Opinion
C.A. No. N12C-02-131 JRJ
12-06-2012
KELLIE DIMAIO and KELLIE DIMAIO and JOHN DIMAIO, JR., as Parents and Natural Guardians for DD, a minor, Plaintiffs, v. CHRISTIANA SCHOOL DISTRICT Defendant.
ORDER
AND NOW, TO WIT, this 6th day of December, 2012, upon consideration of Defendant's Motion to Dismiss, and Plaintiffs' opposition thereto, IT APPEARS TO THE COURT THAT:
1. On February 9, 2012, Plaintiffs, Kellie DiMaio and Ms. DiMaio together with her husband, John DiMaio, Jr., on behalf of their son, DD, a minor, filed a Complaint alleging: Violation of the Delaware Whistleblower's Protection Act (Count I); Breach of covenant of good faith and fair dealing (Count II); Negligence (Count III); and Gross negligence (Count IV). On May 10, 2012, Defendant, Christiana School District, filed a motion to dismiss pursuant to Superior Court Civil Rule 12(b)(6).
2. For the reasons articulated during oral argument on November 29, 2012, Defendant's Motion to Dismiss Count I is DENIED.
3. With regard to Count II, in Delaware, there is a "heavy presumption that a contract for employment, unless otherwise expressly stated, is at-will in nature,
with duration indefinite." Nevertheless, "every employment contract contains an implied covenant of good faith and fair dealing." But "the doctrine of at-will employment is broad and the implied covenant is to be narrowly construed." "Courts have been reluctant to recognize a broad application of the Covenant out of a concern that the Covenant could thereby swallow the Doctrine and effectively end at-will employment." Thus, the Delaware Supreme Court has carved out a distinct and finite set of exceptions. These are:
(1) Where the termination violated public policy;According to the Delaware Supreme Court, "Pressman's categories are exclusive."
(2) Where the employer misrepresented an important fact and the employee relied 'thereon either to accept a new position or remain in a present one';
(3) Where the employer used its superior bargaining power to deprive an employee of clearly identifiable compensation related to the employee's past service; and
(4) Where the employer falsified or manipulated employment records to create fictitious ground for termination.
4. Plaintiffs rely on the first and fourth listed exceptions to the doctrine of at-will employment. Regarding the "violation of public policy" exception, Plaintiffs claim that "Defendant breached the covenant of good faith and fair dealing by
terminating [Plaintiff] for reporting bullying behavior which violates public policy." In Delaware, "a plaintiff must satisfy a two-part test to demonstrate a breach of the covenant of good faith and fair dealing under the violation of public policy exception." First, "the employee must assert a public interest recognized by some legislative, administrative or judicial authority." Second, "the employee must occupy a position with responsibility for advancing or sustaining that particular interest."
5. The Legislature has recognized the reporting of bullying in Delaware's school systems as a valid public interest. The Delaware Legislature has mandated that every school district "shall prohibit bullying . . . ." The Delaware Legislature has also mandated that each district "shall establish a policy which, at a minimum, includes . . . [a] requirement that each school have a procedure for the administration to promptly investigate in a timely manner and determine whether the bullying has occurred . . . ." Thus, the first part of the test is met. The Court also finds that, as a paraprofessional, Ms. DiMaio has a position with responsibility for advancing and/or sustaining the anti-bullying policy. Because Plaintiffs' claim falls under one of the four listed exceptions, Defendant's Motion to Dismiss Count II is DENIED.
6. With regard to Count III, under the Delaware Tort Claims Act, Plaintiffs must allege the absence of one or more of the following elements in order to overcome
sovereign immunity: "(1) the action was discretionary in nature; (2) the action was done in good faith; [or] (3) the action was done without gross or wanton negligence." Count III of Plaintiff's Complaint fails to allege the absence of one or more of the above elements. Consequently, Defendant's Motion to Dismiss Count III is GRANTED.
7. With regard to Count IV, at oral argument on November 29, 2012, the Court granted Plaintiffs 10 days to amend their Complaint. Therefore, Defendant's Motion to Dismiss Count IV is DEFERRED.
The minor plaintiff is referred to as "DD" in order to protect his privacy.
Rizzitiello v. McDonald's Corp., 868 A.2d 825, 830 (Del. 2005), citing E.I. DuPont de Nemours and Co. v. Pressman, 679 A.2d 436, 440 (Del. 1996), citing Merrill v. Crothall-American, Inc., 606 A.2d 96, 101 (Del. 1992).
Id. , citing Merril, 606 A.2d at 101.
Id. at 830-31.
Pressman, 679 A.2d at 442.
Lord v. Souder, 748 A.2d 393, 400 (Del. 2000), citing Pressman, 679 A.2d at 442-44.
Id. at 401.
Complaint at ¶ 88.
Lord, 748 A.2d at 401.
Id.
Id.
Id. at § 4112D(b)(2)(f).
Smith v. Christina Sch. Dist., 2011 WL 5924393 at * 3 (Del. Super. Nov. 28, 2011), citing Stevenson v. Brandywine Sch. Dist., et al., 1999 WL 742932, at *2 (Del. Super. July 9, 1999), citing Sprout v. Ellenburg Capital Corp., 1997 WL 716901 (Del. Super. Aug. 16, 1997); 10 Del. C. § 4001.
See Lee v. Johnson, 1996 WL 944868 at *2 (Del. Super. June 4, 1996).
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For the foregoing reasons, Defendant's Motion to Dismiss is DENIED IN PART, GRANTED IN PART, and DEFERRED IN PART.
IT IS SO ORDERED.
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Jan R. Jurden, Judge
cc: Prothonotary