Constitutional & Civil Rights in Employment
The Old Testament prophet Isaiah exhorted us to “learn to do good; seek justice, correct oppression; bring justice to the fatherless, plead the widow’s cause.” (Isaiah 1:17).
Notable Causes
- For many years following the devastating September 24, 2016, Lakeview Road fire in Wilmington, Delaware, the Firm fought for the 8 orphans, one widow and estates of the three Wilmington firefighters who tragically died, and the three firefighters who were gravely injured but survived, while trying to save trapped civilians. After the Mayor and Fire Chief decided to defy various laws enacted by City Council and instead: (1) close an engine company as part of ‘rolling bypass’; (2) leave fully-funded firefighter positions unfilled for years at a time; and (3) strip engines of uniformed firefighters in order to transfer and double the number assigned to 9-5 desk jobs, there were not enough firefighters or available engines left to extinguish a fire just down the street from the shuttered company which ultimately killed and gravely injured many of the finest public servants Wilmington has ever known.
- The exhaustively detailed, 75-page, 515-paragraph, 20,916-word Complaint, drew extensively on years of sworn testimony to City Council and investigative reporting by intrepid local reporters from the Wilmington News Journal, WDEL and more. After 468 pages of voluminous legal briefing against the many white shoe Wilmington law firms separately representing each of the five government defendants, the District Court overruled the earlier ruling of the U.S. Magistrate who had concluded that “Plaintiffs adequately state facts which support conduct that shocks the [judicial] conscience against Mayor Williams and Chief Goode” and the District Court instead dismissed the case in 104 pages of legal rulings spread across four separate decisions and held it to be constitutionally rational for a Mayor and Fire Chief to defy numerous laws duly-enacted by City Council. A timely appeal to the U.S. Court of Appeals for the Third Circuit in Philadelphia followed. Following the conclusion of yet another 413 pages extensive merits briefing (see, e.g. OB; RB) in the midst of the COVID-19 pandemic, the case was ultimately dismissed by the Third Circuit in 2021. The Court held that the actions of executive branch officials which increased the risk of fire death by firefighters in defiance of firefighter safety laws that had been duly-enacted by the City’s own legislative branch specifically to prevent these same executive branch officials from taking these very actions, although “trag[ic]” and “reprehensible,” are constitutionally irrelevant.
- In 2017, the Firm took up the challenge of representing the estate of Sgt. Steven R. Floyd as well as numerous Correctional Officer survivors of the February 2017 prison inmate uprising at Vaughn Correctional Center in Smyrna, DE. The April 2017 lawsuit invoked the substantive due process protections of the Fourteenth Amendment and charged that former Delaware Governors Jack Markell and Ruth Ann Minner, as well as numerous former DOC Commissioners and Budget Directors had shocked the judicial conscience for more than 15 years by consciously ignoring numerous red flags, official reports and desperate Union pleas predicting that if the state continued to refuse to fill fully funded positions, decrease reliance on overtime and take other remedial measures, correctional officers would be killed. Tragically, on February 1st-2nd, the Union’s predictions came true. The case concluded in December 2017 with what the Delaware State News termed a “historic, record-breaking $7.55 million” settlement which “many believe … to be the largest state-paid settlement in Delaware’s 230 year history.“
- From 2002-2012, the Firm filed and litigated a steady stream of at least 10 federal civil rights lawsuits on behalf of numerous Master Corporals, multiple Sergeants, a Lieutenant as well as two Captains in the Delaware State Police. These cases were brought against the Superintendent and other leadership of the DSP, and in some cases the Governor of Delaware and Secretary of Homeland Security, on behalf of these dedicated Troopers suffering from retaliation for whistleblowing and exposing unsafe working conditions, to exposing the good ol’ boy network and entrenched cronyism as well as others challenging discrimination and quotas within state government.
