I. INTRODUCTION
Plaintiff Joseph Mercer brought the instant civil rights action pursuant to
In his Complaint, Plaintiff includes two Counts, which he asserts against all defendants. These Counts include: (1) "Violation of
In his "Prayer for Relief," Plaint requests declaratory judgment that his rights have been violated under the First and Fourteenth Amendments of the United States Constitution and under federal and state statutes,
A. Pending Motions
Pending before the Court are two motions to dismiss by the Defendants under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The first motion is by Commissioner Dora R. Schriro (the "Commissioner"), asserting that Plaintiff's complaint should be dismissed in its entirety as to her because: (1) Plaintiff's claim under
The second motion to dismiss was brought by defendants CSPU and Andrew Matthews (collectively herein the "Union Defendants"), arguing that Plaintiff's Complaint should be dismissed in its entirety against them because: (1) the claim under
B. Factual Background
The following facts are taken from the allegations contained in Plaintiff's Complaint. Both the Commissioner and the Union Defendants admittedly "dispute many of these 'facts,' " including attributions of motive to them. Doc. 24-1, at 1; Doc. 36-1, at 1. However, as set forth infra , for the purpose of ruling on a Rule 12(b)(1) and/or (b)(6) motion, the Court must accept as true all well-pled factual allegations in the complaint.
Plaintiff Joseph Mercer brought this civil rights action pursuant to
Dora B. Schriro is the Commissioner of the DESPP and its commanding officer.
Plaintiff alleges that on November 14, 2014, he resigned his membership in the CSPU (herein the "Union").
At the time he resigned his Union membership, Plaintiff was "employed full time as a resident State Police Trooper for Colchester,
Thereafter, on March 14, 2015, Plaintiff and three other former Union members filed a civil rights lawsuit against the Union and various Connecticut state officials for violating their First Amendment rights.
On April 30, 2015, Major Mike Darcy, the senior commanding officer for Emergency Services, appointed Mercer to the full-time supervisory position of SWAT "Operations Sergeant,"
On June 22, 2015, Union President Andrew Matthews filed an institutional grievance regarding Plaintiff's appointment, claiming that the appointment violated the collective bargaining agreement ("CBA") between the Union and the State of Connecticut for the NP-1 bargaining unit because no selection process was used.
On October 9, 2015, SWAT received a distress call from the local police chief in Old Saybrook, Connecticut, seeking assistance with an armed suspect barricaded at a hotel.
On or about October 16, 2015, pursuant to the CBA, Union President Matthews and certain high ranking State Police officials held a labor-management committee meeting.
A few days later, on October 19, 2015, the Union held a meeting at its hall with only select members of SWAT and certain high ranking State Police officials invited.
On October 20, 2015, Plaintiff Mercer was summoned to meet with Colonel Brian Meraviglia and other high-ranking State Police officials to address the Union's statements at the October 16 and 19 meetings, particularly those relating to the Old Saybrook incident.
Two days later, on October 22, 2015, the Commissioner summoned Plaintiff to an unplanned meeting where she "indicated that the Union president [Matthews] threatened her with a press conference ... regarding the Emergency Services division raised by the Union."
On October 25, 2015, Major Darcy informed Mercer that the Commissioner requested (but did not order) that Colonel Meraviglia and Lieutenant Colonel Hyatt transfer Mercer, Major Darcy, and Lieutenant Bednarz out of SWAT.
On October 26, 2015, Union President Matthews held a Union meeting at the Union hall.
On the same day as the meeting, October 26, 2015, after the closed door session but before the Commissioner gave the order for Mercer's transfer, Union President Matthews filed an institutional grievance regarding the handling of the Old Saybrook incident, which Mercer had co-supervised.
The next day after the transfer, October 28, 2015, in a meeting with several State Police command staff, Mercer "informed the attendees that the transfer was against his will."
On October 30, 2015, Lt. Col. Hyatt carried out the Commissioner's command to issue a written order confirming that Mercer had been transferred from his full-time command position in SWAT to a non-command position with the Office of Counter Terrorism.
On November 2, 2015, Mercer submitted a request to meet with the Commissioner regarding his job transfer.
In his new position with the Office of Counter Terrorism, Mercer receives the same base salary and benefits that he received in his prior position "based on the CBA's provisions for sergeants."
II. DISCUSSION
A. Standard for Review
Both motions to dismiss have been brought under Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The Second Circuit has stated that "the standards for dismissal under Rules 12(b)(1) and 12(b)(6) [of the Federal Rules of Civil Procedure] are substantially identical," Lerner v. Fleet Bank, N.A. ,
1. Dismissal Under Rule 12(b)(1), Fed. R. Civ. P.-Lack of Subject Matter Jurisdiction
Under Rule 12(b)(1), a district court must dismiss an action or claim for lack of subject matter jurisdiction "when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States ,
2. Dismissal Under Rule 12(b)(6), Fed. R. Civ. P.-Failure to State A Claim
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of the complaint if that pleading fails "to state a claim upon which relief may be granted." In order to survive such a motion, the complaint must comply with the standard set forth in the United States Supreme Court's seminal holding in Ashcroft v. Iqbal ,
In determining whether the plaintiff has met this standard, the Court must accept the allegations in the complaint as true, draw all reasonable inferences and view all
"Although all allegations contained in the complaint are assumed to be true, this tenet is 'inapplicable to legal conclusions.' " LaMagna v. Brown ,
B. Commissioner
1. Count One- § 1983 Violation of First and Fourteenth Amendment Rights
In Count One, Plaintiff alleges that his "First Amendment rights of speech and association were violated when he suffered an adverse employment action by Defendants, when, acting under color of state law, the Commissioner transferred him from his position as Operations Sergeant within Emergency Services [SWAT] to [a position within] the Office of Counter Terrorism at the request of CSPU and/or Matthews." Doc. 1, ¶ 74. He also alleges that he was "deprived of exercising his rights, privileges, and immunities guaranteed by the First and Fourteenth Amendments of the United States Constitution without fear of discipline or retaliation."
As to this Count, the Commissioner argues in her pending motion that the claims must be dismissed against her under the doctrine of qualified immunity. Doc. 24-1, at 7. Qualified immunity is "an immunity from suit rather than a mere defense to liability" and is "effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth ,
a. Standard Applicable to Commissioner's Motion
The Commissioner's submissions purport to weave the qualified immunity doctrine into the tapestry of a motion under Rule 12(b)(1) to dismiss the complaint for "lack of subject-matter jurisdiction." Plaintiff challenges the applicability of the Rule 12(b)(1) standard to the Commissioner's motion to dismiss. Doc. 37, at 5.
Plaintiff contends that the Commissioner's qualified immunity defense "is not jurisdictional," but rather "a waivable affirmative defense," which is "properly raised under Rule 12(b)(6), not 12(b)(1)."
The doctrine of qualified immunity in civil rights cases frequently comes before the Second Circuit. In McKenna v. Wright ,
Qualified immunity is an affirmative defense, and an affirmative defense is normally asserted in an answer....
... Nevertheless, we see no reason why even a traditional qualified immunity defense may not be asserted on a Rule 12(b)(6) motion as long as the defense is based on facts appearing on the face of the complaint....
Of course, a defendant presenting an immunity defense on a Rule 12(b)(6) motion instead of a motion for summary judgment must accept the more stringent standard applicable to this procedural route.
