Citations
- 337 F. Supp. 3d 109
Full opinion text
CHARLES S. HAIGHT, JR., Senior United States District Judge
I. INTRODUCTION
Plaintiff Joseph Mercer brought the instant civil rights action pursuant to 42 U.S.C. § 1983, against Dora B. Schriro, the Commissioner of his employer, the State of Connecticut Department of Emergency Services and Public Protection ("DESPP"); the Connecticut State Police Union, Inc. ("CSPU"); and Andrew Matthews, President of the CSPU. Plaintiff is and was at all relevant times a sergeant with the State Police and alleges that he suffered an adverse employment action by all defendants in this action "when, acting under color of state law, the Commissioner transferred him from his position as Operations Sergeant with Emergency Services to the Office of Counter Terrorism at the request of the CSPU and/or Matthews." Doc. 1, ¶ 7, ¶ 74.
In his Complaint, Plaintiff includes two Counts, which he asserts against all defendants. These Counts include: (1) "Violation of 42 U.S.C. § 1983 and the United States Constitution," alleging violations of Mercer's rights to free speech and association under color of state law, and (2) "Violation of Conn. Gen. Stat. § 31-51q," alleging a state statutory violation by infringing on Mercer's "exercise of his freedom of speech and associational rights under the First and Fourteenth Amendments to the United States Constitution, and under Article 1, Sections 4 and 14 to the Constitution of the State of Connecticut." Doc. 1, ¶¶ 73-81, 82-88.
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, 42 U.S.C. § 1983 and Conn. Gen. Stat. § 31-51q. Doc. 1, Prayer for Relief, ¶ A. He also requests that the Court impose a permanent injunction: (1) prohibiting Defendants "from retaliating against [him] for exercising his First Amendment rights;" and (2) requiring the Commissioner to "transfer Plaintiff back into the full-time position of Operations Sergeant." Id. , ¶ B. In addition, Plaintiff seeks compensatory damages and/or equitable relief, including restitution and payment of overtime pay he would have received had he remained in his Operations Sergeant position after October 28, 2015. Id. , ¶ C. He also requests "punitive damages," stemming from Defendants' alleged "malicious, intentional, and/or reckless or callous indifference" to his constitutional rights. Id., ¶ D. Finally, Plaintiff seeks "nominal exemplary damages under 42 U.S.C. § 1983, plus interest," and "costs, including reasonable attorneys' fees" under 42 U.S.C. § 1988 and/or Conn. Gen. Stat. § 31-51q. Id., ¶¶ E.-F.
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 42 U.S.C. § 1983 in Count One is "barred by the Eleventh Amendment (official capacity) and qualified immunity (individual capacity)," and (2) Plaintiff's claim under Conn. Gen. Stat. § 31-51q in Count Two fails to state a claim upon which relief may be granted. Doc. 24-1, at 1.
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 42 U.S.C. § 1983 in Count One fails to establish that the Union Defendants acted under color of state law and "otherwise fails to state a claim upon which relief can be granted"; and (2) Plaintiff's state law claim under Conn. Gen. Stat. § 31-51q in Count Two fails to state a claim upon which relief may be granted. Doc. 36, at 1. The Court resolves both motions to dismiss in this Ruling.
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 42 U.S.C. § 1983 against his employer, the State of Connecticut Department of Emergency Services and Public Protection ("DESPP"). He is and was at all relevant times a sergeant with the State Police. Doc. 1, ¶ 7.
Dora B. Schriro is the Commissioner of the DESPP and its commanding officer. Id. , ¶ 8. She is "responsible for developing policies, enforcing and executing all rules and regulations, and overseeing the general supervision of all the various departments, offices, and units within the DESPP and the State Police division." Id. She is sued in both her official and individual capacities. Id.
Plaintiff alleges that on November 14, 2014, he resigned his membership in the CSPU (herein the "Union"). Id. , ¶ 11. At various times since November 2014, Plaintiff informed his coworkers of their right to resign from the Union. Id. , ¶ 12.
