                                 SUPERIOR COURT
                                       OF THE
                                STATE OF DELAWARE

E. SCOTT BRADLEY                                                       1 The Circle, Suite 2
             JUDGE                                                GEORGETOWN, DE 19947


                                    July 13, 2018


Daniel C. Herr, Esquire                         Colleen K. Norris, Esquire
Law Office of Daniel C. Herr, LLC               New Castle County Office of Law
1225 N. King Street, Suite 1000                 87 Reads Way
Wilmington, DE 19801                            New Castle, DE 19720

Daniel J. Brown, Esquire
McCarter & English, LLP
405 N. King Street, 8th Floor
Wilmington, DE 19801

       RE: Grimaldi v. New Castle County, et al.
           C.A. No: N15C-12-096 (ESB)

Dear Counsel:

       This is my decision on the Motion for Summary Judgment filed by Defendants

Thomas Gordon and New Castle County in this case involving Gordon’s firing of

Plaintiff David Grimaldi. Gordon was the New Castle County Executive. Grimaldi

was Gordon’s Chief Administrative Officer. On October 27, 2015, Grimaldi’s car

was pulled over by an Elsmere police officer because the police officer thought that

Grimaldi’s driver’s license was suspended. During the traffic stop, Grimaldi told the

officer:   “You know your Mayor works for me. You know your Mayor works for

me, right.” Grimaldi tried to call the Elsmere Mayor, Steven Burg, during the traffic
stop purportedly for a ride home, but Grimaldi was unable to reach Burg because

Burg was in a New Castle County Council meeting. Burg was, in addition to being

the Elsmere Mayor, a New Castle County Executive Assistant and was subordinate

to Grimaldi. Gordon fired Grimaldi on October 29, 2015. Grimaldi told The News

Journal and others that he was fired because he questioned Gordon about his

relationship with the County’s Risk Manager, Cheryl McDonaugh.             On November

1, 2015, The News Journal ran an article quoting Gordon as stating that he fired

Grimaldi because he was “clearly trying to influence the outcome of his traffic stop.

It was clearly improper to say that to the officer and try to call the Mayor from the

car.”    Grimaldi filed this lawsuit against Gordon and New Castle County on

December 10, 2015. Grimaldi’s only remaining claim against the Defendants is his

stigma-plus defamation claim.

        I have granted the Defendants’ Motion for Summary Judgment, concluding that

(1) Grimaldi’s stigma-plus defamation claim fails because he did not ask the

Defendants for a name-clearing hearing, (2) Grimaldi, because of his high-ranking

County position and colorful past, was able to tell his side of the story about his

traffic stop and firing to all that were interested in it, and (3) Gordon is not personally

liable to Grimaldi for monetary damages because Gordon and the County did not

deny Grimaldi a name-clearing hearing.

                                             2
                                  STANDARD OF REVIEW

       This Court will grant summary judgment only when no material issues of fact

exist, and the moving party bears the burden of establishing the non-existence of

material issues of fact.1 Once the moving party meets its burden, the burden shifts to

the non-moving party to establish the existence of material issues of fact.2 The Court

views the evidence in a light most favorable to the nonmoving party.3 Where the

moving party produces an affidavit or other evidence sufficient under Superior Court

Civil Rule 56 in support of its motion and the burden shifts, the non-moving party

may not rest on its own pleadings, but must provide evidence showing a genuine

issue of material fact for trial.4 If, after discovery, the non-moving party cannot make

a sufficient showing of the existence of an essential element of the case, then

summary judgment must be granted.5 If, however, material issues of fact exist or if

the Court determines that it does not have sufficient facts to enable it to apply the law




       1
           Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
       2
           Id. at 681.
       3
           Id. at 680.
       4
           Super. Ct. Civ. R. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
       5
        Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991), cert. den., 112 S.Ct. 1946 (1992);
Celotex Corp., 477 U.S. 317 (1986).

