Free Opening Brief in Support - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE SERGEANT KATHLEEN RIDDELL, Plaintiff, v. THOMAS P. GORDON, individually and in his official capacity; SHERRY FREEBERY, individually and in her official capacity; COLONEL JOHN L. CUNNINGHAM, RETIRED, individually; COLONEL DAVID F. MCALLISTER, individually and in his official capacity; and NEW CASTLE COUNTY, a municipal corporation Defendants. ) ) ) ) ) Civil Action No.: 04-1201-MPT ) ) ) ) ) ) ) ) ) ) )

DEFENDANTS' MOTION TO DISMISS Defendants, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and the doctrine of qualified immunity, move to dismiss Plaintiff's Amended Complaint in its entirety. The reasons for this request are set forth more fully in Defendants' Opening Brief in Support of Their Motion to Dismiss, filed contemporaneously with this Motion.

YOUNG CONAWAY STARGATT & TAYLOR, LLP /s/ William W. Bowser William W. Bowser, Esquire (No. 2239) Margaret M. DiBianca, Esquire (No. 4539) The Brandywine Building 1000 West Street, 17th Floor P.O. Box 391 Wilmington, Delaware 19899-0391 Telephone: (302) 571-6601 Facsimile: (302) 576-3282 E-mail: [email protected] Attorneys for Defendants New Castle County, Sherry Freebery, Thomas P. Gordon, and Colonel David F. McAllister, each in their official capacities

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CHARLES E. BUTLER, ESQUIRE /s/ Charles E. Butler Charles E. Butler, Esquire (Bar I.D. 2349) 1224 North King Street Wilmington, Delaware 19801 Telephone: (302) 655-4100 Facsimile: (302) 655-4212 E-mail: [email protected] Attorneys for Defendants Sherry Freebery, Thomas P. Gordon, and Colonel David F. McAllister, each in their individual capacity and OBERLY JENNINGS & RHODUNDA, P.A. /s/ Kathleen M. Jennings Kathleen M. Jennings, Esquire (Bar I.D. 913) 1220 North Market Street, Suite 710 P.O. Box 2054 Wilmington, Delaware 19899-2054 Telephone: (302) 576-2000 Facsimile: (302) 576-2004 E-mail: [email protected] Attorneys for Defendant Colonel John Cunningham Dated: January 7, 2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE SERGEANT KATHLEEN RIDDELL, Plaintiff, v. THOMAS P. GORDON, individually and in his official capacity; SHERRY FREEBERY, individually and in her official capacity; COLONEL JOHN L. CUNNINGHAM, RETIRED, individually; COLONEL DAVID F. MCALLISTER, individually and in his official capacity; and NEW CASTLE COUNTY, a municipal corporation Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Civil Action No.: 04-1201-MPT

DEFENDANTS' OPENING BRIEF IN SUPPORT OF THEIR MOTION TO DISMISS Young Conaway Stargatt & Taylor, LLP William W. Bowser, Esquire (No. 2239) Margaret M. DiBianca, Esquire (No. 4539) The Brandywine Building 1000 West Street, 17th Floor P.O. Box 391 Wilmington, Delaware 19899-0391 Telephone: (302) 571-6601 Facsimile: (302) 576-3282 E-mail: [email protected] Attorneys for Defendants New Castle County, Sherry Freebery, Thomas P. Gordon, and Colonel David F. McAllister, each in their official capacities and [Signatures continued on following Page]

DB01:2492286.4

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Charles E. Butler, Esquire Charles E. Butler, Esquire (Bar I.D. 2349) 1224 North King Street Wilmington, Delaware 19801 Telephone: (302) 655-4100 Facsimile: (302) 655-4212 E-mail: [email protected] Attorneys for Defendants Sherry Freebery, Thomas P. Gordon, and Colonel David F. McAllister, each in their individual capacity and Oberly Jennings, and Rhodunda, P.A. Kathleen M. Jennings, Esquire (Bar I.D. 913) 1220 North Market Street, Suite 710 P.O. Box 2054 Wilmington, Delaware 19899-2054 Telephone: (302) 576-2000 Facsimile: (302) 576-2004 E-mail: [email protected] Attorneys for Defendant Colonel John Cunningham Dated: January 7, 2008

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TABLE OF CONTENTS Page TABLE OF AUTHORITIES ......................................................................................................... iii NATURE AND STAGE OF THE PROCEEDINGS ......................................................................1 SUMMARY OF THE ARGUMENT ..............................................................................................3 STATEMENT OF FACTS ..............................................................................................................5 A. B. C. Basic Background and Chronology .................................................................................5 The Allegedly Protected Activities..................................................................................7 The Allegedly Adverse Actions.......................................................................................9

ARGUMENT.................................................................................................................................12 I. II. III. A. B. C. IV. A. B. V. A. THE 12(b)(6) STANDARD OF LAW ..............................................................................12 SERIOUS CONSTITUTIONAL QUESTIONS SHOULD NOT BE DECIDED ON THE BASIS OF PLAINTIFF'S SHOTGUN COMPLAINT ...................13 COUNT I FAILS TO ALLEGE AN ACTIONABLE FREE SPEECH CLAIM...............................................................................................................................16 The Free Speech Standard .............................................................................................16 The Campaign-Related Allegations Do Not Constitute a Cognizable Free-Speech Claim .....................................................................................17 The Union-Related Allegations Do Not Constitute a Cognizable Free Speech Claim .........................................................................................................19 COUNT II FAILS TO ALLEGE AN ACTIONABLE RIGHT TO PETITION CLAIM............................................................................................................21 The Right to Petition Standard.......................................................................................21 The Union Grievance-Related Allegations Fail to State a Cognizable Petition Claim .............................................................................................22 COUNT III FAILS TO ALLEGE AN ACTIONABLE ASSOCIATION CLAIM...............................................................................................................................22 The Right to Freedom of Association Standard.............................................................23

DB02:5149731.1

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B. C. VI. VII. A. B. C. VIII. IX. A. B.