These considerations may be contrasted with a lack of subject-matter jurisdiction, the element which informs a
b. Doctrine of Qualified Immunity-Individual Capacity
In consequence, the Court applies the Rule 12(b)(6) standard and examines the substance of the qualified immunity doctrine, as presented by the present motions.
Individual capacity suits "seek to impose individual liability upon a government officer for actions taken under color of state law."
Under the qualified immunity doctrine, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow ,
In general, to overcome the defense of qualified immunity, the right alleged to have been violated must be clearly established at a level of specificity such that "a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton ,
The Commissioner argues that she is entitled to qualified immunity for a number of reasons. First, she claims that there "was no clear constitutional violation" on the facts alleged. Doc. 24-1, at 10. In particular, she asserts that Plaintiff's First Amendment retaliation and Fourteenth Amendment claims "are premised upon a dispute between himself and his former Union over membership and payment of dues despite his resignation from the Union."
In addition, the Commissioner challenges whether, in any event, there could be a violation of a "clearly established constitutional right" where the Second Circuit has recently "acknowledged that 'management retaliation against a minority faction' in connection with 'intraunion dispute[s] ... [that] merely involve internal union affairs,' may not qualify as matters of public concern" for purposes of the First Amendment.
Finally, the Commissioner questions whether union membership or, more specifically, the lack thereof, constitutes a protected class under the Fourteenth Amendment. The Court examines these arguments below.
c. Violation of First and Fourteenth Amendments
Section 1983 creates a cause of action against any person who, acting under color of state law, abridges "rights, privileges, or immunities secured by the Constitution and laws" of the United States.
1. First Amendment-Freedom of Speech
Plaintiff claims that when the Commissioner transferred him out of his position as [SWAT Operations Sergeant], she violated the "First Amendment and Fourteenth Amendments to the United States Constitution[, which] guarantee [him] the freedoms of speech and association," including, "among other things, ... the right to refrain from or resign Union membership and the right to object to the payment of political and other non-bargaining union expenditures." Doc. 1, ¶ 71.
To establish that one was retaliated against in violation of the First Amendment, he [or she] must plausibly allege that "(1) his [or her] speech or conduct was protected by the First Amendment; (2) the defendant took an adverse action against him [or her]; and (3) there was a causal connection between this adverse action and the protected speech." Montero v. City of Yonkers, New York ,
"If the answer [to the public concern inquiry] is no," then "the employee has no First Amendment cause of action based on his or her employer's reaction to the speech." Montero ,
In considering whether a public employee is speaking as a citizen for First Amendment purposes, the key inquiry is whether that employee is speaking pursuant to his employment responsibilities. Id. at 395-96. When public employees make statements pursuant to their official duties, "the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id. at 395 (citation and internal quotation marks omitted). See also, e.g., Milardo v. Town of Westbrook ,
Moreover, also relevant, but not fully determinative, is whether there is a "citizen analogue"-"a form or channel of discourse available to non-employee citizens." Montero ,
In the case at bar, the alleged speech was Mercer's "constitutionally protected speech and [freedom of] association to be a nonmember [of the Union or CSPU], to object to paying for the Union's non-bargaining expenses, and/or to advocate on behalf of the rights of nonmembers." Doc. 1, ¶ 77. In particular, "[a]t various times since on or about November 14, 2014 [when Mercer resigned from the Union], [Plaintiff] informed coworkers of their rights to resign from the Union."
Analyzing Plaintiff's alleged speech, accepting the veracity of all well-pleaded factual allegations and interpreting them in his favor, Plaintiff's comments regarding resignation of his union membership and advocacy for non-members, including the filing of a lawsuit against the Union, are speech on matters of public concern within the First Amendment. His speech was not part of his employment duties, nor part of a personal grievance about the terms and conditions of his employment. Rather, his speech related to a citizen's rights to resign from union membership, to associate with whom he wishes,
The United States Supreme Court noted in Knox v. Service Employees International Union, Local 1000 ,
Public-sector unions have the right under the First Amendment to express their views on political and social issues without government interference. See, e.g., Citizens United v. Federal Election Comm'n ,, 558 U.S. 310 , 130 S.Ct. 876 (2010). But employees who choose not to join a union have the same rights. The First Amendment creates a forum in which all may seek, without hindrance or aid from the State, to move public opinion and achieve their political goals. 175 L.Ed.2d 753
Most recently, the Supreme Court held in Janus v. American Federation of State, County, & Municipal Employees, Council 31 , --- U.S. ----,
This procedure [of extracting 'fair share' fees from nonconsenting employees] violates the First Amendment and cannot continue. Neither an agency fee nor any other payment to the union may be deducted from a nonmember's wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed.
In addition, under the First Amendment, a public employee may bring a "freedom of association" claim with respect to union membership. Specifically, the Second Circuit has held that "a public employee bringing a First Amendment freedom of association claim must persuade a court that the associational conduct at issue touches on a matter of public concern." Cobb v. Pozzi ,
In particular, the First Amendment includes the "right to associate with others in pursuit of a wide variety of political,
Furthermore, the right to associate applies to choices regarding membership in associations, such as unions. See, e.g., State Emp. Bargaining Agent Coal. v. Rowland ,
Finally, with respect to Plaintiff's prior filing of a federal action against the Union, an individual's right to file a legal action is at the core of free speech under the First Amendment. "[T]he right of access to courts for redress of wrongs is an aspect of the First Amendment right to petition the government." Borough of Duryea, Pa. v. Guarnieri ,
In support of dismissal of this claim, Plaintiff argues that not all intra-union affairs are matters of public concern, which she bases solely on footnote 13 in Lynch v. Ackley ,
It is not clear that speech by employees in the role of union officers, involving advocacy as to the terms and conditions of employment, fits comfortably into either category [i.e. , speech pursuant to official duties, which is ineligible for protection from retaliation, and speech "as a citizen"]. While such speech is not made pursuant to duties imposed by the employer, such speech is made pursuant to duties that arise from the employment relationship between management and the union membership-the duty of union officers is to represent the membership in advocacy and negotiation as to the terms and conditions of employment. Whether such speech belonged in the category of citizen speech, eligible for protection from retaliation, seems to us to have been unclear at the time of [defendant] Ackley's [allegedly retaliatory] actions.
Lynch ,
However, the court in Lynch also recognized that there may be situations where
In the present case, Plaintiff's speech goes beyond intra-union affairs, extending to advocacy for non-members outside the union and to filing of a federal lawsuit. Under these circumstances, the Court concludes that Plaintiff's alleged "speech" addresses matters of public concern. That "speech"-relating to his resignation from the Union, advocacy for non-union members, and filing of a federal lawsuit against the Union-falls within the protection of the First Amendment. Plaintiff will be left to his proof to succeed on this claim against the Commissioner.
2. Fourteenth Amendment-Due Process
In her motion to dismiss, the Commissioner urges the Court to dismiss Plaintiff's Fourteenth Amendment claim under § 1983 because "it is not clear that union membership or, more specifically, the lack thereof, constitutes a protected class under the Fourteenth Amendment." Doc. 24-1, at 11. Plaintiff responds with the explanation that his Fourteenth Amendment claim "need not be based upon his membership in a protected class to establish a retaliation claim." Doc. 37, at 18. In other words, rather than alleging unlawful discrimination, Plaintiff is alleging deprivation of a "liberty interest," which includes the right to free speech.
