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Mercer v. Schriro

United States District Court, D. Connecticut

August 28, 2018





         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.[1] 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," 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.

         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.[2] Id., ¶ 42. Matthews allegedly "also attacked the appointments of nonmembers Mercer and Konow to their respective full-time positions within Emergency Services.[3] 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.[4] 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.


         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 (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)).[5]"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 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).

         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, 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 progeny.

         "Although 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).[6]

         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 (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.

         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."[7] 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).

         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. 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 (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 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 (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 (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).[8]

         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."[9] 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.[10]

         The 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, ...

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