The opinion of the court was delivered by: Conner, Senior D.J.
Plaintiff Susan Brescia brings this action against defendant Ceil Sia pursuant to 42 U.S.C. § 1983 for violation of her First Amendment rights and for breach of contract. The parties were involved in an earlier action in which plaintiff claimed that defendant terminated plaintiff's employment in retaliation for her First Amendment and union activities. That action was dismissed pursuant to stipulation. Plaintiff now alleges that defendant provided her with an unfavorable employment reference in retaliation for plaintiff's having brought the earlier lawsuit and in violation of the terms of the settlement agreement. Defendant moves to dismiss pursuant to FED. R. CIV. P. 12(b)(1) for lack of subject matter jurisdiction. Defendant argues that plaintiff has not stated a First Amendment claim, and the Court therefore lacks jurisdiction over what is essentially a breach-of-contract case between non-diverse parties. For the following reasons, the motion is denied.
The following facts are taken from the Complaint and are assumed to be true for purposes of this decision.
Plaintiff was formerly an employee of the town of Greenburgh, New York ("Greenburgh" or the "Town"). Defendant was, at all times relevant to this action, the Clerk of the Town Justice Court. (Complt. ¶ 3.) In September 2005, plaintiff brought suit against the Town and defendant, alleging that defendant, acting on behalf of the Town, terminated plaintiff's employment in retaliation for her protected First Amendment and union activities. (Id. ¶¶ 5-6.) The action was dismissed pursuant to a settlement agreement in November 2006. (Id. ¶ 7.) The settlement provided in relevant part: "With regard to any future requests for an employment reference concerning [plaintiff], the Town will provide a neutral letter of reference providing [plaintiff's] position, date of employment and salary. The parties will make no disparaging statements or remarks against the other." (Id.)
The current dispute arises out of defendant's alleged breach of this provision. Plaintiff was unable to secure comparable employment between the time of her termination in March 2005 and the date of the settlement agreement. (Id. ¶ 9.) In late May or early June 2007, plaintiff applied for the position of Assistant Court Clerk of the Village of Port Chester, New York ("Port Chester" or the "Village"). (Id. ¶¶ 12-13.) Plaintiff interviewed for the position with the Village Manager, William F. Williams ("Williams"). (Id. ¶¶ 12-14.) Williams told plaintiff that she had interviewed well and would be offered the position. (Id. ¶ 15.)
Before plaintiff received a formal job offer, however, a representative of Port Chester contacted defendant as part of a background check on plaintiff. (Id. ¶¶ 18-19.) Plaintiff alleges that defendant "made deprecating and disparaging comments about plaintiff to one or more employees of" Port Chester in response to this inquiry. (Id. ¶ 20.) Thereafter, plaintiff was not offered the position for which she had applied. (Id. ¶ 21.) When plaintiff asked Williams why she did not get the job, he "stated he knew all about plaintiff's situation in Greenburgh and characterized as 'awkward' her prior employment history with Greenburgh." (Id. ¶ 24.) Plaintiff claims that defendant made the "deprecating comments" about plaintiff in retaliation for plaintiff's earlier lawsuit. (Id. ¶ 26.)
In deciding a motion to dismiss for lack of subject matter jurisdiction pursuant to FED. R. CIV. P. 12(b)(1), a court must accept as true all of the material factual allegations in the complaint. Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). The plaintiff bears the burden of showing that the Court has subject matter jurisdiction. Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996). Subject matter jurisdiction "must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." Drakos, 140 F.3d at 131 (citing Norton v. Larney, 266 U.S. 511, 515 (1925)).
II. Defendant's Arguments for Dismissal
Plaintiff claims that defendant violated her First Amendment rights by providing a negative employment reference in retaliation for plaintiff's earlier lawsuit. (See Complt. ¶¶ 26, 29.) Defendant argues that this claim fails because defendant was not acting under color of state law*fn1 when she provided the reference and the reference was not an adverse employment action. (See Def. Mem. Supp. Mot. Dismiss at 3-4.) Without the First Amendment claim, this would be a breach-of-contract case between non-diverse parties, and this Court would lack subject matter jurisdiction. (See id. at 1.)
A. Action Under Color of State Law
To establish liability under section 1983, a plaintiff "must show (a) that the defendant is a person acting under the color of state law, and (b) that the defendant caused the plaintiff to be deprived of a federal right." Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004) (internal quotation marks and citations omitted). "The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power 'possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). A person ...