Rich v. University of Delaware

SUPERIOR COURT
OF THE
STATE OF DELAWARE

PAUL R. WALLACE LEONARD L. WILLIAMS JUSTICE CENTER
JUDGE 500 N. KING STREET, SUITE 10400
WILMINGTON, DELAWARE 19801
(302) 255-0660

Submitted: May 6, 2025
Decided: August 4, 2025

Michele D. Allen, Esquire James D. Taylor, Jr., Esquire
ALLEN & ASSOCIATES Devan A. McCarrie, Esquire
4250 Lancaster Pike, Suite 230 SAUL EWING LLP
Wilmington, Delaware 19805 1201 N. Market Street, 23rd Floor
Wilmington, Delaware 19801

RE: Raushan Rich v. University of Delaware
C.A. No. N23C-07-078 PRW
Defendant’s Motion for Summary Judgment

Dear Counsel:

This Letter Decision and Order resolves Defendant University of Delaware’s

motion for summary judgment (D.I. 49). For the reasons explained now, that motion

is GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. THE PARTIES

Plaintiff Raushan Rich is a resident of New Castle County, Delaware, who at
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all relevant times was an employee of Defendant University of Delaware.1

Defendant University of Delaware is a private, state-assisted institution of

higher education in Delaware.2

B. FACTUAL BACKGROUND

In 2012, the University of Delaware hired Mr. Rich to be a police officer in

its police department (“UDPD”).3 The Collective Bargaining Agreement (“CBA”)

between the University and UDPD governed his employment terms.4 Thereunder,

the University had exclusive control over Mr. Rich’s employment status.5 CBA

Article III, Section 1 states:

all managerial and administrative prerogatives and functions are
retained and vested exclusively in the University, in accordance with
its sole and exclusive judgment and discretion to . . . demote, reprimand,
suspend, discharge or otherwise discipline employees (without
diminishing any rights provided by state law) . . . .6

The CBA also had a general safety provision.7 Article XII, Section 1 says:
The University agrees to make reasonable provisions for the safety and
health of bargaining unit members pursuant of their University-

1
Complaint (“Compl.”) ¶ 3 (D.I. 1).
2
Pl.’s Answering Br. Ex. A (“Rich Dep.”), at 11 (D.I. 50).
3
Rich Dep. at 14.
4
See Def.’s Opening Br. Ex. G (“CBA”) (D.I. 49).
5
See CBA art. III § 1.
6
Id.
7
See CBA art. XII § 1.
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recognized professional responsibilities while conducting departmental
business or in lawful performance of their duties.8

During his time with UDPD, Mr. Rich was promoted to Sergeant and had no

disciplinary issues for the eight years prior to the incidents that bring about this

dispute.9

Before the start of the 2020 fall semester, the University established COVID-

19 protocols.10 One such protocol was the creation of separate quarantine residence

halls for students who either tested positive for or were exposed to COVID-19,

which required the use of the University’s transportation services to shuttle students

to and from the quarantine residence halls as necessary.11

Late August of 2020, Mr. Rich was informed that the UDPD would be

required to transport students to the quarantine residence halls until the

transportation services employees completed their safety training.12 Mr. Rich

alleges that the UDPD had not received training on how to safely transport students,

operate the transport vehicles, use the decontamination machine, or use personal

8
Id.
9
Rich Dep. at 19.
10
See Pl.’s Answering Br. Ex. F (“2020 Move-In Operations”) (D.I. 50).
11
Id.; see Rich Dep. at 56.
12
See Rich Dep. at 56.
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protective equipment.13

On numerous occasions, Mr. Rich shared his concerns about using UDPD

officers to transfer students who had tested positive for or been exposed to COVID-

19 with his direct ranking officer, Lieutenant Adrienne Thomas.14 In Mr. Rich’s

view, that process unnecessarily exposed officers to health and safety risks for non-

law enforcement purposes.15 But even after relaying those concerns to another

supervisor, the policy didn’t change.16

Mr. Rich talked with his squad, and they all said that they were unwilling to

conduct the transport even though they were directed to do so.17 When Mr. Rich

informed Lieutenant Thomas of his squad’s position, Lieutenant Thomas ordered

Mr. Rich to choose a squad member to conduct the transport or he would be

disciplined.18 Mr. Rich refused.19 Later that same evening, Lieutenant Thomas

13
Compl. ¶¶ 17-20; Rich Dep. at 25-30; see Pl.’s Answering Br. Ex. G (“Transport Keys Email”)
(D.I. 50).
14
Rich Dep. at 58-60.
15
Id. at 60.
16
Id. at 62-64.
17
Compl. ¶ 28; Rich Dep. at 70-74.
18
Rich Dep. at 74-81.
19
See Pl.’s Answering Br. Ex. L (“Ogden Dep.”), at 32 (D.I. 50).
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placed Mr. Rich on emergency administrative leave.20 The next day, Mr. Rich

