Citations
- 120 F. Supp. 3d 178
Full opinion text
RULING ON PLAINTIFF’S MOTION TO REMAND REMOVED ACTION TO STATE COURT
HAIGHT, Senior District Judge:
Michael Briscoe, a co-Defendant, removed this case to this Court pursuant to 28 U.S.C. § 1443(1). Plaintiff now moves to remand the action to its original forum, the Connecticut Superior Court, Judicial District of New Haven. The motion to remand [Doc. 16], which Briscoe opposes, has been extensively briefed and ably argued by counsel at a hearing before the Court. This Ruling resolves the motion.
I
This case is one of a prolonged series of actions between Michael Briscoe, an African-American firefighter with the City of New Haven, Connecticut Fire Department on the one side, and on the other, New Haven Firefighters Local 825 (“Local 825” or “the Union”), of which Briscoe is a member and whose officers are Caucasian.
A
The seeds of controversy were planted when in November and December 2003 the Fire Department administered written and oral examinations for promotion to the ranks of lieutenant and captain. Under the contract between the City and-Local 825, the written examination result counted for 60% of an applicant’s total score and the oral exam for 40%. Those with a total score above 70% on the exam would pass.
In 2003, there were 8 vacancies for the rank of lieutenant. The City utilized oral and written examinations fashioned and administered by an outside professional consultant. Promotions were made in accordance with lists drawn up to reflect the examination scores and certified by the City.
Seventy-seven candidates completed the 2003 lieutenant examination — 43 whites, 19 blacks, and 15 Hispanics. Under the City Charter’s “rule of.three,” the hiring authority was required to fill each vacancy by choosing one candidate from the top three scorers on the list. The application of the rule of three to the examination scores resulted in the top IQ candidates being eligible for immediate promotion to lieutenant (only 8 .would be .chosen). All 10 were white. When-.the examination results showed that white candidates had outperformed minority candidates, City officials became concerned about the City’s potential liability for disparate impact under federal antidiscrimination statutes if it certified the 2003 exam results and made promotions on the basis of them. After a hearing on the subject, the New Haven Civil Service Board, as the result of an evenly divided vote, declined to certify the promotion lists generated and threw out the examinations.
Certain white and Hispanic firefighters who likely would have been promoted based on their good examination performances sued the City and some of its officials, alleging that by discarding the exam results, the City discriminated against them based on their race, in "violation of Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. See Ricci v. DeStefano, 557 U.S. 557, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009). The Supreme Court held that the Ricci plaintiffs were entitled to summary judgment on their Title VII claim, and remanded the case. Later in 2009, the City certified the 2003 examination results and made promotions accordingly.
Because the 2009 promotions to lieutenant were based on the 2003 examination scores, in which white firefighter candidates scored better than black candidates, Briscoe was not promoted. He responded by bringing an action in this Court against the City under Title VII on a disparate impact theory. See Briscoe v. City of New Haven, No. 3:09-cv-1642. This Court dismissed the action on the ground that “[w]hat the [Supreme] Court held in Ricci and what it said in doing so squarely forecloses Briscoe’s claims.” 2010 WL 2794212, at *10 (D.Conn. July 12, 2010). On Briscoe’s appeal, the Second' Circuit took a different view and reversed. The Court of Appeals, “[a]fter a careful review of that [Ricci ] decision and relevant non-party preclusion and Title VII case law,” concluded that “Briscoe’s claim is neither precluded nor properly dismissed.” 654 F.3d 200, 209 (2d Cir.2011). This Court’s dismissal of Briscoe’s claim was vacated and the ease remanded, the Second Circuit noting that “we express no view as to whether other issues raised below may warrant dismissal of the action, including relevant statutes of limitation, the doctrine of laches, or the unavailability of the requested relief because of Title VII’s anti-alteration provision.” 654 F.3d at 210.
On remand to this Court in No. 3:09-cv-1642, the City moved again, on those additional different grounds, to dismiss Bris-coe’s action. The City was joined in that motion by certain white firefighters who sought and obtained the Court’s leave to intervene. Additional briefs were filed and renewed oral arguments heard. In an opinion reported at 967 F.Supp.2d 563 (D.Conn.2013), this Court again dismissed Briscoe’s action against the City. This Court held that the action, “while not time barred, must be dismissed on substantive grounds,” specifically, “that the Plaintiff in this case has not pleaded a prima facie Title VII claim.” Id. at 592, 590.
This Court filed that second judgment of dismissal on September 9, 2013. Briscoe filed another notice of appeal with the Second Circuit. On March 31, 2014, while the appeal was pending, Briscoe and the ■ City settled Briscoe’s underlying discrimination claim. The City paid an agreed amount to Briscoe. Briscoe stipulated to a withdrawal of his appeal, the Second Circuit issuing its mandate on April 4, 2014. He also withdrew his motion to intervene in a separate action, brought by other black firefighters against the City and Local 825 to challenge the 2003 examination, pending before Judge Underhill: Tinney v. New Haven, No. 3:11-cv-1546.
The settlement agreement between Briscoe and the City which terminated the case bearing docket number 3:09-cv-1642 was preceded and brought about by discussions between Briscoe and New Haven Mayor Toni Harp, which culminated in April 2014 when Mayor Harp, purporting to act under the City Charter, transferred Briscoe from his position of firefighter to that of Director of Public Safety Communications. The New Haven Department of Public Safety Communications is the agency responsible for dispatching 9Í1 calls throughout the City. Briscoe entered duty as its Director on April 7, 2014., Briscoe’s occupation of that position is regarded initially as a temporary assignment through October 15, 2015, after which it may be made a permanent appointment, that being the date when Briscoe becomes eligible to retire from the Fire Department.
B
Briscoe began his service as Director of the Department of Public Safety Communications on April 7, 2014. On April 10, 2014, Local 825 filed a complaint in the Connecticut Superior Court, Judicial District of New Haven, against the City of New Haven, Mayor Harp, and Briscoe. See Briscoe v. City of New Haven, No. NNH-CV14-6046320-S (Conn.Super.2014).
Local 825’s complaint against these defendants has as its objective the removal of Briscoe from his office as Public Safety Communications Director. The complaint alleges a claim in the nature of a quo warranto, pursuant to Conn. Gen.Stat. § 52^91, which reads in its entirety:
When any person or corporation usurps the exercise of any office, franchise or jurisdiction, the Superior Court may proceed, on a complaint in the nature of a quo warranto, to punish such person or corporation for such usurpation, according to the course of the common law and may proceed therein and render judgment according to the course of the common law.
