Submitted: February 25, 2015
Leo John Ramunno, Esquire, Wilmington, Delaware, Attorney for Plaintiff.
Laura T. Hay, Esquire, Assistant County Attorney, Megan Sanfrancesco, Esquire, Assistant County Attorney, New Castle County Office of Law, New Castle, Delaware, Attorneys for Defendants.
PAUL R. WALLACE, JUDGE
Plaintiff, David Naples, has sued his former employer and certain supervisors for claimed violations of his constitutional rights to due process and for defamation. His lawsuit arises out of events that took place in 2009, when he was terminated for breaching the New Castle County Department of Land Use (the "Department") policies relating to his job as an Assistant Land Use Administrator. After conducting an investigation into his work conduct, the Department recommended his termination – a decision that was upheld by the Acting Chief of Human Resources after she conducted a pretermination hearing. Mr. Naples then exercised his appeal rights under the New Castle County Code ("County Code") and requested a hearing before the Human Resources Advisory Board ("HRAB"). The appeal hearing was not scheduled within the time frame prescribed by the County Code, and it was conducted in two separate sessions. The HRAB ultimately reversed the Department's decision to terminate Mr. Naples, finding that although there was just cause supporting a disciplinary decision, termination was too harsh a penalty. Mr. Naples was then reinstated after a five-month period of suspension without pay. He now brings constitutional and defamation claims against New Castle County (the "County") and against the named Defendants in their individual and official capacities. Defendants have moved for summary judgment as to all claims. For the reasons set forth below, the Defendants' motion is GRANTED.
II. Factual and Procedural Background
Mr. Naples worked as an Assistant Land Use Administrator, a merit employee position, in the New Castle County Department of Land Use from 2000 to 2009. His duties included managerial, supervisory, administrative and technical work within the Inspection Division – one of the Department's seven divisions. Mr. Naples resigned from his position for a short period of time from July to August, 2006. He left to start a job in Florida. When the Florida job fell through, the Department hired him back.
In 2007, while still employed by the Department, Mr. Naples began working part-time at a liquor store owned by Michelle Gillen. Mrs. Gillen is married to Larry Gillen, Mr. Naples' friend and a small business owner.
A. Investigation of Mr. Naples' Departmental Policy Violations
The events giving rise to this lawsuit commenced in March, 2009, when the Department's Assistant General Manager George Haggerty learned that Mr. Naples had facilitated the issuance of a permit to Mr. Gillen prior to the Board of Adjustment ("BOA") issuing a final written decision. Mr. Haggerty discussed the permit with Mr. Naples on March 20, 2009. Mr. Naples then sent Mr. Haggerty an email discussing his relationship with Mr. Gillen and his part-time employment at Mrs. Gillen's liquor store. In that email, Mr. Naples also disclosed his assistance with another of Mr. Gillen's permit applications about three months prior.
Mr. Haggerty consulted with the General Manager of Land Use, David Culver, and determined that an investigation was warranted to determine whether discipline was appropriate. Mr. Haggerty also contacted Mr. Naples' immediate supervisor, David Holston, and Frank Ruberto, a Land Use Administrator, to determine whether Mr. Naples had violated any other departmental policies warranting discipline. Mr. Culver submitted a memo to Mr. Haggerty detailing his knowledge of Mr. Naples' offenses. Additionally, Mr. Haggerty contacted the Acting Chief of Human Resources Officer, LaTonya Ashley, and informed her that an investigation into Mr. Naples' work history was being conducted.
On March 23, 2009, Mr. Culver and Mr. Haggerty met with Mr. Naples and advised him he was being suspended with pay. Mr. Haggerty then led an investigation into Mr. Naples' employment-related conduct.
During the course of the investigation, the Defendants learned that Mr. Naples had violated numerous other Department policies. Mr. Naples was issued five written discipline records. All five records were signed on April 14, 2009, by Mr. Culver, Mr. Ruberto, and Ms. Ashley. Mr. Naples' signature line indicates that on April 16, 2009, he refused to sign any of the notices.
The first discipline record detailed Mr. Naples' inappropriate contact with and solicitation of another public employee. On November 3, 2008 Mr. Naples emailed a Christiana School District ("CSD") employee, recommending his friend Mr. Gillen's product to reduce electrical usage. Mr. Naples had sent the email using the County's computer system, and he also forwarded the CSD employee's contact information on to Mr. Gillen on November 21, 2008. Mr. Naples then apparently contacted the CSD employee on December 5, 2008, inquiring as to whether she had received the information he had previously sent. This constituted Mr. Naples' first documented offense. It violated several New Castle County Personnel Policy ("NCC Policy") rules involving harming the County's reputation or public trust, and using County property for personal gain or personal business.The recommended action was a written reprimand with review for dismissal.
