United States District Court, S.D. New York
June 2, 2004.
MILDRED MARTINEZ, Plaintiff, -against- STEVEN SANDERS, individually and in his official capacity as Assemblyman for the 74th Assembly District of the State of New York, Defendant
The opinion of the court was delivered by: RICHARD CASEY, District Judge
OPINION & ORDER
Mildred Martinez ("Plaintiff) sues her former employer, New York
State Assemblyman Steven Sanders ("Defendant"), alleging that she was
terminated in violation of the: (1) First Amendment to the U.S.
Constitution; (2) Free Speech Clause of the New York State Constitution;
(3) Employee Retirement Income Security Act of 1974 ("ERISA"); and (4)
Equal Protection Clause of the New York State Constitution. Plaintiff
also seeks various forms of injunctive relief, including reinstatement to
her position.*fn1 Defendant now moves to dismiss the complaint pursuant
to Federal Rules of Civil Procedure 12(b)(2) and (6) and to strike
allegedly immaterial and impertinent matter from the complaint pursuant
to Federal Rule of Civil Procedure 12(f). For the reasons set forth
below, Defendant's motion is GRANTED IN PART AND DENIED IN
For purposes of this motion, the Complaint's factual allegations are
accepted as true and all inferences are drawn in Plaintiff's favor. See Connolly v.
McCall, 286 F.2d 122, 125 (2d Cir. 2001).
Plaintiff has worked as a political activist in New York City since
1980. (Second Amended Complaint [Compl] ¶ 8.) During the course of
her political career, Plaintiff developed an "extensive political
network . . . consisting of voters and street campaigners" in the Lower
East Side. (Id.) Plaintiff worked for Assemblyman Sheldon
Silver from 1979 until 1995. (Id. ¶¶ 9, 17.) In 1995, after
a redrawing of political district lines, Plaintiff requested a transfer
to Defendant's office so that she could continue to serve the Lower East
Side. (Id. ¶ 17.) On September 5, 1995, Defendant hired
Plaintiff as a full-time employee.*fn2 (Id. ¶¶ 17-18;
Employer's Report of Work-Related Accident/Occupational Disease, Ex. A to
Defendant's Reply Memorandum.)
Plaintiff alleges that Defendant requires his employees to support only
the political candidates that he endorses. (Compl. ¶¶ 6, 14, 30, 127.)
Plaintiff further alleges that Defendant threatens his employees with
termination and loss of their pension rights if they refuse to support
and campaign for his chosen political candidates. (Id. ¶
23.) Plaintiff alleges that to this end, Defendant required her to use vacation and sick time, as well as weekends, to
participate in campaign activities for his chosen candidates.
(Id. ¶ 24.) These campaign activities included soliciting
voters by phone, campaigning in the community, and handing-out flyers.
(Id. ¶¶ 25, 33.)
In 2001, Mark Green and Fernando Ferrer both sought the Democratic
nomination for New York City mayor. (Id. ¶¶ 37-39, 42.)
Defendant, who supported Green, asked his employees to lobby and campaign
for Green's nomination. (Id. ¶¶ 38-39.) Defendant wanted his
employees to recruit Hispanic political activists in the Lower East Side
to support Green's mayoral candidacy. (Id. ¶ 39.) Despite
the fact that Plaintiff informed Defendant that she intended to support
Ferrer, Defendant pressured her to campaign for Green. (Id.
¶¶ 42, 46.) When Plaintiff informed Defendant that she would not
support Green because she was strongly committed to the Ferrer campaign,
Defendant told her that he would not force her to campaign for Green, but
that she had to refrain from criticizing him. (Id. ¶¶
On May 8, 2001, Plaintiff injured her wrist in a job-related accident.
(Id. ¶ 50.) Due to the injury, she was unable to return to
work until October 2001. (Id. ¶ 57.) While absent from
work, Plaintiff campaigned on Ferrer's behalf. (Id. ¶¶
54-57.) For example, she recruited one-hundred members of the Puerto
Rican community to support Ferrer and lobbied members of a
community-based political organization, the Village Democratic Club, to
support Ferrer. (Id. ¶¶ 54-56.) Plaintiff alleges that
Defendant has significant influence over the Village Democratic Club.