The Campaign-Related Allegations Fail to State a Political Association Claim..........................................................................................................23 The Union-Related Allegations Fail to State an Association Claim..............................25 COUNT IV FAILS TO ALLEGE A LEGALLY RECOGNIZED BASIS FOR HER "RIGHT-TO-VOTE CLAIM ...........................................................................28 COUNTS V AND VI FAIL TO ALLEGE A COGNIZABLE EQUAL PROTECTION CLAIM.....................................................................................................30 Plaintiff's Vague and Confusing Allegations Cannot Support an Equal Protection Claim..................................................................................................30 Plaintiff's Claim Fails Under Either of the Two Theories Recognized in the Third Circuit.....................................................................................31 Plaintiff's Cannot Allege the Same Set of Facts in Support of Her Equal Protection Used to Support Her First Amendment Claim...................................32 PLAINTIFF'S ALLEGATIONS RELATING TO THE INDIVIDUAL DEFENDANTS ARE INSUFFICIENT TO IMPOSE LIABILITY..................................34 THE INDIVIDUAL DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY.......................................................................................................................35 Qualified Immunity Is Appropriate Because There Was No Violation of A Constitutional Right...............................................................................36 Qualified Immunity Is Appropriate Because Plaintiff Cannot Present Evidence of a Clearly Established Right at the Time of the Alleged Adverse Actions ...............................................................................................36 1. 2. The History of Garcetti Demonstrates that Employee-Made Speech Was Not Clearly Established .......................................................................................38 Association Claims Have Not Been Extended Beyond the Elrod/Branti Framework ...........................................................................................................39

CONCLUSION..............................................................................................................................40

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TABLE OF AUTHORITIES Cases Anderson v. Creighton, 483 U.S. 635 (1987)............................................................................................................ 39 Baraka v. McGreevey, 481 F.3d 187 (3d Cir. 2007) ............................................................................................... 11 Basile v. Elizabethtown Area Sch. Bd. of Sch. Dirs., 61 F. Supp. 2d 392 (E.D. Pa. 1999) .................................................................................... 29 Bennett v. Murphy, 274 F.3d 133 (3d Cir. 2002) ............................................................................................... 36 Bevis v. Bethune, 232 Fed. Appx. 212 (4th Cir. 2007).................................................................................... 36 Boyd v. Ill. State Police, 384 F.2d 888 (7th Cir. 2004) .............................................................................................. 34 Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192 (10th Cir. 2007) .......................................................................................... 25 Branti v. Finkel, 445 U.S. 507 (1980)...................................................................................................... 22, 24 Brennan v. Norton, 350, F.3d 399 (3d Cir. 2003) .............................................................................................. 17 Cameron v. Seitz, 38 F.3d 264 (6th Cir. 1994) ................................................................................................ 37 Ceballos v. Garcetti, 361 F.3d 1168 (9th Cir. 2004) ............................................................................................ 38 ChemTech Int'l., Inc. v. Chem. Injection Techs., No. 06-3345, 2007 U.S. App. LEXIS 21697 (3d Cir. Sept. 10, 2007) ..................................................... 12 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)............................................................................................................ 31 City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256 (3d Cir. 1998) ............................................................................................... 11

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Competello v. La Bruno, No. 02-664-DRD, 2005 U.S. Dist. LEXIS 27878 (D.N.J. July 12, 2005).................................................. 27, 28 Conley v. Gibson, 355 U.S. 41 (1957).............................................................................................................. 11 D'Angelo v. Sch. Bd., 497 F.3d 1203 (11th Cir. 2007) .......................................................................................... 25 Digene Corp. v. Ventana Med. Sys., Inc., 476 F. Supp. 2d 444 (D. Del. 2007).................................................................................... 12 Eichenlaub v. Twp. of Ind., 385 F.3d 274 (3d Cir. 2004) ............................................................................................... 33 Elrod v. Burns, 422 U.S. 347 (1976)...................................................................................................... 22, 24 Farrell v. Planters Lifesavers Co., 206 F.23d 271 (3d Cir. 2000) ............................................................................................. 17 Fogarty v. Boles, 121 F.3d 886 (3d Cir. 1997) ............................................................................................... 15 Foraker v. Chaffinch, 501 F.3d 231 (3d Cir. 2007) ......................................................................................... 15, 20 Garcetti v. Ceballos, D.C. No. CV-00-1106-AHV (C.D. Cal. 2002) ................................................................... 38 Garcetti v. Ceballos, 126 S. Ct. 1951 (2006)................................................................................................. passim Gibson v. Matthews, 926 F.2d 532 (6th Cir. 1991) .............................................................................................. 29 Glenn v. Barua, No. 06-2289, 2007 U.S. App. LEXIS 25384 (3d Cir. Oct. 30, 2007)....................................................... 32 Grant v. City of Pittsburgh, 98 F.3d 116 (3d Cir. 1996) ................................................................................................. 37 Green v. Barrett, 226 Fed. Appx. 883 (11th Cir. 2007).................................................................................. 36

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Guarnieri v. Duryea Borough, No. 05-1422, 2007 U.S. Dist. LEXIS 84580 (M.D. Pa. Nov. 15, 2007) .................................................. 19 Harlow v. Fitzgerald, 457 U.S. 800 (1982)............................................................................................................ 36 Hill v.Borough of Kutztown, 455 F.3d 225 (3d Cir. 2006) ......................................................................................... 15, 32 Hope v. Pelzer, 536 U.S. 730 (2002)............................................................................................................ 37 Houlihan v. Sussex Tech. Sch. Dist., 461 F. Supp. 2d 252 (D. Del. 2006).................................................................................... 15 Hudson v. Coxon, 149 Fed. Appx. 118 (3d Cir. 2005)..................................................................................... 32 Hynson v. City of Chester, 827 F.2d 932 (3d Cir. 1987) ............................................................................................... 37 Jennings v. City of Stillwater, 383 F.3d 1199 (8th Cir. 2004) ............................................................................................ 33 Johnson v. George, No. 05-157 MPT, 2007 U.S. Dist. LEXIS 42465, (D. Del. June 11, 2007)............................................... 15, 37 Jones v. Del. State Police, No. 02-1637-KAJ, 2006 U.S. Dist. LEXIS 46944 (D. Del. July 11, 2006) ...................................................... 35 Joynes v. Meconi, No. 05-332-GMS, 2006 U.S. Dist. LEXIS 71296 (D. Del. Sept. 30, 2006)..................................................... 36 Kasak v. Village of Bedford Park, No. 06-5119, 2007 U.S. Dist. LEXIS 70281 (N.D. Ill. Sept. 18, 2007) ....................................... 18, 25, 26 Keenan v. City of Phila., 983 F.2d 459 (3d Cir. 1992) ............................................................................................... 31 Knox .v City of Portland, No. 06-459-HA 2006 U.S. Dist. LEXIS 54127 (D. Or. Aug. 3, 2006)......................................................... 33 Larsen v. Senate of the Commonwealth, 154 F.3d 82 (3d Cir. 1998) ........................................................................................... 36, 37

