Steven Germain v. Cara Viera

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STEVEN GERMAIN,

V.

C.A. No.: N25C-08-098 SSA

CARA VIERA, MIKE

LENNON, ANDREW LLOYD,
JIMMY DOUGHTEN, MILL
CREEK BOARD OF DIRECTORS

Nee ee eee”

Defendants.

Submitted: November 21, 2025!
Decided: November 25, 2025

MEMORANDUM OPINION

Steven Germain, a longtime volunteer of a non-profit private entity,

admittedly sent a text message to a female associate, indicating he “had a mental
thought of slapping her on the butt.” She responded that would be inappropriate.
He acknowledged she was correct and apologized. This incident was reported. Mr.
Germain’s association with the non-profit was thereafter terminated. Mr. Germain
filed this lawsuit alleging Defamation, Violation of Due Process, Intentional
Infliction of Emotional Distress, and Malicious Prosecution.

Defendants Cara Viera, Mike Lennon, Andrew Lloyd, Jimmy Doughten, and
Mill Creek Board of Directors argue the Complaint cannot withstand 12(b)(6)

scrutiny. At oral argument, Plaintiff advised he has no opposition to the Motion as

' The Court heard oral argument on October 17, 2025 and took the matter under advisement.
Thereafter, the Court wrote to the parties, supplying the Supreme Court decision in Cousins v.
Goodier, inviting comment. See D.1. 26.
to Intentional Infliction of Emotional Distress and Malicious Prosecution. This
decision will therefore focus on Defamation and Violation of Due Process. The
Court must now decide whether those allegations survive a Motion to Dismiss. For
the reasons that follow, it does not.

Factual Background

After the text exchange outlined above, Plaintiff was notified by letter that
Fire Department leadership received a formal complaint, alleging a violation of the
sexual harassment and conduct policies.2 The letter notified Plaintiff an
investigation had been initiated. He was suspended. He was instructed not to have
contact with the Fire Department while the investigation was pending. The letter
from leadership did not specify the conduct at issue.

The same day, Plaintiff replied via email.? Within, he provided the factual
background for the incident outlined above and attached to the Complaint.
Specifically, the email advised Plaintiff engaged a female colleague in a text
exchange wherein he stated he had “a funny thing to share, but don’t get mad or
something like that.”* This responsive email from Plaintiff went on to describe his
next text to his female colleague as, “I said it was funny when I was coming into the

meeting hall, and everyone was there she was reaching over the table to Andrew,

* Exhibits to Complaint, p. 2.
3 Id. p. 4.
4 Id.
and I said it was funny because I had a mental thought of slapping her on the butt.’
This email from Plaintiff described the exchange as “common silly banter.”®
Plaintiff stated he “will take 100% responsibility for my comment.”’ He suggested
the Fire Department “skip all the formalities, as we typically would do with
investigations, and take it as it was.”® At the close of his email, Plaintiff stated
“[uJnless Iam removed from my positions, as J am in the middle of several fire house
projects that need immediate attention from me.”?

The next day, Plaintiff sent another email.'!® While not within the record, this
second email references a department-wide notification of his suspension. Within
this communication, Plaintiff quotes the “Anti-Harassment Policy.”

A Member, who believes they are being harassed, or are a victim of

harassment, should first try to make it clear to the harasser that their

conduct is unacceptable and unwanted. If that does not resolve the
problem, the Member should promptly and confidentially report the
incident to any Company officer. It shall be the officers’ responsibility

to report the incident to the Chief, President, or Chairman of the Board

of Directors...The Chief, President, and Chairman of the Board of

Directors are responsible for addressing the issue at the next Board of
Directors meeting. !!

Plaintiffs second email also quotes the Sexual Harassment Policy:

> Exhibits to Complaint p. 4.
8 Id.

1 Id.

8 Td.

* Id.

