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March 13, 1991


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 Finance Department.

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 employment contract.

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 (1970).

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 Department.

Analysis of this issue begins with two United States Supreme Court decisions.

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 that:

  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 stated that:

  [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 Court limited its holding to the case of public defenders and expressly declined to rule on whether assistant prosecutors could be dismissed for political affiliation. Branti, 445 U.S. at 519 n. 13, 100 S.Ct. at 1295 n. 13.

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 vote." Id.

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 employees.

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 ...

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