide v. ILC Dover, Inc., the plaintiff claimed a violation of

public policy because he was allegedly terminated as a result of his nationality and

race. 32 However, the Court precluded the plaintiff’s recovery as a violation of

public policy, holding that the exclusive remedy for race discrimination in

employment lies with the Delaware Discrimination Employment Statute.33

      Here, Addison contends her termination by East Side violates public policy

because it was done in response to Addison’s report of the incident between ZZ

and AA. The Court finds Addison’s claim to be indistinguishable from her claim

under the Whistleblowers’ Act. As a result, Addison is precluded from recovering




31
   Crawford v. George & Lynch, Inc., 2012 WL 2674546, at *7 (D. Del.).
32
   Shomide v. ILC Dover, Inc 521 F.Supp.2d 333.
33
   Id.
                                         17
under a theory of violation of public policy because the sole remedy for the

misconduct alleged in this case is found in the Whistleblowers’ Act.

        Therefore, the Court finds that Addison’s alleged termination does not

violate public policy.


       There is Insufficient Evidence to Sustain Pressman Falsification Claim

        A Pressman falsification claim requires a showing that an employer falsified

or manipulated an employment record to create fictitious grounds to terminate

employment. 34 Even if an employer gives a false reason for an employee’s layoff,

an employee may not recover under Pressman unless the employer actually

falsifies or manipulates employment records.35

        Here, Addison alleges East Side falsified or manipulated three documents:

(1) the incident report filled out by Addison immediately following the incident;

(2) East Side’s response to Addison’s application for unemployment benefits; and

(3) East Side’s position statement to the Department of Labor in response to

Addison’s Charge of Discrimination.        The Court will discuss the two latter

documents first.

        The Court finds that East Side’s responses to the application of

unemployment benefits and position statement to the Department of Labor do not


34
     Shomide, 521 F.Supp.2d at 334.
35
     Id.
                                         18
satisfy Pressman. It is clear from the record these documents were not created to

serve as the basis for Addison’s termination, nor were they created prior to

Addison’s termination pursuant to a scheme to have Addison terminated wrongly.

Rather these documents were created after Addison’s employment with East Side

ended, and were in response to Addison’s affirmative application for

unemployment and charge of discrimination.

      The Court also finds the alleged falsification or manipulation of Addison’s

incident report to be insufficient to satisfy the Pressman standard. As discussed,

the Court finds no causal connection between the incident involving ZZ and AA

and Addison’s termination. Addison was terminated because of her poor working

relationship with King, and not because of the incident. As a result, Addison

cannot show that the alleged falsifications or manipulations were made to create

fictitious grounds to terminate Addison’s employment. Therefore, any falsification

or manipulation of Addison’s incident report is irrelevant to the Pressman claim.

      Therefore, the Court finds that any alleged falsifications or manipulations by

East Side do not constitute a breach of the covenant of good faith and fair dealing.


                                  CONCLUSION

      The Court finds that no issue of material fact exists to prevent the Court

from granting summary judgment.         Addison has failed to meet her burden of

proving that East Side violated the Whistleblowers’ Act. The Court finds Addison
                                         19
did not engage in whistleblowing activity, nor is there a causal connection between

the incident and Addison’s alleged termination.       Addison also has failed to

demonstrate that East Side breached the covenant of good faith and fair dealing.

The Court finds that East Side did not falsify or manipulate documents to create

fictitious grounds to terminate Addison. Finally, the Court finds Addison’s alleged

termination was not in violation of public policy.

      THEREFORE, Defendant’s Motion for Summary Judgment is hereby

GRANTED. This case is hereby DISMISSED WITH PREJUDICE.

      IT IS SO ORDERED.




                                                /s/_Mary M. Johnston____________
                                                   The Honorable Mary M. Johnston




                                         20