Because Plaintiff does not claim discrimination by the government as a class-based decision, the Court need not address a particular protected class under the Equal Protection Clause. In general, to state a claim for an Equal Protection due process violation, a plaintiff "must allege that a government actor intentionally discriminated against [him, for example,] on the basis of race, national origin or gender." Hayden v. Cnty. of Nassau ,
In Mercer's case, viewing Plaintiff's Fourteenth Amendment claim as one addressing a liberty interest (i.e., freedom of speech and association), that claim may proceed. The Commissioner's motion to dismiss the Fourteenth Amendment component of Plaintiff § 1983 claim is based entirely on a discrimination, class-based theory which is inapposite to Plaintiff's asserted "liberty interest" claim. That liberty interest claim will survive the Commissioner's instant motion. See, e.g., Vaher v. Town of Orangetown, N.Y. ,
3. Timeline-Causation
The Commissioner has stated that she is entitled to qualified immunity because "her actions were objectively reasonable under the circumstances." Doc. 24-1, at 12. Specifically, she asserts that the Plaintiff's factual timeline destroys the possibility that he has pled a viable First or Fourteenth Amendment claim. Doc. 24-1, at 12-13, 19. In her argument, the Commissioner asserts that Plaintiff's alleged activities regarding free speech (resignation from the Union, advocacy for non-members of the Union, and lawsuit) occurred before he was promoted to the position of SWAT Operations Sergeant. Therefore, "[e]ven assuming that the plaintiff's speech and/or actions at issue somehow were protected, and assuming further that plaintiff suffered an adverse employment action here, plaintiff has utterly failed to allege any plausible causal connection whatsoever between his supposedly protected speech/activities, and his transfer."
The Court disagrees with the Commissioner's conclusions regarding causation and the plausibility of Plaintiff's underlying First and Fourteenth Amendment claims. Accepting the Plaintiff's factual allegations, as I must, it was Major Mike Darcy, the senior commanding officer for Emergency Services, who appointed Mercer to the full-time supervisory position of Operations Sergeant on or about April 30, 2015. This appointment was deemed effective on or about May 15, 2015. Major Darcy is not a defendant in this action. Although the promotion occurred approximately five months after Plaintiff resigned his membership in the Union (in November 2014), there is no indication that the Commissioner was involved in the promotion or that she even knew of Plaintiff's resignation from the Union at that time.
According to Plaintiff, October 22, 2015, was the date upon which the Commissioner was informed by Mercer that he had resigned from the Union, advocated on behalf of the rights of nonmembers of the Union, and filed a lawsuit against the Union. Doc. 1, ¶ 47. See also Doc. 37, at 17 ("[T]he Commissioner did not learn of Mercer's nonmembership until October 22, 2015.").
"Temporal proximity of the adverse action to the protected activity is a key indicator of retaliation[;]" however, "[t]he operative issue is not simply the length of time between the protected activity and the alleged retaliation but the demonstrated nexus between the two." Murray v. Town of Stratford ,
Granted, Plaintiff was promoted to that SWAT position (effective May 15, 2015) during the one year period after Plaintiff's resignation from the Union, but there are no allegations that the Commissioner personally directed Darcy to select Plaintiff for the promotion to Operations Sergeant of SWAT. In contrast, the allegations in the Complaint specify that on October 22, 2015, the Commissioner first learned of Plaintiff's resignation from the Union. Doc. 1, ¶ 47. Five days later, on October 27, 2015, "the Commissioner verbally ordered that Sgt. Mercer be transferred from his command position within Emergency Services."
Furthermore, the nexus between the protected activity and the alleged retaliation may be further proven by Union President Matthews's October 26, 2015, meeting with the Commissioner, which resulted in Plaintiff's transfer the following day. All in all, the timeline set forth in Plaintiff's allegations does not destroy, but rather bolsters, the possibility of causation.
Alternatively, Plaintiff argues that even if she had removed Plaintiff from his position of SWAT leadership to prevent his speech on a matter of public concern, she had an "overriding interest" to do so because the Union's "threatened press conference had the potential simultaneously to degrade the public's confidence in DESPP in general (and SWAT in particular), and to exacerbate an existing lack of confidence in plaintiff's leadership." Doc. 24-1, at 13-14 (citing Duke v. Hamil ,
In Pickering , the United States Supreme Court held that "when a public employee speaks as a citizen on a matter of public concern, the employee's speech is protected unless 'the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees' outweighs 'the interests of the [employee], as a citizen, in commenting upon matters of public concern.' " Harris v. Quinn , --- U.S. ----,
However, Mercer's retaliation claim is also based on his First Amendment rights not to be a union member and to object to funding of union political expenses, which are subject to "strict scrutiny" so that the Pickering balancing standard does not apply. See, e.g., State Emp. Bargaining Agent Coal. v. Rowland ,
In the case at bar, the Commissioner points to no facts in the Complaint to show that the transfer was done "in the most compelling circumstances." Rather, she simply states in conclusory fashion that she had an "overriding interest" in making the transfer and that the transfer was "objectively reasonable." Doc. 24-1, at 14. In sum, the Commissioner has failed to point to facts in the pleadings to support the existence of the "most compelling circumstances" for the transfer. She merely makes assertions in her memorandum, which are not evidence and may not be considered in this matter.
Therefore, even if the transfer was appropriate under a "strict scrutiny" approach, the Court finds that, at the pleading stage, there is no evidence to support that argument.
At this point in the proceedings, there are no facts for the Court to make a determination that the Commissioner actually possessed the motive she alleges-to protect the functioning of the DESPP-when she transferred the Plaintiff from his leadership position in SWAT. Rather, based on the Commissioner's alleged interactions with Union President Matthews immediately prior to her announced decision to transfer, the Commissioner may have had an ulterior, unconstitutional motive in effecting this transfer. Granted, time elapsed after the Plaintiff resigned his position in the Union, the filing of his lawsuit against the Union, and his appointment to the leadership of SWAT. However, at this stage of the proceedings, there is no evidence that this appointment was made at the Commissioner's behest, that the Commissioner knew of Plaintiff's resignation from the Union at the time of the appointment, or that the Commissioner could not have subsequently formed a retaliatory intent to transfer Mercer after the appointment.
In sum, based on the allegations in the Complaint, the Court cannot find as a matter of law that the Commissioner had alternative motives for the transfer, much less that her sole motive was to prevent the erosion of the public's confidence in DESPP and/or SWAT. At this time, on a Rule 12(b)(6) motion to dismiss, absent a supporting factual record, the Court finds that the Commissioner is not shielded from suit by "qualified immunity" via her arguments of lack of causation and/or the "reasonableness" of her decision to transfer Plaintiff.
