LEONARD P. STARK, District Judge.
On September 24, 2008, Le T. Le ("Le" or "Plaintiff") filed the present lawsuit (Docket Item ("D.I.") 1) against the City of Wilmington ("City"), the City's Manager of Integrated Technologies, Joseph F. Capodanno, Jr. ("Capodanno"), and the City's Director of Integrated Technologies, James J. O'Donnell ("O'Donnell") (collectively, "Defendants"). Le alleges: (i) copyright infringement in violation of the Copyright Act of 1976, 17 U.S.C. § 101, et. seq.; (ii) discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et. seq. ("Title VII"), as well as 42 U.S.C. §§ 1981 and 1983; (iii) conspiracy to interfere with civil rights in violation of 42 U.S.C. § 1985; and (iv) neglect or refusal to prevent conspiracy in violation of 42 U.S.C. § 1986. (D.I. 17) In his Amended Complaint (the "Amended Complaint"), Le also raises state law discrimination claims, pursuant to 19 Del. C. § 710, et. seq., and a claim for prima facie tort under Delaware state law. (Id.)
On October 1, 2008, this case was assigned to the Honorable Legrome D. Davis of the Eastern District of Pennsylvania, sitting as a Visiting Judge in the District of Delaware. On July 27, 2009, Judge Davis approved the parties' joint stipulation consenting to the exercise of jurisdiction by a magistrate judge and referred the case to the undersigned. (D.I. 25)
Pending before the Court are two defense motions for summary judgment: (i) Defendants' Motion for Summary Judgment with respect to Counts III-VIII of Plaintiff's Amended Complaint (the "Discrimination Motion") (D.I. 138), and (ii) the City's Motion for Summary Judgment with respect to Counts I-II of Plaintiff's Amended Complaint (the "Copyright Motion") (D.I. 140). The Court heard oral argument on both motions on August 3, 2010. (See Transcript of August 3, 2010 hearing (D.I. 158) (hereinafter "Tr.").)
For the reasons set forth below, the Court will grant both motions.
Plaintiff Le T. Le was hired by the Defendant City of Wilmington as an Information Analyst II on November 3, 2003. (D.I. 142 Ex. A at 4) He worked as part of the Network Division. (Id. at 121; D.I. 144 Ex. 1, Le Dep. at 5-6) Plaintiff's duties involved support and technical assistance to users of the City's computer network. (D.I. 142 Ex. A at 145)
Plaintiff claimed that his immediate supervisor, Terry Jones, expressly forbade Plaintiff from working on the Instant Ticketing program while at work.
The Network Division consisted of Plaintiff, who is of Vietnamese descent, and two other individuals, who were both African American. (D.I. 155 Ex. D at CITY001032) According to Plaintiff, Capodanno and O'Donnell's campaign to eliminate the Network Division was racially motivated. (D.I. 142 Ex. A at 102) Plaintiff claimed that Capodanno and O'Donnell had been overheard by City employees making derogatory remarks about minorities and making remarks about not being able to understand Plaintiff when he spoke. (Id. at 36, 84) Plaintiff himself did not hear Capodanno or O'Donnell make any racially insensitive comments. (Id. at 87, 99)
Plaintiff testified that as part of Capodanno and O'Donnell's campaign to eliminate the Network Division, they decided to blame a series of ongoing computer problems on the Network Division. (D.I. 142 Ex. A at 43-45, 48) In Plaintiff's view, all of those problems were caused by a new computer application called "MUNIS" that had been recommended by Capodanno and O'Donnell. (Id. at 33-34)
The City contends that for the 2008 Fiscal Year ("FY '08") Budget, the City determined that it would be more economical and efficient in terms of cutting edge technology to outsource the functions of its Network Division. (D.I. 155 Ex. D at CITY001032)
The City replaced the Network Division with an outside contractor, Diamond Technologies. All of the Diamond employees who undertook the responsibilities formerly carried out by the Network Division were white.
