United States District Court, D. Delaware
KURT C. BRYSON, and CHRISTOPHER G. CONNELLY, SR., Plaintiffs,
CITY OF WILMINGTON, a municipal corporation, and BOBBY CUMMINGS, in his individual and official capacities, Defendants.
MEMORANDUM AND ORDER
F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE
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. 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.
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.
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. 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.
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
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:
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.
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).
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.
[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.
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.
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
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, ...