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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE : : : : Plaintiffs, : : v. : : COLONEL L. AARON CHAFFINCH, : individually and in his official capacity as : Superintendent of the Delaware State Police; : LIEUTENANT COLONEL THOMAS F. : MACLEISH, individually and in his official : capacity as Deputy Superintendent of the : Delaware State Police; DAVID B. MITCHELL, : in his official capacity as the Secretary of the : Department of Safety and Homeland Security of : the State of Delaware; and DIVISION OF : STATE POLICE, DEPARTMENT OF SAFETY : AND HOMELAND SECURITY, STATE OF : DELAWARE, : : Defendants. : CORPORAL B. KURT PRICE; CORPORAL WAYNE WARREN; and SERGEANT CHRISTOPHER D. FORAKER,

C.A.No.04-956-GMS

PLAINTIFFS' ANSWERING BRIEF IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

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] Attorneys for Plaintiffs Dated: February 8, 2006

MARTIN D. HAVERLY, ATTORNEY AT LAW MARTIN D. HAVERLY, ESQ. (#3295) Two East Seventh Street, Suite 201 Wilmington, DE 19801 (302) 654-2255 [email protected]

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TABLE OF CONTENTS NATURE AND STAGE OF THE PROCEEDING......................................................................................1 SUMMARY OF THE ARGUMENT............................................................................................................1 STATEMENT OF FACTS............................................................................................................................1 A. B. C. Introduction.........................................................................................................................1 Defendants Admit the Long Standing Health and Safety Problems at the FTU.................1 The Decision to Stop Doing Hazardous Maintenance........................................................2 1. 2. 3. Plaintiffs Informed the Chain of Command...........................................................2 Lack of Training.....................................................................................................3 Plaintiffs Are Not At Fault for the Failure of the Bullet Trap and the Destruction of the FTU..........................................................................................4

D.

Medical Issues.....................................................................................................................6

ARGUMENT................................................................................................................................................7 I. II. STANDARD OF REVIEW.................................................................................................7 PLAINTIFFS ENGAGED IN FIRST AMENDMENT PROTECTED SPEECH BY SPEAKING OUT ABOUT THE PROBLEMS AT THE FTU...........................................8 PLAINTIFFS ENGAGED IN FIRST AMENDMENT PROTECTED PETITIONING OF THE GOVERNMENT FOR REDRESS OF GRIEVANCES.......................................9 A. B. The Big Picture.......................................................................................................9 The Activities Protected.......................................................................................10 1. 2. C. D. IV. Executive and Legislative Petitions........................................................11 Judicial or Quasi-Judicial Petitions.........................................................12

III.

The Specifics........................................................................................................12 Discussion............................................................................................................13

DEFENDANTS' RETALIATION AGAINST PLAINTIFFS WOULD CHILL A PERSON OF ORDINARY FIRMNESS FROM EXERCISING THEIR FIRST AMENDMENT RIGHTS..................................................................................................15 i

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A.

The "Chill a Person of Ordinary Firmness" Standard..........................................15 1. 2. Light Duty is Adverse Action................................................................15 Sending Plaintiffs For Fitness for Duty Exams Also is Adverse Action......................................................................................................16

B.

Defendants' Long Course of Retaliation Against Plaintiffs Would Chill a Person of Ordinary Firmness................................................................................17 The Cases Cited by Defendants...........................................................................19 Summary...............................................................................................................19

C. D. V.

THE RECORD IS OVERFLOWING WITH CAUSAL EVIDENCE WHICH DEMONSTRATES THAT PLAINTIFF'S PROTECTED FIRST AMENDMENT ACTIVITY WAS A SUBSTANTIAL OR MOTIVATING FACTOR IN THE RETALIATION AGAINST HIM.....................................................................................20 A. Substantial or Motivating Factor..........................................................................20 1. 2. Motive in General....................................................................................20 Knowledge of Protected Conduct...........................................................21 a. b. 3. 4. 5. 6. MacLeish's Involvement............................................................22 Chaffinch's Authorization..........................................................22

Demonstrated Anger, Hostility and Antagonism....................................24 Temporal Proximity................................................................................24 Violations of Law, Policies and Procedures...........................................25 Disparate Treatment................................................................................26 a. b. The Law of Similarly Situated Employees................................26 The Categories of Disparate Treatment Evidence In Which Comparisons Should Be Made...................................................27 (1). Troopers With Hearing Problems Who Were Accommodated..............................................................27 (a). (b). ii Major Joseph Forester......................................27 Cpl. John Powell..............................................27

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(2).

Troopers With Other Serious Physical Injuries Who Were Accommodated....................................................28 (a). (b). (c). (d). (e). (p). Sgt. Steve Swain...............................................28 Capt. David Citro.............................................28 Sgt. David Henderson......................................29 Cpl. Michael Jordan.........................................29 Cpl. XYZ (a pseudonym).................................29 Lt. Paul Sczubelek............................................29

(3).

Troopers Who Were Given Two or More Years on Light Duty.....................................................................30 (a). (b). (c). (d). (e). (f). (g). (h). (i). (j). (k). (l). (m). (n). (o). Cpl. Bruce Peachey..........................................30 Lt. ABC (a pseudonym)...................................30 Cpl. Scott Warner.............................................30 Cpl. Jerome Loveless.......................................30 Lt. Jeff David...................................................31 Cpl. Anthony DiAllesandro.............................31 Sgt. Shawn Nowrey..........................................31 Cpl. Everett Jackson.........................................31 Sgt. James Romanelli.......................................31 Sgt. Jahn Hitchens............................................31 Cpl. Christine Price..........................................31 Cpl. Bo Sarley..................................................31 Cpl. James Mosley...........................................32 Cpl. Joseph Condron........................................32 Trooper Randy Armistead................................32

7.

Selective Enforcement.............................................................................32 iii

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8. 9. 10. 11. 12. 13. B. V.

