Full opinion text
OPINION SLEET, District Judge. INTRODUCTION Kathaleen McCormick (“McCormick” or “plaintiff’) was a contract employee with the Department of Public Instruction of the State of Delaware (“DPI”). Sgt. N. Richard Jefferson (“Jefferson”), Capt. William McDaniel (“McDaniel”), and Chief William Hill (“Hill”) (collectively “defendants”) are employees of the Department of Natural Resources and Environmental Control of the State of Delaware (“DNREC”). Plaintiff also served as a corporate officer for an entity that held leases in a mobile home park in Sussex County, Delaware. A complaint was apparently received concerning an open septic system at the mobile home park. An investigation was initiated by defendant Jefferson. It was in this regard that McCormick and Jefferson had their initial contact. This contact did not go especially well, and to understate what will later become apparent, matters went increasingly downhill from there. Indeed, Jefferson’s supervisor, defendant McDaniel, initiated a second contact with plaintiff which lead to additional contacts between McDaniel’s supervisor, defendant Hill, and plaintiffs supervisor, Valerie Woodruff. The ultimate contact occurred in the rear parking area of the Bridgeville Police Department in Bridge-ville, Delaware, when — as a result of an incident related to the mobile home park and DNREC’s regulatory responsibilities but unrelated to the septic system complaint — Jefferson was in the process of effecting the arrest of McCormick’s father, William Lloyd. This action stems in part from plaintiffs contention that during that arrest, Jefferson physically accosted her in order to prevent her from using a video camera to record the event and to prevent her from entering into the police station with her father. Plaintiff asserts that all the defendants conspired to have defendant Jefferson assault and detain her. Plaintiff also contends that, as a result of another conspiracy among the defendants, she lost her contract with the DPI. Plaintiff has filed this action seeking from defendants, among other forms of relief, compensatory and punitive damages. Plaintiff alleges that, during their confrontation, Jefferson unlawfully seized her and, in the process, used excessive force in violation of 42 U.S.C. § 1983 pursuant to rights secured by the Fourth and Fourteenth Amendments of the United States Constitution. In addition, plaintiff alleges that defendants violated 42 U.S.C. §§ 1985 and 1986 by conspiring to deprive her of equal protection of the law based upon her gender and to deprive her of rights guaranteed by the First Amendment of the United States Constitution. Plaintiff also claims violations of various rights secured by state law. The court has jurisdiction over the federal statutory and constitutional claims pursuant to 28 U.S.C. §§ 1331 and 1343. The court has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367. The court currently has before it defendants’ motion for summary judgment on all of plaintiffs claims. Because the court finds that there are genuine issues of material fact regarding certain of plaintiffs claims, defendants’ motion will be denied in part and granted in part. THE FACTS I. Facts Related to Plaintiffs §§ 1985 and 1986, First Amendment, and State Law Claims From 1988 to 1997, McCormick was under contract with the DPI as an Education Associate. She also served as an officer in a corporation that held the in-fees of ninety-nine year leases at a mobile home park located in Sussex County, Delaware. In August 1996, defendant Jefferson, an Environmental Protection Officer with DNREC, while investigating a complaint regarding an open septic system at the mobile home park, left his business card at the park’s office. When plaintiff responded via telephone, Jefferson told her that he would rather speak to a man. When McCormick made it clear that he would have to speak with her regarding the matter, Jefferson told her about the complaint and indicated that the septic system would have to be repaired. Plaintiff assured him that the problem would be fixed. Jefferson informed McCormick that he would need to meet with her at the park to discuss the matter. Plaintiff suggested a meeting time for the following weekend. This was too late for Jefferson so plaintiff agreed to meet with him at her workplace during a break, on Monday, August 26, 1996. At the appointed time, Jefferson appeared at plaintiffs job and served citations on her for violations in connection with the mobile home park’s septic system. On September 9, 1996, Jefferson’s supervisor, defendant McDaniel, contacted plaintiff at work via the State’s e-mail system. He asked her to respond by e-mail to set up a time to discuss the situation at the mobile home park. The next day plaintiff e-mailed McDaniel that she preferred to speak with McDaniel’s supervisor, defendant Hill, or Hill’s supervisor. That same day, McDaniel sent another email to plaintiff questioning her further regarding the situation at the mobile home park. Rather than responding further, later that day, while still at work, plaintiff sent an e-mail message to several DNREC employees, including the Cabinet Secretary of DNREC, Director of Water Resources, Director of Air and Waste Management (the immediate supervisor of McDaniel’s supervisor, defendant Hill), and McDaniel. In this message, plaintiff requested cooperation from the agency regarding the septic system issues at the mobile home park. McCormick stated that in her opinion the state had created these issues by approving ninety-nine year leases without a plan for management at the state level, thus causing conflicting decisions between the state agencies. Plaintiff contended that this issue was currently being addressed in Superior Court. McCormick also complained about Jefferson’s stated desire to deal with a man which she viewed as discriminatory. Still later that day, McDaniel contacted her again, this time by telephone, to discuss the problems with the septic system at the mobile home park. The following day, the 11th at 8:28 a.m., McDaniel sent an e-mail message to the Director of Water Resources and sent a copy to McDaniel’s supervisor, defendant Hill. Referring to plaintiffs electronic mail message from the previous day to the Secretary and others, McDaniel stated, “Mrs. McCormick needs to be reeled in!” In addition, McDaniel requested a meeting with the Director of Water Resources on this matter. The Director responded later that evening saying, “[wjhenever you’re ready.” Eleven minutes after sending this message, McDaniel sent another to Hill, with a copy to Jefferson, allegedly disparaging McCormick and asserting her use of state time to handle personal business. On the morning of the 11th, Hill spoke with McCormick’s supervisor at the DPI by phone and told her that McCormick had sent several e-mail messages to DNREC personnel over a period of a few days. McCormick notes that, at the time of Hill’s discussion with her supervisor, she actually had sent a total of three email messages — two of which were responses solicited by McDaniel on a single day. Later on the morning of September 11th, McCormick’s supervisor, Valerie Woodruff, and Hill met in his