At the time he resigned his Union membership, Plaintiff was "employed full time as a resident State Police Trooper for Colchester, Connecticut," who "supervised the daily operations of the local police department, comprised of twelve municipal police officers." Id. , ¶ 15. In addition to this full-time position, Plaintiff was employed part-time in the State Police Tactical Unit ("SWAT"), which is part of the Emergency Services division within the State Police. Id. , ¶ 16. Both of these positions are in the NP-1 bargaining unit represented by the Union.
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. Id. , ¶ 13. He alleges that this lawsuit was "publicized in several local news media." Id.
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," Id. , ¶ 17. That transfer became effective on May 15, 2015. Id. Operations Sergeant is an NP-1 bargaining unit position. Id.
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. Id. , ¶ 21. "[A]ll of Sgt. Mercer's predecessors were appointed to the position of Operations Sergeant at the sole discretion of the commanding officer of Emergency Services." Id. , ¶ 22. None of said predecessors went through a "selections process" but CSPU "never filed institutional grievances over [these] appointments." Id. Unlike Mercer, "all of his predecessors were union members." Id.
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. Id. , ¶ 23. Lieutenant Ed Bednarz, Executive Officer for Emergency Services, was the acting commander and Mercer was co-commander of the SWAT response team on that day. Id. , ¶ 24. Once at the scene, Bednarz and Mercer coordinated with the local police chief and State Police Central District Commander, Ed Gould, to handle the barricade situation. Id. , ¶ 24. Communicating with the armed suspect failed so Bednarz, Mercer, and the "other leadership devised an extraction plan." Id. , ¶ 25. All SWAT leaders and members on the scene prior to the operation's execution approved the plan. Id. , ¶ 27. When the plan was implemented, however, the barricaded suspect pointed a gun at one SWAT team member so two other SWAT team members shot the suspect dead. Id. , ¶ 28.
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. Id. , ¶ 36. Although the meeting was "originally scheduled to discuss body cameras for the state troopers," Matthews used the meeting to accuse Mercer of "fixing" the selection process for new SWAT candidates. Id. Mercer alleges that such an accusation was false. Id. , ¶ 37.
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. Id. , ¶ 41. At the meeting, Matthews raised concerns about "the tactical decisions made at the Old Saybrook shooting [and fatality] incident," which Mercer had co-supervised.
Id. , ¶ 42. Matthews allegedly "also attacked the appointments of nonmembers Mercer and Konow to their respective full-time positions within Emergency Services." Id. , ¶ 43. Matthews did not attack the appointments of Mercer's and Konow's predecessors to those same positions, even though they did not go through a "selections process." Id.
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. Id. , ¶¶ 45-46. According to Plaintiff, he responded to the Union's statements; and the "command staff were satisfied with the responses, and expressed no concern or opposition to the matters discussed." Id. , ¶ 46.
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." Id. , ¶ 47. Mercer then "explained the tactical decisions that were made at the Old Saybrook incident," to which the Commissioner allegedly "expressed her satisfaction." Id. Mercer and the Commissioner also discussed other matters to which the Commissioner responded "positively." Id. At the meeting, Plaintiff informed the Commissioner about his lawsuit against the Union, his resignation from Union membership, and his advocacy on behalf of the rights of non-members of the Union. Id.
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. Id. , ¶ 48. Meraviglia and Hyatt allegedly refused to follow that request. Id.
On October 26, 2015, Union President Matthews held a Union meeting at the Union hall. Id. , ¶ 49. Only certain SWAT members and the Commissioner were invited. Id. After addressing the attendees generally, Matthews and the Commissioner left the general meeting to go into a closed-door session. Id. , ¶ 50. Ten minutes later, Matthews emerged and announced to the attendees that "it was a done deal." Id. "It" turned out to be the transfer of Mercer the following day. Id. , ¶ 51. In particular, the Commissioner verbally ordered Mercer to be transferred from his command position within SWAT, but gave no reason for the transfer. Id. Mercer, a non-member of the Union, "was the only individual the Commissioner ordered to be transferred." Id. , ¶¶ 51-53.
