Free Letter - District Court of Delaware - Delaware

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THE NEUBERGER FIRM
ATTORNEYS AND COUNSELLORS AT LAW

TWO EAST SEVENTH STREET SUITE 302 WILMINGTON, DELAWARE 19801-3707
WWW.NEUBERGERLAW.COM EMAIL: [email protected]

THOMAS S. NEUBERGER, ESQUIRE STEPHEN J. NEUBERGER, ESQUIRE

PHONE: (302) 655-0582 FAX: (302) 655-9329

June 5, 2006 The Honorable Gregory M. Sleet United States District Court District of Delaware 844 King Street Wilmington, DE 19801 RE:

Via CM/ECF Filing

Conley v. Chaffinch, et al., Civil Action No. 04-1394-GMS

Dear Judge Sleet: Plaintiff submits this letter in response to the Court's Order (D.I. 142) which requested a response "as soon as possible." Question 1(a) - When did Defense Counsel First Raise the IA Charges and Motivation Issue. Defense counsel first raised this issue today, the day before trial, during the Chambers conference with the Court. This issue was not raised in the pretrial order. Defendants did not raise this issue in their Statement of Contested Issues of Fact - all of which discuss qualifications and pretext paradigm issues. (See Tab A at p. 5). Nor did defendants raise this issue as a Statement of Contested Issues of Law - which simply track the three step McDonnell Douglas pretext paradigm. (See Tab A at p. 9). Accordingly, this issue was waived. See Ely v. Reading Co., 424 F.2d 758, 763 (3d Cir. 1970) ("the pretrial order is generally binding on the parties . . . [and] cannot be modified without the permission of the court and a showing of manifest injustice."). It is the day before trial. Plaintiff has prepared her case based on the issues presented in the pretrial order. Plaintiff will be greatly prejudiced by any 11th hour addition to the issues being tried. Question 1(b) - Was Plaintiff Deposed Regarding Her Motivation for Bringing Her Lawsuit. No, plaintiff was not deposed regarding her motivation for bringing her lawsuit. The closest reference to this issue from her lengthy two day deposition appears to be found at pages 111-112 where plaintiff explained that she believed that the IA charges being leveled against her in 2004 were part of defendant's gender biased efforts against her to keep her from applying for

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the Major's position being vacated by the retirement of Major David Baylor in August 2004. (Tab B - Conley depo. at p. 111-112).1 This is insufficient to put plaintiff on notice that defendants were raising the matter at issue. Question 1(c) - Was Plaintiff Put on Notice of the Defendant's Intended Use of the IA Charges in Any Other Way, For Example, By Interrogatories. No, plaintiff was not so put on notice. There is no mention of this issue any where in the 16 Interrogatories issued by the defense to plaintiff in this case. Nor is the issue mentioned in plaintiff's 82 pages of Answers to Interrogatories. The Defense Misconception of Legal Theories. In order to aid the Court further, plaintiff notes that the motivations for filing a discrimination lawsuit in 2004 are not relevant to the issue of whether discrimination occurred in two promotions decisions in 2003. The only legal paradigm to which motives are relevant are a certain subset of First Amendment free speech retaliation lawsuits brought by public employees. There, the motives of the speaker are subsumed as part of the content, form and context analysis required by Connick v. Myers, 461 U.S. 138, 147-48 (1983). See, e.g. Brennan v. Norton, 350 F.3d 399, 413 (3d Cir. 2003) ("the speaker's motive, while often a relevant part of the context of the speech, is not dispositive."); Johnson v. Lincoln Univ. of Com. System of Higher Educ., 776 F.2d 443, 451 (3d Cir. 1985) ("the mere fact that an employee's statement is an outgrowth of his personal dispute does not prevent some aspect of it from touching upon matters of public concern."). Importantly, this case is not a free speech retaliation case. The only claim against defendant Chaffinch is for gender discrimination in violation of the Fourteenth Amendment, which employs an entirely different legal paradigm. Cf. Fuentes v. Perskie, 32 F.3d 759, 763-65 (3d Cir. 1994) (discrimination paradigm), with Springer v. Henry, 435 F.3d 268, 275 (3d Cir. 2006) (free speech paradigm). Even though this case was a free speech case at one time, defendants never challenged plaintiff's motivations and did not take any discovery on this issue. Nor did they include any motivations questions in the pretrial order under contested issues of Fact or Law. The lack of inclusion of this issue in the pretrial order on the free speech issues is itself unremarkable given that the protected speech determination is a matter of law, Springer, 435 F.3d at 275, that is decided by the Court at the summary judgment stage and is not presented to the jury. I am at the Court's disposal to address these issues in greater detail if the Court so desires.

