      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


AL-SAMEEN T. KHAN, PH.D., )
                          )
             Plaintiff,   )
                          )             C.A. No.: N14C-05-148 AML
         v.               )
                          )
DELAWARE STATE UNIVERSITY )
and NOUREDDINE MELIKECHI, )             JURY TRIAL DEMANDED
                          )
             Defendants.  )


                         Submitted: March 22, 2016
                          Decided: June 24, 2016

       Upon Defendants’ Motion for Summary Judgment – Denied
 Upon Plaintiff’s Motion for Partial Summary Judgment – Granted, in Part


                       MEMORANDUM OPINION




Gary W. Aber, Esquire, of LAW OFFICE OF GARY W. ABER, Wilmington,
Delaware; Attorney for Al-Sameen T. Khan, Ph.D.

James D. Taylor Jr., Esquire and Gerard M. Clodomir, Esquire, of SAUL EWING
LLP, Wilmington, Delaware; Attorneys for Delaware State University and
Noureddine Melikechi.




LeGROW, J.
      The plaintiff, who was a tenured professor at Delaware State University at

the time of the events in question, alleges the University violated state and federal

law, as well as the terms of a collective bargaining agreement, when it disciplined

and ultimately terminated him in January 2013. Plaintiff also contends the dean of

the college in which he taught tortiously interfered with Plaintiff’s contract with

the University. The University in turn contends Plaintiff acted in bad faith by

demanding arbitration after his discharge and then withdrawing from that

arbitration on the eve of the hearing.

      Plaintiff is seeking summary judgment for his breach of contract claims and

the University’s bad faith counterclaim. Defendants oppose that motion and also

contend they are entitled to summary judgment for Plaintiff’s age discrimination

and tortious interference claims. This is my decision on the pending motions. As

explained below, disputed issues of material fact preclude summary judgment as to

all but the claim Plaintiff acted in bad faith in withdrawing from the arbitration.

              FACTUAL AND PROCEDURAL BACKGROUND

      Unless otherwise noted, the following facts are undisputed. The plaintiff,

Al-Sameen T. Khan, Ph.D. (“Dr. Khan”), was employed as a professor of electrical

engineering by Defendant Delaware State University (“DSU”) from January 1,

1988 until January 16, 2013.       Dr. Khan was a professor of the College of

Mathematics, Natural Sciences & Technology (“CMNST”) at DSU and received

                                           1
tenure in September 1997. At all times relevant to the claims in this action

Defendant Noureddine Melikechi (“Dean Melikechi”) was dean of CMNST. On

January 16, 2013, DSU discharged Dr. Khan from his employment.                      That

discharge, and the events leading up to it, form the basis of the claims in this

action.

         A. The collective bargaining agreement

         As a tenured professor at DSU, Dr. Khan was subject to a collective

bargaining agreement (the “CBA”) negotiated between the DSU Board of Trustees

and the DSU chapter of the American Association of University Professors (the

“AAUP”). The CBA became effective July 1, 2010, and the parties agree that it

was in effect and applied to Dr. Khan’s suspension and ultimate discharge. Several

provisions of the CBA are relevant to this dispute. For that reason, before detailing

the facts underlying this case, I will outline the pertinent sections of the CBA.

         The CBA provides that a “Unit Member,” a term that is defined to include

all full-time “voting” faculty, only may be disciplined for “Just Cause.”1 Although

discipline does not appear to be defined in the CBA, the term includes

“Discharge,” which the agreement defines as “an action taken by [DSU] to

permanently discharge from employment at the University a tenured member of




1
    CBA § 10.4.1.
                                          2
the faculty . . . prior to the end of a specified term.”2 DSU has “Just Cause” to

discipline a unit member only upon “substantiated charges directly and

substantially related to the fitness of the affected unit member to perform

professional responsibilities.”3        The CBA goes on to specify that discharge

proceedings may be instituted for a number of reasons, including, pertinently:

       10.4.3(A) Failure to perform professional responsibilities either
       through incompetence, persistent negligence, refusal to carry out
       reasonable assignments, or disregard for or failure to meet scholarly
       and professional standards and ethics.
       10.4.3(E) Serious personal misconduct of such a nature as to warrant
       and evoke the condemnation of the academic community.4
The CBA provides certain procedures that must be followed whenever DSU is

considering disciplining tenured faculty.5 In the event a dispute arises between

DSU and a unit member subject to discipline, there is an arbitration clause in the

CBA.6 The issues in this case concern, among other things, whether DSU properly

discharged Dr. Khan under the CBA.

       One of the disputes in this action requires determination of the meaning of

“professional responsibilities” as that term is used in Sections 10.4.2 and 10.4.3A

of the CBA. “Professional responsibilities” is not defined in the CBA. Plaintiff



2
  Id.
3
  Id. § 10.4.2.
4
  Id. § 10.4.3.
5
  Id. § 10.4.4.
6
  Id. §§ 10.4.4, 10.4.5. A unit member may, but is not required to, demand arbitration.
                                                3
contends the term is interchangeable with “Academic Load,” which is defined in

Section 12.2 as:

          Formal and informal instruction, tutorials, advisement and counseling
          of students, research and writing, preparation of new courses and
          updating of other courses, service on various campus committees and
          the rendering of other professional services. Credit offerings,
          whenever scheduled (day, night, weekends, or summer) will be the
          responsibility of the Vice President of Academic Affairs, the
          Academic Deans, and the academic departments.

DSU disagrees; unfortunately, the parties did not squarely address this dispute in

their briefing. Dr. Khan contended at oral argument that the parties’ witnesses

agreed with Plaintiff’s interpretation of the meaning of the CBA, but a thorough

review of the testimony indicates DSU’s witness made no such agreement on this

topic.7

          B. Dr. Khan’s employment at DSU

          The meaning of “professional responsibilities” is important, at least in part,

because Dr. Khan, in addition to his position as a faculty member, also held a

supplemental paid position as the CMNST Director of IT. In that position, Dr.

Khan received funding to establish and maintain a “high performance 10 GB

converged IP network” used by CMNST for research, training, and education (the

“CMNST Network”).8 Dr. Khan’s appointment as Director of IT was separate


7
    Skelcher 30(b)(6) Dep. at 44-46, 124.
8
    Answer ¶ 21.
                                             4
from his appointment as professor; between 2007 and 2012, Dr. Khan received

annual letters of appointment identifying his salary as tenured professor and

indicating that the appointment was subject to the CBA.9 He separately received

“professional employee letters of appointment” relating to his position as Director

of IT.10    In contrast to the letters of appointment relating to his position as

professor, the professional employee letters of appointment sent to Dr. Khan

indicate that, as Director of IT, he was to “perform the duties of that appointment

as determined and set forth by the University,” and he was to “faithfully perform

the duties assigned and to observe the policies, rules and regulations of [DSU].”11

None of the letters provide further detail regarding the responsibilities associated

with Dr. Khan’s appointment as either professor or Director of IT.

       C. The conflict between Dr. Khan and Dean Melikechi

       It is apparent from the record, and the parties do not dispute, that Dr. Khan

and Dean Melikechi did not see eye-to-eye on many topics. Dr. Khan disagreed

with Dean Melikechi’s vision for the College and chafed against what Dr. Khan

perceived as Dean Melikechi “inappropriately interfering” in personnel decisions

in the physics department.12 Dr. Khan alleges that Dean Melikechi asked both Dr.

Khan and another professor, Dr. Gleeson, to give up their research labs and

9
  App. to Pl.’s Mot. Summ. J. 146-151 (hereinafter “A”).
10
   A38, A96.
11
   Id.
12
   Pl.’s Resp. Br. 5.
                                               5
research equipment so it could be utilized by younger professors, but never asked

younger professors to give up their labs.13 Dr. Khan contends that Dean Melikechi

falsely described an older professor, Dr. Gwanmesia, as unproductive, and Dr.