10 Exhibits to Complaint p. 6.
!! Exhibits to Complaint p. 6.
Sexually harassing conduct in particular includes all of these prohibited

actions as well as other unwelcome conduct, such as: unwelcome sexual

flirtations, advances, or propositions: verbal abuse of a sexual nature;
subtle pressure or requests for sexual activities; unnecessary touching

of an individual; graphic comments about an individual’s body; a

display in the workplace of sexually suggestive objects or pictures;

sexually explicit or offensive jokes; or physical assault.!*

Plaintiff sought to categorize his text as “offensive jokes and none of the
remaining description in the above paragraph.”'? He went on to cite the handbook
which outlined a policy on investigations of allegations of harassment. In relevant
part, the policy states “[e]very reported complaint of harassment will be investigated
thoroughly and promptly.”’* It goes on to outline the process for the “typical”!
investigation. Plaintiff emphasized the portion which states “[t]he investigation will
be handled in as confidential a manner as possible with a full, fair, and proper
investigation.”!® Plaintiff's second email acknowledged an upcoming meeting with
leadership.'’ In closing, Plaintiff wanted to know who advised the Chairman to share

“confidential information’”'* with the company. Of note, neither the Complaint nor

its exhibits include a copy of exactly what was shared with the company.

'3 Exhibits to Complaint p. 7.

14 Id.

' Td. at p. 8.

'8 The Court pauses here to note the Anti-Harassment Policy provided by Plaintiff states “the
member should promptly and confidentially report...” but does not reference an obligation of
confidentiality by the leadership.
Five days later, Plaintiff was notified the Board took action to expel him from
the Fire Department “in response to a recent complaint regarding your conduct.”!?
Plaintiff then sent another email, this time to the “Members & Staff.” 2° There,
Plaintiff stated he was denied the opportunity to state his case and asserted the
complainant was being used by leadership to “push this through.”?! He asserted
“this incident wasn’t handled per “OUR” policies.”** Plaintiff sent a request to have
someone present a letter on his behalf to the fire company.”> Within, he cited the
same policies outlined above. He categorized his expulsion as “false & deceitful.”*
Plaintiff warned “[e]scalation of this outside the membership can and will result in
at least one or more Civil lawsuits against the accuser & its accomplice’s:”*

At oral argument, it was determined that Mill Creek is a non-profit private
entity, created by a church social group, but organized under Delaware law. While
it receives funding from the State, the extent of the funding is unknown. Mill Creek
is controlled by a Board of Directors, who are not appointed by the State. The Board
is not subject to State control. Mill Creek is not part of the City Charter. Plaintiff

was a volunteer with the Fire Department for over 14 years. The Complaint alleges

'9 Complaint, Exhibits p. 12.
20 Td. at p. 14.

2l Td.

22 Id.

3 Complaint, Exhibits p. 18.
24 Td.

25 Id.
Plaintiffs character and integrity have been attacked and that the actions he
complains of have greatly affected his life, marriage, business, family and neighbors.
The Complaint does not seek specific relief. At oral argument, the Court inquired
as to the relief sought. Plaintiff stated he wants an apology and wants to expose the
truth.
Standard of Review on a Motion to Dismiss

The standard by which this Court reviews a motion to dismiss filed pursuant
to Superior Court Civil Rule 12(b)(6) is well-established. The Court must accept as
true all well-pleaded allegations;”® however, claims that are “clearly without merit”
will be dismissed.”” The Court will not “accept conclusory allegations unsupported
by specific facts.”*® A motion to dismiss shall be denied “unless the plaintiff would
not be entitled to recover under any reasonably conceivable set of circumstances
susceptible of proof.”*? The Court must draw every reasonable factual inference in

favor of Plaintiff.*° The Court will address the Motions to Dismiss with these

6Sterling Network Exchange, LLC v. Digital Phoenix Van Buren, LLC, 2008 WL 2582920, at *4
(Del. Super. Mar. 28, 2008) (citing Lesh v. Appriva, 2006 WL 2788183, at *3 (Del. Super. June
15, 2006)).