Plaintiff notes that at the time plaintiff's deposition was taken, Counts II and III were still in the case - which involved releasing information about plaintiff's IA charges to the Delaware media. There is a great deal of deposition discussion regarding the circumstances surrounding the release of this information to the Delaware media. 2

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Respectfully submitted, /s/ Stephen J. Neuberger Attorney for Plaintiff cc: Thomas S. Neuberger, Esq. (via CM/ECF) Ralph K. Durstein, Esq. (via CM/ECF) Stephani Ballard, Esq. (via CM/ECF) James E. Liguori, Esq. (via CM/ECF)

C onley \ Letters \ S leet.___

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Tab A

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Tab B

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In the Matter Of:

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

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

Barbara L. Conley
Volume # 1 December 7, 2005 -----------------------------------------------------------------------Wilcox & Fetzer, Ltd. Phone: 302-655-0477 Fax: 302-655-0497 Email: [email protected] Internet: www.wilfet.com

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VOLUME 1

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.

) ) ) ) Civil Action ) No. 04-1394-GMS ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Deposition of BARBARA L. CONLEY taken pursuant to notice at the Delaware Department of Justice, Carvel State Office Building, 820 North French Street, 6th Floor, Wilmington, Delaware, beginning at 9:40 a.m., on Wednesday, December 7, 2005, before Kurt A. Fetzer, Registered Diplomate Reporter and Notary Public. WILCOX & FETZER 1330 King Street - Wilmington, Delaware 19801 (302) 655-0477

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APPEARANCES: THOMAS S. NEUBERGER, ESQ. THE NEUBERGER FIRM, P.A. 2 East Seventh Street - Suite 302 Wilmington, Delaware 19801 For the Plaintiff JAMES E. LIGUORI, ESQ. LIGUORI MORRIS & YIENGST 46 The Green Dover, Delaware 19901 For the Defendant Colonel L. Aaron Chaffinch RALPH K. DURSTEIN, ESQ. STEPHANI J. BALLARD, ESQ. DEPARTMENT OF JUSTICE 820 North French Street Carvel State Office Building Wilmington, Delaware 19801 For the Defendants Lieutenant Colonel Thomas F. MacLeish, David B. Mitchell, and Division of State Police - - - - BARBARA L. CONLEY, the deponent herein, having first been duly sworn on oath, was examined and testified as follows: MR. NEUBERGER: If I could, we're on the record, if I could, my daughter went into the hospital in labor this morning at 4:00 o'clock. MR. LIGUORI: Congratulations. MR. NEUBERGER: If I'm a little nervous today or out of sorts or whatever, it's just because my mind is elsewhere, but I'm hoping that we can get

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Delaware State Police and Colonel Chaffinch as defendants. Is that your understanding? A. Yes. Q. And then you authorized your attorneys to amend that complaint to add two additional counts to it. Is that correct? A. Yes. Q. When those counts were added acting Colonel MacLeish at that time and Secretary Mitchell were added as defendants. Is that your understanding? A. Yes. Q. Let's deal with count 1 first. In that count as we understand it you claim you were twice denied a promotion to major back in 2003 and your complaint is that you believe you were denied promotion because of gender discrimination. Is that fair to say? A. Yes. Q. Those positions, the major positions were filled by Major Eckrich and Major Hughes. And it's your belief you were denied each of those promotions

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done at 5:00 o'clock and I can run over there or whatever. But I'm going to leave my cell phone on vibrate and if something happens I would like to take a break. Okay? MR. DURSTEIN: Absolutely. No problem whatsoever. Just let us know. MR. NEUBERGER: Thank you. MR. LIGUORI: Can we just go off the record for a second? (Discussion off the record.) EXAMINATION BY MR. DURSTEIN: Q. Good morning, Captain Conley. For the first part of the deposition I'm going to ask you some questions about the complaint that was filed, so it may be helpful to have that document in front of you. MR. NEUBERGER: I may have a copy of that. Q. If your attorney wants to provide you a copy, that's fine. Now, you authorized the filing of the complaint. I'm actually referring to the first amended complaint at this point. Originally, the original complaint had a single count with the