Khan points out that three “older” professors all retired from CMNST in 2011 and

2012.14 As a result of Dean Melikechi’s efforts, Dr. Khan contends, the College’s

physics department was staffed with younger professors who were not as

experienced.15 Dr. Khan contends that Dean Melikechi’s actions toward all the

CMNST older professors, including Dr. Khan, reflect Dean Melikechi’s bias

against older employees.

       Some of the tension between Dean Melikechi and Dr. Khan also revolved

around the CMNST Network. Dr. Khan began developing the CMNST Network

for use by the entire College in approximately 2000. Dr. Khan was the architect of

the project and managed its operations, but he did not oversee the day-to-day

operations.     Dr. Khan’s brother, Saoud Khan (“Saoud”),16 was employed by

CMNST through a series of one-year positions, through which he served as the




13
   Pl.’s Resp. Br. Ex. 8 at 136-137, 392 (A. Khan Dep.); Pl.’s Resp. Br. Ex. 10 at 22-23
(Gwanmesia Dep.).
14
   Pl.’s Resp. Br. Ex. 8 at 391-92 (A. Khan Dep.); Pl. Resp. Br. Ex. 10 at 23-24, 35-36
(Gwanmesia Dep.).
15
   Pl.’s Resp. Br. Ex. 10 at 9-15 (Gwanmesia Dep.); Pl. Resp. Br. Ex. 11 at 63-64 (Melikechi
Dep.).
16
   I use Mr. Khan’s first name to clearly distinguish him from Dr. Khan and not as a sign of
disrespect.
                                               6
CMNST Network manager and system administrator.17               Dean Melikechi’s

predecessor allegedly supported the development of the network and helped Dr.

Khan obtain funding for the project.18 In 2008, Dean Melikechi became dean of

the College. At some point in early 2012, DSU decided to integrate the CMNST

Network into the larger University-wide network.

          The complaint alleges that DSU initially sought to hire Saoud to

modernize DSU’s IT infrastructure and integrate the two networks and that Dean

Melikechi sought to pressure Saoud into making that transition, but Saoud

ultimately declined the offer.19 Almost immediately thereafter, Dr. Khan alleges,

Dean Melikechi terminated the students who worked the CMNST Network help

desk.    The following week, Dean Melikechi reassigned Saoud to another

department within CMNST, removed Saoud’s access to the CMNST Network, and

directed Saoud that he no longer was to report to Dr. Khan and instead should

report only to the chair of his new department.

        On March 9, 2012, one day after reassigning Saoud and one week after

terminating all the student workers for the CMNST Network, Dean Melikechi

directed CMNST faculty to send all network-related requests to Dr. Khan. Dr.

Khan responded that he had neither the ability nor the support personnel to respond


17
   Am. Compl. ¶¶ 18-20.
18
   Id. ¶ 22.
19
   Id. ¶¶ 28-34.
                                         7
adequately to such requests. Dean Melikechi also asked Dr. Khan to provide the

network’s administrative passwords to members of the CMNST faculty. Dr. Khan

resisted providing such passwords as a violation of network policy.

         D. The fallout

         On March 12, 2012, Dr. Khan resigned as CMNST’s Director of IT,

asserting that he was placed in an “untenable” position by Dean Melikechi’s

decisions.20      Dean Melikechi accepted Dr. Khan’s resignation, acknowledged

receipt of the passwords and keys to the network rooms transmitted from Dr. Khan,

and indicated DSU IT personnel would take control of the network.

         For a period of three or four days, however, no one oversaw the CMNST

Network. The reasons for this gap are not apparent from the current record.

During this period, Dean Melikechi distributed administrative passwords to faculty

who requested such. Meanwhile, DSU IT personnel made several requests to Dr.

Khan for information regarding the CMNST Network.

         For example, in a series of e-mails on March 13, 2012, Arthur Leible, Ph.D.,

the Associate Vice President of Information Technology for DSU (“Dr. Leible”),

sent Dr. Khan a list of information Dr. Leible required in order to transition the

CMNST Network into DSU’s network.21 Dr. Khan responded that he had resigned

his position and no longer had access to the requested information.            Dean

20
     A58.
21
     Defs.’ Opening Br. Supp. Mot. Summ. J. Ex. 10.
                                                8
Melikechi then responded and demanded that Dr. Khan provide the information

Dr. Leible requested, asserting that Dr. Khan’s resignation did not render him

unable to provide the information.22 Dr. Khan responded and reiterated that he

could not provide the requested information, further suggesting that Saoud was the

person responsible for software and that the information likely could be found in

his office.23 During this critical week, Saoud was ill and away from the office.

Saoud was terminated by the University on March 20, 2012.24

       So began a flurry of e-mails and written communications that escalated with

a fervor I doubt any of the participants anticipated. On March 16, 2012, the

CMNST Network began exhibiting issues and ultimately crashed. 25 That same

day, without informing Dr. Khan of the issues with the network, Dean Melikechi

asked Dr. Khan to provide passwords to the CMNST Network Cisco switches. Dr.

Khan indicated he did not previously manage those switches and suggested DSU

IT personnel perform the Cisco password recovery to reset the passwords. On

March 17th, Dean Melikechi renewed his demand for the initial list of information

requested by Dr. Leible, stating that such information should be provided by




22
   Id.
23
   Id.
24
   Defs.’ Opening Br. Supp. Mot. Summ. J. Ex. 22 at 4.
25
   Defs.’ Opening Br. Supp. Mot. Summ. J. Exs. 9-13.
                                               9
March 19th at 3:00 p.m.26 Dr. Khan again responded that he had resigned his

position, provided all passwords and keys, and could not assist any further.27

       Dr. Khan then sought the intervention of DSU Provost Alton Thompson,

Ph.D. (“Provost Thompson”), asking Provost Thompson to, in essence, “call off”

Dean Melikechi’s pursuit of the information from Dr. Khan. Dr. Khan maintained

that he had provided all the information in his possession or control and therefore

he could not provide any additional assistance to Dean Melikechi.            Provost

Thompson acknowledged Dr. Khan’s “comments” but indicated Dr. Khan should

fully comply with Dean Melikechi’s request.28

       Thomas Preston, General Counsel for DSU, next sent Dr. Khan a letter

demanding that he immediately turn over the same list of information initially

requested on March 13th. Mr. Preston’s letter indicated failure to so respond

would “be considered insubordination, a failure to perform professional

responsibilities, serious personal misconduct[,] and a deliberate and serious

violation of the rights of other members of [CMNST] and [DSU].”29                This

language calls upon the bases for discharge listed in Section 10.4.3 of the CBA.

       On March 20, 2012, Dr. Khan sent a letter to Mr. Preston providing

background regarding the dispute between Dean Melikechi and Dr. Khan. Dr.

26
   Defs.’ Opening Br. Supp. Mot. Summ. J. Ex. 13.
27
   Id.
28
   Defs.’ Opening Br. Supp. Mot. Summ. J. Ex. 19.
29
   Defs.’ Opening Br. Supp. Mot. Summ. J. Ex. 16.
                                             10
Khan then went on to respond to each of the twelve items requested “to the best of

[his] ability.”30 The record reflects that, before responding to Mr. Thompson, Dr.

Khan called Saoud to request the information, but Saoud was still out of the office

for medical reasons and did not have access to the CMNST Network. As a result,

most of Dr. Khan’s responses to the information requests indicated that Saoud was

the person who was tasked with the day-to-day operation of the CMNST Network

and would have the information requested. For some of the requests, Dr. Khan

recreated diagrams and otherwise indicated from whom the requested information

could be obtained.31 Most notably for purposes of this lawsuit, Dr. Khan indicated

in response to a request for logical and physical diagrams of the network that he

had deleted such diagrams when he resigned his post as IT Director. When he

issued his response on March 20th, Dr. Khan also conveyed logical and physical

diagrams that he had recreated.

         Within 30 minutes of sending his response, Dr. Khan received a letter from

Provost Thompson stating that Dr. Khan was being placed on paid administrative

leave, effective immediately, because DSU had “evidence that [Dr. Khan]

intentionally sabotaged the [CMNST Network], and as a result, [he had]

substantially interfered with the ability of the entire faculty of that College to



30
     Defs.’ Opening Br. Supp. Mot. Summ. J. Ex. 19 at 3.
31
     Id. at 3-5.
                                                11
perform their duties and responsibilities.”32 The letter also stated that Dr. Khan’s

conduct violated Article 10 of the CBA.

