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Miller v. Delaware Technical & Community College

United States District Court, D. Delaware

July 1, 2015

DELAWARE TECHNICAL & COMMUNITY COLLEGE, LINFORD P. FAUCETT, III, GEORGE E. BOOTH, ROBERT W. HEARN, JR., KYLE L. SERMAN, and H. ALLAN SCHIRMER, each individually and in their official capacities, Defendants.


CHRISTOPHER J. BURKE, Magistrate Judge.

In this action filed pursuant to 42 U.S.C. §§ 1981 and 1983, Plaintiff Michael C. Miller, Sr., d/b/a Miller's Lawn Service ("Plaintiff"), brought suit against Defendant Delaware Technical & Community College ("DTCC" or "the College") and Defendants Linford P. Faucett, III, George E. Booth, Robert W. Hearn, Jr., Kyle L. Serman, and H. Allan Schirmer, in their individual and official capacities (collectively, "Individual Defendants"). Presently pending before the Court is Defendants' Motion for Summary Judgment ("Motion"). (D.I. 42) For the reasons set forth below, the Court recommends that the Motion be DENIED.


A. Factual Background

1. The Parties

Plaintiff, an African-American male and Delaware resident, [1] is the owner and operator of a landscaping business known as Miller's Lawn Service ("Miller's"), a sole proprietorship. (D.I. 45 at A002 at ¶ 5, A019 at ¶ 3; D.I. 46 at A313) Defendant DTCC is an institution of higher education created by Delaware state statute in 1966. (D.I. 43 at 2 (citing Del. Technical & Cmty. Coll., History, (last visited June 10, 2015))) DTCC operates on four locations in Delaware, including the Jack F. Owens Campus ("the Campus" or "Owens Campus") located in the town of Georgetown. ( Id. (citing Del. Technical & Cmty. Coll., Our Campuses, (last visited June 10, 2015))) The one-hundred forty-seven acre Owens Campus is known as DTCC's "birthplace." ( Id. (citing Del. Technical & Cmty. Coll., Our Campuses - Georgetown, (last visited June 10, 2015))) Since 2007, DTCC has employed three landscaping contractors at the Owens Campus: (1) Miller's, from 2007 to 2010; (2) Outdoor Design Group ("Outdoor"), from 2010 to 2013; and (3) Priority Services ("Priority"), from 2013 through the present. (D.I. 45 at A005 at ¶ 13, A025 at ¶ 20; D.I. 46 at A378.1, A380, A400, A443)

The Individual Defendants served on a five-person panel (the "committee") assigned the task of scoring bidders to award the 2010-2013 landscaping contract for the Owens Campus. (D.I. 46 at A345) All five men are Caucasian. (D.I. 45 at A002-3 at ¶¶ 7-11, A019-21 at ¶¶ 5-9) Defendant Faucett was the head of the committee, and at all times relevant to the Complaint was the Director of Administrative Services at the Owens Campus. (D.I. 46 at A345, A447) Defendant Faucett reported to the Campus Director in charge of the Owens Campus, Dr. Ileana Smith. ( Id. at A336, A521) Defendant Booth served at all times relevant to the Complaint as the Assistant Director of Administrative Services at the Owens Campus; he was Defendant Faucett's "right-hand man" and direct report. (D.I. 45 at A002 at ¶ 8, A019-20 at ¶ 6; D.I. 46 at A345.1) Defendant Schirmer served at all times relevant to the Complaint as the Superintendent of Grounds at the Owens Campus and also reported to Defendant Faucett. (D.I. 45 at A020 at ¶ 9; D.I. 46 at A474-75) Defendant Serman served at all times relevant to the Complaint as the Chair of the Department of Applied Agriculture and was based at the Owens Campus. (D.I. 45 at A003 at ¶ 10, A020 at ¶ 8) Defendant Hearn served at all times relevant to the Complaint as the Business Manager at Owens Campus. ( Id. at A003 at ¶ 9, A020 at ¶ 7)

