The opinion of the court was delivered by: Larimer, District Judge.
Lawrence F. Tranello ("plaintiff") commenced this action on
May 2, 1988, against defendants Thomas R. Frey, individually
and as Monroe County Executive, Patrick M. Malgieri,
individually and as Monroe County Attorney and the County of
Monroe (County). Plaintiff claims that the defendants
discriminated against him by terminating his employment as a
Deputy County Attorney, in violation of the First, Fourth,
Fifth and Fourteenth Amendments of the Constitution of the
United States, the Civil Rights Statutes, 42 U.S.C. § 1981,
1983 and 1985, and the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. § 621 et seq.
This matter is before the Court on defendants' motion for
summary judgment. Plaintiff has also cross-moved for summary
judgment on the issue of liability. For the reasons that
follow, defendants' motion is granted except as to plaintiff's
age discrimination claims. Plaintiff's cross-motion is denied
in its entirety.
Plaintiff is 63 years old and a registered Republican.
In January 1972, plaintiff was hired by the Monroe County
Department of Social Services as Assistant Social Services
Counsel. Initially, plaintiff was assigned to handle paternity
and child support matters for the Department. Then, in July
1974, plaintiff was elevated to the position of Chief Counsel
to the Department of Social Services.
In 1977, plaintiff was assigned to the Support Unit in the
Department of Social Services. As part of a reorganization of
the County Law Department, authorized by the Monroe County
Legislature in May 1985, several new positions were created
within the Department of Law.
As a result of this reorganization, the attorneys in the
Support Unit were placed under the supervision of the County
Attorney. The Unit's support staff, including secretaries and
paralegals, however, remained under the supervision of the
On May 10, 1985, plaintiff was notified of his appointment as
Deputy County Attorney, Grade II, by then-County Attorney
Charles Valenza and was given the option of accepting or
rejecting the position. As a Deputy County Attorney, Grade II,
salary would be increased to nearly $38,000. In addition,
plaintiff was informed at that time of a revision in the
description of his duties and a change in his civil service
classification. Prior to his May 1985 appointment, plaintiff
was a member of the "competitive" civil service class. His
position as a Deputy County Attorney, Grade II, however, was
classified by the County Civil Service Commission as "exempt."
Plaintiff accepted the terms of his appointment on May 14,
1985, and was assigned to the Law Department of the County
Attorney's Office. At that time, County Attorney Valenza
designated plaintiff as "in charge" of the other paternity and
support attorneys in the Office. At his deposition, plaintiff
conceded that his position among the support attorneys was
supervisory in nature.
According to plaintiff, his duties as Deputy County Attorney,
required him to act as the liaison between the County Attorney
and the attorneys in the Support Unit. He testified that he was
responsible for "convey[ing] whatever thoughts or directions
[the County Attorney] might have . . ., and for . . .
inform[ing] him of what was happening in the area of support
and paternity attorneys." Tranello Dep. at 29. Plaintiff
remained in this supervisory role, at County Attorney Valenza's
request, until plaintiff's termination in January 1988.
In November 1987, defendant Thomas Frey, a Democrat, was
elected Monroe County Executive, defeating the Republican
incumbent. Frey appointed defendant Patrick Malgieri, also a
Democrat, to replace Valenza, a Republican, as County Attorney
in December 1987.
Before taking office in January, Malgieri allegedly was told
of problems concerning poor supervision and a lack of
efficiency in the Support Unit by Margaret Burt, an attorney in
the Public Defender's office. Burt is a Democrat, and at the
time of her discussion with Malgieri was an applicant for a
position in the County Attorney's office. She is currently
employed as a Deputy County Attorney and her duties include
supervision of the Support Unit.
On January 1, 1988, defendants Frey and Malgieri took office.
On or about January 4, 1988, defendant Malgieri informed
plaintiff of his termination. Malgieri claims that he discussed
the reasons for the dismissal with plaintiff. According to
Malgieri, plaintiff was informed that the principal reason for
his termination was his failure to adequately supervise the
Support Unit. Plaintiff, however, admits being told on the day
of his dismissal only that there were some problems in the
Unit. He denies that any further explanation was given. It is
plaintiff's contention that the stated reasons for his
termination are pre-textual and that he was terminated because
of his political affiliation and his age.
Subsequently, plaintiff filed charges with the Equal
Employment Opportunity Commission and the New York State
Division of Human Rights, claiming age discrimination.
Plaintiff thereafter commenced this action, asserting that his
termination violated his rights under the First, Fourth, Fifth
and Fourteenth Amendments. He alleges, inter alia, that he was
terminated because of his political affiliation and age, that
his discharge without a pre-termination hearing constituted a
deprivation of his property right in his job without due
process of law, and that his termination was a breach of his
Defendants move for summary judgment as to each of
plaintiff's claims. At the outset, defendants argue that
plaintiff's First Amendment and ADEA claims should be dismissed
because plaintiff's position as a deputy county attorney brings
him within the "policymaking" exemptions enunciated in
Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574
(1980) and Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49
L.Ed.2d 547 (1976). Second, defendants Frey and Malgieri
contend that they are entitled to summary judgment based on
qualified immunity. Next, defendants maintain that plaintiff's
due process claims must fail because plaintiff did not have a
property interest in his position. Finally, defendants allege
that plaintiff's breach of contract claim is groundless since
he was an "at-will" employee.
