The opinion of the court was delivered by: John T. Elfvin S.U.S.D.J.
Plaintiff Mary Bailey alleges that the Town of Evans and the members of its Town Board violated her First Amendment rights of political affiliation and free speech as well as her Equal Protection rights when they failed to hire her for the position of Assessor and instead hired defendant Jeanne Z. Chase ("Chase").*fn2 Bailey contends that Chase was not qualified for the position but was hired based on her political affiliations, which the Town Board members preferred to Bailey's political affiliations. Bailey seeks declaratory and injunctive relief as well as compensatory and punitive damages.
On June 16, 2005 Defendants filed the instant Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("FRCvP"). Defendants argue that Bailey cannot state a claim for violation of her First Amendment rights because the position of Town Assessor is a discretionary appointment within the New York State Civil Service and, as Jeanne Chase was a qualified candidate, Bailey cannot state any claim for violation of the Civil Service law.*fn3 They also argue that no preference was shown based on political affiliation as both Bailey and Chase are Republicans.*fn4 Finally, defendants argue that Bailey's Equal Protection claim must be dismissed because she has failed to allege membership in a protected class.*fn5 Bailey makes no argument with respect to her Equal Protection claim but argues that - taking her allegations as true - she has alleged sufficient facts to state a claim for violation of her First Amendment rights. The Court heard oral argument on July 27, 2005 at which time the Motion was deemed submitted.
When considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("FRCvP"), the Court "must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Phelps v. Kapnolas, 308 F.3d 180 (2d Cir. 2002). The motion should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Accordingly, the Court is not concerned with whether plaintiff may ultimately succeed on her claims but must "assess the legal feasibility of the complaint." Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998). When materials outside the Complaint are presented to the Court on such a motion, the Court may either reject the extraneous materials or, upon notice to all parties, convert the motion to one for summary judgment and then consider all such materials. See FRCvP 12(b). Such materials have been presented to the Court in this instance and the Court declines to consider them at this time.
A. Claims against Defendant Chase
While Defendants' Motion did not seek to dismiss the claims as against Chase specifically, the Court must consider such claims first in light of the utter lack of legal basis for the same. Bailey alleges that both she and Chase applied for the position of Evans Town Assessor and that Chase, rather than Bailey, was awarded that position even though Chase was not qualified. Assuming those allegations to be true, Bailey has failed to state any claim for relief against Chase.
It is axiomatic that, in order to hold an individual liable for the deprivation of federal rights under 42 U.S.C. §1983, a plaintiff must show that the defendant is a "person" acting "under color of state law" and that the defendant caused the plaintiff to be deprived of a federal right. See Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004) (citing Monroe v. Pape, 365 U.S. 167 (1981)). Here, Bailey alleges only that Chase was hired for a position to which Bailey contends she should have been appointed. There is no allegation that Chase played any role whatsoever in the decision to hire herself and not Bailey. Thus Chase has not "acted" in an manner whatsoever, much less "under color of state law." Therefore, any and all claims against Chase will be dismissed.
Bailey alleges that her First Amendment rights were violated because she was not selected for the Assessor position because of her political beliefs.
Defendants argue that the candidate selected - Chase - was qualified and that political affiliation played no role in the decision.
The United States Supreme Court has held that a public employer may not base hiring decisions on political affiliation. In Rutan v. Republican Party of Illinois, 497 U.S. 62, 78 (1990), the Court stated that, "[u]nder our sustained precedent, conditioning hiring decisions on political belief and association plainly constitutes an unconstitutional decision, unless the government has a vital interest in doing so."
Therefore, assuming true the facts alleged in the Complaint - namely, that Bailey was qualified for the position, that Chase was not qualified for the position and that Bailey was not selected for the position because Defendants preferred Chase's political affiliations -, Bailey has stated a claim for the violation of her First Amendment rights. Defendants' argument - that political affiliation played no role in the selection of the successful candidate - raises an issue of fact which ...