                                                  3
to the facts before it, then summary judgment is not appropriate.6

                                        DISCUSSION

      The Defendants argue that Grimaldi’s stigma-plus defamation claim must be

dismissed because (I) Grimaldi did not ask for a name-clearing hearing; (II) Grimaldi

received a meaningful opportunity to clear his name through his access to the media

and by other means; and (III) Gordon is entitled to qualified immunity in his

individual capacity.

                                   I. Don’t Ask-Don’t Tell

      The Defendants argue that Grimaldi’s stigma-plus defamation claim must be

dismissed because he did not ask them to give him a name-clearing hearing after he

was fired. Grimaldi argues that the Defendants were required to offer to give him a

name-clearing hearing and did not do so. For a government employee, a cause of

action for the deprivation of a liberty interest without due process of law may arise

when an alleged government defamation occurs in the course of the employee’s

dismissal from government employment.7 The process that is due to the government

employee in such a situation is a name-clearing hearing.8 Of course, if a name-


      6
          Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
      7
          Patterson v. City of Utica, 370 F.3d 322, 330 (2004).
      8
          Id.

                                                4
clearing hearing is not given when required, then the government employee may

pursue a stigma-plus defamation claim and seek monetary damages for the failure to

be given a name-clearing hearing.9               Grimaldi admits that he did not ask the

Defendants for a name-clearing hearing at any time, not even when he filed his

lawsuit against the Defendants.          The Defendants raised Grimaldi’s failure to do so

as one of their affirmative defenses.

       The United States Supreme Court has not decided the issue. Seven Courts of

Appeals have decided the issue. Five of the seven require a plaintiff to ask for a

name-clearing hearing in order to maintain a stigma-plus defamation claim.1 0                   The

Eighth Circuit set forth the rationale for the requirement:

             [N]othing in our jurisprudence suggests that a government
       employee can legitimately sue for deprivation of the right to a post-
       termination hearing where he has never asserted the right before suing
       for damages. Allowing an employee to claim damages for being
       deprived of a hearing never requested would greatly expand government
       employers’ potential liability and force such employers prophylactically
       to offer name-clearings when it is not all clear that the employee is

       9
            Patterson v. City of Utica, 370 F.3d 322, 337 (2d Cir. 2004).
       10
            E.g., Buntin v. City of Boston, 813 F.3d 401, 406 (1st Cir. 2015) (“the government must
have failed to comply with the employee’s request for a name-clearing hearing”); Bellard v.
Gautreaux, 675 F.3d 454, 462 (5th Cir. 2012) (plaintiff must show that “he requested a hearing to
clear his name”); Quinn v. Shirley, 293 F.3d 315, 323 (6th Cir. 2002) (“a plaintiff must request
and be denied a name-clearing hearing”); Crooks v. Lynch, 557 F.3d 846, 849 (8th Cir. 2009) (a
plaintiff “must prove he requested and was denied a name-clearing hearing”); O’Donnell v.
Barry, 148 F.3d 1126, 1140 (D.C. Cir. 1998) (holding the request for a name-clearing hearing
need not be explicit, but must be “reasonably clear”).


                                                  5
        entitled to – or even desires – one. It would also reward employees for
        lying in wait and later asserting a right that the employer had no reason
        to suspect the employee wanted to exercise in the first place. ...[W]e
        agree with the case law developed in other circuits that holds that an
        employee who fails to request post-termination process cannot later sue
        for having been deprived of it.11

        The Third Circuit has not decided the issue and the district courts within the

Third Circuit are split on the issue. The Parties have cited to eleven cases at the

