IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

MICHELLE STEINHOUSER, )
)
Plaintiff, )
)
v. )
) C.A. No. N18C-04-125 MMJ
UNIVERSITY OF DELAWARE, )
)
)
Defendant. )
)
)
)

Submitted: May 22, 2019
Decided: June 4, 2019

Upon Defendant’s Motion for Summary Judgment
DENIED.

Gary W. Aber, Esq. (Argued), Attorney for Plaintiff

Randall S. MacTough, Esq., James D. Taylor, Jr., Esq., William E. Manning, Esq.
(Argued), Saul, Ewing, Arnstein, & Lehr, LLP, Attorneys for Defendant

JOHNSTON, J.
PROCEDURAL AND FACTUAL CONTEXT

This action involves an employment dispute between Plaintiff and
Defendant. The facts are presumed in favor of Plaintiff for purposes of this

motion. Plaintiff was employed by Defendant as a bus driver. On various
occasions, Plaintiff reported safety violations or dangerous conditions existing on
her bus to her supervisors. Plaintiff alleges that after she brought these issues to
her supervisors’ attention, they began to harass her. Plaintiff filed a formal, written
complaint with University of Delaware’s Human Resources Department in January
2016.

Plaintiff was involved in an accident in April 2016. According to Plaintiff, a
rider falsely alleged that Plaintiff closed an automatic door on her improperly.
Following the rider’s allegations, Plaintiff was arrested, but the charges were
dropped. Defendant terminated Plaintiff shortly thereafter. Plaintiff alleges that
Defendant caused Plaintiff to be arrested, and that action was wrongful. Plaintiff
also alleges that Defendant’s termination of Plaintiff violates Delaware’s

Whistleblower Protection Act. Defendant has moved for summary judgment.

STANDARDS OF REVIEW
Summary Judgment
Summary judgment is granted only if the moving party establishes that there
are no genuine issues of material fact in dispute and judgment may be granted as a

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

 

! Super. Ct. Civ. R. 56(c).
party. Summary judgment may not be granted if the record indicates that a
material fact is in dispute, or if there is a need to clarify the application of law to
the specific circumstances.? When the facts permit a reasonable person to draw
only one inference, the question becomes one for decision as a matter of law.’ If
the non-moving party bears the burden of proof at trial, yet “fails to make a
showing sufficient to establish the existence of an element essential to that party’s

case,” then summary judgment may be granted against that party.°

Delaware’s Whistleblower Protection Act
Count II is brought under the provisions of Delaware’s Whistleblower
Protection Act (“DWPA”), 19 Del. C. § 1701 et. seq. The statute provides
protection to employees pursuant to 19 Del. C. § 1703:

An employer shall not discharge, threaten, or otherwise
discriminate against an employee regarding the employee’s
compensation, terms, conditions, location, or privileges of
employment:

* EY *
(4) Because the employee reports verbally or in writing

to the employer or to the employee's supervisor a

violation, which the employee knows or reasonably

believes has occurred or is about to occur, unless the
employee knows or has reason to know that the report is
false. Provided, however that if the report is verbally

 

2 Burkhart v. Davies, 602 A.2d 56, 58—59 (Del. 1991).
3 Super. Ct. Civ. R. 56(c).

4 Wooten v. Kiger, 226 A.2d 238, 239 (Del. 1967).

> Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

3
made, the employee must establish by clear and
convincing evidence that such report was made...°
ANALYSIS
In an action brought for violating the DWPA, the employee has the burden
of showing that the “primary basis” for the discharge was that the employee
undertook an act protected pursuant to Section 1703.’ Further, the Delaware
Supreme Court has determined that even if there exists just cause for termination,
that determination does not preclude the jury from determining the issue of
whether that cause was the “primary basis” for the termination.®
Under the DWPA, an employee is protected from retaliation when the
employee reasonably believes that a violation is occurring or is about to occur.’
Plaintiff reported several safety issues over a four-month period. The items
Plaintiff reported were safety-related and, in many instances, were required to be
reported under 49 C.F.R. 396.11(a). Plaintiff was required to submit a Driver
Vehicle Inspection Report (“DVIR”) at the end of each work day. Between
December 2015 and March 2016, Plaintiff reported the following violations:
1. Steering issues, pursuant to 49 C.F.R. § 396.11(a)(ii1);

2. Mirror issues, pursuant to 49 C.F.R. § 396.11(a)(viii);
3. Tire issues, pursuant to 49 C.F.R. § 396.11(a)(v);

 

© 19 Del. C. § 1703(4).

719 Del. C. § 1708.

8 Town of Cheswold v. Vann, 9 A.3d 467, 472 (Del. 2010).
° 19 Del. C. § 1703(4).
Headlight issues, pursuant to 49 C.F.R. § 396.11(a)(iv);
Brake issues, pursuant to 49 C.F.R. § 396.11(a)(ii);
Rear door light issues;

Light issues, pursuant to 49 C.F.R. § 396.11(a)(iv);
Heavy exhaust fumes; and

Washer pump & fluid issues, pursuant to 49 C.F.R. §
396.11(a)(vi).

2S os =

Defendant argues that any reported violation must be a “serious deviation”
from safety standards to be considered a violation under the DWPA. Defendant
argues that “it is doubtful that Plaintiff really believed, at the time of her required
daily inspection reports, that she was blowing the whistle on ‘serious’ violations.”

The Court finds that, in viewing the facts in a light most favorable to
Plaintiff, there are a number of genuine issues of material fact in dispute. Whether
or not Plaintiff has shown that the primary basis for her termination was in
violation of 19 Del. C. § 1703(4) is a question of fact for the jury to determine.
Additionally, whether Plaintiff reasonably believed that she was reporting
violations that were occurring or were about to occur is a question of fact for the
jury to determine. Finally, whether the alleged violations were “serious
deviations” from applicable safety standards remains a question of fact to be

determined by the jury.
CONCLUSION

The Court finds that there are genuine issues of material fact still in dispute.
Whether or not Plaintiff reasonably believed she was reporting violations that were
“serious deviations” from applicable safety standards is a question of fact still in
dispute. Whether the primary basis for Plaintiff's termination was in violation of
Delaware’s Whistleblower Protection Act is a fact that must be determined by the
jury.

THEREFORE, Defendant’s Motion for Summary Judgment is hereby
DENIED.

IT ISSO ORDERED.

 

The HoAorable Myty M. Johnston