Three days after the City Council vote, on May 21, 2007, Plaintiff filed a Certificate of Registration with the United States Copyright Office seeking federal copyright protection for his Instant Ticketing software. (D.I. 144 Ex. 1, Le Dep. at 329) On May 24, 2007, Plaintiff and the other members of the Network Division were officially informed that their positions would be eliminated. (D.I. 142 Ex. H at 1636) On June 5, 2007, Plaintiff removed his Instant Ticketing software from the City's computer network server. (D.I. 142 Ex. A at 64)
(Id. at 69-70; see also id. at 81) Defendants did not feel the same way: later on June 5, 2007, the day Le removed the software from the City's server, Le was suspended, directed to reinstall the Instant Ticketing application, and threatened with prosecution if he did not do so. (D.I. 142 Ex. A at 75-76) After Plaintiff complied, he was terminated. (Id. at 83, 251)
A grant of summary judgment is appropriate only where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
To defeat a motion for summary judgment, the non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. 1348; see also Podobnik v. U.S. Postal Service, 409 F.3d 584, 594 (3d Cir.2005) (party opposing summary judgment "must present more than just bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue") (internal quotation marks omitted). However, the "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment;" a factual dispute is genuine only where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50, 106 S.Ct. 2505 (internal citations omitted); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (entry of summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial").
In Counts I and II of his Amended Complaint, Le alleges copyright infringement, in violation of the Copyright Act of 1976, 17 U.S.C. § 101 et seq. (D.I. 17 at ¶¶ 38-48) Specifically, Le alleges the City infringes the instant ticketing software application registered by Le with the Copyright Office as TXul-359-357 (the "Work"), when the City uses such application for its program to issue instant tickets for code violations. (D.I. 141 at 1; see also D.I. 17 at ¶¶ 7-19, 38-48; D.I. 130 Ex. A, Countercl. ¶¶ 6-7; D.I. 144 Ex. 11 at LTL 0183) Le contends he registered only his source code with the Copyright Office, so he claims a copyright only on the code (the "Code"). (D.I. 143 at 8-9, 36; see also D.I. 144 Ex. 1 at 73; D.I. 151 Ex. 1 at 333-35) He concedes that the City's database is City property. (D.I. 144 Ex. 1 at 73)
The City presents several responses to Le's allegations of copyright infringement. (See generally D.I. 130 Ex. A; D.I. 140; D.I. 141; D.I. 142; D.I. 146; D.I. 147) First, the City asserts the Work is a work made for hire and, hence, is rightfully owned by the City. (D.I. 141 at 1-2, 13-17) The City contends that even Le understood this fact, given that in several places in the Work Le himself included the following copyright notation: "Copyrights ©2004. City of Wilmington, Department of Information Technology" ("the City Mark"). (Id. at 1-2) The City further asserts a fraud defense, contending that Le, after learning his position with the City would be outsourced, intentionally and without the City's knowledge or consent, altered the copyright notice to make it appear as if he owned the copyright. (Id. at 1-2, 11-12) The City also argues that Le is estopped from asserting any
Le, of course, challenges the City's assertions. He contends that the record shows material issues of fact precluding summary judgment. As to the "work for hire" defense, Le contends that the City has forfeited the right to assert such a defense because the City, in correspondence from the City Solicitor, represented to Le that he could keep the computer Code he created, and it would not contest ownership. (D.I. 143 at 4) Moreover, according to Le, there are facts in dispute as to whether Le's creation of his Code was within the scope of his employment. (Id.) As to the City's assertion of fraud, Le says that the key issue is his intent, which requires a fact-intensive inquiry not amenable to resolution on summary judgment. (Id.) Likewise, Plaintiff contends, the City's estoppel and license arguments "rely on disputed facts as to intent, as to when the City was aware Plaintiff claimed ownership of the Code, and also on a mischaracterization of what Plaintiff claims constitutes infringement." (Id. at 5) The Court will consider each of the City's defenses in turn.
First, with respect to whether the Work was created by Le as a work-for-hire, the Court agrees with the City that Le created the Work within the scope of his employment and, therefore, Le does not own a valid copyright in it. The Supreme Court has explained:
Community for Creative Non-Violence v. Reid, 490 U.S. 730, 737, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989). The Copyright Act defines a "work made for hire" as including "a work prepared by an employee within the scope of his or her employment." 17 U.S.C. § 101; see also MacLean Assocs., Inc. v. Wm. M. Mercer-Meidinger-Hansen, Inc., 952 F.2d 769, 775 (3d Cir.1991). It is undisputed that Le was a City employee during the entire period in which the Work was created. (D.I. 142 Ex. A at 344; D.I. 143 at 33) It is further undisputed that there is no written agreement assigning ownership of the Work from the City to Le. Therefore, the only issue is whether Le created the Work within the scope of his employment. (D.I. 143 at 33) ("In the present case, Plaintiff does not dispute he was an employee of the City. The issue here is whether the Code was created within the Plaintiffs `scope of employment.'")