District Court level within the Third Circuit that discuss whether or not it is the

responsibility of the employer to offer or the employee to ask for a name-clearing

hearing. The Defendants have cited six cases.12 All of the cases cited by the

Defendants have been decided in the Eastern District of Pennsylvania. Grimaldi has

cited five cases.13 All of the cases cited by Grimaldi have been decided in the

        11
             Winskowski v. City of Stephen, 442 F.3d 1107, 1111 (8th Cir. 2006).
        12
           Dean v. City of Coatesville, 2010 WL 1005142, at *4 (E.D. Pa. Mar. 17, 2010) (“the
better part of the district court cases in [the Third] Circuit ... have held that a plaintiff must have
requested a name-clearing hearing to proceed on a procedural due process claim in this
context.”); Greene v. Street, 2011 WL 2517144, at *4 (E.D. Pa. June 22, 2011) (“a name-
clearing hearing must be requested prior to bringing a liberty interest claim”); Schlichter v.
Limerick Township, 2005 WL 984197, at *8 (E.D. Pa. Apr. 26, 2005) (“an aggrieved employee
must plead and prove that he timely requested a name-clearing hearing and that the request was
denied.”); Hill v. City of Chester, 1994 WL 463405, at *7 n.8 (E.D. Pa. Aug., 1994) (“A request
for such a hearing is a prerequisite to making a claim under the liberty interest of the Due Process
Clause”), aff’d, 60 F.3d 815 (3d Cir. 1995); O’Connell v. County of Northampton, 79 F.Supp. 2d
529, 536 (E.D. Pa. 1999) (“even is plaintiff had been effectively discharged, his failure to see a
‘name-clearing’ hearing would bar his claim”); Freeman v. McKellar, 795 F.Supp. 733, 739
(E.D. Pa. 1992) (“even a discharged employee must allege that he timely requested a hearing to
clear his name and that the request was denied”).
        13
           Magni v. Times-Shamrock, 2016 WL 1060278, at *4 (M.D. Pa. Mar. 11, 2016) (“This
Court will not peremptorily cut off Plaintiff’s ability to proceed on a stigma-plus due process

                                                   6
Western District of Pennsylvania, the Middle District of Pennsylvania, and the

District of Delaware. Grimaldi has not offered a rationale for his argument that it is

the Defendants who should have offered to give him a name-clearing hearing after

Gordon fired him.

       I agree with the rationale of the Eighth Circuit and conclude that Grimaldi

should have asked the Defendants to give him a name-clearing hearing. I reach this

conclusion because it appears to be the prevailing view among the courts that have

addressed the issue and it makes the most sense for a number of reasons. One, it only

seems logical to me that if Grimaldi felt aggrieved as a result of his firing and wanted

to clear his name, then he should have asked the Defendants to give him a name-

clearing hearing. Quite simply, if you want something from your employer, then you

should ask your employer for it. Your employer might not, as the Eighth Circuit



claim where she has not alleged that she requested a name-clearing hearing and the Third Circuit
has not expressly declined to day that she must.”); Andrekovich v. Chenoga, 2012 WL 3231022,
at *9 n.3 (W.D. Pa. Aug. 6, 2012) (“Whether plaintiff ultimately can recover any one or more of
his alleged damages under such circumstances is best determined is and when it becomes
necessary to do so after full development of the record. Similarly, defendants’ attempt to find
shelter in the fact that plaintiff does not allege that he demanded a name-clearing hearing is wide
of the mark. Plaintiff is not required to do so.”); Smith v. Borough of Dunmore, 2011 WL
4458787, at *6 (M.D. Pa. Sept. 23, 2011) (“A plaintiff need not request a name-clearing hearing
in order to assert his claim.”); Erb v. Borough of Catawissa, 749 F.Supp.2d 244, 251 (M.D. Pa.
2010) (“A plaintiff’s failure to request such a hearing is not fatal to his claim.”); Gillespie v.
Hocker, 2015 WL 4468922, at *4 (D. Del. July 22, 2015) (“When an individual is deprived of a
liberty interest in reputation, the employee is entitled to a name-clearing hearing.”) (This Court
notes that the District Court did not make a finding on who’s responsibility it was to request a
name-clearing hearing, only that the employee was entitled to a hearing.).