learned that he was the subject of an internal affairs investigation and had been

charged with insubordination.21

A Criminal Justice Council (“CJC”) hearing was scheduled to investigate the

insubordination charge.22 Pending the CJC hearing, Mr. Rich continued to receive

full salary and benefits.23 In December of 2020, the CJC substantiated the charge of

insubordination against Mr. Rich and he was officially terminated in accordance

with the University’s disciplinary matrix.24

C. PROCEDURAL POSTURE

Mr. Rich first filed an action in the United States District Court for the District

of Delaware, alleging violations of the Delaware Whistleblowers’ Protection Act

(“DWPA”), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1983, and 42

U.S.C. § 1981.25 The University moved to dismiss.26 Subsequently, a federal

20
Rich Dep. at 85.
21
See Def.’s Opening Br. Ex. V (“IA Findings”) (D.I. 49).
22
See IA Findings.
23
Compl. ¶ 35.
24
Rich Dep. at 93.
25
See Rich v. Univ. of Del., 2023 WL 1471484, at *2 (D. Del. Feb. 2, 2023).
26
See id.
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magistrate judge issued a report and recommendation suggesting dismissal of the

federal claims and survival of the state law DWPA claim.27 A month later, a district

court judge adopted the report, but declined to exercise supplemental jurisdiction

over the state DWPA claim.28

In July of 2023, Mr. Rich initiated this action.29 Mr. Rich brings two claims:

violation of the DWPA (Count I)30 and breach of the implied covenant of good faith

and fair dealing (Count II).31 The University immediately filed a motion to dismiss

which was denied.32

Discovery now having occurred, the University has filed this motion for

summary judgment.33

II. PARTIES’ CONTENTIONS
In its motion, the University contends that it is entitled to summary judgment

because Mr. Rich’s DWPA and good faith and fair dealing claims fail as a matter of

27
Id. at *7.
28
Id. at *1.
29
See generally Compl.
30
Id. ¶¶ 41-54.
31
Id. ¶¶ 55-78.
32
D.I. 4 and 10.
33
D.I. 49.
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law.34 For the DWPA claim, the University alleges that Mr. Rich did not engage in

any protected activity.35 Pointing to the statutory requirement that a reported

violation must be of a “law, rule, or regulation,” the University states that Mr. Rich

has not identified a “violation” as defined in the DWPA.36 Instead, he simply felt

that what was asked of him (and other UDPD officers) was then unsafe and outside

the scope of his duties—not unlawful.37

For the good faith and fair dealing claim, the University claims that the

implied covenant isn’t applicable because the CBA addresses the contested issues.38

The University states that employee termination as well as health and safety

standards are expressly contemplated in the CBA.39 The University—relying on

Article III of the CBA, which grants the University broad managerial rights, and

Article XII, which governs health and safety—argues that the CBA’s express terms

preclude a claim of breach of an implied covenant here.40 And even if the covenant

34
Def.’s Opening Br. at 11-15 (D.I. 49).
35
Id.
36
Id. at 12.
37
Def.’s Reply Br. at 3 (D.I. 57).
38
Def.’s Opening Br. at 16-17.
39
Id.
40
Id.; see CBA art. III § 1 and art. XII § 1.
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was applicable, the University states that the claim would still be preempted by the

DWPA.41

Mr. Rich opposes the University’s motion for summary judgment.42 Mr. Rich

says he’s properly stated a DWPA claim that should be left to a jury to decide.43 For

the good faith and fair dealing claim, he argues that if the DWPA claim fails, then

the covenant claim is valid because the CBA has a gap that the covenant needs to

fill.44

III. STANDARD OF REVIEW
Summary judgment is warranted “if the pleadings, depositions, answers to

interrogatories, and admission on file, together with the affidavits” show “there is

no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.”45

The movant bears the initial burden of proving its motion is supported by

undisputed facts.46 If the movant meets its burden, the non-movant must show there

41
Def.’s Opening Br. 17-19.
42
D.I. 50.
43
Pl.’s Answering Br. at 9-17 (D.I. 50).
44
Id. at 18.
45
Del. Super. Ct. Civ. R. 56(c); Options Clearing Corp. v. U.S. Specialty Ins. Co., 2021 WL
5577251, at *7 (Del. Super. Ct. Nov. 30, 2021).
46
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
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is a “genuine issue for trial.”47 To determine whether a genuine issue exists, the

