Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1:04-cv-01394-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

CAPTAIN BARBARA L. CONLEY, Plaintiff, v. COLONEL L. AARON CHAFFINCH, individually and in his official capacity as the Superintendent, Delaware State Police; LIEUTENANT COLONEL THOMAS F. MACLEISH, individually and in his official capacity as the Deputy Superintendent, Delaware State Police; DAVID B. MITCHELL, individually and in his official capacity as Secretary of the Department of Safety and Homeland Security, State of Delaware; and DIVISION OF STATE POLICE, DEPARTMENT OF SAFETY AND HOMELAND SECURITY, STATE OF DELAWARE, Defendants.

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C.A.No.04-1394-GMS

PLAINTIFF'S ANSWERING BRIEF IN OPPOSITION TO DEFENDANTS' MOTION IN LIMINE TO EXCLUDE EVIDENCE OF COLONEL CHAFFINCH'S STATUS AS A FREEMASON AND RELATED ISSUES AS TO FREEMASONRY

THE NEUBERGER FIRM, P.A. THOMAS S. NEUBERGER, ESQ. (#243) STEPHEN J. NEUBERGER, ESQ. (#4440) Two East Seventh Street, Suite 302 Wilmington, DE 19801 (302) 655-0582 [email protected] [email protected] Dated: April 11, 2006 Attorneys for Plaintiff

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A. Introduction. Defendant Chaffinch admits that while serving as the highest ranking officer of the Delaware State Police, he belonged to the Masons - an organization that discriminates against women and bars females from membership. (Tab A - Chaffinch 13). Not only has Chaffinch been a Mason for over 20 years, he currently holds one of the highest ranks in the organization. (Chaffinch 13-14). Contrary to the defense contentions, Chaffinch's admitted membership in an organization that discriminates against women tends to prove his discriminatory motive and intent against women in our present case. B. This Evidence is Relevant to Chaffinch's Intent and Motive. "`Relevant evidence ' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. The definition of relevant evidence under Rule 401 is extremely broad. "Rule 401 does not raise a high standard." Hurley v. Atlantic City Police Dept., 174 F.3d 95, 109-110 (3d Cir. 1999). "[E]vidence is irrelevant only when it has no tendency to prove [a consequential fact]." Spain v. Gallegos, 26 F.3d 439, 452 (3d Cir. 1994). Thus, the rule, "while giving judges great freedom to admit evidence, diminishes substantially their authority to exclude evidence as irrelevant." Id. Membership in the Masons tends to prove that Chaffinch holds discriminatory beliefs about women. This in turn is probative of his intent and motives in making the challenged promotion decisions at issue in this case. Chaffinch's membership in the Masons and refusal to surrender his membership despite being the highest ranking officer of the DSP is analogous to the Director of the FBI belonging to the Ku Klux Klan. In the same way that membership in the KKK tends to prove the racist beliefs of its members, so also membership in the Masons tends to prove the sexists beliefs of its members. Chaffinch's membership in such a discriminatory 1

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organization is highly probative of his sexist beliefs and biased attitudes towards women. Such sexist beliefs and biased attitudes is thus probative of his discriminatory motives and intent that are at issue in our present case. Evidence of Chaffinch's membership is highly relevant to his discriminatory animus toward women. There is a distinct correlation between the Mason's discriminatory membership requirement and those who choose to join such a discriminatory organization. A person who does not believe in discriminating against women would not join such an organization. At the very least, membership in such a discriminatory organization tends to prove that a member holds discriminatory beliefs. C. This Evidence is Offered for the Non-Propensity Purposes of Demonstrating Intent and Motives. Rule 404(b) also does not bar the admission of this relevant evidence. This rule was designed to exclude evidence of prior bad acts when being offered for a propensity purpose. Fed.R.Evid. 404(b). Plaintiff is offering Chaffinch's membership in this discriminatory organization for the non-propensity purposes of showing his motive and intent to discriminate against women - two purposes that are explicitly permitted by the plain text of the rule. Id. This evidence is admissible "because of the discriminatory nature of the prior conduct, which in turn tend[s] to show the employer's state of mind or attitude towards members of the protected class.... [T]he inference of the employer's discriminatory attitude [comes] from the nature of the prior acts themselves." Becker v. ARCO Chemical Co., 207 F.3d 176, 194 n.8 (3d Cir. 2000). Thus, "[b]y its very nature," Chaffinch's membership in an organization that discriminates against women tends to demonstrates his "discriminatory attitude" towards female employees such as plaintiff. Id. Such evidence "leads not only to a ready logical inference of 2

