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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


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 PART.


  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. ¶¶ 48-49.)

  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 ...

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