       E. The investigation

       Although Provost Thompson’s March 20th letter cites “evidence” that Dr.

Khan intentionally sabotaged the CMNST Network, DSU conceded in this

litigation that it did not then, and does not now, have evidence that Dr. Khan

sabotaged the network or otherwise intentionally caused it to crash on March 16,

2012.33    DSU hired Brandywine Technology (“Brandywine”) to restore the

network, but the University never formally investigated the “root cause” of the

network crash. Brandywine was engaged on March 19, 2012, and its report dated

March 28, 2012 states: “The determination was made [that] additional root cause

analysis should be postponed to expedite efforts and restore functionality to the

affected user community.”34          Although DSU considered engaging another

company, ParaLogic, to conduct a root cause investigation, DSU ultimately did not

pursue that investigation.35

       The University did, however, conduct a formal investigation “of the system

failure,” including “a review of Sections 10.4.3 A., D., and E[.] of the [CBA] as it



32
   Defs.’ Opening Br. Supp. Mot. Summ. J. Ex. 20.
33
   Pl.’s Resp. Br. Ex. 9 at 69, 70, 85, 94, 135 (Thompson Dep.); A336 (Leible Dep.).
34
   Defs.’ Opening Br. Supp. Mot. Summ. J. Ex. 21.
35
   A341-42. Based on a phone call with Dr. Amir, ParaLogic produced a draft report and a bid
for the cost to perform the investigation.
                                            12
relates to [Dr. Khan], to determine if he violated any of those provisions.”36

Assistant Provost Bradley Skelcher, Ph.D. (“Dr. Skelcher”) and Internal Auditor

Ed Watson conducted the investigation, which included a meeting with Dr. Khan

and his AAUP representative, Dr. Steve Newton, on May 25, 2012. During that

meeting, in response to questions posed by the investigators, Dr. Khan informed

the investigators that there was backup storage of the CMNST Network and that,

although Dr. Khan did not have the expertise to access the backup, Saoud would

know how to find it.37

       Dr. Skelcher and Mr. Watson issued their report on June 5, 2012 (the

“Skelcher Report”).38        The Skelcher Report catalogs a series of problems

Brandywine identified with the CMNST Network.            Specifically, the Skelcher

Report concludes that the CMNST Network: (1) did not conform to best practices

because network staff utilized the built-in administrator account rather than

creating individual administrator accounts for staff, (2) lacked server backups,

making restoring the network difficult, (3) had underutilized, misconfigured, or

non-functioning infrastructure equipment, and (4) lacked redundancy in the event

of hardware failure.39 Calling upon both the Brandywine data and a draft report

and bid prepared by ParaLogic, the Skelcher Report repeatedly suggests that the

36
   Defs.’ Opening Br. Supp. Mot. Summ. J. Ex. 22 at 1.
37
   A561-63 (Skelcher Dep.).
38
   Defs.’ Opening Br. Supp. Mot. Summ. J. Ex. 22.
39
   Id. at 2.
                                              13
March 19, 2012 network failure was not an accident and was the result of

deliberate acts by an unnamed individual.40 The report goes on to describe the

repeated requests lodged by Dr. Leible, Dean Melikechi, and Provost Thompson

seeking information from Dr. Khan in the week after his resignation as Director of

IT. The penultimate paragraph of the Skelcher Report contains the following

condemnation of Dr. Khan’s conduct:

        [T]he system was not secure according to two reports making it
        vulnerable to acts that produced the system failure during the week of
        Dr. Khan’s resignation. With the system failure, it was Dr. Khan’s
        responsibility to cooperate and provide assistance to the University in
        restoring and maintaining operations of the system as it transitioned to
        the University IT regardless of whether he resigned from his position
        or not. Dr. Khan was still an employee of the University as a
        professor. Furthermore, his appointment to the University in part was
        as Director of IT along with teaching responsibilities. Therefore,
        according to 10.4.3 A of the CBA, Dr. Khan’s “failure to perform
        professional responsibilities either through incompetence, persistent
        negligence, refusal to carry out reasonable assignments, or disregard
        for or failure to meet . . . professional standards and ethics” led either
        directly or indirectly to the failure of the IT system in CMNST. His
        response to requests by University officials demonstrates “serious
        personal misconduct of such a nature as to warrant and evoke the
        condemnation of the academic community” as outlined in 10.4.3 E of
        the CBA.41
Dr. Skelcher and Mr. Watson recommended that DSU “consider appropriate

disciplinary action” under Section 10.4.4 of the CBA.42




40
   Id. at 2-3.
41
   Id. at 5.
42
   Id.
                                           14
      F. Dr. Khan’s suspension and termination

      Two weeks after the Skelcher Report was issued, Provost Thompson sent

Dr. Khan a letter stating that, based on the results of the investigation, he was

convinced that DSU would pursue Dr. Khan’s discharge from employment for

“Just Cause.” As required by Section 10.4.4 of the CBA, Provost Thompson

invited Dr. Khan to discuss the matter before DSU issued a formal notice of intent

to impose discipline.

      Dr. Khan and his AAUP representative, Dr. Newton, met with Provost

Thompson on September 5, 2012.         Although the meeting was billed as an

opportunity for discussion before any formal discipline was imposed, at the

beginning of the meeting, Provost Thompson handed Dr. Khan a letter indicating

he permanently was discharged from the University. Dr. Newton then challenged

the grounds for termination, asserting that discharging a tenured faculty member

for actions allegedly taken in connection with a supplemental appointment was not

proper and likely would have a chilling effect on faculty members’ willingness to

accept such supplemental appointments in the future. It was at this meeting that

Provost Thompson raised the issue of the purported absence of any backup of the

CMNST Network. Dr. Khan indicated such a backup did, in fact, exist. Provost

Thompson apparently believed, erroneously DSU now concedes, that this

September meeting was the first time Dr. Khan revealed the backup’s existence. In


                                        15
fact, as DSU’s witnesses now acknowledge, Dr. Khan told Dr. Skelcher and Mr.

Watson about the backup during their meeting in May 2012.43

       At the conclusion of the September 5th meeting, Provost Thompson agreed

to consider Dr. Newton’s arguments and stated he would issue a new letter in the

next few days.44 Provost Thompson then issued a letter dated September 20, 2012

indicating that Plaintiff was suspended without pay, effective September 17, 2012

until December 31, 2012, while the University continued to investigate the

“seriously disturbing allegations of failure to perform professional responsibilities

either through incompetent or persistent negligence” that lead to the CMNST

Network crash.45

       In mid-December, Provost Thompson asked Dr. Khan to meet with him on

January 15, 2013 “before issuing you my formal notification of intent to impose

discipline as outlined in 10.4.4. of the CBA.”46 It was at this meeting that Dr.

Khan received his letter of discharge. Defendants insist that Provost Thompson

made the decision to discharge Dr. Khan and that Dean Melikechi had no say in

that decision. The record, however, reflects facts indicating that Dean Melikechi




43
   A562-64 (Skelcher Dep.). DSU disputes whether Dr. Khan did enough to help DSU locate and
utilize the backup(s).
44
   When no new letter was received, Dr. Khan demanded arbitration so as not to miss the ten-day
period to do so under the CBA.
45
   A98. Dr. Khan again demanded arbitration. DSU did not respond to that demand.
46
   A103.
                                              16
actively was involved in the process leading up to Dr. Khan’s discharge and that

Provost Thompson deferred to Dean Melikechi’s decisions or recommendations.