Mr. Naples' next documented offense involved his approval of a plumbing permit without the required permit application and requisite permit fee. This offense took place on April 24, 2008. It violated Departmental policies involving (1) seeking to prevent harm to the public trust and the County's reputation, and (2) refusal to follow Departmental policies. The recommended action was suspension with review for dismissal.
The next discipline record documents Mr. Naples' inspection for Mr. Gillen's finished basement permit on April 29, 2005. Mr. Naples reportedly engaged in improper conduct harming the County's reputation and public trust, refused to follow Departmental policies and procedures, and violated provisions of the County Code when he performed the final inspection and waived a permit reinspection fee. Suspension with review for dismissal was recommended.
The next discipline record cites Mr. Naples for accepting a complimentary ticket from Mr. Gillen for a Dallas Cowboys' Game in Dallas, Texas, on or about September 15, 2008. The ticket value exceeded the County's defined de minimus value and was not entered into a gift log. Mr. Naples' accepting the ticket violated the Departmental gift policy. Suspension with review for dismissal was recommended.
The last documented offense involved Mr. Naples' most recent; it took place on March 18, 2009. According to the discipline record, Mr. Naples facilitated the issuance of a building permit for Mr. Gillen in contravention of the Departmental policy requiring the BOA to issue a signed decision granting a variance before a permit may be issued. The record further indicated that Mr. Naples failed to complete required inspection checklists and advice sections as required by Departmental policy. For all of these incidents, including the March 18 permit facilitation, Mr. Naples was cited for refusing to follow Departmental procedures and policies, and for engaging in improper conduct harming the County's reputation and public trust. Dismissal was recommended.
On April 14, 2009, Mr. Culver submitted a written recommendation to Ms. Ashley to terminate Mr. Naples in accordance with the County Code. The letter attached the five disciplinary records mentioned above. As the Code provides, Mr. Naples was suspended without pay pending his pretermination hearing.
B. Mr. Naples' Pretermination Hearing
Ms. Ashley sent a notice to Mr. Naples on May 1, 2009, stating that she had received a recommendation for his termination, and that he had the right to request a pretermination hearing. Mr. Naples did so. Mr. Naples' pretermination hearing occurred on May 12, 2009, before Ms. Ashley. Mr. Naples had an attorney present and Mr. Gillen as a witness. Mr. Naples presented his position to Ms. Ashley. County personnel from Land Use, Human Resources, and Legal also attended the hearing, but they did not make a presentation. Mr. Naples was not permitted to question any of the County's witnesses, and he was asked to leave the room after making his presentation.
Ms. Ashley upheld the recommendation for termination and notified Mr. Naples of her decision by letter dated May 19, 2009. In her letter, Ms. Ashley stated that she found the expressions of mitigating circumstances insufficient to overturn the termination recommendation. Mr. Naples' termination became effective April 16, 2009.
C. HRAB Appeal and Decision
Under the County Code, merit employees have appeal rights, including: (1) a Step I hearing before the Department General Manager; (2) a Step II hearing before the Chief Administrative Officer and Chief Human Resources Officer; and (3) a Step III hearing before the HRAB. The parties mutually agreed to waive Step I and Step II, and, as was his right under the County Code, Mr. Naples sought a Step III hearing before the HRAB.
Mr. Naples' HRAB appeal hearing was conducted in two sessions. The first session took place on August 6, 2009 (thirteen working days after the time period required by the County Code). The appeal was heard by HRAB members. The hearing could not be completed in one session due to the voluminous testimony, so it was continued until August 24, 2009. At both sessions, Mr. Naples was represented by counsel and had the opportunity to present witnesses and to cross-examine the County's witnesses.
The HRAB issued a written decision on September 23, 2009. It determined that there was just cause supporting the County's disciplinary actions for some, but not all, of the alleged violations. It further found, however, that termination was too severe of a penalty. The HRAB expressed its concern with "the use of other events, which, in and of themselves, appear to be insignificant but used in an attempt to show a pattern of behavior of Naples." The HRAB directed that Mr. Naples' termination be reversed and remanded the matter to the Office of Human Resources to administer a reprimand for Mr. Naples' conduct. It stated that a period of suspension to the date of the decision would be appropriate.
D. Reinstatement and Resignation
On September 28, 2009, Mr. Naples met with representatives from the Office of Human Resources about his reinstatement. He informed the representatives that he did not wish to report to his previous supervisors, Messrs. Haggerty, Ruberto, and Day. Mr. Naples was reassigned to the Code Enforcement Department under a different supervisor. Mr. Naples retained his title of Assistant Land Use Administrator as well as his salary and benefits, but he performed the work of a ...