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Levenstein v. Salafsky, 414 F.3d 767 (7th Cir. 2005) .............................................................................................. 32 Magluta v. Samples, 256 F.3d 1282 (11th Cir. 2001) .............................................................................. 12, 13, 14 Maldonado v. City of Altus, 433 F.3d 1294 (10th Cir. 2006) .......................................................................................... 33 McCann v. Winslow Twp., No. 06-3189, 2007 U.S. Dist. LEXIS 93594 (D.N.J. Dec. 20, 2007)....................................................... 17 McKee v. Hart, 436 F.3d 165 (3d Cir. 2006) ............................................................................................... 37 McLaughlin v. Watson, 271 F.3d 566 (3d Cir. 2001) ............................................................................................... 37 Mosca v. Cole, 217 Fed. Appx. 158 (3d Cir. 2006)..................................................................................... 34 Muzslay v. City of Ocean City, 238 Fed. Appx. 785 (3d Cir. 2007)..................................................................................... 15 Nekolny v. Painter, 653 F.2d 1164 (7th Cir. 1981) ............................................................................................ 25 Oest v. Ill. Dep't of Corr., 240 F.3d 606 (7th Cir. 2001) .............................................................................................. 18 Oliveria v. Twp. of Irvington, 41 Fed. Appx. 555 (3d Cir. 2005)....................................................................................... 31 Opdycke v. Stout, 223 Fed. Appx. 125 (3d Cir. 2007)..................................................................................... 14 P.J. v. Utah, No. 05-00739, 2006 U.S. Dist. LEXIS 40393, (D. Utah 2006) .................................................................. 29 Perna v. Twp. of Montclair, No. 05-4464, 2006 U.S. Dist. LEXIS 70518, (D.N.J. Sept. 28, 2006) ..................................................... 20 Phillips v. City of Dawsonville, No. 06-16031, 2007 U.S. App. LEXIS 21730, (11th Cir. Sept. 11, 2007) ................................................. 38

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Piscottano v. Murphy, No. 05-3716, 2007 U.S. Dist. LEXIS 29541 (2d Cir. Dec.21, 2007) ....................................................... 28 Pollack v. City of Phila., 2007 U.S. Dist 11624, (E.D. Pa. 2007)............................................................................... 32 Pominansky v. JARJ Constr. Corp., No. 07-21530, 2007 U.S. Dist. LEXIS 73467, (S.D. Fla. Oct. 2, 2007)..................................................... 15 Pottorf v. City of Liberty, No. 06-0246-W-NKL, 2007 US Dist. LEXIS 70803 (W.D. Mo. Sept. 24, 2007) .................................................. 20 Price v. Thompson, 380 F.3d 209 (4th Cir. 2004) .............................................................................................. 16 Purze v. Village of Winthrop Harber, 286 F.3d 452 (7th Cir. 2002) .............................................................................................. 32 Red v. Potter, 211 Fed. Appx. 82 (3d Cir. 2006)....................................................................................... 16 Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988) ............................................................................................. 19 Romer v. Evans, 517 U.S. 620 (1996)............................................................................................................ 29 Rutan v. Republican Party of Ill., 497 U.S. 62 (1990).............................................................................................................. 22 Rynn v. Jaffe, 457 F. Supp. 2d 22 (D.D.C. 2006)...................................................................................... 29 San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir. 1994) cert. denied, 513 U.S. 1082 (1995) ..................................................................................... 20 Saucier v. Katz, 533 U.S. 194 (2001)............................................................................................................ 36 Savokinas v. Pittston Twp., No. 06-00121, 2007 U.S. Dist. LEXIS 66979 (M.D. Pa. Sept. 11, 2007) .................................................. 11

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Sherwood v. Mulvihill, 113 F.3d 396 (3d Cir. 1997) ............................................................................................... 37 Siegert v. Gilley, 500 U.S. 226 (1991)............................................................................................................ 36 Smith v. Frye, 488 F.3d 263 (4th Cir. 2007) .................................................................................. 22, 23, 24 Strategic Income Fund, LLC v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293 (11th Cir. 2002) .............................................................................. 12, 13, 14 Thomas v. Indep. Twp., 463 F.3d 285 (3d Cir. 2006) ............................................................................................... 33 Thomas v. Town of Hammonton, 351 F.3d 108 (3d Cir. 2003) ............................................................................................... 18 Van Compernolle v. City of Zeeland, No. 06-1904, 2007 U.S. App. LEXIS 16735 (6th Cir. July 8, 2007)................................................. passim Vannatta v. Keisling, 151 F.3d 1215 (9th Cir. 1999) ............................................................................................ 29 Vargas v. Calabrese, 634 F. Supp. 910 (D.N.J. 1986) .......................................................................................... 29 Walsifer v. Borough of Belmar, No. 04-5393-DRD, 2006 U.S. Dist. LEXIS 75601 (D.N.J. Oct. 12, 2006)........................................................ 32 Watkins v. Bowden, 105 F.3d 1344 (11th Cir. 1997) .......................................................................................... 33 Weintraub v. Bd. of Ed. of NYC, 489 F. Supp. 2d 209 (E.D.N.Y. 2007) ................................................................................ 25 Whiting v. Tunica County, 222 F. Supp. 2d 809 (N.D. Miss. 2002).............................................................................. 31 Williams v. Riley, 481 F. Supp. 2d 582 (N.D. Miss. Mar. 9, 2007) ................................................................. 16 Wilson v. Layne, 526 U.S. 603 (1999)............................................................................................................ 37

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Wilton v.Mayor & City Council of Balt., 772 F.2d 88, 90 (4th Cir. 1985) .......................................................................................... 39 Statutes 19 Del. C. § 1607 ...................................................................................................................... 7 42 U.S.C. § 1973..................................................................................................................... 29 Other Authorities Fed. R. Civ. P. 12(b)(6)................................................................................................... 2, 1, 19 Fed. R. Civ. P. 8(a, e).............................................................................................................. 13 Constitutional Provisions U.S. Const. amend. I, cl. 6 ...................................................................................................... 20 U.S. Const. amend. I. ............................................................................................................ 4, 5 U.S. Const. amend. IX .............................................................................................................. 5 U.S. Const. amend. XIV ........................................................................................................... 6

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NATURE AND STAGE OF THE PROCEEDINGS Plaintiff Kathleen Riddell filed the present matter in this Court on August 27, 2004.1 Former District Court Judge Jordan stayed the case on December 15, 2004.2 Plaintiff amended her complaint while the case was stayed.3 The parties consented to lift the stay, which the Court ordered did on December 17, 2007.4 The parties also agreed to a briefing schedule with the understanding that Defendants wished to move the Court for dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and the doctrine of qualified immunity. The present Motion is filed in accordance with that briefing schedule.5 The Amended Complaint names Thomas P. Gordon, Sherry Freebery, and Colonel David F. McAllister as defendants in their individual and official capacities.6 Retired Colonel John L. Cunningham is named only in his individual capacity (collectively, with Gordon, Freebery, and McAllister, the "Individual Defendants").7 New Castle County ("NCC" or the "County"), is also a named defendant. Plaintiff's claims are derivative of her employment as a sworn police officer in the NCC Police Department ("NCCPD"). Plaintiff's Amended Complaint includes six Counts. The first three Counts are constitutional retaliation claims.8 Counts I, II, and III allege violations of the Free Speech,9

1 2 3 4 5 6 7 8 9

(D.I. 1). (D.I. 13). (D.I. 15). (D.I. 24, 25). (D.I. 21). (D.I. 15). (D.I. 15 at ¶6). (D.I. 15 at ¶¶110, 113, 122); U.S. Const. amend. I. (D.I. 15 at ¶¶99-110).