       For example, Dr. Thompson testified that he viewed the Dean as the “CEO

of the College” and tried to keep “College level decisions at the College level.”47

Provost Thompson trusted Dean Melikechi’s judgments, viewed him as an

effective dean, and could not point to an instance in which he overrode one of

Dean Melikechi’s recommendations.48                Consistent with that theme, Provost

Thompson acceded to Dean Melikechi’s request to replace Dr. Khan temporarily

when he was placed on administrative leave in March 2012 and to begin

immediately the search for Dr. Khan’s permanent replacement, even though

ostensibly no decision to discharge Dr. Khan had been made at that point.49 When

Provost Thompson approved the request to begin searching for Dr. Khan’s

replacement, Dean Melikechi responded: “You are simply the best boss/colleague I

have ever worked with. Thank you,” to which Provost Thompson replied: “The

feeling is definitely mutual.”50

       In early January 2013, as he was drafting Dr. Khan’s letter of discharge,

Provost Thompson sent a draft to Dean Melikechi, Mr. Preston, and Dr. Skelcher,


47
   Pl.’s Resp. Br. Ex. 9 at 20-22 (Thompson Dep.).
48
   Id. at 16-18, 31-32, 41.
49
   Pl.’s Resp. Br. Ex. 4 at DSU_000122, 129, 130. During the summer of 2012, Dean Melikechi
also distributed Dr. Khan’s research equipment, lab, and office to other faculty members. Pl.’s
Resp. Br. Ex. 10 at 32-33 (Gwanmesia Dep.); Pl.’s Resp. Br. Ex. 11 at 456-59 (Melikechi Dep.).
50
   Pl.’s Resp. Br. Ex. 4 at DSU_000122.
                                              17
seeking their “review and comment.”51 Dean Melikechi indicated his approval of

the draft and opined that “Dr. Khan’s brought this on himself. His desire to take

the University hostage back fired on him and his brother.”52 Provost Thompson

then tasked Dean Melikechi with delivering the discharge letter to Dr. Khan at the

January 15, 2013 meeting. Provost Thompson did not actually attend that meeting.

Instead, Dean Melikechi appeared and immediately handed Dr. Khan the letter

notifying him that he permanently was discharged from the DSU faculty.53

       The letter indicates Dr. Khan was discharged under Sections 10.4.3A and E

of the CBA. The alleged conduct that DSU contends amounted to “Just Cause”

under those sections fairly may be summarized as follows: Dr. Khan (1) refused to

carry out reasonable assignments that contributed substantially to the network

crash and (2) failed to respond to reasonable requests to provide information to

restore the network.54 The discharge letter summarized the findings of Brandywine

and ParaLogic (although DSU now concedes ParaLogic neither was retained nor

performed an independent investigation) regarding the CMNST Network’s

creation and its alleged failings. The letter also refers to Dr. Khan’s alleged failure

to provide network documentation and his deletion of the logical and physical




51
   Pl.’s Resp. Br. Ex. 4 at DSU_001031.
52
   Id.
53
   Answer ¶ 83.
54
   Defs.’ Opening Br. Supp. Mot. Summ. J. Ex. 27.
                                             18
diagrams for the network when he resigned from his post as IT Director.55 The

letter concludes that (1) the Brandywine and ParaLogic reports, as well as DSU’s

internal investigation, indicate Dr. Khan failed to perform his professional

responsibilities, leading to the network crash, and (2) his lack of responsiveness

and professional ethics contributed to the nature and magnitude of the network

downtime and attendant consequences. Finally, the letter refers to Dr. Khan’s

“admission” that he failed to inform anyone that backup data existed which would

substantially have ameliorated the consequences of the network crash.56

       G. The arbitration

       Dr. Khan demanded arbitration shortly after he received notice of his

discharge.57 Although arbitration under the CBA is intended to be a rapid process,

Dr. Khan’s arbitration proceeded in fits and starts for reasons that are disputed and

not directly related to the pending motions for summary judgment. Arbitration

eventually was scheduled to begin on October 29, 2013. Five days before the

evidentiary hearing, Dr. Khan withdrew his arbitration demand.

       H. This lawsuit

       Seven months later, Dr. Khan filed this action, claiming that: (1) his

suspension and discharge violated the CBA; (2) his discharge was a violation of


55
   Id.
56
   Id.
57
   A108.
                                         19
the Delaware Discrimination in Employment Act (“DDEA”) and the federal Age

Discrimination in Employment Act (“ADEA”); and (3) Dean Melikechi

intentionally and tortiously interfered with his contract and business expectations.58

DSU filed a counterclaim alleging Dr. Khan’s withdrawal from the arbitration

process on the eve of the hearing amounted to bad faith and vexatious litigation

tactics.

       This action was scheduled for trial on November 6, 2015. The parties filed

the pending motions for summary judgment in September 2015, and the trial date

ultimately was vacated. The Court heard argument on the pending motions on

March 17, 2016 and, based on statements made during oral argument, requested

the complete transcripts for Dr. Skelcher’s depositions. Those transcripts were

filed on March 22, 2016.

                                       ANALYSIS

       Summary judgment should be awarded if “the pleadings, depositions,

answers to interrogatories and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.”59 When considering a motion

for summary judgment, the evidence and the inferences drawn from the evidence


58
   The claim against Dean Melikechi was added in Dr. Khan’s amended complaint, filed on July
28, 2014.
59
   Super. Ct. Civ. R. 56(c).
                                             20
are to be viewed in the light most favorable to the nonmoving party.60 The Court

will accept “as established all undisputed factual assertions . . . and accept the non-

movant’s version of any disputed facts. From those accepted facts[,] the [C]ourt

will draw all rational inferences which favor the non-moving party.”61 A party

seeking summary judgment bears the initial burden of showing that no genuine

issue of material fact exists.62 If the movant makes such a showing, the burden

then shifts to the non-moving party to submit sufficient evidence to show that a

genuine factual issue, material to the outcome of the case, precludes judgment

before trial.63

       Dr. Khan contends he is entitled to summary judgment on Counts I and II of

the amended complaint, as well as on DSU’s counterclaim for bad faith or

vexatious litigation tactics. Counts I and II of the amended complaint relate to Dr.

Khan’s claims that his suspension without pay and discharge violated the terms of

the CBA.      For their part, Defendants contend they are entitled to summary

judgment as to Counts III, IV, and V of the amended complaint. Counts III and IV

relate to Dr. Khan’s claim that his discharge violated the Delaware Discrimination

in Employment Act (“DDEA”) and the federal Age Discrimination in Employment


60
   Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995); Judah v. Del. Trust Co., 378 A.2d 624,
632 (Del. 1977).
61
   Marro v. Gopez, 1994 WL 45338, at *1 (Del. Super. Jan 18, 1994) (citing Merrill v. Crothall-
Am., Inc., 606 A.2d 96, 99-100 (Del. 1992)).
62
   Moore v. Sizemore, 405 A.2d 679, 680-81 (Del. 1979).
63
   Id.; see also Brzoska, 668 A.3d at 1363.
                                              21
Act (“ADEA”), respectively. Count V is Dr. Khan’s claim against Dean Melikechi

for tortious interference with contract and business expectancy. Each side disputes

that the other is entitled to summary judgment. In my view, disputed issues of fact

preclude summary judgment as to all claims except DSU’s counterclaim for bad

faith.

         I. Dr. Khan is not entitled to summary judgment on his claims under
            the CBA.
         In support of his contention that he is entitled to summary judgment for his

claims arising under the CBA,64 Dr. Khan argues that DSU violated the CBA by

(1) suspending and discharging him as a tenured professor for alleged misconduct

in a supplemental administrative position, (2) suspending and discharging him

without substantiating the charges against him, and (3) subjecting him to

institutional double jeopardy. DSU argues that disputed issues of material fact

preclude summary judgment as to the first two issues and that Dr. Khan was not

subjected to institutional double jeopardy. I address each issue in turn.

