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Martinez v. The State of Delaware Department of Homeland Security/Division of State Police

United States District Court, D. Delaware

March 15, 2019

THE STATE OF DELAWARE DEPARTMENT OF HOMELAND SECURITY/DIVISION OF THE STATE POLICE; ALICE BAILEY, in her Individual and official capacities; and NATHANIEL McQUEEN, JR., in his individual and official capacities, Defendants.

          G. Kevin Fasic, Katherine Randolph Witherspoon, Anthony N. Delcollo, Offit Kurman, Wilmington, DE - attorneys for Plaintiff

          Michael F. McTaggart, Adria Martinelli, State of Delaware Department of Justice, Wilmington, DE - attorneys for Defendants



         On June 30, 2016, Plaintiff Andrel Martinez (“Plaintiff or “Martinez”) filed this action alleging Title VII discrimination and due process claims against the State of Delaware Department of Homeland Security/Division of the State Police (“DSP”) and the Delaware State Troopers Association (“DSTA”). (D.I. 1). On July 28, 2016, Defendant DSTA moved to dismiss all claims. (D.I. 8, 14). On August 4, 2016, DSP also moved to dismiss. (D.I. 12, 13). On November 23, 2016, the Court issued an opinion and order dismissing the claims against DSTA and granting-in-part and denying-in-part DSP's motion. (D.I. 19, D.I. 20). Thereafter, on December 20, 2016, Martinez filed an Amended Complaint (D.I. 24) asserting a Title VII claim[1]against DSP, and § 1983 claims against Alice Bailey (“Bailey”) and Nathaniel McQueen (“McQueen”), in their individual and official capacities (collectively DSP, Bailey, and McQueen are referred to as “Defendants”). Discovery ended May 2, 2018. (D.I. 49). On June 1, 2018, Defendants moved for summary judgment on all claims. (D.I. 82, 83, 84). Plaintiff opposed.[2](D.I. 90, 91). For the reasons stated below, the Court will grant Defendants' motion.

         I. BACKGROUND

         Martinez is a former DSP Trooper. While employed by DSP, Martinez used - and was trained in using - DELJIS, [3] a computer system that contains criminal history information and motor vehicle information, accessible to law enforcement and certain authorized governmental employees. (E.g., D.I. 84 at DSPA-181). Use of DELJIS is limited to authorized users for a specific business reason. Martinez acknowledged multiple times that he understood the limitations on the use of DELJIS. (Id. at DSPA-204-206, 229, 305-313). For example, he stated in writing that he had read and understood and agreed to abide by DELJIS Directive 1 entitled “Restrictions Regarding Dissemination and Use of Criminal History Information. (See Id. at DSPA-305-313). Directive 1 is a summary “intended to answer many of the questions regarding criminal history, ” but notes that the conduct of “a criminal justice employee is governed by” Chapters 85 and 86 of Title 11 of the Delaware Code. (Id. at DSPA-176; see also Id. at DSPA-175-179). Directive 1 provides in pertinent part that “[m]otor vehicle information may be used by any . . . law enforcement agency . . . in carrying out its functions.” (Id. at DSPA-179; see also Id. at DSPA-176-185).[4]

         Martinez attended at least one DELJIS training session at which improper access to DELJIS was addressed. (D.I. 84 at DSPA-204-206, 229, 239). Among examples of “Security Issues” provided at that session was “[e]mployees accessing data on their spouse, boyfriend/girlfriend, other family members, or who their daughter/son is dating.” (Id. at DSPA-239). DELJIS Directive 4 identifies an “improper breach” as an access by an authorized user into the system “without a specific business reasons directly related to the user's authorized access.” (Id. at DSPA 209; see also Id. at DSPA 209-221). After DELJIS Directive 4 issued on March 28, 2013, Plaintiff acknowledged that he had read that directive. (Id. at DSPA 204-206, 227).

         Notwithstanding the above, Martinez used DELJIS to access information about his former girlfriend and others. This came to light on January 15, 2014, when Sergeant Jeff Whitmarsh (“Whitmarsh”) received a call from Captain Griffin, the head of Internal Affairs, regarding a complaint from a Courtney Lewis (“Lewis”), a friend of Sarah Loiselle (“Loiselle”), Martinez's former girlfriend and the mother of Martinez's child. (D.I. 84 at DSPA 338).[5] Whitmarsh obtained a DELJIS printout and confirmed that Martinez had accessed information about Lewis and her family. (Id. at DSPA 338; see also Id. at DSPA 44-45).[6] Whitmarsh also found a large number of DELJIS queries that Martinez had conducted near the property where Loiselle lived. (Id. at DSPA 339). The list of persons queried for no lawful purpose contained at least twenty-eight individuals, including Loiselle and her friends, as well as Martinez's brother and Martinez's new girlfriend. (Id. at DSPA 147-49). Whitmarsh determined that the queries were in violation of DELJIS policy. (Id. at DSPA 337-340).

