United States District Court, D. Rhode Island
REPORT AND RECOMMENDATION
LINCOLN D. ALMOND, Magistrate Judge.
Pending before me for a report and recommendation (28 U.S.C. § 636(b)(1)(B); Local Rule CV 72(a)) is Defendants' Motion to Dismiss this action pursuant to Rule 12(b)(6), Fed.R.Civ.P. (Document No. 21). A hearing was held on December 15, 2015. For the following reasons, I recommend that Defendants' Motion to Dismiss (Document No. 21) be DENIED.
Plaintiff Darrell Koza performed services for the Town of Westerly as a part-time, nonpermanent police officer, i.e., Constable, pursuant to Section 9-1-8 of the Town's Charter until his termination on December 4, 2014. (Document No. 2, ¶ 8). Constable are "assigned to work private and special duty details, including special events and assignments for the Town and schools" as well as "foot patrol work, traffic control, and related police work." (Document No. 2, ¶ 20). Defendants are the Town of Westerly and its Town Manager and Director of Public Safety, Finance Director and Chief of Police.
The Town and Westerly Local #503, International Brotherhood of Police Officers ("Local 503") are parties to a collective bargaining agreement for the term July 1, 2013 to June 30, 2016 (the "CBA"). (Document No. 2-1). Local 503 is the collective bargaining representative of the Town's full-time, permanent Police Officers. Local 503 does not represent the Constables. The CBA was signed on June 23, 2014 and contains provisions regarding the assignment and compensation of private and special-duty details. It effectively gives full-time, permanent Police Officers a right of first refusal for detail assignments before they are offered to "civilian constables." Id. at p. 6. The CBA provides for a rate of $38.00 per hour for detail work and the additional charge to private entities of $4.00 per hour for an administration fee for "private details." Id. at p. 7. Finally, the CBA provides that "[f]or any private duty detail worked by a constable or reserve officer (who was not formerly a Westerly Police Officer), said reserve or constable shall make a contribution of $5.00 per hour to Local 503." Id.
In a companion case (Cimalore v. Westerly, C.A. No. 15-313L), Plaintiffs, including Mr. Koza, challenge the legality of this $5.00 per hour mandatory "contribution" and argue that it is an illegal "Forced Union Fee." Plaintiffs assert that the Town and Local 503 unlawfully began, without prior notice or lawful authorization, deducting the $5.00 per hour contribution from their pay in April 2014 as "CRSR Dues." Plaintiffs contend that this compelled contribution to Local 503 violates their constitutional rights including their freedom of association under the First Amendment. Plaintiffs also allege that the Town unconstitutionally retaliated against them for engaging in constitutionally protected speech in opposition to the contribution by revising the system for assigning details which "reduced and limited [their] hours and pay." Finally, Plaintiffs allege that the deduction of the contribution and assignment to Local 503 violates Rhode Island's Payment of Wages Act and they bring additional state law retaliation and whistleblower claims.
In this case, Mr. Koza also alleges that he engaged in protected speech and other conduct in objecting to the lawfulness of the compelled contribution to Local 503, and that such speech and other conduct was a substantial and motivating factor for the Town's termination of his employment as a Constable and failure to reappoint him as a Deputy Town Sergeant. Mr. Koza brings a federal claim of unconstitutional retaliation under 42 U.S.C. § 1983 and state statutory retaliation claims under Rhode Island's Payment of Wages and Whistleblowers' Protection Acts.
A. Standard of Review
In ruling on a motion to dismiss filed pursuant to Rule 12(b)(6), the Court construes the Complaint in the light most favorable to the plaintiff, see Greater Providence MRI Ltd. P'ship v. Med. Imaging Network of S. New England, Inc., 32 F.Supp.2d 491, 493 (D.R.I. 1998); Paradis v. Aetna Cas. & Sur. Co., 796 F.Supp. 59, 61 (D.R.I. 1992), taking all well-pleaded allegations as true and giving the plaintiff the benefit of all reasonable inferences, see Arruda v. Sears, Roebuck & Co., 310 F.3d 13, 18 (1st Cir. 2002); Carreiro v. Rhodes Gill & Co., 68 F.3d 1443, 1446 (1st Cir. 1995); Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27 (1st Cir. 1994). If under any theory the allegations are sufficient to state a cause of action in accordance with the law, the motion to dismiss must be denied. See Hart v. Mazur, 903 F.Supp. 277, 279 (D.R.I. 1995). While a plaintiff need not plead factual allegations in great detail, the allegations must be sufficiently precise to raise a right to relief beyond mere speculation. See Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (abrogating the "no set of facts" rule of Conley v. Gibson, 355 U.S. 41, 44-45 (1957)). The complaint "must allege a plausible entitlement to relief' in order to survive a motion to dismiss." Thomas v. Rhode Island, 542 F.3d 944, 948 (1st Cir. 2008) (quoting Twombly, 550 U.S. at 559).
B. Defendants' Arguments
Defendants argue that Plaintiff's Complaint is conclusory and fails to set forth sufficient well-pleaded facts to state any claims upon which relief may be granted. (Document No. 21-1 at p. 4). In particular, they contend that Plaintiff has not plead sufficient facts demonstrating that he is a public employee, that his termination was an act taken under color of state law, or that he engaged in any protected speech or conduct. In addition, Defendants argue that Plaintiff has not plead sufficient facts demonstrating that his speech or conduct was a substantial or motivating factor in the decision to terminate his status as a Constable.
Defendants' counsel described this Motion as "primarily a Twombly challenge" during oral argument. To survive a motion to dismiss under Twombly, a complaint must give the defendant fair notice of what the claim is and the grounds upon which it rests and allege a plausible entitlement to relief. 550 U.S. at 555, 559. A plaintiff must plead sufficient "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 ...