Le contends that he created the Work "after hours" in his own time. There is
However, there is persuasive authority to the effect that, even if Le created the Work on his own time, if he did so during his employment and without a specific written agreement from the City to the contrary, the copyright on the Work belongs to the City. For instance, in Genzmer v. Public Health Trust of Miami-Dade County, 219 F.Supp.2d 1275, 1281-82 (S.D.Fla.2002), a salaried employee (a doctor), whose job description did not include computer programming, wrote a computer program at home during his off-duty hours using a home computer he had purchased for himself. The doctor had been hired by the defendant as a full-time fellow to undertake a research assignment that encompassed "a myriad of activities" regarding organizing, directing, and administering a critical care unit. Id. at 1281. He wrote a computer program — one which computerized his department's patient consultation reports — at home, then beta-tested it at work, and thereafter altered the program. Id. at 1282. The doctor had obtained his employer's approval to load the program into the employer's computers. Id. at 1278. He also registered a copyright for the program. Id. After being terminated by the defendant, the plaintiff programmed a "bug" to disable the program. Id. In granting defendant's motion for summary judgment, the court emphasized the fact that the doctor had developed the program during the period in which he was employed by the defendant. Id. at 1282. The time of day and location of the work were not important. See id. (Plaintiff "developed the computer program on his own time [but] . . . was a salaried employee involved in a research project. It is undisputed that, during the research period, fellows normally would not be in [the hospital] seeing patients. Rather, they would be working on their projects primarily outside of their department, such as by conducting research in the library. Because [plaintiff] was completing most of the computer program during his research phase, it follows that he would not have developed the software, or performed any other aspect of his research project, in the Department. What matters is that [plaintiff] performed the work during the time
The issue here remains whether Le created the Work in the scope of his employment (regardless of whether he did so at home during his own time or at the office during working hours). The undisputed record establishes that the Work was made to facilitate the City's business of issuing tickets of various violations. (D.I. 17 ¶ 10 ("During 2003, plaintiff became personally challenged by the idea of developing a software application that could be used by L & I to issue and keep track of citations by computer software rather than paper tickets. . . . [I]f he could create such a software application, an instant ticketing application [,] . . . he would be able to provide it to the City. . . ."); D.I. 144 Ex. 1 at 263 ("The original goal was I thought it would help City's department, would lessen their workload, the paperwork.")) Le began to work on the ticketing program at the direction of Jeffrey Starkey, Commissioner of L & L (D.I. 142 Ex. Q at 18-19) In December, 2003, following a meeting to discuss how the Department of Information Technology ("IT") could assist L & I, it was decided that: "Le T. Le will be developing a web-enabled Building Inspection/Violation Notice form. Currently this form is filled in manually and sent to Word Processing. Web-enabling this form will allow the Building Inspectors to generate their own forms without the need to send them to Word Processing. This project will reduce the turnaround time from two weeks to one day." (D.I. 142 Ex. E at CITY 16999) Le's supervisor, Terry Jones, assigned Le to the task of developing software for the instant violation/ticketing application because the software was not to be purchased from a vendor but instead created by IT. (D.I. 142 Ex. B at 16) Jones chose Le to develop it because of his programming skills discussed at his hiring interview. (Id. at 17) Le was given sample paper tickets in use before Instant Ticketing which contained the information which needed to be captured in the electronic version. (See D.I. 142 Ex. E at CITY 2277-2283, Le Dep. Ex. 61; id. Ex. A at 321-22; D.I. 147 Ex. U at 266) There is no dispute that Le used an old form to determine what to include, and that he purported to copyright only the source code, and not the form. (D.I. 142 Ex. A at 323-324) Le acknowledges that part of the City's business was to issue tickets for code violations. (Id. at 345)