office. Reportedly, Hill told plaintiffs supervisor that plaintiff had sent e-mail messages and met with DNREC staff during the work day. Hill also stated that he had seen plaintiff in a state vehicle at the Justice of the Peace Court in Georgetown — an accusation which plaintiff denies. Later that day, plaintiffs supervisor met with McDaniel. During the meeting, McDaniel said that he had seen plaintiff on August 23 at the Justice of the Peace Court in Georgetown between 10:15 a.m. and 10:30 a.m. Further, McDaniel told Woodruff that when he left the Court at 11:00 a.m. or 11:15 a.m., plaintiff was still there. Reportedly, this assertion was later recanted by McDaniel, while testifying at plaintiffs contract renewal hearing. At this hearing regarding the allegations against plaintiff, McDaniel testified that he had seen plaintiff around lunch time, and, when he had left the Justice of the Peace Court, he had not noticed whether or not she was still there. On Friday, September 13th, plaintiff gave McDaniel her personal e-mail address and asked him to send any further e-mail messages to that address at her home. Nevertheless, several hours later, McDaniel sent another e-mail message to plaintiff at work. Plaintiff responded and asked whether McDaniel had received her home e-mail address. Further on September 11th, defendant Jefferson spoke with plaintiffs supervisor by telephone and said that plaintiff had asked for a meeting with him. Apparently, it was Jefferson who requested the original meeting. At his deposition, he admitted that he may have told McCormick that he wanted to meet with her the next week at the park. Jefferson also told plaintiffs supervisor that when plaintiff met with him at the DPI offices, she brought a box of documents to the meeting. Plaintiff, however, testified that she did not bring a box of papers. Finally, Jefferson allegedly told plaintiffs supervisor that he had spent a total of an hour at the DPI offices meeting with plaintiff. Plaintiff testified that her entire meeting time with Jefferson was comparable to a coffee break — approximately 20 minutes. Prior to the loss of her DPI contract, plaintiffs qualifications for her position as well as her job performance were not an issue. Yet, as a result of the information provided by defendants to her supervisor, plaintiff was informed by letter from the State Board of Education, dated February 28, 1997, that her contract with the DPI would not be renewed. In the section of the letter that sets forth the “circumstances that support the recommendation,” the letter states that “[t]he incidents described were brought to the Department’s attention during the fall by representatives of another state agency [, and that] [thereafter, an investigation was performed.” The letter stated that “the proposal to not renew is based on, but not limited to [plaintiffs] misconduct in office, incompetency or willful neglect of duty, performing personal business on state time, improper use of a state electronic system, and falsification of state documents.” Upon the issuance of this letter of non-renewal, plaintiff was offered and accepted “the opportunity to respond to [the] charges before a hearing officer appointed by the Board.” The Board adopted the hearing officer’s recommendation of termination. Plaintiff appealed this decision to the Superior Court of the State of Delaware in McCormick v. Board of Education for the State of Delaware, C.A. No. 97A-10-003, 1998 WL 960732 (Del.Super. July 22, 1998). In deciding the issue of “whether the evidence [was] legally adequate to support the Board’s factual findings,” the court held that “[s]ubstantial evidence exists to support a finding that the Department had ‘just cause’ to terminate McCormick because she violated the rules set out by it.” Id. at *12. Moreover, the court held that this “evidence fully justifies the hearing officer’s refusal to find that McCormick was subject to disparate treatment.” Id. at *13. Though it found that there was just cause to decide not to renew McCormick’s employment contract, the court held that because the Board failed to comply with the statutory time limits for giving notice, the attempt to terminate the contract failed. Consequently, the contract termination date was extended by statute for one year. Id. II. Facts Related to Plaintiffs § 1983 and State Law Claims On Friday, September 20, 1996, plaintiffs father, William Lloyd, was arrested by defendant Jefferson. McCormick, anticipating the processing of her father at the police station in Bridgeville, Delaware, which also housed a DNREC field office, proceeded there to await the arrival of Jefferson and her father. Plaintiff pulled a video camera from her car that she used in her work, hoping this might deter Jefferson from being as rough with her father as she claims he was at the time of the initial arrest. When Jefferson arrived with Lloyd, McCormick walked toward the back of the station and started to cross over to ask if she would be allowed to go into the building with her father. According to McCormick, Jefferson approached her, crossing over the back of the parking lot to where she was standing. At that time, he put his left hand over the lens of the video camera, grabbed plaintiffs arm with his right hand, and told her, “Get out of here.” Plaintiff responded that she wished to enter the building with her father, and Jefferson replied, “You can’t.” Three times Plaintiff contends that she said, “Don’t touch me. Don’t touch me. Take your hands off me. You are hurting me.” Nonetheless, plaintiff says that Jefferson continued to hold her arm in a tight, wrenching grip for a long period of time and that every time plaintiff said, “Don’t touch me,” he changed and tightened his grip. In addition, plaintiff alleges that Jefferson pushed her around the corner of the building and detained her without cause. She says that when she screamed, Jefferson finally let go and backed away. Plaintiff then walked around to the front of the station, entered through the front door, charged her video camera, and went back to wait at her car. As a result of Jefferson’s actions, McCormick complains that she suffered contusions to her arm. She was treated at the emergency department of Kent General Hospital early the next morning. Notes made by the attending physician reflect that the bruised areas on McCormick’s left arm had the appearance of a hand print with a thumb print to the front and palm and finger prints to the rear and were consistent with McCormick having been grabbed with the right hand. Jefferson contends that he told McCormick a number of times to go to the public entrance in the front of the building. Further, he asserts that she continued to advance toward the police entrance where Jefferson was attempting to proceed with the prisoner, Lloyd. Defendant claims that after McCormick was told numerous times to go to the public entrance, plaintiff continued toward the police entrance, intent on going in with her father. According to Jefferson, he finally had to place himself between plaintiff and the police entrance and approached the plaintiff. Jefferson asserts that he then placed his left hand on the video camera and his right hand on McCormick’s upper left arm, and after a few seconds, plaintiff complied by turning and proceeding towards the front entrance. During oral argument, there was a dispute as to whether or not the parking lot in question was restricted to police personnel. STANDARD OF REVIEW “Summary judgment is appropriate under Federal Rule of Civil Procedure 56(c) when the moving party establishes that there is no genuine issue of material fact that can be resolved at trial and that the moving party is entitled to judgment as a matter of law.” House v. New Castle County, 824 F.Supp. 477, 481 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In evaluating whether or not there are any genuine issues of material fact, “[mjateriality is determined by the substantive law that governs the case.