         A. Whether DSU suspended and discharged Dr. Khan for actions taken
            in connection with his service as a tenured professor is a disputed
            issue of fact for the jury.
         Dr. Khan first argues that DSU violated the CBA by discharging him for

actions taken in his role as IT Director, rather than in his role as a tenured faculty


64
  Dr. Khan’s motion indicates he seeks summary judgment on both Counts I and II of the
amended complaint, but at oral argument Dr. Khan conceded that his motion only addressed
Count II. I therefore have confined my analysis to Count II.
                                             22
member.       Dr. Khan asserts that, under the terms of the CBA, just cause for

disciplining a tenured faculty member must be based on “charges directly and

substantially related to the fitness of the affected unit member to perform

professional responsibilities.”65   It is here that the meaning, and apparent

ambiguity, of the term “professional responsibilities” becomes important.        Dr.

Khan argues that “professional responsibilities” in Section 10.4.3 of the CBA

refers to Section 12.2, which defines the term “Academic Load.” He further

contends that the parties are in agreement that a professor’s “Academic Load” is

identified in his or her letter of appointment, and Dr. Khan’s letter of appointment

for his position as a professor made no mention of his position as IT Director. Dr.

Khan therefore concludes that his service as such cannot fall within the definition

of “Academic Load” or, by extension of reasoning, “professional responsibilities.”

         DSU argues, on the other hand, that Dr. Khan was not disciplined for his

actions as IT Director, but rather for his actions and inactions after he resigned

from that position. DSU argues that, after he resigned as IT Director, Dr. Khan

continued to serve as a member of the faculty and, in that role, had an obligation to

assist the University, maintain professionalism, and carry out reasonable

assignments. DSU contends Dr. Khan’s “evasive” and “unhelpful” responses to

the administration’s requests for information regarding the CMNST Network failed


65
     CBA § 10.4.2.
                                         23
to live up to his obligations and contributed to the magnitude of the network

downtime. According to DSU, this conduct violated both 10.4.3A of the CBA,

because it was a “failure to perform professional responsibilities either through

incompetence, persistent negligence, [or] refusal to carry out reasonable

assignments,” and 10.4.3E, because it amounted to “serious personal misconduct

of such a nature as to warrant and evoke the condemnation of the academic

community.”

       As an initial matter, it is unclear to me whether the parties contend the use of

the term “professional responsibilities” in the CBA is ambiguous. The parties did

not present the argument as such, but they also did not squarely address the issue at

all. In my view, the term likely is ambiguous. Plaintiff strongly contends that the

term “professional responsibilities” means “Academic Load,” and offers citations

to testimony to support that contention, but there is nothing in the four corners of

the CBA that compels that conclusion, let alone that suggests it is the only

reasonable interpretation of the term.66 In addition, it is reasonable to conclude the

terms “professional responsibilities” and “Academic Load” mean different things,

if for no other reason than the drafters chose different terms and specifically

defined only one such term. Although the issue is not expressly addressed in its

briefs, DSU appears to contend that “professional responsibilities” should be

66
  By citing parol evidence in support of his proffered interpretation of the CBA, Dr. Khan
effectively concedes the ambiguity of the agreement.
                                               24
interpreted more broadly than “Academic Load.”                    DSU does not, however,

articulate how it believes the term should be defined. In view of the undeveloped

record on this point, I cannot award summary judgment.                          Rather, further

proceedings are necessary: first, the parties must squarely present to the Court the

issue of whether “professional responsibilities” is ambiguous. In the event I

conclude the term is ambiguous, resolution of that ambiguity is a question for the

jury.67

          As a result of that interpretive issue, the additional factual question of

whether DSU had just cause to discipline Dr. Khan under Section 10.4.3A of the

CBA cannot be resolved at this point.                   Depending on how “professional

responsibilities” is interpreted, the factual question of whether Dr. Khan failed to

perform those responsibilities when he responded to the administration’s requests

for information and assistance is one that will require resolution. If, as Dr. Khan

contends, “professional responsibilities” has the same meaning as “Academic

Load,” it may be that he is entitled to summary judgment on the narrow issue of

whether his discipline was permitted under Section 10.4.3A. I decline to address

that hypothetical issue at this stage.               If, on the other hand, “professional

responsibilities has some other, broader meaning, the jury will need to determine
67
  Scott v. Bosari, 1994 WL 682615, at *5 (Del. Super. Oct. 26, 1994) (“Although the jury
resolves an ambiguity once its presence in an instrument is established, it is the court who makes
the initial determination as to whether an ambiguity exists.”); see also Bochniak v. Blenheim at
Bay Pointe, LLC, 2011 WL 2184180, at *9 (Del. Super. May 31, 2011); Smith v. Berwin
Builders, Inc., 287 A.2d 693, 695 (Del. Super. 1972).
                                                25
whether DSU’s evidence, and its contention that Dr. Khan was evasive and

unhelpful in his responses during the critical week in March, amounts to a failure

to perform his responsibilities. In addition, DSU also contends Dr. Khan’s conduct

violated Section 10.4.3E. Again, the jury must make the factual determination of

whether Dr. Khan did everything he reasonably could do in responding to the

administration’s requests and, if he did not, whether his responses amounted to

personal misconduct “of such a nature as to warrant and evoke the condemnation

of the academic community.” That question likely will turn on an evaluation of the

testimony and credibility of the witnesses, which is not the function of this Court

on a motion for summary judgment.

      Finally, the cases Dr. Khan cites in support of his argument on this point are

not persuasive.   Spurlock v. Board of Trustees, a Wyoming Supreme Court

decision, required the court to determine, among other things, whether an

individual who was both a tenured classroom teacher and a non-tenured principal

could be discharged as a classroom teacher for conduct taken as a principal.

Interpreting the Wyoming tenure statute, the court in Spurlock concluded the

teacher could not be dismissed because the Wyoming statute regarding “just cause”

required a finding of “facts which bear a [relationship] to the teacher’s ability and




                                         26
fitness to teach and discharge the duties of his or her position.”68                Because

Spurlock is interpreting the Wyoming statutory definition of “just cause,” it is of

questionable value in this case, which requires application of the contractual “Just

Cause” standard, itself requiring interpretation and application of, at a minimum,

the term “professional responsibilities.” Dr. Khan cannot engraft the Wyoming

statutory definition of “just cause” into the CBA.

       The other case Dr. Khan cites, Durham v. Fields, aptly supports the

proposition that a tenured teacher cannot be discharged from a teaching position

solely for actions taken in a supplemental administrative position.69 The question

presented by this case, however, is more nuanced. That is, DSU does not appear to

argue that it could discharge Dr. Khan as a professor for his alleged failings as an

IT Director. Rather, DSU argues that it discharged Dr. Khan for his conduct after

he resigned as IT Director, but while he remained employed by DSU as a

professor. Again, the basis for the discipline and whether it amounted to just cause

is a disputed factual issue, but nothing in Durham compels summary judgment in

Dr. Khan’s favor.




68
   699 P.2d 270, 276 (Wyo. 1985) (quoting Monahan v. Bd. of Trustees, 486 P.2d 235, 237
(Wyo. 1971)).
69
   588 A.2d 352 (Md. Ct. Spec. App. 1991).
                                             27
       B. The question of whether the charges against Dr. Khan were
          substantiated is a disputed factual issue that cannot be resolved on
          summary judgment.
       Dr. Khan also argues that his suspension and ultimate discharge violated the

CBA because DSU did not base the discipline on “substantiated charges” as

required by Section 10.4.2. Although Dr. Khan’s original suspension with pay was

based on allegations that he somehow intentionally caused the CMNST Network to

crash, and allusions to such intentional misconduct continued in his discharge letter

and even in DSU’s response to the motion for summary judgment, DSU concedes

it does not have any evidence substantiating such charges.70 DSU further conceded

during oral argument that Dr. Khan could not be disciplined as a tenured professor

for actions he took in his role as Director of IT. Finally, DSU’s witnesses concede

the error in Provost Thompson’s statement in the discharge letter that Dr. Khan did

not inform the investigators or the administration of the existence of backup data.71

Accordingly, the only charges referenced in Dr. Khan’s discharge letter that DSU

contends were substantiated charges giving the University “Just Cause” to

discharge Dr. Khan were that his responses to the administration’s requests for



70
   Pl.’s Resp. Br. Ex. 9 at 69, 70, 85, 94, 135 (Thompson Dep.); A336 (Leible Dep.). I caution
DSU that, at any trial in this matter, it will not be permitted to suggest to the jury, overtly or
otherwise, that Dr. Khan caused the network to crash. Given the allusion to such in the
documents that likely will be admitted into evidence, an instruction will be given to the jury to
the effect that the parties stipulate that there is no evidence that Dr. Khan intentionally caused the
network to crash.
71
   A563 (Skelcher Dep.).
                                                 28
assistance and information between March 13th and March 19, 2012 amounted to

violations of Sections 10.4.3A and E.72

       Dr. Khan contends that the record is undisputed that he responded to every

request for information posed to him between March 13th and March 19th, and

that DSU has come forward with no evidence that he had the information sought

by the administration but failed to provide it. Were that an accurate summary of

the evidence, Dr. Khan would be entitled to judgment as a matter of law. The

facts, however, are not nearly so clear. DSU points to evidence, including both its

internal investigation and the Brandywine report, indicating that a person in Dr.

