Put simply, “at the motion-to-dismiss stage and without the benefit of discovery,” the Court cannot conclude as a matter of law that Defendants refused to hire Whitfield “because of the disruption it could cause in the workplace, rather than because of the content of the speech.” Festa v. Westchester Med. Ctr. Health Network, 380 F.Supp.3d 308, 321 (S.D.N.Y. 2019); see also Squicciarini v. Vill. of Amityville, No. 17-CV-6768, 2019 WL 1232093, at *9 (E.D.N.Y. Mar. 15, 2019); Sugar v. Greenburgh Eleven Union Free Sch. Dist., No. 18-CV-67 (VB), 2018 WL 6830865, at *7 (S.D.N.Y. Dec. 28, 2018) (“Pickering's balancing test demands a fact-sensitive inquiry generally unsuited for resolution on a motion to dismiss. Here, on this undeveloped record, the Court cannot readily discern every interest at play in this case, or how those interests weigh against one another.”

But the "[t]he Pickering test is 'a fact-sensitive inquiry' " which is not suited for resolution on a motion to dismiss. Squicciarini v. Village of Amityville, No. 17-CV-6768, 2019 WL 1232093, at *9 (E.D.N.Y. Mar. 15, 2019) (quoting Kelly v. Huntington Union Free Sch. Dist., 675 F. Supp. 2d 283, 298 (E.D.N.Y. 2009)); see Sheppard v. Beerman, 18 F.3d 147, 151 (2d Cir. 1994) ("the motive behind [plaintiff's] firing in his retaliation claim is clearly a question of fact. Because this question is in dispute, it was improper for the district court to answer it on a motion for dismissal on the pleadings").

The pre-termination process due is even less substantial in the context of a deprivation that affects a relatively insignificant private intertest, such as when a deprivation is “de minimus.” Squicciarini v. Vill. of Amityville, No. 17-CV-6768, 2019 WL 1232093, at *7 (E.D.N.Y. Mar. 15, 2019). In Squicciarini, the court dismissed a § 1983 claim where the plaintiff firefighter, who had been suspended from particular duties for less than four days, had been “informed of the basis for his suspension” and “was able to present his point of view regarding the suspension” in an “informal” meeting, resulting in his reinstatement.

The second, more pertinent issue for the present motion is one of timing; courts in this Circuit routinely hold that it is inappropriate to resolve the Pickering analysis on a motion to dismiss, as defendants seek here. See, e.g., Squicciarini v. Vill. of Amityville, No. 17-cv-6768, 2019 WL 1232093, at *9 (E.D.N.Y. Mar. 15, 2019) ( Pickering test is a fact-sensitive inquiry for which defendants bear the burden and is thus not appropriately resolved on a motion to dismiss); Sugar v. Greenburgh Eleven Union Free Sch. Dist., No. 18-cv-67, 2018 WL 6830865, at *7-8 (S.D.N.Y. Dec. 28, 2018) ; Gusler v. City of Long Beach, 823 F. Supp. 2d 98, 129 (E.D.N.Y. 2011) ; Kelly v. Huntington Union Free Sch. Dist., 675 F. Supp. 2d 283, 298 (E.D.N.Y. 2009). Defendants bear the "burden of showing that despite First Amendment rights the employee's speech so threatens the government's effective operation that discipline of the employee is justified," Melzer v. Bd. of Educ., 336 F.3d 185, 193 (2d Cir. 2003), and the Court cannot make that determination on the present record at this procedural stage.