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. Id. , ¶ 58. The grievance alleged both CBA and department procedure violations. Id. Other than this grievance, Mercer had never received a disciplinary action against him or his "operations calls." Id. , ¶ 60.
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." Id. , ¶ 52. The command staff told him that the "transfer was not because he had done anything wrong." Id.
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. Id. , ¶ 53. The order included no reason for the transfer. Id. To date, no such reason has been provided. Id. , ¶ 57.
On November 2, 2015, Mercer submitted a request to meet with the Commissioner regarding his job transfer. Id. , ¶ 55. Two weeks later, on November 16, 2015, she denied that request in a letter stating that "the matter is under further review." Id. , ¶ 56. The letter failed to explain what the review would entail or the basis for the transfer. Id. At the time of his transfer, Plaintiff had served for twenty-one years with the State Police, sixteen years in Emergency Services, and eleven years as Sergeant and "[a]t no time during his career had [he] received any warnings, reprimands, or other disciplinary actions." Id. , ¶ 69.
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." Id. , ¶ 66. However, in comparing his former position as SWAT Operations Sergeant with his current position in the Office of Counter Terrorism, Plaintiff alleges that Operations Sergeant was "a prestigious command position" with "a great amount of supervisory responsibility," whereas his present position with Counter Terrorism "is primarily administrative, with little to no supervisory responsibilities." Id. , ¶¶ 64-65. In addition, his "new position greatly diminishes his opportunity to work overtime and earn additional pay" (from 60 to 100 hours, versus 5 to 20 hours), which was considered part of his salary in calculating his pension. Id. , ¶ 66. Therefore, his "transfer has a short- and long-term negative financial impact on him." Id. , ¶ 67. As of the date this action commenced, Mercer was still employed part-time with SWAT, but the opportunity for overtime hours has not been as great as when he held a full-time, supervisory position. Id. , ¶ 68.
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. , 318 F.3d 113, 128 (2d Cir. 2003) (citing Moore v. PaineWebber, Inc. , 189 F.3d 165, 169 n.3 (2d Cir. 1999) ) ("[T]he standards for reviewing dismissals granted under 12(b)(1) and 12(b)(6) are identical."). However, as set forth below, there is a key distinction in that evidence outside the pleadings may, if necessary, be considered under Rule 12(b)(1), but not under 12(b)(6), unless the Court converts the motion into one for summary judgment. In the case at bar, no extraneous evidence has been presented.
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 , 201 F.3d 110, 112 (2d Cir. 2000). "In resolving a motion to dismiss under Rule 12(b)(1), the district court must take all uncontroverted facts in the complaint (or petition) as true, and draw all reasonable inferences in favor of the party asserting jurisdiction." Tandon v. Captain's Cove Marina of Bridgeport, Inc. , 752 F.3d 239, 243 (2d Cir. 2014) (citing Amidax Trading Grp. v. S.W.I.F.T. SCRL , 671 F.3d 140, 145 (2d Cir. 2011) (per curiam ) ). "[W]here jurisdictional facts are placed in dispute, the court has the power and obligation to decide issues of fact by reference to evidence outside the pleadings, such as affidavits." Tandon , 752 F.3d at 243 (quoting APWU v. Potter , 343 F.3d 619, 627 (2d Cir. 2003) ). In that case, the "plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence." Aurecchione v. Schoolman Transp. Sys., Inc. , 426 F.3d 635 638 (2d Cir. 2005) (citation omitted). See also Makarova , 201 F.3d at 113. Although the court may "consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue," it "may not rely on conclusory or hearsay statements contained in the affidavits." J.S. ex rel. N.S. v. Attica Cent. Sch. , 386 F.3d 107, 110 (2d Cir. 2004) (citations omitted).