The Complaint alleges that the Commissioner transferred Mercer out of his SWAT leadership position in retaliation for his opposition to the Union. If she did so, she could not have reasonably believed that her conduct would not violate Mercer's First Amendment rights. On the basis of the Complaint, the Court cannot find that she is entitled to qualified immunity at this time. As the factual record develops, she may be able to present the necessary proof to establish such a defense. See, e.g., Cahill ,
d. Eleventh Amendment Immunity-Official Capacity Claim
In her motion to dismiss, the Commissioner asserts that " § 1983 claims cannot be brought against any state entity or official capacity defendant because such claims are barred by the Eleventh Amendment to the U.S. Constitution." Doc. 24-1, at 15 (citing Quern v. Jordan ,
Furthermore, in Will v. Michigan Department of State Police ,
To the extent that the Plaintiff seeks damages against the Commissioner in her official capacity, as commanding officer of the DESPP, for a First or Fourteenth Amendment violation under § 1983, that claim is barred by the Eleventh Amendment and will be dismissed.
e. Injunctive Relief
The Court notes that if Plaintiff succeeds in proving his § 1983 claim against the Commissioner, he seeks injunctive relief and declaratory relief, as well as damages. Under Count One, Plaintiff requests an injunction that "prohibits [her] from retaliating against [him] for exercising his First Amendment rights;" and "requires [her] to transfer [him] back into the full-time position of Operations Sergeant." Doc. 1, at 24 (Prayer for Relief, ¶ B.i.-ii.). Although Plaintiff's § 1983 claim is barred against the Commissioner in her official capacity for damages, that claim may proceed against her for injunctive relief.
In Edelman v. Jordan ,
Moreover, Plaintiff need not prove "personal involvement" of the Commissioner to succeed on such a claim. "[P]ersonal involvement of an official sued in his official capacity is not necessary where the plaintiff is seeking only injunctive or declaratory relief under
In the case at bar, the Commissioner was responsible for transferring Mercer out of his SWAT command position and retains authority to transfer him back. Plaintiff's claim for injunctive relief against the Commissioner in her official capacity may proceed.
2. Count Two-Retaliatory Discipline or Discharge-
The Commissioner next argues that Count Two, arising under
Any employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge, including punitive damages, and for reasonable attorney's fees as part of the costs of any such action for damages.
The Commissioner states that "[i]t is undisputed, and undisputable [sic], that plaintiff was neither 'disciplined' nor 'discharged' at any point relevant to these proceedings." Doc. 24-1, at 21. In support, she cites various paragraphs in the Complaint in which the Plaintiff repeatedly states that he was not disciplined.
In Brown v. Office of State Comptroller ,
In perhaps the most thorough examination of the terms "discipline or discharge" in the context of section 31-51q, the Connecticut Superior Court held that "the language of § 31-51q, which... is restrictive even by Connecticut standards, simply cannot compare with the expansive texts of these asserted federal counterparts." Bombalicki v. Pastore , [No. 378772], , at *5 (Conn. Super. Ct. May 10, 2000). Rather, under section 31-51q, the term "discipline" contemplates "an affirmative act of deprivation that diminishes the status or happiness of the recipient rather than a failure to enhance that status or happiness." See Burdick v. Clouet , [No. CV085006062,] 2000 WL 726839 , at *7 (Conn. Super. Ct. June 14, 2011) (citing Bombalicki , 2011 WL 2739557 , at *3 ). 2000 WL 726839
Examples of discipline include a change in an employee's salary or fringe benefits. Seeid. (holding that "transfer was not discipline" because transfer neither altered salary nor fringe benefits). A transfer will generally not be considered discipline if it results in no "loss of rank or base pay[.]" D'Angelo v. McGoldrick , [No. CV 93 0063904],, at *4 (Conn. Super. Ct. [August 3,] 1995). 1995 WL 476843 18 On the other hand, a transfer "to a position that is so objectively undesirable it could be considered a demotion" could qualify as discipline. Matthews v. Dep't of Pub. Safety , [No. HHDCV116019959S],, at *14 (Conn. Super. Ct. May 31, 2013) ( Matthews IV ). Unlike a mere withholding of a benefit, such as a denial of tenure, a transfer is an affirmative act that, under certain circumstances, has the ability to "diminish the happiness and status of an employee." 2013 WL 3306435 Id.
On its face, the language of the Complaint suggests that Plaintiff was not "disciplined" by his employer, at least prior to the transfer. He alleges that "[t]o date, [he] has received no reason or basis for his job transfer out of his full-time position in Emergency Services. Nor has he received any disciplinary action." Doc. 1, ¶ 57. He also alleges that "[a]t no time during his career had [he] received any warnings, reprimands, or other disciplinary actions." Doc. 1, ¶ 69. In addition, Plaintiff concedes that his base salary has remained intact in his Counter Terrorism position.
However, Plaintiff also alleges that his "transfer greatly diminished his supervisory responsibilities, operational duties, and financial benefits." Doc. 1, ¶ 74. He has allegedly "suffered, and will continue to suffer mental, physical and emotional distress, damage to his personal and professional reputation, loss of enjoyment of life, and other losses."
Plaintiff's foregoing allegations may be interpreted as stating that, although he had not been disciplined prior to the transfer and/or with a formal "disciplinary" notice, the October 2015 change of position, although deemed a "transfer," actually resulted in a demotion in responsibility and a loss of fringe benefits. Discussing the term "discipline" under § 31-51q, the Second Circuit recently stated in Brown v. Halpin ,
Although the word "discipline" is not statutorily defined, Connecticut courts have interpreted the term to "involve[ ] affirmative acts of punishment that (at least while the punishment is being inflicted) leave the recipients in a less happy state than that which they enjoyed before the punishment began." Bombalicki v. Pastore , No. 378772,, at *3 (Conn. Super. Ct. May 10, 2000) ; McIntyre v. Fairfield Univ. , No. CV 020391471, 2000 WL 726839 , at *2 (Conn. Super. Ct. Mar. 3, 2003). 2003 WL 1090690
We agree with the district court that Brown's allegation that the "transfer caused her a loss of benefits and prevented her from being eligible for a promotion" is sufficient to establish "an affirmative act of discipline under section 31-51q." Brown ,(internal quotation marks omitted). Brown's transfer did not merely maintain the status quo. See Pastore , 211 F.Supp.3d at 480, at *1, 3-4 (holding § 31-51q inapplicable to "employers who fail to promote employees"); McIntyre , 2000 WL 726839 , at *2-3 (concluding that university had not "disciplined" plaintiff by denying tenure and declining to renew the plaintiff's time-limited employment contract). Brown instead alleges that because of the transfer she lost two credited years of service for the purpose of promotion. This is sufficient to constitute an act of "discipline" under § 31-51q. 2003 WL 1090690
Here, Plaintiff has clearly been left "in a less happy state" than the one he experienced as Operations Supervisor of SWAT. His transfer goes beyond a failure to promote or the maintenance of a status quo. Mercer is both displeased with his transfer, which moved him from a supervisory to an administrative position, and he has lost benefits. In particular, his pension will not be as large due to a decreased opportunity to work overtime hours. Under those circumstances, construing the factual allegations in the Complaint in Plaintiff's favor, the Court considers that his transfer may be viewed as "discipline" under § 31-51q.
As an alternative basis for dismissal, the Commissioner argues that "
This District and a number of Connecticut state courts have held that a supervisor or co-employee is not an "employer" under § 31-51q. See Nyenhuis v. Metro. Dist. Comm'n ,
For example, in Maisano v. Congregation Or Shalom , No. NHCV074027175S,
Although Plaintiff may have been disciplined by his transfer under § 31-51q, Count Two against the Commissioner will be dismissed because she was an individual supervisory employee, not an "employer," under that statute.