                                                   7
pointed out, know that you want something. Moreover, as between Grimaldi and the

Defendants, Grimaldi was certainly in the best position to determine which claims,

if any, to pursue as a result of his firing. Grimaldi was also in the best position to

assess the strength of his claims. Only Grimaldi was in the position to know what he

meant when he told the Elsmere police officer that “You know your Mayor works for

me. You know your Mayor works for me, right.” If Grimaldi believed that he was

defamed in the course of his firing, then he certainly could have asked the Defendants

to give him a name-clearing hearing. Grimaldi never did. The Defendants certainly

did not believe that they had defamed Grimaldi. Grimaldi’s statement to the Elsmere

police officer certainly suggested that Grimaldi was trying to use his position to get

out of a traffic ticket. Indeed, Grimaldi did not tell the Defendants what his statement

meant until more than two years after he was fired when he testified at his deposition

that he was “just making conversation” with the Elsmere police officer. I know that

Grimaldi told everyone that Gordon fired him because he questioned Gordon about

his relationship with McDonaugh, but his explanation for what he told the Elsmere

police officer was a long time in coming and rings hollow. Two, Grimaldi has done

exactly what the Eighth Circuit warned about. After Grimaldi was fired, he quickly

told his side of the story to a number of County executives, politicians, and political

donors. Grimaldi also quickly spoke to the media multiple times, which publicized

                                           8
his side of the story for the public. Grimaldi then, just a little over a month after

being fired, filed a complaint against the Defendants for monetary damages. In doing

so, he has attempted to turn the usual remedy for a stigma-plus defamation claim –

a name-clearing hearing that affords no monetary remedy – into a claim for

substantial monetary damages and attorneys’ fees. Grimaldi went to considerable

lengths to clear his name by getting his side of the story out to both those he thought

should hear it and the public at large without a name-clearing hearing and is now

seeking monetary damages. This is precisely what the Eighth Circuit warned about.

I certainly agree that it is a legitimate concern. I have granted the Defendants’

Motion for Summary Judgment based on the Defendants’ argument that Grimaldi

should have asked the Defendants for a name-clearing hearing and that his failure to

do so prevents him from pursuing his stigma-plus defamation claim.

                        II. Grimaldi’s Name-Clearing Opportunities

      The purpose of a formal name-clearing hearing is solely “to provide the person

an opportunity to clear his name.”14 The Defendants argue that due process was

satisfied because Grimaldi had many ample and sufficient opportunities to clear his

name. They point out that Grimaldi raised his allegations about Gordon with several

high-ranking County executives, politicians, Gordon’s political donors, the


      14
           Codd v. Velger, 429 U.S. 624, 627 (1977).

                                               9
Democratic party, and the media (print, internet, radio, and social). Grimaldi argues

that a formal name-clearing hearing would have offered him a better opportunity to

address the conflicting news accounts of his traffic stop and firing.

                                    The Matthews Factors

      Due process, as the Defendants point out, is flexible.15                  The procedural

protections required depend on the rights and interests at stake in any particular

case.16 Thus, under Matthews v. Eldridge, this Court must balance three factors: the

private interests at stake, the governmental interests, and the value of procedural

requirements in that particular case.17 The Matthews factors are applied where, as the

Defendants allege in this case, an employee – Grimaldi – has received an opportunity

to clear his name despite not having had a formal name-clearing hearing.18                  In

situations like this, the employee has a private interest in being heard so that he can

refute the government employer’s stigmatizing statements.19                The government’s

interest is two-fold: (1) “preserving its official’s ability to make personnel decisions

and communicate the reasons for those decisions to the public, particularly

      15
           Matthews v. Eldridge, 424 U.S. 319, 334 (1976).
      16
           Graham v. City of Philadelphia, 402 F.3d 139, 146 (3d. Cir. 2005).
      17
           Matthews, 424 U.S. at 335.
      18
           Graham, 402 F.3d at 146-147.
      19
           Graham, 402 F.3d at 146.

                                               10
where...the decisions implicate matters of heightened public concern,” and (2)

“conserving public resources.”20 In evaluating the third factor, courts weigh the

“probable value” of a formal name-clearing hearing against the opportunities the

employee had to tell his side of the story.21

       1. Grimaldi’s Private Interests

       Grimaldi’s interests are substantial.     Gordon told the press that he fired

Grimaldi because Grimaldi used his position to get out of a traffic ticket. That

statement, if untrue, is certainly very damaging to Grimaldi’s interests.   Grimaldi

would like to clear his name so that he can find work. That is certainly an important

interest to Grimaldi. Grimaldi claims that he was not using his position to avoid a

traffic ticket and that the real reason that Gordon fired him was that he questioned

Gordon about his relationship with McDonaugh.

