In Federal Lawsuit, Dover Police Captain Claims he Was Passed Ov - WBOC-TV 16, Delmarvas News Leader, FOX 21 -

In Federal Lawsuit, Dover Police Captain Claims he Was Passed Over for Police Chief Job Because he is White

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Capt. David Spicer with the Dover Police Department. Capt. David Spicer with the Dover Police Department.

DOVER, Del.- A captain in the Dover Police Department is alleging in a federal lawsuit filed last week that he was passed over for a promotion to police chief in 2017 because he is white.

Capt. David Spicer's lawsuit against the City of Dover claims officials wrongfully discriminated against him in violation of federal and state laws when former Deputy Chief Marvin Mailey, who is black, was promoted to chief of police. Mailey retired from the department earlier this year and a search committee is looking for his replacement.

The court filing names a number of additional defendants, including Mayor Robin Christiansen, three Dover council members, City Manager Donna Mitchell, and Mailey himself.

Spicer, who declined comment for this story, filed the lawsuit after a charge of discrimination that also alleged retaliation was dismissed this summer by the U.S. Equal Employment Opportunity Commission. The motion did include a right to sue and Spicer's lawsuit was filed on Oct. 16.

Court documents show Spicer is requesting a jury trial and seeking compensatory and punitive damages.

Mailey did not respond to requests for comment while the city and other defendants named in the lawsuit declined comment on Tuesday, citing the active litigation.

Christiansen, who nominated Mailey after a recommendation by a selection committee, declined comment on the lawsuit but also said in a brief phone interview that the process used to hire Mailey was followed according to city code.

“The process was as pristine as we could make it and council passed it unanimously,” he said.

Anderson, who is black, declined to comment on the substance of the lawsuit but called it "silly."

Qualifications Disputed

Among its many claims, the lawsuit alleges Spicer was more qualified than Mailey because of his education, training, and experience. The motion cites Spicer's possession of a bachelor’s degree in criminal justice and a master’s degree in administration of justice.

The lawsuit said Mailey, who did not respond to requests for comment, has no undergraduate degree, though the former chief's Linkedin page lists Mailey as having a bachelor of science in criminal justice achieved over a period between 2015 and 2019. He was hired as police chief in 2017.

"Plaintiff was more qualified than Marvin Mailey for the Chief of Police Position. Plaintiff was not selected as Chief of Police because of his race. Defendant Marvin Mailey was specifically selected for the Chief of Police because of his race," the lawsuit reads in a section outlining alleging defendants violated Title VII of the Civil Rights Act of 1964.

The lawsuit also references a job posting published by the Delaware State News in January 2017 that said candidates needed to have a bachelor’s degree with a master’s degree preferred. City officials said the job description was posted by the newspaper in error and the listing served only as a draft and not an official document. It was published before a police chief selection panel met for the first time and officially set the job requirements.

In the following month, the committee decided to finalize the job description and maintain the existing job requirements used to hire previous chiefs, including then-city councilman Jim Hosfelt, who was a member of the committee.

Previous chiefs had been hired under requirements that allowed for candidates who did not possess a bachelor's degree to qualify for the police chief position if they had an "education and training equivalent to four years of college education in business, liberal arts, or any field other than engineering or the hard sciences."

“I have an associate degree and I was hired under that job description,” Hosfelt said during the Feb. 1 meeting.

The lawsuit claims the move was made in response to political pressure from Anderson, Slavin, Sudler, and state Rep. Sean Lynn (D-Dover).

The job listing for Dover’s current vacancy atop the police department states candidates must have a bachelor’s degree in certain fields, with a master’s degree preferred.

According to the lawsuit, Spicer has applied to fill the current police chief vacancy.

Council Members' Comments on Hiring Process

Spicer's lawsuit also references comments and actions made by Dover council members in 2017 tied to Mailey's eligibility for the job.

The lawsuit alleges Slavin, serving in 2017 as city council president and a member of the police chief search committee, was pre-determined "before applications were even submitted" in whom he was going to back for Dover's top cop.