Court construes the facts in the light most favorable to the non-movant.48

IV. DISCUSSION

A. THE UNIVERSITY’S MOTION FOR SUMMARY JUDGMENT ON COUNT I—THE
DWPA CLAIM—IS GRANTED.
“The DWPA prohibits an employer from discharging or otherwise

discriminating against an employee for reporting a ‘violation’ to the employer or to

the employee’s supervisor, which he/she ‘knows or reasonably believes has occurred

or is about to occur.’”49 The DWPA defines a “violation” as “an act or omission by

an employer . . . that is . . . [m]aterially inconsistent with, and a serious deviation

from, standards implemented pursuant to a law, rule, or regulation promulgated

under the laws of this State . . . .”50

In turn, the elements of an actionable DWPA claim are as follows: (1) the

employee engaged in a protected whistleblowing activity; (2) the accused official

knew of the protected activity; (3) the employee suffered an adverse employment

47
Del. Super. Ct. Civ. R. 56(e); see also Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995) (“If
the facts permit reasonable persons to draw but one inference, the question is ripe for summary
judgment.”).
48
Judah v. Del. Trust Co., 378 A.2d 624, 632 (Del. 1977).
49
Chance v. Kraft Heinz Foods Co., 2018 WL 6655670, at *10 (Del. Super. Ct. Dec. 17, 2018).
50
DEL. CODE ANN. tit. 19, § 1702(6) (2020).
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action, and; (4) there is a causal connection between the whistleblowing activity and

the adverse action.51 The employee has the burden of showing that the “primary

basis” for the discharge was that the employee undertook a protected act.52

The first element—that Mr. Rich engaged in a protected whistleblowing

activity—requires, at a minimum, that Mr. Rich was reporting something that he

reasonably believed could be illegal or a serious deviation from the law. 53 But that

wasn’t so here. He did not believe that the request was illegal.54 Instead, Mr. Rich

51
Addison v. E. Side Charter School of Wilmington, Inc., 2014 WL 4724895, at *3 (Del. Super.
Ct. Sept. 19, 2014).
52
Steinhouser v. Univ. of Del., 2019 WL 2359444, at *2 (Del. Super. Ct. June 4, 2019).
53
Section 1703 of the DWPA provides that:
[a]n employer shall not discharge, threaten, or otherwise discriminate against
an employee . . . [b]ecause the employee . . . reports or is about to report . . .
verbally or in writing, a violation which the employee knows or reasonably
believes has occurred or is about to occur[.]
DEL. CODE ANN. tit. 19, §§ 1703(1), (4) (2020). See Hanzer v. Nat’l Mentor Healthcare, LLC,
2014 WL 1390889, at *6 (D. Del. Apr. 10, 2014) (granting summary judgment because plaintiff
failed to identify a violation of any statute, rule, regulation, or law upon which her DWPA claim
could be based).
54
Though he now claims to. Rich Dep. at 61:
Q. Did you tell Sergeant McCloskey that you believed the instruction or
directive was illegal?
A. No.
Q. Did you believe it to be?
A. No.
Q. Did you believe that the instruction or directive violated any law?
A. No.
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raised concerns that the University’s request of its police officers demonstrated poor

judgment, was generally unsafe, and asked for action outside the scope of his job.55

But now, and throughout this litigation, he vaguely alleges that the request

and University’s response “implicate[s] compliance with health and safety laws and

regulations, including CDC guidelines and OSHA directives.” 56 But he’s done

nothing more at this point to further specify the law, rule, or regulation that would

have been violated by the University’s protocol and its use of UDPD officers to carry

it out.

At this point though, Mr. Rich’s incantation of vague generalized safety

Q. How about any regulation?
A. At that time, no.
Q. You said “at that time.” Do you now believe it violates a law?
A. Yes.
Q. What is that?
A. I know OSHA requires general safety, that employers have to keep
employees safe through reasonable means.
55
Rich Dep. at 60:
A. I told Sergeant McCloskey how this wasn’t safe and this was outside of the
scope of what we have normally done as police officers for the University
of Delaware, and just general preparedness. And it was a general
conversation and he said, “Yeah, I agree.” And we were both legitimately
concerned, but at a certain point he said, “Well, Adrienne said call her. She
is the boss.” So that conversation stopped and I left and called Adrienne
immediately.
56
Pl.’s Answering Br. at 11.
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principles is just too insubstantial a foundation for a proper DWPA claim.57 The

failure to cite to any specific law, rule or regulation, when paired with his statement

that he didn’t believe the University’s request to be illegal at the time, dooms

Mr. Rich’s whistleblower count.