The Union’s quo warranto complaint in the State court alleges in ¶ 7 that Mayor Harp’s transfer of Briscoe, a firefighter, to the position of Director of the Department of Public Safety Communications violated the Charter of the City of New Haven. The complaint further alleges in ¶ 9 that the transfer violated Conn. Gen.Stat. § 7-468(b), “which recognizes the plaintiff Union as the sole and exclusive bargaining agent for the defendant Briscoe and other similarly situated employees.” Local 825’s theory of the case is that a transfer by the City of Briscoe, a union member, from the position of firefighter to a different position in City employment should have been negotiated between the City and the Union pursuant to the collective bargaining agreement then in force. The Mayor’s failures and transgressions in these regards, Local 825 contends, brands Briscoe as one who “usurps the exercise” of his present office. The Union’s quo warranto complaint in state court seeks Briscoe’s removal from that usurped office.
Local 825’s quo warranto complaint was signed on April 10, 2014 by James Kot-tage, the president of the Union. Kottage was one of the white firefighters who ultimately prevailed before the United States Supreme Court in the Ricci case. Frank Ricci, the white firefighter who" gave his name to that case, is currently the vice-president of Local 825.
Briscoe was first served with process in the state court quo warranto action on April 22, 2014. On May 19, 2014, Briscoe filed a notice of removal [Doc. 1] removing the state court action to this Court, purportedly pursuant to 28 U.S.C. § 1443(1). Briscoe’s theory of the case is stated in ¶ 1 of his notice of removal: “The plaintiff New Haven Firefighters 825 filed this lawsuit in Connecticut Superior Court in retaliation for Briscoe’s pursuit of race discrimination claims in litigation in this Court and on appeal.” That retaliatory conduct on the Union’s part, Briscoe contends, violated the anti-retaliatory provision in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3, and violated rights conferred by the Civil Rights Act of 1866, 42 U.S.C. § 1981.
Local 825 now moves [Doc. 16] to remand the case to the Connecticut Superior Court. The notice to remand summarizes the Union’s contentions: Briscoe “failed to demonstrate that either Title VII or § 1981 immunized him from the state court quo warranto proceeding and that such a state court proceeding would deny or prevent him from enforcing his equal civil rights.” Doc. 16, at 1. Briscoe opposes a remand.
The Court heard oral argument on Local 825’s motion to remand the case to state court. The case had been extensively briefed. Able arguments were presented by Ms. Cofrancesco for the Union and by Mr. Smith for Briscoe. The Court imposed no time limits, preferring to receive the benefits of full submissions by counsel, fueled by questions from the Court. As the afternoon shadows lengthened, those full submissions were achieved. The Union’s motion to remand is now ripe for decision.
In removing Local 825’s quo warranto action from the state court to this federal court, Briscoe invokes 28 U.S.C. § 1443(1), a specialized application of removal jurisprudence whose caption reveals its relatively narrow character: “Civil rights cases.” Other statutory removal provisions are more general and less precise. For example, if a plaintiffs state court complaint asserts a claim under the United States Constitution or a federal statute, the defendant’s right to remove the base to federal court is absolute. 28 U.S.C. § 1441(a). In contrast:
a removal petition under 28- U.S.C. § 1443(1) must satisfy a two-pronged test. First, it must appear that the right allegedly denied the removal petitioner arises under a federal law providing for specific civil rights 'Stated in terms of racial equality..... Second, it must appear, in accordance with the provisions of § 1443(1), that the removal petitioner is “denied or cannot enforce” the specified federal rights “in the courts of (the) State.”
Johnson v. Mississippi, 421 U.S. 213, 219, 95 S.Ct. 1591, 44 L.Ed.2d 121 (1975) (citations and some internal quotation marks omitted).
Local 825’s motion to remand this case raises the question of whether Briscoe satisfies both § 1443(1) prongs. The Union contends Briscoe fails both of them.
As for the first prong, it would not be sufficient for Briscoe to assert that Local 825’s allegedly retaliatory state court quo warranto action deprived him of an array of First Amendment rights embraced by the comprehensive concept of “civil rights.” In City of Greenwood v. Peacock, 384 U.S. 808, 825, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966), the Supreme Court stressed that “the reference in § 1443(1) is to ‘equal civil rights,’ ” a phrase that “does not include the broad constitutional guarantees of the First Amendment.”
Briscoe identifies two federal statutes which he says fall within § 1443(1) and Local 825 violated. They 'are Title VII of the Civil Rights Act of 1964, and the Civil Rights Act of 1866, 42 U.S.C. § 1981.
.Title VII includes 42 U.S.C. § 2000e-3(a), which provides in pertinent part:
It shall be an unlawful employment practice for an employer to discriminate ■ against any of his employees ... or for a labor organization to discriminate against any member thereof ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this sub-chapter.
42 U.S.C. § 1981(a) provides:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
It is readily apparent that Briscoe has satisfied the first prong of § 1443(1) removal analysis. Briscoe claims in.essence that he has the right to be free from Local 825 retaliating against him for his assertions of discrimination in the litigation spawned by the 2003 lieutenants examination. In Johnson the Court said that to qualify for a § 1443(1) removal, Briscoe must show that this allegedly denied right “arises under a federal law providing for specific rights stated in terms of racial equality.”. 421 U.S. at 219, 95 S.Ct. 1591. (citation and internal quotation marks omitted). Both statutes fall within that category.
As for 42 U.S.C. § 2000e-3(a), a part of Title VII of the Civil Rights Act of 1964, the Court said of the plaintiffs in Georgia v. Rachel, 384 U.S. 780, 792, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966): “They also made allegations calling into play the Civil Rights Act of 1964. That Act is clearly a law conferring a specific right of racial equality,” 384 U.S. at 792, 86 S.Ct. 1783, the provision in question being found in § 201(a) of the Act, which guaranteed to all “the full and equal enjoyment” of public accommodation places without discrimination on the ground of race. Id.