?Caldera Properties-Lewes/Rehoboth v. Ridings Dev., LLC, 2008 WL 3323926, at *11 (Del.
Super. June 19, 2008) (quoting Wilmington Trust Co. v. Politzer & Haney, Inc., 2003 WL
1989703, at *2 (Del. Super. Apr. 25, 2003)).

28 Price v. EI. DuPont de Nemours & Co., 26 A.3d 162, 166 (Del. 2011).

?°E I. Du Pont de Nemours & Co. v. Allstate Ins. Co., 2008 WL 555919, at *1 (Del. Super. Feb.
29, 2008) (citing Atamian v. Gorkin, 1999 WL 743663, at *5 (Del. Super. Aug. 13, 1999)).

3° Central Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d 531 (Del. 2011).

6
standards in mind, but must first outline the law regarding due process and
defamation claims to frame the issues properly.
Due Process

Governmental Action Required

“The strictures of the due process clauses apply to governmental action only
and not to private entities...Such a claim can only be sustained if it can be established
that there was sufficient state action involved in the actions [].”?! “[A] State
normally can be held responsible for a private decision only when it has exercised
coercive power or has provided such significant encouragement, either overt or
covert, that the choice must in law be deemed that of the State.’?? Whether action is
private or state “frequently admits of no easy answer.”

Fortunately for the Court, whether a Delaware volunteer fire department is a
governmental actor has been thoughtfully and recently addressed by this Court in
Dufresne v. Camden-Wyoming Fire Company.*4 The question is “whether the private
entity’s conduct is ‘fairly attributable to the State.’”*> Dufresne lays out various

Constitutional tests applied to determine whether the fire department’s conduct is

attributable to the State such that due process shall be required in its actions.

3! Swanson v. Wesley College, Inc., 402 A.2d 401 (Del. Super. 1979).

32 Rendell-Baker vy. Kohn, 457 U.S. 830, 840 (1982) quoting Blum v. Yaretsky, 457 U.S. 991, 1004
(1982).

33 Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350 (1974).

34 2020 WL 2125797 (Del. Super.).

33 Td, at * 3 citing Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982).

7
Ultimately, the Court determined the fire department at issue in Dufresne was not a
governmental actor. The three tests outlined and discussed in Dufresne are distilled

as follows:

1. Whether the Fire Company was created by a special act of the General
Assembly, under Lebron v. National Railroad Passenger Corporation.*®

2. Whether, in the State of Delaware, the Fire Company exercised power
exclusively and traditionally held by the government.>’

3. Whether the State was involved in the challenged conduct by coercion, a
close nexus, or joint participation under Blum v. Yaretsky.*®

Property Interest Required

To have a property interest in a benefit, a person clearly must have more
than an abstract need or desire for it. He must have more than a
unilateral expectation of it. He must, instead, have a legitimate claim of
entitlement to it. It is a purpose of the ancient institution of property to
protect those claims upon which people rely in their daily lives, reliance
that must not be arbitrarily undermined. It is a purpose of the
constitutional right to a hearing to provide an opportunity for a person
to vindicate those claims.*?

In Delaware State Troopers, the Court concluded the caselaw in this area
requires a factual determination but noted in most cases “the entitlement or benefit
must derive from some statute, ordinance, regulation or contract, either express or

implied, or a combination thereof...”*° In Houston v. Township of Randolph,

36 Jd. examining Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 392 (1995).

37 Td. * 4 examining Manhattan Community Access Corporation v. Hallek, ---- U.S. ----, 139
S.Ct. 1921, 1928.

38 457 U.S. 991, 1004 (1982).

39 Delaware State Troopers Lodge. Fraternal Ord. of Police, Lodge No. 6 v. O'Rourke, 403 A.2d
1109, 1111 (Del. Ch. 1979) quoting Board of Regents v. Roth, 408 U.S. 564, 577 (1972).