1

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Petition,10 and Association11 Clauses, respectively. Count IV asserts a "right-to-vote" claim under the First, Ninth and Fourteenth Amendments.12 And Counts V and VI assert equalprotection claims under the Fourteenth Amendment.13 Defendants have jointly filed a Motion to Dismiss in which they seek dismissal of Plaintiff's Amended Complaint in its entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and, alternatively, on the grounds of qualified immunity as to the Individual Defendants. This is Defendants' Opening Brief in Support of Their Motion.

10 11 12 13

(D.I. 15 at ¶¶111-13). (D.I. 15 at ¶¶114-22). (D.I. 15 at ¶¶137, 123-37). (D.I. 15 at ¶¶138-44; 145-49).

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SUMMARY OF THE ARGUMENT Plaintiff's Amended Complaint should be dismissed for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and the doctrine of qualified immunity. On the face of the pleadings, it is clear that: 1. The Amended Complaint is an extreme example of the typical shotgun complaint. It is filled with meaningless recitations of boilerplate language setting forth legal standards. 2. Once the onerous task of sweeping aside all of the unnecessary and unrelated factual allegations has been completed, the pleading is a barren shell unable to support even one of the six Counts it contains. 3. Plaintiff's repeated failure to allege any facts that could plausibly connect the Defendants with the alleged adverse actions requires dismissal of her claims. 4. Even if the Amended Complaint is not stricken for its glaring pleading omissions, it still does not state a claim on any of the numerous grounds alleged. 5. Count I does not allege an actionable claim under the Free Speech Clause. Nothing in Plaintiff's allegations relating to her campaign-related speech can be said to extend beyond conclusory allegations and unsupported accusations. Further, her claim based on her union-related speech is clearly barred by the recent Garcetti decision. Speech made to other coworkers in the context of the workplace about work-related disputes is the quintessential employee-made speech unprotected by the First Amendment. 6. Count II fails to assert a claim under the Petition Clause for the same reason. By filing grievances on behalf of other union members, Plaintiff did not trigger the protections of the Petition Clause. 7. Count III fails to allege an actionable claim for freedom of association. Plaintiff's support of her husband does not constitute activity that is constitutionally protected from 3

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retaliation by someone other than her husband's political opponent. The Fourth Circuit addressed this very issue only one week before the present Motion was filed. Similarly, the portion of her Association claim that relates to her union activities will suffer the same fate as her union speech pursuant to Garcetti. 8. Count IV fails to allege even a legally recognized basis upon which Plaintiff could bring a claim for "right-to-vote." 9. Counts V and VI merely attempt to reallege the same facts that she previously asserted as the basis for her failed speech claims. The Third Circuit prohibits retaliation claims simply realleged as Equal Protection claims. Additionally, Plaintiff's allegations fail to meet the standards for an Equal Protection claim as articulated by the Third Circuit because she does not allege membership in a protected class. 10. The claims alleged against Individual Defendants McAllister and Cunningham fail as a matter of law because they are not specifically alleged to have participated in any of the adverse actions. 11. Finally, the Individual Defendants are entitled to qualified immunity because Plaintiff cannot establish that the law was well-settled in any of the areas in dispute.

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STATEMENT OF FACTS14 Plaintiff Kathleen Riddell is a police officer in the NCCPD. She has been employed with the NCCPD since 1988 and currently holds the rank of Senior Sergeant.15 For the purposes of the present Motion the relevant time period is July 2002 through February 2004. During that time, Plaintiff alleges that she participated in constitutionally protected activities and, as a result, was subjected to various adverse employment actions. A. Basic Background and Chronology

During the relevant period, Defendant Gordon was the NCC Executive and Defendant Freebery was the NCC Chief Administrative Officer. As Colonel, Defendant Cunningham was the highest-ranking officer of the NCCPD until his retirement in June 2003.16 Defendant McAllister became Colonel on July 29, 2003.17 Each of the six Counts asserted in Plaintiff's Amended Complaint are based on the same set of factual allegations. As discussed in more detail below, Plaintiff claims that she engaged in two categories of protected activities. The first group of alleged activities occurred in the summer of 2002 during the local primary elections (the "2002 Election").18 Plaintiff's husband ran for a seat on the NCC Council ("County Council"). Plaintiff contends that she supported her husband in his campaign efforts.

14

For the limited purposes of this Motion, Defendants take all facts and allegations directly from the Amended Complaint. Defendants do so in compliance with Rule 12(b)(6) but make no representation as to the validity of any portion of Plaintiff's allegations. (D.I. 15 at ¶¶3, 39). (D.I. 15 at ¶6). (D.I. 15 at ¶7).

15 16 17 18

(D.I. 15 at ¶16); Plaintiff's husband's campaign began in July 2002 and ended when he was defeated by Patty Powell in the Democratic primary election on September 7, 2002. (D.I. 15 at ¶¶25, 30, 100, 110, 122 & 24).

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The second group of alleged activities relate to Plaintiff's involvement with the NCCPD's police officers' union, FOP Lodge 5 ("Lodge 5" or the "Union"). Plaintiff served as the Union's Grievance Representative from March 2001 until March 5, 2002, when she was appointed Chair of the Grievance Committee. At the same time, she was also elected to the Union's Board of Directors.19 Plaintiff alleges that, in response to her participation in the 2002 Election and her involvement with the Union, she was denied: (1) promotion to lieutenant;20 (2) a transfer to the NCCPD's Southern Patrol Unit;21 (3) leave;22 and (4) training.23 As alleged in the Amended Complaint, the basic chronology occurred as follows: Plaintiff engaged in protected activity over a period of eighteen months, from March 2001 through September 7, 2002: · March 2001 - March 5, 2002: Protected Activity (Union) · July ­ Sept 7, 2002: Protected Activity (Election) Plaintiff claims that she was subjected to six employment actions beginning three weeks after the last alleged instance of protected activity. She claims that these six actions occurred at random intervals for eighteen months. Three of the employment actions occurred prior to Defendant McAllister's promotion and three occurred thereafter. · September 24, 2002: Adverse Action (Promotion #1) · October 9, 2002: Adverse Action (Leave) · May 12, 2003: Adverse Action (Promotion #2)
19

(D.I. 15 at ¶¶1, 36, 141). The Amended Complaint does not indicate whether Plaintiff currently holds any official position in the Union, or the duration of her prior positions. (D.I. 15 at ¶¶45-49, 77) (on September 24, 2002 and May 12, 2003). (D.I. 15 at ¶¶71, 75) (on February 9, 2004). (D.I. 15 at ¶¶70, 73, 78) (on October 9, 2002, and January 4, 2004). (D.I. 15 at ¶¶73, 74) (on August 13, 2003, and January 4, 2004).

