Mercer v. Dora B. Schriro, Comm'r of the Dep't of Emergency Servs. & Pub. Prot., the Conn. State Police Union, Inc.

Decision Date28 August 2018
Docket NumberCivil Action No. 3:16-CV-329 (CSH)
Citation337 F.Supp.3d 109
Parties Joseph MERCER, Plaintiff, v. Dora B. SCHRIRO, Commissioner of the Department of Emergency Services and Public Protection, the Connecticut State Police Union, Inc., and Andrew Matthews, President of Connecticut State Police Union, Inc., Defendants.
CourtU.S. District Court — District of Connecticut

Alyssa K. Hazelwood, Pro Hac Vice, W. James Young, Legal Defense Foundation, Springfield, VA, Marc P. Mercier, Beck & Eldergill, Manchester, CT, for Plaintiff.

Stephanie A. Wainwright, Dressler Strickland, LLC, Erik Thebin Lohr Office of the Attorney General Jeffrey L. Ment, The Ment Law Group, LLC, Hartford, CT, Mark Edward Dumas, The Dumas Law Firm, Milford, CT, for Defendant.


CHARLES S. HAIGHT, JR., Senior United States District Judge


Plaintiff Joseph Mercer brought the instant civil rights action pursuant to 42 U.S.C. § 1983, against Dora B. Schriro, the Commissioner of his employer, the State of Connecticut Department of Emergency Services and Public Protection ("DESPP"); the Connecticut State Police Union, Inc. ("CSPU"); and Andrew Matthews, President of the CSPU. Plaintiff is and was at all relevant times a sergeant with the State Police and alleges that he suffered an adverse employment action by all defendants in this action "when, acting under color of state law, the Commissioner transferred him from his position as Operations Sergeant with Emergency Services to the Office of Counter Terrorism at the request of the CSPU and/or Matthews." Doc. 1, ¶ 7, ¶ 74.

In his Complaint, Plaintiff includes two Counts, which he asserts against all defendants. These Counts include: (1) "Violation of 42 U.S.C. § 1983 and the United States Constitution," alleging violations of Mercer's rights to free speech and association under color of state law, and (2) "Violation of Conn. Gen. Stat. § 31-51q," alleging a state statutory violation by infringing on Mercer's "exercise of his freedom of speech and associational rights under the First and Fourteenth Amendments to the United States Constitution, and under Article 1, Sections 4 and 14 to the Constitution of the State of Connecticut." Doc. 1, ¶¶ 73-81, 82-88.

In his "Prayer for Relief," Plaint requests declaratory judgment that his rights have been violated under the First and Fourteenth Amendments of the United States Constitution and under federal and state statutes, 42 U.S.C. § 1983 and Conn. Gen. Stat. § 31-51q. Doc. 1, Prayer for Relief, ¶ A. He also requests that the Court impose a permanent injunction: (1) prohibiting Defendants "from retaliating against [him] for exercising his First Amendment rights;" and (2) requiring the Commissioner to "transfer Plaintiff back into the full-time position of Operations Sergeant." Id. , ¶ B. In addition, Plaintiff seeks compensatory damages and/or equitable relief, including restitution and payment of overtime pay he would have received had he remained in his Operations Sergeant position after October 28, 2015. Id. , ¶ C. He also requests "punitive damages," stemming from Defendants' alleged "malicious, intentional, and/or reckless or callous indifference" to his constitutional rights. Id., ¶ D. Finally, Plaintiff seeks "nominal exemplary damages under 42 U.S.C. § 1983, plus interest," and "costs, including reasonable attorneys' fees" under 42 U.S.C. § 1988 and/or Conn. Gen. Stat. § 31-51q. Id., ¶¶ E.-F.

A. Pending Motions

Pending before the Court are two motions to dismiss by the Defendants under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The first motion is by Commissioner Dora R. Schriro (the "Commissioner"), asserting that Plaintiff's complaint should be dismissed in its entirety as to her because: (1) Plaintiff's claim under 42 U.S.C. § 1983 in Count One is "barred by the Eleventh Amendment (official capacity) and qualified immunity (individual capacity)," and (2) Plaintiff's claim under Conn. Gen. Stat. § 31-51q in Count Two fails to state a claim upon which relief may be granted. Doc. 24-1, at 1.

The second motion to dismiss was brought by defendants CSPU and Andrew Matthews (collectively herein the "Union Defendants"), arguing that Plaintiff's Complaint should be dismissed in its entirety against them because: (1) the claim under 42 U.S.C. § 1983 in Count One fails to establish that the Union Defendants acted under color of state law and "otherwise fails to state a claim upon which relief can be granted"; and (2) Plaintiff's state law claim under Conn. Gen. Stat. § 31-51q in Count Two fails to state a claim upon which relief may be granted. Doc. 36, at 1. The Court resolves both motions to dismiss in this Ruling.