40 Td, at 1112.
plaintiff claimed a property interest in his role as volunteer firefighter but this claim
failed given the absence of “a legitimate, more than de minimis, property interest in
his volunteer position....”4! “The ‘Supreme Court has held that a public employee
with no statutory or contractual entitlement to his employment has no property
interest subject to the protection of the Fourteenth Amendment.’””? “[T]his would
apply to a volunteer position.’
Sufficient Process

[fa Plaintiff establishes Defendants were government actors and that he has a
property interest in his volunteer position, the next question is whether he has put
forth sufficient allegations to suggest he did not receive the requisite due process.

“The fundamental requirement of due process is the opportunity to be heard ‘at a

4! Houston v. Twp. of Randolph, 934 F. Supp. 2d 711, 733 (D.N.J. 2013), aff'd, 559 F. App'x 139
(3d Cir. 2014) citing Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972).

"2 Td. at 733-34 (citations omitted).

3 Id. at 734. See also Dunkel v. Mt. Carbon/N. Manheim Fire Co., 970 F. Supp. 2d 374, 380-81
(M.D. Pa. 2013) citing Versarge, 984 F.2d at 1370 (“[Plaintiff’s] life membership status and
death benefit are de minimis because [he] cannot access these interests unless he is a member of
the fire company.”); Steffey v. Agora Cyber Charter Sch., 2018 WL 6696816, at *2 (E.D. Pa.)
citing Versarge, 984 F.2d at 1370; O’Toole v. Klingen, 2017 WL 132840, at *8—9 (D.N.J.) citing
Dunkel, 970 F. Supp. 2d at 380-81 (“As pled, Plaintiffs have alleged de minimis benefits that do
not carry with them a right to due process. As noted, Plaintiffs have no property interest as
volunteers to continued membership in MEMS. Plaintiffs additionally have no right to property
interests that are “inextricably tied” to their positions as volunteer first aid workers. Plaintiffs
rights to workers’ compensation, liability insurance, the LOSAP program and uniforms are all
dependent on Plaintiffs’ membership status.”); Eggert v. Bethea, 625 F. App'x 54, 56-57 (3d Cir.
2015); Wanco v. Twp. of Rochelle Park, 2017 WL 3158752, at *8 (D.N.J.); Charles v. Front
Royal Volunteer Fire & Rescue Dept, Inc., 2014 WL 4663907, at *4 (W.D. Va.).
meaningful time and in a meaningful manner.’”’“* Mathews v. Eldridge established
a three-factor test to determine what process is required in a given circumstance.”

(1) The private interest to be affected by the state action.

(2) The risk of an erroneous deprivation through the procedures uses and the

probative value of additional or substitute safeguards; and
(3) The government’s interest.
Defamation

“[A] defamation plaintiff must plead and ultimately prove that the defendant
made a statement about the plaintiff that would be understood as defamatory by a
reasonable third party and was published, meaning that it was ‘communicat[ed] by
any method, to one or more persons who can understand the meaning.’”“© Analysis
of a defamation claim depends on whether the allegedly defamatory statement
concerns one of public concern.*”? The question is whether the statement(s)
complained of “can be fairly considered as relating to any matter of political, social,
or other concern to the community.”"* “[I]f the content and circumstances of a

private communication are such that the message conveyed would be relevant to the

process of self-governance if disseminated to the community, that communication is

4 Mathews v, Eldridge, 424 U.S. 319, 333 (1976) quoting Joint Anti-Fascist Comm. v. McGrath,
341 U.S. 123, 168 (1951),

"5 Td. at 335.

4© Cousins v. Goodier, 283 A.3d 1140, 1148 (Del. 2022) quoting Page v. Oath, Inc., 270 A.3d
833,843 (Del. 2022) (internal citation omitted) and Dobbs, et. al., The Law of Torts § 520, p 176
(2011).

4” Cousins v. Goodier, 283 A.3d 1140 (Del. 2022).

48 7d. at 1152 (internal citations omitted).

