IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JAMES BROWN, MARGARET
EVANS, ROBERT CUNNINGHAM
JUAN GONZALEZ, ELBERT
MARTIN, AMEEN SHABAZZ,
BARRY YERGER, MICHAEL LEWIS,
and KEVIN MALLOY,

C.A. NO. N16C-06-184 VLM

Plaintiffs,
V.

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CITY OF WILMINGTON, )
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Defendant. )
MEMORANDUM OPINION

Submitted: December 18, 2018
Decided: January 8, 2019

Upon Consia’eration ofPlaintijj”s ’ Motionfor Summarjy Judgment,
DENIED.

Upon Consideratz`on OfDefendant ’s Motl`on for Summary Judgment,
GRANTED, in part, and DENIED, in part.
Gary S. Nitsche, Esquire (argued), and Rachel D. Allen, Esquire of Weik, Nitsche
& Dougherty, LLC, of Wilmington, Delaware. Attorneysfor Plainti/j{v.
Lauren A. Cirrinicione, Esquire (argued), and Kelley M. Huff, Esquire of Murphy

& Landon, of Wilmington, Delaware. Attorneysfor Defena’ant.

MEDINILLA, J.

I. INTRODUCTION

Nine Plaintiffs, retired firefighters for the City of Wilmington (“Defendant”
or “City”), bring breach of contract claims that allege the unlawful denial of health
insurance benefits under their Collective Bargaining Agreements in violation of both
federal provisions of the Omnibus Consolidated Appropriations Act and the
mandates found in Defendant’s personnel policies. Both sides seek judgment as a
matter of law and filed cross-motions for summary judgment under Superior Court
Civil Rule 56. After consideration of the parties’ Written submissions and oral
arguments, for the reasons stated beloW, Plaintiffs’ Motion for Summary Judgment
is DENIED, and Defendant’s Motion for Summary Judgment is GRANTED, in
part, and DENIED, in part.

II. FACTUAL AND PROCEDURAL HISTORY

Plaintiffs J ames Brown, Barry Yerger, Robert Cunningham, Michael LeWis,
Juan Gonzalez, Margaret Evans, Ameen Shabazz, Elbert Martin, and Kevin Malloy
(collectively “Plaintiffs”) retired as firefighters at various periods between 1996 and
2009.l It is undisputed that each Plaintiff received a disability pension after

Defendant determined that he or she Was injured While in the line of duty.2

 

l The effective dates of retirement are as follows: Mr. Brown, September 6, 1996; Mr. Yerger,
October 17, 1996; Mr. Cunningham, February 26, 2000; Mr. LeWis October 3l, 2001; Mr.
Gonzalez, July 4, 2002; Ms. Evans, September 13, 2002; Mr. Shabazz, October 3, 2005; Mr.
Martin, March 9, 2009; and Mr. Malloy, October 31, 2009.

2 Def.’s Opening Br. at 1-5.

Plaintiffs Were members of the Wilmington Firefighters Local 1590,
International Association of Firefighters (the “Union”). The City entered into
various Collective Bargaining Agreements (“CBAs”) With the Union throughout the
years relevant to this case. Four CBAS fall Within relevant time periods_l995
through 1998, 1998 through 2001 , 2001 through 2007, and 2007 through 2009.3 The
CBAs for Plaintiffs include language that called for the receipt of additional benefits
outside the provisions of the CBAS.