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bias, but also to a rational presumption that [Chaffinch] acted on it when he made the challenged employment decision." Fakete v. Aetna, Inc., 308 F.3d 335, 338 (3d Cir. 2002). Thus, Rule 404(b) clearly permits this evidence to be admitted for these proper purposes. D. Rule 403 Does Not Bar This Evidence. As explained above, Chaffinch's membership to the Masons is highly probative of his motives and intent and whether he discriminated against plaintiff on the basis of her gender. The evidence's strong probative value strongly outweighs any Fed.R.Evid. 403 considerations. Chaffinch chose to belong to an organization that discriminates against women. He holds one of the highest positions available in this discriminatory organization and as he testified at his deposition, he is very proud of his membership. In a case about gender discrimination where the jury is searching for evidence of discriminatory intent, it is hardly unfair to point to evidence that the decisionmaker belongs to an organization that discriminates against members of the very protected class at issue. Plaintiff is offering the evidence to show that Chaffinch harbors animosity toward women which is highly probative of the issues in the case. E. Rule 610 Does Not Bar the Use of This Evidence. Rule 610 states that "Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced." Fed.R.Evid. 610.1 Simply put, plaintiff is not offering Chaffinch's membership in the Masons to attack his credibility. Instead, plaintiff offers Chaffinch's membership as evidence of his motives and intent to discriminate against women. F. Conclusion. The defense motion should be denied. Plaintiff strongly objects to defense characterization of the Masons as a religion rather than a private membership organization and notes that defendants have failed to create a record in this regard. 3
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Respectfully Submitted, THE NEUBERGER FIRM, P.A.

/s/ Stephen J. Neuberger THOMAS S. NEUBERGER, ESQ. (#243) STEPHEN J. NEUBERGER, ESQ. (#4440) Two East Seventh Street, Suite 302 Wilmington, Delaware 19801 (302) 655-0582 [email protected] [email protected] Dated: April 11, 2006 Attorneys for Plaintiff

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Tab A

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In the Matter Of:

Conley v. Chaffinch, et al.
C.A. # 04-1394-GMS

--------------------------------------------------------------------Transcript of:

Colonel L. Aaron Chaffinch
June 6, 2005 -----------------------------------------------------------------------Wilcox & Fetzer, Ltd. Phone: 302-655-0477 Fax: 302-655-0497 Email: [email protected] Internet: www.wilfet.com

Case 1:04-cv-01394-GMS
Conley Colonel L. Aaron Chaffinch

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Chaffinch, et al. June 6, 2005 Page 1

v. C.A. # 04-1394-GMS

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CAPTAIN BARBARA L. CONLEY, ) ) Plaintiff, ) ) v. ) ) COLONEL L. AARON CHAFFINCH, ) individually and in his official ) capacity as the Superintendent, ) Delaware State Police; LIEUTENANT ) COLONEL THOMAS F. MACLEISH, ) individually and in his official ) capacity as the Deputy Superintendent,) Delaware State Police; DAVID B. ) MICHELL, individually and in his ) official capacity as Secretary of the ) Department of Safety and Homeland ) Security, State of Delaware; and ) DIVISION OF STATE POLICE, DEPARTMENT ) OF SAFETY AND HOMELAND SECURITY, ) State of Delaware, ) ) Defendants. )

Civil Action No. 04-1394-GMS

Deposition of COLONEL L. AARON CHAFFINCH taken pursuant to notice at the law offices of The Neuberger Firm, P.A., 2 East 7th Street, Suite 302, Wilmington, Delaware, beginning at 9:35 a.m. on Monday, June 6, 2005, before Kathleen White Palmer, Registered Merit Reporter and Notary Public. APPEARANCES: THOMAS S. NEUBERGER, ESQUIRE THE NEUBERGER FIRM, P.A. 2 East 7th Street - Suite 302 Wilmington, Delaware 19801 for the Plaintiff --------------------------------------------------WILCOX & FETZER 1330 King Street - Wilmington, Delaware 19801 (302) 655-0477
Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477

Case 1:04-cv-01394-GMS
Conley Colonel L. Aaron Chaffinch

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Chaffinch, et al. June 6, 2005
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APPEARANCES (Continued): JAMES E. LIGUORI, ESQUIRE LIGUORI, MORRIS & YIENGST 46 The Green Dover, Delaware 19901 for Defendant Colonel L. Aaron Chaffinch RALPH K. DURSTEIN, ESQUIRE STEPHANI J. BALLARD, ESQUIRE DEPARTMENT OF JUSTICE 820 North French Street Carvel State Office Building Wilmington, Delaware 19801 for Defendants Lieutenant Colonel Thomas F. MacLeish, David B. Mitchell, and Division of State Police ALSO PRESENT: CAPTAIN BARBARA L. CONLEY ----COLONEL L. AARON CHAFFINCH, the witness herein, having first been duly sworn on oath, was examined and testified as follows: BY MR. NEUBERGER: Q. Could you state your full name for the record? A. Aaron Chaffinch. Q. Colonel Chaffinch, my staff or myself, we've taken your deposition on other occasions; isn't that correct? A. Yes, sir.

