The opinion of the court was delivered by: Arthur D. Spatt, United States District Judge
MEMORANDUM OF DECISION AND ORDER
The plaintiff James P. Hennessy ("Hennessy") brings this action against the defendants the City of Long Beach (the "City"), Eugene Camarrato ("Camarrato") and Stephen J. Kohut ("Kohut") (collectively, the "defendants") alleging that they terminated him from his lifeguard job with the City because of his political association with the Republican Party in violation of 42 U.S.C. § 1983, the New York State Civil Rights Law § 40-C(2) and the New York State Executive Law § 291. Presently before the Court is a motion by the defendants pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure to dismiss the complaint for lack of subject matter jurisdiction. In the alternative, the defendants move pursuant to Rules 12(b)(6) and 56 to dismiss the complaint. The defendants also move for attorney's fees and sanctions.
The facts are taken from the complaint unless otherwise noted. The plaintiff is a resident of Long Beach, New York. The City is a governmental subdivision and a municipal corporation of the State of New York. Camarrato, the Democratic Leader of the City of Long Beach, is the Director of Operations for the City. Kohut, a Democratic Committeman, is the Chief of Lifeguards for the City.
Since 1984, the plaintiff has worked as a seasonal lifeguard for the Long Beach Lifeguard Patrol. The lifeguard season runs from Memorial Day to Labor Day. For the balance of the year, the plaintiff has worked as a school teacher for the Hewlett School District. In 1992, the City promoted the plaintiff to lieutenant in the Long Beach Lifeguard Patrol, which rank the plaintiff held through 2001.
In winter 2001, the plaintiff decided to seek the nomination of the Republican Party for City Council in the November 2001 election. Before Memorial Day 2001, the plaintiff requested a leave of absence for the upcoming summer season to campaign for the election. Camarrato and Kohut denied his request even though such requests are permitted under the collective bargaining agreement (the "CBA") and are routinely granted.
Several weeks into the summer 2001 season, the plaintiff aggravated a pre-existing back condition and went on medical leave with the knowledge and consent of the defendants. In early August 2001, the plaintiff's doctor advised him that he could return to work. By letter dated August 2, 2001, plaintiff's counsel informed the City that the plaintiff was prepared to return to his job but the City never responded.
By letter dated February 15, 2002, plaintiff's counsel informed the City that the plaintiff was prepared to work in the spring 2002. By letter dated May 15, 2002, Kohut advised the plaintiff that he was never granted medical leave in 2001 and as such his request to return to his lifeguard job for the summer of 2002 was denied. The complaint alleges that Kohut's letter is false and serves as a pretext for firing the plaintiff for "exercising his constitutional rights."
The complaint alleges three causes of action against the defendants. The first claim is for terminating the plaintiff's employment with the City based on his political beliefs and ideologies in violation of 42 U.S.C. § 1983. The second claim is for conditioning employment decisions on political associations and beliefs in violation of the due process clause of the United States Constitution. The third claim is for actions allegedly in direct violation of New York State Civil Rights Law § 40-C(2) and New York State Executive Law § 291.
The defendants now move pursuant to Rule 12(b)(1) to dismiss the complaint for lack of subject matter jurisdiction. In the alternative, the defendants move pursuant to Rules 12(b)(6) and 56 to dismiss the complaint. The defendants also move for attorney's fees and sanctions. Except for setting forth the standard of review for a Rule 12(b)(6) motion, the plaintiff does not address the arguments in the defendants' motion.
Rule 12(b)(1) provides the standard of review for motions to dismiss for lack of subject matter jurisdiction. Under Rule 12(b)(1), a court may consider affidavits and other material beyond the pleadings to resolve the jurisdictional question. Robinson v. Gov't of Malaysia, 269 F.3d 133, 141 n. 6 (2d Cir. 2001); Antares Aircraft, L.P. v. Fed. Republic of Nigeria, 948 F.2d 90, 96 (2d Cir. 1991), vacated on other grounds, 505 U.S. 1215 (1992); Exch. Nat'l Bank of Chicago v. Touche Ross & Co., 544 F.2d 1126, 1130 (2d Cir. 1976). Under Rule 12(b)(1), a court must accept as true all material factual allegations in the complaint, but will not draw inferences favorable to the party asserting jurisdiction. Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998); Atl. Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992). Hearsay statements contained in affidavits may not be considered. Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986). The parties have submitted affidavits and other material in support of their respective positions. The Court will consider this material to the extent it is relevant to the issue of jurisdiction.
The defendants argue that the complaint must be dismissed for lack of subject matter jurisdiction because the provisions of the CBA are not a proper subject for this Court. The Court disagrees.
A district court has jurisdiction over "all civil actions arising under the Constitution, laws or treaties of the United States." 28 U.S.C. § 1331. There is federal question jurisdiction "where a well-pleaded complaint `establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.'" Greenberg v. Bear, Stearns & Co., 220 F.3d 22, 25 (2d Cir. 2000) (quoting Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 27-28, 103 S.Ct. 2841 (1983)). Under the well-pleaded complaint rule, "federal jurisdiction must be found from what necessarily appears in the plaintiff's statement of his own claim . . ., unaided by anything alleged in anticipation of avoidance of defenses which is thought the defendant may interpose." West 14th Street Commercial Corp. v. 5 West 14th Owners Corp., 815 F.2d 188, 194 (2d Cir. 1987) (citing Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S.Ct. 724 (1914)).
The complaint alleges that the defendants terminated him from his lifeguard job with the City because of his affiliation with the Republican Party. This allegation raises a claim under the First Amendment to the United States Constitution. See Vezzetti v. Pellegrini, 22 F.3d 483, 486-87 (2d Cir. 1994) ("First Amendment rights are violated when a person holding a nonpolicymaking position is dismissed from employment for political reasons."). As such, the complaint invokes federal question jurisdiction. See Ford v. Reynolds, 316 F.3d 351, 352 (2d Cir. 2003) ("Federal question jurisdiction is proper [where] . . . claims [brought] pursuant to the United States Constitution and 42 U.S.C. § 1983."); Jensen v. Farrell Lines, Inc., 625 F.2d 379, 381-82 (2d Cir. 1980) (noting federal question jurisdiction exists where ...