Underinclusiveness of a Proffered Reason.............................................33 Pretext and Coverup................................................................................33 Falsehoods...............................................................................................34 Intentional Destruction of Evidence........................................................34 The Big Picture........................................................................................34 Summary..................................................................................................35

Same Decision Anyway.......................................................................................35

DEFENDANTS ARE NOT ENTITLED TO QUALIFIED IMMUNITY........................36 A. The Health Care Line of Cases............................................................................36

CONCLUSION............................................................................................................................................37

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TABLE OF AUTHORITIES Cases Page

Adkins v. Rumsfeld, 389 F.Supp.2d 579 (D.Del. 2005)..............................................................22,24,26,33 Allah v. Seiverling, 229 F.3d 220 (3d Cir. 2000)..............................................................................16,19,21 Anderson v. Davila, 125 F.3d 148 (3d Cir. 1997)...........................................................9,10,12,13,14,16,21 Andrews v. City of Phila., 895 F.2d 1469 (3d Cir. 1990)...........................................................................34 Baldassare v. State of N.J., 250 F.3d 188 (3d Cir. 2001)..................................................................19,20,21 Bieregu v. Reno, 59 F.3d 1445 (3d Cir. 1995)............................................................................................10 Boyle v. County of Allegheny, Pa., 139 F.3d 386 (3d Cir. 1998).................................................................7 Bray v. Marriott Hotels, 110 F.3d 986, 992 (3d Cir. 1997)...................................................................25-26 Brennan v. Norton, 350 F.3d 399 (3d Cir. 2003)...............................................................12,13,18,24,26,36 C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159 (3d Cir. 2005).............................................................22,23 C.H. v. Olivia, 226 F.3d 198 (3d Cir. 2000) (en banc)................................................................................22 Cal. Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972)................................................11,12 Caver v. City of Trenton, 420 F.3d 243 (3d Cir. 2005).........................................................................15-16 Cox v. Louisiana, 379 U.S. 536 (1965).......................................................................................................32 Durham Life Insur. Co. v. Evans, 166 F.3d 139 (3d Cir. 1999)..................................................................17 Elrod v. Burns, 427 U.S. 347 (1976)...........................................................................................................18 Fasold v. Justice, 409 F.3d 178 (3d Cir. 2005)...........................................................................................24 Feldman v. Phila. Housing Auth., 43 F.3d 823 (3d Cir. 1994)...................................................................33 Hill v. City of Scranton, 411 F.3d 118 (3d Cir. 2005)............................................7-8,12,13,20,23,32,33,35 Holder v. City of Allentown, 987 F.2d 188 (3d Cir. 1993).........................................................................32 Jalil v. Avdel Corp., 873 F.2d 701 (3d Cir. 1989).......................................................................................24 Jensen v. Potter, -- F.3d --, 2006 WL 224002 (3d Cir. Jan. 31, 2006)................................................24,34 Kachmar v. Sungard Data Sys., Inc., 109 F.3d 173 (3d Cir. 1997)........................................................21,24 Keenan v. City of Phila., 983 F.2d 459 (3d Cir. 1992)..........................................................................21-22 v

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Krouse v. American Sterilizer Co., 126 F.3d 494 (3d Cir. 1997)...............................................................24 Kunda v. Muhlenberg College, 621 F.2d 532 (3d Cir. 1980).....................................................................26 McDonald v. Smith, 472 U.S. 479 (1985).............................................................................................10-12 McKee v. Hart, -- F.3d --, 2006 WL 27474 (3d Cir. Jan. 6, 2005)......................................................18,19 Miller v. Cigna, Corp., 47 F.3d 586 (3d Cir. 1995) (en banc)....................................................................20 Mount Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977)..............................................................20 Powell v. Alexander, 391 F.3d 1 (1st Cir. 2004).........................................................................................11 Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000)..................................................7,23,34 Resident Advisory Bd. v. Rizzo, 564 F.2d 126 (3d Cir. 1977)...................................................................26 Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997)...................................................................22 Robinson v. SEPTA, 982 F.2d 892 (3d Cir. 1993)......................................................................................24 San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir. 1994)....................................................................9-14,26 Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061 (3d Cir. 1996) (en banc).......................33,34 Stewart v. Rutgers, the State Univ., 120 F.3d 426 (3d Cir. 1997)..............................................................25 Suarez Corp. v. McGraw, 202 F.3d 676 (4th Cir. 2000).............................................................................19 Suppan v. Dadonna, 203 F.3d 228 (3d Cir. 2000).................................................................................18-20 Swartzwelder v. McNeilly, 297 F.3d 228 (3d Cir. 2002)............................................................................18 Thomas v. Collins, 323 U.S. 516 (1945).....................................................................................................10 United Mine Workers of America v. Ill. State Bar Ass'n, 389 U.S. 217 (1967)...................................10,11 U.S. v. Cruikshank, 92 U.S. 542 (1876)......................................................................................................10 U.S. v. Nat'l Treasury Employees Union, 513 U.S. 454 (1995)..................................................................18 Village of Arlington Heights v. Metropolitan Hous. Develop. Corp., 429 U.S. 252 (1977)......................25 Watters v. City of Phila., 55 F.3d 886 (3d Cir. 1995).................................................................................36 We, Inc. v. City of Phila., 174 F.3d 322 (3d Cir. 1999)..............................................................................13 Woodson v. Scott Paper Co., 109 F.3d 913 (3d Cir. 1997).........................................................................24 vi

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Constitutions, Statutes and Rules U.S. Const., Amend. I...........................................................................................................................passim Fed.R.Civ.P. 56(c).........................................................................................................................................7

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NATURE AND STAGE OF THE PROCEEDING Plaintiffs rely upon the Nature and Stage of the Proceedings set forth in their Opening Brief in Support of their Motion for Summary Judgment. (D.I. 84). This is plaintiffs' answering brief and appendix ("B___"), in opposition to defendants' motion for summary judgment.1 SUMMARY OF THE ARGUMENT Plaintiffs engaged in a long course of protected First Amendment speech and petitioning of government for redress of grievances beginning in December 2003 and continuing well into 2004. Supreme Court and Third Circuit precedent conclusively establishes that plaintiffs are legally entitled to the protections of both the speech and petition clauses. There is abundant record evidence that plaintiffs' protected activities were a substantial or motivating factor in the retaliation against them. Additionally, defendants' long and continuing course of retaliatory harassment against them is more than sufficient to chill a person of ordinary firmness from exercising their First Amendment rights. Likewise, long established First Amendment retaliation law makes it clear that the defense claims of qualified immunity in this regard also without merit. STATEMENT OF FACTS A. Introduction. In the interests of brevity and judicial economy, plaintiffs rely upon and incorporate by reference the exhaustive Statement of Facts contained in their opening brief in this case and in the companion Foraker action. B. Defendants Admit the Long Standing Health and Safety Problems at the FTU. Aside from its remarkable dearth of record cites, the most notable things about the defense brief are the items it admits and concedes. Defendants concede that the design and building process for the FTU was flawed from its very inception. They admit that the bidding, design and building of the FTU was flawed. They admit corners were cut. They admit that government

Defendants' summary judgment opening brief will be cited as "DOB" and plaintiffs' own summary judgment opening brief will be cited as "POB."