       2. The Defendants’ Interests

       The Defendants’ interests are also substantial. The Defendants certainly had

an interest in explaining why Gordon fired Grimaldi, particularly after the media

reported Grimaldi’s allegation that Gordon and McDonaugh, a subordinate employee,

were involved in a romantic relationship, and that he had been fired by Gordon


       20
            Id. at 147.
       21
            Id. at 146.

                                            11
because he had questioned Gordon about that relationship. The News Journal had

also obtained the video of Grimaldi’s Elsmere traffic stop and placed it online and

published Grimaldi’s statement to the Elsmere police officer about the Elsmere Mayor

working for him. The situation certainly cried out for an explanation from Gordon

as to why he fired Grimaldi. Was it because Grimaldi had abused his position one

too many times or was it because Gordon had grown tired of Grimaldi’s questions

about his relationship with McDonaugh?

      Moreover, Gordon and Grimaldi, aside from the controversy swirling around

Grimaldi’s traffic stop and firing, were already controversial figures. Gordon, as the

County’s Chief Executive and his then-Chief Administrative Officer, had some years

earlier faced charges in Federal Court that they had “devised and participated in a

scheme to defraud New Castle County and its citizens of the intangible right to their

honest services.”22 The charges related to Gordon’s alleged involvement in a private

developer’s efforts to get County land use approval for a golf course.23 Grimaldi had,

while the Chief Administrative Officer, been involved in a bar fight at the restaurant

“Pastabilities” in the City of Wilmington. Grimaldi called County Chief of Police

Elmer Setting to the scene even though the County police had no jurisdiction over the


      22
           U.S. v. Gordon, 183 Fed. Appx 202, 204 (3d. Cir. 2006).
      23
           Id.

                                               12
matter. Grimaldi then had Chief Setting improperly obtain the Wilmington police

report. Grimaldi also got into an unpleasant verbal exchange with Nancy Schanes,

an 84-year-old volunteer at the Rockwood Mansion. Schanes had volunteered at the

mansion for more than 30 years. Grimaldi and his girlfriend were in a restricted area

of the mansion when approached by Schanes. Schanes asked Grimaldi to identify

himself. Grimaldi responded to Schanes by telling her that “he owned the place.” An

unpleasant exchange then took place between Grimaldi and Schanes. Ultimately,

Schanes was told not to return to the mansion. The federal charges against Gordon

and his then-Chief Administrative Officer and the two incidents involving Grimaldi

were widely covered by the media. So, the County’s top two executives were facing

new allegations of misusing their respective positions and power. Grimaldi for using

his office to get out of a traffic ticket, which his comments to the Elsmere police

officer certainly suggest. Gordon for using his office to advance his girlfriend’s

career in the County and silence the person – Grimaldi – who was questioning that

relationship. What was left was for Gordon to explain why he had fired Grimaldi.

Gordon answered that question, stating that he did it because it was wrong for

Grimaldi to us his position to try to get out of a traffic ticket. As to the second

government interest – conserving County resources – a formal name-clearing hearing

would have certainly taken some time and expense. The Defendants argue that since

                                         13
both Grimaldi and Gordon had spoken to the media at length about Grimaldi’s traffic

stop and firing, it would be a waste of the County’s time and money to have a formal

name-clearing hearing.

      3. The Weighing Analysis

      After considering Grimaldi’s and the Defendants’ interests, as well as how

those interests were affected by the facts of this case, I conclude that the probable

value of a formal name-clearing hearing in a County office would have been next to

nil given the opportunities Grimaldi took advantage of to tell his side of the story.