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “In this inquiry, ‘[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.’ ” Id. “A dispute is ‘genuine’ only if a reasonable jury could return a verdict for the nonmov-ing party.” Id. The moving party has the initial burden of “informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrates the absence of a genuine issue of material fact.” Robinson v. Clemons, 987 F.Supp. 280, 283 (D.Del.1998) (quoting Celotex, 477 U.S. at 323, 106 S.Ct. 2548) (internal quotation marks omitted). After the moving party satisfies this responsibility, “the nonmoving party must go beyond the pleadings and, based on the same types of evidence, must demonstrate ‘specific facts showing that there is a genuine issue for trial,’ ” Id. “When considering a motion for summary judgment, the Court must ‘view all facts and inferences in the light most favorable to the party opposing the motion.’ ” Id. (citing Stephens v. Kerrigan, 122 F.3d 171, 176-77 (3d Cir.1997)). Moreover, “[i]f the evidentiary record supports a reasonable inference that the ultimate facts may be drawn in favor of the responding party, then the moving party cannot obtain summary judgment.” House, 824 F.Supp. at 481-82 (citing In re Japanese Elec. Prod. Antitrust Litig., 723 F.2d 238, 258 (3d Cir.1983), rev’d on other grounds, 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Put another way, “[a]ny doubts as to the existence of genuine issues of fact will be resolved against the moving party and all inferences to be drawn from the material it submits will be viewed in the light most favorable to the party opposing the motion.” Id. Finally, at this stage of the process, “ ‘the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial’ ” Lewis v. State of Delaware Dept. of Pub. Instruct., 948 F.Supp. 352, 357 (D.Del.1996) (quoting Anderson, 477 U.S. at 249, 106 S.Ct. 2505). DISCUSSION I. William Lloyd’s Claims Pursuant to Fed.R.Civ.P. 41(a)(1), the parties have stipulated to a partial dismissal with prejudice of all claims of plaintiff William Lloyd. II. Claims Brought Pursuant Section 1983 In order to state a claim under § 1983, “a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” Barna v. City of Perth Amboy, 42 F.3d 809, 815 (3d Cir.1994) (quoting West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988)). “The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” Id. at 815-16 (quoting West, 487 U.S. at 49, 108 S.Ct. 2250) (internal quotation marks omitted). “It is firmly established that a defendant in a section 1983 suit acts under color of state law when he abuses the position given to him by the State.” Id. (citing West, 487 U.S. at 49, 108 S.Ct. 2250; Screws v. United States, 325 U.S. 91, 111, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945)). In this case, there is no dispute that defendants’ actions, relating to plaintiffs § 1983 claims, were performed under color of state law. Consequently, the court will analyze plaintiffs claims according to the first element in establishing a claim under § 1983, i.e., whether plaintiff states a claim of a “violation of a right secured by the Constitution and laws of the United States.” A. Fourth Amendment: Unreasonable Seizure and Excessive Force Claim Plaintiff makes five separate claims cognizable under 42 U.S.C. § 1983. The first of these claims is grounded in her right to be free of unreasonable seizure, as guaranteed by the Fourth Amendment of the United States Constitution. In addressing plaintiffs claim, the court must first decide whether she was seized, and, if so, did Jefferson use excessive force in the process. “A ‘seizure’ triggering the Fourth Amendment’s protections occurs only when government actors have, ‘by means of physical force or show of authority, ... in some way restrained the liberty of a citizen[.]’ ” Graham v. Connor, 490 U.S. 386, 395 n. 10, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). “The Fourth Amendment’s requirement that searches and seizures be founded upon an objective justification, governs all seizures of the person, ‘including seizures that involve only a brief detention short of traditional arrest.’” U.S. v. Mendenhall, 446 U.S. 544, 551, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (citations omitted). “[The Supreme Court] conclude[d] that a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Id. at 554, 100 S.Ct. 1870. “ “Whenever an officer restrains the freedom of a person to walk away he has seized that person.’ ” House, 824 F.Supp. at 490 (quoting Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). In Gallo v. City of Philadelphia, 161 F.3d 217 (3d Cir.1998), a case involving a Fourth Amendment seizure in the context of a § 1983 claim of malicious prosecution, the Court of Appeals for the Third Circuit reiterated the need to adopt “a broad approach in considering what constitutes a seizure.” Id. at 224. “Additionally, the Supreme Court has clarified that seizures can be of different intensities.” Id. at 223. Moreover, the Third Circuit stated that “Supreme Court cases have not equated a seizure with a significant deprivation of liberty.... Indeed, Supreme Court cases concerning seizure generally involve restricting an individual’s movement to a small area.” Id. at 224. In the instant case, plaintiff alleges that Jefferson approached her, put his left hand over the lens of her video camera, and grabbed and continued to hold her arm in a tight wrenching grip for a long period of time. According to plaintiff, defendant’s grip tightened each time she requested that he release her. In addition, plaintiff alleges that Jefferson pushed her around the corner of the building and detained her. As noted above, defendant denies these allegations. He contends that he merely put one hand up to the video camera lens and the other on plaintiffs left arm and that she acquiesced as he directed her toward the front entrance of the station. There is clearly a factual dispute as to what transpired between plaintiff and defendant in the parking lot. The court’s job at this stage in the proceeding is not to attempt to credit one side or the other in an attempt to resolve that dispute. 948 F.Supp. at 357. Indeed, at summary judgment, it is the non-moving party (here the plaintiff) that is entitled to the resolution of facts and reasonable inferences in her favor. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Whether plaintiff was seized is a question of material fact because a seizure is a prerequisite to a finding of Fourth Amendment based liability. Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Mellott, 161 F.3d at 124. The dispute is genuine because there is sufficient evidence upon which a reasonable trier of fact could find for plaintiff. House, 824 F.Supp. at 491; cf. Mellott, 161 F.3d at 124-25 (in contrast, ruling in favor of defendants, as a matter of law). Specifically, should the jury credit plaintiffs version of the events, the court holds that those facts would be sufficient for the jury to conclude that plaintiff was seized. Id. In other words, the resolution of this dispute will determine whether or not plaintiff was seized. This is a job that belongs to a jury. Id. Turning the analysis from the issue of whether plaintiff was seized to whether Jefferson utilized excessive force in the course of that seizure, “[i]n order to prevail on a Fourth Amendment excessive force claim, a plaintiff must demonstrate that the defendant’s use of force was not ‘objectively reasonable.’ ” Mellott, 161 F.3d at 122 (citing Ghraham, 490 U.S. at 397, 109 S.Ct. 1865). A determination of whether the force applied in this instance was objectively reasonable requires the examination of a variety of factors “including severity of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officers or others, and whether he [was] actively resisting arrest or attempting to evade arrest by flight.” Id. Also, “it is important to consider how many individuals the officers confronted and whether ‘the physical force applied was of such an extent as to lead to injury.’ ” Id. (quoting Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir.1997)). “Other relevant factors include the possibility that the persons subject to the police action [were] themselves violent or dangerous, the duration of the action, whether the action [took] place in the context of effecting an arrest, the possibility that the suspect may [have been] armed, and the number of persons with whom the police officer ... [had to] contend at one time.” Sharrar, 128 F.3d at 822. Looking initially at the severity of the crime, note must first be taken that plaintiff was not at the outset the focus of the defendant’s arrest efforts. It was plaintiffs father, William Lloyd, who defendant was taking into the station for processing for a non-violent offense. Plaintiff was, at first, only a bystander who sought to record the events attendant to her father’s arrest — or, at least, sought to appear to be recording these events. When she became engaged with defendant, it was not as the result of any threat plaintiff or Lloyd posed to the officer’s safety but rather his efforts apparently designed to prevent plaintiffs use of her video camera and/or her entry into the station through the back door. The arrestee, plaintiffs father, appeared to be in defendant’s control and making no attempt to resist or flee. Moreover, there is no evidence that Lloyd or plaintiff were violent or dangerous or that either individual might have been armed with anything more than a camera. And, while they outnumbered defendant two to one and while one’s own arrest and the witnessing of such an event by a loved one might be emotionally charged, the record reflects no behavior by either Lloyd or plaintiff that might have been reasonably interpreted by the defendant as threatening to his or his prisoner’s safety. Finally, plaintiff contends that she suffered physical injury, a severely bruised right arm, as a direct result of the application of a “wrenching” grip by defendant. Defendant contests this allegation but, as previously noted, at the summary judgment stage the court must accept the non-moving party’s contention as true. The court is mindful of the teaching of the Supreme Court in Graham that not every injury sustained by a citizen during an encounter with law enforcement officials gives rise to a constitutional claim. House, 824 F.Supp. at 491 (citing Troublefield, 789 F.Supp. at 166; Graham, 490 U.S. at 396, 109 S.Ct. 1865). It is also clear that courts should “keep in mind that a threat that may seem insignificant to us in the security of our chambers may appear more substantial to a reasonable officer whose own life or safety is at stake.” Mellott, 161 F.3d at 122. Nevertheless, in sum, the absence of any threatening behavior, the control defendant exercised over the situation confronting him, and the fact that plaintiff sustained physical injury directly at his hands, make it inappropriate at this time to find that the use of force under the circumstances was objectively reasonable. In addition, the court cannot find under these facts that the officer found himself in a situation requiring “split-second judgments.” Although, some tension was undoubtedly presented by the situation and already existed between plaintiff and Jefferson — plaintiff sought to photograph defendant’s actions during the arrest of her father and the earlier contacts between the two — 'the court does not find that the circumstances confronting the officer in the parking lot were so “uncertain” or “rapidly evolving” that the “calculus of reasonableness” as to the amount of force that was required would weigh in defendant’s favor. Id. Indeed, plaintiff was known to defendant. At least, he knew her to be a fellow state employee. This should have removed a good bit of the uncertainty from the calculus. Given this state of the record, the court is not prepared to say that defendant Jefferson’s conduct was objectively reasonable. Therefore, the court will not find in favor of defendant Jefferson as a matter of law regarding plaintiffs Fourth Amendment excessive force claim. Defendant Jefferson has not convinced the court that there are sufficient undisputed facts in the record upon which the court could base such a finding. As such, the entry of summary judgment for defendant Jefferson regarding plaintiffs excessive force claim must be denied. B. Fourteenth Amendment: Substantive “Liberty” Guarantees of Due Process Claim Next, McCormick’s § 1983 claim is grounded in her right to be “free from State-occasioned violence and injury to her bodily integrity, as provided by the substantive ‘liberty’ guarantees of due process.” “In addressing an excessive force claim brought under § 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force.... The validity of the claim must then be judged by reference to the specific constitutional standard which governs that right, rather than to some generalized ‘excessive force’ standard.” Graham, 490 U.S. at 394, 109 S.Ct. 1865. Moreover, the Supreme Court stated that Graham does not hold that all constitutional claims relating to physically abusive government conduct must arise under either the Fourth or Eighth Amendments; rather, Graham simply requires that if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process. County of Sacramento v. Lewis, 523 U.S. 833, -, 118 S.Ct. 1708, 1715, 140 L.Ed.2d 1043 (1998) (quoting United States v. Lanier, 520 U.S. 259, 272 n. 7, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997)). Consequently, a substantive due process analysis would be inappropriate only if the claim was ‘covered by’ the Fourth Amendment. Id. Since McCormick has alleged a violation of her substantive due process rights under the Fourteenth Amendment on the grounds of alleged state-occasioned violence to her person without alleging a seizure, this claim is not “covered by” the Fourth Amendment, and, thus, this claim will be analyzed according to the substantive due process approach and its “shocks the conscience” standard in which “only the most egregious [executive] official conduct can be said to be ‘arbitrary in the constitutional sense.’ ” Id. at 1716 (1998) (quoting Collins v. Harker Heights, 503 U.S. 115, 129 and 126, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)). “[C]onduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level.” Id. at 1718. The Supreme Court’s “concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience-shocking.” Id. at 1718-19. In Lewis, the Supreme Court held that “high-speed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment, redressible by an action under § 1983.” Id. at 1720. There, the Supreme Court applied a “middle range” level of culpability to the police action in that case. Id. at 1718. The range of culpability standards cognizable under the rubric of substantive due process starts on the low end somewhere above negligence, which is “categorically beneath the threshold of constitutional due process;” extends through mid-range culpability which includes in some circumstances recklessness, gross negligence, and deliberate indifference; and culminates at the high end with malicious, sadistic intent. Id. at 1718-20. According to Lewis, the applicable standard to be met before the defendant’s conduct can be said to shock the conscience is heightened as the situation intensifies or is deemed an emergency, requires judgment on the spot with little opportunity to contemplate ones actions, and entails countervailing governmental interests. Id. In the instant case, plaintiff asserts that Jefferson’s attack on her outside of the Bridgeville Police Station was unprovoked, unjustified, and unreasonable. Nevertheless, plaintiff has not produced sufficient evidence to state a substantive due process violation according to the shocks the conscience standard. Plaintiff admits to the chaotic, rapidly evolving nature of the situation. Moreover, she admits that Jefferson’s actions took place during the lawful arrest of her father. Consequently, defendant’s actions cannot be said to fit within the category of “the exercise of power without any reasonable justification in the service of a legitimate governmental objective.” Id. at 1716. The Courts recognizes that “[s]ubstantive due process is based on ‘the right to be free of state intrusions into realms of personal privacy and bodily security through means so brutal, demeaning, and harmful as literally to shock the conscience of a court.’ ” Metcalf v. Long, 615 F.Supp. 1108, 1119 n. 12 (D.Del.1985) (quoting Hall v. Tawney, 621 F.2d 607, 613 (4th Cir.1980)). Moreover, within the rubric of substantive due process, “[o]ne right which has been deemed ‘fundamental’ is the right of individuals to be free from treatment by law enforcement officers that ‘shocks the conscience.’ ” Id. at 1120 (citing Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952)). Nevertheless, “the constitutional protection under substantive due process is not coextensive with the common law action for assault and battery.” Id. at 1121. As the court in Metcalf v. Long recognized, “this district has found repeatedly in cases involving allegations of excessive force by police officers, a mere assault and battery does not rise to the level of a constitutional violation.” Id. (citations omitted). Beyond an intentional tort, the plaintiff “must prove acts which amount to shocking or brutal conduct.” Id. (citing Davidson v. Dixon, 386 F.Supp. 482, 488 (D.Del.1974), aff'd mem., 529 F.2d 511 (3d Cir.1975)). Metcalf involved a detainee who experienced police violence after he had been placed under arrest, and thus the court analyzed his excessive force claim under the Fourteenth Amendment. There the court reasoned that “even assuming that there was no cause for this attack ... [e]ven [plaintiffs] version of the incident indicates that it was a brief skirmish giving rise to minor injuries.” Id. Metcalf had suffered “a whiplash type neck injury and a pinched nerve in his right wrist.” Id. Similarly, McCormick has established evidence that evinces an alleged assault and battery by Jefferson. This court, like others confronted with this issue, is “reluctant to expand the concept of substantive due process.” Lewis, 118 S.Ct. at 1714 (quoting Collins, 503 U.S. at 125, 112 S.Ct. 1061)). Moreover, “the Fourteenth Amendment is not a ‘font of tort law to be superimposed upon whatever systems may already be administered by the States.’ ” Id. at 1718 (quoting Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)). Therefore, the court finds that Jefferson’s actions in these circumstances did not violate McCormick’s Fourteenth Amendment substantive due process rights. Consequently, defendants motion for summary judgement regarding this claim is granted. C. Fourteenth Amendment: “Liberty and Property Guarantees of Due Process” Claim Next, among McCormick’s § 1983 claims, plaintiff contends that defendants interfered with her contractual relationship with her employer by providing false and damaging information to her supervisor, thereby violating plaintiffs right “to be free from injury to her reputation and from interference with her contractual relationships, as guaranteed by the liberty and property guarantees of due process.” Plaintiff asserts that on September 11, 1996, Hill, McDaniel, and Jefferson all spoke with plaintiffs supervisor at the DPI. Plaintiff contends that “an obvious impetus for [defendants’ actions was [plaintiff’s complaint on September 10, 1996 to upper-level officials at DNREC about her treatment by Jefferson.” She lists specific instances where defendants allegedly provided false information, including instances where plaintiff alleges that the defendants changed their story when under oath. Plaintiff asserts that “[d]efendants as State officials, used their influence with another State official who directly supervised [plaintiff] to secure the termination of [her] employment based upon defamatory statements.” In response, defendants argue that plaintiff has failed to demonstrate or indicate that the statements they made to plaintiffs former supervisor were in any way “material or defamatory.” 