(Id. ¶ 54.)
When Plaintiff returned to work on October 2, 2001, Defendant fired
her. (Id. ¶¶ 58-59, 63.) Plaintiff alleges that Defendant
was upset that she had publically supported Ferrer and asked Defendant if
she had considered her job when she decided to support him.
(Id. ¶ 59.) Defendant told Plaintiff that she had
"embarrass[ed] the elected officials of this district" and "ruined the
political street operations for Mark Green." (Id.)
On July 19, 2002, Plaintiff filed her complaint. On October 25, 2002,
Plaintiff filed a Second Amended Complaint alleging that when Defendant
terminated her employment he violated her federal and state free speech
rights, ERISA, and New York State's equal protection guarantees.
Plaintiff also sought reinstatement to her position and to enjoin
Defendant from what she alleges is the illegal practice of coercing
employees to campaign for candidates that Defendant supports. The
complaint contained eight additional claims, which as stated below, have
been abandoned. Defendant denies that he terminated Plaintiff because of
her political activities and affiliations. (Memorandum of Law in Support
of Defendant's Motion to Dismiss [Def.'s Mot.] at 8.) Defendant argues,
however, that even assuming that her speech was the basis of her
termination, Plaintiff's claims should be dismissed. (Id.)
I. Motion to Dismiss Standard
A court may dismiss a complaint for failure to state a claim if it
appears beyond doubt that the plaintiff can prove no set of facts in
support of a claim which would entitle the plaintiff to relief. See
Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In considering a motion
to dismiss, the Court must take as true all the facts stated in the
complaint and "draw all reasonable inferences in the plaintiff's favor."
Jackson Nat'l Life Ins, v. Merrill Lynch & Co.,
32 F.3d 697, 700 (2d Cir. 1995). As such, "a complaint should not be dismissed
simply because a plaintiff is unlikely to succeed on the merits."
Baker v. Cuomo, 58 F.3d 814, 818 (2d Cir. 1995).
II. Abandoned Claims
In her Second Amended Complaint, Plaintiff brings twelve claims against
Defendant relating to her alleged wrongful termination. The Defendant moved to dismiss
all twelve claims pursuant to Federal Rules of Civil Procedure 12(b)(2)
and (6). Plaintiff opposed the motion with respect to only six claims.
Plaintiff failed to oppose dismissal of a federal claim alleging racial
discrimination in violation of 42 U.S.C. § 1981 and claims under: (1)
N.Y. Executive Law § 296(1)(a); (2) New York City Administrative Code
§ 8-107(1)(a); (3) New York Labor Law §§ 201-d and 740; and (4)
New York Election Law §§ 17-154 and 17-156. Plaintiff also failed to
oppose dismissal of her claims which alleged a common-law prima facie
Because Plaintiff did not address Defendant's motion to dismiss with
regard to these claims, they are deemed abandoned. See Dineen v.
Stramka, 228 F. Supp.2d 447, 454 (S.D.N.Y. 2002) (finding that
plaintiff's failure to address claims in opposition papers "enabl[es] the
Court to conclude that [plaintiff] has abandoned them");
Anti-Monopoly, Inc. v. Hasbro, Inc., 958 F. Supp. 895, 907 n.11
(S.D.N.Y. 1997) (holding that plaintiff's failure to provide any argument
opposing defendant's motion "provides an independent basis for dismissal"
and "constitutes abandonment of the issue"); see also Taylor v. City
of New York, 269 F. Supp.2d 68, 75 (E.D.N.Y. 2003) ("Federal courts
may deem a claim abandoned when a party moves for summary judgment on one
ground and the party opposing summary judgment fails to address the
argument in any way.").