- In the same way, from 1999-2009, the Firm fought a decade long running battle in at least seven federal civil rights lawsuits on behalf of numerous Sergeants, a Lieutenant, a Captain and multiple civilian employees of New Castle County. These cases were brought against the highest levels of the NCC executive branch, as well as the NCC Police Department, on behalf of many steadfast employee whistleblowers, police officers and union officials who exposed illegality, fraud and corruption by their superiors, and on behalf of other devoted employees whose cases exposed institutional racism, racial profiling and discrimination in the promotions process.
- The Firm has long fought to protect the First Amendment rights of public employees to be free from retaliation for their union activities, including: exposing unsafe working conditions; fighting for the rights of union members against management; as well as other pro-union speech and actions. The Firm has battled for these protections against various public employers, including, among others, the Delaware Department of Correction, the New Castle County Police Department and the Wilmington Fire Department. The Firm’s clients have included: both President and Executive Board members of the Fraternal Order of Police, Lodge 5; the then Vice President and later President of the Correctional Officers Association of Delaware; several Presidents and an Executive Board member of the Wilmington Fire Fighters Association, IAFF Local 1590; as well as every day rank and file union members who vocally supported their unions’ efforts, as well as others.
- The Firm also is proud of its history of fighting for the men and women who served their country in the U.S. Armed Forces.
- For example, after a three year federal court battle over the scope of First Amendment Free Speech protections for public employees, the Pentagon was forced to nullify a written reprimand given to decorated Air Force Sergeant Jason A. Adkins after he spoke out against a tainted anthrax vaccine being administered to servicemen and women at Dover Air Force Base. After repeatedly defeating the federal government’s efforts to dismiss the entire case, the Pentagon finally settled and agreed that the reprimand was nullified and “deemed to be of no effect.”
- Similarly, in her case brought under the Fourteenth Amendment Equal Protection and First Amendment Free Exercise clauses, then Lieutenant Colonel (and later U.S. Senator from Arizona) Martha McSally succeeded in her challenge to the requirement that female Air Force personnel wear the abaya and burqa when off base in Saudi Arabia, even when on official duty representing the United States.
- The Firm’s representation of servicemembers also has included cases which were ultimately unsuccessful, such as the case of Lieutenant Colonel Keith Janowski of the U.S. Army Reserves, whose rights under Uniformed Service Employment and Reemployment Rights Act of 1994 were fought for all the way to the Delaware Supreme Court.
- Many police officer, firefighter and correctional officer clients the Firm has represented are veterans as well.
- Protecting the First Amendment free speech and petition clause rights of dedicated psychiatrists such as David T. Springer, M.D., to blow the whistle on dangerous understaffing, patient abuse and expose grave threats to the health and safety of patients in the Delaware Psychiatric Center and be protected from retaliation for doing so.
Significant Court Decisions
Springer v. Henry, Del. Dept of Health & Social Services, et al., 435 F.3d 268 (3d Cir. 2006) (First Amendment free speech retaliation case affirming plaintiff’s jury verdict on behalf of an independent contractor physician who lost his job in retaliation for blowing the whistle on and trying to stop patient abuse and chronic understaffing at the state psychiatric hospital).
Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061 (3d Cir. 1996) (en banc) (sex discrimination case – reinstating plaintiff’s jury verdict and establishing the “pretext only” paradigm for proof of intentional discrimination).
Shockley v. Minner, 448 Fed.Appx. 263 (3d Cir. 2011) (holding it has been clearly established since at least 1986 that the Governor of the Delaware could not discriminate against State Police Troopers on her Executive Protection Unit because of their gender)
Shockley v. Minner, 726 F.Supp.2d 368 (D.Del. 2010) (holding there was more than sufficient evidence that the Governor of Delaware had discriminated against against a State Police Corporal on her Executive Protection Unit because of his gender and sending the case to trial)
Pope v. Swanson, 2009 WL 2507928 (D.Del. Aug. 17, 2009) (recognizing the First Amendment rights of a public employee to be free of retaliation for his political activities).
Riddell v. Gordon, 2008 WL 4766952 (D.Del. Oct. 31, 2008) (recognizing the First Amendment rights of a public employee to be free of retaliation for her union activities and political associations).
