United States District Court, D. Connecticut
RULING ON DEFENDANT DORA B. SCHRIRO'S MOTION TO
DISMISS [DOC. 24] AND THE UNION DEFENDANTS' MOTION TO
DISMISS [DOC. 36]
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE.
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,
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,
"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., ¶¶
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.
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
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.
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.
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.
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.
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.
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
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.
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."
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.
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," Mathews
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.,
Standard for Review
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.
Dismissal Under Rule 12(b)(1), Fed.R.Civ.P. - Lack of
Subject Matter Jurisdiction
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
Dismissal Under Rule 12(b)(6), Fed.R.Civ.P.
- Failure to State A Claim
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 (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 (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S 544, 570
(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. The complaint must provide "more than the
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).
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, 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. 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
all allegations contained in the complaint are assumed to be
true, this tenet is 'inapplicable to legal
conclusions.'" LaMagna v. Brown, 474
Fed.Appx. 788, 789 (2d Cir. 2012) (quoting Iqbal,
556 U.S. at 678). See also Amaker v. New York State
Dep't of Corr. Servs., 435 Fed.Appx. 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 (citing
Twombly, 550 U.S. at 555). 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).
Count One - § 1983 Violation of First and Fourteenth
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.
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 (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 (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 (1991), so that until this "threshold immunity
question is resolved, discovery should not be allowed,"
Harlow v. Fitzgerald, 457 U.S. 800, 818 (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.
Standard Applicable to Commissioner's
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.
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.
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
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
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).
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
Doctrine of Qualified Immunity - Individual
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.
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
(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 (1982).
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. 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).
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 (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. 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
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.,
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)).
the Commissioner questions whether union membership or, more
specifically, the lack thereof, constitutes a protected class
under the Fourteenth Amendment. The Court examines these
Violation of First and Fourteenth
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).
First Amendment - Freedom of Speech
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.
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 (1983). See also Nagle v. Marron,
663 F.3d 100, 106 (2d Cir. 2011).
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 (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).
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
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).
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., ¶
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.
United States Supreme Court noted in Knox v. Service
Employees International Union, Local 1000, 567
U.S. 298 (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, ...