Khan’s role should have had the requested information, or should easily have been

able to recreate it.73       Moreover, Dr. Khan concedes that he deleted certain

information, namely logical and physical diagrams of the network, when he

resigned his post as IT Director, that such information was requested by the

administration on March 13, 2012, and that it was not until March 20, 2012 that

Dr. Khan provided the diagrams, which he was able to “recreate.” It was also not

until March 19th or 20th that Dr. Khan contacted his brother in an attempt to

72
   Dr. Khan asserted that Provost Thompson “admitted at his deposition that Dr. Khan’s alleged
insubordination, standing alone, would not have justified his termination, and that Dr. Khan was
terminated based on the unfounded belief that he somehow caused the network to fail.” Pl.’s
Resp. Br. at 24. The pages of Provost Thompson’s deposition cited for this proposition in fact
state the precise opposite; Provost Thompson agreed there was no evidence that Dr. Khan
sabotaged the network, but testified that Dr. Khan’s insubordination impacted the work of the
faculty and staff and “affected the ability of the University to get the network back up or to avoid
the network crash.” Pl.’s Resp. Br. Ex. 9 at 144-46 (Thompson Dep.).
73
   Defs.’s Ans. Br. Ex. K at 152-56 (Catranis Dep.).
                                                29
obtain the information the administration sought. Those disputed facts create an

issue for the jury regarding whether the charges against Dr. Khan were

“substantiated” under the CBA.

       C. Dr. Khan was not subjected to industrial double jeopardy.
       Dr. Khan also invokes the doctrine of industrial double jeopardy as a basis

for his claim that his discharge was improper. Industrial double jeopardy, a subset

of “industrial due process,” is an “esoteric area of labor relations law” that

“enshrines the idea that an employee should not be penalized twice for the same

infraction.”74 The principle applies only where a final decision on the merits of a

sanction has been made and the sanction or penalty subsequently is increased.75 As

the First Circuit explained in one of the few reported decisions discussing the

concept, “a second sanction only transgresses industrial double jeopardy principles

if the first sanction has become final. . . . The authorities are consentient that when

employers suspend employees pending investigation of alleged misconduct, the

doctrine of industrial double jeopardy does not bar subsequent discipline.”76 Zayas




74
   Zayas v. Bacardi Corp., 524 F.3d 65, 66, 69 (1st Cir. 2008).
75
   Id. at 69 (1st Cir. 2008) (citing 1 Tim Bornstein et al., Labor & Employment Arbitration §
15.07[2] (2d ed. 1997)).
76
   Zayas, 524 F.3d at 69 (citing 1 Tim Bornstein et al., Labor & Employment Arbitration §
15.07[2] (2d ed.1997); Alan Miles Ruben, Elkouri & Elkouri: How Arbitration Works §
15.3.F.vi, at 981 (6th ed.2003); Misco Precision Casting Co., 40 Lab. Arb. 87, 90 (1962)
(Dworkin, Arb.)).

                                               30
v. Bacardi Corp.,77 which Dr. Khan cites as a correct recitation of the law,

recognizes that Dr. Khan’s discharge, after his suspension without pay, did not run

afoul of industrial due process principles because there is no suggestion in the

record that Dr. Khan’s suspension was a “final” sanction.

         To the contrary, the undisputed record indicates that Dr. Khan was told that

he was being suspended without pay pending further consideration and

investigation by DSU of the appropriate sanction. This suspension was imposed

because Dr. Khan challenged the propriety of Provost Thompson’s decision to

discharge Dr. Khan in September 2012. Wanting the opportunity to take Dr.

Khan’s contentions into account, Provost Thompson indicated that Dr. Khan would

be suspended without pay “while we contemplate imposing more severe

disciplinary action.”78    After further deliberation, Provost Thompson decided

discharge was the appropriate sanction. Dr. Khan can point to nothing in the

record suggesting that the suspension without pay was a final sanction or that Dr.

Khan could have understood it as such.

         Dr. Khan argues that his discharge after suspension must have constituted

double jeopardy because the suspension period ended and he was restored to the

DSU payroll for two weeks before being discharged. Again, however, there is

nothing in the record indicating that the suspension without pay was a final

77
     524 F.3d 65.
78
     A99.
                                          31
sanction, as opposed to a suspension during an ongoing investigation, which the

authorities indicate does not violate industrial due process. Finally, Dr. Khan

points out that DSU did not conduct any additional investigation during the three

month suspension period. Accepting that fact as true, however, does not change

the landscape. Provost Thompson suspended Dr. Khan to give himself time to

deliberate in response to legal arguments and interpretations of the CBA raised by

Dr. Khan and his representative. A suspension while an employer explores the

legal parameters of a decision is, in my view, equivalent to a period for factual

investigation.     To conclude otherwise would discourage deliberate decision-

making by employers.

       II. Dr. Khan is entitled to summary judgment on DSU’s counterclaim.
       Dr. Khan contends he is entitled to summary judgment on DSU’s “bad faith”

counterclaim because DSU has offered no authority or evidence supporting its

claim. DSU argues there are disputed issues of fact regarding Dr. Khan’s reasons

for withdrawing from the arbitration on the eve of the hearing and that those

disputed facts require resolution by a jury. Significantly, however, DSU proffers

neither authorities recognizing bad faith in an arbitration process as a cognizable

cause of action, nor a description of the necessary elements of such a claim.79 This


79
  The only case DSU cites, Stoltz Realty Co. v. Raphael, 458 A.2d 21 (Del. 1983), stands for the
unremarkable proposition that a litigant who elected to pursue arbitration, and ultimately lost in
arbitration, could not later pursue his claim in a separate lawsuit in this Court. The Delaware
Supreme Court applied principles of estoppel, election of remedies, and res judicata in affirming
                                                32
failing alone justifies entry of judgment in Dr. Khan’s favor.80                    In addition,

although DSU contends there are factual disputes regarding Dr. Khan’s proffered

reasons for withdrawing from the arbitration, DSU has provided no evidence,

whether by affidavit or otherwise, suggesting that Dr. Khan’s explanations are

disputed. The mere suggestion that Dr. Khan’s credibility may be in question does

not suffice to create an issue of material fact.81 DSU also failed to produce in

discovery, or submit in response to the motion for summary judgment, any

evidence of damages the University incurred as a result of Dr. Khan’s alleged bad

faith. Dr. Khan therefore is entitled to summary judgment on the counterclaim.