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 , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Under Iqbal , the complaint "must contain sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.' " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. The complaint must provide "more than the unadorned, the-defendant-unlawfully-harmed-me accusation." Id. "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' " Id. (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).
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 facts in the light most favorable to the non-moving party. Trustees of Upstate New York Engineers Pension Fund v. Ivy Asset Mgmt. , 843 F.3d 561, 566 (2d Cir. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2279, 198 L.Ed.2d 703 (2017). "[W]hether a complaint states a plausible claim for relief will [ultimately] ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. When "well-pleaded factual allegations" are present, "a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. Factual disputes do not factor into a plausibility analysis under Iqbal and its progeny.
"Although all allegations contained in the complaint are assumed to be true, this tenet is 'inapplicable to legal conclusions.' " LaMagna v. Brown , 474 F. App'x 788, 789 (2d Cir. 2012) (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ). See also Amaker v. New York State Dep't of Corr. Servs., 435 F. App'x 52, 54 (2d Cir. 2011) (same). Accordingly, the Court is not "bound to accept conclusory allegations or legal conclusions masquerading as factual conclusions." Faber v. Metro. Life Ins. Co. , 648 F.3d 98, 104 (2d Cir. 2011) (quoting Rolon v. Henneman , 517 F.3d 140, 149 (2d Cir. 2008) (internal quotation marks omitted) ). Consequently, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). In sum, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct," dismissal is appropriate. Starr v. Sony BMG Music Entm't , 592 F.3d 314, 321 (2d Cir. 2010) (quoting Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 ).
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." Id. , ¶ 81(a). The constitutional rights that the Defendants allegedly violated were Plaintiff's rights to "be a nonmember, to object to paying for the Union's non-bargaining expenses, and/or to advocate on behalf of the rights of nonmembers." Id. , at ¶ 77. According to Plaintiff, "Defendants were acting under color of state law." Id. , ¶ 75. Moreover, Sergeant Mercer's transfer "greatly diminished his supervisory responsibilities, operational duties, and financial benefits." Id., ¶ 74. He allegedly suffered, and continues to suffer "mental, physical and emotional distress, damage to his personal and professional reputation, loss of enjoyment of life, and other losses." Id.
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 , 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). "The Commissioner emphasizes that the "driving force" behind the doctrine is a desire to ensure that 'insubstantial claims' against government officials [will] be resolved prior to discovery." Doc. 24-1, at 7 (quoting Anderson v. Creighton , 483 U.S. 635, 640 n.2, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (emphasis added) ). In fact, the United States Supreme Court has "stressed the importance of resolving immunity questions at the earliest possible stage in litigation," Hunter v. Bryant , 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991), so that until this "threshold immunity question is resolved, discovery should not be allowed," Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The Commissioner asserts that "it is clear from the facts pled that the individual capacity allegations of [her] wrongdoing ... amount to an insubstantial claim to which qualified immunity must apply." Doc. 24-1, at 7.
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)." Id. (citing Khudan v. Lee , No. 12-CV-8147 RJS, 2015 WL 5544316, at *2 (S.D.N.Y. Sept. 17, 2015) ). Plaintiff therefore urges the Court to "reject the Commissioner's argument that it lacks subject matter jurisdiction under Rule 12(b)(1)." Id. I agree with Plaintiff on this point.
The doctrine of qualified immunity in civil rights cases frequently comes before the Second Circuit. In McKenna v. Wright , 386 F.3d 432 (2d Cir. 2004), the Second Circuit said:
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.
386 F.3d at 435-36 (internal citations omitted). The qualified immunity defense "can be waived either by failure to raise it in a timely fashion or by failure to raise it with sufficient particularity." Stephenson v. Doe , 332 F.3d 68, 76 (2d Cir. 2003) (citation and internal quotation marks omitted).