B. Factual Background

The following facts are taken from the allegations contained in Plaintiff's Complaint. Both the Commissioner and the Union Defendants admittedly "dispute many of these ‘facts,’ " including attributions of motive to them. Doc. 24-1, at 1; Doc. 36-1, at 1. However, as set forth infra , for the purpose of ruling on a Rule 12(b)(1) and/or (b)(6) motion, the Court must accept as true all well-pled factual allegations in the complaint.

Plaintiff Joseph Mercer brought this civil rights action pursuant to 42 U.S.C. § 1983 against his employer, the State of Connecticut Department of Emergency Services and Public Protection ("DESPP"). He is and was at all relevant times a sergeant with the State Police. Doc. 1, ¶ 7.

Dora B. Schriro is the Commissioner of the DESPP and its commanding officer. Id. , ¶ 8. She is "responsible for developing policies, enforcing and executing all rules and regulations, and overseeing the general supervision of all the various departments, offices, and units within the DESPP and the State Police division." Id. She is sued in both her official and individual capacities. Id.

Plaintiff alleges that on November 14, 2014, he resigned his membership in the CSPU (herein the "Union"). Id. , ¶ 11. At various times since November 2014, Plaintiff informed his coworkers of their right to resign from the Union. Id. , ¶ 12.

At the time he resigned his Union membership, Plaintiff was "employed full time as a resident State Police Trooper for Colchester, Connecticut," who "supervised the daily operations of the local police department, comprised of twelve municipal police officers." Id. , ¶ 15. In addition to this full-time position, Plaintiff was employed part-time in the State Police Tactical Unit ("SWAT"), which is part of the Emergency Services division within the State Police. Id. , ¶ 16. Both of these positions are in the NP-1 bargaining unit represented by the Union.

Thereafter, on March 14, 2015, Plaintiff and three other former Union members filed a civil rights lawsuit against the Union and various Connecticut state officials for violating their First Amendment rights. Id. , ¶ 13.1 He alleges that this lawsuit was "publicized in several local news media." Id.

On April 30, 2015, Major Mike Darcy, the senior commanding officer for Emergency Services, appointed Mercer to the full-time supervisory position of SWAT "Operations Sergeant," Id. , ¶ 17. That transfer became effective on May 15, 2015. Id. Operations Sergeant is an NP-1 bargaining unit position. Id.

On June 22, 2015, Union President Andrew Matthews filed an institutional grievance regarding Plaintiff's appointment, claiming that the appointment violated the collective bargaining agreement ("CBA") between the Union and the State of Connecticut for the NP-1 bargaining unit because no selection process was used. Id. , ¶ 21. "[A]ll of Sgt. Mercer's predecessors were appointed to the position of Operations Sergeant at the sole discretion of the commanding officer of Emergency Services." Id. , ¶ 22. None of said predecessors went through a "selections process" but CSPU "never filed institutional grievances over [these] appointments." Id. Unlike Mercer, "all of his predecessors were union members." Id.

On October 9, 2015, SWAT received a distress call from the local police chief in Old Saybrook, Connecticut, seeking assistance with an armed suspect barricaded at a hotel. Id. , ¶ 23. Lieutenant Ed Bednarz, Executive Officer for Emergency Services, was the acting commander and Mercer was co-commander of the SWAT response team on that day. Id. , ¶ 24. Once at the scene, Bednarz and Mercer coordinated with the local police chief and State Police Central District Commander, Ed Gould, to handle the barricade situation. Id. , ¶ 24. Communicating with the armed suspect failed so Bednarz, Mercer, and the "other leadership devised an extraction plan." Id. , ¶ 25. All SWAT leaders and members on the scene prior to the operation's execution approved the plan. Id. , ¶ 27. When the plan was implemented, however, the barricaded suspect pointed a gun at one SWAT team member so two other SWAT team members shot the suspect dead. Id. , ¶ 28.

On or about October 16, 2015, pursuant to the CBA, Union President Matthews and certain high ranking State Police officials held a labor-management committee meeting. Id. , ¶ 36. Although the meeting was "originally scheduled to discuss body cameras for the state troopers," Matthews used the meeting to accuse Mercer of "fixing" the selection process for new SWAT candidates. Id. Mercer alleges that such an accusation was false. Id. , ¶ 37.

A few days later, on October 19, 2015, the Union held a meeting at its hall with only select members of SWAT and certain high ranking State Police officials invited. Id. , ¶ 41. At the meeting, Matthews raised concerns about "the tactical decisions made at the Old Saybrook shooting [and fatality] incident," which Mercer had co-supervised. 2

Id. , ¶ 42. Matthews allegedly "also attacked the appointments of nonmembers Mercer and Konow to their respective full-time positions within Emergency Services."3 Id. , ¶ 43. Matthews did not attack the appointments of Mercer's and Konow's...

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