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because you're a woman? A. Yes. Q. Now, in the original complaint and as to count 1, you named Colonel Chaffinch and the Division of State Police as another defendant. Do you contend that any other person at the Delaware State Police discriminated against you? MR. NEUBERGER: In the promotions he's asking you. Q. Correct. A. In the promotions it would be Colonel Chaffinch. Q. Correct. Okay. Now let's start with the major position that was filled by Paul Eckrich. My understanding is that that position was an administrative budget position. Is that also your understanding? A. Yes. Q. And it's your contention that in 2003 when then Captain Eckrich was promoted that you were better qualified than him for that position. Is that correct? A. Yes. That's correct. Q. All right. Tell me what reasons you have that

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Barbara L. Conley
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felt that Sergeant Logan had. Sergeant Logan at the time probably would have been my number one choice that I knew of because I knew that he had done a wide variety of things at Dover P.D., including some grant writing and things of that nature. Q. Would it be fair to say that Lieutenant Campanella did not work out well as the assistant director? A. That would be fair to say. Q. And, in fact, in 2004 at your instigation the internal affairs unit initiated an investigation into Lieutenant Campanella's conduct. Is that correct? A. Just to clarify, I did report some behavior of his to Major Seifert and Lieutenant Colonel MacLeish. Basically, I was simply requesting his transfer for some problems that I was having with him and also the section and some of the outside agencies that we were dealing with. And ultimately it did get turned into internal affairs. Q. And you cooperated with the internal affairs investigation into Lieutenant Campanella? A. Yes. Q. I don't want to get into the entire internal

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A. I think it was probably after the summer, possibly September. Q. September of 2004? A. Yes. Q. What was your reaction to that? A. The fact that I was being investigated or charged? Q. I'm sure you were not happy about it? A. No, I wasn't happy. Q. Let me ask you this: Did you at that point when you learned that you were being investigated and then when you later learned that there were actually going to be charges brought against you, in your mind was any of that related to what you've alleged as discrimination on the part of Colonel Chaffinch? A. I believe it was related on some level. I had already spoke of having conversations with him about his treatment of women and so forth and had hopes that things would change. After that I began to see that that probably was not going to change. And I think when I realized that I started to seriously consider litigation and when I first made this complaint it took them almost four months, I believe, close to four

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affairs investigation. Would it be fair to say that part of what you complained about was inappropriate conduct on his part? A. Yes. Q. Do you remember how long he had been in the traffic section when you first sought his transfer, contacted Major Seifert? A. About eight months. Q. Would it be fair for me to say, just to summarize, that the investigation of Lieutenant Campanella resulted in charges and discipline being imposed on him? A. That's my understanding. Q. And he was transferred out of the traffic section as well. Is that correct? A. Eventually, yes. Q. Now, in the course of that investigation of Campanella you became aware that allegations had been raised about your own conduct. Is that fair to say? A. Yes. Q. And at some point, I guess this would be in the summer of 2004, you were formally advised that charges were going to be brought against you?

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months before I heard one word about what they were going to do. They kept Lieutenant Campanella in there in that environment with me for quite a while after he knew that I had complained to the staff about some of his incidents, which created quite a hostile environment for me. I began to realize way before I was formally charged with anything that this investigation had shifted to me being the focal point of the investigation and at that point I did directly feel that it was a result of Aaron's fear. He only became more fearful of me I believe after I talked to him that I was going to pursue litigation for promotional reasons. Q. When was that conversation? A. When we had the conversation at SOAR in November of '03. After that time I sensed that he was more concerned with me that I may sue than he was before. And we didn't have a conversation about it. Just his behavior, coupled with during this same time during that summer I was treated very badly at the Harrington Fair by him as well. He was angry with me at that point because I think he thought that I was supportive of the Greg Warren lawsuit and things were

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Barbara L. Conley
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just going downhill. And it was during that whole period of time that I was getting my mind and my finances prepared to file suit. Q. Well, maybe I misunderstood. I thought I heard you say at one point that at the SOAR retreat you made some mention of filing suit. Did I misunderstand that? A. No, not at the SOAR retreat. No. When I talked to him about my concerns and everything and he was pretty receptive at that time I thought, then after that point I never saw any change. It just continued to get worse, lack of support for the situation that I had with Campanella and so forth and then the treatment at the fair and some things like that. And I could see very early on that this was, that his behavior and his treatment of women and myself was not going to change. Q. Did you have a conversation with Colonel Chaffinch at sometime before your attorney filed the lawsuit where you said, "I'm going to have to file a lawsuit"? A. No. Q. That's what I misunderstood. I'm trying to get a fix on the kinds of

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A. Yes. Q. The process works in such a fashion that after there's some determination, the ultimate decision on discipline and penalty and so forth within the State Police would be the superintendent, correct? A. Yes. Q. Before it gets to that point, and this is my question, did you have an expectation that Colonel Chaffinch who would know something about it as superintendent would intervene on your behalf to prevent that investigation from going forward? A. No, I didn't think he would intervene on my behalf. I expected early on when I was having other problems that were starting to develop with Campanella I had spoken with him about it and I expected him to try to do something to remedy that before it got to the level that it did, and nothing ever happened. He basically just listened and ignored me. I also firmly believe that he was actually a catalyst for the turn of events that resulted in me being charged and, quite frankly, I felt that I was being singled out for discipline, severe discipline for behaviors that were being exhibited on a much greater level by himself and others every day.

