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Callan v. City of Dover

United States District Court, D. Delaware

August 26, 2014

Mark E. Callan, Plaintiff,
CITY OF DOVER, a municipal corporation, and ANTHONY DePRIMA, in his individual and official capacities, Defendants

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Timothy J. Wilson, Esq., The Wilson Firm, LLC, Newark, DE, Attorney for the Plaintiff.

Daniel A. Griffith, Esq., Whiteford Taylor Preston, LLC, Wilmington, DE, Attorney for the Defendants.

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Memorandum Opinion

Richard G Andrews, U.S. DISTRICT JUDGE.

Presently before the Court is Defendants' Motion for Summary Judgment. (D.I. 53). This motion arises from the Plaintiff's Family and Medical Leave Act, Americans with Disabilities Act, and § 1983 claims. (D.I. 1). This matter has been fully briefed. (D.I. 54, D.I. 55, D.I. 58). For the reasons that follow, the Defendants' Motion for Summary Judgment is DENIED IN PART and GRANTED IN PART.

I. Background

Plaintiff Mark E. Callan began working as the City of Dover's Information Technology Director on February 26, 1996. (D.I. 55 at 6). The Plaintiff has been treated consistently for depression, specifically Dysthymic personality, since the mid-'80s. (D.I. 54-1 at 12). He has taken anti-depressants (including Zoloft and Lexapro) since that time. ( Id. ). The Plaintiff's wife was diagnosed with cancer in July 2002 and passed away in September 2009. ( Id. ; D.I. 55 at 6). From 2002 to 2009, the Plaintiff would intermittently take time off for family leave, family medical leave, and mental health treatment.[1] (D.I. 54-1 at 14). On July 1, 2009, just before his wife's passing, the Plaintiff received

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his annual performance evaluation. (D.I. 56-2 at 31). This performance evaluation was generally positive.[2] ( Id. ) The Plaintiff's performance evaluations from 2006-08 were similarly positive, with performance grades ranging from 3 to 5. (D.I. 56-1 at 38-55; D.I. 56-2 at 1-44). Following his wife's passing, the Plaintiff began to miss work on a frequent, less predictable basis. (D.I. 54-1 at 47).

On January 8, 2010, the Plaintiff met with Anthony DePrima, the City Manager, for one of their monthly meetings. (D.I. 54-1 at 21). During this meeting, DePrima brought up exit interviews by two of the IT department's former employees, Lorri Moore and Aaron Officer. ( Id. at 22). The first exit interview was with Aaron Officer on July 10, 2009.[3] (D.I. 54-3 at 2-5). Officer's exit interview revealed displeasure with the Plaintiff's micro-management. ( Id. ). Officer indicated that morale among the employees was excellent with the supervisor (the Plaintiff) removed. ( Id. ). Officer also stated that he would have stayed with the City of Dover if a different leader were in place. ( Id. ). Finally, Officer provided his account of the events leading to his early dismissal.[4] ( Id. at 4). According to Officer, he had only limited conversations with the Plaintiff following his two weeks' notice. ( Id. ). Shortly after his resignation notice, he requested the need for vacation, which the Plaintiff did not approve. ( Id. ). Officer subsequently called in sick instead. ( Id. ). On July 10, 2009, Officer asked the Plaintiff for the protocol for submitting his ID badge and keys. ( Id. ). The Plaintiff informed Officer that he would submit them the following Monday. ( Id. ). Officer indicated on his resignation letter that his last day was Friday, July 10. The Plaintiff stated that " if he was professional," Officer would work through Monday. ( Id. ). After some additional words, Officer went back to his desk. ( Id. ). The Plaintiff dismissed Officer shortly thereafter. ( Id. ). Officer also noted that the Plaintiff had raised his voice during their confrontation. ( Id. ). The Plaintiff, in an email to Hawkins, gave a different account of the events leading to Officer's early dismissal. ( Id. at 4-5). According to the Plaintiff, when Officer had requested the leave procedures, the Plaintiff reminded Officer that in exchange for granting his vacation, Officer agreed he would extend his time to the Monday after July 10. ( Id. ). Officer subsequently " gave him attitude" and walked out. ( Id. ). After waiting for Officer to come back with a " better attitude," which he did not, the Plaintiff dismissed him. ( Id. ). The Plaintiff also indicated that there were others present who could corroborate that there was no yelling between the two of them. ( Id. ).[5]