As for §. 1981, the Supreme Court said in Peacock, 384 U.S. at 825, 86 S.Ct. 1800, that it need not “pursue to a conclusion” a “precise definition of the limitations of the phrase ‘any law providing for ... equal civil rights’ in § 1443(1)” because “we may proceed here on the premise that at least the two federal statutes specifically referred to in the removal petitions; 42 U.S.C. § 1971 and 42 U.S.C. § 1981, do qualify under the statutory definition.”
These eases teach us, then, that the quoted provisions in 42 U.S.C. §§ 2000e-3(a) and 1981(a) are numbered among the laws collectively referred in 28 U.S.C. § 1443(1) as “any law providing for the equal civil rights of citizens of the United States.” One must now consider whether the particular claim asserted by Briscoe arises under the cited and quoted laws. I consider that question with respect to each of the cited federal laws in order.
HI
A '
42 U.S.C. § 2000e~3(a)
Local 825 contends that Title VII cannot support Briscoe’s claim in the case at bar. The Union construes the statute as articulating only employer liability for discrimination. Briscoe’s claim fails, the Union argues, because “he fails to allege any conduct by Local 825 which would invoke union liability under Title VII. Local, 825 is not, nor was not, Michael Briscoe’s employer.” Local 825 Brief [Doc. 16-1] at 7 (emphasis in original).
That argument disregards the plain language of § 2000e-3(a), which after specifying particular areas in which an employer may not discriminate “against any of his employees,” goes on,to provide that it shall be unlawful “for a labor, organization to discriminate against any member thereof ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding of hearing under this subchapter.” Briscoe’s removal petition adequately alleges that Local 825, the “labor organization”'of which Briscoe was and is a member, retaliated against him because white officers of the Union were angered by Briscoe’s initiating and pressing litigation claims that the City’s implementation of the 2003 examination had a disparate impact, preferring white candidates over black candidates for promotion, thereby violating Title VII. That retaliation, Bris-coe asserts, took the form of the quo war-ranto action Local 825 filed in the state court for the purpose of ousting Briscoe from his new position: an action the Union was under no legal compulsion to take, its commencement lying within the discretion of the Local 825 officers.
I conclude without difficulty that, if retaliatory intent caused Local 825 to file its state court quo warranto. action against Briscoe, such conduct on the part of the Union would constitute a prohibited form of discrimination in violation of Title VII, 42 U.S.C. § 2000e-3(a). It is well settled by the law of this circuit that a labor, union, whose officers are irritated by a union member, retaliates against .that member by exercising discretionary powers for the purpose of harming, him, violates Title VII. See, e.g., Grant v. Bethlehem Steel Corp., 622 F.2d 43 (2d Cir.1980); EEOC v. Locals 14 and 15, lnt'l Union of Operating Eng’rs, 438 F.Supp. 876 (S.D.N.Y.1977).
In Grant, the Second Circuit rejected the appeal of a “Union and three of its officers” from the district court’s judgment that “they discriminated against the appel-lees, three black ironworkers employed by Bethlehem Steel Corporation in the structural steel industry, in retaliation for their prosecution of charges against Bethlehem and the Union before the Equal Employment Opportunity Commission (EEOC) and in a Title VII class action.” 622 F.2d at .44. The discrimination engaged in,by the .union and its officers took the form of “the manner in which it referred steel-working jobs,” the black plaintiffs alleging that “because they had brought the EEOC charges and Title VII class action, the Union retaliated by referring them only to short-term work or to no work at all.” Id. at 45. The district court held after a bench trial that the plaintiffs had proved their allegations' and awarded back pay. The Second Circuit affirmed. Judge Lum-bard’s opinion held first that the plaintiffs “established a prima facie case of retaliation,” given that “[t]he Union conceded that the plaintiffs engaged in protected activity under Title VII, and it can hardly be denied that the plaintiffs were disadvantaged by the Union’s manner of referring jobs.” 622 F.2d at 46. The court of appeals affirmed the district court’s judgment in plaintiffs’ favor because “the Union failed to articulate any legitimate nondiscriminatory. reasons for its actions, and the, reasons it did advance were mere pretexts . for retaliatory discrimination.” Id. at 47.
The Second Circuit’s opinion in Grant, 622 F.2d at 46, cites with approval Judge Tenney’s opinion for the district court in Locals 14 and 15, 438 F.Supp. 876 (S.D.N.Y.1977). That case began with a pattern-and-practice-of-diserimination suit the EEOC ■ had brought under Title. VII against Locals 14 and 15. A number of union members had complained- about discrimination against them and, appeared as witnesses on behalf of the EEOC at the trial. The district court found in favor of the EEOC v. Local 14 Intern, Union of Operating Engineers, 415 F.Supp. 1155 (S.D.N.Y.1976), and entered a remedial order. The defendant unions, including Local 15, appealed to the Second Circuit, which affirmed in part, reversed in part, and remanded the case to the district court for further proceedings. 553 F.2d 251 (2d Cir.1977). During the proceedings on remand, the EEOC filed a motion under Fed.R.Civ.P. 65 for an order enjoining Local 15 from “in any ... way discriminating against any person because he has made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing authorized by Title VIL” 438 F.Supp. at 879. Judge Tenney conducted a further evidentiary hearing and found that at the pertinent times- Local 15 operated a job referral system for its members. Union members seeking work signed up on a list, in a hiring hall. Judge Tenney further found:
Local 15 business representatives retained and exercised the power to refer men out -of order from the list and to honor employer requests for specific individuals.
Plaintiff’s evidence herein, virtually unchallenged, shows that the effect of this referral system was to deprive those who testified for the EEOC at the first trial of the opportunity to find work.
438 F.Supp. at 882. Judge Tenney characterized this union conduct as “discrimination and retaliation against the EEOC witnesses,” and held: “Failure of a union to refer members to work because of their protected activities violates Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a).” Id. at 883 (citation omitted). Section 2000e-3(a) is the Title VII provision Briscoe alleges Local 825 violated in the case at bar. Judge Tenney issued an injunction against Local 15 barring further retaliation, and provided for the recovery of the union members’ pecuniary losses. Id. at 885.
In the case at bar, Briscoe alleges that Local 825 violated Title VII by filing its quo warranto action against him for a retaliatory motive. His theory of the case fits within the results and rationales of cases like Grant and Local 15. The Second Circuit summarized the elements of a Title VII retaliation claim in Grant:
The legal standards applicable to a Title VII retaliation suit are not in dispute. Both sides agree that in order to establish such a claim, the plaintiff must show: first, protected participation or opposition under Title VII known by the alleged retaliator; second, an employment action or actions disadvantaging persons engaged in protected activities; and third, a causal connection between the first two elements, that is, a retaliatory motive playing a part in the adverse employment actions.