These considerations may be contrasted with a lack of subject-matter jurisdiction, the element which informs a motion under Rule 12(b)(1). The existence vel non of subject matter jurisdiction presents a fundamental issue; if subject matter jurisdiction is absent, no proceedings can take place in the district court. A qualified immunity defense has nothing to do with that. Accordingly, there is no substance to the Commissioner's contention that the Court may lack subject-matter jurisdiction in this action due to the Commissioner's "qualified immunity defense."
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." Hafer v. Melo , 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). "Thus, on the merits, to establish personal liability in a § 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right." Id. (citation and internal quotation marks omitted). Officials sued in their individual capacities may assert personal immunity defenses like qualified immunity. See Harlow v. Fitzgerald , 457 U.S. 800, 807, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).
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 , 457 U.S. at 818, 102 S.Ct. 2727. See also Fabrikant v. French , 691 F.3d 193, 212 (2d Cir. 2012) ; Locurto v. Safir , 264 F.3d 154, 162-63 (2d Cir. 2001). "Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Fabrikant , 691 F.3d at 212 (citations and internal quotation marks omitted).
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 , 483 U.S. 635, 638-39, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). In other words, the violation of plaintiff's rights must be so clear that no reasonable public official could have believed that his actions did not violate plaintiff's rights. Anderson , 483 U.S. at 640, 107 S.Ct. 3034. See also, e.g., Cahill v. O'Donnell , 7 F.Supp.2d 341, 350 (S.D.N.Y. 1998). To determine whether qualified immunity bars a particular claim, the court must evaluate the basis of the defendant's conduct.
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." Id. , at 10-11. She points out that "the lawsuit giving rise to this claim does not even include the Commissioner (or DESPP) as a defendant" so "it is not at all clear why the Commissioner would involve herself" in said lawsuit, let alone discriminate or retaliate against Mercer "for his position in a matter in which she has no stake in the outcome." Id. , at 11.
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. Id. (quoting Lynch v. Ackley , 811 F.3d 569, 582 n. 13 (2d Cir. 2016) ).
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. 42 U.S.C. § 1983. " Section 1983 does not create substantive rights," but rather "provides a means to redress the deprivation of a federal right guaranteed elsewhere." Diggs v. Town of Manchester , 303 F.Supp.2d 163, 182 (D. Conn. 2004). Put simply, "[v]iolations of rights thus give rise to § 1983 actions." Shakhnes v. Berlin , 689 F.3d 244, 250 (2d Cir. 2012).
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 , 890 F.3d 386, 394 (2d Cir. 2018) (quoting Cox v. Warwick Valley Cent. Sch. Dist. , 654 F.3d 267, 272 (2d Cir. 2011) ). The first component requires a determination as to "whether the employee spoke as a citizen on a matter of public concern." Montero , 890 F.3d at 395. For speech to be protected by the First Amendment, it must be "on a matter of public concern," which includes speech "relating to any matter of political, social, or other concern to the community." Connick v. Myers , 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). See also Nagle v. Marron , 663 F.3d 100, 106 (2d Cir. 2011).
"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 , 890 F.3d at 395 (quoting Garcetti v. Ceballos , 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) ). However, if the first component exists, the employer must show that it "had an adequate justification for treating the employee differently [based on his or her speech] from any other member of the general public." Id. (quoting Garcetti , 547 U.S. at 418, 126 S.Ct. 1951 ).
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 , 120 F.Supp.3d 206, 216 (D. Conn. 2015) ("Under Garcetti, an employee's speech is not protected at all if she speaks in her capacity as a government employee instead of in her capacity as a citizen.").
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 , 890 F.3d at 393 (citation and internal quotation marks omitted). When a public employee speaks pursuant to his employment responsibilities, "there is no relevant analogue to speech by citizens who are not government employees." Id. at 395 (citation and internal quotation marks omitted).