20 21 22 23

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· July 29, 2003: McAllister Promoted · August 13, 2003: Adverse Action (Training) · Sept 2003: Adverse Action (Promotion #3) · January 4, 2004: Adverse Action (Leave & Training) · February 9, 2004: Adverse Action (Transfer) B. The Allegedly Protected Activities

Count I is brought pursuant to the Free Speech Clause of the First Amendment.24 In all, Plaintiff alleges no more than four sentences of factual allegations in support of the required instances of protected speech. With respect to the 2002 Election, Plaintiff claims only that she "spoke out on issues of public concern," including "the desirability of the election of her husband" to County Council.25 Her allegations of protected speech with respect to the Union are equally deficient. Plaintiff claims that she engaged in protected speech when she "educated FOP members on their rights concerning workers' compensation issues" and when she "prepared and circulated a memorandum summarizing the rights of officers."26 Finally, she claims that she "spoke[] out against the Police Department's mistreatment of its officers."27 These four sentences comprise every instance of speech as alleged by Plaintiff in her Amended Complaint. Count II is brought pursuant to the Petition Clause.28 Plaintiff alleges that she engaged in protected petitioning activity by "filing and prosecuting grievances on behalf of FOP members"29

24 25 26 27

(D.I. 15 at ¶110); U.S. Const. amend. I. (D.I. 15 at ¶100). (D.I. 15 at ¶37).

(D.I. 15 at ¶38); but see (D.I. 15 at ¶1) (alleging that Plaintiff spoke out about the "mistreatment and abuse" of union members by "defendants;" (D.I. 15 at ¶100) (speech relating to the mistreatment of police officers by "the administration"). (D.I. 15 at ¶¶111-13); U.S. Const. amend. I. (D.I. 15 at ¶¶141, 1, 37, 100).

28 29

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and "vigorously represent[ing] numerous police officers in grievances against their employer."30 This is the only activity alleged in support of Count II. Count III is a freedom-of-association claim.31 Plaintiff actually does not assert any facts to support Count III. Count III consists of nine total paragraphs. 32 The first paragraph merely "repeats and realleges" the preceding paragraphs.33 The phrase "protected belief and association" is used in every one of the Count's remaining eight paragraphs.34 That phrase is not defined, explained, or otherwise put into context with the use of supporting facts anywhere in the Amended Complaint. Count IV asserts a "Right-to-Vote" claim pursuant to the First, Ninth, and Fourteenth Amendments.35 This Count is based on Plaintiff's contention that she "is being penalized and inhibited from exercising her . . . fundamental right to vote." To support this claim, Plaintiff provides just a single factual allegation; she claims that she "cast her vote against Patty Powell and for her husband in the primary."36 Counts V and VI are brought pursuant to the Equal Protection Clause of the Fourteenth Amendment.37 Yet again, Plaintiff does not assert any facts to support this Count. Instead, she states that the "individual defendants created a classification which only allows the promotion to

30 31 32 33 34 35 36 37

(D.I. 15 at ¶37). U.S. Const. amend. I. (D.I. 15 at ¶¶114-22). (D.I. 15 at ¶114). (D.I. 15 at ¶115-22). (D.I. 15 at ¶¶123-37); U.S. Const. amend. I, IX, XIV. (D.I. 15 at ¶¶30; 124). (D.I. 15 at ¶¶138-49); U.S. Const. amend. XIV.

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lieutenant to those persons who support the candidates defendants support and to those who refuse to exercise their fundamental First Amendment rights."38 C. The Allegedly Adverse Actions

As briefly mentioned above, Plaintiff alleges that she was subject to various employment actions in retaliation for her protected activity. She claims that she applied but was not selected for promotion to lieutenant.39 She alleges that promotions were awarded to less qualified officers on September 24, 2002, 40 on May 12, 2003, 41 and in September 2003. 42 Plaintiff contends that she "was the most qualified for each of these vacancies."43 She then proceeds to proselytize the reader with a rambling sermon of her "qualifications." They are provided in severe detail, piling alleged fact upon alleged fact from as far back in her professional career as 1985. These "qualifications" are set forth over the course of six lengthy paragraphs and ten single-spaced subparagraphs, each composed of multiple sentences.44 Plaintiff also claims that she was denied a transfer to the Southern Patrol Unit.45 She alleges that, on November 26, 2002, "she submitted a memo requesting [the] transfer" but that her request "was not addressed" by Defendant Cunningham.46 Then, some nine months later, in

38 39

(D.I. 15 at ¶142).

It is worthy to note that Plaintiff contends that she was passed over for five promotions. (D.I. 15 at ¶45). In fact, there were only three opportunities for promotion for lieutenant. (D.I. 15 at ¶105). Two promotions were twice awarded simultaneously in September 2002 and May 2003. Plaintiff could not have accepted two lieutenant promotions simultaneously. Thus, there are actually just three promotions at issue. (D.I. 15 at ¶69). (D.I. 15 at ¶69). (D.I. 15 at ¶77). (D.I. 15 at ¶48). (D.I. 15 at ¶¶39-44). (D.I. 15 at ¶77). (D.I. 15 at ¶71).

40 41 42 43 44 45 46

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August 2003, Plaintiff allegedly "submitted another request" for a transfer.47 Both requests were "due to child care issues." She claims that "she was not transferred" even though, during "a discussion with Defendant McAllister, . . . he assured Plaintiff that she would be accommodated."48 Her final contention regarding the alleged transfer is that, six months after her second request, in February 2004, McAllister transferred a "Sergeant who did not even request a transfer to the SPU."49 Next, Plaintiff claims that she was twice denied a request for leave. First she alleges that, on October 9, 2002, she was denied "FOP leave" to attend an "FOP Convention."50 Plaintiff contends that the Union's collective bargaining agreement with the County "indicates" that "leave will be granted as long as staffing allows."51 She alleges that "another supervisor told plaintiff that he was willing to cover her shifts" and that Defendant Cunningham was aware of the offer.52 Plaintiff claims that she made her second request for leave on January 4, 2004, seeking to take "educational leave in order to take a Spanish course;"53 and that Defendant McAllister denied the request.54 Finally, Plaintiff contends that she was denied a request for polygraph training.55 She allegedly submitted a "memo through the chain of command to Defendant McAllister" on
47 48 49 50 51

(D.I. 15 at ¶75). (D.I. 15 at ¶75). (D.I. 15 at ¶75). (D.I. 15 at ¶70).

(D.I. 15 at ¶70). Plaintiff does not indicate whether she filed a grievance pursuant to the FOP's collective bargaining agreement with the County. Nor does she indicate whether she pursued an Unfair Labor Practice Charge pursuant to 19 Del. C. § 1607 of the Delaware Police Officers and Firefighters' Employment Relations Act.
52 53 54 55

(D.I. 15 at ¶70). (D.I. 15 at ¶78). (D.I. 15 at ¶78). (D.I. 15 at ¶73).

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August 13, 2003.56 Her request was denied because the NCCPD was experiencing a shortage of Sergeants.57 Some time later, McAllister transferred a patrol Sergeant to be a supervisor in charge of the polygraphists and the supervisor for the Evidence and Detection Unit.58

56 57 58

(D.I. 15 at ¶73). (D.I. 15 at ¶74).