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incompetence played a role in the problems the facility has experienced. They admit that blood lead levels have always been a concern. They admit that the switch to frangible ammunition helped destroy the bullet-trap. (DOB at 6-7). C. The Decision to Stop Doing Hazardous Maintenance. However, defendants wrongly fault plaintiffs' decision to stop conducting dangerous hazardous material maintenance at the FTU. (DOB at 9). Sgt. Foraker testified about this at length in his deposition and indicated that the decision to stop doing maintenance was done for two reasons - both related to health and safety. First, it was done because of the dramatic spike in blood lead levels that occurred when plaintiffs conducted the hands on maintenance despite their lack of training and protective equipment. For example, plaintiff Price's lead levels quickly spiked 6 points and DSP doctors told plaintiffs that their bullet-trap maintenance was the cause of the dramatic lead spikes. Second, it was done because the facility was so severely understaffed, it was impossible to try to keep the recruits in their charge properly and safely supervised while also doing the time intensive maintenance the specialized bullet-trap required. (Foraker 82-84, 61, 75,79; Price 62-67; MacLeish ex. 11; A701,695,699,700,1276-77,226-27). 1. Plaintiffs Informed the Chain of Command. Defendants wrongly claim that plaintiffs never told anyone that they had stopped conducting expert and hazmat maintenance at the FTU. (DOB at 10-11). This is plainly false. Both Sgt. Foraker and his direct supervisor Captain Warren testified that plaintiffs told Captain Warren in December 2003 that they had stopped performing maintenance on the bullet-trap for health reasons. (G. Warren 8183; Foraker 84-85, 75, 91-92; Price 74; MacLeish ex. 11; A1942-43,701,699,703,1279,226-27). Capt. Warren then immediately tried to schedule a meeting with MacLeish to fill him in on what was occurring and tell him that maintenance had ceased because of health and safety concerns. (G. Warren 81-82; A1942-43). Unfortunately, MacLeish kept canceling the scheduled meetings

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for personal reasons, so it took Capt. Warren weeks before MacLeish finally granted him the privilege of an audience. (G. Warren 81-84, 106-07; A1942-43,1949).2 So although plaintiffs immediately passed this information up the chain of command in December 2003, it was not until approximately the third week of January when MacLeish finally found the time to sit down with Capt. Warren and Lt. Davis to talk about the matter. (G. Warren 82-83; A1943). Thus, the record reveals the exact opposite of the defense contention - despite MacLeish's best efforts to blow him off, Capt. Warren discussed the decision to stop doing maintenance with Lt. Col. MacLeish in numerous meetings and passed up the chain of command the information that plaintiffs had given him earlier in December 2003 about the maintenance decision. (G. Warren 93; A1945).3 2. Lack of Training. Also, the defense claim is false that plaintiffs received training in the operation and maintenance of the bullet trap. (DOB at 9). There is a significant and notable distinction between receiving specialized technical and mechanical training in how to maintain a complex million dollar piece of equipment,4 and lay persons just doing their best to unclog clogged screens and replace broken pumps as part of a desperate effort to keep the system functional. The very deposition testimony defendants have cited reveals that plaintiffs received no formal training. It was catch as catch can at the FTU. No doubt bullet-trap training and repair was one of the numerous corners the State cut when it contracted for the facility and gave the contract to an inexperienced local builder. MacLeish was just "blowing us off." (G. Warren 106, A1949). "[I]t's really inexcusable that it should take a captain a month and a half to meet with his boss over something as important as people's health." (G. Warren 106-07, A1949). No doubt MacLeish was blowing off Capt. Warren because he had failed to heed MacLeish's warning from several months before when MacLeish told him that he "needed to back off and ...lay down and ... quit being so boisterous about things within the division that weren't going the way they should have been and about policy that's being violated and rules and regulations that are being violated and things of that nature." (G. Warren 108; A1949). This is a piece of equipment whose intricacies it takes defendants more than a page to describe. (DOB at 7-8).
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Moreover, the defense claim that plaintiffs were responsible for conducting upkeep on the hazardous bullet trap is contradicted by their own internal memos which found that upon conducting a nationwide survey of firing ranges, "[s]omeone other than range personnel handle scheduled maintenance and removal of lead and other toxins in all cases." (MacLeish ex. 3 p.2; A209). Similarly, as Sgt. Foraker related to MacLeish on numerous occasions, upon investigating the hazardous material issues related to bullet-trap maintenance and consulting with experts in the field, these experts invariably advised that "professionals would be needed for the safe and efficient operation of the entire bullet trap system." (MacLeish ex. 11 p.2; Foraker 76,74,78,82; A227, 699-701). Indeed, many companies simply refused to come in and even try to maintain or repair the bullet-trap because of the dangers of lead exposure arising from it. (Foraker 76; A699). Yet defendants assert that plaintiffs, with no specialized mechanical training, no hazmat training and no protective equipment whatsoever (Chaffinch 60-62; MacLeish 64-65; Price Inter. #10 p.24-27; W. Warren 151-52; Foraker 24; G. Warren 164-65; A440-41,109,2289-92, 1427,686,1963), should have been responsible for maintaining the bullet trap.5 3. Plaintiffs Are Not At Fault for the Failure of the Bullet Trap and the Destruction of the FTU. Contrary to the defense mantra (DOB at 11), plaintiffs did not cause the destruction of the bullet trap and the FTU. Plaintiffs did not design the bullet trap. They were not trained in maintaining the bullet trap. Plaintiffs did not make the change to frangible ammo which defendants themselves admit destroyed the bullet trap as the bullet residue turned to concrete upon impact. (DOB at 10). They did not design the ventilation system that would

The passing defense references to the zamboni and the HEPA-VAC also are misleading. (DOB at 9). For example, the zamboni had not worked since summer 2003. (Foraker 116; A709). And even when it worked, there was the continuing problem of what to do with the toxic water residue that it generated. (See W. Warren 156-57; A1428). The zamboni was to replace the HEPA-VAC which was literally the width of a regular vacuum cleaner and which would take forever to clean a floor the size of the massive firing range. (Foraker 222; A780).