1.) Fourteenth Amendment Liberty Interest in Reputation Claim In Morris v. Board of Education of the Laurel School District, 401 F.Supp. 188, 210 (D.Del.1975), the district court found that the plaintiffs Fourteenth Amendment liberty interest was implicated by her discharge from her position as a nontenured Delaware school teacher “for persistent insubordination.” The court explained that “[w]hile a teacher’s interest in a particular teaching job does not constitute a liberty interest, a teacher does have an interest in her ability to pursue her teaching career which is protected by the Due Process Clause.” Id. Moreover, “a state cannot foreclose a range of employment opportunities in a manner that contravenes due process.” Id. (citing Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). After receiving testimony at trial from Board members and a professional in the field of teacher placement in Delaware and vicinity, confirming the potential damaging effect on future placement of non-renewal for this reason, the Morris court concluded that the plaintiff “had a liberty interest of which she could not be deprived without being accorded procedural and substantive due process.” Id. at 211. “The Supreme Court, in the seminal case of Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), recognized that an individual has a protectable interest in reputation.” Ersek v. Township of Springfield, 102 F.3d 79, 83 (3d Cir.1996). “It stated that “where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.’ ” Id. (quoting Wisconsin, 400 U.S. at 437, 91 S.Ct. 507). In the case of Paul v. Davis, the Supreme Court held that the last sentence “referred to the fact that the governmental action taken in that case deprived the individual of a right previously held under state law....” 424 U.S. at 708, 96 S.Ct. 1155. Moreover, the Court held that “[i]t is clear that to make out a claim for a violation of a liberty interest in reputation a plaintiff must show a stigma to his reputation plus some concomitant infringement of a protected right or interest.” Ersek, 102 F.3d at 83 n. 5 (citing Paul, 424 U.S. at 701, 709, 96 S.Ct. 1155). “For government action to infringe the ‘reputation, honor, or integrity’ of an individual, that government action first must involve publication that is substantially and materially false.” Id. at 83-84 (citations omitted). “[T]he disputed or false statements must harm the plaintiff.” Id. at 84. “The principal relief to which an individual is entitled should the government’s stigmatizing comments rise to the level of a due process violation is a hearing to clear his name.” Id. In the instant case, plaintiffs claim of a violation of her liberty interest in her reputation is accompanied by a concomitant infringement of an independent right protected by the due process clause, i.e., the extinguishment of her property right in her employment, a right provided by state law. Ersek, 102 F.3d at 83 n. 5. Notwithstanding these considerations, the court finds that McCormick has already received the process due to her. As a result of the contract renewal hearing and the appeal to the Superior Court, plaintiff has had the opportunity to tell her side of the story and refute the charges against her in an effort to clear her name. Roth, 408 U.S. at 573 n. 12, 92 S.Ct. 2701. Additionally, plaintiff has received damages by way of the Superior Court judgment for violations of her procedural due process rights during the contract hearing process. Therefore, defendants’ motion for summary judgment regarding plaintiffs liberty interest Fourteenth Amendment due process claim is granted. 2) Fourteenth Amendment Property Interest Claim In the case of Kelly v. Borough of Sayreville, New Jersey, 107 F.3d 1073, 1076 (3d Cir.1997), the plaintiff alleged in his complaint “damage to his liberty interest in his reputation and his property interest in his employment” in violation of the Fourteenth Amendment. The Court of Appeals for the Third Circuit explained that “[t]o establish a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate a violation of a right secured by the Constitution and the laws of the United States and that the alleged deprivation was committed by a person acting under color of state law.” Id. at 1077 (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.1995) (internal quotation marks omitted)). In the instant case, it is undisputed that defendants acted under color of state law, thus the issue is whether defendants actions deprived plaintiff of a property interest guaranteed by the Constitution. Additionally, McCormick must establish that she had a constitutionally protected interest in her continued employment at the DPI in order to make out a due process claim in connection with the termination of her employment. Walls v. City of Milford, 938 F.Supp. 1218, 1221 (D.Del.1996). “Constitutionally protected property interests are created and defined by an independent source, such as state law.” Id. (citing Roth, 408 U.S. at 567, 92 S.Ct. 2701; Brown v. Trench, 787 F.2d 167, 170 (3d Cir.1986)). “Public employees who can only be terminated for cause have been deemed to possess constitutionally protected property interests in their continued employment.” Id. (citing Richardson v. Felix, 856 F.2d 505, 509 (3d Cir.1988); Brown, 787 F.2d at 171; Dixon v. Mayor and Council of Wilmington, 514 F.Supp. 250, 253 (D.Del.1981)). “A public employee with a constitutionally protected interest in his continued employment cannot be denied this interest without substantive and procedural due process.” Id. at 1222 (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985)). In the instant case, Delaware law provided plaintiffs property interest in her employment at the DPI via 14 Del.C. § 121(4). Notwithstanding a public employee possessing a constitutionally protected property rights in her employment, the Court of Appeals for the Third Circuit explained that in order to state a claim for deprivation of a property interest in violation of the Fourteenth Amendment, the plaintiff must prove that the defendant interfered with plaintiffs employment rights by way of an “adverse employment action.” Kelly, 107 F.3d at 1077 (citations omitted). The court stated “that the crucial question is whether the plaintiff ‘has alleged the alteration or extinguishment of some additional interest.’ ” Id. at 1078 (quoting Sturm v. Clark, 835 F.2d 1009, 1013 (1987)). From the above discussion of applicable law, one can easily discern that plaintiff possessed a property interest in her employment via state law, specifically 14 Del.C. § 121(4). Plaintiff asserts that defendants intended to interfere with her property right in her employment by contacting her supervisor and providing disparaging information about the plaintiff to her supervisor. Plaintiffs property interest in her position at the DPI was extinguished through non-renewal of her contract, causing her lost compensation. Nevertheless, in Bradley v. Pittsburgh Board of Education, 913 F.2d 1064, 1077 (3d Cir.1990), the plaintiff, a terminated public high school teacher, based his substantive due process claim attacking his termination on the grounds that the charges against him were pretexual and rendered by the defendants in bad faith. In that case, the plaintiff appealed his termination in state court as provided by the applicable statute. The state court ruled that the plaintiffs conduct “constituted negligence and persistent violation of school laws.” Id. at 1073. In considering the plaintiffs substantive due process claim challenging his termination, the Third Circuit gave preclusive effect to the state court finding that the plaintiff was properly terminated. Given this legitimate basis for the plaintiffs termination, the Third Circuit reasoned that it could not say that “the firing was so arbitrary and capricious as to violate substantive due process.” Id. Likewise, in the instant case, the court finds as a matter of law that McCormick’s termination by the DPI was rationally related to a legitimate government interest, because preclusive effect must be given to the Superior Court finding that the Board adduced sufficient evidence of just cause not to renew plaintiffs contract. Therefore, defendants’ motion for summary judgment regarding plaintiffs Fourteenth Amendment substantive due process claim is granted. D. First Amendment Retaliation Claim: McCormick contends that “[defendants’ actions in defaming [her] and damaging her reputation were undertaken in conjunction with a violation of plaintiffs First Amendment rights.” She contends that these actions were taken in retaliation for plaintiffs exercise of her rights in complaining about defendant Jefferson’s actions to DNREC officials. Defendants counter that plaintiff has failed to establish the elements of a defamation. They argue that the content of plaintiffs electronic mail messages is not protected expression. 