United States District Court, Western District of New York
March 13, 1991
LAWRENCE F. TRANELLO, PLAINTIFF,
THOMAS R. FREY, INDIVIDUALLY AND AS MONROE COUNTY EXECUTIVE, PATRICK M. MALGIERI, INDIVIDUALLY AND AS THE MONROE COUNTY ATTORNEY AND THE COUNTY OF MONROE, DEFENDANTS.
The opinion of the court was delivered by: Larimer, District Judge.
DECISION AND ORDER
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 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
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 involve credibility determinations which
may not be resolved on a motion for summary judgment.
O'Connell, 715 F. Supp. at 1203.
Assuming that plaintiff's contentions are true, however,
summary judgment may still be granted for defendants on
plaintiff's First Amendment claim if plaintiff held a
confidential or policymaking position.
Plaintiff contends that the proper inquiry in determining
policymaker status is whether the plaintiff in fact performed
confidential, policymaking functions. Plaintiff portrays his
role in the County Attorney's office as performing purely
technical legal work in Family Court. In particular, plaintiff
states that during his sixteen years as an attorney for the
county his duties consisted entirely of paternity and support
matters. He claims that he was a mere administrative employee
with no real policymaking power. Consequently, plaintiff argues
that his actual duties rather than the "inherent powers" of his
office should control.
In my view, the law is to the contrary. It is the power
inherent in the office that controls. The proper focus in this
on the "powers inherent in a given office, as opposed to the
functions performed by a particular occupant of that office."
Tomczak v. City of Chicago, 765 F.2d 633, 640 (7th Cir.), cert.
denied, 474 U.S. 946, 106 S.Ct. 313, 88 L.Ed.2d 289 (1985); see
also Stott v. Haworth, 916 F.2d 134, 142 (4th Cir. 1990) (look
to powers inherent in the office); Brown v. Trench,
787 F.2d 167, 168 (3d Cir. 1986) (look to "function of the public office
in question and not the actual past duties of the particular
employee involved."); Jimenez Fuentes v. Torres Gaztambide,
807 F.2d 236, 241-42 (1st Cir. 1986), cert. denied, 481 U.S. 1014,
107 S.Ct. 1888, 95 L.Ed.2d 496 (1987) (same); Bauer v. Bosley,
802 F.2d 1058, 1064 (8th Cir. 1986), cert. denied,
481 U.S. 1038, 107 S.Ct. 1976, 95 L.Ed.2d 816 (1987) (same); O'Connell,
715 F. Supp. at 1203 (the determinative inquiry "is not what
functions the public employee actually performed but rather
what duties he was actually empowered to perform and which ones
were inherent in the public office he held.").
The Court in Tomczak v. City of Chicago stated that:
[I]f an officeholder performs fewer or less
important functions than usually attend his
position, he may still be exempt from the
prohibition against political terminations if his
position inherently encompasses tasks that render
his political affiliation an appropriate
prerequisite for effective performance. In this
court's reiteration of the Branti formulation, we
emphasized the functions of the office involved,
not the officeholder: "The test is whether the
position held by the individual authorizes, either
directly or indirectly, meaningful input into
government decision making on issues where there is
room for principled disagreement on goals or their
implementation." Nekolny v. Painter, 653 F.2d 1164,
1170 (7th Cir. 1981), cert. denied, 455 U.S. 1021,
102 S.Ct. 1719, 72 L.Ed.2d 139 (1982).
765 F.2d at 641 (emphasis added).
The Second Circuit has specifically adopted this analysis. In
Savage, 850 F.2d at 66, the Court looked to the "position's job
description," rather than the employee's actual duties, in
determining whether the employee was a policymaker. Under this
standard, it is more important to examine plaintiff's job
description and the powers conferred by county law than to
analyze the tasks actually performed by plaintiff.
The office of Deputy County Attorney, Grade II, is inherently
confidential and the fact that plaintiff may have handled
litigation in Family Court for most of his tenure does not
change the confidential nature of his position. See O'Connell,
715 F. Supp. at 1204; Finkelstein v. Barthelemy, 678 F. Supp. 1255
(E.D.La. 1988) (and cases cited therein). It is irrelevant
that plaintiff's actual role may have been highly constricted.
Under the Monroe County Charter, New York County Law § 502
and the job description for a Deputy County Attorney, Grade II,
it is contemplated that deputy county attorneys may be relied
upon "for the legal advice necessary to implement policy." Ness
v. Marshall, 660 F.2d at 522. That one County Attorney may have
chosen not to employ his deputies in this manner should not
prevent future County Attorneys from delegating their power to
the fullest extent authorized by law.
New York County Law, § 502(1) provides that the County
Attorney may appoint assistants and may revoke those
appointments at any time. Section 502(2) provides that
assistants may perform "such duties pertaining to the office as
may be directed by the County Attorney."
