Hayman v. City of Wilimington ( 2020 )

SUPERIOR COURT
OF THE
STATE OF DELAWARE
VIVIAN L. MEDINILLA LEONARD L. WILLIAMS JUSTICE CENTER
JUDGE 500 NorTH KING STREET, SuITE 10400
WILMINGTON, DE 19801-3733
TELEPHONE (302) 255-0626
October 29, 2020
Thomas Hayman, Jr. Aaron C. Baker, Esquire
P.O. Box 239 Taylor R. West, Esquire
Cheswold, DE 19936 City of Wilmington Law Department
Louis L. Redding City County
Building
800 North French Street, Ninth Floor
Wilmington, DE 19801
Re: Thomas Hayman, Jr. v. City of Wilmington, Wilmington Fire
Department, et al., CA No. N19C-09-178 VLM
Dear Messrs. Hayman and Baker:
This is the Court’s decision on Defendant City of Wilmington, Wilmington
Fire Department’s Motion to Dismiss. After consideration of all pleadings and the
oral arguments on October 26, 2020, for the reasons stated below, Defendant’s
Motion is GRANTED.
L Factual and Procedural Background
Plaintiff Thomas Hayman, Jr. (Plaintiff) is a former firefighter who worked
City of Wilmington Fire Department until his termination in 2016.' In October of
2015, Plaintiff reported a complaint with the Department of Justice (DOJ) against
the Chief of the fire department, Anthony Goode. At the time, the former Chief was
also acting in his capacity as the president of the Gallant Blazers, Inc. or Gallant
Blazers Organization (GBO), a professional development group that helps minority
firefighters in Wilmington.” Plaintiff reported to the DOJ that Goode committed
1 Plaintiff's Complaint, D.I. 1, at 1 [hereinafter Complaint].
2 Id. at 1.
financial misconduct? against GBO.* After reporting Goode’s misconduct, Plaintiff
alleges that the City of Wilmington, Wilmington Fire Department (Defendant),
along with others, “maliciously” brought forth charges against him to terminate his
position in retaliation for the complaint against Goode.® Plaintiff was terminated on
September 19, 2016.°
On September 19, 2019, Plaintiff filed a Complaint alleging that his
termination was in violation of the Whistleblower Protection Act, 19 Del. C. § 1701
et seg. On February 27, 2020, Defendant filed this Motion to Dismiss for failure to
state a claim under Rule 12(b)(6). On May 5, 2020, this Court granted Plaintiff's
request for additional time to respond and obtain counsel, accepting that the
pandemic was hindering Plaintiff's efforts to find an attorney.
By July 30, after Plaintiff had not yet retained counsel, the Court advised that
he had until August 28 to contact chambers and confirm if he found legal
representation. The Court also provided a tentative date of October 19, 2020 to hear
argument on the motion. Plaintiff was advised that if he failed to retain counsel, the
motion would go forward. Plaintiff did not contact the Court to advise whether he
retained counsel. He did notify the Court that he required additional time to
accommodate his schedule and the October 19 hearing was re-noticed to October
26, 2020.
On October 26, 2020, Plaintiff appeared pro se. He also did not file a
response. Plaintiff indicated his efforts to retain counsel were unsuccessful and that
he was “ignorant” of the need to respond in writing to the motion because he believed
the hearing would provide the forum from which to respond. Over Defendant’s
objections, the Court decided to allow Plaintiff to present his oral argument in the
absence of any written pleading. Pro se litigants “are expected to comply with the
rules of this Court,” although the Court may hold them “to a less exacting standard
when reviewing their pleadings.”’ However, “the Court will accommodate pro se
3 Following an investigation, public records reflect that the DOJ brought criminal charges
including criminal racketeering and theft against Goode, who subsequently pled guilty to theft of
$50,000 or more and unlawful use of a payment card. In 2019, he was sentenced to one year in
prison followed by a period of probation, and repay the Gallant Blazers more than $62,000.
4 Id. at 1.
> Id, at 2.
6 Id. at 1.
7 Maddox v. Isaacs, 2013 WL 2297030, at *2 (Del. Super. May 7, 2013), aff'd 74 A.3d 654,
2013 WL 4858989 (Del. Sept. 10, 2013) (TABLE) (citations omitted).
2
litigants only to the extent that such leniency does not affect the substantive rights
of the parties.”® Having heard oral arguments, the matter is ripe for review.