1. General Principles “In order to prevail on a retaliation claim, the plaintiff has to prove: ‘first, that [she] engaged in a protected activity; second, that the Government ... responded with retaliation; and third that [her] protected activity was the cause of the Government’s retaliation.” Rappa v. Hollins, 991 F.Supp. 367, 374 (D.Del.1997) (citing Anderson v. Davila, 125 F.3d 148, 160 (3d Cir.1997)). “The burden is on the plaintiff to show that [her] conduct was constitutionally protected.” Id. at 374 n. 14. (citing Mt. Healthy City Sch. Dist. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). “In addition, in order to establish causality, the plaintiff must demonstrate the conduct was a ‘substantial’ or ‘motivating’ factor in the alleged retaliatory act.” Id. The first inquiry, whether plaintiffs speech is protected by the First Amendment, is a question of law. Azzaro v. County of Allegheny, 110 F.3d 968, 975 (3d Cir.1997) (citing Watters v. City of Philadelphia, 55 F.3d 886, 892 (3d Cir.1995)). Two conditions must be satisfied for a public employee’s expressive conduct to be deemed constitutionally protected: First, the employee’s conduct must address a ‘matter of public concern,’ which is to be determined by the ‘content, form, and context of a given statement, as revealed by the whole record.’ Second, the value of that expression must outweigh ‘the government’s interest in the effective and efficient fulfillment of its responsibilities to the public.’ Id. at 976 (quoting Connick v. Myers, 461 U.S. 138, 147-48, 150, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). Moreover, “[a] discharged public employee is entitled to no redress if her expression is not related to a matter of public concern or, even if it is so related, if its value is outweighed by the value of permitting the government to take action promoting efficiency and effectiveness.” Id. Here, at summary judgment, the court then must decide if a genuine issue of material fact exists regarding (1) whether McCormick’s complaint was “a motivating factor in the decision to discharge” her and (2) whether McCormick “would have been discharged for other reasons even in the absence” of her complaint against defendant Jefferson. Id. at 975. 2. Matter of Public Concern “An employee’s speech addresses a matter of public concern when it can be ‘fairly considered as relating to any matter of political, social, or other concern to the community.’ ” Watters, 55 F.3d at 892 (citing Holder, 987 F.2d at 195; Connick, 461 U.S. at 146, 103 S.Ct. 1684). “Speech by a public employee ‘as a citizen upon matters of public concern’ is distinguished from speech by ‘an employee upon matters of only personal interest’ for which, ‘absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.’ ” Id. (citing Connick, 461 U.S. at 147, 103 S.Ct. 1684). On the other hand, “[i]t is the value of exchanges of information and ideas relevant to self-governance that entitles public concern speech to ‘special protection.’ ” Azzaro, 110 F.3d at 977. “Silencing a public employee seeking to speak on a matter of public concern deprives a self-governing society of information that may be vital to informed decision-making.” Id. (citing Pickering v. Board of Educ., 391 U.S. 563, 571-72, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Watters, 55 F.3d at 886). “[T]he issue is whether it is important to the process of self-governance that communications on this topic, in this form and in this context, take place.” Id. a.) Form, Context, and Place “[The Third Circuit] has found public employee criticism of office internal operations a matter of public concern.” Swineford v. Snyder County, 15 F.3d 1258, 1271 (3d Cir.1994). In this line of cases, the court makes a distinction between “speech disclosing public officials’ misfeasance” which is protected and “speech intended to air personal grievances” which is not protected. Id. (citing Czurlanis v. Albanese, 721 F.2d 98, 103 (3d Cir.1983)). “Connick indicates that the speaker’s motive, while often a relevant part of the context of the speech, is not dispositive in determining whether a particular statement relates to a matter of public concern.” Azzaro, 110 F.3d at 978 (citing Rode v. Dellarciprete, 845 F.2d 1195, 1201 (3d Cir.1988)). Moreover, “[w]hile, ... an employee’s motive may be relevant to whether speech is on a matter of public concern, giving controlling significance to ‘primary purpose’ is inconsistent with the result in Connick.” Id. at 979. Here the court first must analyze each of McCormick’s statements in light of the above precedent to determine whether any of these statements is protected speech. Though it is clear that her statements emanated from her personal interests, i.e., the citation concerning the condition of the septic tank at the mobile home park where she serves as a corporate officer and her perceived mistreatment by defendant Jefferson, these statements also arguably touch on matters of public concern. As indicated above, the controlling case law makes clear that McCormick’s personal interests are not dispositive of the issue of the characterization of her statements. Azzaro, 110 F.3d at 978 (citing Rode, 845 F.2d at 1201). Furthermore, like the plaintiff in Czurlanis, McCormick’s speech seems more akin to that of a concerned citizen than a disgruntled employee. 