Plaintiffs filed this instant action on June 22, 2016 against Defendant for
breaches of contract, claiming that upon Plaintiffs’ retirements, Defendant failed to
comply With the provisions under their respective CBAs, the Omnibus Consolidated
Appropriations Act (“Appropriations Act”) or the City’s personnel policies,
specifically Policy 402.1.4

Trial is scheduled to begin February 4, 2019. On October 4, 2018, Defendant
filed this first dispositive motion seeking summary judgment against all nine
Plaintiffs and asserts various reasons for relief.5 On October 17, 2018, Plaintiffs also

moved for summary judgment requesting that all Plaintiffs should be deemed

 

3 Def.’s Opening Br., Exs. W, X, Y, Z.
4 Compl. 1[1] 14-18.

5 See generally Def.’s Opening Br.

eligible for additional benefits as a matter of law.6 All Written submissions on the
cross-motions Were filed timely. The Court heard oral arguments on December 17,
2018.
III. CONTENTIONS OF THE PARTIES

Defendant argues first that Plaintiffs fail to identify any specific agreement
that has allegedly been breached. Specifically, Where Plaintiffs rely on the language
found in the Appropriations Act or Policy 402.1, Defendant contends that Plaintiffs
cannot establish a private cause of action because they fail to satisfy the test
established in Cort v. Ash (the “Cort test”).7 Defendant further maintains that any
federal funding that may have been received by the City through the Appropriations
Act Was merely voluntary and does not trigger any obligation on the part of
Defendant to offer more than What Was already provided and received by Plaintiffs
under their CBA.8 Defendant claims also there can be no breach of the CBA by any
alleged violation of Policy 402.1 because a policy, by definition, is not covered under
the “Ordinances and Statutes” Article of the CBA.9 Lastly, Defendant argues that

10 Del. C. § 8111 limits or bars Plaintiffs’ claims, and alternatively argues that

 

6 See generally Pls.’ Opening Br.
7 422 U.S. 66 (1975). See also Def.’s Opening Br. at 9-12.
8 Def.’s Opening Br. at 15-16.

9Ia'. at 18.

Plaintiffs’ damages for breach of contract should be limited to the applicable three
year statute of limitations under 10 Del. C. § 8106.10

Conversely, Plaintiffs argue that summary judgment is Warranted because
they have met the requirements under Policy 402.1 as a matter of laW.1l ln support,
Plaintiffs argue that “[d]isability based upon heart conditions Which have been
determined to be Work related are covered under Policy 402.1 as the heart conditions
Were due to the firefighters responding to emergency situations.”12 Next, Plaintiffs
argue that Policy 402.1 should apply retroactively because the Policy includes
references to federal legislation that dates back to 1996.13

IV. STANDARD OF REVIEW

The burden of proof on a motion for summary judgment falls on the moving
party to demonstrate 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.”14 lf the moving party

satisfies its initial burden, the non-moving party must sufficiently establish the

 

10 Def.’s Opening Br. at 25-28.
11 Pls.’ Opening Br. at 10.

12 Ia'. at 5.

13 Ia'. at 7-8.

14 Super. Ct. Civ. R. 56(c).

“existence of one or more genuine issues of material fact.”15 Summary judgment
Will not be granted if there is a material fact in dispute or if “it seems desirable to
inquire thoroughly into [the facts] in order to clarify the application of the law to the
circumstances.”16 “All facts and reasonable inferences must be considered in a light
most favorable to the non-moving party.”17 On a motion for summary judgment, the
Court “Will not indulge in speculation and conjecture; a motion for summary
judgment is decided on the record presented and not on evidence potentially
possible.”18

Also, When cross-motions for summary judgment are filed, it “does not act
per se as a concession that there is an absence of factual issues.”19 lf cross-motions

for summary judgment are filed it “does not serve as a Waiver of` the movant’s right

to assert the existence of a factual dispute as to the other party’s motion.”Z° The

 

15 Quality Elec. Co., Inc. v. E. States Const. Serv., Inc., 663 A.2d 488, 1995 WL 379125, at *3-4
(Del. 1995). See also Rule 56(e); Moore v. Sl'zemore, 405 A.2d 679, 681 (Del. 1979).

16 Ebersole v. Lowengrub, 180 A.2d 467, 469-70 (Del. 1962).

17 Nutt v. A.C. & S. Co., Inc., 517 A.2d 690, 692 (Del. Super. 1986) (citing Mechell v. Plamer, 343
A.2d 620, 621 (Del. 1975); Allstate Auto Leasing C0. v. Caldwell, 394 A.2d 748, 752 (Del. Super.