2. 2007 Contract

a. Events relating to the bidding process

In September 2006, DTCC published an advertisement in the The News Journal, soliciting bids for the landscaping contract with the Owens Campus for the period of January 2007 through January 2010 (the "2007 Contract"). (D.I. 43, ex. C at 28) For this contract, DTCC utilized the "lowest responsible bidder" competitive bidding process, which awards the contract to the "lowest responsive and responsible bidder whose bid conforms in all material respects to the requirements and criteria" set forth in the invitation to bid. (D.I. 43 at 3 (quoting Del. Code tit. 29, § 6923)) In an initial round of bidding, seven companies, including Miller's, submitted bids. ( Id., ex. C at 28) Plaintiff was not the lowest bidder. ( Id. at 29) There was a large disparity of pricing in the bids, and for that reason, DTCC requested that the companies rebid for the contract. ( Id. at 30) This time. Plaintiff was the lowest bidder. ( Id. at 29-30; D.I. 46 at A410) Ultimately, the selection committee recommended to Dr. Smith that the 2007 Contract be awarded to Plaintiff. (D.I. 43, ex. L at 30)

The 2007 Contract was thereafter awarded to Plaintiff. (D.I. 45 at A005 at ¶ 13, A025 at ¶ 20) In a December 2006 letter, Defendant Faucett informed Plaintiff that "[t]he College has high expectations with your company to bring the appearance of the grounds up to and beyond acceptable standards of landscaping. I want this College to reflect a showplace and will accept nothing less." (D.I. 43, ex. A)[2] In January 2007, Miller's and DTCC executed a written contract, ( id., ex. I at D0327), and DTCC elected to make the contract effective on February 1, 2007, ( id., ex. H). The 2007 Contract included a termination option that permitted DTCC to terminate the contract "in its sole discretion in the event that the services are not performed to its satisfaction in its sole discretion." ( Id., ex. I at D0322; see also D.I. 46 at A360.1, A480.1) Plaintiff was retained for the entire three-year term of the 2007 Contract. (D.I. 46 at A415.1, A480.1, A528.1)

b. Plaintiff's behavior

Defendants assert that "[f]rom the inception of the 2007 Contract, Plaintiff exhibited a pattern of unnecessarily litigious and argumentative behavior." (D.I. 43 at 4)[3]

For example, Defendant Faucett testified that Plaintiff "had a tendency to pick people that he thought he could bully, like women, and I had one particular instance [where] two [female] employees [were] in my office... and he took advantage of them by being abusive and loud and even causing one to break down and cry." ( Id., ex. C at 166) Further, Defendant Faucett claimed that various employees had to talk to Plaintiff about the way he was doing things - specifically. "Mr. [Terry] Hastings [then-Superintendent of Grounds and the point of contact with Plaintiff for DTCC] had problems with him. Mr Schirmer had problems with him. Mr. Booth had a confrontation with him. At various times, [Defendant Faucett] had him in [his] office where [he] had to discuss different matters with" Plaintiff. ( Id. at 172; see also D.I. 43 at 7 (citing id., ex. P); D.I. 46 at A476)

The recollections of other DTCC employees as to Plaintiff's demeanor are also in the record. Defendant Schirmer testified that he never "butted heads" with Plaintiff. (D.I. 46 at A476) Defendant Booth testified that Plaintiff was "somewhat confrontational and argumentative[, ]" though he could not recall any specific examples of such behavior. (D.I. 43, ex. M at 97; D.I. 46 at A405-06) Defendant Booth thereafter described Plaintiff as "[n]ot aggressive and not real confrontational, but negative as in attitude.... [j]ust not the most upbeat of people[.]" (D.I. 43, ex. M at 97) When asked if Plaintiff was ever argumentative and defensive, Dr. Smith replied "[y]es, " but she also stated that Plaintiff was respectful and professional in his interactions with her. (D.I. 43, ex. L at 20; D.I. 46 at A526) And Terry Johnson, the Owens Campus's Dean of Student Services from 2004 through December 2009, reported that he never witnessed Plaintiff argue with anyone or raise his voice at anyone. (D.I. 46 at A536-37, A539)

c. Plaintiff's performance

Defendants allege that Plaintiff "struggled mightily" under the 2007 Contract, and was "unable to maintain the showplace' effect the College administration clearly desired." (D.I. 43 at 5-7)