622 F.2d at 46 (citing Locals 14 and 15). To that summary, Judge Lumbard’s opinion added: “As for the third element, courts have recognized that proof of causal connection can be established indirectly by showing that protected activity is followed by discriminatory treatment.” Id. (citations omitted).
The circumstances of the case at bar mirror those elements. First, Briscoe’s efforts to challenge by litigation the 2003 promotional examination as discriminatory — by unsuccessful efforts to intervene in the Ricci and Tinney cases, then by his own direct action before the EEOC and this Court — constitute protected action because Briscoe’s underlying charge was and is that the City violated Title VII. Second, Local 825’s state court quo warranto action, if it succeeds, will work to Briscoe’s obvious disadvantage: he will be ousted from his new position with the City. Third, Briscoe alleges that his protected Title VII activity engendered animosity and retaliatory intent on the part of the white officers of Local 825, resulting in the quo warranto action, thereby establishing the requisite causal connection of “a retaliatory motive playing a part in the adverse employment actions” inherent in the quo warranto action.
I do not understand Local 825 to dispute in any substantive way Briscoe’s showing of the first two elements. But the Union vigorously contests the third element: that Briscoe’s allegation that the Union had a retaliatory motive for its quo warranto action. Local 825 professes itself to be motivated by a desire to fulfill its role “in safeguarding its members’ rights pursuant to law, the collective bargaining agreement and the civil service rules and regulations of the City of New Haven,” Brief [Doc. 16-1] at 2, all of which the Union contends were violated by the manner in which Mayor Harp arranged Briscoe’s appointment to his new position.
As for the prospect of animosity between white and black firefighters in the Department, the brief for Local 825 at 14 concedes its existence: “Local 825 is also well aware of the mixed feelings among firefighters as a result of the City of New Haven’s 2003 promotional exams and the Ricci case and the other cases which comprise the history of tension between firefighters and the City of New Haven.” I am not sure that this carefully worded acknowledgment does full justice to the depths of personal feelings revealed by the record. Briscoe’s amended counterclaims [Doc. 31] collect at ¶ 25 assertions made by or ascribable to Kottage, Ricci and others in court filings: specifically, that Briscoe’s Title VII suit in this Court was nothing more than “legal revanche” and an offensive “use of the race card” that “stalled ... careers” and “destroyed] workplace morale, stoke[d] racial antagonisms, undermine[d] command authority, and ' severely underminefd] the esprit de corps and mutual respect” within the fire department. These white firefighters complained that Briscoe brought his lawsuit td “besmirch and de-credential” the firefighters who had won promotion through the Ricci lawsuit; and- that, if Briscoe prevailed, it “would diminish [those members’] status, stain their badges, impugn their professional standing, and result in théir being held up to derision and scorn in their workplace and in 'their ■ profession at large.” '
T have 'in effect quoted in its entirety 1125 of Briscoe’s amended counterclaims. The same assertions appeared in Briscoe’s initial Notice of Removal [Doc. 1] at ¶ 17. Local 825 does not question the accuracy of these quotations from court filings. I regard this account as probative of the state of mind of Local 825 officers at the time the Union commenced its quo war-ranto action in the state court.
Local 825 moves to remand this removed case to the state court where it began, for adjudication of the Union’s quo warranto claim that Briscoe should be ousted' from his present position as Director of Public Safety Communications, As noted, Local 825 insists that no retaliatory motive contributed to the filing of that action. That issue of fact may ultimately be resolved by evidentiary hearing, but it is premature to consider it now. A party seeking to justify removal is not required to “win his ease before he can have it removed”; the question is whether his removal petition “presents a colorable federal defense.” Jefferson County, Alabama v. Acker, 527 U.S. 423, 431, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999). In New York v. Galamison, 342 F.2d 255, 261-62 (2d Cir.1965), Judge Friendly -said: that removal was proper- if the case turned on questions “Congress meant to have decided in a federal trial; a defendant seeking removal under .that, section [§ 1443(2) ] does not have to prove preliminarily that he will prevail.”
On the first prong of § 1.443(1) removal apalysis, the question presented is whether Briscoe’s- allegations of Union .officers’ retaliatory intent in bringing the quo war-ranto action are sufficient to bring this action within that civil rights eases’ removal statute. Cases like Jefferson County and Galmdson teach us to regard the question as the functional equivalent of that presented by a.motion to dismiss a civil action under Fed.R.Civ.P. 12(b)(6) for failure to state a claim, with the district court “accepting all factual allegations in the complaint as. true and drawing all inferences in the plaintiff’s favor.” Walker v. Schult, 717 F.3d 119, 124 (2d Cir.2013). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). To state a plausible claim, the complaint’s “[factual allegations must be enough to raise.a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
If the removal of this case is sustained, Briscoe will bear the burden of proving in this Court that Local 825’s filing of the quo warranto action in state court was a retaliatory act of racial discrimination. Whether Briscoe can do so is for future determination. At this requested remand stage of the litigation, the question is whether Bris-coe has stated a plausible retaliation claim. I conclude that he has done so.
Future evidence may show, aS the Union now proclaims, that the Union filed the quo warranto action solely for the laudable objectives professed in its brief, and was in no way motivated by the ignoble objective of retaliation. However, before Local 825 filed the quo warranto action (and before atiy occasion' for it had arisen, Briscoe' not yet having been transferred to his present position), white members of Local 825, including its present officers, denigrated Briscoe in court filings in language redolent, of personal animosity and racial overtones. I am in no way critical of these firefighters’ exercise of them right of free speech, which given the litigation context have a privilege of their own. But the Union officers’ comments may fairly be considered as probative of their states of mind; and a claim of retaliation necessarily focuses upon the alleged retaliatory state of mind. There is ho reason in this case to accept the advice famously given by a former Attorney General of the United States: ‘Watch what we do, not what we say.” In the circumstances of the case at bar, including the recognized racial tensions that regrettably divide and distract the brave firefighters who risk their lives in the City’s service, it is not implausible to think that what Kottage, Ricci and others said about Briscoe evidenced a state of mind that caused or contributed to what Local 825 subsequently did to Briscoe.