1978)).
18 In re Asbestos Litigation, 509 A.2d 1116, 1118 (Del. Super. 1986) (citations omitted).

19 Unitea’ Vangaard Funa', Inc. v. TakeCare, Inc., 693 A.2d 1076, 1079 (Del. 1997) (emphasis in
original).

20 Id

moving party “concedes the absence of a factual issue and the truth of the nonmoving
party’s allegations only for purposes of its own motion, and does not waive its right
to assert that there are disputed facts that preclude summary judgment in favor of the
other party.”21
V. DISCUSSION

Plaintiffs rely on the provisions of their respective CBAS, the Appropriations
Act, and Policy 402.1 in support of their claims for breach of contract. The Court
addresses the relevant provisions of each as follows:

Each of the CBAS applicable to this case includes an Article entitled
“Ordinances and Statutes.”22 The “Ordinances and Statutes” Article provides:

In the event any ordinances or statutes relating to the members of the

Fire Department provide or set forth benefits or terms in excess of or

more advantageous than the benefits or terms of this Agreement, the

provisions of such ordinances or statutes shall prevail. In the event this

Agreement provides or sets forth benefits or terms in excess of or more

advantageous than those provided or set forth in any such ordinance or

statute, the provisions of this Agreement shall prevail.23

On July 12, 2005, Defendant created its Personnel Policy 402.1 entitled

“Public Safety Officers Health Benefits.”24 lt states:

 

21 Unitea' Vanguarcl Funa', 693 A.2d at 1079 (citations omitted).
22 Def.’s Opening Br., Exs. W, X, Y, Z.
23 Ia'., Ex. W at 28.

24 Ia'. , Ex. B [hereinafter Policy 402.1].

addressing the Disabled Public Safety Officer’s Health Act of 1996....”26 lt turns
out that there is no statute enacted entitled Disabled Public Safety Employees Act of`

1996. Defendant concedes that although there is no such statute, incredulously it

The City of Wilmington shall provide the same level of health
insurance benefits to a public safety officer who retires or is separated
from service as a direct or proximate result of a personal injury
sustained in the line of duty while responding to a hot pursuit or
emergency situation, as the officer had when the incident occurred.25

This Policy was created in order to “provide a policy and procedure for

remains referenced in Policy 402.l to date.

statute that mirrors the language found in Policy 402.l is found instead in the
“Appropriations Act” in most fiscal years relevant to Plaintiffs’ retirement dates.

Specifically, beginning in 1996 for the fiscal year 1997, the Appropriations Act

If that didn’t confuse the issues enough, Defendant clarified that the applicable

contained the following language:

SEC. 615. Of the funds appropriated in this Act under the heading
“OFFICE OF JUSTICE PROGRAMS_STATE AND LOCAL LAW
ENFORCEMENT ASSISTANCE” and “Community Oriented
Policing Services Program,” not more than ninety percent of the amount
to be awarded to an entity under the Local Law Enforcement Block
Grant and part Q of title I of the Omnibus Crime Control and Safe
Streets Act of 1968 shall be made available to such an entity when it is
made known to the Federal official having authority to obligate or
expend such funds that the entity that employs a public safety officer

 

25 Policy 402.l at l (emphasis added).

26 Id

(as such term is defined in section 1204 of title I of the Omnibus Crime
Control and Safe Streets Act of 1968) does not provide such a public
safety officer who retires or is separated from service due to injury
suffered as the direct and proximate result of a personal injury sustained
in the line of duty while responding to an emergency situation or a hot
pursuit (as such terms are defined by State law) with the same or better
level of health insurance benefits that are paid by the entity at the time
of retirement or separation.27

The federal block grant appears to contemplate withholding a percentage of
funding in the event that the municipality decided not to provide its retired or
separated public safety officers injured in the line of duty_while responding to an
emergency situation or a hot pursuit_with the same or better level of health
insurance benefits that were paid by the municipality at the time of retirement. A
nearly identical provision was included in the Appropriations Act for additional
fiscal years, including 1998, 1999, 2001, 2002, 2003 and 2004.28 Policy 402.l was
created one year later in 2005.