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understand, just ask me and I'll be glad to rephrase it. Is that okay? A. Yes, sir. MR. NEUBERGER: Let's do this. Let's mark this as Plaintiff's Exhibit Number 1 and then we'll be referring back and forth to this. Let me give a copy to counsel. It's a copy of the First Amended Complaint in the action. (Plaintiff's Exhibit 1 was marked for identification.) BY MR. NEUBERGER: Q. Colonel, I'm going to ask you some questions about how long you were with the force and how your career, your assignments might have tracked assignments that Captain Barbara Conley had. Okay? If you turn to paragraph 10 of that document that's in front of you on page 4, you can see there in that paragraph a listing that Barbara Conley prepared at an earlier time of her assignments starting as a patrol trooper at Troop 5 in Bridgeville in 1982 at the bottom. Do you see that? A. Yes, I do. Q. Then she works all the way up to captain, director of traffic control section in 2001. Do you see
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Q. You've even testified in two federal court cases that I was involved in; is that right? A. Yes, sir. Q. I called you as a witness in those cases; right? A. Yes, sir. Q. Now, you understand, based on that experience, that if there's any question I ask you today and any answer you give, and I call you at trial and you say something different, I can point that out to the judge and jury? A. Yes, sir. Q. You know that. Okay. Are you taking any medications or anything that would interfere with your ability to remember things? A. I don't believe so. Q. You don't take blood pressure, heart medicine, things like that? A. I don't think it would affect my memory, I don't believe. Q. But you are not on anything odd or something that affects your memory that you know of? A. Not that I'm aware of. Q. If I ever ask you a question that you don't

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that? A. Yes, sir. Q. Let me just ask you a few questions about her history. Now, she indicated that she joined the force as a patrol trooper in Bridgeville in 1982 and she'll testify to that fact. Were you assigned to Bridgeville at that time? A. Yes, sir. Q. I think she's indicated that she believes that when she started in Bridgeville, she was a patrol trooper and you would have been a trooper first class assigned in Bridgeville. Does that sound about right? A. That's correct. Q. Then she indicates she was in Bridgeville from 1982 to 1983? MR. LIGUORI: I think it's '93, Tom. MR. NEUBERGER: Yes. Thank you, Jim. All right. BY MR. NEUBERGER: Q. She has indicated during that period of time there was a time when you were assigned at Bridgeville, also? A. Part of that time, yes, sir.

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Case 1:04-cv-01394-GMS
Conley Colonel L. Aaron Chaffinch

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Q. Do you see she was a traffic lieutenant at Troop 5 from 1999 to 2000? A. Yes, sir. Q. So, for example, when she was a traffic lieutenant, some of that time she would have been serving under you as the commander of Troop 5; is that correct? A. Yes, sir. Q. So Barbara Conley has indicated that there were times when, aside from working on the same shift, you and she were assigned to the same troop, that is Troop 5. Is that a true statement? A. Yes, sir. Q. Is it true that when you were a lieutenant at Troop 5 she was a sergeant assigned to Troop 5? A. I think part of the time, yes. Q. Then I think I just asked you that. When she was a lieutenant, you were the troop commander for some of the time; right? A. Yes. Q. Then in the year 2000, paragraph 10 indicates that she went to headquarters as the assistant director of the traffic control section. Do you see that? A. Yes, sir. Q. Now, does that accord with your memory, that she
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A. No, sir. Q. I appreciate that. A. Okay. Q. Now, if we jump ahead on this document, Plaintiff's Exhibit Number 1, let's try to find paragraphs 31 to 35. I'm just going to ask you to read 31 to 35 quietly to yourself and then I'm going to ask you some questions about it. A. (The witness reviews the document.) Q. Have you looked at 31 to 35? A. Yes, sir. Q. Just looking at 32, for example, 32, is there something called the Delaware Shield and Square Lodge of Freemasonry that's located here in Delaware? A. It's called the Lower Delaware Shield and Square Club. Q. Does it mention freemasonry in its name? A. No, it does not. Q. Is it a Masonic organization? A. It's an independent body of Masonic order, yes. Q. It's Lower Delaware Club -A. Shield and Square Club. Q. Where is that located? A. Kent and Sussex counties.
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eventually came as the assistant director of traffic at headquarters? A. Yes, sir. Q. You are aware that from 2001 she began serving as the director of the traffic control section; right? A. Yes, sir. Q. Now, for those years she's been at headquarters from 2000 through the present, let me just ask you, has she been in headquarters from 2000 to the present? A. Yes, sir. Q. You've been serving at headquarters during those years? A. Yes, sir. Q. Captain Conley has indicated that with the exception of her time at Troop 3 in Camden from 1997 to 1999, she has been in regular contact with you during her professional career. Do you agree with that statement? A. Mostly. You know, but as you know, the dates when I was in the drug unit are -- was when she was at Troop 5. So although I did stop in there some and I had a little office in the back where I did some of my paperwork, I mean, I don't know that I was in constant contact with her. Q. You wouldn't call it constant?