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inevitably fail. Plaintiffs did not build a broken building. They did not allow political cronyism and the good old boy network to take precedence over health and safety. What were plaintiffs to do? As discussed above, DSP doctors told them they were being poisoned by doing maintenance on the bullet trap, maintenance for which they had no training or protective equipment. Even properly equipped professionals refused to come in and work on the system. Plaintiffs informed the chain of command that they were ceasing to conduct maintenance for health and safety reasons, but then defendant MacLeish hides his head in the sand for over a month and refuses to address the issue. In the interim, as discussed in plaintiffs' opening brief (POB at 5-6), plaintiffs were diligently trying to bring in environmental and hazmat experts to help them determine the specifics and the causes of the numerous problems that were occurring at the FTU. Whenever plaintiffs went to the in-house `experts' at the State's division of Facilities Management, they were no aid at all. They routinely offered responses like "I wish I could tell you it's working, but all I can tell you is it's working as best it can." (Foraker 154-55; A719), and there is nothing to worry about, your bullets are non-toxic and cannot possibly harm you, (Davis 37-38; Price Inter. #12; A492-93,2300), which of course was plainly false. (Davis 38-40; Price Inter. #12; A493,2300-01). When Facilities Management refused to conduct environmental testing, plaintiffs paid for the testing out of their own budget. (Foraker 51-52; A694). Plaintiffs are low ranking Troopers in the DSP. They do not have the power, authority or political connections of defendants. In this hierarchical paramilitary organization, they did not have the authority to shut the facility down. (Foraker 49-50, 257, 268; A693,789,792). Plaintiffs did the best they could under the circumstances. They raised health and safety concerns. They informed their chain of command. They went to Facilities Management for help. Then on top of all of their other job duties, they took it upon themselves to investigate and gather all of the information and expert opinions they could to present to defendants and conclusively determine

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that the facility was broken, and that their worst fears were well-founded in fact. Plaintiffs did all they could to protect the health and safety of those who work and train at the FTU. And the thanks they got was two years worth of harassment. They are being run out of the DSP like lepers. Their professional lives are destroyed. Their good names were taken away from them. Their personal lives are in shambles. D. Medical Issues. The defense claim that plaintiffs requested audiological testing is flatly denied. The record evidence demonstrates the opposite conclusion. As discussed in plaintiffs' opening brief, plaintiffs had solely requested blood and urine testing to determine the levels of lead and other heavy metals in their bodies. They did not request hearing tests. (POB at 15). The falsity of the defense claim that plaintiffs requested hearing tests (DOB at 13) is quickly revealed by looking at the very e-mail they misleadingly cite for that proposition. The email from plaintiff Price to Sgt. Foraker explains that he is requesting a medical evaluation to determine whether he has been exposed to "heavy metals and other airborne" contaminants. (Defendants Combined Appendix at A506.6). As the former Director of Personnel for the DSP testified, to send the men for hearing testing when only blood and urine testing was requested is highly "unusual," (Dillman 149-151, 159, 157-58, 3-5,110-13; A2525-27,2535,2533-34,237981,2486-89), all the more so in light of the historic DSP practice of running away from hearing issues out of a well-founded fear that a large percentage of the active force would be found to have serious hearing problems. (POB at 15-17). This was the first step in the defense efforts to run plaintiffs out of the Division. Everything else, the numerous fitness for duty exams, light duty, everything flows from this unprecedented initial retaliatory act of ordering that hearing tests be conducted when only lead and heavy metal testing was sought. Defendants make much of the fact that plaintiffs subsequently applied for workers compensation benefits. But who can blame them? As discussed in plaintiffs' briefing in this and the companion Foraker action, with the DSP making it clear that they refuse to accommodate and

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take care of them in violation of its historical policies, plaintiffs are trying to do the best they can to protect their families as defendants prepare to throw them out on the trash heap of injured workers. The worker's compensation issue is a red herring designed to avoid the fact that it would never have arisen had unprecedented hearing tests not been ordered. ARGUMENT I. STANDARD OF REVIEW. A motion for summary judgment shall be granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Boyle v. County of Allegheny, Pa., 139 F.3d 386, 393 (3d Cir. 1998); Fed.R.Civ.P. 56(c). "All facts and inferences are construed in the light most favorable to the non-moving party." Boyle, 139 F.3d at 393. At summary judgment, "a court may not weigh the evidence or make credibility determinations; these tasks are left to the fact-finder." Id. To raise a genuine issue of material fact, "the [summary judgment] opponent need not match, item for item, each piece of evidence proffered by the movant, but simply must exceed the 'mere scintilla' standard." Id. (internal punctuation omitted). The Third Circuit recently revisited summary judgment standards in the First Amendment retaliation context. The recent opinion in Hill v. City of Scranton, 411 F.3d 118 (3d Cir. 2005), held that when an employer moves for summary judgment, even the uncontradicted testimony of interested witnesses supporting the employer, such as supervisors, employees and other workers, should not be considered or otherwise weighed in the summary judgment balancing. "[W]hen evaluating a summary judgment motion a court should not consider even uncontradicted testimony of an interested witness where that testimony supports the movant." Hill, 411 F.3d at 131 n.22 (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 149-151 (2000)); see also Hill, 411 F.3d at 129 n.16. Thus, the Hill decision reaffirms long existing Third Circuit and Supreme Court

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precedent and dictates that the defense reliance herein upon testimony and affidavits from its own employees is misplaced at the summary judgment stage due to their obvious bias, fear of losing their jobs or other retaliation. Thus, their testimony should be excluded from the Court's analysis of summary judgment issues. Additionally, defendants' own testimony should be disregarded because, as defendants, they certainly are "interested witness[es]" under Hill. 411 F.3d at 131 n.22. II. PLAINTIFFS ENGAGED IN FIRST AMENDMENT PROTECTED SPEECH BY SPEAKING OUT ABOUT THE PROBLEMS AT THE FTU. Defendants do not contest that plaintiffs engaged in First Amendment protected free speech on matters of public concern when they met with defendants in numerous meetings in February and March of 2004 and when they twice spoke to the State Auditors Office in May and July of 2004. (DOB at 22-23). Notably however, defendants refuse to make any mention of plaintiffs' long course of written and oral speech beginning in early December 2003 and continuing into January 2004 and after, in which they continuously raised grave health and safety concerns about the hazardous conditions at the FTU, up the chain of command, and directly in e-mails and meetings with defendants.6 Instead, defendants limit their concession of protected activity solely to meetings that occurred in February and March 2004. They have not conceded that plaintiffs continued to raise health and safety concerns in those same months and throughout this entire time period by other methods - be it orally, or through the numerous e-mails that are in the record. The extensive record of plaintiffs' speech in this regard is discussed at length in plaintiffs' opening brief. (POB at 5-12). That record explains that plaintiffs were constantly speaking out about the problems at the FTU, immediately upon Sgt. Foraker's reinstatement on

For example, defendants ignore the existence of plaintiffs' December 19, 2003 e-mail entitled "Emergency Range Issues" which was sent directly to MacLeish and in which they brought many of their health and safety concerns directly to his attention. (MacLeish ex. 11; A226).