The second exit interview, performed on December 14, 2009, was with Lorri Moore. (D.I. 54-2 at 2). During her interview, Moore expressed dissatisfaction with the lack of teamwork between the IT staff and the IT Director (the Plaintiff). ( Id. ). Moore also indicated that the discipline in the department was inconsistent and largely depended on the Plaintiff's mood. ( Id. ). Similarly to Officer, Moore described the department's morale as positive

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with the Plaintiff removed, and poor when including the Plaintiff. ( Id. ). Further, like Officer, Moore stated that she would have stayed longer with the department had there been a different IT director in place.[6] ( Id. at 3). Moore also indicated that the Plaintiff influenced her decision to leave, as she " wasn't going to let Mark get her pension." ( Id. ). Kim Hawkins, the Human Resources Director and interviewer, noted that the Plaintiff yelled at both the staff and the vendors. ( Id. at 4). Hawkins also suggested that further discussions with both the IT staff and the Plaintiff were needed following both Moore and Officer's exit interviews. ( Id. ). Finally, Hawkins wrote that action may need to be taken towards the Plaintiff if the staff's comments were consistent and could be validated. ( Id. ).

After his meeting with DePrima, the Plaintiff met with Hawkins on January 13 and informed her that he was receiving counseling and taking medication for depression. (D.I. 56-5 at 7). Hawkins subsequently notified the Plaintiff that either he or his medical provider would have to fill out FMLA paperwork. ( Id. ). Hawkins received the Plaintiff's FMLA paperwork on January 19, and the City of Dover approved the Plaintiff's application on January 20. (D.I. 54-5 at 2-5; D.I. 56-5 at 8). Hawkins also suggested to the Plaintiff that he inform DePrima of his health issues. ( Id. at 7; D.I. 56-7 at 1).

On January 22, 2010, Hawkins and DePrima held a meeting with the IT staff, to which the Plaintiff was not invited. (D.I. 56-5 at 16). Notes from this meeting corroborate both Officer and Moore's prior statements regarding the Plaintiff's micro-management and temper. (D.I. 54-6 at 2, 3). On January 25, DePrima and Hawkins met with the Plaintiff to discuss the IT staff's comments from the January 22 meeting. (D.I. 56-5 at 19-20). Following the meeting, the Plaintiff went home and the next day sent an email to his staff, explaining his absence from work the previous day, as well as his mental condition following his wife's passing. (D.I. 54-1 at 29; D.I. 54-8 at 2). On January 26, the same day the Plaintiff sent his IT staff the email, the Plaintiff met with DePrima.[7] (D.I. 54-1 at 30). According to the Plaintiff, DePrima was upset that the Plaintiff had sent the email, that he had not given the Plaintiff the rest of the 25th off, and was docking him pay for the hours missed from the 25th and 26th. ( Id. ).

DePrima and Hawkins had similar meetings with the IT staff on February 24, 2010, May 19, 2010, and July 20, 2010. (D.I. 54 at 6). DePrima and Hawkins also had follow-up meetings with the Plaintiff to discuss the IT staff's concerns. ( Id. ). Following the February 26 meeting, DePrima requested that the Plaintiff subsequently submit a twelve bullet point action plan regarding how to improve the department. ( Id. ; D.I. 54-10 at 2). During a follow-up meeting on May 21, DePrima graded the Plaintiff's improvement as a 2 on a scale of 1 to 10. (D.I. 56-2 at 55). On June 14, 2010,[8] DePrima and Hawkins

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conducted their annual performance evaluation regarding the Plaintiff. ( Id. at 45). The performance evaluation was largely negative, with grades of 1 and 2. ( Id. at 46-48). The Plaintiff disagreed with DePrima's June 14 evaluation and responded with a rebuttal on June 25. (D.I. 54-12 at 2-9). The Plaintiff also requested permission to take his appeal to the City Council if an agreement could not be reached with DePrima. (D.I. 54-13 at 2). DePrima responded, stating the appeal ...

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