MARVIN J. GARBIS, District Judge.
The Court has before it Defendants' Motion to Dismiss, Or in the Alternative, For Summary Judgment [ECF No. 29], and Plaintiffs' Motion for Discovery in Response to Defendants' Motion for Summary Judgment [ECF No. 33]. The Court has held a hearing and has had the benefit of arguments of counsel.
Plaintiff David McClure ("McClure") is the President-Business Agent of Plaintiff Amalgamated Transit Union (ATU) Local 1300 ("Local 1300"), a local labor organization representing certain employees of the Maryland Transit Administration ("MTA").
Together, Plaintiffs bring several claims under Section 1983 for unlawful reprisal of protected speech and denial of their freedom of association. McClure alone asserts a Fourth Amendment unlawful seizure claim under 28 U.S.C. § 1983. Plaintiffs seek a declaratory judgment and injunction, compensatory and punitive damages, and legal fees.
McClure and Local 1300 have engaged in two public campaigns "aimed at improving Baltimore's public transit." FAC ¶ 1. The first campaign began in July 2016, when Plaintiffs issued a report and a press release on safety hazards in Baltimore's subway system and criticized Defendants for "endangering the safety of the public riding the Baltimore Metro."
The second campaign began in September 2016, when Plaintiffs issued a "People's Plan for Baltimore Transit" which criticized Maryland's Department of Transportation and Governor for implementing the "BaltimoreLink" program instead of investing more in Baltimore's transit systems.
In addition to managing these public campaigns, McClure regularly participates in disciplinary due process hearings on behalf of his members.
On September 15, 2016, McClure attended one of these hearings.
In the instant case, Plaintiffs contend that the Defendants engaged in two sets of reprisals against them in response to the two public campaigns and to McClure's statements to Holland-Brown at the September 15, 2016 hearing.
The first set of alleged reprisals was directed at McClure alone. On December 8, 2016, Defendant Lewis Jones ("Jones") wrote a letter to ATU International President Lawrence Hanley ("Hanley") requiring McClure to obtain permission prior to entering union property to conduct union business. Def.'s Mot. Ex. K, ECF No. 29-12. The letter also stated that McClure's badge access to various MTA facilities was being suspended.
On February 21, 2017, Defendant Earl Lewis ("Lewis") wrote another letter to Hanley reiterating the access restrictions in the December 8, 2017 letter, citing McClure's "unprofessional and threatening behavior." FAC ¶ 65. This letter referred to Article (5) of a long-standing Collective Bargaining Agreement between MTA and Local 1300, which states:
Def.'s Mot. Exs. C, M, ECF Nos. 29-4, 29-14.
When McClure tried to attend grievance hearings held on MTA business property on March 31, April 26, May 4, and May 11 (which included hearings conducted by Holland-Brown), he was told to leave and in two instances escorted off the premises by the police.
The second set of alleged reprisals applies to McClure as well as to "other Local 1300 officers."
Plaintiffs argue that certain actions taken by Defendants support their contention of retaliatory intent. For example, in May 2017, Local 1300 requested that eight of its members be granted leave from MTA to conduct union business.
Defendants have filed a motion to dismiss, or in the alternative a motion for summary judgment, and have submitted materials in addition to the Complaint regarding these motions. The Court has not excluded these materials from consideration.
When "matters outside the pleading are presented to and not excluded by the court, the [12(b)(6)] motion must be treated as one for summary judgment under Rule 56." Fed. R. Civ. P. 12(d);
A motion for summary judgment shall be granted if the pleadings and supporting documents "show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
The well-established principles pertinent to summary judgment motions can be distilled to a simple statement: the Court may look at the evidence presented in regard to a motion for summary judgment through the non-movant's rose-colored glasses, but must view it realistically. After so doing, the essential question is whether a reasonable fact finder could return a verdict for the non-movant or whether the movant would, at trial, be entitled to judgment as a matter of law.
When evaluating a motion for summary judgment, the Court must bear in mind that the "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'"
In Counts I and III, Plaintiffs allege that Defendants unlawfully punished them for engaging in protected speech or carried out unlawful reprisals for "other speech" protected by the First Amendment. At the motions hearing, Plaintiffs explained that these two Counts are based on the same legal theories so that they will be addressed together.
A successful retaliation or reprisal claim requires plaintiffs to establish that (1) they engaged in First Amendment activity, (2) defendants took action that adversely affected their First Amendment Rights, and (3) there was a causal relationship between the protected activity and defendants' conduct.
Because a retaliation claim seeks to protect the chilling of free speech, the adverse effect must be "something more than a `
Plaintiffs' retaliation contention is based on two sets of alleged reprisals: first, that Defendants restricted McClure's attendance at grievance hearings with the December 8, 2016 letter by requiring that he seek permission before entering MTA premises; second, that Defendants continue to restrict McClure's key card access to areas of the MTA facilities for which he previously enjoyed access.