Having identified the relevant language that both sides asked the Court to

consider, the respective motions for summary judgment are ripe for review.

 

27 Def.’s Opening Br., Ex. CC.

28 Ia'., Exs. DD, EE, FF, GG, HH, Il.

A. Plaintiffs’ Motion for Summary Judgment

Plaintiffs first assert they have established entitlement to benefits under Policy
402.l as a matter of law because of a prior determination that they suffered a physical
condition that was deemed to be job related. The Court disagrees.

The Wilmington City Code explains that certain diseases that result in total or
partial disability are presumed to have been suffered while in the line of duty, but
the Code does not include the “hot pursuit or emergency situation” language required
to warrant eligibility under Policy 402.1. Although some Plaintiffs’ injuries are
presumed to have occurred in the line of duty, determination of disability did not
make a finding required under Policy 402.1_that the injury was sustained in the
line of duty while responding to a hot pursuit or emergency simaz‘ion.29 While it is
true that the Plaintiffs qualified for benefits under what Plaintiffs refer to as the
“Heart and Lung Bill,”30 it cannot be accepted as a matter of law that receiving
disability benefits through this City Code provision equates to the entitlement of
benefits under Policy 402.1.

Second, Plaintiffs’ argument that Policy 402.l should apply retroactively is

also without merit. Because this Court finds that Plaintiff’ s cannot establish they are

 

29 Policy 402.l at l (emphasis added).

30 Wilm. C. ch. 39, § 39-179 (2018).

10

entitled to benefits under 402.l as a matter of law as a result of their disability under
the Heart and Lung Bill, Plaintiffs’ Motion for Summary Judgment is DENIED as
to all Plaintiffs. The Plaintiffs’ arguments regarding whether Policy 402.l should
be applied retroactively are best addressed in Defendant’s Motion for Summary
judgment because they dovetail the same arguments raised by Defendant why
summary judgment should be granted in its favor.
B. Defendant’s Motion for Summary Judgment
1. Retired Firefighters before Creation of Policy 402.l - No Breach of
Contract under the CBAs Through Policy 402.l or the
Appropriations Act
Plaintiff takes considerable legal leaps in arguing that Policy 402.l should
apply retroactively through the Appropriations Act because both policy and statute
language include identical language. Thus, Plaintiffs argue that Policy 402.l should
have been or was intended to have been created in 1996.
Although Plaintiffs are correct that the “hot pursuit” and “emergency
situation” language appears in various iterations of the Appropriations Acts between
fiscal years 1997 through 1999 and 2001 through 2004,31 there is nothing in this

record pre-2005 that the Appropriations Acts alone created “more advantageous

benefits” referenced in the CBAs.32 Federal funding may have been available

 

31 See Def.’s Opening Br. at 8.

32 See ia'. at 8-9. See also ia'., Exs. CC, DD, EE, FF, GG, HH, ll.
l l

through various provisions of the Appropriations Acts that date back to 1996, but no
authority was presented by Plaintiffs to support that access to this fiinding required
municipalities to provide health insurance benefits to retired Plaintiffs prior to the
enactment of Policy 402.l in 2005. Also, without facts to support the nexus to Policy
402.1, any self-imposed obligations upon Defendant are not established until 2005,
and nothing was presented to suggest any intention, implied or expressed, to apply
Policy 402.l retroactively to those who retired prior to 2005.