Given then-existing circumstances—a still unfolding and frightening

pandemic that so many institutions and public service agencies were struggling to

deal with—Mr. Rich was no doubt reasonably wary of the University’s judgment

and expressing sincere concern for himself and other UDPD police officers. But

given the record now developed, no reasonable fact finder could find that Mr. Rich

was reporting something he knew or reasonably believed was about to occur and that

was illegal. So, his actions cannot be deemed protected activity.

Accordingly, the University’s motion for summary judgment on the DWPA

claim is GRANTED.

57
See Chance, 2018 WL 6655670, at *11 (“While the DWPA allows for the possibility that the
reporting employee may be uncertain, at the time he or she reports the conduct, of the specific law,
rule, or regulation that has been violated, or even that there is a law, rule, or regulation applicable
to the reported conduct, DWPA liability cannot be based upon reported conduct that does not
ultimately turn out to be a violation . . . .”).
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B. THE UNIVERSITY’S MOTION FOR SUMMARY JUDGMENT ON
COUNT II—THE IMPLIED COVENANT OF GOOD FAITH AND FAIR
DEALING CLAIM—IS GRANTED.

Mr. Rich’s implied covenant of good faith and fair dealing claim rests solely

upon the allegation that the University’s request for officers to conduct COVID-19

transports was unlawful, so in turn he was terminated in violation of public policy.

Based on that claim, the Court finds that no reasonable factfinder could conclude

that Mr. Rich has a viable claim under the implied covenant of good faith and fair

dealing.

1. There is no gap in the CBA that must be filled.

“In Delaware, the implied covenant of good faith and fair dealing attaches to

every contract and requires ‘a party in a contractual relationship to refrain from

arbitrary or unreasonable conduct which has the effect of preventing the other party

to the contract from receiving the fruits of the bargain.’”58 To prove a breach of the

implied covenant, the plaintiff must demonstrate: (1) a specific implied contractual

obligation; (2) a breach of that obligation; and (3) resulting damage.59

The doctrine has limited application. “[I]t cannot be invoked where the

58
Data Centers, LLC v. 1743 Holdings LLC, 2015 WL 9464503, at *6 (Del. Super. Ct. Oct. 27,
2015) (citing Dunlap v. State Farm Fire and Cas. Co., 878 A.2d 434, 441 (Del. 2005)).
59
Balooshi v. GVP Glob. Corp., 2022 WL 576819, at *9 (Del. Super. Ct. Feb. 25, 2022), aff’d,
285 A.3d 839 (Del. 2022).
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contract itself expressly covers the subject at issue.”60 Instead, it may only be applied

if a contractual gap exists regarding the issue before the Court.61 And “[o]nly when

it is clear from the writing that the contracting parties would have agreed to proscribe

the act later complained of, had they thought to negotiate with respect to that matter

. . . .”62

Mr. Rich claims that “the CBA does not address this instance as to what occurs

when an officer is ordered to violate or go against clear public mandate of public

policy and failure to comply results in termination.”63 While it is true that there is

no specific provision on that issue, there doesn’t need to be one. The CBA is not

required, nor can it be expected, to expressly address every possible scenario. This

instance is covered by the broad safety provision read together with the grievance

procedure.

First, Article XII Section 1 of the CBA, governing “Safety and Health,” states:

The University agrees to continue to make reasonable provisions for

60
Am. Healthcare Admin. Servs., Inc. v. Aizen, 285 A.3d 461, 479 (Del. Ch.), judgment entered,
(Del. Ch. 2022) (quoting Fisk Ventures, LLC v. Segal, 2008 WL 1961156, at *10 (Del. Ch. May
7, 2008), aff’d, 984 A.2d 124 (Del. 2009)).
61
Allen v. El Paso Pipeline GP Co., 113 A.3d 167, 183 (Del. Ch.), judgment entered, (Del. Ch.
2014), aff’d, 2015 WL 803053 (Del. Feb. 26, 2015).
62
Data Centers, 2015 WL 9464503, at *7 (citing Wal–Mart Stores, Inc. v. AIG Life Ins. Co., 901
A.2d 106, 116 (Del. 2006)).
63
Pl.’s Answering Br. at 18.
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the safety and health of bargaining unit members in pursuant of their
University-recognized professional responsibilities while conducting
departmental business or in lawful performance of their duties.64

This covers the root of Mr. Rich’s claim—that he was inadequately prepared to

handle COVID-19 transports.65 Transport tasks were departmental business because

officers had a past practice of escorting students across campus when needed.66 And

any failure regarding the adequacy of health and safety training would be covered

under the provision as a failure to make “reasonable provisions.”