Balas v. Taylor, 567 F.Supp.2d 654 (D.Del. 2008) (recognizing the First Amendment rights of a correctional officer to be free of retaliation for his pro-union speech, union activities and union associations).
Justice v. Danberg, 571 F.Supp.2d 602 (D.Del. 2008) (recognizing the First Amendment rights of a union president to be free of retaliation for his union activities and union associations).
Shockley v. Minner, 2008 WL 2699978 (D.Del. July 10, 2008) (tolling the statute of limitations in a sex discrimination case when the Governor conspired to hide the true reasons for her promotion of a police officer).
Dietz v. Baker, 523 F.Supp.2d 407 (D.Del. 2007) (holding that a police Captain demonstrated a reasonable probability of success on the merits in her race and gender discrimination action against the Mayor and City of Wilmington over the WPD’s use of an illegal racial quota system and other race and gender based classifications).
Adkins v. Rumsfeld, 389 F.Supp.2d 579 (D.Del. 2005) (upholding the First Amendment free speech retaliation claims brought by an Air Force sergeant who was disciplined for speaking out about a tainted anthrax vaccine administered by the Air Force that was poisoning military personnel).
Reyes v. Freebery, 141 Fed.Appx. 49 (3d Cir. 2005) (per curiam) (in a race discrimination action, remanding to the district court to explain its restrictions on the public’s right of access to judicial records and counsel’s First Amendment right to be free of prior restraints).
Conley v. Chaffinch, 2005 WL 2678954 (D.Del. March 4, 2005) (First Amendment free speech opinion – denying defense motion to impose a gag order on the plaintiff and her attorneys to prevent them from criticizing misconduct by high government officials).
Schreffler v. Mitchell, 2005 WL 147599 (D.Del. Jan. 21, 2005) (holding that a jury must determine whether the First Amendment was violated when a school board refused to promote the assistant superintendent and most qualified candidate after she exposed the school board’s handpicked prior superintendent’s financial criminal wrongdoing).
Bullen v. Chaffinch, 336 F.Supp.2d 342 (D.Del. 2004) (upholding jury verdict on behalf of two state troopers in a Fourteenth Amendment race discrimination case).
Bullen v. Chaffinch, 336 F.Supp.2d 357 (D.Del. 2004)” (ordering the “instatement” and promotion of two state troopers who were illegally denied promotion because of their race).
Springer v. Henry, 2004 WL 2127172 (D.Del. Sept. 16, 2004) (upholding First Amendment free speech retaliation jury verdict on behalf of an independent contractor physician)
Maloney v. Gordon, 2004 WL 1043202 (D.Del. May 4, 2004) (in a First Amendment public corruption action, rejecting defense effort to impose an umbrella protective order that would seal off judicial records from public access).
Springer v. Henry, 2002 WL 389136 (D.Del. Mar. 11, 2002) (holding that independent contractor physician’s speech was protected by the First Amendment).
McNaboe v. NVF Co., 276 F.3d 578 (3d Cir. 2001) (claims for breach of employment contract, covenant of good faith and similar claims).
Tyler v. Bd. of Educ. of the New Castle County Vocational-Technical Sch. Dist., 519 F.Supp. 834 (D.Del. 1981) (plaintiff’s jury verdict because of gender discrimination and a violation of due process).
Lewis v. Delaware State College, 445 F.Supp. 239 (D.Del. 1978) (right of a public employee to refuse to have an abortion upheld over a threat of dismissal).
Stallings v. Container Corp., 75 F.R.D. 511 (D.Del. 1977) (successful race discrimination suit against a private employer).
Hanshaw v. Delaware Technical and Community College, 405 F.Supp. 292 (D.Del. 1975) (a class action for race and gender discrimination in hiring and wages which was settled when policies were changed and a $75,000 fund created).
Scott v. University of Delaware, 68 F.R.D. 606 (D.Del 1975); 455 F.Supp. 1102 (D.Del. 1975), aff’d, vacated, rem’d 601 F.2d 76 (3d Cir. 1979) (class action lawsuit for race discrimination in faculty hiring).