1. Count One- § 1983 Violation of First and Fourteenth Amendment Rights
The Union Defendants allege that Plaintiff's § 1983 claim against them fails to state a plausible claim because "plaintiff did not plead facts that establish that the Union [D]efendants-both of which are sued as private parties-were state actors or acted 'under color of state law' in connection with any of the allegations in the Complaint." Doc. 36-1, at 6. Actions under § 1983 are only permitted against state actors or those acting under "color of state law." Rendell-Baker v. Kohn ,
a. Elements of § 1983 Claim
In order to plead a plausible claim under
A § 1983 action has "two essential elements: [i] the defendant acted under color of state law; and [ii] as a result of the defendant's actions, the plaintiff suffered a denial of h[is] federal statutory rights, or h[is] constitutional rights or privileges." Annis v. Cnty. of Westchester ,
To constitute state action, the deprivation must be caused by the exercise of some right or privilege created by the State ... or by a person for whom the State is responsible, and the party charged with the deprivation must be a person who may fairly be said to be a state actor. State employment is generally sufficient to render the defendant a state actor. It is firmly established that a defendant in a § 1983 suit acts under color of state law when he abuses the position given to him by the State. Thus, generally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law.
West v. Atkins ,
b. State Action
1. Union Defendants' Argument
The United States Supreme Court devised three broad tests to determine whether a private party's actions constitute state action under § 1983. The Second Circuit has described these three tests, as follows:
For the purposes of section 1983, the actions of a nominally private entity are attributable to the state when: (1) theentity acts pursuant to the "coercive power" of the state or is "controlled" by the state ("the compulsion test"); (2) when the state provides "significant encouragement" to the entity, the entity is a "willful participant in joint activity with the [s]tate," or the entity's functions are "entwined" with state policies ("the joint action test" or "close nexus test"); or (3) when the entity "has been delegated a public function by the [s]tate," ("the public function test"). Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass'n , , 296, 531 U.S. 288 , 121 S.Ct. 924 (2001) (citations and internal quotation marks omitted). It is not enough, however, for a plaintiff to plead state involvement in "some activity of the institution alleged to have inflicted injury upon a plaintiff"; rather, the plaintiff must allege that the state was involved "with the activity that caused the injury " giving rise to the action. Schlein v. Milford Hospital, Inc. , 148 L.Ed.2d 807 , 428 (2d Cir. 1977) (internal quotation marks and citation omitted) (emphases added); see also United States v. Int'l Bhd. of Teamsters , 561 F.2d 427 , 1296 (2d Cir. 1991) ("The question is not whether the decision to establish the [private entity] was state action, but rather whether the [private entity]'s decision to sanction [plaintiffs] may be 'fairly attributable' to the [g]overnment." (quoting Lugar v. Edmondson Oil Co., Inc. , 941 F.2d 1292 , 937, 457 U.S. 922 , 102 S.Ct. 2744 (1982) ) ). 73 L.Ed.2d 482
Sybalski v. Indep. Grp. Home Living Program, Inc. ,
Defendants assert that Plaintiff failed to allege sufficient facts to show that the Union Defendants acted "under color of law" or were otherwise "state actors" under any of the traditional tests. Specifically, the Union Defendants assert that there are no alleged facts to satisfy the compulsion and delegation theories. Plaintiff has pled no facts to indicate that the State exerted coercive power over the Union Defendants to cause them to act wrongfully. Doc. 36-1, at 7 (citing Doc. 1, at ¶¶ 46-47 (alleging that the Union threatened a press conference over issues with SWAT team, but that the State Police command staff and Commissioner Schriro were satisfied with plaintiff's rebuttal to the Union's position) ). Nor did Plaintiff imply in any way that the State delegated a public function to the Union. Doc. 36-1, at 7.
The Union Defendants concede that the third test, the joint action test, "merits discussion."
Under the "joint action" doctrine, a private actor may be found "to act
In order to establish "joint action," a plaintiff must show that "the private citizen and the state official shared a common unlawful goal; the true state actor and the jointly acting private party must agree to deprive the plaintiff of rights guaranteed by federal law." Bang v. Utopia Restaurant ,
Analyzing the issue of "joint action," the Court examines the cases put forward by the Union Defendants to argue that they are not "joint actors" as a matter of law. In Ginsberg v. Healey Car & Truck Leasing, Inc. ,
Ginsberg then wrote a check to Healey as payment, upon which he later stopped payment. Ginsberg sued both Healey Car & Truck Leasing, Inc. and the police officer, alleging that he was deprived of property without due process of law in violation of § 1983. In particular, Ginsberg alleged that the leasing company, acting under color of state law, was complicit in the deprivation.
The Second Circuit rejected Ginsberg's argument regarding Healey, holding that it did not become a joint participant in a state action merely by requesting police assistance and providing information that led to police action.
Ginsberg may be distinguished from the present case by its factual context. In Ginsberg , a private citizen requested police assistance with respect to an alleged crime; and such a request does not equate with state action because a police officer exercises "independent judgment" in determining whether to take action against the alleged wrongdoer. See also, e.g., Betts v. Shearman ,
Similarly, the facts in Spear v. West Hartford ,
Defendants moved to dismiss for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). In the motion, the Town argued that the complaint failed to state a cause of action under section 1983 ; and Summit contended that, as a private organization, it was not acting under color of state law.
A private defendant may be held liable only as "a willful participant in joint activity with the State or its agents."
Adickes v. S.H. Kress & Co. , , 152, 398 U.S. 144 , 90 S.Ct. 1598 (1970) (quoting United States v. Price , 26 L.Ed.2d 142 , 794, 383 U.S. 787 , 86 S.Ct. 1152 (1966) ). 16 L.Ed.2d 267
Spear alleged that Summit, a private entity, acted in concert with the town and its agents. That conclusory allegation does not suffice to state a section 1983 action against Summit. To state a claim against a private entity on a section 1983 conspiracy theory, the complaint must allege facts demonstrating that the private entity acted in concert with the state actor to commit an unconstitutional act..... The only joint conduct alleged in the present case was a meeting between attorneys for West Hartford and for Summit. When the town and Summit later filed a joint complaint, Spear was not named as a defendant. Summit, in sum, did not act under color of law. Thus, the district court correctly dismissed Spear's claim against Summit.
Id. at 68-69 (some internal and lateral citations omitted).
In Spear , it wasn't the fact that a meeting was held that made the Court conclude that there was no joint conduct between the state and the private party. Rather, it was the fact that the joint amended complaint filed after the meeting did not name Spear as a defendant. There was thus no joint action to Spear's detriment.
In Mercer's case, however, there are allegations that the private entities acted in concert with the state actor to bring about a detriment to Mercer. The alleged closed-door meeting of October 26, 2015, between the Commissioner and Matthews was followed the next day by the Commissioner's verbal order that Mercer be transferred from his command position within Emergency Services. Doc. 1, ¶ 51. Consequently, the alleged act of retaliation followed directly after the joint meeting, thereby allegedly resulting from it. In sum, neither Ginsberg nor Spear prevent a finding that, at the pleading stage, the Union Defendants may have acted as joint participants under color of state law for purposes of Plaintiff's § 1983 claim.