For example, according to Defendant Faucett, Plaintiff: (1) "did not get all of the weeds that we were asking him to get;" (2) had to be told more than once to get the ditches and tax ditches cut; (3) pruned trees much higher than DTCC wanted;"[4] (4) caused a "hay-looking situation" where Plaintiff cut the grass and failed to dispose of leftover grass clippings; (5) sprayed a herbicide underneath white pine trees to attack weeds, which stressed the trees so badly that they dropped their needles and looked dead (before eventually returning to health);[5] (6) covered people's cars with grass clippings on a couple of occasions;[6] and (7) occasionally sprayed herbicides in flower beds, killing flowers instead of weeds. ( Id., ex. C at 166-68) Defendant Faucett also prepared a document titled "Comments on Meeting 4/25/07 with Mike Miller" in which he noted that there were still "many weeds that needed to be sprayed or pulled throughout the campus." ( Id., ex. R) He also wrote that "Miller needs not to worry about past performers and to treat this contract as coming in at a starting point and doing the best he can to produce a showplace. No excuses will be acceptable as to non-performance of this contract on Miller's behalf." ( Id. (emphasis in original))

Defendant Schirmer also described deficiencies in Plaintiff's performance under the 2007 Contract. He noted that Plaintiff: (1) told him that drains clogged by leaves were not Plaintiff's problem (although Defendant Schirmer acknowledged that Plaintiff did later take care of removing leaves from these drains), ( id., ex. J at 26, 28); (2) did not cut ornamental grasses (because Plaintiff typically cut them in the Spring), leaving Defendant Schirmer to cut these grasses himself in the Fall, ( id. at 26-28);[7] (3) did not remove weeds from a garden in the Child Development Center on the Campus (and that Plaintiff later asserted that he did not know that this was his responsibility), leaving Schirmer to do it, ( id. at 27); (4) left flower beds full of grass, ( id. at 77); (5) did not take out mulch that "somebody" put in "over the years, " which was six to eight inches deep in places, and which caused a couple of big frees to rot, ( id. at 156); and (6) overall, "[d]id not" meet the contract requirements, ( id. at 77).

Defendant Schirmer took photographs of the landscaping at the Owens Campus, which are in the record. ( Id., ex. K; see also D.I. 46 at A506) The date on which he took these photographs is not exactly clear from the record, however, as the photographs themselves are not marked with any date. (D.I. 43, ex. K)[8] Defendant Schirmer testified that he took the photographs "[i]n about the end of September, 1st of October. It was the end of[ ] September." (D.I. 46 at A507) When asked what year this was, he responded, "2010, I think." ( Id. ) But Defendant Schirmer also testified that the pictures were taken during the time that Plaintiff held the Owens Campus contract (i.e., from February 1, 2007 through January 31, 2010). ( Id. ) When asked if he took the pictures in September of the "last year when Miller's" had the contract. Defendant Schirmer responded, "[t]hat's the only time I had anything to do with the contract, " and then said that he took the photographs after he "took over as Superintendent of Grounds[.]" ( Id. ) However, Defendant Schirmer became Acting Superintendent of Grounds in approximately July 2010, and became Superintendent of Grounds approximately July 1, 2011. ( Id. at A356, A473-74)[9]

As for Dr. Smith, she recalled "times during the [2007] contract when it was [her] observation that the grass might be too tall or there might be weeds, like in the pavement or around beds.... and I also observed there might be mulch needed in areas." (D.I. 43, ex. L at 24) Dr. Smith complained to Defendant Faucett that "the grass was too tall, that the weeds needed to be pulled in certain areas.... that we needed to edge something or to... do the manicuring of the lawn." ( Id. at 27)[10]

Defendant Booth, for his part, made one complaint to Plaintiff during his tenure, relating to the distribution of mulch in plant and flower beds. (D.I. 43, ex. M at 16) The mulch depth should have been around two or three inches deep, but in certain beds the mulch was "dumped with a bucket and just spread around" such that it was eight to ten inches thick. ( Id. )

Defendants put into the record other evidence of problems with Plaintiff's work. For example, Plaintiff's employees caused window damage on two occasions in mid-2007. ( Id., ex. O) Defendants also contend that Plaintiff neglected certain areas of the Campus, pointing to two May 23, 2007 work orders directed to Mr. Hastings. (D.I. 43 at 7 (citing id., ex. P)) One of these work orders notes weeds in certain locations and requests that a particular area be leveled out and seeded; however, the document also notes that "[w]e are thrilled with the work so far." ( Id., ex. P) The second work order states that "[o]ur playground seems to be an area which the lawn service continually forgets about. We have an enormous amount of clover [ ] and long grass. We just wanted to make a note so that once our playground renovations are complete we get back on the radar." ( Id. )