10
public concern speech even though it occurred in a private context.’*? If the
allegedly defamatory statement is of public concern, then Plaintiff must establish the
statement is “provably false” for it to be actionable.*° If the statement(s) at issue are
of a public concern, then the Court must decide whether they “are provably false, or,
if they are not, whether they imply the existence of actionable defamatory statements
about Plaintiff.°! This Court must review the statement at issue to determine if the
“opinion implies the existence of an undisclosed defamatory factual basis.”*
Parties’ Contentions

Defendants argue that even if Mill Creek were wholly financed by the State
of Delaware, that alone does not render it a government actor. Defendants maintain
firefighting has not been traditionally and exclusively a government function in
Delaware. Finally, regarding government action, Defendants argue the State did not
compel or coerce the action taken by Mill Creek in this case. Defendants argue that,
by failing to allege sufficient governmental control to establish state action within
the complaint, Plaintiff fails to state a claim.

Defendants follow by arguing Plaintiff does not have a property interest in his

volunteer position. Finally, on the issue of due process, Defendants argue Plaintiff

49 Id

°° Td. at 1148-1149.

>! Td. at 1153.

2 Cousins, 283 A.3d at 1156 quoting Ramunno v. Cawley, 705 A.2d 1029, 1036 (Del. 1998),

11
received sufficient due process employed, if the Court were to find state action and
sufficient property interest.

As for defamation, Defendants argue Plaintiff failed to identify a defamatory
statement within the Complaint. Further, they argue because Plaintiff admitted
making the comment, and acknowledged it as an offensive joke, Plaintiff cannot
establish the statements complained of are false. As it relates to the Supreme Court’s
decision in Cousins, Defendants argue the statement is of public concern as it relates
to protecting individuals from sexual harassment.

Plaintiff responds by arguing “Mill Creek Fire Company is a non-profit
organization that receives financial appropriations from the State of Delaware, New
Castle County, and federal grants.”** To support his position, he cites to “Masche v.
Camden-Wyoming Fire Co. (2016).°* Unfortunately, the Court has been unable to
locate a judicial decision related to that citation. There is a docket for the Masche
matter which advises the case was related to a claim under the Fair Labor Standards
Act.

Plaintiff also cites to Walker v. Robbins, a post-trial district court decision
which assessed a claim of racial discrimination.*> In Walker, the District Court

determined the fire department was a state actor. Unfortunately, the cited decision

‘3 Plaintiff’s Response in Opposition to Defendant’s Motion to Dismiss Due Process, p. 2.
°° 465 F.Supp. 1023 (D.Del.).

12
references the Court’s prior ruling on the issue germane to this decision but is not
the decision itself. The Court has not been able to locate the underlying decision.
The cited decision quotes the fire department’s charter providing “[t]he City Council
shall have general control of the Fire Department and shall enact rules and regulation
to govern its conduct.”

Factually, Plaintiff contends the Delaware State Fire Commission licenses
Mill Creek relative to EMS and EMT functions and handles complaints from the
public. During oral argument, Plaintiff advised the State Fire Commission reviewed
his documentation but advised they would not address the matter because Mill Creek
was an entity of its own. Plaintiff agreed he was a volunteer at a non-profit
organization. The membership elects the Board of Directors. Plaintiff concedes the
Board has power to make decisions for the entire company. Ultimately, Plaintiff's
argument on the point of State control is there must be an authority, outside the entity
itself, to which he could address his grievance.

When the Court solicited comment regarding the Cousins v. Goodier decision
as it relates to the defamation cause of action, Plaintiff responded “[t]he two cases
focus on fundamentally different legal issues.”°© Then, Plaintiff engaged in an

analysis related to whether the department’s conclusion that he engaged in sexual

56 See D.I. 31.
13
harassment was supported.*’ This is a symptom of the larger problem—Plaintiff
wants to press a defamation claim but has not identified the defamatory statement,
to whom it was made, or where it was published. Plaintiff conflates his defamation
claim with his due process claim—they are separate issues with different legal
requirements as outlined above.
Analysis

Due Process

Utilizing the tests outlined in Dufesnse, this Court finds Mill Creek’s conduct
is not governmental action. There was no special act of the legislature creating Mill
Creek—it was created by a community group. In this State, the government has not
exclusively and traditionally exercised the power of firefighting. Further, there are
no allegations the State was involved in the challenged conduct by coercion, a close
nexus or joint participation. The inquiry ends here. Given Mr. Germain’s self-
representation, the Court will continue its analysis for his benefit, whatever it may

be worth.