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." Id. , ¶ 11. "In addition, Plaintiff joined in filing a civil rights lawsuit against the Union and certain state officials for violating [his] First Amendment rights." Id. , ¶ 13. This lawsuit was publicized in several local news media. Id. On or about October 27, 2015, after meeting with Union President Matthews, the Commissioner verbally ordered that Mercer be transferred from his command position with Emergency Services. Id. , ¶ 51. Plaintiff alleges that this transfer was against his will and he had done nothing wrong. Id. , ¶ 52. On the prior day, "[i]n an [alleged] attempt to create a pretext for [the] transfer," Matthews had "filed an institutional grievance against the handling of the Old Saybrook incident, which [Plaintiff] co-supervised." Id. , ¶ 58.
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, and to pursue litigation relating to alleged union misconduct in the courts.
The United States Supreme Court noted in Knox v. Service Employees International Union, Local 1000 , 567 U.S. 298, 132 S.Ct. 2277, 183 L.Ed.2d 281 (2012), that those who choose not to join unions possess the same First Amendment rights as union members to express their views:
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, 175 L.Ed.2d 753 (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.
567 U.S. at 321-22, 132 S.Ct. 2277 (emphasis added).
Most recently, the Supreme Court held in Janus v. American Federation of State, County, & Municipal Employees, Council 31 , --- U.S. ----, 138 S.Ct. 2448, 2486, 201 L.Ed.2d 924 (2018), that "agency-shop arrangements, under which public-sector unions collect from non-members agency or 'fair share' fees, that is, a proportionate share of union dues attributable to the union's activities as the collective-bargaining representative, violate the free speech rights of non-members by compelling them to subsidize private speech on matters of substantial public concern." 32 A.L.R. Fed. 3d Art. 1 (2018). The court in Janus stated:
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.
138 S.Ct. at 2486.
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 , 363 F.3d 89, 102 (2d Cir. 2004) (collecting cases). The right to choose not to associate with, or to resign from an organization, such as a union, invokes basic rights of freedom, a matter of public concern. "The right to associate freely is not mentioned in the text of the First Amendment, but has been derived over time as implicit in and supportive of the rights identified in that amendment." Jacoby & Meyers, LLP v. Presiding Justices of the First, Second, Third & Fourth Departments, Appellate Div. of the Supreme Court of New York , 852 F.3d 178, 185 (2d Cir. 2017).
In particular, the First Amendment includes the "right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends." Boy Scouts of Am. v. Dale , 530 U.S. 640, 647, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000). See also Sanitation & Recycling Indus. v. City of New York , 107 F.3d 985, 996 (2d Cir. 1997) (the "associational freedom" of "expressive association" protects "the right of individuals to associate for purposes of engaging in activities protected by the First Amendment, such as speech, assembly, the exercise of religion, or petitioning for the redress of grievances.").
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 , 718 F.3d 126, 133 (2d Cir. 2013) ("Conditioning public employment on union membership, no less than on political association, inhibits protected association and interferes with government employees' freedom to associate."). "[T]he Second Circuit and courts within and outside of this Circuit have articulated their support of labor union activities as a component of the First Amendment's right to free association." Murray v. Town of Stratford , 996 F.Supp.2d 90, 117 (D. Conn. 2014). See also Wrobel v. Cnty. of Erie , 211 F. App'x 71, 72 (2d Cir. 2007) ("Government employees who are not policymakers have the right not to affiliate with or support a particular party or faction as a condition of employment.") (citing Rutan v. Republican Party of Illinois , 497 U.S. 62, 69, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990) ); Mulhall v. UNITE HERE Local 355 , 618 F.3d 1279, 1287 (11th Cir. 2010) ("Just as '[t]he First Amendment clearly guarantees the right to join a union,' Hobbs v. Hawkins , 968 F.2d 471, 482 (5th Cir. 1992), it 'presupposes a freedom not to associate' with a union, Roberts v. U.S. Jaycees , 468 U.S. 609, 623, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984)".) (some lateral and internal citations omitted).
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 , 564 U.S. 379, 387, 131 S.Ct. 2488, 180 L.Ed.2d 408 (2011) (quoting Sure-Tan, Inc. v. NLRB , 467 U.S. 883, 896-897, 104 S.Ct. 2803, 81 L.Ed.2d 732 (1984) and collecting cases).