Without facts or authority to support their assumptions, a trier of fact would
be required to speculate as to what impact potential federal funding provisions may
have had on Plaintiffs’ claims that date back to 1996.33 For these reasons, this Court
finds that where Plaintiffs rely upon the CBA to trigger the application of Policy
402.1, and the Policy was not in effect until 2005, there are no genuine issues of
material fact that must be decided that would obligate Defendant to a retroactive
application of the Policy through the Appropriations Act. Because certain Plaintiffs
retired prior to Policy 402.1, there is no available breach of contract claim under
their respective CBAs. Thus, Defendant’s Motion for Summary Judgment must be
granted as to Plaintiffs James Brown, Barry Yerger, Robert Cunningham, Michael

Lewis, Juan Gonzalez, and Margaret Evans who retired prior to the creation of Policy

 

33 The Court does not address the remaining issues raised by Defendant, including but not limited
to, Statute of Limitation bars as to these Plaintiffs.

12

402.1. Summary judgment as to these Plaintiffs is GRANTED in favor of
Defendant.
As to the three remaining Plaintiffs, this Court considers the relevant
arguments raised in Defendant’s Motion for Summary Judgment.
2. Retired Firefighters after Creation of Policy 402.l in 2005 May Be
Entitled to Benef"its Under Breach of Contract Claims Under Their
CBAs through Policy 402.l and the Appropriations Act
Policy 402.1 establishes a procedure and policy for certain public safety
officers to receive additional health insurance benefits.34 These additional benefits
are only provided if particular conditions are met.35 Plaintiffs argue that the
language of the policy alone implies a private cause of action. Defendant counters
with DeFelice v. Cummings and asks this Court to follow the same analysis in
Defendant’s favor.36
In DeFelice, this Court similarly addressed whether a section of the City of

Wilmington Code created a private cause of action through the application of the

Cort test.37 The Cort test was adopted by Delaware “to determine if a private cause

 

34 See generally Policy 402.l
35 See ia'. at 1.
36 2016 WL 4385077 (Dei. super. Aug. 16, 2016).

37 DeFelice, 2016 WL 4385077, at *5-6.

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of action under an otherwise silent statute exists.”38 This test poses the following

questions:
(1) Is the Plaintiff of the class for whose special benefit the
statute was enacted? (2) ls there any indication of a
legislative intent, express or implied, to create a private
remedy or deny one? (3) ls it consistent with the
underlying purpose of the legislative plan to imply a
private remedy?39
This Court determined that the DeFelice plaintiff was unable to satisfy the
factors under Cort and found that “it is clear that the Code is more of an internal
guideline governing the disciplinary and grievance proceedings....”40 The Court
held that there was no genuine issue of material fact established by the plaintiff and
granted summary judgment in favor of the defendants.41
Likened more to these facts, Defendant also cites to Torres v. Sussex County

Coancil,42 where the plaintiff claimed he was wrongfully terminated due to the

defendant’s failure to follow the procedures outlined in the Sussex County Personnel

 

38 Ia’. at *5.

39 Id. at *6 (quoting Miller v. Spicer, 602 A.2d 65, 67 (Del. 1991); citing Torres v. Sassex County
Council, 2014 WL 7149179, at *3 (Del. Super. Dec. 8, 2014)).

40 Id. (citing Torres, 2014 WL 7149179, at *4).
41 Ia'. (finding that plaintiff failed to satisfy Cort test to establish private cause of action). The
Court additionally held that even if the City Code provided a private cause of action, this claim

would be barred by the County and Municipal Tort Claims Act. Ia'. at *7.

42 2014 WL 7149179 (Del. Super. Dec. 8, 2014).
14

Code, which that Court referred to as an “ordinance.”43 That Court explained that
the ordinance was “more akin to an internal guideline, which does not have the force
of law, than a statutory prohibition.”44 The Court held that the ordinance did “not
create a private cause of action for the tort of wrongfiil termination” and dismissed
that count of the complaint.45 Under Torres and DeFelice, the internal guidelines
there did not have the force of law and the failure to comply with said guidelines
could not support a basis for a private cause of action.46

Here, Plaintiffs are not seeking relief from a disciplinary and grievance
procedure, nor are they alleging wrongful termination Here, they seek redress
through various avenues, including Policy 402.1. The policy is not discretionary.
lnstead, it orders the City to provide the same level of health insurance benefits to a
public safety officer who retires or is separated from service as a direct or proximate
result of a personal injury sustained in the line of duty while responding to a hot
pursuit or emergency situation.