       III. DSU is not entitled to summary judgment on Dr. Khan’s statutory
           age discrimination claims.

       In its motion for partial summary judgment, DSU argues that Dr. Khan’s

claims under the DDEA and the ADEA82 fail as a matter of law because (1) the

theory pleaded in the complaint does not amount to age discrimination and (2)

there is no evidence that Dr. Khan was discriminated against on the basis of his



the dismissal of the lawsuit. Id. at 22-23. Nothing in Stoltz Realty suggests that Delaware
recognizes an independent cause of action for bad faith litigation tactics.
80
   To defeat a motion for summary judgment on a claim for which the non-moving party bears
the burden of proof, the non-moving party must put forward some evidence to support each
element of the claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Here, DSU cannot
even identify the elements of the claim, let alone point to evidence in support of each element.
81
   Super. Ct. Civ. R. 56(e) (“When a motion for summary judgment is made and supported as
provided in this Rule, an adverse party may not rest upon the mere allegations or denials of the
adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided
in this Rule, must set forth specific facts showing that there is a genuine issue for trial.”).
82
   19 Del. C. §§ 710-719A; 29 U.S.C. § 621.
                                                33
age. Dr. Khan contends summary judgment is not appropriate because the theory

on which he is pursuing his age discrimination claims has shifted since the

complaint was filed and because there is ample evidence from which a jury could

conclude DSU discriminated against Dr. Khan when he was discharged from his

employment.      For the reasons that follow, I conclude DSU is not entitled to

summary judgment on these claims, which are Counts III and IV of the amended

complaint.

       A. Dr. Khan is not pursuing the theory that he was discharged to
          prevent vesting of his early retirement benefits.
       DSU first argues that it is entitled to summary judgment on Counts III and

IV of the amended complaint because the complaint alleges DSU violated the

DDEA and the ADEA by discharging Dr. Khan “to prevent him from obtaining

early retirement benefits.”83 Both statutory schemes preclude an employer from

discriminating against an employee on the basis of age.84 DSU correctly points

out, however, that claiming an employer terminated an employee to prevent

retirement benefits from vesting does not amount to an age discrimination claim

under the ADEA.85

       Dr. Khan disputes neither that settled legal principle nor its application to

claims under both the ADEA and the DDEA. Rather, Dr. Khan argues he was

83
   Am. Compl. ¶ 115; see also id. ¶¶ 120, 133, 138.
84
   19 Del. C. § 711(a)(1); 29 U.S.C. § 623(a).
85
   Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993).
                                              34
discharged on the basis of his age and that DSU’s proffered reasons for the

discharge merely were pretextual. In other words, Dr. Khan’s theory as to why

DSU’s conduct amounted to violations of the ADEA and the DDEA has shifted

since the amended complaint was filed. Because Delaware is a notice pleading

state, however, that shift is not necessarily fatal to Dr. Khan’s claims. Notice

pleading only requires that a plaintiff put a defendant on fair notice in a general

way of the cause of action asserted.86 The rules do not bar a plaintiff from shifting

or augmenting a theory after a complaint is filed, provided that the other party is

not prejudiced by the shift. As a leading treatise interpreting the federal notice

pleading standard explained,

       The federal rules, and the decisions construing them, evince a belief
       that when a party has a valid claim, he should recover on it regardless
       of his counsel’s failure to perceive the true basis of the claim at the
       pleading stage, provided always that a late shift in the thrust of the
       case will not prejudice the other party in maintaining a defense upon
       the merits. Undoubtedly cases can be imagined in which an alteration
       in legal theory would work to the prejudice of the opposing party . . . .
       in the vast majority of cases, any temporary prejudice that might be
       caused by a shift in legal theory can be overcome by permitting
       additional time for discovery or by granting a continuance if the case
       has reached trial.87

DSU has not articulated any prejudice by Dr. Khan’s pivot away from the

retirement benefits theory, nor do I perceive any based on the record before me. If


86
   Michelson v. Duncan, 407 A.2d 211, 217 (Del. 1979); Erect-Rite Const. Co. v. DeChellis, 193
A.2d 545, 548 (Del. Super. 1963).
87
   5 Wright & Miller, Fed. Prac. & Proc. Civ. § 1219 (3d ed. 2016).
                                              35
DSU requires limited additional discovery as a result of this shift, I certainly will

entertain a motion on that issue.

       B. Dr. Khan has adduced sufficient evidence from which a jury
          reasonably could conclude DSU violated the DDEA and the ADEA.
       DSU alternatively argues that Dr. Khan’s claims of age discrimination lack

evidentiary support and that summary judgment also must be granted on that basis.

Claims under the ADEA are governed by a three-step burden-shifting framework

articulated by the United States Supreme Court in McDonnell Douglas Corp. v.

Green.88 Under long-standing Delaware Supreme Court precedent, the McDonnell

Douglas framework also applies to claims under the DDEA.89 The framework first

requires a plaintiff to present a prima facie case of age discrimination by

demonstrating he (1) is over 40 years old, (2) is qualified for the position in

question, (3) suffered from an adverse employment decision, and (4) was replaced

by someone sufficiently younger to permit a reasonable inference of age

discrimination.90 If the plaintiff establishes a prima facie case, the burden then

shifts to the defendant to produce “a legitimate, non-discriminatory reason for the

adverse employment decision.”91 If the employer makes that showing, the burden

then shifts back to the plaintiff, who, to prevail, must show by a preponderance of

the evidence that the defendant’s non-discriminatory explanation of the
88
   411 U.S. 792 (1973).
89
   Riner v. Nat’l Cash Register, 434 A.2d 375, 376 (Del. 1981).
90
   Ashley v. Bayhealth Med. Ctr., 869 F.Supp.2d 544, 552 (D. Del. 2012).
91
   Smith v. City of Allentown, 589 F.3d 684, 691 (3d Cir. 2009).
                                              36
employment decision was pretextual and that age was the “but-for” cause of the

decision.92

       For purposes of the pending motion for summary judgment, the parties do

not dispute that Dr. Khan could present a prima facie case of age discrimination or

that DSU could meet its burden of production under the second prong of the

McDonnell Douglas framework. DSU contends, however, that Dr. Khan cannot

meet his burden under the third prong of the framework. To defeat a motion for

summary judgment aimed at the third prong of McDonnell Douglas, a plaintiff

“must point to some evidence, direct or circumstantial, from which a fact finder

reasonably could either (1) disbelieve the employer’s articulated legitimate

reasons; or (2) believe that an invidious discriminatory reason was more likely than

not a motivating or determinative cause of the employer’s actions.”93

       DSU contends Dr. Khan cannot meet this burden, arguing there is nothing in

the record to dispute Provost Thompson’s denial that age was a factor in his

decisions to discipline Dr. Khan. DSU urges that Dr. Khan’s subjective beliefs

regarding the reasons for his discharge are not sufficient to overcome a motion for

summary judgment.94          At a minimum, however, Dr. Khan has put forward

evidence from which a jury reasonably might conclude that DSU’s stated non-


92
   Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994).
93
   Id. at 764.
94
   See Boggerty v. Stewart, 14 A.3d 542, 554 (Del. 2011).
                                               37
discriminatory reasons for discharge cannot be believed. The shifting nature of

DSU’s explanations for Dr. Khan’s discharge, as well as the University’s

admission that most of those proffered reasons were unsubstantiated or never

believed by Provost Thompson in the first place, amounts to circumstantial

evidence from which a jury could disbelieve DSU’s proffered non-discriminatory

reason for the termination.95 Although DSU correctly points out that evidence that

an employer’s decision was wrong or mistaken is not sufficient evidence of

pretext,96 evidence of weaknesses, implausibilities, inconsistencies, incoherencies,

or contradictions in the proffered reasons is sufficient evidence of pretext to

withstand a motion for summary judgment.97 Dr. Khan’s evidence moves beyond

merely an incorrect decision by DSU. DSU’s fluid explanations for the discipline,

as well as the subsequent admission that Provost Thompson had no evidence to

support at least one of the reasons he gave for discipline, are sufficient evidence

from which a jury reasonably might conclude that the stated reasons for discharge

were a pretext for discrimination.

