IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

EMPLOYEE CAROL POWELL, and
CORRECTIONAL OFFICER RONALD
HOLCOMB,

DAWUD MUHAMMAD, )
)
Plaintiff, )
)
v. ) C.A. NO. Nl4C-lZ-275 AML
)
WARDEN DAVID PIERCE, )
l\/IAJOR JEFFREY A. CARROTHERS, )
SUPPORT SERVICES MANAGER ) TRIAL BY JURY OF
TONYA SMITH, SUPPORT SERVICES ) TWELVE DEMANDED
)
)
)
)
)

Defendants.

Submitted: February 15, 2017
Decided: May 25, 2017

ORDER
Defendants’ Motion for Summary Judgment: GRANTED
l. The plaintiff, an inmate at a Delaware prison, contends he Was fired
from his job at the prison commissary in violation of the Delaware
Whistleblowers’ Protection Act (the “Act”). That law prohibits an employer from
discharging, threatening, or otherwise disciplining an employee “Whistleblower.”
The question in this case, quite simply, is Whether the named defendants, Who
Worked in Various roles in the prison, Were the plaintiffs employer Within the
meaning of the Act. I conclude the defendants Were not the plaintiffs employer

and I therefore grant the defendants’ motion for summary judgment

FACTUAL BACKGROUND

2. Except as otherwise noted, the following facts are not disputed The
plaintiff, Dawud Muhammad, is an inmate at J ames T. Vaughn Correctional Center
(“JTVCC”). Muhammad was employed at the prison commissary until he was
fired after he was found in possession of commissary items for which he could not
provide proof of purchase. The defendants are or were staff members at JTVCC.
Defendants David Pierce and Jeffrey A. Carrothers were the warden and security
superintendent, respectively, at JTVCC during the events in questionl Defendants
Tonya Smith, Carol Powell, and Ronald Holcomb all worked in various capacities
in the commissary (referred to collectively with Warden Pierce and Mr. Carrothers,
“Defendants”).Z

3. In approximately May 2014, the Delaware State Police (“DSP”)
initiated an investigation into the commissary’s operation at JTVCC and
specifically into alleged improprieties by staff members.3 Muhammad contends he
cooperated in the investigation and was interviewed by the DSP. There is a factual
dispute as to whether any of Defendants knew Muhammad cooperated in the

investigation For purposes of the pending motion, I will assume Defendants knew

 

1 Opening Br. 4 & Ex. A.
2 Id. at Ex. B-D.
3 Id. atEx. A, 3.

about Muhammad’s involvement The investigation did not lead to any charges or
disciplinary action against anyone employed at JTVCC.4

4. On August 26, 2014, Department of Correction (“DOC”) officers
conducted a search of Muhammad’s cell.5 The record supports an inference that
the search was not at random, but instead was targeted to Muhammad’s cell
particularly. During the search, DOC officers found several food items for which
Muhammad could not provide commissary receipts.6 Possession of commissary
items without proof of purchase is a violation of prison rules. As a result of this
violation, Muhammad was suspended from his jobs at the commissary and the
JTVCC gym.7 Muhammad ultimately regained his job at the gym, though not at
the commissary.

5. Muhammad filed this action on December 22, 2014, alleging he was
terminated from his employment in violation of the Act. Specifically, Muhammad
contends his cell was searched in retaliation for his cooperation with the
investigation of commissary staff and that the contraband found in his cell was a
pretext for his termination from his employment After discovery, Defendants
moved for summary judgment This is my decision on that motion after briefing

and argument

 

4 Id. at Ex. A.
5 Id. at Ex. E.
6 ld.
7 Id.

ANALYSIS

6. Sumrnary 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

”8 When considering a motion for

party is entitled to a judgment as a matter of law.
summary judgment, the evidence and the inferences drawn from the evidence are
to be viewed in the light most favorable to the nonmoving party.9 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.”10 A party
seeking summary judgment bears the initial burden of showing that no genuine
issue of material fact exists.11 If` the movant makes such a showing, the burden
then shifts to the nonmoving party to submit sufficient evidence to show that a
genuine factual issue, material to the outcome of the case, precludes judgment
before trial.12

7. Defendants contend they are entitled to summary judgment because

they were not Muhammad’s “employer” within the meaning of the Act and

 

8 Super. Ct. Civ. R. 56(0).

9 Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995); Judah v. Del. Trust Co., 378 A.2d 624,
632 (Del. 1977).

10 Marm v. Gopez, 1994 WL 45338, at *1 (Del. super Jan. 18, 1994) (citing Mem'll v. Cro¢hall-
Am., lnc., 606 A.2d 96, 99-100 (Del. 1992)).