Defendant is correct that a policy does not fall within the definition of a statute

or an ordinance. A policy is defined as a “standard course of action that has been

 

43 Torres, 2014 WL 7149179, at *1.
44 Ia'. at *4.
45 Ia'. at *5.

46 See, e.g., Torres, 2014 WL 7149179, at *4; DeFelice, 2016 WL 4385077, at *6.

15

officially established by an organization, business, political party, etc.”47 A statute
is defined as a “law passed by a legislative body....”48 An ordinance is an
“authoritative law or decree; specif., a municipal regulation, esp. one that forbids or
restricts an activity.”49 However, it is unnecessary to decide whether Policy 402.1
is merely an internal guideline or whether its mandate meets the Cort test because
Plaintiffs rely not only on Policy 402.l but on two other relevant legal bodies_the
provisions in the mirrored statutory language found in prior iterations of the
Appropriations Act and their respective CBAs.

The post-2005 Plaintiffs have presented evidence of a tripod effect_l)
Defendant’s reference in Policy 402.l to the “Disabled Public Safety Officer’s
Health Act of 1996” (clarified as the Appropriations Act); 2) its self-imposed policy
that parrots the statutory language found in the Appropriations Act; and 3) CBAs
that expressly invoke contractual obligations on Defendant to provide benefits
beyond the CBA.50 Plaintiffs’ triangular approach involves not only the language of

one personnel policy that may or may not be deemed an “internal guideline,” but

 

47 Policy, Black’s Law Dictionary (10th ed. 2014).

48 Statute, Black’s Law Dictionary (10th ed. 2014).

49 Ora'inance, Black’s Law Dictionary (10th ed. 2014).

50 The Court recognizes that the Appropriations Act post-2005 includes different language from

earlier iterations of the Act. Notably, the relevant language from the pre-2005 Appropriations Act
was incorporated into Policy 402.1 in 2005.

16

also the additional provisions found in their Union contracts and federal law. As
such, this case is distinguishable from DeFelice and Torres.

The Appropriation Act-in conjunction with Policy 402.1_may serve as the
requisite conduits that may trigger Plaintiffs’ rights to pursue benefits that could
have been deemed more “advantageous” under their CBAs. These rights may be
found generally in their CBAs, or alternatively through the “Ordinances and
Statutes” Article found within the CBA. Where the Defendant created mandates
under Policy 402.1 that mirror the statutory language found in the Appropriation
Act, there is a genuine issue of material fact as to whether the coupling of both policy
and the Act invokes the “Ordinances and Statutes” provisions under the CBAs that
would allow Plaintiffs to exercise their rights to better health care insurance benefits
mandated in Policy 402.1.

ln addition, although Messieurs Shabazz, Martin, and Malloy retired after
2005, the Court finds that Mr. Shabazz’s breach of contract claim is barred by the
three-year statute of limitations.51 Mr. Shabazz was aware of the Policy and applied
for Policy 402.l benefits through the Fire Chief at the time, Willie J. Patrick, Jr.52

ln a Memorandum dated July 13, 2007, Mr. Shabazz was informed that he did not

 

51 See 10 Del. C. § 8106.

52 See Def.’s Opening Br., Ex. P.
17

qualify for these benefits.53 After he was on notice that he did not qualify, Mr.
Shabazz did nothing until 2016 when the Complaint was filed, Therefore, Mr.
Shabazz’s breach of contract claim is barred by the applicable three-year statute of
limitations under 10 Del. C. § 8106.

