Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Grimaldi v. New Castle County

Superior Court of Delaware

July 13, 2018

Grimaldi
v.
New Castle County, et al.

          Daniel C. Herr, Esquire Law Office of Daniel C. Herr, LLC

          Daniel J. Brown, Esquire McCarter & English, LLP

          Colleen K. Norris, Esquire New Castle County Office of Law

         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.

         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 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- 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.[10] 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 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 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 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 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 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. Eldri dge, 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 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 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 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.