Plaintiff disputes the notion that he struggled mightily under the Contract, citing to other portions of the record. (D.I. 44 at 8-11) For example, Defendant Schirmer reported that Plaintiff "did a very good job cutting grass. He was there every week. Did a great job." (D.I. 46 at A509) During a chance meeting with Plaintiff in the spring of 2013, former Dean Johnson told Plaintiff that, with regard to Plaintiff's work under the 2007 Contract, Plaintiff "did a good job.'" ( Id. at A541) Defendant Hearn testified that he had not personally observed any issues with Plaintiff's performance, ( id. at A424-25), and Defendant Serman did not make any complaints about Plaintiff's work, ( id. at A452). Defendant Booth testified that he assumed that Plaintiff had the Campus ready for the Gala, an important annual fundraiser, for all three years of his contract. ( Id. at A402-03)[11] Dr. Smith remembers Plaintiff asking her how the grounds looked at some point during the period of the 2007 Contract (either at a Gala or right before a Gala), and she told him that "the grounds look great." ( Id. at A526)[12]

3. 2010 Contract

a. Lead up to the bidding process and DTCC's solicitation of bids

Although the 2007 Contract was renewable for another two-year period if both parties agreed, (D.I. 43, ex. I at D0321), Defendant Faucett made the decision not to renew the contract and to instead re-bid it, (D.I. 46 at A361). Dr. Smith supported this decision as being in the "best interest" of DTCC. (D.I. 43, ex. L at 45) Plaintiff's contract ended on January 31, 2010. (D.I. 46 at A103)

On February 26, 2010, DTCC posted an advertisement in The News Journal to announce to the public the bidding process for the Owens Campus landscaping contract (the "2010 Contract"). (D.I. 43, ex. F at D9) DTCC had decided not to utilize the lowest responsible bidder process for the bidding. Instead, DTCC listed five evaluation factors (and the weight assigned to each) on which bidding companies would be scored, and also added an interview component to the selection process. (D.I. 43 at 7 (citing Del. Code tit. 29, § 6924); id., ex. F at D9; D.I. 46 at A421-22) The evaluation factors (and their respective weights) were the following: (1) price (50%); (2) geographical location (5%); (3) capacity to meet requirements (15%); (4) demonstrated ability and scope (15%); and (5) experience and reputation (15%). (D.I. 43, ex. F at D9; D.I. 46 at A421) According to Defendant Serman, the advertisement stated that "[i]nterviews for selected firms will occur on March 21, 2010.'" (D.I. 46 at A468; see also D.I. 43, ex. F)[13] Defendant Hearn testified that DTCC decided to use this new bidding process because the committee wanted bidders to have to submit some "professional certifications[.]" (D.I. 46 at A420)

Next, DTCC sent out a Request for Proposals ("RFP") for the 2010 Contract that included a list of items that each bidder was required to furnish with its bid proposal. ( Id. at A110-31, A416-17) These items included (but were not limited to): (1) "[p]roof of [b]usiness [l]icenses"; (2) "[p]roof of State pesticide applicator's license in the name of the business owner, principal or key officer"; and (3) "[p]roof of certification as a landscape professional by the Delaware Nursery & Landscape Association [DNLA'] or equivalent certification by a national or state trade group recognized within the industry" that is "in the name of the business owner, principal or key officer." ( Id. at A113; see also id. at A362, A395, A454, A483) A bidder's failure to provide the listed items would result in the bidder's disqualification. ( Id. at A112, A417, A496, A529) The bidding company had the burden of providing the proper proofs. ( Id. at A496.1) It was the responsibility of the committee to make sure the bidders in fact met all of the qualifications. ( Id. at A530)

b. Submission of bids

In March 2010, DTCC held a pre-bid meeting, which was attended by six companies. (D.I. 43, ex. C at 58) Thereafter, seven companies, including Miller's and Outdoor, submitted bids for the 2010 Contract. ( Id. at 77)