The Monroe County Charter, Section 614,*fn1 provides, in
relevant part, that:
The County Attorney shall have the following
powers and duties: (1) To serve as the legal
advisor for the County and, on its behalf in
county matters, of its officers and agencies; (2)
To serve as legal advisor to the county
legislature; (3) To advise all county officers and
in all county matters of a legal nature . . .; (4)
To prosecute or defend all actions or proceedings
of a civil nature brought by or against the
county; . . . (9) To appoint one or more deputy
county attorneys, subject to the approval of the
county executive; . . .
Moreover, plaintiff's job description shows that his position
as a Deputy County Attorney, Grade II, inherently encompassed
tasks that rendered his political affiliation an appropriate
prerequisite for effective performance. The job description
contains a list of "Typical Work Activities" that may be
performed, "depending upon assignment by the County Attorney."
According to plaintiff's job description, a Deputy County
Attorney, Grade II:
Counsels with and advises County Legislators, the
County Executive, County Commissioners, department
heads, and other County officials and personnel on
questions of law affecting the County and its
various departments and offices; Conducts the
handling of claims and litigation on behalf of the
County, its departments and offices. . . .
This job description provides that a Deputy County Attorney may
render "legal advice to County officials" and may perform any
other "duties as may be assigned by the County Attorney."*fn2
The County Attorney and his Deputies are empowered to give
legal advice to various County officials. They are also
entitled to litigate on behalf of the County and its
departments. Since plaintiff was authorized to perform whatever
duties pertaining to the office of the County Attorney as were
delegated to him, he was clearly a confidential employee.
N.Y. County Law § 502(2) and (3); O'Connell, 715 F. Supp. at
Government attorneys, because they are attorneys, must
advocate the positions of and counsel the government officials
for whom they work. Finkelstein, 678 F. Supp. at 1265. Legal
decisions made by a governmental entity may encompass political
beliefs and concerns. Thus, a County Executive or a County
Attorney is entitled to have counselors who support his
political beliefs and agenda. Ness v. Marshall, 660 F.2d at
522; Finkelstein, 678 F. Supp. at 1265. Unlike most civil
servants, "attorneys who work for a local government should
realize, even before they are hired, that their tenure often
has much less to do with their competency than with the
day-to-day happenstance of partisan affiliations of the local
leaders whom they advise and counsel." Finkelstein, 678 F. Supp.
There are several additional reasons to place plaintiff's job
at the policymaking end of the spectrum, "where the individual
employee's political or social philosophy can make a
difference. . . ." Savage, 850 F.2d at 69. First, as Deputy
County Attorney, Grade II, plaintiff had a high salary, "a
common characteristic of policymaking positions." Id. at 68. At
the time of his dismissal in January 1988, plaintiff's annual
salary was $46,770. This salary indicates that plaintiff held a
confidential or policymaking position.
Next, plaintiff's position was classified as "exempt" under
New York State Civil Service Law. In the interests of
federalism, the Court must give "substantial deference" to the
state's judgment to exempt this position. Savage, 850 F.2d at
69. "Otherwise, federal courts will be embroiled in determining
at each change of state or local administration which positions
are appropriately within the political patronage system." Id.
Furthermore, the determination concerning whether to exempt
plaintiff's position from First Amendment protection involves
essentially the same factors and considerations that New York
State and Monroe County considered in exempting this position
from the State's constitutionally-required civil service
system. Savage, 850 F.2d at 69.
In Savage, the Second Circuit noted that "`[t]he criteria
[used to designate a position as exempt] are the confidential
of the position, the performance of duties which require the
exercise of authority and discretion at a high level, or the
need . . . to have some expertise or personal qualities which
cannot be measured by a competitive exam.'" Savage, 850 F.2d at
69 (quoting Burke v. Axelrod, 90 A.D.2d 577, 578, 456 N.Y.S.2d
135, 137 (3d Dep't 1982)). Consequently, plaintiff's position,
as a matter of law, was of a confidential, policymaking nature.
Since there was a rational connection between shared ideology
and job performance concerning the position of Deputy County
Attorney, Grade II, plaintiff was subject to termination under
the Elrod-Branti exemption for policymakers. Therefore,
defendants' motion for summary judgment is granted as to
plaintiff's First Amendment claims.
C. Qualified Immunity.
Alternatively, defendants Frey and Malgieri move for summary
judgment on the grounds that they are entitled to qualified
immunity. The parties in this case do not dispute what
constitutes the elements of this defense. Rather, they contest
whether the law was "clearly established" at the time plaintiff
The Supreme Court has held that "government officials
performing discretionary functions are generally shielded from
liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights
of which a reasonable person would have known." Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d
396 (1982). The standard for determining qualified immunity in
federal court "was designed to facilitate resolution of the
defense on a motion for summary judgment." Warren v. Dwyer,
906 F.2d 70, 74 (2d Cir.), cert. denied, ___ U.S. ___, 111 S.Ct.
431, 112 L.Ed.2d 414 (1990).