         On March 14, 2014, Martinez was arrested for Felony Stalking, Harassment, and sixty charges of “Provid[ing] Criminal History Record Information to Another Person or Agency Not Authorized.”[7] (D.I. 84 at DSPA 1-22). On the same day, Martinez was given “Notice of Internal Inquiry” informing him that the “Internal Affairs Office [was] conducting an investigation into an allegation of violation of Rules and Regulations #1 Compliance with Laws, Rules, Regulations, Orders (4 counts).”[8] (Id. at DSPA 166). On March 18, 2014, Plaintiff was “suspended without pay and benefits with intent to dismiss” because of his arrest for “Stalking (felony).” (Id. at DSPA 171-72). He was advised of his right to request a hearing in writing within five days. (Id.). On March 21, 2014, Plaintiff's attorney James E. Liguori (“Ligouri”) “request[ed] an Internal Affairs hearing and procedures afforded pursuant to LEOBOR.” (Id. at DSPA 168). On April 10, 2014, counsel for the DSP advised Liguori that the internal affairs investigation was not complete and had been suspended pending the outcome of the criminal case. (Id. at DSPA 169-70). Specifically, DSP's counsel stated that:

Due process requires that the State Police provide [Martinez] with a prompt, post-deprivation hearing (independent of a LEOBOR hearing). If Martinez would like such a hearing, please let me know immediately so that we can begin the scheduling process. I understand if you would not want to have such a hearing at this time because it would present your client with the difficult choice between invoking his Fifth Amendment right against self-incrimination, or testifying under oath on matters which might be used against him in the criminal case.
In any event, I need to know in writing whether Martinez wants a post-deprivation hearing to be scheduled in the next thirty days, or whether he waives any claim that he did not receive a prompt post-deprivation hearing.

(Id.). In response, Ligouri waived the hearing pending the outcome of the criminal case. (Id. at DSPA-354-355).

         On September 16, 2014, Martinez entered a plea agreement in Superior Court to two counts of Unlawful Use of Criminal History and Record Information. (D.I. 84 at DSPA 141; see also id. at DSPA 344). He was sentenced to probation. (Id. at DSPA 141). The statute to which he pleaded guilty provides:

Any person who knowingly provides criminal history record information to a person or agency not authorized by this subchapter to receive such information or who knowingly and wrongfully obtains or uses such information shall be guilty of a class A misdemeanor and shall be punished according to Chapter 42 of this title.

11 Del. C. § 8523(d). The statute further provides that “[c]onviction of a violation of this section shall be prima facie grounds for removal from employment by the State or any political subdivision thereof, in addition to any fine or other sentence imposed.” Id. § 8523(e).

         After the criminal case ended, neither Martinez nor his attorney requested an internal affairs hearing, and instead indicated that Martinez wanted to wait until the DELJIS hearing was concluded. (D.I. 84 at DSPA 355-56). On October 2, 2014, McQueen, the Superintendent of the DSP, notified Plaintiff in writing that he remained suspended without pay and benefits with intent to dismiss because he had been convicted of two “serious criminal charges” that violate the Divisional Rules and Regulations. (Id. at DSPA 173). The letter noted that Martinez remained “suspended from access to DELJIS with a pending hearing on November 20, 2014, which does not allow you to perform the duties of a trooper.” (Id.). The letter concluded that “[t]he Division will respectfully postpone any Divisional charges until the resolution of the DELJIS hearing in the interest of not having the Divisional charges heard now and then the potential for a second hearing relate to further Divisional charges resulting from the outcome of the DELJIS hearing.” (Id.).

         On February 19, 2015, Plaintiff appeared pro se before the DELJIS Board for a hearing, seeking reinstatement of his DELJIS access, which had been suspended since January 2014. (D.I. 84 at DSPA 104-135). At the hearing, Plaintiff testified that he was not familiar with the DELJIS rules and requirements for use of the system. (Id. at DSPA 126). He also testified that he was unsure of the DELJIS policy at the time that he queried the names and that he was not familiar with the DSP Manual. (Id. at DSPA 126, 130) . He testified that some of his accesses into the system were done “under a moral basis, ” not business-related purposes. (Id. at DSPA 128). He could not, however, explain why he queried a number of the names on the DELJIS printouts, including an attorney for the DSP, a DFS worker and a police officer. (Id. at DSPA 129, 131). Immediately following the hearing, the DELJIS Board unanimously voted to permanently suspend Martinez's DELJIS access.[9] (Id. at DSPA 157). The decision was also reduced to writing and delivered to Martinez on July 27, 2015. (Id. at DSPA 150-52).