2. Plaintiff's argument
Turning to Plaintiff's arguments to support a finding that the Union Defendants acted under color of state law, Plaintiff first cites Young v. Suffolk County ,
As Plaintiff asserts, "[j]oint activity occurs when a government official's actions are due to the private party's directive, rather than the government official's own initiative." See Doc. 44, at 10 (citing Young ,
As an alternative to the "joint action" theory, a plaintiff may demonstrate that a private party defendant engaged in "state action" by engaging in a conspiracy with state actors under § 1983. Ciambriello v. Cty. of Nassau ,
In the present case, Plaintiff asserts that the private Union Defendants acted under "color of state law" by conspiring with the state to transfer him from his position in SWAT as Operations Sergeant. As Plaintiff summarizes, "[t]he Complaint alleges that the Union Defendants engaged in, and were successful, 'in a vindictive and retaliatory attempt' to punish Mercer's exercise of his constitutional rights by removing him from the influential command positon [sic] of Operations Sergeant within the Emergency Services Unit ("ESU") of the State Police." Doc. 44, at 12. Plaintiff also alleges that the Defendants were not, as they contend, merely attempting to express concerns about ESU operations, but took actions to "incit[e] the exercise of state authority" to retaliate against Plaintiff's exercise of his constitutional rights to free speech and association.
Overt activities showing the alleged conspiracy with the Commissioner include "the closed door meeting" on October 26, 2018, and Matthews's announcement after that meeting that "it was a done deal," implying that he reached an agreement with the Commissioner. Doc. 1, ¶¶ 50-51. Those acts were then followed by Matthews's alleged pretextual filing of "an institutional grievance against [Plaintiff's] handling of the Old Saybrook incident" and the ultimate order by the Commissioner the next day to remove Mercer from his leadership position in SWAT.
At the pleading stage, Plaintiff has set forth a plausible claim that there was an agreement between the Union Defendants, acting by and through Union President Matthews, and the Commissioner of the State Police to remove Mercer from his Operations Sergeant position for exercising
In sum, at the pleading stage, Plaintiff has set forth a plausible claim that the Union Defendants engaged in joint action, agreeing and/or conspiring with the Commissioner to remove Mercer from the SWAT Operations Sergeant position due to his resignation from the Union, objection to CSPU's nonchargeable expenses, advocacy on behalf of nonmembers, and lawsuit against the Union. His removal thereby violated his First Amendment right to be free from retaliation for exercising those rights and his Fourteenth Amendment liberty interest in freedom of speech.
3. Defendants' Additional Argument
In their memorandum in support of their motion to dismiss, the Union Defendants further attempt to claim they were not "state actors" under a "lack of delegation" theory. They argue that the alleged conduct "causing the deprivation of a federal right" can "be fairly attributable" to the State, in this case the DESPP. Doc. 36-1, at 10 (citing Nat'l Collegiate Athletic Ass'n v. Tarkanian ,
The NCAA had investigated alleged violations of NCAA requirements by UNLV, including allegations concerning improper recruitment of student athletes by basketball coach Tarkanian. UNLV responded to the allegations by denying all of them and arguing that "Tarkanian was completely innocent of wrongdoing."
As a result of the investigation and hearing, the NCAA Committee proposed a series of sanctions against UNLV, including a
In his § 1983 action, Tarkanian had asserted "that the NCAA's investigation, enforcement proceedings, and consequent recommendations constituted state action because they resulted from a delegation of power by UNLV. "
In determining whether the NCAA's liability could be upheld for its participation in the events leading to Tarkanian's suspension as "state action" prohibited by the Fourteenth Amendment-"performed 'under color of' state law within the meaning of § 1983"-the Court clarified that "[i]n the final analysis the question is whether 'the conduct allegedly causing the deprivation of a federal right [can] be fairly attributable to the State.' "
Clearly UNLV's conduct was influenced by the rules and recommendations of the NCAA, the private party. But it was UNLV, the state entity, that actually suspended Tarkanian. Thus the question is not whether UNLV participated to a critical extent in the NCAA's activities, but whether UNLV's actions in compliance with the NCAA rules and recommendationsturned the NCAA's conduct into state action.
In addition to a lack of delegated state power, in Tarkanian there was clearly no "agreement" between the state entity, UNLV, and the private one, NCAA, to act against Tarkanian. The Court noted that "the notion that UNLV's promise to cooperate in the NCAA enforcement proceedings was tantamount to a partnership agreement or the transfer of certain university powers to the NCAA is belied by the history of this case."
In the instant case, as in Tarkanian , there are no allegations that the DESPP delegated any state powers to the Union Defendants. However, unlike in Tarkanian , Plaintiff alleges that the Union Defendants and the Commissioner were in agreement regarding the retaliatory transfer. See , e.g. , Doc. 1, ¶¶ 50-51 (upon emerging from his closed-door meeting with the Commissioner on October 26, 2015, Matthew announced that "it was a done deal"). No alleged facts suggest any friction or disagreement between them in this respect. Therefore, the allegation that the October 26 closed-door meeting was followed, without discord, by Mercer's transfer plausibly demonstrates an agreement between the Commissioner and Union Defendants, culminating in a jointly planned act to deprive Plaintiff of his constitutional rights to free speech and association. Rather than the State taking action alone, the Union Defendants allegedly participated jointly in the decision to transfer Plaintiff under color of state law. See, e.g.,
4. Protected Rights and Causation
The Union Defendants next focus on the substance of the underlying constitutional claims to argue that even if they were "state actors," Plaintiff has failed to plead the facts necessary to establish a viable First Amendment retaliation or Fourteenth Amendment due process claim. They state in their supporting memorandum: "Boiled down to its essence, plaintiff has not alleged sufficient factually relevant matter to comprise a viable claim under the First or Fourteenth Amendment." Doc. 36-1, at 14. In particular, "the 'speech' at issue involved a faction group's fight with its union, and whether said union could continue to collect dues and/or fees from them notwithstanding the subsequent
Furthermore, the Union Defendants argue that even if Plaintiff's speech and/or actions with respect to the Union were constitutionally protected, he has failed to allege a causal connection between his speech and/or activities and his transfer. Like the Commissioner, they point to the timeline in the Complaint, emphasizing that Plaintiff was transferred into the full-time SWAT leadership role well after he resigned from the Union and after he filed his federal lawsuit against the Union. In addition, the Union Defendants point out that Mercer was not relieved of command when the Union filed its first grievance concerning his assumption of Operations Sergeant position on June 22, 2015. Only after the SWAT shooting and fatality incident in Old Saybrook on October 9, 2015, did the Commissioner act to transfer Plaintiff. After that event, the Union repeatedly raised concerns regarding Plaintiff's leadership within SWAT during a series of meetings, threatened to hold a damaging press conference about the Emergency Services Unit, and filed a second institutional grievance regarding that incident. Doc. 36-1, at 15. According to the Union Defendants, the Commissioner did not transfer Plaintiff due to his resignation from, and/or lawsuit against, the Union. They thus conclude that Plaintiff has failed to plead the key element of causation to bring his claim for constitutional violations under § 1983.