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December 1, 2003. The record makes clear that even when plaintiffs were not sending e-mails or meeting directly with defendants, that they were speaking out to Lt. Davis and Capt. Warren in their chain of command, each of whom then raised plaintiffs' concerns and speech directly with the defendants and their Executive Staff. The record cited in plaintiffs' opening brief thus conclusively establishes that (1) plaintiffs were constantly speaking out and raising health and safety concerns from early December 2003 onward; and (2) that defendants had personal knowledge of plaintiffs' speech, because it was either spoken directly to them, or because the chain of command in this paramilitary organization brought it directly to their attention. (Id.). As discussed in plaintiffs' opening brief, it is clear that all of plaintiffs' speech from December 2003 onward, was clearly on matters of public concern. And given that defendants have offered no disruption defense, it is now undisputed that plaintiffs' speech is protected by the First Amendment. (POB at 28-32). III. PLAINTIFFS ENGAGED IN FIRST AMENDMENT PROTECTED PETITIONING OF THE GOVERNMENT FOR REDRESS OF GRIEVANCES. Defendants assert that plaintiffs' petitioning of the DSP to fix the broken FTU which was endangering the health and safety of all who worked and trained there, as well as their petitioning of the State Auditor, does not qualify as protected activity under the First Amendment's Petition Clause. (DOB at 34-35). As discussed below, defendants crabbed reading of the petition clause is wrong under decades of Supreme Court and Third Circuit authority. A. The Big Picture. The First Amendment protects the "right to petition the Government for a redress of grievances." U.S. Const., Amend. I. "The right to petition the government for grievances is a fundamental component of a just and orderly society." Anderson v. Davila, 125 F.3d 148, 164 (3d Cir. 1997). "[W]hen one files a `petition' one is addressing the government and asking government to fix what ... government has broken or has failed in its duty to repair," San Filippo v. Bongiovanni, 30 F.3d 424, 442 (3d Cir. 1994), such as plaintiffs'

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petitions to fix the broken and hazardous FTU in our present case. "The historical roots of the Petition Clause long antedate the Constitution." McDonald v. Smith, 472 U.S. 479, 482 (1985); see also Bieregu v. Reno, 59 F.3d 1445, 1453 (3d Cir. 1995) (observing that the independent pedigree of the Petition Clause goes back to colonial times). It is even "more ancient than -- the freedoms of speech and press." Bieregu, 59 F.3d at 1453. The Petition Clause "was not intended to be a dead letter - or a graceful but redundant appendage" to the rest of the First Amendment clauses. San Filippo, 30 F.3d at 442. Instead, it ranks "among the most precious of the liberties safeguarded by the Bill of Rights" and is "intimately connected, both in origin and purpose with the other First Amendment rights of free speech and free press." United Mine Workers of America v. Ill. State Bar Ass'n, 389 U.S. 217, 222 (1967). "All these, though not identical, are inseparable." Id. (quoting Thomas v. Collins, 323 U.S. 516, 530 (1945)). The "right to petition is cut from the same cloth as the other guarantees of [the First] Amendment, and is an assurance of a particular form of expression." McDonald, 472 U.S. at 482. As stated above, "when one files a `petition' one is addressing the government and asking government to fix what ... [it] has broken or has failed in its duty to repair." San Filippo, 30 F.3d at 442. "[T]he values in the right of petition as an important aspect of self-government are beyond question." McDonald, 472 U.S. at 483. The right to petition "is implicit in the very idea of government, republican in form." Id. at 482 (quoting U.S. v. Cruikshank, 92 U.S. 542, 552 (1875)) (internal punctuation omitted). The "fundamental importance of the right to petition [is] as a check against the government's abuse of power." Anderson, 125 F.3d at 162. B. The Activities Protected. In the words of James Madison, the "people `may communicate their will' through direct petitions to the legislature and government officials." McDonald, 472 U.S. at 482 (quoting 1 Annals of Cong. 738 (1789)) (emphasis added). Indeed, "[f]or decades, the Supreme Court has consistently recognized the right to petition all branches

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of the government ... for redress of grievances as among the most precious of the liberties safeguarded by the Bill of Rights." Powell v. Alexander, 391 F.3d 1, 16 (1st Cir. 2004) (emphasis added) (internal punctuation and citation omitted) (citing Cal. Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972) and United Mine Workers, 389 U.S. at 222). Accordingly, "the right to petition extends to all departments of Government." Cal. Motor Transport, 404 U.S. at 510 (emphasis added).7 It extends to "administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of Government." Id.; see also id. at 513 (noting that a party "ha[s] the right of access to the agencies and courts"). Thus, plaintiffs' petitions to the State Auditors Office and to the leadership of the DSP about the hazardous conditions at the FTU are clearly protected. As is their right, plaintiffs were petitioning branches of the Executive and administrative agencies, activities which the Supreme Court has recognized as protected conduct. 1. Executive and Legislative Petitions. In McDonald v. Smith, the petitions at issue were petitions directed to the President of the United States. Subsequent petitions also were addressed to members of Congress, as well as other officials in both the Executive and Legislative branches. See 472 U.S. at 481. Similarly, the petitions at issue in Cal. Motor Transport, were addressed to state and federal agencies. See 404 U.S. at 511. As the Third Circuit has recognized, the right of citizens to petition the Executive and Legislative branches dates back to William Blackstone and continues and finds its origins in the Magna Carta. See San Filippo, 30 F.3d at 443 and n.22, 23. Plaintiffs need not belabor this point. As just discussed, by petitioning the State Auditor and the leadership of the DSP, plaintiffs were plainly

As Blackstone wrote long ago, "there still remains a ... right, appertaining to every individual, namely, the right of petitioning the king, or either house of parliament, for the redress of grievances." San Filippo, 30 F.3d at 443 n. 23 (quoting 1 William Blackstone, Commentaries * 143). Recognizing this, the Third Circuit has explained that "[t]here is no persuasive reason for the right of petition to mean less today than it was intended to mean in England three centuries ago." Id. at 443 (emphasis added).

