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Bryson v. City of Wilmington

United States District Court, D. Delaware

January 11, 2019

CITY OF WILMINGTON, a municipal corporation, and BOBBY CUMMINGS, in his individual and official capacities, Defendants.



         This matter is before the court on defendants City of Wilmington's (“the City”) and Bobby Cummings's (“Chief Cummings”) motions for summary judgment (D.I. 60 and D.I. 61). This is an action for unlawful reverse race discrimination, disability discrimination, and retaliation in employment.[1] The plaintiffs, former Police Officers of the Wilmington Police Department (“WPD”) assert claims for violations of their Equal Protection and Due Process rights under 42 U.S.C. §§ 1981 and 1983, reverse race discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), disability discrimination and retaliation under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and retaliation in violation the Delaware Whistleblowers' Protection Act (“WPA”), 19 Del. C. § 1701 et seq.

         I. BACKGROUND

         The plaintiffs, both Caucasian, are former Wilmington Police Department (“WPD”) police officers. They allege that the City and chief Cummings, its African-American Police Chief, denied their requests for reinstatement because of their race. They allege that minorities have been reinstated whereas Caucasian officers have not. Both plaintiffs also assert a procedural due process claim against the City based on alleged deprivation of their property interest in employment. In addition, plaintiff Bryso, alleges he was denied reinstatement on the basis of a perceived disability. Plaintiff Connelly additionally asserts a whistleblower retaliation claim, contending he was denied reinstatement for reporting other police officers' misconduct, which is a protected activity under the WPA.

         Chief Cummings and the City move for summary judgment. They first challenge the plaintiffs' procedural due process claims against the City, arguing that the plaintiffs have no constitutionally protected property interest in re-employment as police officers based on custom or practice.[2] Next, they argue that the plaintiffs' race discrimination claims fail as a matter of law because the factual record does not support an inference of discrimination. Further, they assert that the defendants have articulated a nondiscriminatory reason for not reinstating the plaintiffs-hiring new officers from a previously recruited class in the Spring of 2016-and they argue that the plaintiffs have not shown the articulated reason is a pretext. Further, they argue that there is no evidence that minorities were treated more favorably than white males. Chief Cummings also asserts he is entitled to qualified immunity because he has discretion to “exercise the effective performance of Police” under Police Directive 1.2 (D.I. 64-1, Ex. 1A) In response, the plaintiffs argue that genuine issues of material fact preclude summary judgment.

         II. FACTS

         The record establishes that the plaintiffs are Caucasian males. It is undisputed that defendant Bobby Cummings is an African-American male and has served as the Chief of the WPD at all relevant times. Plaintiff Connelly resigned from WPD on or about July 24, 2015 and sought reinstatement on or about March 30, 2016. Plaintiff Bryson retired from WPD on or about July 2, 2015 and sought reinstatement in October or November 2015. Chief Cummings was police chief from May 30, 2014 through April 13, 2017, when Bryson and Connelly applied for reinstatement. D.I. 64-15, Ex. 10, Deposition of Bobby L. Cummings (“Cummings Dep.”) at 160:21-161. As Chief of Police, Chief Cummings made the decision not to rehire the plaintiffs. Id. at 99-100; D.I. 64-16, Ex. 11, Deposition of Clayton Smith (“Smith Dep.”) at 113; D.I. 64-17, Ex. 12, Deposition of James Gestwicki, (“Gestwicki Dep.”) at 55-57. Both were denied reinstatement.

         The plaintiffs' alleged right to reinstatement and purported property interest is premised on Directive 5.3A of the Police Officer's Manual. The plaintiffs allege the City has a custom and practice of applying Directive 5.3A in a discriminatory manner. Directive 5.3 provides:

         Reinstatement Policy.

If a former officer has applied for reinstatement after separation from the department for less than one (1) year, the conditions of employment will be as follows: that person will be required to take a physical and psychological test, a physical agility test, be placed on one (1) year probation, and will not be eligible for a promotion for a minimum of two (2) year(sic); seniority, retirement benefits, salary grade and rank will be that of which he last served.