Second, if an issue is raised, the CBA’s general grievance procedures in

Article VI covers the procedure for reporting a violation of the CBA.67 That would

include any claim stemming from a lack of following the CBA’s safety provision,

such as here. So combined, those CBA provisions cover institution of the

University’s temporary COVID-student transport protocol.

64
CBA art. XII § 1.
65
The University provided training that Mr. Rich claims was inadequate. See Def.’s Opening Br.
Ex. J (“COVID-19 exposure Information Sheet”) (D.I. 49); see also Def.’s Opening Br. Ex. L
(“Bloodborne Pathogen Training”) (D.I. 49); see also Def.’s Opening Br. Ex. M (“Mask Fit Test
Report”) (D.I. 49).
Whether a reasonable factfinder would find that the University provided “reasonable provisions
for the safety and health of bargaining unit members”—i.e., a straightforward CBA breach claim—
is a different question that’s not before the Court.
66
See Def.’s Opening Br. Ex. C (“University Police non-COVID Medical Transport Policy”)
(explaining that it was a duty of university officers to escort students across campus at night or for
non-emergency medical transports prior to COVID-19) (D.I. 49).
67
CBA art. VI.
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2. Mr. Rich’s attempted resort to a Pressman public policy claim fails.

Mr. Rich has not satisfied the requirements of a Pressman public policy

claim.68

“A Pressman public policy claim requires that a ‘clear mandate of public

policy be threatened by the termination.’”69 Under Pressman, “[a]n employee ‘must

assert a public interest recognized by some legislative, administrative or judicial

authority, and the employee must occupy a position with responsibility for that

particular interest.’”70 In Delaware, this claim requires that the employee question

the legality of the conduct, not solely the judgment or ethics of it.71

Here, no “clear mandate of public policy” has been implicated. Mr. Rich has

failed to assert any specific legislative, administrative or judicial authority. His

vague references to executive orders, OSHA, the CDC, and IACP regulations

without citing to any specific order or regulation and how it was violated isn’t

enough. In fact, the Court cannot find that there was a “clear mandate of public

68
See E.I. DuPont de Nemours & Co. v. Pressman, 679 A.2d 436, 441-42 (Del. 1996).
69
Addison, 2014 WL 4724895, at *6 (quoting Jordan v. Town of Milton, 2013 WL 105319, at
*12 (D. Del. Jan. 3, 2013)).
70
Jordan, 2013 WL 105319, at *12 (quoting E.I. DuPont de Nemours & Co., 679 A.2d at 441-
42).
71
Addison, 2014 WL 4724895, at *6.
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policy” against asking public safety officers to adjust the norm and take on additional

roles during the COVID-19 outbreak.72 The Court finds that there is no genuine

issue as to any material fact; there has been no recognizable public policy presented

to support Mr. Rich’s claim.

Contrary to what is required for a Pressman claim, Mr. Rich’s complaint is,

again, a matter of his disagreement as to what was best or safe for himself and his

fellow officers. More simply, his claim isn’t grounded in vindication of some public

policy or his belief that there was a violation of such policy; it is based on his

difference of judgment and subjective belief that the University didn’t properly

prepare him for the novel transport duties and his perception of a lack of job-

relatedness.73 Because no clear mandate of public policy was or is being threatened

by his termination, Mr. Rich hasn’t met the exacting standard for a Pressman public

policy claim.

Accordingly, the University’s motion for summary judgment on his implied

covenant claim is GRANTED.

72
E.g., Evans v. Dart, 2021 WL 2329372, at *2 (N.D. Ill. June 8, 2021) (explaining that, due to
COVID-19, correctional officers “have been engaging in extensive decontamination, cleaning, and
sanitizing activities (collectively, ‘decontamination activities’) at the beginning and end of their
shifts. Such activities include ‘washing and sanitizing their uniforms, sanitizing their persons,
sanitizing and maintaining [PPE], and showering.’”).
73
Rich Dep. at 60.
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V. CONCLUSION

For the foregoing reasons, the University of Delaware’s motion for summary

judgment as to both remaining counts is GRANTED.

IT IS SO ORDERED.

/s/ Paul R. Wallace
_______________________
Paul R. Wallace, Judge

cc: All Counsel via File and Serve