III. "Immaterial" and "Impertinent" Information in the
Defendant moves to strike ten paragraphs of the complaint on the ground
that they contain immaterial and impertinent allegations against one of
the Defendant's colleagues. Rule 12(f) provides that, "Upon motion made by a party before responding to a
pleading . . . the court may order stricken from any pleading
any . . . immaterial, impertinent, or scandalous matter." A court has
inherent authority to strike matters which it deems improper. See
Sierra v. United States, No. 97 Civ. 9329, 1998 WL 599715, at *9
(S.D.N.Y. Sept. 10, 1998). Plaintiff has failed to oppose Defendant's
timely Rule 12(f) motion. Therefore, the Court may grant Defendant's
motion on default. See, e.g., Loew v. Kolb, No. 03 Civ. 5064,
2003 WL 22077454, at *1 (S.D.N.Y. Sept. 8, 2003) (granting restraining
order in light of respondent's failure to oppose motion); Garcia v.
NYPD PCT 41, 1997 WL 563809, at *3 (S.D.N.Y. Sept. 10, 1997)
("Plaintiff's failure to file a memorandum of law or any response
whatsoever, standing alone, provides me sufficient basis to grant
defendants' motions to dismiss."); Singh v. New York City Dep't of
Corrs., 1995 WL 733560, at *1 (S.D.N.Y. Dec. 12, 1995) (stating that
because plaintiff did not respond to defendants' motion nor sought an
extension, defendants' motion for summary judgment and/or judgment on the
pleadings should be granted on default); Fed. Trade Comm'n v. Metro.
Communications Corp., No. 94 Civ. 0142, 1995 WL 540050, at *1
(S.D.N.Y. Sept. 11, 1995) (granting Rule 12(f) motion on default).
However, the allegations in paragraphs 9 and 17 concerning Plaintiff's
prior employment with Assemblyman Sheldon Silver and how she came to work
for Defendant contain appropriate background evidence that is properly
admissible and relevant. Defendant's motion to strike therefore is
granted only as to paragraphs 10, 12-16, 35, and 40, which have no
possible relation to the claims against Defendant.
IV. Free Speech Claims
Plaintiff argues that Defendant violated her right to free speech
guaranteed under the U.S. and the New York State Constitutions when
Defendant terminated her because she publicly supported and campaigned for a political candidate whom Defendant
did not support. The Court will not separately address Plaintiff's state
claim because "[f]ree speech claims under the First Amendment and the New
York State Constitution are subject to the same standards and the Court's
analysis applies to both [claims]." Housing Works, Inc. v.
Turner, 179 F. Supp.2d 177, 199 n.25 (S.D.N.Y. 2001). Plaintiff
argues that she is entitled to constitutional protection from dismissal
because the First Amendment protects her political speech and
The issue before the Court, then, is whether the First Amendment
prohibits a state politician from firing an employee based on the
employee's public support for a political candidate. A similar issue was
presented in Gordon v. Griffith, 88 F. Supp.2d 38 (E.D.N.Y.
2000). In that case, the court held as a matter of first impression that,
"legislative aides occupying positions in which their public speech may
reasonably be associated with, or mistaken for, that of the legislator's
may constitutionally be dismissed for their public speech."
Gordon, 88 F. Supp.2d at 57-58.
Gordon principally relied on the Supreme Court's decisions in
Elrod v. Burns, 427 U.S. 347 (1976) and Branti v.
Finkel, 445 U.S. 507 (1980), both of which involved patronage
dismissals.*fn4 In Elrod, the Supreme Court held that
patronage dismissals should be limited to "policymaking positions" and
that only those positions are exempt from First Amendment protection.
Elrod, 427 U.S. at 372. Four years later, the Court modified
Elrod in the Branti decision. There the Court held
that the proper inquiry to determine whether an employee's speech is
protected is not whether the person has the title of "policymaker," but
"whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective
performance of the public office involved." Branti, 445 U.S. at
518. To that end, courts should inquire as to whether the "position may
be appropriately considered political." Id.