D.I. 64-1, Ex. 1B, Police Manual, reinstatement Policy.

         The stated reason for the denial to both Bryson and Connelly was: “Unfortunately, the Department cannot offer you this position as we have already begun the process of hiring candidates for the 9th Wilmington Police Academy. As such all vacancies for the position of police officer have been allotted to the upcoming academy.” D.I. 64-10, Ex. 4, Letter to Bryson. During his tenure, Chief Cummings did not reinstate anyone under Directive 5.3A. D.I. 64-15, Ex. 10, Deposition of Bobby L. Cummings (“Cummings Dep.”) at 162; D.I. 64-22, Ex. 23A, Interrogatories at 6-7. Chief Cummings's conferred with Inspector Clayton Smith and Captain James Gestwicki, commanding officer of Human Resources, in making the decision because the WPD was in the process of hiring an academy class. D.I. 64-15, Ex. 10, Cummings Dep. at 81-82. Chief Cummings testified “[w]hat we looked at was the fact that we were hiring a new academy class coming in and we were three-quarters of the way in the process of that." Id. at 86; see also id. at 203-207. Regarding the decision not reinstate, Inspector Smith testified that:

That's the direction the department decided to go in, that we were looking for officers who don't have 20 years of service, who can't retire the same day, because, like I said before, there was over a quarter of the current, - well I shouldn't say current because I'm not there. Staffing level, that those officers can retire any given day. I don't have it in front of me. But I was one of those individuals. So yeah, due to the responsibility to the organization, to the community, we have to have officers there who have a good idea that they are going to be there. We can't guarantee, like you stated earlier, that they won't drop out for any other reason, but knowing that people can retire after 20 years on any given date, it's less predictable. You can predict that those people who have 20-plus years and can leave at any given time.

D.I. 64-16, Ex. 11, Deposition of Clayton Smith (“Smith Dep.” at 122-23).

         The record shows that a new class of recruits was hired for the Spring 2016 Academy Class. D.I. 64-25, Ex. 25, 97th WPD Academy Timeline. The process began in January 2016. Id. The WPD needed 13 officers to meet authorized strength. D.I. 64-22, Ex. 23A, Interrogatories. The City hired 19 officers, allowing five additional officers to account for attrition, to attend the 97th Academy. D.I. 64-24, Ex. 24, Academy List at 2.

         Chief Cummings explained:

[W]hen we hire an academy class, the academy class gets us to our authorized paid positions on the books and we're able to hire five people above that. Because we know we're going to lose some people through attrition or we may lose somebody through the academy, those individuals that are five above start to then fill in your authorized strength number. So those paid positions are then filled in by the five excess. Those five excess could also be attributed to the alternates that you select to fill in vacancies until you get to appoint that you can no longer bring anymore individuals in. So all paid positions are filled through the academy even though you're going to lose individuals through that process, which then start to impact your authorized strength by the time they graduate.

D.I. 64-15, Ex. 10 Cummings dep. at 105-07; see also Id. at 197-200.

         Cummings could not hire more than five recruits above the authorized strength. Id. at 107; D.I. 64-17, Ex. 12, Gestwicki Dep. at 65-68. On graduating the 97th Police Academy, the WPD was at authorized strength. D.I. 64-15, Ex. 10, Cummings Dep. at 20-24.

         The City hired six white males, six black males, one white female, three black females, two Hispanic females, and one Hispanic male. D.I. 64-24, Ex. 24, Academy List. Six resided in the City of Wilmington, sixteen had college degrees, two had military experience, eight had a family legacy at the police department, and eleven were first generation police officers. Id.

         Chief Cummings testified that in denying plaintiffs' reinstatement requests, he followed Directive 1.0, which gives authority and responsibility to the Chief to make decisions. D.I. 64-15, Ex. 10, Cummings Dep. at 186. Directive 1.2(A)(1) states:

The Chief of Police shall exercise all lawful powers of his office and issue such orders as are necessary to assure the effective performance of the Department of Police . . . [the Police Chief] is responsible for the management of functions of planning, directing, coordinating, ...

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