As to whether Plaintiff's speech to non-union members and in filing his lawsuit were protected speech under the First Amendment, the Court has concluded that they were. See Part II.B.1.c.1. (captioned "First Amendment-Freedom of Speech"), supra. This protected speech includes speech "relating to any matter of political, social, or other concern to the community." Connick v. Myers ,
With respect to the Fourteenth Amendment, the Union Defendants make no detailed argument for dismissal of that claim under § 1983. However, as previously discussed herein, that alleged violation of Plaintiff's Fourteenth Amendment rights pertains to a liberty interest with respect to free speech, as opposed to any membership in a "protected class." The deprivation of a "liberty interest" includes the right to free speech. See De Jonge v. Oregon ,
Furthermore, as to causation and the timeline of alleged facts, the Court disagrees that no connection may be found between Plaintiff's protected speech and his transfer. Granted, Plaintiff was appointed to his position as Operations Sergeant of the SWAT unit after he resigned his membership in the Union on November 14, 2014, and filed a lawsuit against it on March 14, 2015. However, he was promoted to Operations Sergeant by Major Mike Darcy, the commanding officer of SWAT, who is not a defendant in this action. Doc. 1, ¶ 17. There is no indication in the Complaint that either the Commissioner or the Union Defendants were involved in that
Thereafter, in October 2015, the Commissioner interacted with the Union Defendants before taking Plaintiff out of his Operations Sergeant position. Id. , ¶¶ 49-51. The simple fact that Mercer was promoted after resigning from the Union and initiating a lawsuit against it does not negate the allegation that the Commissioner decided to transfer him after her alleged closed-door meeting with Matthews. See Part II.B.1.c.3. (captioned "Timeline-Causation"), supra.
In addition, according to Plaintiff, the Old Saybrook fatality incident presented the Union Defendants with a convenient "pretext"-i.e., concern about Plaintiff's command during that event-to help initiate the transfer by the Commissioner. Doc. 1, ¶ 58. In sum, the Court finds that the timeline in the Complaint does not negate the alleged causal connection between Plaintiff's exercise of his constitutional rights and his transfer at the hands of the Commissioner and the Union Defendants.
2. Count Two-Violation of Conn. Gen. Stat. 31-51q
The Union Defendants request that the Court dismiss Count Two against them because it fails to state a claim upon which relief may be granted under Rule 12(b)(6), Fed. R. Civ. P. In that count, Plaintiff alleges that "Defendants' actions of transferring Sgt. Mercer, or seeking his transfer, due to his nonmembership and/or objections to the payment of political and other non-bargaining expenditures, and/or advocacy on behalf of the rights of nonmembers, [were] violations of Sgt. Mercer's freedom of speech and association rights protected under the Constitutions of the United States and the State of Connecticut." Doc. 1, ¶ 84. Plaintiff concludes that because these actions violated his rights to free speech, the Union Defendants violated Connecticut General Statutes § 31-51q. As set forth supra , that statute provides, in relevant part, that "[a]ny employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise" of his or her rights under the First Amendment of the United States Constitution or sections 3, 4 or 14 of article first of the Connecticut Constitution, "shall be liable to such employee for damages."
The Union Defendants argue that they were never Plaintiff's employers so that § 31-51q has no application to them. Earlier in this Ruling, the Court found that the Commissioner was not Mercer's "employer" for purposes of § 31-51q. See Part II.B.2. (captioned, "Count Two-Retaliatory Discipline or Discharge-
In Varley v. First Student, Inc. ,
The Varley court next determined that "[t]he definition [of employer] applied by the [trial] court [was] consistent with that set forth in several related statutes in title 31, chapter 557, part II of the General Statutes, all of which pertain to regulations concerning the protection of employees, and which specifically define "employer" as "a person engaged in business who has employees...."
With these "ordinary" definitions of "employer" in mind, the Varley court held that the defendant school district was not the plaintiff bus driver's "employer" under § 31-51q. The driver had been employed by First Student Transportation ("First Student"), which in turn had contracted with the school district to provide transportation services for the district. The fact that there was a contract between the school district and First Student for bus services did not make the plaintiff an employee of the school district. Therefore, when representatives of the school district requested First Student to discontinue the use of plaintiff's services on certain routes, it was not acting as her employer so could not be held liable under § 31-51q. "[S]ummary judgment properly was rendered in favor of the defendant on [this] count of the plaintiff's complaint."
In the case at bar, "Mercer recognizes that the Union Defendants are not his employers pursuant to
Nonetheless, Plaintiff states that he "contests the Union Defendants' claim that he was not 'discipline[d]' within the meaning of ...§ 31-51q."
Because the Union Defendants are not his employers under § 31-51q, his claim must, in any event, be dismissed. However, the Court points out that, as set forth supra , Plaintiff has alleged sufficient facts to suggest that his transfer was a form of "discipline." See Part. II.B.2., supra. His transfer to a new position may be viewed as "discipline" due to his loss of supervisory status and reduced pension due to unavailability of overtime hours.
Regardless of whether Plaintiff's transfer constituted a form a "discipline," Count Two must, be dismissed against the Union Defendants because, as Mercer "recognizes" and concedes, Doc. 44, at 25, they "are not his employers," and § 31-51q explicitly pertains to violations by "any employer." The Union Defendants may have been agents of Mercer's employer, DESPP; but they were not Mercer's actual employers. There are no allegations to suggest that the Union Defendants hired Mercer, directed his work, or paid his wages. Absent proof of an express or implied employment contract between Plaintiff and the Union Defendants, Count Two will be dismissed as to these defendants.
III. CONCLUSION
For the foregoing reasons, the Court GRANTS in part and DENIES in part the Commissioner's Motion to Dismiss [Doc. 24] and the Union Defendants' Motion to Dismiss [Doc. 36]. Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), certain claims are dismissed, as described below.
As to the Commissioner, Count One for violation of
Conversely, the Eleventh Amendment does not bar an action against a state official for violation of § 1983 if a plaintiff seeks an injunction regarding that official's future conduct. See Will,
With respect to the Union Defendants, Plaintiff's § 1983 claim may proceed against them for damages. Because the allegations in the Complaint may be construed to support a claim that they were willful joint participants in the Commissioner's decision to transfer Plaintiff from his Operations Sergeant position in SWAT, Plaintiff has stated a plausible claim that the Union Defendants acted under color of state law to deprive Plaintiff of his First and Fourteenth Amendment rights in violation of § 1983. See Young v. Suffolk Cty. ,
Finally, Count Two for violation of
Because the Court has ruled on all pending motions to dismiss, the stay of discovery is LIFTED and the case shall proceed as to the remaining claim, Count One, in compliance with the parameters of this Ruling. The Commissioner and the Union Defendants must file their answers to that
The foregoing is SO ORDERED.
Notes
See Lamberty v. Connecticut State Police Union , No. 3:15-cv-378 (VAB), Doc. 1 ("Verified Complaint," dated and filed on March 14, 2015).
"Prior to this shooting incident, on information and belief, the Union never had raised concerns or filed grievances over the handling of SWAT or other Emergency Services operations." Doc. 1, ¶ 42.
C. Konow was one of the two SWAT team members who shot and fatally injured the suspect during the Old Saybrook incident. Doc. 1, ¶ 28. He was not, at all relevant times, a member of the Union.