721 F.2d at 103. It is clear from the content of her e-mail message to certain members of DNREC’s upper management that her statements expressed concern for the state policy of approving ninety-nine year leases and the ramifications of a lack of a comprehensive policy regarding such properties. In addition, the issue of allegedly discriminatory behavior by a DNREC employee, especially one whose duties involve contact with the public, touch on matters of public concern. As stated above, it is a question of law whether plaintiffs speech is constitutionally protected. The court finds that plaintiff has satisfied the first condition for constitutional protection, i.e., that the expression address a matter of public concern. The court now turns to the second condition that must be satisfied for the speech to be given constitutional protection. b.) Balancing Test (The Value of the Expression) “The next step in our analysis is to conduct the balancing of interests required by Pickering and Connick.” Azzaro, 110 F.3d at 980. “On one side we weigh the public employee’s interest in speaking about a matter of public concern and the value to the community of her being free to speak on such matters.” Id. (citing Green v. Philadelphia Housing Auth., 105 F.3d 882, 885 (3d Cir.1997); Watters, 55 F.3d at 895; Versarge v. Township of Clinton New Jersey, 984 F.2d 1359, 1366 (3d Cir.1993)). “Balanced against these interests is the government’s interest as an employer in promoting the efficiency of the services it performs through its employees.” Id. (citing Watters, 55 F.3d at 895). “Only if the value of the speech, as measured by the employee’s and the public’s interests, is outweighed by the government’s interest in effective and efficient provision of services, will [the court] hold that the speech is unprotected.” Id. As stated above, the court must weigh McCormick’s “interest in speaking and the public’s interest in hearing,” against the interests of the State, as the public employer of both parties. Swineford, 15 F.3d at 1272 (citing Versarge v. Clinton, 984 F.2d 1359, 1366 (3d Cir.1993); O’Donnell v. Yanchulis, 875 F.2d 1059, 1061 (3d Cir.1989)). The plaintiffs speech would impair the employer’s interests where the speech: (1) ‘impair[ed] discipline by superiors’; (2) ‘impair[ed] ... harmony among coworkers’; (3) ‘ha[d] a detrimental impact on close working relationships for which personal loyalty and confidence are necessary’; (4) ‘impede[d] the performance of the speaker’s duties’; or (5) ‘interfere[d] with the regular operation of the enterprise.’ ... These interests are referred to collectively as ‘disruption.’ Id. (citing Versarge, 984 F.2d at 1366 (quoting Rankin, 483 U.S. at 388, 107 S.Ct. 2891) (alterations in Versarge); Rode, 845 F.2d at 1202). In addition, the court must determine “whether [McCormick] knowingly or recklessly made false statements and whether her speech was motivated by animus.” Id. (citing Czurlanis, 721 F.2d at 106). “In Waters, ..., the [Supreme] Court decided that ‘the potential disruptiveness of the speech as reported was enough to outweigh whatever First Amendment value it might have had.’ ” Watters, 55 F.3d at 896 (citing Waters v. Churchill, 511 U.S. 661, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) (emphasis added)). Therefore, in the Third Circuit, “after Waters, it is no longer essential to show actual disruption, although such evidence would obviously be highly relevant.” Id. (citing Jeffries v. Harleston, 52 F.3d 9 (2d Cir.1995) (emphasis added)). In the case before the court, according to the findings of fact determined by the hearing officer, approved by the Board of Education, and affirmed by the Superior Court, McCormick’s acts of sending the electronic mail messages were listed among other acts of insubordination against the DPI. These findings entailing the concerns of plaintiffs former employer implicate many of the factors listed above, including (1) impaired discipline, (4) impeded speaker performance, and (5) interference with regular operations. On the other hand, analyzing the communications as between the plaintiff and the defendants’ supervision — since the plaintiff and defendants worked in different state agencies and plaintiffs comments were addressed to defendants’ state agency employer — there is little threat to the government’s interest in efficiency or effectiveness. The parties in the instant case did not work together and did not have a working relationship so trust and harmony among co-workers and interference with regular operations are not implicated by McCormick’s comments to DNREC upper management. Therefore, plaintiffs interest in freedom of speech and the community’s interest in plaintiff having and exercising that freedom outweighs the government interest in the efficiency of its operation. To the extent that her comments concerned matters of land use and possible discriminatory practices, DNREC’s operational effectiveness potentially could be enhanced by plaintiffs comments. Therefore, the balance is tipped toward protecting McCormick’s speech in this matter. Consequently, the court finds that plaintiffs interest in having free expression on a matter of public concern outweighs any threatened impairment to the State government’s interest in the efficient and effective provision of services. Therefore, plaintiffs speech is worthy of constitutional protection, as a matter of law. 3. Substantial or Motivating Factor The next issue before the court is whether the record shows a material issue of fact as to whether McCormick’s complaint was a substantial or motivating factor in the DPI’s decision not to renew plaintiffs employment contract. The Supreme Court explained this requirement as follows: The constitutional principle at stake is sufficiently vindicated if such an employee is placed in no worse a position than if he had not engaged in the conduct. A borderline or marginal candidate should not have the employment question resolved against him because of constitutionally protected conduct. But that same candidate ought not to be able, by engaging in such conduct, to prevent his employer from assessing his performance record and reaching a decision not to rehire on the basis of that record, simply because the protected conduct makes the employer more certain of the correctness of its decision. Mt. Healthy City Sch. Dist. of Educ., 429 U.S. at 285-86, 97 S.Ct. 568. Though this court is precluded from reconsidering the Superior Court’s judgment that sufficient evidence was produced to find that McCormick was discharged as a result of her own misconduct, plaintiff in the instant case has adduced sufficient evidence to allege that her discharge was the goal of the defendants in retaliation for plaintiffs exercise of her First Amendment right of free speech. Indeed, the Superior Court opinion states that prior to the loss of her DPI contract, plaintiffs qualifications for her position as well as her job performance were not an issue. In addition, plaintiff had held her position with the DPI for eight years. Nevertheless, under certain circumstances, even a “borderline or marginal” employee would have the right to engage in constitutionally protected conduct without it impacting his or her performance evaluation. Yet, according the record, plaintiff was neither a “borderline or marginal” employee. Furthermore, plaintiff has alleged a chronological chain of events starting with her communication regarding perceived gender discrimination by Jefferson and ending with the decision not to renew her employment contract. The reasons set forth in the notice from the Board regarding its recommendation that plaintiffs contract not be renewed and the hearing officer’s findings of fact both have been shown to mirror information communicated by the defendants to plaintiffs supervisor. Therefore, the court finds that plaintiff has adduced sufficient evidence to raise a genuine issue of material fact as to whether McCormick’s complaint against Jefferson was a motivating factor in the decision not to renew her employment contract. Consequently, pl