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engaging in protected petition clause activity. 2. Judicial or Quasi-Judicial Petitions. Thus, and contrary to the defense assertions (DOB at 35), the well-known "right of access to the courts is indeed but one aspect of the right to petition." Cal. Motor Transport, 404 U.S. at 510; accord San Filippo, 30 F.3d at 436; see McDonald, 472 U.S. at 484. Of course it "is undisputed that filing lawsuits and grievances ... implicate[s] the Petition Clause of the First Amendment." Brennan v. Norton, 350 F.3d 399, 417 (3d Cir. 2003); see Anderson, 125 F.3d at 161; Hill, 411 F.3d at 126. The petition clause "imposes on the [government] an obligation to have at least some channel open for those who seek redress for perceived grievances." San Filippo, 30 F.3d at 442. Importantly, it is beyond dispute that the petition clause applies with even greater force when the "government - federal or state - formally adopts a mechanism for redress of grievances for which the government is allegedly accountable." Id. As the Third Circuit has observed, it would undermine the Constitution's vital purposes to hold that one who in good faith files an arguably meritorious "petition" invoking that mechanism may be disciplined for such invocation by the very government that in compliance with the petition clause has given the particular mechanism its constitutional imprimatur. Id. But of course, as discussed above, this is by no means the only type of petitions that receive First Amendment protection.8 C. The Specifics. The protected status of petition is a matter of law. Hill, 411 F.3d at 127. Like free speech claims, petition clause claims also are analyzed using the same three-

Although not necessary under the case law just discussed, assuming arguendo the defense position that the adoption of a formal mechanism is in fact necessary, the defense argument is merely a red herring as the State has adopted such formal mechanisms that directly bear upon our present case. First, the State established the State Auditors office whose sole purpose is to ferret out impropriety in government - the very mechanism that plaintiffs invoked. Second, the Governor and the members of the legislature formally requested that the Auditor investigate the conditions at the FTU - thus establishing the very specific mechanism that plaintiffs invoked. Third, and more fundamental, is the establishment of a formal chain of command in the DSP which is the functional equivalent of the internal grievance procedures discussed by the Third Circuit in San Filippo. 30 F.3d 424. In the DSP, where the chain of command is paramount, formal grievances are lodged by raising issues up through the chain of command, as plaintiffs did in our present case.

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pronged protected activity analysis. Id. at 125. Importantly, the protected activity analysis under the petition clause is different than that under the free speech clause. In the petition arena, there is no disruption balancing nor is there a public concern analysis. Instead, matters of purely private concern are protected, as long as the petition is not a sham. Hill, 411 F.3d at 126; San Filippo, 30 F.3d at 440, 443; We, Inc., v. City of Phila., 174 F.3d 322, 330 n.2 (3d Cir. 1999); Brennan, 350 F.3d at 417; see also San Filippo, 30 F.3d at 434-43 (the Third Circuit's extensive analysis of the issue). As the Circuit stated in Brennan, a plaintiff need only show that the petition "was not frivolous in order to make out a prima facie claim for retaliation under the Petition Clause." Brennan, 350 F.3d at 417; see Hill, 411 F.3d at 126 (any lawsuit is a protected petition, so long as it is not "sham litigation"). Defendants have not contended that plaintiffs' petitions were not made in good faith or were frivolous nor could they in light of the record in this regard. Simply put, the making of a "petition is not a constitutionally permissible ground for" adverse action against anyone. San Filippo, 30 F.3d at 443. The government simply may not retaliate against those who petition it as such a result "is hardly consistent with the fundamental principles of orderly protest, which our Constitution sought to preserve by protecting our right to petition the government for redress." Anderson, 125 F.3d at 163. D. Discussion. In our present case, it is clear that plaintiffs' petitions to the State Auditor and to the leadership of the DSP are protected by the petition clause. Plaintiffs did not go out and stand on a park bench and raise their health and safety concerns directly to the citizenry. If they had, only the free speech clause would provide them with First Amendment protection from retaliation. But instead, plaintiffs raised their concerns directly to the government, the very government that had caused the problems, and the very government that had the power to fix the problems. This distinction is key. As the Third Circuit has explained, [W]hen one files a "petition" one is not appealing over government's head to the general citizenry: when one files a "petition" one is addressing government and asking government to fix what, allegedly, government has broken or has failed in its duty to repair.

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San Filippo, 30 F.3d at 442; accord Anderson, 125 F.3d at 162-63. This is exactly what plaintiffs were doing. As plaintiffs' opening briefs both in this case and the companion Foraker case make clear (and as defendants tellingly concede in the factual sections of their respective opening briefs), the FTU is broken. It has been broken since before the foundation was even laid on day one as the State of Delaware picked an unqualified builder to build the building and ignored expert studies warning that the proposed building would inevitably fail as designed. And things only got worse from there. It has never worked as promised. Instead, it has endangered the lives of thousands of officers who have worked and trained there since the facility opened in 1998. And the problems with the HVAC system, blood lead levels, the bullet trap, the heavy metal composition of the ammunition and all of the other problems have only continued and worsened over time. If there was ever a broken facility crying out for desperately needed help and repairs, it was the FTU. And it is plaintiffs who cried out for help. It is plaintiffs who petitioned the very government that violated its duty to build a safe facility in the first place. It is plaintiffs who petitioned the government to fix what it had broken and failed in its duty to repair. Under Third Circuit case law, case law that finds its origins not only in Supreme Court precedent but traces its history all the way back to the Magna Carta, the petition clause clearly protects plaintiffs' petitions. See San Filippo, 30 F.3d at 442 n.22; Anderson, 125 F.3d at 162-63. As the Third Circuit explained in the police department context in Anderson, Anderson [a police officer] was petitioning the government to "fix" a problem within the Virgin Islands Police Department. Instead of engaging in such repair, the Government compounded Anderson's grievances by initiating its [retaliatory] surveillance operation. Were we to ignore the Government's retaliation, we would render Mr. Anderson's First Amendment petition right effectively useless. Officials could simply engage in harassment any time an individual [petitions the government]. This result is hardly consistent with the fundamental principles of orderly protest, which our Constitution sought to preserve by protecting our right [to] petition the government for redress. Anderson, 125 F.3d at 162-63. In the same way, plaintiffs were desperately petitioning the government to fix the hazardous conditions at the FTU that were endangering the health and