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things you expected after the retreat of Colonel Chaffinch and how you were disappointed. When the investigation took its turn and you became the subject of an investigation and later charges, was it your expectation that Colonel Chaffinch would use his authority to prevent that or interrupt that process? A. Well, did I think that -- could you rephrase that? Q. Sure. Let me back up a little bit. Am I correct that when there's an investigation into conduct and possible discipline of an officer that needs to be done, it's assigned to the internal affairs unit? Is that fair to say? A. Yes. Q. And in this instance the Campanella investigation was done by internal affairs so far as you know? A. Mm-hmm. Q. Yes? A. Yes. Q. And that's also true, sort of the outgrowth of the same investigation was an investigation of you by internal affairs. Is that right?

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Q. Let me ask a couple of questions about that. When you say you think nothing was done by Colonel Chaffinch when you complained about Lieutenant Campanella, one thing that was done was the internal affairs disciplinary investigation of Campanella? A. Well, I'm talking about earlier than that, earlier in that period of eight months when the civilian staff that I had and everyone had started to complain. He was only in the section three days before I started receiving complaints from my civilian staff about him and I had talked to Colonel Chaffinch a couple of times about that prior to it reaching the level where he had handed me like anti-female-related cartoons and so forth. And I just felt that that went above and beyond. He was sending a very clear message to me that he didn't intend to listen to me or take me seriously. Campanella I'm talking about. But Colonel Chaffinch didn't do anything leading into that. I had told him very early on that this wasn't working out, not only for me but for the rest of the civilian women that were in that section. And he basically didn't do anything to try to help facilitate any kind of a resolution, nor did he assign it to any of the majors.

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Barbara L. Conley
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I had also gone to Major Seifert numerous 1 times through e-mails trying to say this is not 2 working out down here; it's getting worse; it's 3 escalating. And nothing was done. 4 Q. You also said that you thought that Colonel 5 Chaffinch was a catalyst, as you put it, in the IA 6 investigation against you. 7 What evidence do you have of that? 8 A. Well, I know that despite what the manual may 9 say that Colonel Chaffinch is very well-aware of these 10 internal affairs investigations as they develop. He 11 had -- as you know, there was an ongoing investigation 12 involving Major Hughes and Captain Hawkins over a 13 domestic and the way it was handled and Aaron was 14 intimately involved in that. 15 He had come down to my office and 16 basically was very, very upset and irate about Captain 17 Dixon's role in that and was pretty much trying to get 18 me to send a message to Dixon to lay down on this 19 information because he didn't feel that Major Hughes 20 did anything wrong, even though ultimately it was 21 determined that he had done something wrong. And so I 22 knew from that experience that despite the fact that 23 he is supposed to remain this neutral party at the top 24 25
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forth, but I would say that the continued lack of support for women's issues, not only myself but the civilian women that I had in my section, the civilian women at the Office of Highway Safety that had had problems with Lieutenant Campanella, the huge delay that it took them to respond to that even though they knew the level to which it had risen led me to believe that nothing was going to change and it further confirmed in my mind that this was a gender-based problem with Colonel Chaffinch. Q. Major Baylor's position was what when he left office? What were his responsibilities? A. He was operations major in New Castle County. Q. Do you think that you as a downstate person would have been qualified to fill that position? A. I believe I would have been qualified. Essentially, those two roles, Kent and Sussex operations and New Castle County operations, are the same job; the only difference being familiarity with some of the territory. And in my particular case I had been dealing with the troops in New Castle County and had some level of knowledge. In addition to that one, when I was at the traffic lieutenant's position at Troop 3 there were

