Court Rules Whistleblower Protection Not Available For Non-City Claims

A whistleblower lawsuit brought by a Wilmington, Delaware firefighter who was terminated in 2016 has been dismissed by a Superior Court judge because the wrongdoing reported did not involve the city.

Thomas Hayman, Jr. was fired by the Wilmington Fire Department in 2016. Hayman claims he was fired in retaliation for him having reported Fire Chief Anthony Goode to the US Department of Justice for financial misconduct with regard to an organization that helped minority firefighters, the Gallant Blazers, Inc. As explained in the decision:

  • In October of 2015, Plaintiff reported a complaint with the Department of Justice (DOJ) against the Chief of the fire department, Anthony Goode.
  • At the time, the former Chief was also acting in his capacity as the president of the Gallant Blazers, Inc. or Gallant Blazers Organization (GBO), a professional development group that helps minority firefighters in Wilmington.
  • Plaintiff reported to the DOJ that Goode committed financial misconduct against GBO.
  • After reporting Goode’s misconduct, Plaintiff alleges that the City of Wilmington, Wilmington Fire Department, along with others, “maliciously” brought forth charges against him to terminate his position in retaliation for the complaint against Goode.
  • Plaintiff was terminated on September 19, 2016.

Hayman brought the suit pro se in September, 2019, alleging a violation of the Whistleblower Protection Act, 19 Del. C. § 1701 et seq. The city moved to dismiss the suit because the wrongdoing that Hayman reported did not involve the city, as required by the whistleblower law.

The key language from the act:

§ 1703 Protection.

An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment:

  • Because the employee, or a person acting on behalf of the employee, reports or is about to report to a public body, verbally or in writing, a violation which the employee knows or reasonably believes has occurred or is about to occur, unless the employee knows or has reason to know that the report is false; …

Relevant to the court’s determination is the definition of “violation”, which states:

(6) “Violation” means an act or omission by an employer, or an agent thereof, that is:

a. Materially inconsistent with, and a serious deviation from, standards implemented pursuant to a law, rule, or regulation promulgated under the laws of this State, a political subdivision of this State, or the United States, to protect employees or other persons from health, safety, or environmental hazards while on the employer’s premises or elsewhere; or

b. Materially inconsistent with, and a serious deviation from, financial management or accounting standards implemented pursuant to a rule or regulation promulgated by the employer or a law, rule, or regulation promulgated under the laws of this State, a political subdivision of this State, or the United States, to protect any person from fraud, deceit, or misappropriation of public or private funds or assets under the control of the employer.

The court granted Hayman several continuances to find an attorney, but he was apparently unable to secure one. Judge Vivian L. Medinilla held a hearing on the city’s motion on Monday, October 26, 2020 and issued her ruling on Thursday, October 29, 2020 granting the city’s motion to dismiss. Judge Medinilla held that since the “violations” that Hayman reported to the DOJ involved activities that were unrelated to the city, the Whistleblower Protection Act was not applicable.

Here is a copy of the decision:

It is important to understand, Judge Medinilla was not condoning the city’s termination of Hayman, nor suggesting that other protections (including other types of whistleblower protections) may not have been available to him. The lesson here is that most whistleblower protection laws are narrow. Whistleblower protection under OSHA only protects you for OSHA related whistleblowing, and FLSA related whistleblowing only protects when reporting wage and hour violations. Those that seek protection under whistleblower laws need to know the law, and consider all of their legal options. That is where a pro se litigant such as Hayman is truly at a disadvantage.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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