With respect to the requirement to provide proof of business licenses, according to Defendant Serman, bidders for the 2010 Contract were required to submit proof of Delaware State and Georgetown (Delaware) business licenses. (D.I. 46 at A461-62; cf. id. at A362 (Defendant Faucett confirming that the RFP required bidders to submit "business licenses, plurar ") (emphasis added)) Outdoor submitted a 2010 Delaware State Business License, but not a business license from the town of Georgetown. ( Id. at A372; see also D.I. 48, ex. D) With respect to the requirement for a pesticide applicator's license, Outdoor submitted a "copy of [a] pesticide license number for Ken Anderson [who is] currently [ ] our turf manager in charge of all pesticide application throughout the tri-state region." (D.I. 48, ex. D) And as for the required proof of certification by the DNLA (or its equivalent), Outdoor noted that it attached to its proposal "a copy of application for registration to [DNLA] as well as Delaware Grounds Management Association." ( Id .; see also D.I. 46 at A435)[14] With respect to the Delaware Grounds Management Association, Outdoor attached a receipt for a March 18, 2010 $50.00 check, paid to the Delaware Grounds Management Association for an "[a]ssociation [f]ee" and a print out from the entity's website indicating that to "[j]oin, " one should access the membership form on the website and send a check in the amount of $50.00. (D.I. 48, ex. E)

Following the submission of proposals, certain companies were immediately eliminated, either because they lacked the necessary equipment or because they lacked the required certifications or business licenses. (D.I. 43, ex. C at 127-28) The committee met on March 24, 2010 to score the remaining bidders and determine which companies they would interview. ( Id., ex. S; D.I. 46 at A422) Pursuant to that process, another company was eliminated for having a non-responsive proposal. (D.I. 43, ex. S) Outdoor was not disqualified at this stage, and it, along with Miller's and Priority, were selected for interviews. (D.I. 46 at A433, A485-86)

c. Interview component and feedback from references

On March 31, 2010, the committee conducted interviews with Plaintiff (on behalf of Miller's), Outdoor, and Priority. ( Id. at A485; D.I. 43, ex T) Of the representatives for the three interviewing companies, Plaintiff was the only African-American; Outdoor and Priority's representatives were Caucasian. (D.I. 46 at A331, A456, A481, A486-87)

According to Defendant Faucett, Outdoor and Priority gave "very good presentations" with "outstanding pictures." (D.I. 43, ex. Cat 170) Both companies' references also gave "rave reviews" and said the companies had done an "excellent job." ( Id. at 173-74) Furthermore, in conjunction with its sealed proposal, Outdoor provided a list of fifty-one contracts held in the years 2006 through 2008 of similar size and scope to the Owens Campus. ( Id., ex. U)

For his presentation, Plaintiff provided the committee with pictures of his work at the Owens Campus during the past three years. ( Id., ex. C at 170) According to Defendant Serman, Plaintiff "did not do very well in his presentation[.]" (D.I. 46 at A471) Additionally, according to Defendant Faucett, one of Plaintiff's references said that Plaintiff had an "[a]ttitude problem; doesn't take criticism well; likes to argue.'" (D.I. 43, ex. C at 174)

d. Scoring of the applicants

Following the interviews, the Individual Defendants each separately scored the finalists, taking into account the five factors/criteria referenced above, as well as the interview process. ( Id., ex. T)[15] The five committee member scores were added together to provide for a total score. ( Id. ) Outdoor received the best score of 482 points, followed by Priority with a total of 439 points and Miller's with 399 points. ( Id. )