(D.I. 15 at ¶74). The Amended Complaint does not even allege that this Sergeant was transferred to the Southern Patrol Unit, nor does it indicate when this transfer occurred in relation to Plaintiff's request.

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ARGUMENT I. THE 12(b)(6) STANDARD OF LAW

Counts I, II, and III of Plaintiff's Amended Complaint are brought pursuant to the First Amendments. Count IV alleges a violation under the First, Ninth, and Fourteenth Amendments. Counts V and VI allege violations of the Fourteenth Amendment's Equal Protection Clause. Each of the Counts requires the application of different constitutional standards but each is subject to dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6).59 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of a complaint for failure to state a claim.60 Dismissal is appropriate if, accepting as true all of the facts alleged in the Amended Complaint, Plaintiff has not pleaded "enough facts to state a claim to relief that is plausible on its face."61 As a result of the United States Supreme Court's decision in Bell Atlantic Corp. v. Twombly, Plaintiff must now "nudge [her] claims across the line from conceivable to plausible to avoid dismissal thereof."62 If facts are not alleged in the Amended Complaint, the Court need not infer or assume them.63 If facts alleged are not supported in the Amended Complaint, the Court need not consider or regard them as true.64 And the Court should not credit "legal conclusions draped in the guise of factual allegations."65

59 60 61

Fed. R. Civ. P. 12(b)(6). Id.

Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955 (2007) (abrogating "no set of facts" language found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)) (emphasis supplied). See Savokinas v. Pittston Twp., No. 06-00121, 2007 U.S. Dist. LEXIS 66979, at *5 (M.D. Pa. Sept. 11, 2007) (applying the Bell Atlantic standard).
63 64 62

See City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263 (3d Cir. 1998).

Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (the court need not accept as true "unsupported conclusions or unwarranted inferences"). ChemTech Int'l., Inc. v. Chem. Injection Techs., No. 06-3345, 2007 U.S. App. LEXIS 21697, at *3-4

65

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II.

SERIOUS CONSTITUTIONAL QUESTIONS SHOULD NOT BE DECIDED ON THE BASIS OF PLAINTIFF'S SHOTGUN COMPLAINT

Plaintiff's Amended Complaint contains 149 paragraphs and 19 subparagraphs. It contains six counts, each asserting a constitutional claim, and each based on the same underlying set of facts and allegations set forth in the first 98 paragraphs. Each count "repeats and realleges" the "allegations of its predecessors." This results in counts that "contain irrelevant factual allegations and legal conclusions."66 It is, undoubtedly, an example of what this Court has identified as the highly criticized "shotgun complaint." 67 The result of this drafting style is that each count "is replete with factual allegations that could not possibly be material to that specific count, and that any allegations that are material are buried beneath innumerable pages of rambling irrelevancies," thus totally disregarding "Rule 10(b)'s requirement that discrete claims should be plead in separate counts."68 The Amended Complaint includes no less than seventy-one paragraphs of background information.69 And the allegations set forth in the first two subsections of the background section are not even based on Plaintiff's personal knowledge. Instead, they were lifted directly from a criminal indictment.70 As early as Paragraph 17, Plaintiff seems to simply stop asserting facts for which she can personally attest and resolves to let the indictment do the work. She states: "What happened next is found in a May 26, 2004, criminal indictment . . ." This method of pleading is detrimental to her claims.

(3d Cir. Sept. 10, 2007).
66 67

Strategic Income Fund, LLC v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir. 2002).

See Digene Corp. v. Ventana Med. Sys., Inc., 476 F. Supp. 2d 444, 448 n.36 (D. Del. 2007) (describing the plaintiff's pleadings as a "shotgun" complaint) (internal citations omitted).
68 69 70

Magluta v. Samples, 256 F.3d 1282, 1285 (11th Cir. 2001). (D.I. 15 at ¶¶9-82). (D.I. 15 at § III(A-B)).

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The individual Counts fare no better. Count I, for example, contains nine paragraphs and nine subparagraphs. Only one sets forth any factual allegation in support of the claim.71 The rest simply recite, in the most mechanical sense, the necessary elements of a free-speech claim.72 Count II contains just three paragraphs. The first of the three merely "repeats and realleges" the preceding paragraphs of the Complaint.73 The attempt to assert a constitutional claim in two paragraphs is as disastrous as one would imagine. Count IV is even more formulaic. Seven of the fifteen paragraphs allege exactly the same legal conclusion: that Plaintiff was subject to retaliation for exercising her right to vote.74 And, of the eight remaining paragraphs, only one asserts a material fact: that "Plaintiff voted for her husband instead of Patty Powell" in the 2002 Election.75 The Amended Complaint's treatment of Defendants is also indicative of its shotgun status. The pleading is "replete with allegations that `the defendants' engaged in certain conduct, making no distinction among the [individual] defendants charged, though geographic and temporal realities make plain that all of the defendants could not have participated in every act complained of."76
71

(D.I. 15 at ¶¶101-10) (setting forth the various legal elements of a First Amendment claim for retaliation)

For example, Paragraph 101 recites the standard for dismissal pursuant to Garcetti: "None of this speech was required by her job duties." And Paragraph 102 recites the "public concern requirement" in a free-speech claim: "By its content, form, and context, at all times plaintiff spoke out about matters of public concern." Paragraph 106 concludes that the necessary causal nexus is demonstrated by "[t]he natural probative force of the evidence."). See Strategic Income Fund, 305 F.3d at 1297, n.12 (admonishing counsel and noting that, although material facts relating to the exact nature of the relationship between the parties were "conspicuously absent," "counsel was certainly mindful" of the legal elements of the claim when drafting the counts).
73 74 75

72

(D.I. 15 at ¶¶111-13). (D.I. 15 at ¶¶126, 127, 133-37).

(D.I. 15 at ¶124). Of course, this allegation had been stated already in three earlier paragraphs. (D.I. 15 at ¶¶1, 30, 67). Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. July 13, 2001).

76

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For example, Count IV alleges that the Individual Defendants were aware that Plaintiff had "exercised her right to vote" in the 2002 Election. How this is possible, she does not allege. She does not assert that her secret ballot was somehow obtained by the Individual Defendants. She does not allege that the Individual Defendants were present at the voting polls on Election Day in 2002. And Defendant McAllister did not become Colonel until nearly a year after the election so it is unclear how he could be party to this allegation at all. The backdrop of Plaintiff's allegations are set forth in a twelve-paragraph section titled, "Election Scheme."77 In this section, Plaintiff first alleges that Defendants Gordon and Freebery "sought to dominate . . . and control" NCC government.78 Yet, for the rest of the section, she refers only to "Defendants" without differentiating between the individuals. In Paragraph 15, for example, she alleges that "Defendants chose Patty Powell" as their candidate of choice in the 2002 Election. Given the fact that McAllister was not promoted until more than a year after the election, it is difficult to imagine how he could be included as a "Defendant" for the purpose of this claim. Courts have repeatedly expressed a distaste for shotgun complaints because they create "a task that can be quite onerous for the courts,"79 requiring the "trial court [to] sift out the irrelevancies."80 The Amended Complaint fails to comply with the "short and plain statement of the claim" requirement of Rule 8 of the Federal Rules of Civil Procedure.81 Serious constitutional issues should not be decided on the basis of this quintessential shotgun pleading.82
77 78 79 80 81 82

(D.I. 15 at ¶¶13-24). (D.I. 15 at ¶13). Opdycke v. Stout, 223 Fed. Appx. 125, 127 (3d Cir. 2007). Strategic Income Fund, 305 F.3d at 1295 (cited with approval in Opdycke, 223 Fed. Appx. at 127 n.1). Id. at 1296, n.9 (quoting Magluta, 256 F.3d at 1284-85; Fed. R. Civ. P. 8(a, e)). Id.