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of the chain for internal affairs things that he actually was involved in these during the developmental stages or investigative period. And based on some of his behavior and some comments and so forth, you have to remember the time frame here being that Major Baylor, prior to this investigation being refocused towards me, Major Baylor then announces he's going to retire. And my absolute 100 percent belief is that Aaron Chaffinch saw an opportunity to have this investigation shift and that that would give him some level of protection if he were going to replace Baylor with someone other than myself. Q. So are you alleging that Colonel Chaffinch somehow manipulated Captain Paige and the internal affairs process and told them to focus on you? A. I can only believe that that is possible. Q. Are you saying then that what you just said was, and "what you just said" being the internal affairs investigation focusing on you and charges being brought against you, was kind of the last straw that caused you to decide to file the lawsuit? A. I wouldn't say it was the last straw. It was obviously a component that entered into my mind and so

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some operations that we worked with jointly with Troop 9 due to them having the Salem Nuclear Plant surrounding territory and so forth that would be included in evacuations and so forth. So I think I was qualified for that as well and, again, keeping in mind that these majors' positions can be realigned and they had never at that point announced for sure if they were going to do any kind of a realignment at that point, but it was possible. Q. I thought you said earlier that Captain Mary Ann Papili as an upstate troop commander would have been not particularly well-qualified for the downstate Kent and Sussex position. A. She would have been in the same situation, not as familiar, but I don't believe that that should be an exclusionary factor completely for either party. Q. It's a consideration? A. It's a consideration, yes. Q. Let's turn to the complaint again. I want to deal with counts 2 and 3 which were added when the complaint was amended the first and only time. Are you familiar with the -MR. NEUBERGER: Page 19.

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Barbara L. Conley
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Q. To give you a reference, count 2 begins on page 19 of the complaint, paragraph 106. Are you familiar with the kind of notice that is required to be sent when a trial board has been named in a disciplinary matter? A. Yes, I'm familiar with that notice. Q. Is it your understanding that that notice is normally sent to all active duty personnel? A. My recollection is that it's sent and I believe it asks that if you have any particular reason why you think someone would have a conflict of interest or something of that nature to notify internal affairs. Q. So these days when everyone has e-mail, it would customarily be sent out by e-mail to all active duty officers? A. Yes. Q. And the notice, I mean the notice provision comes from the manual, correct? A. Yes. Q. And I think as you just said it gives notice of the officer charged, the nature of the charges, the date of the hearing and the composition of the trial board? A. Yes.

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A. Yes. Q. Now Colonel MacLeish, acting colonel at that point, was added as a defendant to counts 2 and 3. What evidence do you have that then acting Colonel MacLeish was the one who leaked information to Tom Eldred, who is the reporter involved? A. Well, he was the one in charge of the division at the time and I think that he's responsible, he was responsible for maintaining that confidentiality and enforcement of the rights under the Law Enforcement Bill of Rights that states that is confidential information. And that wasn't done and, therefore, in his capacity he was the person responsible. And I believe in the depositions that were taken he has indicated that he did know about it and he did authorize it to be released to the media. Q. Maybe I should back up. I probably asked the wrong question first. What is the confidential information that you contend was leaked to the media? A. The information, just the fact that there was even an IA charge being investigated or whatever and what those charges were and everything were all confidential material that should not have been

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Q. And your understanding is that there are couple of reasons for that. One is that if any officer has knowledge about the incident they're expected or obligated to come forward, correct? A. I don't believe it asks for that. It asks specifically for a conflict -- at this point it's already been investigated. All they're basically asking for is if you think there's some reason why one of these members shouldn't be on that board, then you should notify them about that. Q. Right. And you've seen, before the notice that went out in your case you've seen those kinds of things go out before. Is that correct? A. Yes, to the division. Q. Yes. Have you ever had occasion to contact IA and say listen, one of the officers sitting on the trial board may have a conflict or a problem? A. I never have that I recall. Q. Now, the amendment to the complaint that added counts 2 and 3 alleges that confidential information concerning the disciplinary action against you was leaked to the media. Is that your understanding of what you have alleged there?

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released outside of the department. And in this particular instance somebody sent the e-mail that was sent out that was supposed to be kept within the division, someone sent that to the news media. Upon that, they tried to confirm this information and then Colonel MacLeish and Secretary Mitchell through our public information officer confirmed all the information that was within that document to the news media and then they had the authority to release that publicly. And it mentioned very briefly the nature of the charges and everything. So the public and everybody reading that was left to reach their own conclusions as to what actually happened in that case. Q. Do you contend that any information beyond what appears in that document, that notice was leaked to the media? A. I think, yes, because I think it listed things as violation of rule number whatever. And when that went to the media they authorized and advised the PIO to tell them what those sections were, that section 40 would be sexual harassment in the workplace or hostile work environment and rule number whatever was poor judgment, whatever they were at the time.

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