As to Mr. Martin and Mr. Malloy, the arguments related to time bars are
unclear. 54 Defendant argues in its opening brief that that statute of limitations for a
breach of contract claim is three years under 10 Del. C. § 8106 and that Plaintiffs
may make a “claim for the cost of past health benefits in the three (3) years prior to
June 22, 2016, or stated differently, beginning on June 22, 2013.”55 Defendant then
argues in its reply that “the three year statute of limitations on the breach of contract
claims ran on the following dates. . .”56 or three years after each Plaintiff retired with
time bars that limit Plaintiffs’ claims.57 Notably, this issue is raised for the first time
in this first dispositive motion, and this Court will not attempt to reconcile the

inconsistent positions taken by Defendant. For purposes of this record, the Court

 

53 See Def.’s Opening Br., Ex. P.

54 This Court does not address Defendant’s argument that a one-year statute of limitation under 10
Del. C. § 8111 also applies in this case because the Court does not address whether there is a
private right of action and the issue for the fact-finder focuses on breach of contract claims.

55 Def.’s Opening Br. at 28. The Complaint was filed on June 22, 2016, therefore Defendant argues
that Plaintiffs are barred from recovering damages prior to June 22, 2013, or three years prior to
the Complaint being filed. Ia’. at 26-27.

55 Def.’s Reply Br. at 15.

57 See Def.’s Opening Br. at 26-28; Def.’s Reply Br. at 15.
18

accepts Plaintiffs’ arguments that a genuine issue of material fact exists whether
Defendant’s failure to provide benefits constitute ongoing breaches. Depending on
the evidence presented, the Court will consider a clearer argument from Defendant
that may limit recovery as to the two remaining Plaintiffs.

ln addition, Messieurs Martin and Malloy have established the existence of
genuine issues of material fact in support of their claims. One dispute is whether the
Chief of Fire was aware of the mandates regarding his obligations to the retiring
firefighters who may have qualified for benefits under Policy 402.1. Under Policy
402.1, the “Chief of Fire shall notify the Director of Personnel of a law enforcement
officer separating from employment with the City of Wilmington who may qualify
for this benefit due to the circumstances of his separation.”58 Through deposition,
the record establishes that the former Chief of Fire, Willie J. Patrick, Jr., was not
aware of his responsibility to notify the Director of Personnel.59 Yet, there is
evidence that Mr. Patrick must have known of the Policy because he sent a
Memorandum in June of 2007 to the Director of Personnel on behalf of Mr. Shabazz

(and others) requesting benefits under Policy 402.1.60 A factual dispute exists

 

58 Policy 402.l at 2 (emphasis added).
59 Pls.’ Answering Br., Ex. B at 12.

60 Def.’s Opening Br., Ex. P.

19

whether the Chief of Fire had knowledge of the Policy and notified the Director of
Personnel that a retiring employee may qualify for additional benefits.61

The record also establishes that some other retired employees applied and
received benefits under the Policy while others were unaware that they could apply
despite prior determinations by Defendant that they were injured in the line of duty
and may have qualified under Policy 402.1. The allegations of disparate and
arbitrary use of the Policy as well as what was known regarding the obligations under
the policy are in dispute as to remaining Plaintiffs. With all reasonable inferences
drawn in favor of Plaintiffs, there exist genuine issues of material fact that preclude
summary judgment as to Plaintiffs Elbert Martin and Kevin Malloy.

VI. CONCLUSION

Plaintiffs have not satisfied their burden under Superior Court Civil Rule 56
and therefore Plaintiffs’ Motion for Summary Judgment is DENIED. Defendant
has satisfied its burden under Rule 56 as to some Plaintiffs and the Court finds
summary judgment is GRANTED in favor of Defendant as to Plaintiffs James
Brown, Barry Yerger, Robert Cunningham, Michael Lewis, Juan Gonzalez,

Margaret Evans, and Ameen Shabazz. Because there exist genuine issues of material

 

61 See generally Policy 402.1.

20

fact as to Plaintiffs Elbert Martin and Kevin Malloy’s breach of contract claims,

Defendant’s Motion for Summary Judgment is DENIED, as to these Plaintiffs.

line vivian L. Mediniiia

cc: All Counsel of Record (via File&Serve)

IT IS SO ORDERED.

 

 

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