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Instead, the Amended Complaint, which fails to allege any discernible claim, should be dismissed in its entirety.83 These are clear examples of how Plaintiff has failed to satisfy the knowledge or responsibility elements that are required for causation, as set forth above. III. A. COUNT I FAILS TO ALLEGE AN ACTIONABLE FREE SPEECH CLAIM The Free Speech Standard

The protections available to the speech of a public employee were significantly limited by the Supreme Court in its recent decision, Garcetti v. Ceballos.84 In order to be considered protected speech, Plaintiff must sufficiently allege that: (1) she engaged in expressive activity that constituted speech;85 (2) she did so in her capacity as a citizen as opposed to her capacity as a police officer;86 and (3) her speech was about a matter of public concern.87 If protected speech has been sufficiently alleged, Plaintiff must then show that: (1) the protected speech was a substantial factor in the alleged retaliatory action;88 and (2) Defendants were not sufficiently

83

See Pominansky v. JARJ Constr. Corp., No. 07-21530, 2007 U.S. Dist. LEXIS 73467, at *4 (S.D. Fla. Oct. 2, 2007) (dismissing with prejudice the plaintiff's "shotgun complaint"). 126 S. Ct. 1951 (2006); Foraker v. Chaffinch, 501 F.3d 231, 241 (3d Cir. 2007) (noting that the Court's decision narrowed the scope of First Amendment claims for public employees). Fogarty v. Boles, 121 F.3d 886, 888 (3d Cir. 1997) (concluding that the absence of speech required dismissal of the plaintiff's claim).

84

85

Garcetti, 126 S. Ct. at 1961 (holding that, unlike citizen speech, speech made pursuant to a public employee's job duties does not receive constitutional protection); Johnson v. George, No. 05-157-MPT, 2007 U.S. Dist. LEXIS 42465, at *12 (D. Del. June 11, 2007) (citing Garcetti, 126 S. Ct. at 1954) ("The First Amendment does not prohibit managerial discipline based on an employee's expressions made pursuant to official responsibilities").
87 88

86

Muzslay v. City of Ocean City, 238 Fed. Appx. 785, 788 (3d Cir. 2007).

Houlihan v. Sussex Tech. Sch. Dist., 461 F. Supp. 2d 252, 259 (D. Del. 2006) (citing Hill v.Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006)).

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justified in their actions.89 These are questions of law, properly decided by the Court in a Motion to Dismiss.90 Thus, the dispositive question for Count I is whether Plaintiff engaged in protected speech when she spoke out about the "desirability of the election of her husband, of the "mistreatment of police officers by the administration," and when she "educated FOP members" about workers' compensation issues" and other employment "rights." B. The Campaign-Related Allegations Do Not Constitute a Cognizable Free-Speech Claim

Plaintiff cannot "make [her] case on a nod, a wink, and the suggestion that `we know what those politicians are like'" or on the mere "public perception of political machinations, innuendo, and speculation."91 Instead, Plaintiff must allege sufficient evidence of a causal link between her protected activities and the alleged adverse actions. Plaintiff has fallen far short of meeting this burden. Her allegations are so vague as to be nearly incomprehensible. Causal connection cannot be alleged without, at the very least, an allegation that the defendants were aware that she was engaging in protected activity.92 "Knowledge alone, however, does not establish a causal connection" sufficient to impose liability.93 Not only must Plaintiff allege that the relevant decision maker knew of her activity but she must also produce

89 90

Garcetti, 126 S. Ct. at 1958.

Hill, 455 F.3d at 241 (finding that whether speech is "protected" is a question of law for the court); Williams v. Riley, 481 F. Supp. 2d 582 (N.D. Miss. 2007) (granting Motion to Dismiss pursuant to Garcetti).
91 92 93

Garrett, 961 F.2d at 634 (emphasis in original) (internal citations omitted). See Red v. Potter, 211 Fed. Appx. 82, 84-85 (3d Cir. 2006). Price v. Thompson, 380 F.3d 209, 213 (4th Cir. 2004).

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credible evidence that the decision maker was responsible for the allegedly retaliatory act.94 Plaintiff has failed to meet these requirements. Plaintiff does not allege any credible evidence that would show who is responsible for any of the alleged adverse actions. In fact, for many of the adverse actions, she does not even allege who the relevant decision maker was. For example, with respect to the alleged denial of her transfer request, Plaintiff states that she had a "discussion" with Defendant McAllister but fails to allege when it occurred, or in what context. She does not indicate to whom she submitted the request. Nor does she indicate that Defendant Cunningham ever received the request. Plaintiff has equally failed to allege any evidence of temporal proximity sufficient to demonstrate a causal connection. "There must also be some degree of temporal proximity to suggest a causal connection, and that temporal proximity should be unusually suggestive.95 "A lengthy time lapse between the [public official's] becoming aware of the protected activity and the alleged adverse action negates any inference that a causal connection exists between the two."96 Using time to satisfy the causation element requires consideration "with a careful eye to the specific facts and circumstances encountered."97 With respect to her request for FOP leave, she fails to even allege when she made the request. Without alleged dates, temporal proximity certainly cannot be considered. Plaintiff does not identify the relevant decision maker. She does not indicate to whom she submitted the request. Nor does she indicate that Defendant Cunningham ever received the request.

94

Brennan v. Norton, 350, F.3d 399, 423 (3d Cir. 2003) (finding that the plaintiff failed to establish a nexus because he failed to show that the defendant was responsible for the adverse transfer). McCann v. Winslow Twp., No. 06-3189, 2007 U.S. Dist. LEXIS 93594, at *12 (D.N.J. Dec. 20, 2007). Id. at *16 (internal citations omitted). Farrell v. Planters Lifesavers Co., 206 F.23d 271, 279 n.5 (3d Cir. 2000).