Le testified that he completed coding the application on June 28, 2004. (D.I. 142 Ex. A at 378; id. Ex. M at CITY035697) Le did not file the Certificate of Registration of the copyright until May 21, 2007. (D.I. 144 Ex. 1 at 329) The copyright registration indicates that the program was not completed until May 3, 2007. (D.I. 142 Ex. H at LTL 1450-51, Le Dep. Ex. 63) This nearly three-year discrepancy is due to the fact that the code was continuously tested and revised not by Le alone, but with much assistance of other City personnel. (See, e.g., D.I. 151 Ex. 1 at 231-32 (with respect to when "the creative part of establishing the instant ticket program [was] done," Le testified that it was "probably about mid-2004, that's when I
Le was aware the City was using the Work from the time he put it on the City's network until June 2007. (Id. at 370-71) He received input from other City employees about the data with which the Work would run. (D.I. 142 Ex. A at 343; id. Ex. N; D.I. 147 Ex. U at 268-69) He was instructed as to the appearance of the form and text and heading modifications. That is, Le was told what reports—by inspector, census track, dates, and street— were required. (D.I. 142 Ex. N at CITY010968) The assistance he received included that of Commissioner Starkey, who closely supervised Le in this project. (Id. Ex. Q at 17) Meetings were conducted, sometimes weekly (id. Ex. A at 301), and the program was adjusted even after the copyright was registered (see D.I. 141 at 8-9 and Tr. at 8 (citing exhibits)). Le admits to making changes to the application based on communications with others. (See, e.g., D.I. 147 Ex. U at 267, 269, 274-77, 281-82, 285)
Le acknowledged testified that he "created and fixed" some of the source code at the City. (D.I. 142 Ex. A at 346) Le also admitted that when he created the Work he "reused and modified some code from files he had created for City owned programs." (D.I. 143 at 32; D.I. 144 Ex. 1 at 365) Moreover, Le periodically identified the job responsibilities he was handling for the City, which included the L & I Violations project (later to include the Instant Ticket project). (D.I. 142 Ex. M at CITY11030, Le Dep. Ex. 3; see also id. at CITY016925, 016895, 012668 (Le listing his responsibilities in January 2007 as including "creat[ing] web application system for housing & building inspectors to do instant ticketing and inspections") Le further admitted to making "s mall" changes to the software that others had suggested. (D.I. 147 Ex. U at 267-285; D.I. 142 Ex. N) Le was awarded a "Key to Success" award from the City in connection with his work on the Work. (D.I. 143 at 24; D.I. 141 at 7-8) The Mayor of Wilmington recognized Le's contribution to the L & I team project on October 4, 2004, in recognition of "outstanding service to the City of Wilmington." (D.I. 142 Ex. H at LTL 52)
In the Court's view, all of this evidence establishes that Le created the Work within the scope of his employment with the City, rendering—in the circumstances presented here—the Work a work-for-hire. There is not evidence in the record that would permit a reasonable factfinder to conclude otherwise. Accordingly, Le does not hold a copyright in the Work and the City cannot be liable for copyright infringement, making summary judgment for the City appropriate.
With respect to the estoppel defense, the Court agrees with the City that the undisputed record demonstrates that Le knew of the City's use of the Work, that Le consented to that use, and that the City detrimentally relied on that consent.
Finally, the Court concludes that summary judgment is appropriate also because the parties' conduct created in the City an implied and irrevocable license in the Work. "[C]ourts have found an implied license where three factors are present:
Plaintiff's position is that he granted the City merely a revocable license, and that he exercised his right of revocation in June 2007 when he removed the Work from the City's server. (See D.I. 17 ¶ 17; D.I. 144 Ex. 1 at 69-70, 73) But the conceded license Le granted the City is revocable only if Le was not provided any consideration for it. See Attig v. DRG, Inc., 2005 WL 730681, at *6 (E.D.Pa. Mar. 30, 2005) ("[I]t would be counterintuitive to hold that an entity or persons in the position of Defendants in this matter would pay good consideration to have a website created and not be able to use it.") (internal quotation marks omitted); see also Lulirama Ltd., Inc. v. Axcess Broadcast Servs., Inc., 128 F.3d 872, 882-83 (5th Cir.1997) (discussing nonexclusive licenses and noting that "[a] nonexclusive license may be irrevocable if supported by consideration"). Le received consideration, beginning with his salary and also including the use of City equipment to test and refine the Work, the assistance of City employees in doing the same, access to the City's database, and an award for outstanding performance as a City employee. While it may be true that Le also, as he insists, spoke to City officials about "marketing the Code as well as applying for a copyright" (D.I. 143 at 37; D.I. 144 Ex. 1 at 121), this only shows that the license to the City was non-exclusive; it does not render the license revocable by Le.
Thus, summary judgment will be granted to the City on Plaintiff's claims of copyright infringement.