The plaintiff in Gordon, a "Community Relations Director" for
a New York State Assemblyman, was fired for participating in and speaking
at a press conference and protest rally against police brutality. These
events were held outside a police precinct within the Assemblyman's
legislative district. Gordon, 88 F. Supp.2d at 40-41. The
Assemblyman terminated the plaintiff's employment because of her
participation in the protest and for opposing his "friends" at the police
precinct. Id. Under these facts, Gordon held that a
state assemblyman could constitutionally terminate an aide in order "to
protect his relationship with the local police officers and with his
electorate generally." Id. at 58. As the court in
Gordon stated, "The close affiliation of aides and the
legislators they serve generates a strong public perception of
association between the two" which "leads the public to assume that their
views are identical." Id. at 50. Based on the fact that
constituents could reasonably understand the legislative aide's speech to
be an expression of the Assemblyman's position, Gordon held
that the aide's speech was not protected by the First Amendment. See
id. at 57-58. Because elected representatives are expected to
account for their policy views and legislative actions, "[m]aintaining a
clear voice between legislators and constituents is a significant
government interest, warranting restrictions on the speech of political
aides where that speech may create misperceptions about the legislator's
views." Id. at 49.
Gordon made clear that its holding did not apply to all
legislative aides, but was limited only to those legislative aides who
hold a political position and serve the legislator in a capacity in which
the aide's voice could be mistaken for the voice of the elected official.
See id. at 57 ("Staffers holding positions that are so connected to a legislator's lawmaking
and representation roles that constituents might reasonably associate
their speech for that of the legislator's are not entitled to First
Amendment protection from dismissal where political interests and
constituent relations are at issue."). Therefore, to determine if an
aide's speech is protected by the First Amendment, it is essential for
the court to ascertain the precise nature of the aide's position. If, for
instance, the aide holds a clerical or non-political position, the aide's
speech is protected by the First Amendment. See id. at 52 ("To
accord non-clerical legislative aides holding politically sensitive
positions First Amendment tenure for their public speech is
In Gordon, the plaintiff s job title and responsibilities
were undisputed; it was evident from the record that the plaintiff was a
"non-clerical" aide who held a political position. The Gordon
court therefore highlighted the plaintiff's position as the Assemblyman's
"Community Relations Director." The court also found that the plaintiff's
responsibilities included speaking to community leaders and groups "on
behalf of the Assemblyman. See id. at 40. It is for this reason
that the Gordon court characterized the plaintiff as the
Assemblyman's "alter-ego within the district." Id. at 58. The
court therefore concluded that the plaintiff's speech was not protected
because speaking on the Assemblyman's behalf was an essential component
of her job, such that her speech could have been understood to reflect
the Assemblyman's position. See id. at 57.
Here, the record before the Court lacks a detailed or definitive
description of Plaintiff's duties while Defendant employed her.*fn5
Unlike Gordon, the Court cannot say that Plaintiff functioned
as the Assemblyman's "alter-ego" or that she had the responsibility of
speaking to the public on his behalf. Absent information pertaining to
the nature of Plaintiff's position, the Court could only speculate as to
the scope of her job responsibilities (that is, whether her position was
clerical or non-clerical and political or non-political). Without knowing
the precise nature of her employment, the Court cannot make a
determination about whether Plaintiff's campaign activities are protected
under the First Amendment.
Defendant represents that Plaintiff held a political and non-clerical
job. To support this characterization, Defendant, citing to paragraph
nineteen of the Second Amended Complaint, characterizes Plaintiff's job
as communicating with the "Hispanic community on [Defendant's] behalf."
(Def.'s Mot. at 9.) However, this characterization misconstrues the
complaint. The complaint merely states that Plaintiff was the only
Hispanic individual that Defendant employed and makes no mention at all
of the fact that Plaintiff spoke to the Hispanic community on Defendant's
behalf. While it is clear from the complaint that the Plaintiff was a
vocal political activist, it is unclear whether, as part of her job
description, the Defendant expected her to speak to the community on his
behalf and whether constituents could have reasonably associated her
speech with that of Defendant. The precise nature of Plaintiff's
employment a fact dispositive of whether Plaintiff's First
Amendment rights were violated has not yet been definitively
Drawing all factual inferences in Plaintiff's favor, Defendant's motion
to dismiss the free speech claim is denied.