11 Moore v. Sizemore, 405 A.2d 679, 680-81 (Del. 1979).

12 Id.; see also Brzoska, 668 A.Zd at 1363.

therefore cannot be held liable under that Act. They alternatively contend they are
shielded from suit by qualified immunity. Finally, Defendants raised for the first
time at oral argument a third basis for judgment as a matter of law: that
Muhammad is not an “employee” within the meaning of the Act. Muhammad, on
the other hand, argues that disputed issues of material fact remain and require
presentation of this case to a jury. Those disputed facts relate to Defendants’
knowledge of Muhammad’s participation in the investigation, the reasons
Muhammad’s cell was searched, whether the items discovered during the search
were a proper basis for Muhammad’s termination, and the reason Muhammad was
terminated from the commissary.

8. Under the Act, an employer may not

discharge, threaten, or otherwise discriminate against an employee

regarding the employee’s compensation, terms, conditions, location,

or privileges of employment . . . [b]ecause the employee, or a person

acting on behalf of the employee, reports or is about to report to a

public body, verbally or in writing, a violation which the employee

knows or reasonably believes has occurred or is about to occur, unless
the employee knows or has reason to know that the report is false . . .
13

The Act defines “employer” as “any person, . . . corporation or other business

entity, including any department, agency, . . . or authority . . . in state, county or

 

13 19 Del. C. § 1703(1).

municipal government One shall employ another if services are performed for
wages or under any contract of hire, written or oral, express or implied.”14

9. Defendants argue that, even if Muhammad’s cell was searched or he
was terminated due to his participation in the DSP investigation, the individual
Defendants were not Muhammad’s employer and therefore are not liable to him
under the Act. Defendants’ argument is supported by several previous decisions of
this Court.15 ln each such case, this Court dismissed claims brought under the Act
against agents of the plaintiffs employer. In those cases, the Court concluded
those individual defendants were not the plaintiffs employer, even though those
individuals may have supervised, or been involved in a decision to fire, the
piaintiff.“

10. As in those cases, Defendants were not Muhammad’s employer. If he
was an “employee” under Delaware law,17 Muhammad was employed by the State

through DOC. Although, as Muhammad argues, the Act includes a “person”

 

141¢1. § 1702(2).

15 See smppel v. Henry, 2011 WL 55911, at *4-5 (De1. super. Jan. 4, 2011); Melrzer v. Cizy of
Wilm., 2008 WL 4899230, at *1-2 (Del. Super. Aug. 6, 2008); Postell v. Eggers, 2008 WL
134830, at *5 (Jan. 15, 2008).

16 Stoppel, 2011 WL 55911, at *4 (“Neither of the moving defendants paid Stoppel’s wages or
contracted for her hire in their individual capacities While the moving defendants’ supervisory
roles may have entailed ordering Stoppel to ‘perform services’ and otherwise acting on behalf of
Stoppel’s employer (i.e., DHSS), such activities do not confer employer status under the Act.”);
see also Meltzer, 2008 WL 4899230, at *1-2.

17 See Walls v. Dept. of Corr., 663 A.2d 488 (Table) (Del. 1995) (concluding an inmate is not an
“employee” under the Minimum Wage Act of Title 19 of the Delaware Code); Eaton v. Coupe,
2017 WL 626614, at *4 (Del. Super. Feb. l4, 2017) (extending Walls to the meaning of
“employee” in the Delaware Whistleblowers’ Protection Act).

6

within the definition of “employer,” that person must employ another “for wages
or under [a] contract of hire . . . .”18 Defendants may have made decisions
regarding Muhammad’s hiring and firing, and may have supervised him while he
was employed, but they did not pay Muhammad’s wages or contract for his
services. Muhammad’s claim under the Act, if any, lies solely against his
employer, not the agents of his employer. None of the disputed factual issues
Muhammad identifies is material to this interpretation of the Act and those issues
therefore do not preclude Defendants’ motion.

11. Having concluded that Muhammad’s claim against Defendants does
not state a cause of action under the Act, I need not reach the alternative arguments
raised in the Motion.19

For the foregoing reasons, Defendants’ Motion for Summary Judgment is

m)wr£/

Migail'l\/I. EeGroz£/Judge

GRANTED. IT IS SO ORDERED.

Original to Prothonotary
cc: Dawud Muhammad, pro se (SBI # 00158650)
Stuart B. Drowos, Deputy Attorney General

 

18 19 Del. C. § 1702(2).

19 l note for the record, however, that Defendants’ argument regarding Muhammad’s status as an
“employee,” which was raised for the first time at oral argument, was not timely raised and
therefore was barred. See, e.g. Solway v. Kent Diagnostic Radiology Assoc., P.A., 2014 WL
948318, at *2 (Del. Super. Feb. 26, 2014); Paikin v. Vigilant Ins. Co., 2013 WL 5488454, at *3
n.12 (Del. Super. Oct. 1, 2013).