Le's Amended Complaint recites that the Defendants' conduct toward him and his termination from City employment were motivated by Plaintiff's race and/or ethnic background, and that Defendants created a hostile work environment through their wrongful and discriminatory conduct toward him. (D.I. 17 ¶¶ 49-54, 59-64)
The Court's role in evaluating a motion for summary judgment in a discrimination case is "to determine whether, upon reviewing all the facts and inferences to be drawn therefrom in the light most favorable to the plaintiff, there exists sufficient evidence to create a genuine issue of material fact as to whether the employer intentionally discriminated against the plaintiff." Hankins v. Temple Univ., 829 F.2d 437, 440 (3d Cir.1987). "A plaintiff may prove national origin or race discrimination by direct evidence as set forth in Price Waterhouse v. Hopkins, 490 U.S. 228, 244-46, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), or indirectly through the familiar burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)." Shah v. Bank of America, 598 F.Supp.2d 596, 603 (D.Del.2009).
With respect to McDonnell Douglas, a plaintiff must first establish a prima facie case of discrimination by showing that: (1) he belongs to a protected class; (2) he suffered an adverse employment action; and (3) the circumstances of the adverse employment action give rise to an inference of unlawful discrimination such as might occur when a similarly situated person not of the protected class is treated differently. See 411 U.S. at 802, 93 S.Ct. 1817; see also Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.1994). If the plaintiff establishes a prima facie case of discrimination, the burden of production shifts to the defendant, who must "articulate some legitimate, nondiscriminatory reason" for its treatment of the plaintiff. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; see also Fuentes, 32 F.3d at 763. If the defendant produces a sufficient reason for its actions, the burden shifts back to the plaintiff to demonstrate by a preponderance of the evidence that the employer's rationale is pretextual. See McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817; see also Fuentes, 32 F.3d at 763.
It bears emphasis though that "throughout this burden-shifting paradigm the ultimate burden of proving intentional discrimination always rests with the plaintiff." Fuentes, 32 F.3d at 763. Therefore, once the defendant has articulated a nondiscriminatory reason for its actions, the plaintiff must point to some evidence, direct or circumstantial, that the defendant's proffered reasons are merely a pretext for discrimination. See Fuentes, 32 F.3d at 763-64. That is, the plaintiff must point to some evidence from which the "factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action." Stanziale v. Jargowsky, 200 F.3d 101, 105 (3d Cir.2000). Thus, to make a sufficient showing of pretext, the plaintiff must "demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions" in the employer's reason that "a reasonable factfinder could rationally find them unworthy of credence." Fuentes, 32 F.3d at 765 (internal quotation marks omitted).
Le contends that the Defendants intentionally discriminated against him on the basis of his race or ethnic background. As an initial matter, it must be noted that nearly the entirety of the evidence on which Le relies to defeat Defendants' Discrimination Motion consists of deposition testimony, primarily his own. Le's subjective beliefs that wrongdoing occurred, without any evidence in support of those claims, are not sufficient to establish a genuine issue of material fact and overcome summary judgment. See, e.g., Jones v. School Dist. of Philadelphia, 198 F.3d 403,
Le offers almost nothing in the way of direct evidence of discrimination against him. "Direct evidence is evidence sufficient to allow the jury to find that the decisionmakers placed substantial negative reliance on [race or national origin] in reaching their decision." Shah, 598 F.Supp.2d at 603 (internal quotation marks omitted). Le does not contend that he has adduced any direct evidence of discrimination against O'Donnell. With respect to Capodanno, Le points only to one "racially charged remark [ ]" by Capodanno to an African-American employee and evidence that Capodanno "had difficulty understanding Plaintiff's speech because of an accent." (D.I. 143 at 20; see also D.I. 144) Capodanno's remark was directed neither toward Le nor toward an individual sharing Le's racial background. With respect to Capodanno's expressed difficulty with Le's accent, Capodanno testified it had to do with Le's technical vocabulary as a computer specialist. (D.I. 144 Ex. 6 at 73-75) It is undisputed that Capodanno lacked the technical skills and knowledge held by Le. In any event, while "[d]iscrimination based on accent can be national origin discrimination," it is also true that "an employee's heavy accent or difficulty with spoken English can be a legitimate basis for adverse employment action where effective communication skills are reasonably related to job performance." Yili Tseng v. Florida A & M Univ., 380 Fed. Appx. 908, 908-10 (11th Cir.2010) (distinguishing between observation that one's speech pattern or accent may be difficult for average listener to understand and disparaging remarks about one's language skills and national origin); see also generally Fuentes, 32 F.3d at 767 (holding that a manager's difficulty pronouncing Latino name may reflect insensitivity or unprofessionalism, but could not reasonably be construed as evidencing bias against Latinos).