Il. Standard of Review
For purposes of a motion to dismiss for failure to state a claim under Superior
Court Civil Rule 12(b)(6), all well-pleaded allegations in the complaint must be
accepted as true.” In deciding a motion to dismiss under Rule 12(b)(6), the Court
must draw all reasonable inferences in favor of the non-moving party;'° however, it
will not “accept conclusory allegations unsupported by specific facts,” nor will it
“draw unreasonable inferences in favor of the non-moving party.”'! Dismissal of a
complaint under Rule 12(b)(6) must be denied if the plaintiff could recover under
“any reasonable conceivable set of circumstances susceptible of proof under the
complaint.”!? Dismissal may only be granted if it appears to a certainty that under
no set of facts that could be proved to support the claim asserted would the plaintiff
be entitled to relief.
III. Party Contentions
Defendant asserts that any alleged financial misconduct of funds by Goode
were not under the control of the City of Wilmington’s Fire Department and
therefore, the Whistleblower Protection Act cannot serve as a basis for Plaintiff's
claim. Defendant also asserts that Goode was not acting as an agent for Defendant
when the alleged financial misconduct took place and instead was acting as the
president of GBO. Plaintiff argued that the Whistleblower Protection Act applied
because he was retaliated against by his employer, Goode, for filing a complaint with
the DOJ while Goode was also acting as president of GBO.
8 Id. (citing Anderson v. Tingle, 2011 WL 3654531, at *2 (Del. Super. Aug. 15, 2011); Alston v.
State, 2002 WL 184247, at *1 (Del. Super. Jan. 28, 2002)).
9 Snence v. Funk, 396 A.2d 967, 968 (Del. 1978).
10 lm re Gen. Motors (Hughes) S’holder Litig., 897 A.2d at 168.
'! Price vy, EL DuPont de Nemours & Co., 26 A.3d 162, 166 (Del. 2011) (citation omitted).
12 Snence, 396 A.2d at 968 (citing Klein v. Sunbeam Corp., 94 A.2d 385 (Del. 1952)).
'3 Klein, 94 A.2d at 391.
IV. Discussion
The Whistleblower Protection Act, broadly speaking, prohibits an employer
from retaliating against an employer for reporting certain violations of the law.!4
However, the law has its limits and only applies to certain violations. These
violations relate to: (1) workplace or environmental safety standards;’> (2) financial
management or accounting standards;'® or (3) campaign finances.'’ Here, Plaintiff
asserts violation of financial or accounting standards.
Accordingly, to state a claim under the Whistleblower Protection Act,
Plaintiff must show that any alleged retaliation was for reporting: (1) a violation of
financial management or accounting standards;’* (2) that the violation was related to
funds or assets under the control of his employer;'? and (3) that the violation was
due to an act or omission of his employer or an agent thereof.”? Plaintiff fails to
satisfy prongs two and three.
Plaintiff arguably alleges a violation of financial management or accounting
standards as he states that Goode committed financial misconduct. Plaintiff
however, fails to allege that the funds used by Goode were under the control of his
employer and in fact appears to state the opposite as he alleges that Goode’s
misconduct was for use of funds related to a third-party, GBO. The allegation is that
Goode was the president of GBO “for which the misconduct was perpetuated (sic)
against.”?! Plaintiff does not allege a connection between GBO and the Defendant,
conceding that GBO is a separate entity, albeit run by Goode who was acting in his
capacity as Chief of Defendant. The Act requires that Plaintiff establish the violation
was that of his employer, the Defendant. Plaintiff does not so allege.
Therefore, because Plaintiff has not alleged that Goode’s violation related to
use of Defendant’s funds nor that Goode was acting as an agent of Defendant at the
time of the misconduct, Plaintiff has failed to state a claim under the Whistleblower
Protection Act.
14 See generally 19 Del. C. § 1703.
15 Td. § 1702(6)(a).
16 Td. § 1702(6)(b).
17 Td. § 1703(5).
18 Td. § 1702(6)(b).
19 Id
20 See Addison v. East Side Charter School of Wilm., Inc., 2014 WL 4724895, at *4 (Del. Super.
Sept. 19, 2014) (“It is clear that the focus of the statute is on misbehavior of the employer.”).
21 Complaint, at 1.
V. Conclusion
In considering all facts and reasonable inferences in the favor of Plaintiff,
Defendant City of Wilmington, Wilmington Fire Department’s Motion to Dismiss
for failure to state a claim is GRANTED, without prejudice.
IT IS SO ORDERED
Vivian L. Medinilla
Judge