During the selection panel's first meeting in February 2017, Slavin unsuccessfully attempted to advance Mailey as the committee's recommended choice for police chief. He also said during prepared remarks that the Mailey had served honorably as deputy chief and lamented the idea Dover had to convince itself that it was "OK" to hire a qualified minority candidate and that there would be further vetting of options.

"His hiring would have had the added benefits of healing community relations with our African American community, which has been strained for the last 20 years," he said.

The lawsuit also points to what it describes as “aggressive” campaigning by Sudler for Mailey to be promoted to police chief. It references a Jan. 2017 news conference Sudler held outside police headquarters, claiming Sudler “used his position as Councilman to unlawfully influence and circumvent the City of Dover’s selection process."

"We need somebody who not only knows the community but can also relate on more levels than just one," Sudler said in an interview with WBOC following the event.

The lawsuit also claims Sudler, who was not a member of search committee but did vote to confirm Mailey's appointment, had publicly said the "new police chief who represents the diversity of the community he or she serves."

Although it does not specify when the statement took place, the lawsuit claims Former City Manager Douglas Scott Koenig said race was a factor in the decision making process for the selection of Chief of Police. Koenig stated there was 'a lot of discussion about race that carried through with the selection process.'"

Accusations of Retaliation

Additionally, the lawsuit claims Spicer faced retaliation after filing complaints alleging race discrimination following Mailey's hire with both the city and state. The lawsuit claims Spicer was intentionally denied promotional opportunities by defendants in the case.

The lawsuit says Spicer filed a grievance with the city alleging race discrimination in Mailey’s hire, though the claim was dismissed.

Spicer, according to the lawsuit, also applied for Mailey’s old job as deputy chief but was not given the job.

Tim Stump would be hired as deputy chief in July 2017.

However, the lawsuit alleges Spicer was more qualified than Stump. The document claims Spicer on the same day he was notified he would not be appointed deputy chief, was told he was being transferred from his role as operations division commander to administrative division commander.

The transfer, Spicer’s lawyer wrote in the document, significantly diminished his role in the Dover Police Department and future promotional opportunities.

“As of results of his complaints and due to his race, Defendants purposefully denied Plaintiff promotional opportunities,” the lawsuit reads in a section alleging retaliation.

Defamation Alleged

The lawsuit also alleges Christiansen defamed Spicer when he "maliciously made false statements regarding Plaintiff’s reputation to members of the public indicating Plaintiff was not qualified for the Chief of Police position."

Christiansen’s comments at an April 2019 news conference announcing Mailey’s retirement were referenced in Spicer’s lawsuit. The mayor did not name Spicer at all during the event, but the lawsuit claims the police captain was the person the mayor referred to when responding to a question from a WBOC reporter about active litigation against the city tied to Mailey’s hire.

“If other people don’t know how to handle the fact that they were not qualified for the position or not considered for the position, that’s not our fault,” Christiansen said at the news conference.

Chief Hiring Process Followed Previous Controversy

The current hiring process for Dover's police chief was created after a controversy in 2014 that saw legal action against the city and accusations of improper influence by a mayor on the hiring of Mailey as the city's deputy police chief.

In 2014, former Dover Mayor Carleton Carey named Paul Bernat as chief of police and Mailey was named as his deputy. 

Five senior officers filed equal employment grievances claiming they were more qualified candidates for the position but did not get chosen because of race. The city ultimately settled with the officers for $300,000.

Amid concerns Carey had meddled in Mailey's promotion, city council members pressured the mayor to resign.

Carey would leave his post but denied the allegations.

The city council would vote the following year to create a police chief selection committee that would recommend a candidate to the mayor for selection. Prior to that decision, only the mayor would have input on who would be nominated as chief of police.

However, the mayor is still responsible for choosing the police chief candidate who goes before city council for its confirmation.

The process was first used in 2017 to hire Mailey. The panel considering his replacement meets next week.

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