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safety of all those who worked and trained there. In their supervisor's words, plaintiffs were "basically pleaing for help" and "waving a flag going `help'" as they spoke out about the hazards at the FTU and the dire need to fix them. (Davis 30,17-18, 28-29; G. Warren 75; A491,48788,490,1941). To ignore defendants' long course of retaliatory harassment against plaintiffs in response to their good faith petitions is hardly consistent with the protections that the petition clause was designed to provide. For the aforementioned reasons, plaintiffs' petitions to the government about the hazardous conditions at the FTU are protected by the petition clause. IV. DEFENDANTS' RETALIATION AGAINST PLAINTIFFS WOULD CHILL A PERSON OF ORDINARY FIRMNESS FROM EXERCISING THEIR FIRST AMENDMENT RIGHTS. Not surprisingly, no where in the defense brief have defendants discussed or even set forth the well-established legal standards governing adverse action in the First Amendment retaliation context. A. The "Chill a Person of Ordinary Firmness" Standard. In the interest of brevity and judicial economy, plaintiffs incorporate by reference the extensive and thorough discussion of First Amendment adverse action law contained in the companion Foraker action. In addition to that law, plaintiffs set forth the following which is specific to the FTU case. 1. Light Duty is Adverse Action. Defendants concede that placing plaintiffs on light duty is an adverse action and would deter a person of ordinary firmness from exercising their First Amendment rights. (DOB at 29). No doubt they concede this because Third Circuit law is clear in this regard. In Caver v. City of Trenton, 420 F.3d 243 (3d Cir. 2005), applying the even stricter Title VII statutory adverse action standard, the Third Circuit held that the placing a plaintiff on "administrative duty was an adverse employment action under [Title VII standards] in that it significantly altered his duties and status as an officer." Id. at 256. Thus it is clear that placing plaintiffs on light duty, in and of itself (and entirely independent of the long course of

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retaliatory harassment), is more than sufficient to meet the First Amendment adverse action standard. 2. Sending Plaintiffs For Fitness for Duty Exams Also is Adverse Action. Although merely sending an employee for a psychiatric evaluation "without more" is not adverse action under Title VII standards, Caver, 420 F.3d at 256, it has long been established that "an otherwise legitimate and constitutional government act can become unconstitutional when an individual demonstrates that it was undertaken in retaliation for his exercise of First Amendment speech." Anderson v. Davila, 125 F.3d at 161. As far as it relates to the First Amendment, "motives of government officials are indeed relevant, if not dispositive, when an individual's exercise of speech precedes government action affecting that individual." Id. "[G]overnment actions, which standing alone do not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire to punish an individual for exercise of a constitutional right." Allah v. Seiverling, 229 F.3d 220, 224-25 (3d Cir. 2000). Motives are key in this context. Thus, in light of the overwhelming evidence of MacLeish and Chaffinch's antagonism and hostility towards plaintiffs, it is clear that they have illicit motives.9 If sending them for fitness for duty audiological exams in and of themselves is not adverse action, certainly sending them with the intent of finding a pretext to retaliate against them certainly would chill a person of ordinary firmness.

For example, MacLeish testified that he thinks plaintiffs are a "real pain in the ass" for speaking out. (MacLeish 164-165; A134; accord Baylor 253; A325). Similarly in reference to Sgt. Foraker, Chaffinch publicly brags that - "I'm going to get that son of a bitch." (Dixon 17-18,77; A52728,542). Capt. Yeomans testified that MacLeish was "frustrated" and "upset" with plaintiffs because of their speech. (Yeomans 39; A2021). Both MacLeish and Chaffinch were admittedly unhappy that plaintiffs' speech was causing the DSP to be portrayed in a negative light in the media. (Chaffinch 134-36, 144-46; A459,461-62; MacLeish 162, 33-34; A134, 101-02). Lastly, as Major Baylor testified, it was discussed among the defendants and the Executive Staff that plaintiffs were being pulled out of the FTU and "decisions were muddied over personal feelings more than what was actually taking place." (Baylor 170-72, 174, 46-47; A282-83, 251). Plaintiffs "weren't being allowed to teach at the range because they had raised some issues ... about the working conditions in the range and their own health." (Baylor 171; A282).

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B. Defendants' Long Course of Retaliation Against Plaintiffs Would Chill a Person of Ordinary Firmness. As discussed in greater detail in plaintiffs' opening brief, and in plaintiff's opening and answering briefs in the companion Foraker action, defendants' long course of retaliatory harassment and acts of adverse action against plaintiffs include the following · Placing plaintiffs on light duty, thereby dramatically altering their job duties and responsibilities. (POB at 19-20). As discussed above, this independently constitutes adverse action. Suspending plaintiffs' police powers, forbidding them from wearing their uniforms, using their weapons and from preventing crimes in progress. (POB at 19-20). Taking away the police powers of a police officer is a dramatic alteration and reduction in job responsibilities, even under stricter Title VII standards. See, e.g. Durham Life Insur. Co. v. Evans, 166 F.3d 139, 152-53 (3d Cir. 1999). Sending plaintiffs for numerous retaliatory fitness for duty exams, as a means to find a pretext to get rid of them in retaliation for their speech. (POB at 15). As discussed above, when a defendant sends a plaintiff for a fitness for duty exam with the malicious intent of retaliating against them for exercising their First Amendment rights, this independently is adverse action. Repeatedly withholding exculpatory medical records from DSP physicians when sending Sgt. Foraker for these fitness for duty and other medical examinations. (Price OB at 16 n.14) (Defendants' Combined Appendix at A684). Refusing to apply the historic DSP policy of running away from and not looking into hearing issues. (POB at 16). Refusing to accommodate plaintiffs in violation of the DSP's long established practices. (POB at 17-19). As a result of this refusal to accommodate, plaintiffs are being run out of the Division and forced to retire. Refusing to accommodate plaintiffs and their hearing loss despite the fact the DSP has historically accommodated every Trooper who has ever had hearing problems. (POB at 17-18). As a result of this refusal to accommodate, plaintiffs are being run out of the Division and forced to retire. Refusing to accommodate plaintiffs and their limitations despite the fact that the DSP has historically always accommodated Troopers with physical injuries, other than hearing. (POB at 18-19). As a result of this refusal to accommodate, plaintiffs are being run out of the Division and forced to retire. Refusing to give plaintiffs two years of light duty, despite the long time historical practice of giving Troopers two years of light duty. (POB at 20-23). As a result of this refusal to accommodate, plaintiffs are being run out of the Division and forced to retire.