Mercer also alleged that on October 30, 2015, a written order transferred Sergeant Kenneth Albert, a Union member, to "the full-time position of Operations Sergeant within Emergency Services." Doc. 1, ¶ 54. As with Mercer's prior appointment to that position, there had been no "selections process" before the appointment; but CSPU neither filed an institutional grievance nor complained to State Police Command Staff about [Albert's] appointment."
The Second Circuit has consistently adhered to the United States Supreme Court's plausibility standard set forth in Iqbal. See, e.g., Giunta v. Dingman,
In general, in Ruling on a 12(b)(6) motion, the Court considers the pleadings and their attached exhibits. "[W]hen matters outside the pleadings are presented in response to a 12(b)(6) motion," a district court must either "exclude the additional material and decide the motion on the complaint alone" or "convert the motion to one for summary judgment under Fed. R. Civ. P. 56 and afford all parties the opportunity to present supporting material." Friedl v. City of New York ,
"Personal-capacity actions are sometimes referred to as individual-capacity actions." Kentucky v. Graham ,
The Court notes that the First Amendment's protection of free speech applies to the States through the Fourteenth Amendment. New York Times Co. v. Sullivan ,
See n.1,
This is not to say that "all activities undertaken through a union necessarily become matters of public concern merely by virtue of their collateral connection to the union." Lynch v. Ackley ,
The Commissioner counters, alleging that she "knowingly permitted plaintiff's appointment into a full-time supervisory role within SWAT well after [the Plaintiff's] highly publicized lawsuit." Doc. 43, at 5 (emphasis in original). She also states in her reply memorandum that she "was aware of plaintiff's union dispute at the time she appointed him to the SWAT Operations full-time role on 4/30/15."
The Court also notes that the Commissioner's reply memorandum includes an argument regarding the "same actor inference." Doc. 43, at 6. This argument was neither presented in the original motion to dismiss nor mentioned in the Plaintiff's response to the motion so the Court may not consider it upon reply. "[R]eply papers may properly address new material issues raised in the opposition papers so as to avoid giving unfair advantage to the answering party," Bayway Ref. Co. v. Oxygenated Mktg. & Trading ,
Nonetheless, had this "same actor" argument been presented in the motion to dismiss, the Court would have found it unpersuasive in that the Commissioner's view of the Plaintiff is alleged to have changed between his appointment and his transfer-i.e. , upon the Commissioner's discovery of his resignation from the Union and advocacy for nonmembers.
See also Doc. 1, ¶ 21 ("[T]o express discontent with nonmember Sgt. Mercer's transfer, on or about June 22, 2015, Union President Matthews filed an institutional grievance over Sgt. Mercer's appointment," alleging that "Mercer's appointment violated the Union and the State of Connecticut's collective bargaining agreement for the NP-1 bargaining unit ("CBA") because no selection process was used, as required by the contract.").
The Commissioner makes much of the fact that on June 22, 2015, the Union grieved Plaintiff's full-time SWAT appointment, but she did not transfer him at the time. Doc. 24-1, at 12-13. Rather, she left him "undisturbed in his command role for several additional months."
The Court notes that in discussing temporal proximity and causation, the court in Murray found that a period of eight to nine years between the plaintiff's filing of a lawsuit and the defendant's allegedly retaliatory conduct (of failure to hire) was "far too tenuous for [the] Court to find that there was a causal connection" between the two events.
Moreover, even assuming arguendo that the Pickering balancing test were applicable, the Court could not presently consider facts outside the pleadings to assess the Commissioner's argument that her involuntary transfer of Plaintiff was "objectively reasonable." The Pickering test is a "fact-sensitive inquiry," Kelly v. Huntington Union Free Sch. Dist. ,
The Commissioner states that she brought her motion to dismiss under both Rule 12(b)(1) and Rule 12(b)(6), for "failure to state a claim upon which relief can be granted," because she believes that the law is currently "unclear in this Circuit" regarding "whether an Eleventh Amendment sovereign immunity barred claim technically must be dismissed under 12(b)(1) and/or 12(b)(6)." Doc. 24-1, at 5 and n.2. The Court need not decide whether Rule 12(b)(1) or 12(b)(6) is more properly the standard to dismiss a § 1983 claim against a state official in his official capacity for damages because in this case, the Court has not been presented with or considered any documents or evidence outside the pleadings, which would only be appropriate on a Rule 12(b)(1) motion or a Rule 56 motion for summary judgment. See State Employees Bargaining Agent Coal. v. Rowland ,
However, the Court also notes that the Second Circuit has cited Rule 12(b)(1) when affirming the district court's holding that the Eleventh Amendment deprives the court of subject matter jurisdiction over an action. Madden v. Vermont Supreme Court ,
Although the filing of a grievance by the Union may result in discipline by an employer, such a filing does not equate with discipline by an employer.
Aff'd ,
Aff'd in part, appeal dismissed in part sub nom. Brown v. Halpin ,
The Commissioner also points out that Title VII, a civil rights statute, has been repeatedly interpreted by the Second Circuit to apply only to the employer entity and not an official capacity defendant. Doc. 24-1, at 21 (citing Tomka v. Seiler Corp. ,
The Court notes that Plaintiff did not address the Commissioner's arguments to dismiss Count Two in his opposing memorandum, Doc. 37. In that memorandum, he thus did not address whether he was disciplined and/or the proper scope of "employer" under
On April 4, 1989, an editorial written by John M. Spear, entitled "Northern Rednecks," appeared in the newspaper Orange County Post , criticizing the West Hartford Police Department's efforts to disband an anti-abortion demonstration at the Summit clinic.
Moreover, NCAA's rules were not "state rules" and the NCAA was not a "state actor" because UNLV technically retained plenary power to withdraw from the NCAA. Describing the NCAA's dealings with UNLV, Justice Stevens wrote for the majority:
The express terms of the Confidential Report [by the NCAA Committee on Infractions regarding Tarkanian] did not demand the suspension unconditionally; rather, it requested "the University ... to show cause" why the NCAA should not impose additional penalties if UNLV declines to suspend Tarkanian. App. 180. Even the university's vice president acknowledged that the Report gave the university options other than suspension: UNLV could have retained Tarkanian and risked additional sanctions, perhaps even expulsion from the NCAA, or it could have withdrawn voluntarily from the Association.
Tarkanian ,
The Court concluded that UNLV, as a state university, was clearly a "state actor" under § 1983 :
When [a state university] decides to impose a serious disciplinary sanction upon one of its tenured employees, it must comply with the terms of the Due Process Clause of the Fourteenth Amendment to the Federal Constitution. Thus when UNLV notified Tarkanian that he was being separated from all relations with the university's basketball program, it acted under color of state law within the meaning of42 U.S.C. § 1983 .
Tarkanian ,
In fact, as the Union Defendants acknowledge, they later took action to oppose Mercer's appointment to SWAT Operations Supervisor. On June 22, 2015, "Union President Matthews filed an institutional grievance over Sgt. Mercer's appointment," alleging as a pretext that there was "no selection process ... used," as required by the CBA. Doc. 1, ¶¶ 21, 58.
As to "discipline or discharge," the Union Defendants argue that Plaintiff was not subjected to either. First, he was transferred, not discharged. Moreover, they contend that he repeatedly admitted in his Complaint that he was not disciplined. See Doc. 1, ¶¶ 57, 60, 69. See also, e.g., D'Angelo v. McGoldrick, No. CV 93 0063904,