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Q. It covers Kent and Sussex counties? A. Yes. There's one in New Castle County, as well. Q. Does it have a meeting lodge somewhere? A. No, does not have a meeting lodge. We have meetings at different places to eat, just like the Lions Club goes to -- I mean, I use the Lions Club as an example. But we go to different places and have our meeting at, like, a restaurant. Q. How long have you belonged to that organization? A. I can't give you an exact date, but probably started sometime in 1985 in that organization. Q. Do you currently hold one of the highest three ranks in freemasonry? A. I'm third-degree Mason. Q. Is it a third or 33rd-degree Mason? A. Well, both. Q. So there is a third-degree Mason title and you hold that? A. Mm-hmm. Q. There's a 33rd-degree Mason title and you hold that? A. Yes. Q. Are you something that's called a master Mason? A. All third-degree masons are master masons.

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Conley Colonel L. Aaron Chaffinch

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Q. Is the highest degree in freemasonry this 33rd-degree Mason? A. Yes, sir. Q. You received that honor sometime in the past several years. Is that true? A. 33rd degree? Q. Yes. A. I received it on the 21st of September of 2004. I just received it last year. Q. Was there some ceremony you went to out in the Midwest to receive the title, or was that awarded to you here? A. I went to Milwaukee, Wisconsin. Q. The Delaware organization that you've described, I forget the title, is it true that it's never had an African-American member? A. I don't believe that it has, no. Q. Is it true that it has never had a female member? A. That's correct. Q. Is it true that only white males may join the Delaware organization to which you belong? A. Are you talking about the Lower Delaware Shield and Square Club?
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not sure. Q. Well, is it true that it indicates you have to be a male to join? A. Yes. Q. Do you know whether it indicates or not that African-Americans can't join? A. I'm sure that it does not indicate that. Blacks have their own Masonic order and women have their own -like a sister organization. The Order of the Eastern Star is the sister organization of Masonic order. Q. The masons historically is an organization that goes back into the 1800s, at least. Would you agree with that? A. I would say it goes farther back than that, probably. Q. Does it go back -A. George Washington was a Mason, so he is the first president of the United States. Q. So when you go down to Alexandria, Virginia, there's that big Masonic Temple? A. Yes, sir. Q. Have you ever been there? A. No. I've been by it, but I haven't been there. Q. So it goes at least back to colonial times?
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Q. Yes, the Lower Delaware -A. I'm not sure that we've ever had a black Mason petition it, petition this independent body. I'm not sure of that. Q. So what you are saying is you don't know whether an African-American has ever applied for membership? A. That's correct. Q. If that's correct, that would mean that no African-American has ever been denied membership? A. Not to my knowledge. Q. Are you indicating that you are unaware that any woman has ever applied for membership? A. Yes. Q. Okay. A. I would indicate that, as well. I hadn't, but I will, yes. Q. Now, do you know whether the organization has any written documents that describe the requirements for membership? A. I'm sure that it does. Q. Have you ever seen those documents? A. I probably have, but it's probably been years ago. I'm not sure if I have or not. I know you have to be 21 years of age. But other than that, I'm not -- I'm

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A. That's correct. Q. That's your understanding of it. Would you agree that before the Civil War in this country that there weren't Masonic organizations that African-Americans belonged to? A. I would imagine that's true, but I don't know that for sure. Q. Now, let me ask you some more questions. So you are saying, I think, you joined the masons sometime in the mid 1980s. Is that what you are saying? A. Joined my blue lodge in 1984. Q. 1984. Okay. Now, give me the name of the Delaware organization again. You called it the -A. Lower Delaware Shield and Square Club. Q. Okay. Lower Delaware. Now, is that a law enforcement component of the masons? A. You either have to be involved in law enforcement or firefighting. Q. Okay. A. But you have to be a Mason first. Q. So it encompasses public safety, meaning

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CERTIFICATE OF SERVICE I, Stephen J. Neuberger, being a member of the bar of this Court do hereby certify that on April 11, 2006, I electronically filed this Brief with the Clerk of the Court using CM/ECF which will send notification of such filing to the following: Ralph K. Durstein III, Esquire Department of Justice Carvel State Office Building 820 N. French Street Wilmington, DE 19801 James E. Liguori, Esquire Liguori, Morris & Yiengst 46 The Green Dover, DE 19901

/s/ Stephen J. Neuberger STEPHEN J. NEUBERGER, ESQ.

Conley/ Pleadings / Conley - AB to Ds M inL - Freemasons.final