Defendants challenge Plaintiffs' retaliation theories, including arguing that the alleged reprisals do not constitute an adverse effect and are not causally related to Plaintiffs' protected speech. Defendants contend that the alleged reprisals were in fact valid actions taken in response to McClure's verbal abuse of Holland-Brown at a disciplinary hearing and a corrective action taken by a government agency to correct a prior problem of unchecked access. Def.'s Mot. at 27, ECF No. 29-1 ("Allowing a non-employee to keep keys that granted unusual and expansive access to sensitive facilities was unwise.")
Plaintiffs concede that they do not have an absolute right to enter MTA property. Pl.'s Resp. at 1-2, ECF No. 32. Rather, Plaintiffs argue that Defendants have engaged in the alleged reprisals in retaliation for Plaintiffs' First Amendment protected speech.
Plaintiffs also argue that the broader restrictions on access and the refusal to permit leave for union workers have a chilling effect on speech. Pl.'s Resp. at 16, ECF No. 32.
There appears to be no dispute that Plaintiffs engaged in protected activity under the First Amendment. Thus, the Court will address whether there is a dispute of material fact as to the remaining two
For purposes of the instant motion, the Court accepts Plaintiffs' contention that the causation element has been adequately established by Plaintiffs because McClure's statements at the hearing constitute protected speech. Attending a disciplinary hearing on behalf of a union member constitutes an activity protected by the First Amendment.
Specifically, the Court will assume that Plaintiffs have evidence adequate to establish causation between Plaintiffs' exercise of free speech rights (
Plaintiffs have not produced evidence adequate to permit a reasonable jury to find a cognizable adverse effect imposed by the alleged reprisal actions.
As an initial matter, Plaintiffs overstate the nature of McClure's alleged "ban" from the MTA property. FAC ¶ 63. The December 8, 2016 letter does not ban McClure but merely states that McClure must obtain permission prior to entering premises to conduct union business. Def.'s Mot. Ex. K, ECF No. 29-12. Plaintiffs have not produced evidence that a request to enter from McClure has ever been denied or that a reasonable request would not be granted. Williams Decl. ¶ 14, ECF No. 29-2. For the reasons stated below, the Court finds that the letter's requirement that McClure seek permission before accessing a nonpublic space does not constitute an "adverse action" under
The Court also finds that the areas to which Plaintiffs seek to have unrestricted access are non-public fora, not locations for expressive activity. It is true that Defendants have previously granted Plaintiffs access to this space.
In
Viewed realistically, McClure was not "banned" from the MTA premises or from the disciplinary hearings. Rather, as was the case in
It is not an unreasonable burden on a non-employee to require permission from an employer to obtain access to nonpublic spaces on the employer's premises. The need to request permission would not deter "a person of ordinary firmness" from seeking to exercise First Amendment rights in the space if he or she wishes to do so. Defendants have even stated on the record that standing permission could be granted. Rough Hearing Tr. 57:11-19 (Dec. 1, 2017) (Counsel for Defendant stating that "[a] standing order for permission say for grievance hearings, for monthly meetings . . . could be granted, or not. But if it's reasonable we're compelled to grant it.").
Plaintiffs have presented no evidence to establish that they sought permission to attend any hearing and were denied, much less unreasonably denied, the opportunity to do so. Williams Decl. ¶ 14, ECF No. 29-2.
The need to request permission to enter MTA facilities is also consistent with Article 5 of the Collective Bargaining Agreement. Article 5 states that "UNION business shall not be conducted on MTA property" without "the permission of a department head or a representative authorized by him/her." Def.'s Mot. Ex. C, ECF No. 29-4. Moreover, Article 5 requires officers on leave of absence (like McClure) to "comply with all MTA regulations pertaining to entry into any part of the MTA's premises, vehicles or other MTA property."
Although McClure states that he does not seek to enter private offices or areas containing personnel files, retention of his prior unrestricted access would enable him to enter all areas of the MTA premises. Rough Hearing Tr. 29:15-17 (Dec. 1, 2017) (Counsel for Defendant stating that "Local 1300 members work in areas with management offices and yes, with a key Mr. McClure would have unrestricted, unsupervised access to those offices.").
Even if McClure now has only the "same access as any other non-employee of MTA," or "less access even than an employed rank-and-file member of Local 1300," FAC ¶ 123, this would not warrant granting Plaintiffs' claims. Although he is union president, McClure is not presently an employee of the MTA and would reasonably not be accorded that same level of access. For example, McClure requests access to all of his union members' bus garages, Rough Hearing Tr. 22:3-8 (Dec. 1, 2017), but those garage spaces are reserved for employees who are working and carrying out their duties.
Plaintiffs have not established a past legal right to unfettered access to employee workspaces, even though MTA had allowed such access in the past. In other words, the MTA should not be held to have violated a constitutional right for depriving McClure of an alleged right when he did not have the right in the first place. Moreover, the Court does not find reasonable Plaintiffs' apparent contention that the prior practice of the MTA created a present or future legal right of access for McClure or other Plaintiffs.