In short: Briscoe asserts in his Notice of Removal a plausible claim that Local 825’s filing of the state court quo warranto action constituted an act of retaliation motivated by racial discrimination, in violation of Title VTI. That satisfies the first prong of § 1443(1) analysis, which requires Briscoe’s pleading to make it appear that the right allegedly denied him “arises under a federal law providing for specific civil rights .in terms of racial equality.” The second prong requires Briscoe to show that he is “denied or cannot enforce” that federal right in the state court. That question is considered in Part IV, infra. First, however, Part III.B. considers, whether Briscoe pleads a viable claim under the second federal law he relies upon: 42 U.S.C. § ,1981.
B
As an alternative basis for removal under 28 U.S.C. § 1443(1), Briscoe relies upon 42 U.S.C. § 1981(a), whose most relevant provisions state; “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and -proceedings for the security of persons and property as is enjoyed -by white -citizens.,Section 1981(b) defines “make and enforce contracts” to “includ[e] the making, performance, modification, 'and termination of contracts, and the enjoyment of all benefits — of the contractual relationship.”
Given that wording, Local 825 does not and could not dispute that this is “a federal law providing for specific civil rights stated in terms of racial equality,” one of the requirements of § 1443(1). What the Union contends, not surprisingly, is that the issues presented by the Union’s quo war-ranto action against Briscoe, which tests Briscoe’s de jure right to occupy the position to which Mayor Harp appointed him, have precisely nothing to do with Briscoe’s right “to make and enforce” a contract. Specifically, Local 825 quotes the Supreme Court’s holding in Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 476, 126 S.Ct. 1246, 163 L.Ed.2d 1069 (2006): “Any claim brought under § 1981, therefore, must initially identify- an impaired ‘contractual relationship,’ § 1981(b), under which the plaintiff has rights.” Local 825 ' argues that Briscoe has not and cannot make that showing: “Michael Briscoe has not identified any such contract because he does not have a contract with the City of New Haven for his ‘promotion’ to Acting Director of the Department of Public Safety Communications.” Doc. 16-1, at 10-11. It follows, Local 825 reasons, that in the case at bar, § 1981 cannot give rise to a claim-cognizable as a -basis, for removal under § 1443(1). ■
Local 825’s argument on this aspect of the case skims over the fact that Briscoe’s underlying claim against the Union is for retaliation. Counsel for Briscoe,' in an effort to avoid the Supreme Court’s holding in Domino’s Pizza, cite the Court’s subsequent decision in CBOCS West, Inc. v. Humphries, 553 U.S. 442, 451, 128 S.Ct. 1951, 170 L.Ed.2d 864 (2008), where the majority said: “[T]he view that § 1981 encompasses retaliation claims is indeed well embedded in the law.” On the facts presented in Domino’s Pizza, the Court held in a unanimous opinion by "Justice Scalia that §" 1981 did not give rise to a cognizable claim. On the facts presented in CBOCS West, the Court held by a 7-2 vote in an opinion by Justice Breyer that a claim lay under § 1981. Justice Thomas wrote a vigorous dissent, in which Justice Scalia joined: “It is difficult to see where one finds a cause of action for retaliation in [§ 1981(a)]. On its face, § 1981(a) is a straightforward ban on racial discrimination in the making and enforcement of contracts. ' Not "surprisingly, that is how the Court has always construed it.” 553 U.S. at 458, 128 S.Ct. 1951’ (citing Domino’s Pizza as the first in a string of Supreme Court decisions).
Domino’s Pizza and CBOCS West comprise the most recent sources of Supreme Court instruction on the scope and application of § 1981. The cases are fact specific. In order that I may be properly instructed in the case at bar, it is necessary to consider .these two opinions with care. ■
The plaintiff in Domino’s Pizza was John McDonald, a black man, and the sole shareholder and president of JWM, Investments,’ Inc., a corporation. JWM and defendant Domino’s entered into several contracts under which JWM was to construct four restaurants and lease them to Domino’s. JWM and Domino’s had a falling out, the four contracts remained uncompleted, JWM filed for bankruptcy, the bankruptcy trustee initiated an adversary proceeding against Domino’s for breach of contract, that claim was settled for $45,000, and JWM gave Domino’s a complete release. During the pendency of the bankruptcy proceeding, McDonald filed a § 1981 action against Domino’s in his personal capacity. The theory of his case was that Domino’s had broken its contracts with JWM because of racial animus toward McDonald. The Ninth Circuit allowed McDonald’s § 1981 action to proceed, reasoning that while “an injury suffered only by the corporation would not permit a shareholder to bring a § 1981 action,” when “there are injuries distinct from that of the corporation, a nonparty like McDonald may nonetheless bring suit under § 1981.” 546 U.S. at 474, 126 S.Ct. 1246 (citation and internal quotation marks omitted). The Supreme Court reversed and directed dismissal of the § 1981 action.
Justice Scalia began the Court’s unanimous opinion by framing the issue thus: “We decide whether a plaintiff who lacks any rights under an existing contractual relationship with the defendant, and who has not been prevented from entering into such a contractual relationship, may bring suit under Rev. Stat. § 1977, 42 U.S.C. § 1981.” 546 U.S. at 472, 126 S.Ct. 1246. With that opening’s tenor, the reader is not surprised to learn that the Court’s answer is “No.” The Court identified the right protected by this section of the civil rights statutes as “the right — denied in some States to blacks, as it was denied at common law to children — to give and receive contractual rights on one’s own behalf.” Id. at 475, 126 S.Ct. 1246 (emphasis in original). Given that particular purpose, the Court reasoned:
Any claim brought under § 1981, therefore, must initially identify an impaired “contractual relationship,” § 1981(b), under which the plaintiff has rights. Such a contractual relationship need not already exist, because § 1981 protects the would-be contractor along with those who have already made contracts .... We have never retreated from what should be obvious from reading the text of the statute: Section 1981 offers relief when racial discrimination blocks the creation of a contractual relationship, as well as when racial discrimination impairs an existing contractual relationship, so long as the plaintiff has or would have rights under the existing or proposed contractual relationship.
Absent the requirement that the plaintiff himself must have rights under the contractual relationship, § 1981 would become a strange remedial provision designed to fight racial animus in all of its noxious forms, but only if the animus and the hurt it produced were somehow connected to somebody’s contract. We have never read the statute in this unbounded — or rather, peculiarly bounded — way.