95 96 97

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With respect to the campaign speech, Plaintiff's "protected activity" ended, at the latest, on September 7, 2002, when her husband was defeated in the primary election. Plaintiff's first alleged adverse action occurred three weeks later. The Third Circuit has held that three weeks was not "unduly suggestive."98 But when framed in light of the adverse actions in sum, which Plaintiff alleges included randomly over an eighteen-month period, involving at least two different decision makers, it becomes truly obvious that Plaintiff has failed to allege the requisite causal connection.99 C. The Union-Related Allegations Do Not Constitute a Cognizable Free Speech Claim

As with all expressive activity, union-related speech will qualify for the protections of the First Amendment only if it is sufficiently alleged to have occurred outside of the employment context and, then, only if it touches on a matter of public concern.100 Plaintiff's service as a union representative and board member or other union participation constitute activities derivative of her employment and, therefore, are ineligible for protection pursuant to Garcetti. Further, the personal, employment-related disputes that were the content of the speech were not matters of public concern.101 A cursory review of Plaintiff's union-related allegations demonstrates that they occurred pursuant to her job duties and not in her capacity as a citizen. Plaintiff claims that "she spoke

98 99

Thomas v. Town of Hammonton, 351 F.3d 108, 114 (3d Cir. 2003).

See Oest v. Ill. Dep't of Corr., 240 F.3d 606, n.8 (7th Cir. 2001) one-year lapse between the employee's protected expression and the employer's actions was, by itself, too attenuated to raise an inference of retaliation).

100

Van Compernolle v. City of Zeeland, No. 06-1904, 2007 U.S. App. LEXIS 16735, at *17 (6th Cir. July 8, 2007) (internal citations omitted). Kasak v. Village of Bedford Park, No. 06-5119, 2007 U.S. Dist. LEXIS 70281, at *4-5 (N.D. Ill. Sept. 18, 2007) (dismissing the complaint where it alleged that the plaintiff served as the lead union representative for six years and was actively involved in the formation and recognition of the union where no further substantive facts were alleged).

101

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out" about the "mistreatment" of her co-workers by "their employer."102 This is exactly the type of employee-made speech contemplated by Garcetti.103 Moreover, Plaintiff's failure to allege that any of the Individual Defendants had knowledge of any specific instance of union activity serves for an additional ground for dismissal pursuant to Rule 12(b)(6).104 Finally, Plaintiff does not describe the nature of the disputes or the outcome of any of the grievances. Nor does she allege that any of the Individual Defendants had knowledge of any specific grievance or grievances.105 This impact of these fatal omissions was explained by the Middle District of Pennsylvania: Plaintiff has failed to present evidence regarding the content, form, or context of the speech. Although [] Plaintiff alleges that the speech relates to `Police and Union matters,' . . . there is no evidence presented regarding when the speech occurred, the forum where the speech occurred, the recipients of the speech, or the specific content of the speech. 106 Thus, Plaintiff's union-related allegations are, as a matter of law, insufficient to support a plausible finding of free-speech retaliation. Plaintiff also contends that she "educated" other union members about workers' compensation and other "rights" inherent to employment with the NCCPD.107 Workers' compensation, like "overtime compensation, retirement benefits, and personal disciplinary

Van Compernolle, 2007 U.S. App. LEXIS 16735, at *18 (internal citations omitted) (emphasis supplied).
103 104

102

126 S. Ct. 1961.

See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (A defendant in a § 1983 action "must have personal involvement in the alleged wrongs"). See id.

105 106

Guarnieri v. Duryea Borough, No. 05-1422, 2007 U.S. Dist. LEXIS 84580, at *27 (M.D. Pa. Nov. 15, 2007).
107

(D.I. 15 at ¶37).

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grievances . . . can only be characterized as internal personnel disputes."108 Such internal, employment-related speech falls squarely within the limitations of Garcetti.109 And, without evidence that Plaintiff's "union-related activity . . .encompassed more than internal personnel issues," any claim based on her union-related activity must be dismissed.110 IV. A. COUNT II FAILS TO ALLEGE AN ACTIONABLE RIGHT TO PETITION CLAIM The Right to Petition Standard

The Petition Clause of the First Amendment protects a public employee who petitions the "government to fix what, allegedly, government has broken or has failed in its duty to repair."111 Thus, to qualify for the protections of the Petition Clause, Plaintiff herself must have actually sought redress and "actually voice[d] a grievance regarding a particular governmental action which had taken place or ask the government to fix a particular ongoing problem."112 And the request must have been in the form of a formal petition.113 The dispositive question for Count II, then, is whether Plaintiff formally petitioned the government as a method to seek redress when she represented FOP members in filing grievances on their behalf.

108 109

Van Compernolle, 2007 U.S. App. LEXIS 16735, at *19.

See Pottorf v. City of Liberty, No. 06-0246-W-NKL, 2007 US Dist. LEXIS 70803, at *25-26 (W.D. Mo. Sept. 24, 2007).

Van Compernolle, 2007 U.S. App. LEXIS 16735, at *18 (finding that the plaintiff's allegation that the defendants held a "general belief that he was a vocal union member," did not meet the standard for employee-made speech).
111

110

U.S. Const. amend. I, cl. 6; San Filippo v. Bongiovanni, 30 F.3d at 439-40, 440 n.18, & 442-43 (3d Cir. 1994), cert. denied, 513 U.S. 1082 (1995).

Perna v. Twp. of Montclair, No. 05-4464, 2006 U.S. Dist. LEXIS 70518, at *24-25 (D.N.J. Sept. 28, 2006) (dismissing the plaintiff's Petition claim where the purpose of her letter was to warn government officials about the possibility of suit but did not request that any specific action be taken).
113

112

Id.; see Foraker, 501 F.3d at 236 ("Formal petitions are defined by their invocation of a formal mechanism of redress" such as "lawsuits, grievances, and workers' compensation claims").

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B.

The Union Grievance-Related Allegations Fail to State a Cognizable Petition Claim

Plaintiff's representation of other police officers in their union grievances is not protected petitioning activity. She does not allege that she herself filed any grievances on her own behalf. And she does not claim that she was affected directly in any way by the outcome of the grievances, other than in her capacity as a union representative. Rather, Plaintiff attempts to assert a petition claim based on grievances filed by other police officers. Such a novel derivative petition claim has not been recognized by the Courts. Moreover, Plaintiff's utter failure to allege any supporting facts requires the claim to fail for lack of causal connection between her alleged activity and the alleged adverse actions. For example, she does not identify these alleged beneficiaries of her "representation" by name or rank. She does not indicate how many police officers she considers to be "numerous." Nor does she provide any dates or even more general periods of time when the alleged grievances were filed. V. COUNT III FAILS TO ALLEGE AN ACTIONABLE ASSOCIATION CLAIM

Count III asserts a right-to-association claim on two grounds. First, Plaintiff alleges that her campaign-related activities constituted protected political association.114 Second, Plaintiff alleges that her union-related activities constituted protected Citizen-Based Association. As discussed below, neither claim can be successful as a matter of law.

114

Although Count III of the Amended Complaint does not specify whether Plaintiff is attempting to bring a claim for Intimate Association, wherein she would allege that the claimed retaliation was a result of Plaintiff's marital relationship with Mr. Riddell; or Expressive Association, wherein she would allege that the claimed retaliation was a result of her political beliefs and associations. But the