Grimaldi had many opportunities, and did take advantage of those opportunities, to

tell the public and others his side of the story. Quite simply, Grimaldi has not

convinced me that a formal name-clearing hearing would have given him an

opportunity to accomplish any more than he did on his own.

      Grimaldi had many opportunities to tell his story to important people and to the

public because he was no ordinary County employee. Grimaldi was instead the

County’s Chief Administrative Officer, a position second only to Gordon. Grimaldi

also had been Gordon’s campaign manager. His former and current positions gave

him access to high-level County executives, County politicians, Gordon’s political

donors, and the Democratic party.      In addition to being a high-ranking County

executive, Grimaldi was also someone that the media and public had an interest in,

                                         14
albeit for the less than noble reasons. Grimaldi was, as the Chief Administrative

Officer, involved in a bar fight in a Wilmington restaurant, and a dispute with an

elderly female volunteer at the Rockwood Mansion. Both incidents were widely

covered by the media and certainly made Grimaldi a person of considerable interest

to the media. In sum, because of Grimaldi’s high-ranking County position and

penchant for getting involved in very public controversies, he had much more access

to the media and important people than the average employee would have had.24

Moreover, after Grimaldi was fired and the video of Grimaldi’s traffic stop was

published by the media, there was even more media interest in what he had to say. A

public figure with a high degree of access to the media – like Grimaldi – is treated

differently under the weighing analysis than a normal employee.25

      Grimaldi used all of this to his advantage after he was fired. Grimaldi spoke

to County Chief Human Resource Officer Christine Dunning and Deputy Chief

Administrator Officer Samuel Guy. Grimaldi spoke to high-ranking political figures

including Penrose Hollins, who was then and still is the President pro tem of the New

Castle County Council, and Ciro Poppiti, who was then and still is the New Castle

County Register of Wills. Grimaldi spoke to some of Gordon’s political donors and

      24
          Esposito v. Metro-North Commuter Railroad Comp., 856 F.Supp. 799, 807-808
(S.D.N.Y. June 30, 1994).
      25
           Laforgia v. Davis, 2004 WL 2884524, at *9 (S.D.N.Y. Dec. 14, 2004).

                                              15
the Democratic Party as well. In short, Grimaldi contacted those County executives

and political persons that he thought were important and that should hear his side of

the story. Grimaldi also used his computer skills to commandeer Gordon’s official

political Facebook and Twitter pages and change them to his own name with the

header “David Grimaldi 2016.” Grimaldi also reached the public through his easy

access to the media.      Grimaldi spoke with a reporter for The News Journal,

Delaware’s largest newspaper. Grimaldi gave the reporter his audio recording of his

conversation with Gordon when Gordon fired him. The News Journal ran an article

the next day which contained Grimaldi’s explanation of why he believed that Gordon

had fired him. Radio stations WDEL and WHYY also ran articles with Grimaldi’s

explanation of his firing. Grimaldi also appeared on radio station WDEL and told his

side of the story.   Quite simply, Grimaldi’s story was out there for anyone who was

interested in it.

       Notwithstanding that, Grimaldi argues that a formal name-clearing hearing

would have (a) reached a definitive conclusion regarding the conflicting stories about

the traffic stop and why Gordon fired him, (b) legitimatized and allowed him to better

address the conflicting stories about his traffic stop, (c) legitimatized and allowed him

to better contest Gordon’s false statements about why he fired him, and (d) not

burdened the County. I have concluded that Grimaldi is wrong on all counts.

                                           16
                       a. The Nature of a Name-Clearing Hearing

       Grimaldi argues that a formal name-clearing hearing would have reached a

definitive conclusion about the traffic stop and why Gordon fired him. Grimaldi is

wrong about the nature of a name-clearing hearing. The sole purpose of a formal

name-clearing hearing is to give the employee an opportunity to clear his name.