         On February 25, 2015, McQueen wrote to Martinez providing “official notice that [his] employment as a Trooper is terminated immediately due to [his] inability to maintain access to [DELJIS] databases, a necessary and mandated requirement for the position of State Trooper or any other police officer position in the state of Delaware.” (D.I. 84 at DSPA 174). Martinez was told that he could schedule a meeting with McQueen or his designee to discuss his termination by notifying the Director of Human Resources in writing within five calendar days. (Id. at DSPA 330). He did not do so.

         On November 30, 2015, Martinez appeared before a three-member panel of the Council on Police Training (“COPT”). (D.I. 84 at DSPA 161-65). The parties “provided commentary on . . . documents and presented legal argument” but “[n]o evidentiary witnesses were called.” (Id. at DSPA 162). At the conclusion of the hearing, the panel determined that “the record makes clear that Mr. Martinez accessed personal criminal history information for other than official purposes” and that such access was “an absolute violation of the public trust.” (Id. at DSPA-164). Having determined that Martinez's misconduct (evidenced by his guilty plea to two counts of Unlawful Use of Criminal History Record Information) “so violated the public trust that he does not deserve to be a police officer in Delaware, ” the panel found that “revocation of [his] certification is appropriate, ” and decertified Martinez as a police officer in the State of Delaware. (Id. at DSPA-164-65).

         On June 25, 2015, Martinez filed a Charge of Discrimination with the EEOC, alleging that he had been discriminated against on the basis of race, gender, national origin, retaliation and marital status. (D.I. 84 at DSPA-314). The Charge of Discrimination was based on Martinez's February 25, 2015 discharge. (Id.). It did not allege a hostile work environment or continuing action. After investigating, on February 10, 2016, the EEOC “found that there is no reasonable cause to believe that an unlawful employment practice has occurred” and issued a “no-cause determination and dismissal” and a Right to Sue Notice. (Id. at DSPA-315).

         Martinez then filed this lawsuit, in which he claims, inter alia, that he was treated more harshly than other current or former members of the DSP (i.e., comparators) because of race (Hispanic) or gender. (D.I. 24 ¶ 17). His evidence regarding the alleged comparators and their offenses includes the following (as set forth in D.I. 83 at 7-8; see also D.I. 24 ¶ 17)[10]:

Employee #1 - white male, -investigated by DSP in 2006 for disseminating information to girlfriend and running fourteen other names as part of domestic dispute. (DSPA-359; DSPA-361) He was prosecuted by the Attorney General's Office and took a Probation Before Judgment to charges involving unlawful use of a computer. (DSPA-359) He was given an IA Trial Board and suspended for 40 hours. (DSPA-360). DELJIS held a hearing and ordered that he receive additional training. (DSPA-360). See McDerby v. Daniels, (C.A. No. 08-882 (GMS), 2010 WL 2403033 (D. Del. June 16, 2010).
Employee #2 - white female, investigated by DELJIS in 2011 when a friend ran names on her computer on one day without her knowledge. (DSPA-373). She was not prosecuted criminally. (DSPA-374) She had a DELJIS hearing and suspended from the DELJIS system for three months, (DSPA-374) and agreed to an IA suspension of eight hours. (DSPA-375).
Employee #3 - white male-former Corporal, investigated by DSP in 2015 when he ran his ex-girlfriend's name in DELJIS four times and her boyfriend three times. (DSPA-369-70) Prosecuted by the Attorney General's Office and pled guilty to Official Misconduct by Probation Before Judgment. (DSPA-371). He immediately retired and there was no IA hearing. DELJIS held a hearing in his absence and suspended him for two years. (DSPA-371). He also lost his COPT certification. (DSPA-371).
Employee #4 - white male-former Corporal, investigated by DSP in 2015 for running one car tag. (DSPA-377) The Attorney General's Office declined to prosecute. (DSPA-377) DELJIS ordered him to attend an eight-hour training course. IA suspended him for two days. (DSPA-377).
Employee #5 - white female-civilian call center operator, investigated by DSP in 2013 for running DELJIS information on a niece and her boyfriend, a total of 40 times. (DSPA-364; DSPA-367). Her penalty from the DSP was to forfeit a period of vacation. (DSPA-366) DELJIS suspended her privileges for some time and she was eventually reinstated but had to go back for training, be on probation, and keep a log of her queries. (DSPA-365). The Attorney General's Office declined to prosecute, based in part on the fact that much of the information accessed was public information that could be viewed in the DELJIS warrant public website. (DSPA-363; DSPA-342).

         In support of his discrimination claims, Martinez also asserts race-based comments made by various police officers. In his ...

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