Turning to the indirect evidence of discrimination, on which Plaintiff primarily relies, Defendants concede Le has satisfied the first two prongs of his prima facie case: Le has offered evidence that he belongs to a protected racial or national origin class (Asian-American), and that he suffered adverse employment actions (termination and failure to afford him another position). (D.I. 143 at 19; D.I. 145 at 1-2) The dispute is whether Le has made a prima facie case that his termination gives rise to an inference of unlawful discrimination.
Le contends that an inference of discrimination arises here because the Network Division was "the only all minority Unit in IT," was eliminated, and was replaced by an all-white consulting group. (D.I. 143 at 20) Le also again points to the racially-charged remark Capodanno made to an African-American colleague and that Capodanno had trouble with Le's accent. (Id.) Finally, Le contends that when Smith, an African-American, resigned, "he was replaced not by a more qualified African-American, Jones, but the unqualified Caucasian O'Donnell." (D.I. 143 at 21; D.I. 144 Ex. 3 at pp. 8-10; D.I. 144 Ex 11 p. LTL 1297)
Even if the Court were to conclude that Le had established a prima facie case of discrimination, Le has presented no evidence that the nondiscriminatory reasons articulated in defense of the outsourcing of the Network Division are merely a pretext for discrimination. The City defends its termination of Plaintiff as being due solely to inadequate performance. (D.I. 139 at 11)
Plaintiff acknowledges that:
(D.I. 143 at 22) For the reasons given, the Plaintiff has failed to do just that.
Finally, the Court turns briefly to Le's contention that following his termination, he was deprived other employment within the City for which he was qualified, which he also ascribes to race discrimination. Assuming, arguendo, such an alleged deprivation could constitute an adverse employment decision, there is nothing in the record from which a reasonable factfinder could conclude that Defendants exhibited racial animus or animus based on national origin in this regard. Le acknowledges that "he was sent postings of available jobs and met with the labor relations department to find other work." (D.I. 139 at 4; D.I. 142 Ex. A at 56-57) Le applied for the positions of Application Specialist I and Application Specialist II after he was informed he may be laid off. (D.I. 142 Ex. A at 98) Although he did not get either position, both of the individuals who did were minorities. (See id. at 99) Le also admits that no one at the City told him that he would not be able to get another job at the City. (See id. at 64-65) Again, there is simply no basis in the record for a reasonable factfinder to conclude that Le was not offered alternative employment with the City due to his race.
Counts III and VIII of the Amended Complaint allege the City violated Delaware's statutory protections against employment discrimination, 19 Del. C. § 710 et seq., and that all Defendants have committed a prima facie tort against Plaintiff (D.I. 17 ¶¶ 75-77) Delaware's discrimination statute, 19 Del. C. § 711, prohibits employment discrimination in terms almost identical to Title VII of the 1964 Civil Rights Act. See Schuster v. Derocili, 775 A.2d 1029, 1033 (Del.2001); see also Cannon v. State of Delaware, 523 F.Supp. 341, 344 (D.Del.1981). Because Delaware law is construed in accordance with Title VII, all of the foregoing discussion of Le's Title VII claims applies with equal force to his state law claims. Accordingly, summary judgment for Defendants is proper on these claims as well.
In sum, the Court concludes that Defendants have demonstrated that no genuine issues of material fact exist, and summary judgment ought to be granted in their favor pursuant to Federal Rule of Civil Procedure 56. An appropriate Order will be entered separately.
At Wilmington this 7th day of September 2010:
For the reasons set forth in the Memorandum Opinion issued this same date,
IT IS HEREBY ORDERED that:
1. The motion for summary judgment filed by Defendants (D.I. 138) is GRANTED as to Counts III, V, and VIII of the Amended Complaint.
2. The motion for summary judgment filed by the City (D.I. 140) is GRANTED as to Counts I and II of the Amended Complaint.
3. Pursuant to Plaintiff's request (D.I. 143), Counts IV, VI, and VII of the Amended Complaint are hereby DISMISSED, with prejudice.
4. The pretrial conference and trial scheduled in this matter are CANCELLED.
5. The Clerk of Court is directed to close the case.