V. ERISA Claim
Plaintiff argues that Defendant terminated her employment in violation
of ERISA. Unlike Plaintiff's First Amendment claims, this claim must be
Title I of ERISA states that it does "not apply to any employee benefit
plan if . . . such plan is a governmental plan." 29 U.S.C. § 1003
(b)(1). ERISA defines "governmental plan" as any "plan established or
maintained for its employees . . . by the government of any State or
political subdivision thereof." Id. § 1002(32). ERISA,
which Congress enacted "to curb abuses which were rampant in tine
private pension system," does not apply to public sector employee
benefit plans. Roy v. Teacher Ins. & Annuity Ass'n,
878 F.2d 47, 49 (2d Cir. 1989).
As a state government employee, Plaintiff was a member of the New York
State and Local Employees' Retirement System, established under Article 2
of the New York Retirement and Social Security Law. This pension plan is
a governmental plan exempt from ERISA's purview. See id at
48-49 (holding that an "Optional Retirement Program" for the State
University of New York was a governmental plan exempt from ERISA
coverage); Clissuras v. Teachers' Ret. Sys., Nos. 02 Civ. 8130,
8138, 2003 WL 1701992, at *4 (S.D.N.Y. Mar. 28, 2003) (holding that
plaintiff's ERISA claims must be dismissed because plaintiff's plan,
which provided benefits to public employees of the State University of
New York, qualified as a governmental plan); Trang v. Local
1549, No. 98 Civ. 5927, 2001 U.S. Dist. LEXIS 12676, at *18 n.1
(S.D.N.Y. Aug. 7, 2001) (holding that because "ERISA does not govern
government plans such as NYCERS [New York City Employees' Retirement
System]. . . even a liberal reading of the complaint would not permit
the court to entertain plaintiff's `ERISA claim'").
For the reasons stated above, the ERISA claim is dismissed.
VI. New York State Equal Protection Claim
Plaintiff argues that Defendant violated her equal protection rights
guaranteed by the New York State Constitution. Unlike the federal
enabling statutes, which permit actions for damages following the
violation of a constitutional right, "[n]o explicit constitutional or
statutory authority sanctions a private right of action for violations of
the New York State Constitution." Wahad v. FBI, 994 F. Supp. 237,
238 (S.D.N.Y. 1998) (citing Brown v. State of New York,
674 N.E.2d 1129, 1137 (N.Y. 1996)). Thus, in order for the Court to
"recognize a damage remedy it must be implied from the Constitution
itself." Brown, 674 N.E.2d at 1137.
In Brown, the New York State Court of Appeals considered an
appeal of a Court of Claims decision, which held that direct actions for
violations of the New York State Constitution are not cognizable in any
state court without some link to a common-law tort. Id. at
1131. The Court of Appeals modified that decision and recognized a
"narrow" private right of action against the State for equal protection
and search and seizure violations of the New York State Constitution. Id.
at 1131, 1138-39, 1141, 1144. Although Brown did recognize a
narrow private right of action for violations of the state constitution,
"it is unavailable where an alternative remedy will adequately protect
the interests at stake." Coakley v. Jaffe, 49 F. Supp.2d 615,
628-29 (S.D.N.Y. 1999) (holding that plaintiff has no right of action
under the New York State Constitution because "any violation of plaintiff
s right to be free from unreasonable searches or seizures can be
vindicated" through plaintiff s viable Fourth Amendment claim): see
also Bath Petroleum Storage, Inc. v. Sovas, 136 F. Supp.2d 52, 58 (N.D.N.Y. 2001) (holding that
Brown was inapplicable and declining to find a private right of
action under the New York State Due Process Clause because "[h]ere,
unlike Brown, Plaintiff's have stated a viable Section 1983
claim against defendants"); Flores v. City of Mount Vernon,
41 F. Supp.2d 439, 447 (S.D.N.Y. 1999) (holding that plaintiff's New York
State Constitutional claims should be dismissed "because no private right
of action exists for violation of the New York State Constitution where a
Plaintiff has alternative damage remedies" under Section 1983);
Wahad, 994 F. Supp. at 240 (holding that "the existence of
alternative damage remedies under Section 1983 obviates the need to imply
a private right of action under the State Due Process Clause");
Martinez v. City of Schenectady, 761 N.E.2d 560, 563 (N.Y.
