Delaware Court Dismisses Lawsuit Against Mill Creek Fire Department
The New Castle County Superior Court has dismissed a lawsuit filed by a longtime volunteer with the Mill Creek Fire Department who challenged his suspension and expulsion. The dispute stemmed from a text exchange in which Steven Germain, told a female associate that he “had a mental thought of slapping her on the butt.”
The female replied that such a comment would be inappropriate. Germain acknowledged her point and apologized. Nonetheless, the text was reported to department leadership, and Germain was suspended pending an investigation. He was informed that he was accused of violating the department’s sexual-harassment and conduct policies, but he was not informed of the specific conduct in issue. He was also instructed not to contact the department.
Germain responded by email the same day, providing his own description of the text exchange and referring to it as “common silly banter.” He wrote: “I will take 100% responsibility for my comment,” and even suggested that the department “skip all the formalities” of a full investigation. A second email referenced the department’s harassment policies, quoted handbook provisions, and questioned whether the confidentiality requirements of the investigation had been followed.
Five days later, Mill Creek’s Board of Directors notified Germain that he was being expelled “in response to a recent complaint regarding your conduct.” Germain then emailed “Members & Staff,” asserting that he had been denied an opportunity to present his side and claiming the incident “wasn’t handled per ‘OUR’ policies.” He later warned that escalation of the matter “can and will result in at least one or more civil lawsuits.”
Germain filed suit against several Mill Creek officials and the Board, alleging due-process violations, defamation, intentional infliction of emotional distress, and malicious prosecution. He later abandoned the latter two claims, leaving only defamation and due process for the court to consider. The defendants asked the court to dismiss the case.
Judge Sonia Augusthy began by addressing whether Mill Creek, a private nonprofit corporation, could be considered a governmental actor for purposes of constitutional due process. After reviewing the department’s structure and recent Delaware case law, the Court found no basis to treat Mill Creek as a state actor. The department was created by a community group, its board is independently elected, and its operations are not controlled by the state. As the Court explained, “[t]he inquiry ends here.”
Even assuming state action, the Judge Augusthy held that Germain did not have a protected property interest in his volunteer position. He identified no statute, contract, or regulation creating such an entitlement, and courts routinely treat volunteer positions as lacking the kind of protectable interest required to trigger constitutional protections.
Finally, the court found that even under Germain’s version of events, he received all the process he was due. He was notified of the complaint, given an opportunity to respond, and admitted making the comment — which he himself categorized as an “offensive joke,” language expressly prohibited under the department’s harassment policy.
The court then turned to the defamation claim, dismissing it because Germain failed to identify any specific defamatory statement, who made it, or to whom it was published. At oral argument, Germain claimed leadership told him that because he apologized, he had “admitted to sexual harassment,” but the court noted that even this did not amount to publication to a third party.
The court also observed that any conclusion by the Board that his conduct met the definition of sexual harassment would likely constitute a matter of public concern, given the department’s public-facing role. Under Delaware law, statements on matters of public concern must be provably false to be actionable. In this case, Germain’s own emails acknowledging the text as an “offensive joke” undercut any argument that the department’s characterization was false.
Without a specific statement or allegation of publication, the court held the defamation claim could not proceed. With that, Judge Augusthy granted the defendants’ motion to dismiss in full. Here is a copy of the complaint.