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 , 811 F.3d 569, 582 (2d Cir. 2016). In that footnote, the Second Circuit stated:
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 , 811 F.3d at 582 n.13.
However, the court in Lynch also recognized that there may be situations where speech relating to union activity "seeks to communicate to the public or to advance a political or social point of view beyond the employment context," Id. at 582 (discussing Clue v. Johnson , 179 F.3d 57, 61 (2d Cir. 1999) ). Under such circumstances, e.g. , "retaliation solely for union activity," protection from retaliation applies. Id. (quoting Clue , 179 F.3d at 61 ).
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. Id. (citing De Jonge v. Oregon , 299 U.S. 353, 364, 57 S.Ct. 255, 81 L.Ed. 278 (1937) and Vaher v. Town of Orangetown , 916 F.Supp.2d 404, 432-33 (S.D.N.Y. 2013) ).
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 , 180 F.3d 42, 48 (2d Cir. 1999). Alternatively, where a plaintiff does not allege that he is a member of one of these protected classes, an equal protection claim may be based on a "class of one" theory. However, Engquist v. Oregon Dep't of Agric. , 553 U.S. 591, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008), eliminated class-of-one claims for government employees, such as Mercer, holding such claims to be unavailable as a matter of law when the government makes discretionary decisions concerning government employment. 553 U.S. at 606-07, 128 S.Ct. 2146.
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. , 916 F.Supp.2d 404, 432-33 (S.D.N.Y. 2013) (allowing Fourteenth Amendment liberty interest claim to proceed, finding that "[t]his broad concept of liberty includes the right to free speech"); Williams v. Walter Ford , No. 3:14-CV-1181 (VAB), 2015 WL 8490910, at *6 (D. Conn. Dec. 10, 2015) (recognizing that "[t]he range of liberty interests protected by the Fourteenth Amendment includes the right to free speech" and permitting Fourteenth Amendment due process claim to proceed) (citing, inter alia, Procunier v. Martinez , 416 U.S. 396, 418, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974) ). See also Nat'l Ass'n for Advancement of Colored People v. State of Ala. ex rel. Patterson , 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) ("It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.").
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." Id. , at 19.
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."). Therefore, the fact that Mercer was promoted after the alleged protected speech and association with nonmembers does not negate the allegations that the Commissioner transferred him on October 27, 2015, after meeting with Union President Matthews, in retaliation against Mercer's resignation from the Union and continuing advocacy against it. Doc. 1, ¶ 51. In discovery, the facts regarding causation and/or the Commissioner's motive in making the transfer may be developed. On the face of the Complaint, the Court cannot conclude that causation does not and cannot exist. On a motion to dismiss, "[i]t is sufficient to allege facts from which a retaliatory intent on the part of the defendants reasonably may be inferred." Soundview Associates v. Town of Riverhead , 725 F.Supp.2d 320, 340 (E.D.N.Y. 2010) (citing Gagliardi v. Vill. of Pawling , 18 F.3d 188, 195 (2d Cir. 1994) ).
"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 , 996 F.Supp.2d 90, 121-22 (D. Conn. 2014) (quoting Lomotey v. Connecticut Dep't of Transp. , No. CIV. 3:05CV1711(PCD), 2009 WL 82501, at *11 (D. Conn. Jan. 12, 2009), aff'd sub nom. Lomotey v. Connecticut-Dep't of Transp. , 355 F. App'x 478 (2d Cir. 2009) ). "In this Circuit, an inference of causation is defeated (1) if the allegedly retaliatory [action] took place at a temporal remove from the protected activity; or (2) if there was an intervening causal event...." Murray , 996 F.Supp.2d at 122 (quoting Yarde v. Good Samaritan Hosp. , 360 F.Supp.2d 552, 562 (S.D.N.Y. 2005) ).