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Even though plaintiffs are on light duty, sending them suspension letters instead of light duty letters. (POB at 19-20). Refusing to let plaintiffs work overtime while on light duty, in violation of DSP's past practices. (POB at 23). Defendants themselves admit that plaintiffs' inability to work overtime is an actionable adverse action. (DOB at 29). Despite the long period of time that plaintiffs have been on light duty, the DSP's refusal to call plaintiffs once a week to check in on them to see how they and their families are holding up in accord with DSP rules and regulations. (POB at 25). As discussed in greater detail in the Answering Brief being filed in the companion Foraker case, the launching of a local, regional, national and international media campaign against plaintiffs in which they blamed them for the destruction of the multimillion dollar firearms training facility. As discussed in greater detail in the Answering Brief being filed in the companion Foraker case, Chaffinch and MacLeish's imposition of absolute gag orders to prevent plaintiffs from responding to Chaffinch's defamatory personal and professional attacks accusing them of cowardice, incompetence and of destroying the FTU. This unconstitutional prior restraint and gag order on plaintiffs' First Amendment free speech rights is a clear unconstitutional prior restraint on plaintiff's First Amendment right to freedom of speech under the Supreme Court's decision in U.S. v. Nat'l Treasury Employees Union, 513 U.S. 454, 468 (1995); see Swartzwelder v. McNeilly, 297 F.3d 228, 235-41 (3d Cir. 2002). Thus, defendants again violated and deprived Sgt. Foraker and his men of their First Amendment rights. As then Judge, now Justice Alito explained, "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury," Swartzwelder, 297 F.3d at 241 (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)), and a fortiori is adverse action. As a matter of law, gagging employees and depriving them of their First Amendment right to freedom of speech (especially when they are being publicly, falsely and maliciously attacked) is sufficient to chill a person of ordinary firmness and keep him from trying to exercise his rights. Plaintiffs hereby adopt and incorporate by reference the remainder of the adverse action listed in detail in the Answering Brief being filed in the companion Foraker action. As the foregoing list makes clear, under Suppan v. Dadonna, 203 F.3d 228, 234-35 (3d

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Cir. 2000), Brennan, 350 F.3d at 419 n.16, and McKee v. Hart, ­ F.3d ­, 2006 WL 27474, *3-5 (3d Cir. Jan. 6, 2005), this long "campaign of retaliatory harassment," against plaintiffs is more than "sufficient to deter a person of ordinary firmness from exercising his First Amendment rights." Suppan, 203 F.3d at 234-35. All the more so given that numerous items of the long campaign of retaliatory harassment, independently constitute adverse action under governing

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Third Circuit authority. At the very least, given that this is a factual determination, see id. at 235; Allah, 229 F.3d at 225; Baldassare v. State of N.J., 250 F.3d 188, 195 (3d Cir. 2001), it is up to a jury of plaintiffs' peers to determine this issue. C. The Cases Cited by Defendants. Plaintiffs incorporate by reference the remainder of the legal argument contained in the Answering Brief being filed in the companion Foraker action, including, but not limited to, the discussion of the inapplicability of McKee, Suarez Corp. v. McGraw, 202 F.3d 676 (4th Cir. 2000), and the remainder of the cases cited by defendants. D. Summary. As the evidence listed above (and the causal evidence discussed below) makes clear, by embarking on their long course of retaliatory harassment of plaintiffs, defendants intended to maliciously punish and humiliate them for exercising their First Amendment rights. They intended to ensure that they exacted a heavy price from them for daring to successfully speak out and petition the government in a way that admittedly angered and upset defendants. Such a long course of retaliatory harassment is certainly sufficient to make a person of ordinary firmness think twice about exercising their First Amendment rights, all the more so when many of the instances of retaliatory harassment independently meet the First Amendment adverse action standard. Any reasonably hardy individual would think twice about speaking out if they knew that defendants would suspend their police powers, publicly destroy them and turn their lives into a nightmare, all the while gagging and harassing them to the point of psychological breakdown.10 Indeed, who would dare to stand up and speak out under these circumstances? Importantly however, the adverse action standard is satisfied if the "retaliatory conduct [is] sufficient to deter a person of ordinary firmness from exercising his First Amendment rights." Suppan, 203 F.3d at 235. All that is needed is a chill, and the defense efforts certainly meet this standard. To the extent that the Court has any doubts in this regard, again, because the question

In fall of 2005, all three plaintiffs were declared to be psychologically unfit for duty as a result of the harassment and stress from the workplace. (Unfit for Duty Medical Records; B1-9,25-27).

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of whether a retaliatory action would chill a person with an ordinary backbone from exercising their rights is a question for the fact finder, this is uniquely a question to be resolved by a jury. Additionally, in light of the standard of review in which plaintiffs receive all the inferences, it is clear that plaintiffs have met and surpassed their burden and that summary adjudication for lack of adverse action is inappropriate. For the above mentioned reasons, there is overwhelming record evidence of adverse action. Accordingly, defendants' motion for summary judgment on this ground should be denied. V. THE RECORD IS OVERFLOWING WITH CAUSAL EVIDENCE WHICH DEMONSTRATES THAT PLAINTIFF'S PROTECTED FIRST AMENDMENT ACTIVITY WAS A SUBSTANTIAL OR MOTIVATING FACTOR IN THE RETALIATION AGAINST HIM. A. Substantial or Motivating Factor. Following the determination that their conduct was constitutionally protected, plaintiffs must demonstrate that this conduct was a "substantial" or "motivating factor" in the relevant decision. Suppan, 203 F.3d at 235; Mount Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). "But for" causation is not needed. Suppan, 203 F.3d at 236. "`Substantial factor' does not mean `dominant' or `primary' factor." Hill, 411 F.3d at 126 n.11. Instead, a plaintiff need only show that his protected First Amendment rights "played any substantial role in the relevant decision." Suppan, 203 F.3d at 236; see Miller v. Cigna, Corp., 47 F.3d 586, 597 n.9 (3d Cir. 1995) (en banc) ("played a role" in the adverse decision). This is a question of fact, not one of law. Baldassare, 250 F.3d at 195. Plaintiffs note that the overwhelming causal evidence in this regard was discussed in great detail in their opening brief in this case and in the companion Foraker action. However, in light of the defense position that there no evidence of causation, plaintiff will again address this issue below. 1. Motive in General. The defense repeatedly claims that defendants were deeply concerned with nothing more than the plaintiffs' health and safety, and that all actions they took were taken because defendants care about them deeply. (See, e.g. DOB at 28-29). As a practical matter, such a claim i