546 U.S. at 476, 126 S.Ct. 1246 (citations and footnote omitted).
While McDonald’s personal § 1981 complaint against Domino’s “does identify a contractual relationship, the one between Domino’s and JWM,” the pleading failed to state a viable claim because “the shareholder and contracting officer of a corporation has no rights and is exposed to no liability under the corporation’s contracts.” 546 U.S. at 477, 126 S.Ct. 1246. The Court rejected plaintiffs proposed “new test for § 1981 standing,” namely, a person may invoke the section if he is an “actual target” of discrimination who “loses some benefit that would otherwise have inured to him had a contract not been impaired,” an individual being an “actual target” under this formulation “if he was the reason a defendant chose to impair its contractual relationship with a third party.” Id. at 478, 126 S.Ct. 1246. That -test failed to find favor with the Court because it “simply ignores the explicit statutory requirement” that the plaintiff, be the person whose right to make and enforce contracts was impaired on account of race. Id. By the same token, the Court rejected McDonald’s resort to policy arguments:
The most important response, however, is that nothing in the text of § 1981 suggests that it was meant to provide an omnibus remedy for all racial injustice. If so, it would not have been limited to situatio.ns involving contracts. Trying to make it a cure-all not only goes beyond any expression of congressional intent but would produce satellite § 1981 litigation of immense scope.
546 U.S. at 479, 126 S.Ct. 1246.
The plaintiff in CBOCS West was Hed-rick Humphries, a black man, and a former assistant manager of a Cracker Barrel restaurant, owned by defendant CBOCS West. The theory of Humphries’s case against CBOCS was that CBOCS had dismissed him from his employment for two reasons: (1) because of racial bias and (2) because Humphries had complained to managers that a fellow assistant manager had dismissed another black employee for race-based reasons. Humphries filed a suit “alleging claims of discrimination and retaliation under Title VII and 42 U.S.C- § 1981 against CBOCS West, Inc., based on his discharge as an associate manager at one of defendant’s Cracker Barrel restaurants.” 474 F.3d 387, 389 (7th Cir.2007). The district court dismissed the Title VII claim on procedural grounds, which Humphries did not challenge on appeal, and granted summaiy judgment to GBOCS on the § 1981 claim, which a divided panel of the Seventh Circuit reversed. Judge Williams said for the majority: “We reverse the district court’s grant of summary judgment as to Humphries’s retaliation claim because Humphries made a sufficient showing under the indirect method to establish a prima facie case of retaliation under section 1981.” Id. To arrive at that result, it was necessary for the Seventh Circuit to conclude that a retaliation claim was cognizable under .§ 1981. The Seventh Circuit majority held that it was, relying principally on the' Supreme Court’s decision in Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969). Thus the majority captioned a section of its opinion, 474 F.3d at 393, with this language: “Sullivan v. Little Hunting Park, Inc. Leads Courts To Conclude that Section 1981 Protects Against Retaliation.” Judge Easter-brook’s dissent on this point relied upon Domino’s Pizza:
Less than a year ago, in Domino’s Pizza, the Court reiterated Patterson’s interpretive stance. Sullivan, by contrast, did not receive a mention. Yet my colleagues do not mention Domino’s Pizza. Why bypass the Supreme Court’s 2005 understanding of § 1981 in favor of a 1969 understanding of § 1982?
The Supreme Court granted CBOCS’s petition for certiorari. Justice Breyer began his opinion for a 7-2 majority by quoting the provision in § 1981 that .“all persons” shall “have the same right” to “make and enforce contracts ... as is enjoyed by white citizens.” He referred to that section as “the oldér ‘equal contract rights’ provision,” and posed the issue in the case as follows:
The basic question before us is whether the provision encompasses a complaint of retaliation against a person who has complained about a violation of another person’s contract-related “right.” We conclude that it does.
553 U.S. at 445, 128 S.Ct. 1951 (emphasis added). The Court does not expand upon the identity of the contract giving rise to the “contract-related right” in the case, but it is clear from the context that the reference is to the contracts of employ,ment between CBOCS West as employer and the involved individuals as employees, particularly non-party Green,..the employee CBOCS discharged, and plaintiff Humphries, who complained about Green’s discharge and was himself discharged, allegedly in retaliation. The majority’s, conclusion in CBOCS West that § 1981 .encompasses' a retaliation .claim ■arising out of a “contract-related right” depends in significant measure on stare decisis, with particular deference paid to Sullivan v. Little Hunting Park, Inc. Justice Thomas’s dissent, in which Justice Scalia (the author of Domino’s Pizza) joined, argued that Sullivan did not deserve stare decisis effect, and CBOCS West should arrive at the same conclusion as Domino’s Pizza: neither plaintiff stated a viable claim under § 1981.
What instructions should this district judge, responsible for Briscoe’s § 1981 claim, derive from the Supreme Court’s opinions in Domino’s Pizza and CBOCS West ? ' •
The first lesson these cases teach is that proof by Briscoe that Local 825 acted out of racial animus and retaliatory intent in filing its quo warranto action' against him, for the dishonorable purpose of ousting Briscoe from his new City position, would not be sufficient standing alone to sustain a viable claim under § 1981. One can readily accept that Briscoe has- been injured by having to defend his new position against the Union’s quo warranto challenge, let-alone the greater injury inherent in the loss of his position if the state court decides the quo warranto action' against him; and surely the filing of that action, if motivated by racial animus and a desire to retaliate against Briscoe for his protected activity, would be wrongful (a self-evident proposition). However, to • establish a claim under § 1981, Briscoe must show in addition that Local 825’s conduct deprived him of a right created by an identifiable contract. Section 1981 is, in Justice Breyer’s introductory phrase in CBOCS West, the “equal contract rights provision,” and a violated right, tó be remediable under that section, must be “contract-related.” • Justice Scalia summed up the provision when he said in Domino’s-Pizza: “Section 1981 offers relief when racial discrimination blocks the creation of a contractual relationship, as well as when racial discrimination impairs an existing contractual relationship, so long as the plaintiff has or would have rights under'the existing or proposed contractual relationship.” 546 U.S. at 476, 126 S.Ct. 1246. Justice Scalia managed to use the phrase "contractual relationship” three times in a single sentence, thereby recalling the shade of Lewis Carroll.