In the present action, there is less than one year between the protected activities and the retaliatory action. Although there are eleven and one-half months between Plaintiff's resignation from the Union (November 14, 2014) and the Commissioner's transfer of Plaintiff out of his SWAT Operations Supervisor position (October 27, 2015), there are only five days from the date the Commissioner allegedly learned that Plaintiff had resigned from the Union (October 22, 2015) and the transfer; and there is only one day between the closed-door meeting between the Commissioner and Matthews (on October 26, 2015) and the transfer.
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." Id. , ¶ 51.
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 , 997 F.Supp.2d 1291, 1301 (N.D. Ga. 2014) for proposition that "police officer's off duty, private display of controversial symbol, accompanied by publication of personal political [beliefs] on election of President Obama, [was] deemed appropriate grounds for demotion and transfer despite officer's First Amendment right to do so"). The Commissioner thus asserts that, under the test in Pickering v. Board of Education of Township High School District 205, Will County , 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), the test applied in Duke , she could "properly ... take action, regardless of whether plaintiff's Union issues constituted a matter of public concern, because she had an [overriding] interest in preventing the speech from impeding the [Police] Department's functions."
Doc. 24-1, at 14 (citation and internal quotation marks omitted).
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. ----, 134 S.Ct. 2618, 2642, 189 L.Ed.2d 620 (2014) (quoting Pickering , 391 U.S. at 568, 88 S.Ct. 1731 ). See also Janus v. Am. Fed'n of State, Cty., & Mun. Employees, Council 31 , --- U.S. ----, 138 S.Ct. 2448, 2471, 201 L.Ed.2d 924 (2018).
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 , 718 F.3d 126, 133 (2d Cir. 2013) ("Conditioning public employment on union membership, no less than on political association, inhibits protected association and interferes with government employees' freedom to associate. It is therefore subject to the same strict scrutiny, and may be done only "in the most compelling circumstances." ") (quoting Rutan v. Republican Party of Illinois , 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990) ).
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. On a Rule 12(b)(6) motion to dismiss, the Court assesses the legal sufficiency of the complaint, Kopec v. Coughlin , 922 F.2d 152, 155 (2d Cir. 1991), considering only the factual allegations therein, documents attached to that pleading as exhibits or incorporated by reference, matters of which judicial notice may be taken, and documents upon which Plaintiff relied in bringing suit.
Brass v. Am. Film Tech. , Inc. 987 F.2d 142, 150 (2d Cir. 1993). The Court accepts as true and construes favorably the plaintiff's factual allegations in the complaint and the supporting documentation filed with it. Scheuer v. Rhodes , 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).
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 , 7 F.Supp.2d at 350 (due to minimal discovery, construing summary judgment motion as 12(b)(6) motion to dismiss and holding that Superintendent McMahon and Chief Inspector Fitzgerald of New York State Police were not entitled to qualified immunity where Plaintiff police officers were allegedly transferred into unwanted positions and/or denied promotions and requested transfers as a result of their efforts to investigate and oppose corruption within the State Police). Count One may proceed against the Commissioner in her individual capacity for damages.
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 , 440 U.S. 332, 341, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) and collecting cases). The Court construes that statement as a request for dismissal of the § 1983 claim against her for damages in her official capacity.
The Eleventh Amendment immunity to which a state official is entitled in a § 1983 action depends on the capacity in which the official is sued-i.e. , whether that official is being sued in his or her official or individual capacity. Hafer v. Melo , 502 U.S. 21, 27, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). If a § 1983 suit against a state official in his or her official capacity seeks money damages , the state is deemed to be the real party in interest because an award of damages would be paid from the state treasury. Hess v. Port Auth. Trans-Hudson Corp. , 513 U.S. 30, 48-49, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994). Under such circumstances, the action is deemed to be against the State so that the State official is entitled to Eleventh Amendment immunity. See Kentucky v. Graham , 473 U.S. 159, 169, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). See also, e.g., Minotti v. Lensink , 798 F.2d 607, 609 (2d Cir. 1986) ("[W]hen the action is in essence one for the recovery of money from the