Ultimately, Plaintiffs' arguments are similar to those alleged by plaintiffs in
Plaintiffs' contentions about the possibility of future access restrictions upon other Local 1300 officers are similarly unpersuasive. An affidavit submitted by Defendants explains that "the MTA reviewed electronic records" of other full-time Local 1300 officers referenced in the First Amended Complaint, and found that the access was consistent with the officers' respective positions (or lack thereof) at the MTA.
Accordingly, Plaintiffs have failed to provide evidence from which a reasonable jury could find that Defendants have violated Plaintiffs' rights guaranteed by the First Amendment.
"The First Amendment protects two types of association: intimate association and expressive association."
"[A] constitutionally protected right to associate for expressive purposes exists if the activity for which persons are associating is itself protected by the First Amendment."
Plaintiffs argue that the access restrictions "prevent plaintiff McClure and other Local 1300 officers from speaking with, communicating with, and representing Local 1300 members in the way that the plaintiff Local 1300 officers have done in the past." FAC ¶ 149. Specifically, Plaintiffs argue that they have legal duties to represent their Local 1300 members that have been limited as a result of this access restriction.
Defendants argue that the First Amendment does not require the government to listen, respond, or recognize an association and bargain with it, citing
The Court finds that Plaintiffs have failed to present evidence adequate to permit a reasonable jury to find a denial of their First Amendment associational rights. As discussed above, requiring Plaintiffs to request permission from MTA before entering non-public spaces imposes a
If Plaintiffs' argument is that the MTA refuses to bargain with them or acknowledge them, the Court does not find that contention to be persuasive. The First Amendment associational right does not include a right to have the government "to listen, to respond or, in this context, to recognize the association and bargain with it."
Accordingly, Defendants are entitled to summary judgment in regard to Plaintiffs' First Amendment associational rights claims.
McClure alleges that he was escorted from the building by police on March 31, 2017 and April 26, 2017. FAC ¶¶ 80-93. On those two dates, he does not allege that he requested and received permission to be on the premises. McClure contends that he was subjected to unconstitutional seizures when he was removed from the premises by the police. FAC ¶¶ 158-162. Specifically, he argues that he was lawfully representing his union members at the hearing, so that there was an unlawful seizure of his person when he was removed from the premises while at the grievance hearing.
"The Fourth Amendment protects `[t]he right of the people to be secure in their persons . . . against unreasonable . . . seizures.'"
Because Plaintiffs do not contend that McClure had requested and been granted permission to be on the premises, at the times in issue, McClure was a trespasser, meaning he had no right to be on the premises and was properly removed.
At the motions hearing, Plaintiffs contended that MTA's inclusion of McClure's name on the hearing calendar invitation constituted the needed grant of permission to attend. Rough Hearing Tr. 10:13-25 (Dec. 1, 2017). This contention-although possibly a basis for mitigation of a trespassing charge-is insufficient to provide the basis for his constitutional claim against Defendants. In the instant case, even if McClure's allegation of being escorted from the property is held to be a "seizure," it was not objectively unreasonable because he was reasonably deemed by the MTA to be a trespasser on the property at the time.
Accordingly, Defendants' Motion for Summary Judgment on Count IV is GRANTED.
A Rule 56(d) affidavit for discovery must explain why, "for specified reasons, it cannot present facts essential to justify its opposition" without the needed discovery. Fed. R. Civ. P. 56(d). "`Rule 56(d) affidavits cannot simply demand discovery for the sake of discovery.'"
Plaintiffs request leave to engage in a wide range of discovery for purposes of their response to the instant motion. They seek discovery on "how the defendant public officials and their subordinates viewed or treated or commented internally on the campaign of plaintiffs McClure and Local 1300," "how and why and when defendant officials made the decision to bar McClure from MTA property," "the good faith of defendants in the investigation of McClure," "why Ms. Holland-Brown chose to tender her resignation on the eve of a preliminary injunction hearing in this case," "why defendants chose to lift the ban of McClure from attending grievance hearings at that time," "the past practice of MTA in allowing the union officers to have access to MTA property without permission and by use of card swipes," "how the defendant officials viewed the campaign of McClure and Local 1300 to oppose the BaltimoreLink project," and "why the defendant officials withdrew the union business leave of certain Local 1300 members." Pl.'s Mot. ¶ 8, ECF No. 33.
These requests are based on Plaintiffs' position that intent is an element of a retaliation claim. Defendants do not dispute that, for the purposes of this motion, Plaintiffs' allegations regarding intent must be accepted as true. Hearing Rough Tr. 6:5-15 (Dec. 1, 2017). Because this limited concession has been made, and because the Court has assumed the existence of retaliatory intent in Plaintiffs' claims, the requested discovery is not needed for the instant motion.
Accordingly, Plaintiffs' motion for Rule 56(d) discovery shall be DENIED.
For the foregoing reasons:
SO ORDERED.