A. Summary Judgment: The Legal Standard.
Federal Rule of Civil Procedure 56(c) requires summary
judgment where the record shows that "there is no genuine issue
as to any material fact and that the moving party is entitled
to judgment as a matter of law." The purpose of a summary
judgment motion "is to isolate and dispose of factually
unsupported claims. . . ." Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The
burden of demonstrating the lack of any genuine issue of
material fact rests on the moving party. Adickes v. S.H. Kress
& Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142
A genuine issue of material fact exists if the evidence in
the record when the motion is made would permit reasonable
jurors to return a verdict in favor of the non-movant. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505, 2510, 91 L.Ed.2d 202 (1986). A party opposing summary
judgment, if it bears the burden of proof at trial, must come
forward with evidence showing the existence of facts from which
a jury could return such a verdict. See Celotex, 477 U.S. at
324-25, 106 S.Ct. at 2553-54; Thompson v. Gjivoje,
896 F.2d 716, 720 (2d Cir. 1990). Ambiguities or inferences to be drawn
from the facts must be viewed in a light most favorable to the
party opposing the summary judgment motion. Adickes, 398 U.S.
at 157, 90 S.Ct. at 1608.
B. First Amendment Claims: Political Affiliation.
Plaintiff claims that he was terminated from his 16-year
position as Deputy County Attorney because he was a Republican
and was ousted by the incoming Democratic Administration.
Defendants deny this but also claim that such a dismissal would
not be improper under the First Amendment because of
plaintiff's high level "policymaking" position within the Law
Analysis of this issue begins with two United States Supreme
In Elrod v. Burns, 427 U.S. 347, 349, 355, 372-73, 96 S.Ct.
2673, 2678, 2680-81, 2689-90, 49 L.Ed.2d 547 (1976), the
Supreme Court held that the dismissal of certain public
employees solely because of their political affiliation
violated the rights to freedom of political belief and
association protected by the First Amendment.
The plurality opinion in Elrod also suggested that the same
protection would not apply to policymaking and confidential
employees in order to protect the power of an elected
administration to implement its policies and goals. 427 U.S. at
367, 96 S.Ct. at 2686-87. Justice Brennan, writing for the
plurality, acknowledged the difficulty of drawing a clear line
between policymaking and nonpolicymaking positions. He noted
An employee with responsibilities that are not
well defined or are of broad scope more likely
functions in a policymaking position. In
determining whether an employee occupies a
policymaking position, consideration should also
be given to whether the employee acts as an
adviser or formulates plans for the implementation
of broad goals.
427 U.S. at 368, 96 S.Ct. at 2687.
Four years later, in Branti v. Finkel, 445 U.S. 507, 100
S.Ct. 1287, 63 L.Ed.2d 574 (1980), the Court reaffirmed its
disapproval of purely patronage dismissals in a case involving
two Staten Island public defenders and reformulated the
policymaking exception set forth in Elrod. The Supreme Court
[T]he ultimate inquiry is not whether the label
"policymaker" or "confidential" fits a particular
position; rather, the question is whether the
hiring authority can demonstrate that party
affiliation is an appropriate requirement for the
effective performance of the public office
Branti, 445 U.S. at 518, 100 S.Ct. at 1295.
The Second Circuit has recently considered the "policymaker"
exemption in a case very similar to the circumstances of
plaintiff's case. In Savage v. Gorski, 850 F.2d 64 (2d Cir.
1988), the Court approved the firing of three public employees
by the newly-elected Erie County executive. These employees
were three of the one hundred and forty-three that held
"exempt" positions with the County under New York Civil Service
Law. The Court reversed the district court's preliminary
injunction that enjoined the terminations.
The Court interpreted the language of Branti to mean "that
political affiliation is an appropriate requirement when there
is a rational connection between shared ideology and job
performance." Savage, 850 F.2d at 68, (citing Branti, 445 U.S.
at 518, 100 S.Ct. at 1294-95). This interpretation "would
exempt from protection most policymaking and confidential
employees, but not — as in the Court's example — a football
coach at a state university." Id. In Savage, the Second Circuit
concluded that "[a]ny other decision would severely handicap an
incoming administrator's ability to carry out his proposed
policies, thereby undercutting the effects of the electorate's
The recent Supreme Court case concerning patronage firings,
Rutan v. Republican Party of Illinois, ___ U.S. ___, 110 S.Ct.
2729, 111 L.Ed.2d 52 (1990), did not alter the Elrod-Branti
exemption for high level employees. The Court recognized that
there are many government positions for which party affiliation
is an appropriate requirement. Although the scope of the
policymaking exception was not at issue in Rutan because the
defendants in that case conceded that the plaintiff employees
were not policymakers, the Court nevertheless affirmed the
Elrod-Branti principle that "a government's interest in
securing employees who will loyally implement its policies can
be adequately served by choosing or dismissing certain high
level employees on the basis of their political views." 110
S.Ct. at 2735 n. 5 and 2737.
For the purposes of this motion, the threshold issue is
whether plaintiff held a confidential or policymaking position.
See Branti, supra; Livas v. Petka, 711 F.2d 798, 800 (7th Cir.
1983); O'Connell v. Gorski, 715 F. Supp. 1201, 1203 (W.D.N.Y.
1989); Ecker v. Cohalan, 542 F. Supp. 896, 910 (E.D.N.Y. 1982).
If so, then plaintiff would not be entitled to relief based on
the Elrod-Branti exception for confidential policymaking
At trial, of course, the threshold issue would be different.
Plaintiff would have to show in the first instance that his
Republican affiliation was a substantial or motivating factor
in defendants' decision to fire him. See O'Connell, 715 F. Supp.
at 1202. This aspect is in much dispute. Defendants claim that
plaintiff's political registration was not a factor and was
unknown to them. In any event, defendants' motivation in
discharging plaintiff and their knowledge of his political
affiliation clearly ...