There is no definitive conclusion as to whether the employee has, in fact, cleared his

name.26

                                    b. The Traffic Stop

       Grimaldi argues that a formal name-clearing hearing would have given him a

better opportunity to explain the conflicting stories about his traffic stop. I find

Grimaldi’s argument baffling. There was a video of the traffic stop. The media

obtained the video and posted it online for the public to both listen to and watch. The

video contained Grimaldi’s statement to the Elsmere police officer, “You know your

Mayor works for me. You know your Mayor works for me, right.” Gordon watched

the video and stated that he thought Grimaldi was trying to use his position to get out

of a traffic ticket. Given Grimaldi’s statement at the traffic stop and his past incidents

where he used his position to (1) have the County Police Chief intervene on his behalf



       26
          Wojcik v. Massachusetts State Lottery Commission, 300 F.3d 92, 104 (1st. Cir. 2002);
Quinn v. Shirey, 293 F.3d 315, 321 (6th Cir. 2002).

                                              17
with the Wilmington police, and (2) bully an elderly lady, Gordon’s conclusion seems

eminently reasonable. Grimaldi offered no explanation of his statement at the time

to Gordon or apparently anyone else.     Grimaldi’s explanation over two years later

was that he was “just making conversation” with the police officer. That rings rather

hollow to me. Grimaldi offers no explanation for why he waited so long to tell his

side of the story about the traffic stop and he does not say what he would have

otherwise offered about the traffic stop at a name-clearing hearing if he had had one.

Quite simply, Grimaldi has nothing new to offer.

                            c. Gordon’s False Statements

      Grimaldi argues that a name-clearing hearing would have given him a better

ability to contest Gordon’s false statements about why he fired him. Grimaldi,

despite having (1) worked for Gordon for years, (2) secretly recorded over 1,000

conversations with County Officials and employees while he was the Chief

Administrative Officer, and (3) having litigated this case for over two years, offers

only two examples of how he would have contested Gordon’s false statements about

his firing if he could have only had a name-clearing hearing. One, Grimaldi states

that Gordon testified at his deposition that he was going to terminate Grimaldi the

next time he came into the office and offer him a severance package. Grimaldi states

further that Gordon also testified at his deposition that Grimaldi was out sick on

                                          18
October 28, 2015. Grimaldi says that it is irrefutable that he was in the office on

October 28, 2015, and October 29, 2015. That is all Grimaldi has to say about that.

I assume his point is that Gordon never intended to fire him at all because Gordon did

not do so when Gordon saw him on October 28, 2015, and only did so a day later over

the phone because Grimaldi was pestering him about McDonaugh. I simply do not

find that fact to be of much consequence. I note that Gordon testified at his deposition

that he had formed the decision to fire Grimaldi on the morning of October 29, 2015.

I think, at best, Grimaldi has an argument about Gordon’s hazy recollection of an

event over two years after it happened. Grimaldi told everyone that would listen that

Gordon fired him because he questioned Gordon about his relationship with

McDonaugh. Grimaldi had evidence to support his belief and he had used it right

after he was fired. This came up during Grimaldi’s phone call with Gordon and

Deputy Chief Administrative Officer Samuel Guy where Gordon fired Grimaldi.

Grimaldi taped the phone call.    The tape, which Grimaldi had, supports Grimaldi’s

rationale for his firing. Gordon does defend McDonaugh during the phone call.

Gordon did fire Grimaldi immediately after the following exchange between the two

men:

       Mr. Grimaldi: Every day there’s an incident with Cheryl, but you
       defend her one hundred percent because of your personal relationship.
       That’s why.

                                           19
       Mr. Gordon: Hey, fuck you, Dave.

       Mr. Grimaldi: You know that’s true.

       Mr. Gordon: You’re fired.

       Mr. Grimaldi: You know that’s true. What is that, your girlfriend? Is
       she your girlfriend?

       This is nothing new. Grimaldi had the tape of his conversation with Gordon

and he gave it to The News Journal on October 30, 2015, the day after Gordon fired

him. Gordon’s conflicting testimony about when he decided to fire Grimaldi adds

little to this point. The tape is far more convincing and Grimaldi had it and he used

it to clear his name at the time.

       Two, Grimaldi argues that Christine Dunning’s deposition testimony

corroborates his belief that Gordon fired him for questioning him about his

relationship with McDonaugh. This goes back to the morning of October 29, 2015.