With regard to the factor concerning geographic location, Defendant Schirmer and Defendant Hearn explained that this was an objective category with specific point values that did not involve the use of discretion. (D.I. 46 at A429, A493)[16] Outdoor's bid proposal stated that it had two geographic office locations - one in Maryland and another on DuPont Boulevard in Georgetown, Delaware. ( Id. at A152, A434) Defendant Schirmer recalled speaking with a representative of the United States Postal Service, who said that the DuPont Boulevard address was Outdoor's. (D.I. 48, ex. G at 108) But Defendant Faucett explained that DTCC eventually called the DuPont Boulevard location; when they did so, they learned that Outdoor did not yet have a permanent location in Georgetown. (D.I. 46 at A365-67) Instead, an equipment rental company called Iron Source was located at the DuPont Boulevard address. ( Id. at A367, A369, A494) DTCC spoke to Kenny Adams, whose company, Melvin L. Joseph & Sons Construction Company, owned the DuPont Boulevard location. ( Id. at A365-66) Mr. Adams stated that he and Rich Crouse (an Outdoor representative who interviewed with DTCC during the 2010 bidding process) were negotiating to enter into a partnership that would use the DuPont Boulevard location to rent equipment. ( Id. ) Those negotiations were never successfully completed, however, and Outdoor never opened an office at the DuPont Boulevard address or at any other Georgetown location. ( Id. at A365-68) All five members of the committee ultimately gave Outdoor a score of 4 for the geographical location factor (that is, a score that, according to DTCC's bidding rules, was intended to reflect that a company's main office was elsewhere in Delaware, but that the company had an office location in Sussex County). ( Id. at A153-57)

With respect to the "price" factor, Defendant Hearn viewed it as an objective factor, in the sense that the highest score should go to the lowest bidder. ( Id. at A428, A431) Defendant Serman also acknowledged that "[i]f one company submitted the lower bid, they would get a higher score." ( Id. at A465) Defendant Faucett interpreted it differently, seeing it as "subjective" and involving a score that focused not only on the dollar figure of the bid, but also on the quality that DTCC would receive for that price. ( Id. at A389-90) And, in Defendant Schirmer's eyes, although the price factor was allocated the greatest amount of points, it was not necessarily the "most important" factor. ( Id. at A497)

Ultimately, Outdoor submitted the lowest bid, at $65, 750 per year. (D.I. 43, ex. C at 132; see also id., ex. V) Miller's price was the second lowest, at $68, 868 per year. (D.I. 46 at A490-91) Priority's price was the highest of the three, at $82, 000 per year. ( Id. at A364) Defendant Faucett gave Plaintiff a score of 43 for price, gave Priority a score of 45 and gave Outdoor a score of 47. ( Id. at A152.1-53) Defendant Schirmer gave both Plaintiff and Priority the same score of 45 for the price factor; he gave Outdoor a 48. ( Id. at A154, A491)

In the end, Plaintiff's bid was not successful. (D.I. 45 at A014 at ¶ 70, A029 at ¶ 28; D.I. 46 at A378.1) In April 2010, DTCC awarded the 2010 Contract to Outdoor. (D.I. 46 at A374, A378.1, A441-42) The contract commenced on April 1, 2010 and was to remain in effect until March 31, 2013, although it contained an option for further renewal for a period of up to two years, upon the mutual written consent of Outdoor and DTCC. ( Id. at A158)

e. Outdoor's performance

During Outdoor's 2010 Contract, Defendant Schirmer testified that there were "[a]bsolutely" weeds on campus. ( Id. at A492) He also acknowledged that just as with Plaintiff's work, there were times during the 2010 Contract period when leaves would accumulate on Campus, and he would have to call Outdoor and ask it to remove the leaves. ( Id. at A502) And Outdoor did "the same thing that [Plaintiff] was doing" with respect to deficiencies regarding grass cutting in and around tax ditches. ( Id. at AS00-01) Like Plaintiff, Outdoor also broke some windows on Campus. ( Id. at A499)

4. 2013 Contract

Near the conclusion of Outdoor's contract, Defendant Schirmer was in favor of rebidding it. ( Id. at A504-05) Meanwhile, Defendant Faucett wrote in a September 2012 e-mail that he was "pleased with [Outdoor's] work" and was going to ask Outdoor if it was interested in a contract extension. ( Id. at A309, A379) Ultimately, however, Outdoor stopped showing up to the Owens Campus by January 2013 (two months in advance of the March 2013 contract completion date); as a result, Defendant Faucett did not offer Outdoor the option to renew the contract. ( Id. at A378.2-80)