The Court also finds Plaintiff has not demonstrated a property interest in his

volunteer position with Mill Creek. Plaintiff has failed to identify anything more

5? See Id. “The focus is on whether my conduct was severe or pervasive enough to constitute
harassment...”

14
than a de minimus interest in his volunteer position. The law requires more than an
abstract need or desire.

Finally, under the established balancing test from Mathews v. Eldridge—
even with the deference given on a Motion to Dismiss—Plaintiff received sufficient
due process. Plaintiffs private interest is in his continued volunteer work with Mill
Creek. The Court finds no risk of erroneous deprivation through the procedures,
even as Plaintiff has outlined them. Plaintiff was notified of the issue and given an
opportunity to respond. In a written response he admitted to “offensive jokes,”
which expressly violates the policy he cites. The “government” interest of Mill
Creek is to ensure a safe and respectful environment for members and the community
they serve. Even under the facts as alleged by Plaintiff, he received sufficient due
process. Due process does not guarantee a particular result. Indeed, it was Plaintiff
who suggested Mill Creek “skip all the formalities, as we typically would do with
investigations, and take it as it was,” but now complains the formal process was not
followed.

Defamation

At the outset of the analysis of this claim, the Court is faced with difficulty;
no published defamatory statement made to a third party is identified within the
Complaint or its attachments. At oral argument, Plaintiff argued he was told by
leadership that, because he apologized, he admitted to sexual harassment. That is

15
not publication. The specifics of the manner and to whom it was published by these
Defendants that Plaintiff was a sexual harasser remains unclear. For a defamation
claim, Plaintiff must allege facts sufficient to establish a claim these defendants
published to third parties. “There is no different set of rules for pro se plaintiffs, and
the trial court should not sacrifice the orderly and efficient administration of justice
to accommodate an unrepresented plaintiff.”™*

For completeness, the Court turns to the question of whether this statement is
one of public concern. The determination by the Board that Plaintiff’s conduct met
the policy definition of sexual harassment is a matter of concern to the community,
since Mill Creek is an organization providing services to the public. The next
question then, is whether Plaintiff has asserted sufficient facts in his Complaint to
establish the statement is provably false. Comparing the policies outlined by
Plaintiff and his own admission to making an “offensive joke,” the ‘statement’? is
not provably false. Since it is not, the Court must determine if the statement implies
the existence of actionable defamatory statements—here we come back to the
problem identified by the Court at the outset of this analysis—without the specific
language used, the Court has no way to tell its implication. While the Court is to

read all well-pleaded allegations in the light most favorable to the Plaintiff, that only

58 Draper v. Medical Center of Delaware, 767 A,2d 796 (Del. 2001).
°° Such as it has been identified as a determination by leadership that Plaintiff’s conduct was a
violation of the sexual harassment policy.

16
goes so far. The Court will not accept conclusory allegations that are unsupported
by specific facts. There is no allegation of publication, which is required under the
law. Therefore, Plaintiff’s assertion of defamation fails to state claim upon which
relief can be granted.

Jurisdiction

As noted above, the Complaint does not specify relief sought. At oral
argument, Plaintiff advised he seeks an apology and for the truth to be known.
Construing this position, Plaintiff appears to seek equitable relief. This Court does
not have the power to grant equitable relief.°° The power to grant requests for
equitable remedies when there is no adequate remedy at law rests with Chancery
Court.”

Wherefore, the Defendants’ Motion to Dismiss is GRANTED.

IT IS SO ORDERED.

/s/Sonia Augusthy
Judge Sonia Augusthy

6° See Phillips v. Conley, 2004 WL 692656 (Del. Super.) aff’d. 860 A.2d 811 (Del. 2004).
S| See Kraft v. WisdomTree Investments, Inc., 145 A.3d 969, 973-4 (Del. Ch. 2016).

17