2001) (declining to extend Brown because the "constitutional
tort claim here is neither necessary to effectuate the purposes of the
State constitutional protections plaintiff invokes, nor appropriate to
ensure full realization of her rights" since the exclusion of evidence
and the reversal of the conviction was itself an adequate remedy);
Lyles v. State, 752 N.Y.S.2d 523, 526-27 (Ct.Cl. 2002)
(holding that the "narrow" ruling in Brown does not give the
plaintiff an implied constitutional tort remedy since "the alleged wrongs
could have been redressed by timely interposed common law tort claims");
Remley v. State of New York, 665 N.Y.S.2d 1005, 1009 (Ct.Cl.
1997) (holding that "no useful purpose would be served by implying a
remedy under the [state] Constitution" because "the common-law remedy
vindicates the right protected by the constitutional provision"). Here,
Plaintiff could have alleged discrimination damage claims under the Equal
Protection Clause of the Fourteenth Amendment and employment
discrimination claims under the New York State Executive Law and the New
York City Administrative Code.
Plaintiff nonetheless asks the Court to find a private cause of action
against a government official in his individual capacity, an issue that Brown
never addressed. The Brown court did not specifically state
whether suits could be maintained against government officials in their
individual capacities and no court has so extended Brown's holding. In
fact, the Court is not aware of any reported case to extend
Brown beyond its "narrow" holding that a private right of
action could be implied against the State in the Court of Claims for
violation of the Equal Protection and Search and Seizure Clauses of the
New York State Constitution. See, e.g., Coakley, 48 F. Supp.2d
at 628-29; Flores, 41 F. Supp.2d at 447; Martinez,
761 N.E.2d at 563. Likewise, the Court declines to extend Brown
to this case. Given that alternative remedies could have adequately
protected Plaintiff, the Court does not imply a private remedy under the
New York State Equal Protection Clause. Accordingly, Plaintiff's state
constitutional equal protection claim is dismissed.*fn7
VII. Eleventh Amendment
The only remaining claims are Plaintiff's requests for reinstatement
and other injunctive relief and her free speech claims. The Court now
considers, in turn, the extent to which the Eleventh Amendment allows
these claims to proceed.
The Eleventh Amendment provides, `The Judicial power of the United
States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of
any Foreign State." Although literally construed the Eleventh Amendment
speaks of actions against the state by citizens of another state, it has
long been recognized that the Eleventh Amendment also covers suits
against states and agents of the state brought by their own citizens.
See Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003);
Dube v. State Univ. of New York, 900 F.2d 587, 594 (2d Cir.
Defendant argues that Plaintiff may not sustain her request for
reinstatement in light of the Eleventh Amendment. However, reinstatement
is a form of prospective equitable relief. See Bankers v. Travelers
Cos., 180 F.3d 358, 365 (2d Cir. 1999); Padilla v. Metro-North
Commuter R.R., 92 F.3d 117, 121-22 (2d Cir. 1996). Prospective
relief is not barred by the Eleventh Amendment. See Edelman v.
Jordan, 415 U.S. 651, 677 (1974) (holding that retroactive and not
prospective injunctive relief is barred under the Eleventh Amendment);
Dwyer v. Regan, 777 F.2d 825, 836 (2d Cir. 1985)
("Reinstatement is purely prospective injunctive relief that orders the
state official to return the former employee to the state's
payroll. . . .[A]n order that reinstatement be granted or that a
reinstatement hearing be conducted is the sort of prospective relief that
is not barred by the Eleventh Amendment."); see also Russell v.
Dunston, 896 F.2d 664, 668 (2d Cir. 1990). Accordingly, the Eleventh
Amendment does not bar Plaintiff's reinstatement claim.*fn8 See,
e.g., Komlosi v. New York State Office of Mental Retardation &
Developmental Disabilities, 64 F.3d 810, 814 (2d Cir. 1995);