Instead, DTCC awarded the new contract ("the 2013 Contract") to Priority. (D.I. 43, ex. Cat 162; D.I. 46 at A400) No bidding took place for the 2013 Contract. (D.I. 46 at A380) DTCC elected to hire Priority because Priority had a contract approved by the State of Delaware; Priority was therefore considered a State vendor, such that DTCC could hire it without having to conduct a bidding process. (D.I. 43, ex. C at 162-63; see also D.I. 46 at A443, A533.2) Dr. Smith approved the decision to hire Priority. (D.I. 46 at A533.2)

Defendant Faucett testified that in 2013, the Owens Campus still did not "look like a showplace[.]" ( Id. at A391) Indeed, he has never seen any landscaper achieve his goal of having the Campus look like a showplace. ( Id. at A391-93)

B. Procedural Background

On February 22, 2012, Plaintiff filed his Complaint, asserting claims pursuant to 42 U.S.C. §§ 1981 and 1983 with respect to: (1) DTCC's non-renewal ofhis 2007 Contract; and (2) DTCC's selection of Outdoor for the 2010 Contract. (D.I. 1) On May 3, 2012, this case was referred to the Court by Judge Sue L. Robinson to "conduct all proceedings, including alternative dispute resolution; hear and determine all motions[ ], through and including the pretrial conference." (D.I. 6)

Defendants filed a motion to dismiss all claims, pursuant to Federal Rules of Civil Procedure 12(b)(l) and 12(b)(6). (D.I. 4) The Court thereafter issued a Report and Recommendation regarding the motion to dismiss, which recommended: (1) grant of the motion to dismiss for failure to state a claim under Rule 12(b)(6), with respect to Plaintiff's claims relating to the 2007 Contract; (2) denial of the motion with respect to Plaintiff's claims relating to the 2010 Contract, on the grounds that the motion sufficiently alleged plausible claims pursuant to Rule 12(b)(6); and (3) denial of the Rule 12(b)(1) motion as to Defendants' arguments regarding Eleventh Amendment immunity. (D.I. 14)[17] The District Court later adopted the Report and Recommendation in its entirety, over Defendants' objection. (D.I. 15, 28)

The case proceeded through completion of discovery, after which Defendants filed the instant Motion. (D.I. 42) Defendants' Motion was fully briefed as of December 23, 2013, (D.I. 47), and on July 15, 2014, the Court heard oral argument regarding the Motion, (D.I. 53 (hereinafter, "Tr.")).


A grant of summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585 n.10 (1986). If the moving party meets this burden, the nonmovant must then "come forward with specific facts showing that there is a genuine issue for trial." Id. at 587 (internal quotation marks omitted). If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). During this process, the Court will "draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

However, in order to defeat a motion for summary judgment, the nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586-87; see also Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005) (party opposing summary judgment "must present more than just bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue") (internal quotation marks and citation omitted). The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). Facts that could alter the outcome are "material, " and a factual dispute is genuine only where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (internal citations omitted). A party asserting that a fact cannot be - or, alternatively, is - genuinely disputed must support the assertion either by citing to "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials"; or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A) & (B).


In seeking summary judgment, Defendants make two arguments. First, Defendants assert that the Eleventh Amendment of the United States Constitution immunizes DTCC and the Individual Defendants in their official capacities from liability. (D.I. 43 at 2, 9-16) Second, Defendants argue that Plaintiff has failed to adduce sufficient evidence to withstand summary judgment as to his racial discrimination claims. ( Id. at 2, 16-20) The Court will address both arguments in turn.

A. Eleventh Amendment Immunity

Defendants first argue that DTCC and the Individual Defendants in their official capacity are immune from suit, because DTCC is an arm of the state that is entitled to sovereign immunity pursuant to the Eleventh Amendment (and that the Individual Defendants are thus state officials who are also immunized from liability for official capacity claims). (D.I. 43 at 10; Tr. at 42-43)

The Eleventh Amendment provides:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. Const. amend. XL "While the text of the Amendment does not specifically bar lawsuits against a State by its own citizens, the ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal courts.'" Paoli v. Delaware, Civil Action No. 06-462 (GMS), 2007 WL 4437219, at *2 (D. Del. Dec. 18, 2007) (quoting Ed. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001)). It is also well-settled that "Eleventh Amendment immunity extends to entities that are considered arms of the state." Paoli, 2007 WL 4437219, at *4; see also Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429-30 (1997). In other words, where the state is essentially the "real party in interest[, ]" ...

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