       Finally, as explained in greater detail in Section IV(B), below, DSU cannot

at this procedural stage obtain judgment on the basis that Provost Thompson, rather

95
   DSU argues in reply that insubordination always was a reason for Dr. Khan’s discipline,
without acknowledging the other bases for discipline asserted, and later withdrawn, by DSU,
particularly repeated statements that Dr. Khan intentionally sabotaged the network, statements
which DSU now concedes were unsubstantiated and which Provost Thompson testified he had
no evidence to support. See Pl.’s Resp. Br. Ex. 9 at 69 (Thompson Dep.).
96
   See, e.g., Keller v. Orix Credit All., Inc., 130 F.3d 1101, 1108-09 (3d Cir. 1997).
97
   Id.
                                               38
than Dean Melikechi, made the decision to discipline Dr. Khan. Under the “Cat’s

Paw” theory in discrimination cases, an employer may be liable for discrimination

even if the formal decision-maker did not have any discriminatory intent if the

employee proves that “a biased subordinate, who lacks decision making power,

uses the formal decision maker as a ‘straw man’ in a deliberate scheme to trigger a

discriminatory action.”98 Dr. Khan has adduced evidence that Dean Melikechi took

action to force the retirement or departure of older professors in the College, made

disparaging remarks about the older professors’ productivity, and actively

advocated for Dr. Khan’s dismissal, going so far as to suggest, without evidence,

that Dr. Khan sabotaged the network. As explained below, Provost Thompson

deferred to Dean Melikechi on decisions about the College and specifically

solicited his input on the discharge decision. That evidence may be sufficient to

impose liability on DSU, even if the formal decision-maker had no discriminatory

intent.

          IV. Disputed issues of fact preclude summary judgment on Dr. Khan’s
              tortious interference claim.

          Finally, Dean Melikechi contends judgment should be entered in his favor

on Dr. Khan’s claim that Dean Melikechi tortiously interfered with Dr. Khan’s

existing and prospective business and contractual relationships with DSU by

98
  Ennis v. Del. Transit Corp., 2015 WL 1542151, at * 2, n.10 (Del. Super. Mar. 9, 2015); see
also Dolan v. Penn Millers Ins. Co., 625 F. App’x 91, 94, n.7 (3d Cir. 2015); Greenawalt v.
Clarion Cty., 459 F. App’x. 165, 169 (3d Cir. 2012).
                                              39
causing Dr. Khan’s discharge. Dean Melikechi contends this claim fails as a

matter of law because he was acting as DSU’s agent or affiliate at the time of his

alleged interference and because Dr. Khan cannot establish that Dean Melikechi’s

conduct proximately caused Dr. Khan’s termination. Both arguments, although

potentially meritorious, require presentation to the jury because factual disputes

preclude entry of judgment at this stage.

       A. The issue of whether Dean Melikechi was acting within the scope of
          his employment or as an affiliate of DSU is a factual dispute.
       Dean Melikechi first argues that Dr. Khan’s claim against him fails as a

matter of law because an agent or affiliate of a party to a contract cannot tortiously

interfere with the contract. The law in this area is settled. Delaware follows the

Restatement with respect to claims for tortious interference with a contract.99 To

prevail on such a claim, a plaintiff must prove five elements: (1) plaintiff was a

party to a contract, (2) defendant was aware of the contract, (3) defendant’s

intentional act was a significant factor in causing the breach of such contract, (4)

defendant’s act was unjustified, and (5) defendant’s act caused injury to plaintiff.100

Because a claim for tortious interference cannot lie against a party to the contract,




99
  Grunstein v. Silva, 2009 WL 4698541, at * 16 (Del. Ch. Dec. 8, 2009).
100
   Restatement (Second) Torts § 766 (1979); AeroGlobal Capital Mgmt. v. Cirrus Indus., 871
A.2d 428, 437, n. 7 (Del. 2005); Grunstein, 2009 WL 4698541, at * 16.
                                             40
an agent to a party likewise cannot tortiously interfere with the contract, provided

the agent was acting in the scope of his employment.101

       Dean Melikechi argues that this agency principle, along with a separate but

related doctrine known as the “affiliate” or “interference” privilege, precludes the

claim against him. Although both defenses ultimately may defeat the tortious

interference claim in this case, both require factual determinations that cannot be

made in the present procedural posture. The question of whether Dean Melikechi

was acting within the scope of his employment is an issue of fact for the jury.102

Although a “very clear” case may be resolved by the court as a matter of law, this

is not such a case. There are allegations, along with circumstantial evidence, that

Dean Melikechi discriminated against Dr. Khan either because of his age or as a

result of personal animus. There are facts to support an inference that Dean

Melikechi was the source of the admittedly false statement that DSU had evidence

that Dr. Khan sabotaged the CMNST Network, as well as facts to support an

inference that Dean Melikechi undertook to eliminate from the College, through

retirement or attrition, all the older professors and that his actions with respect to

Dr. Khan were part of that effort. Although that evidence may not be sufficient to


101
    Nelson v. Fleet Nat. Bank, 949 F.Supp. 254, 262-63 (D. Del. 1996); Shearin v. E.F. Hutton
Grp., Inc., 652 A.2d 578, 590 (Del. Ch. 1994).
102
    Nelson, 949 F.Supp. at 263. Under the Restatement, conduct of a servant is within the scope
of employment if “(a) it is of the kind he is employed to perform; (b) it occurs substantially
within the authorized time and space limits; (c) it is actuated, at least in part, by a purpose to
serve the master.” Restatement (Second) Agency § 228 (1958).
                                                41
prevail at trial, scope of employment is an issue of material fact that requires

presentation to the jury.103

       The issue of whether Dean Melikechi can invoke the “affiliate” privilege

likewise requires resolution of disputed issues of fact. That privilege exists “where

non-parties to the contract share a ‘commonality of economic interests’ with one of

the parties and act ‘in furtherance of their shared legitimate business interests.’” 104

The privilege does not attach where, as alleged here, the affiliate “was motivated

by some malicious or other bad faith purpose to injure the plaintiff.”105 For the

reasons set forth above regarding the factual dispute as to scope of employment,

the jury must resolve the disputed facts regarding Dean Melikechi’s actions and

motivations before this privilege can be invoked.

       B. Proximate causation is an issue the jury must resolve.

       Finally, DSU argues that Dr. Khan cannot establish that Dean Melikechi’s

actions proximately caused the alleged breach of contract because it was Provost

Thompson, rather than Dean Melikechi, who made the decision to discipline Dr.

Khan. There are disputed issues of fact, however, regarding the extent to which

Dean Melikechi attempted to influence that decision, as well as the extent to which

Provost Thompson deferred to the Dean. Viewed in the light most favorable to Dr.

103
    See, e.g., Nelson, 949 F.Supp. at 263-64 (holding allegations of discrimination could, but do
not necessarily, support a finding that an agent was acting outside the scope of employment).
104
    Grunstein, 2009 WL 4698541, at *16.
105
    Id.
                                                42
Khan, there is evidence from which a jury reasonably could conclude that the

Provost did exhibit such deference and allowed Dean Melikechi to drive the

decision.

      For example, the Provost conceded he trusted Dean Melikechi’s judgments

and had a practice of keeping “College level decisions at the College level.” The

Provost allowed Dean Melikechi to begin searching for Dr. Khan’s replacement at

a time when Provost Thompson only had suspended Dr. Khan with pay, suggesting

that Dean Melikechi did not intend Dr. Khan to return to the University. The

Provost sought Dean Melikechi’s input on the draft discharge letter and then tasked

him with actually delivering that letter to Dr. Khan. Again, as set forth in Section

III(B), above, Dr. Khan has adduced evidence from which a jury reasonably could

conclude that Dean Melikechi undertook to force older professors to retire or

otherwise leave the College by, among other things, (1) making negative

statements about their relative productivity and (2) forcing them to give up

research labs and equipment. Regardless of whether it is enough to prevail before

a jury, that evidence is sufficient to create a disputed issue of fact precluding entry

of judgment on this claim.

                                  CONCLUSION

      For the reasons set forth above, Plaintiff’s Motion for Summary Judgment as

to Counts I and II is DENIED, while his Motion for Summary Judgment as to

                                          43
Defendant Delaware State University’s counterclaim is GRANTED. Defendants’

Motion for Summary Judgment as to Counts III, IV, and V is DENIED. The

parties SHALL contact chambers within one week to schedule a teleconference to

set a new trial scheduling order.

      IT IS SO ORDERED.


                                    /s/ Abigail M. LeGrow
                                    ABIGAIL M. LeGROW, JUDGE




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