Campbell v. City Univ. Construction Fund, No. 98 Civ. 5463,
1999 WL 435132, at *2 (S.D.N.Y. June 25, 1999).
Plaintiff has sued Defendant for violation of his free speech rights
under the U.S. and New York State Constitutions in both his official and
individual capacities. Whether the Eleventh Amendment bars these claims
depends initially on the capacity in which he is sued. As for the claim
premised on a violation of federal law, Defendant has moved to limit
Plaintiff's claims for monetary damages against him in his official
capacity. "The Eleventh Amendment bars the award of money damages against
state officials in their official capacities." Ford, 316 F.3d
at 354; see Green v. Mansour, 474 U.S. 64, 69 (1985). To the
extent that Defendant is sued for monetary damages in his official
capacity, the relief is barred by the Eleventh Amendment. Because the
Eleventh Amendment does not extend to the free speech claims against
Defendant in his individual capacity, Plaintiff may ultimately recover
against Defendant in his individual capacity. See Dube, 900
F.2d at 595.
Likewise, as for the free speech claim premised on state constitutional
law, Plaintiff may only recover monetary damages against Defendant in his
individual capacity. The Eleventh Amendment deprives the federal courts
of jurisdiction over state law claims against state officials in their
official capacities. See Ying Jing Gan v. City of New York,
996 F.2d 522, 529 (2d Cir. 1993); see also Pennhurst State School &
Hosp. v. Halderman, 464 U.S. 89, 106 (1984). On the other hand,
"[t]he jurisdictional limitation recognized in Pennhurst does
not apply to an individual capacity claim seeking damages
against a state official, even if the claim is based on state law."
Bad Frog Brewery, Inc. v. New York State Liquor Auth.,
134 F.3d 87, 102 (2d Cir. 1998): see also Pennhurst 465 U.S. at 111 n.21.
The Eleventh Amendment does not innoculate Defendant from being sued in
his individual capacity on either the federal or state claim. See
Dube, 900 F.2d at 595. The Court therefore must examine the Defendant's claims of qualified immunity.
VIII. Qualified Immunity
Defendant has asserted the affirmative defense of qualified immunity as
a shield from being sued in his individual capacity. Qualified immunity
may shield a government official performing, as was Defendant, a
discretionary, as opposed to a ministerial, function. See Harlow v.
Fitzgerald, 457 U.S. 800, 817-18 (1982); Lennon v. Miller
66 F.3d 416, 420 (2d Cir. 1995). Whether Defendant is entitled to
qualified immunity depends on a two-part algorithm. First, the Court must
take the facts in the light most favorable to the plaintiff and determine
whether the plaintiff has alleged a constitutional violation under
current law. See Saucier v. Katz, 533 U.S. 194, 202 (2001).
Second, the Court must then ask whether the defendant's conduct was
objectively reasonable with reference to clearly established law at the
time of the conduct in question. See id. at 232-33. The Supreme
Court has made it clear that the threshold inquiry under a qualified
immunity defense is the existence or nonexistence of a constitutional
right. `The law might be deprived of this explanation were a court simply
to skip ahead to the question whether the law clearly established that
the officer's conduct was unlawful in the circumstances of the case."
Id. at 201. Therefore, the qualified immunity inquiry must
proceed in proper sequence and first resolve whether the complaining
conduct violated a constitutional right.
As presently developed, the record fails to answer this question. The
evidence before the Court does not precisely define the nature of
Plaintiff's employment, thus precluding the Court from determining
whether Plaintiff's campaign activities were protected under the First
Amendment. See supra Part IV. If Plaintiff served as a clerical
aide, then her political speech and affiliations are protected by the
First Amendment. See Gordon, 88 F. Supp.2d at 57. On the other
hand, if she served in a non-clerical role in which she campaigned throughout
the community, she would be afforded no First Amendment protection from
termination. Id. Concededly, the qualified immunity defense
overlaps with Defendant's claims on the merits. See, e.g.,
Dube. 900 F.2d at 601 (Mahoney, generally concurring).
Nonetheless, at this juncture the Court must determine that
Defendant cannot successfully erect a qualified immunity defense.
For the foregoing reasons, all claims are dismissed except for
Plaintiff's free speech claims against Defendant in his individual
capacity and Plaintiff's requests for injunctive relief. Additionally,
Defendant's motion to strike paragraphs 10, 12-16, 35, and 40 from the
complaint is granted. The parties are directed to appear before the Court
for a conference on June 18, 2004 at 9:30 a.m. to address the status of