Counsel for Briscoe recognize the need to place his § 1981 claim within a contractual setting. His brief attempts that by asserting that “Briscoe is a unionized employee of the City of New Haven,” and as such “Briscoe has contractual rights under the collective bargaining agreement between the City and Local 825, his union.” Doc. 21, at 12. A collective bargaining agreement (“CBA” in ordinary parlance) is, of course, a contract. Typically, and in this case, the signatories to that contract are a labor union and an employer (or group of employers). Members of the union become employees of the employer (hence counsel’s phrase “a unionized employee”). In a footnote at 12 n. 6, counsel collect cases which consider how to characterize an individual union member who did not directly sign the collective bargaining agreement: is he or she a party to the contract, or a third-party beneficiary of it, or something else (“sui generis” in the self-conscious language of the law). “The precise taxonomy of Briscoe’s contractual rights as a union member,” his brief argues dismissively, “is of no import: it is clear that the right is sufficient to be protected from discrimination and retaliation under Section 1981.” Brief, at 12. That assertion is restated in the footnote, n. 6 at 13: “But whatever the exact status of those rights, the point is that union members have contractual rights related to their employment status.”
We must focus, then, upon Briscoe’s theory that the collective bargaining agreement and § 1981 combine in such a way as to protect Briscoe from Local 825’s allegedly retaliatory and discriminatory filing of the quo warranto action. Briscoe grounds that theory upon the provision in § 1981(b), added by Congress in 1&91, that the term “make and enforce contracts” in the present § 1981(a) “includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” However, when Briscoe’s brief at 13 quotes that language from § 1981(b), a certain transformation takes place. This is the way the brief appears:
What matters is that Briscoe has contractual rights as part of the tripartite union-employer-employee relationship, and Section 1981 grants him a right to “enjoy[] all benefits, privileges, terms and conditions of the contractual relationship,” 42 U.S.C. 1981, free from retaliation for pursuing complaints of racial discrimination;
In point of fact, the statutory language in § 1981(b) (mis-cited in the brief as “1981”), places a period after the concluding phrase “contractual relationship.” Briscoe’s brief replaces the period with a comma, closes the quote marks, sets off the statutory citation with a further comma, and adds the words “free from retaliation for pursuing compláints of racial discrimination.” Finally a period is utilised, after the phrase “racial discrimination.”
The point of all this is that an inattentive reader might think the concluding reference to “free from retaliation” etc. was part of the statute, rather than what it is: an exercise in advocacy by counsel. Briscoe’s theory is that § 1981’s anti-retaliation remedy should be construed so broadly that it leaves Briscoe “free from retaliation for pursuing complaints -of racial discrimination” wherever and whenever the retaliation occurs,, whether or riot the retaliatory conduct impairs, Briscoe’s rights- under the collective bargaining agreement, which is the existing contract in the § 1981 analysis.
Briscoe must make that argument because the Local 825 conduct he condemns as retaliatory is the Union’s filing of the state court quo warranto action. That action challenges Briscoe’s de jure entitlement to a different, non-firefighting position in the City government. The merits of the quo warranto action, whatever they may be; do not arise out of the provisions of the collective bargaining agreement between the Union and the City. As is typical, the collective bargaining agreement, or “CBA” in common parlance, between Local 825, a firefighters’ union, and the City of New Haven is for a stated period óf time. Members of the Union become City employees. The CBA specifies union members’ compensation and benefits, .defines the terms and conditions of their employment, and contains grievance procedures for disputes arising out of the meaning or implementation of the CBA. The CBA in this case says nothing about an individual union member’s ambition to become New Haven’s Director of Public Safety Communications; or how his application for and appointment to . that position should be structured; or how, once appointed, his de jure entitlement to the position should be evaluated. It would be surprising, indeed passing strange, to find such provisions in a collective bargaining agreement, and in fact there are none.
It is problematic, even counterintuitive, to.discern so all-inclusive a freedom from retaliation in a statute which confers the relatively narrow (although important) right “to make and enforce contracts,” § 1981(a), with its concomitant right to enjoy the benefits of the resulting “contractual relationship,” § 1981(b). The Supreme Court’s decision in CBOCS West, which Briscoe correctly cites for the general proposition that § 1981 encompasses a claim for retaliation, does not support the broad construction Briscoe seeks to en-graft upon the statute. In CBOCS the plaintiff, an employee, complained of the defendant employer’s retaliatory conduct in discharging plaintiff: a violation of plaintiffs fundamental right arising directly from the contract of employment forming the subject matter of the action. It requires a considerable stretch to equate, for § 1981 purposes, the collective bargaining agreement in the case at bar with the contract of employment in CBOCS West.
Moreover, in CBOCS West the Court emphasized the Congress’s 1991 passage of §. 1981(b),. and Justice Breyer’s opinion noted: “After enactment of the new law, the Federal Courts of Appeals again reached a broad consensus that § 1981, as amended, encompasses retaliation claims.” 553 U.S. at 451, 128 S.Ct. 1951 (string of citations' omitted). The first case cited for that proposition is ■ the Second Circuit’s opinion in Hawkins v. 1115 Legal Service Care, 163 F.3d 684 (2d Cir.1998), where Judge Kearse said:
We remain of the view, in light of the broad sweep of § 1981(b), that a retaliation claim may be brought under § 1981. However, to be actionable under § 1981, the retaliation must have been in response to the claimant’s assertion of rights that were protected by § 1981. An act of retaliation for engaging in activity protected by Title VII does not give rise to a claim for retaliation that is cognizable under § 1981 unless that activity was also protected by § 1981.
163 F.3d at 693 (citations and internal quotation marks omitted). The Second Circuit dismissed plaintiffs § 1981 claim on that ground: “Hawkins’s September 1991 complaint to the administrative agencies that she had been denied promotions did not involve the assertion of a right that was then protected by § 1981. Any retaliation against her for filing that complaint was thus not cognizable under § 1981.” Id. at 694. Plaintiff had succeeded at trial on her accompanying Title VII claim.
The relevance to Briscoe’s case of the Second Circuit’s decision in Hawkins, which preceded the Supreme Court’s decision in CBOCS West but is not affected by it, is that Hawkins draws a distinction between a Title VII retaliation claim, which may be cognizable on the facts proved, and a § 1981 retaliation claim, which may not be on the same facts. That decision resonates in the case at bar. I have concluded in Part III.A. that Bris-coe’s notice of removal and counterclaim state a viable claim that Local 825 violated Title VII by retaliating and discriminating against him through the vehicle of the quo warranto action. The question in this Part is whether Briscoe has pleaded a viable § 1981 claim.