County Chief Human Resources Officer Christine Dunning knocked on Grimaldi’s

door at work and told him “half of [her] department could possibly file hostile work

environment [] complaints concerning McDonaugh.”           Gordon then walked in

Grimaldi’s office and responded to Dunning by saying “something like, well, half

your fucking department will be fired.” This is also nothing new. Grimaldi knew

about this at the time and had a witness – Dunning – to it, just like he had a witness



                                          20
– Guy – to his firing. Grimaldi could have at any time that he spoke to the media

repeated the comments made by Dunning and Gordon and made it clear that Dunning

could vouch for them. Indeed, the subject is discussed in The News Journal article

that appeared on November 2, 2015. It states, in part, following:

              Grimaldi contends he was fired after questioning Gordon over the
       perceived influence of the county’s risk manager, Cheryl McDonaugh,
       saying there were several “hostile workplace complaints” filed by other
       employees against her. Grimaldi said he warned Gordon that if he didn’t
       take action, “You are going to lose your whole government.”

                                 d. Unnecessary Burden

       Given all that Grimaldi has accomplished through the media and other avenues

available to him, there is nothing more a name-clearing hearing would accomplish

other than being an unnecessary burden on the County.

       A formal name-clearing hearing would not have allowed Grimaldi to

accomplish anymore than he did on his own. To be frank, Grimaldi just does not

have anything to say now that he had already not said when he got fired. Where an

employee has accomplished on his own what a name-clearing hearing is intended to

afford – an opportunity to clear the employee’s name – there is no need for a formal

name-clearing hearing.27 I certainly agree with that and have granted the Defendants’



       27
          Laforgia v. Davis, 2004 WL 2884524, at *9 (S.D.N.Y. Dec. 14, 2004); Baden v. Koch,
799 F.2d 825, 832-33 (2d. Cir. Aug. 21, 2986).

                                             21
Motion for Summary Judgment based on the Defendants’ argument that Grimaldi did

all that could be done to clear his name at the time of his firing and that a formal

name-clearing hearing at the time of his firing, or any other time, would not have

offered Grimaldi a better opportunity to clear his name.

                                    III. Qualified Immunity

       Gordon argues that he is immune from personal liability for Grimaldi’s claim

for monetary damages. I agree. Government officials are immune from personal

liability for civil damages arising from a constitutional violation unless the plaintiff

can show: “(1) that the official violated a statutory or constitutional right, and (2) that

the right was ‘clearly established’ at the time of the challenged conduct.”28 Gordon

agrees that Grimaldi had a right to a name-clearing hearing. However, Gordon

argues that Grimaldi had to ask for a name-clearing hearing. I agreed with that

argument. Thus, Gordon did not violate Grimaldi’s constitutional rights. Even if

Grimaldi is ultimately correct in his argument that Gordon – presumably through the

County – had to offer him a name-clearing hearing instead of having him ask for one,

that position was hardly “clearly established’ at the time. Therefore, I have granted

Gordon’s Motion for Summary Judgment on this argument.




       28
            Harlow v. Fitzgerald 457 U.S. 800, 818 (1982).

                                                22
                                        CONCLUSION

       I have granted the Motion for Summary Judgment filed by Defendants Thomas

Gordon and New Castle County, concluding that (1) Grimaldi’s stigma-plus

defamation claim fails because he did not ask the Defendants for a name-clearing

hearing, (2) Grimaldi, because of his position and past, was able to tell his side of the

story to all that were interested in it, and (3) Gordon is not personally liable to

Grimaldi for monetary damages because Gordon and the County did not deny

Grimaldi a name-clearing hearing.

       IT IS SO ORDERED.29

                                              Very truly yours,

                                              /s/ E. Scott Bradley

                                              E. Scott Bradley

ESB/sal

oc:    Prothonotary




       29
           Since I have granted the Defendants’ Motion for Summary Judgment there is no longer
a need to decide the Defendants’ Motions in Limine as they are now moot.

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