I conclude that he has not. A right arising from a contract or contractual relationship is essential to a viable § 1981 claim, under § 1981(a) or 1981(b). Bris-coe’s effort to demonstrate that necessary element — the existence of a relevant contract or contractual relationship — comes down to this: Local 825 and the City entered into a collective bargaining agreement. A collective bargaining agreement is a contract. Briscoe is a member of Local 825. He is therefore entitled to claim the benefits of that contract, as'a party to the contract, its third-party beneficiary, or in some other persona. A union entering into a collective bargaining agreement with an employer necessarily promises its members, impliedly if not explicitly, that the union will not surrender to racial animus and retaliate against a member for the purpose of causing him harm, of whatever nature or in whatever context. It follows that Local 825’s quo warranto action against Briscoe, allegedly motivated by racial animus and the retaliatory objective of ousting Briscoe from his present City job, violates Briscoe’s rights' under the collective bargaining agreement, which is a contract, or to be more precise, the § 1981 contract in this case. Q.E.D.
. -.While counseFs ingenuity do them credit, I find that I cannot accept .this formulation. It departs.impermissibly from the more precise wording of the statute, substitutes -a contract on the periphery of the action for the requisite contract at its core, and disregards the, interpretative strictures of Supreme Court decisions. In Domino’s Pizza Justice Scalia cautioned lower court judges against a statutory interpretation so broad that “ § 1981 would become a strange remedial provision designed to fight racial animus in all of its noxious forms, but only if the animus and the hurt it produced were somehow connected' to somebody’s contract.” 546 U.S. at 476, 126 S.Ct. 1246 (emphasis in original). Justice Scalia -added, with some asperity: “We have never read the statute in this unbounded — or rather, peculiarly bounded — way.” Id. That analysis militates against Briscoe’s invocation of § 1981, which proceeds on the theory that the Union’s retaliatory quo warranto action and the hurt to Briscoe it produces are “somehow connected to somebody’s contract,” namely, the collective bargaining agreement between the Union and the City, of which Briscoe proclaims himself to be the third-party beneficiary of ,an unstated and implied contractual prohibition against Union discrimination and retaliation-
Briscoe cites no appellate authority for so far-reaching an interpretation of so precisely worded a remedial statute, and the Court’s, research has not disclosed any. Briscoe’s Brief, Doc. 21, at 12 n. 6, collects Supreme Court cases which consider individual union members’ rights under collective bargaining agreements, but they furnish no support for Briscoe’s theory that he has a cognizable claim under. § 1981 against Local 825 on the facts of this case. The cited cases deal with entirely different questions. See Ass’n of Westinghouse Salaried Emp. v. Westinghouse Elec. Corp., 348 U.S. 437, 75 S.Ct. 489, 99 L.Ed. 510 (1955) (action against employer to recover salary payments allegedly owed to union members under a collective bargaining agreement); Wooddell v. Int’l Bhd. of Elec. Workers, Local 71, 502 U.S. 93, 112 S.Ct. 494, 116 L.Ed.2d 419 (1991) (action by union-members against union alleging discrimination in job referral procedures made pursuant to collective bargaining agreement); United Steelworkers of Am., AFL-CIO-CLC v. Rawson, 495 U.S. 362, 110 S.Ct. 1904, 109 L.Ed.2d 362 (1990) (following fatal fire in mine, action by union members’ survivors against union for alleged fault in participating in joint mine safety inspections pursuant to- collective bargaining agreement). None of these cases construed § 1981. They furnish no assistance in determining whether Briscoe has pleaded a cognizable claim, under §, 1981 against Local 825.
For the .foregoing reasons, the Court concludes that Briscoe does not sufficiently allege a claim against Local 825 pursuant to 42 U.S.C. § 1981 to justify a removal of the Union’s state court' quo warranto action to this Court pursuant to 28 U.S.C. § 1443(1).
IV
In Part III.B., supra, the Court concluded that Briscoe sufficiently pleaded the denial by Local 825 of a right afforded him by “a federal law providing for specific rights in terms of racial equality,” namely, 42 U.S.C. § 2000e-3(a), a part of Title VII of the Civil Rights Act of 1964. That satisfies the first of the two prongs Briscoe must establish to- warrant removal under 28 U.S.C. § 1443(1). I turn now to a consideration of whether Briscoe has satisfied the second prong, which poses the question: Has Briscoe shown that he “is denied or cannot enforce” that federal Title VII right in. the courts of the State of Connecticut?
Briscoe’s contention' on- that question is that “State law, inclüding in particular Conn. Gen.Stat. § 52-122, prohibits Bris-coe from protecting or enforcing his federal rights in the quo warranto action in state court.” Notice of Removal [Doc. 1], at ¶ 22. Briscoe expands on that contention in his brief opposing remand [Doc. 21] at -14-19. His argument -is that when the Connecticut Legislature enacted the Practice Act of 1879 which “abolished the procedural differences between law and equity [and] instituted the unitary form of civil action [in Connecticut]”, State v. Clemente, 166 Conn. 501, 541, 353 A.2d 723 (1974), “the.- Practice Act explicitly excepted quo warranto actions from the merger of law and equity.” Brief, at 15 (emphasis in original). “Briscoe cites section 32 of the 1879 Practice Act,” which provided in pertinent part: “Sections one ,.. five [and] six ... of this Act [the provisions merging law and equity] shall not affect ... proceedings of ... quo warranto, or in the nature of quo warranto ...”
In Hinckley v. Breen, 55 Conn. 119, 9 A. 31 (1887), the Supreme Court of Connecticut had occasion to consider that relatively new aspect of state practice. The ease involved which of two groups of citizens constituted the lawful committee of a school district. The plaintiff group sought by a bill in equity to restrain the other group from acting as committee members. The trial court dismissed the complaint “on the sole ground that the plaintiffs had misconceived the form of action.” 9 A. at 31. The Supreme Court affirmed. The court observed that “Before the practice act [of 1879] it is very clear that titlé to an office could only be tried on a writ of quo warranto, or proceedings in the nature of quo warranto. A bill in equity was not an appropriate rem