The touchstone of the qualified immunity defense is
"objective legal reasonableness." Anderson v. Creighton,
483 U.S. 635, 641, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (1987).
The principal issue, therefore, is whether, in January 1988,
plaintiff had a clearly established constitutional or statutory
right not to be terminated from his position because of his
political affiliation. See Hawkins v. Steingut, 829 F.2d 317,
319 (2d Cir. 1987). Only if plaintiff had such a right, and the
individual defendants should reasonably have known that their
conduct was illegal, would these defendants lose the protection
of qualified immunity. Id.
Obviously, in light of my ruling in Part B of this decision,
I believe that plaintiff had no such right. I believe that the
Elrod and Branti cases from the Supreme Court, and their
progeny, demonstrate that plaintiff's firing could be justified
depending on the nature of his duties. At the very least, these
cases indicate that the law was not clearly established at the
time of plaintiff's discharge. In fact, the Second Circuit in
1987 stated that:
While Elrod and Branti developed a useful framework
for assessing the constitutionality of patronage
dismissals, it cannot be said that these decisions
clearly established the law with respect to every
governmental position. Following Branti, the courts
have proceeded on a case by case basis to enumerate
the permissible and impermissible instances of
politically motivated employment decisions;
however, the Branti guidelines do not lend
themselves to easy or automatic application.
Hawkins, 829 F.2d at 320.
In Finkelstein v. Barthelemy, 678 F. Supp. 1255, 1260 (E.D.La.
1988), the court listed numerous cases, decided prior to 1988,
where courts upheld the political dismissal of government
attorneys, even those whose actual work was narrowly limited to
specific, non-controversial areas and who had several superiors
over them. These cases indicate a reluctance to define the
Elrod/Branti exception too narrowly.
Since the law was not clearly established in plaintiff's
favor in January 1988, the individual defendants could have
believed in good faith and with objective reasonableness that
the firing was constitutionally permissible. Therefore, in the
alternative, defendants Frey and Malgieri are entitled to
summary judgment on plaintiff's First Amendment claims.
D. ADEA Claim.
1. The Definition of an "Employee" Under the ADEA.
The defendants move for summary judgment on plaintiff's age
discrimination claims arguing that plaintiff falls within an
exception to the ADEA's definition of "employee." Defendants
maintain that as a policymaker and legal adviser plaintiff is
excluded from the protection of the ADEA. The defendants
further allege that analysis of the ADEA exclusion for
policymaking employees is identical to the reasoning applied to
plaintiff's First Amendment claims. See, e.g., E.E.O.C. v.
Reno, 758 F.2d 581 (11th Cir. 1985). For the reasons set forth
below, defendants' interpretation of the ADEA exception must be
The ADEA makes it unlawful for an employer "to fail or refuse
to hire or to discharge any individual or otherwise
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's age." 29 U.S.C. § 623(a)(1). In
defining the term "employee," however, the Act expressly
excepts elected public officials, persons appointed by an
elected official to his or her personal staff and "appointee[s]
on the policy-making level or . . . immediate adviser[s] with
respect to the exercise of the constitutional or legal powers
of the office." 29 U.S.C. § 630(f).
In contrast with the First Amendment exception, the
policymaker exception to the ADEA definition of "employee" must
be construed narrowly. See E.E.O.C. v. Vermont, 904 F.2d 794,
800 (2d Cir. 1990). In Vermont, the Second Circuit recently
analyzed the scope of the policymaking exception to the Act's
definition of "employee":
The definition of "employee" excepts two broad
groups from the protection of the Act. The first
group is elected officials of a state or its
political subdivisions; the second group is
certain, though not all, of the persons appointed
by those elected officials. The second group
comprises three categories of such appointees:
i.e., (1) "person[s] chosen by such officer to be
on such officer's personal staff," (2)
"appointee[s] on the policymaking level" . . ., and
(3) "immediate adviser[s] with respect to the
exercise of the constitutional or legal powers of
904 F.2d at 797-98.
The Court concluded that the policymaker category of § 630(f)
comprises only those employees working closely with the elected
official who appointed them. Id. at 798. "Plainly, the first
and third categories, i.e., the elected official's personal
staff and his immediate advisers, refer to persons who would
work closely with the elected official, and we would infer that
the middle category was intended to share basic characteristics
of the categories that surrounded it." Id. Moreover, the Court
in Vermont expressly rejected the argument made by
defendants here that the policymaker exception covers any
person appointed to a policymaking position. Id.
The definition of "employee" under the ADEA is the same
definition as that found under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq. Clearly, Title VII was a
model for the ADEA. See Lorillard v. Pons, 434 U.S. 575, 584,
98 S.Ct. 866, 872, 55 L.Ed.2d 40 (1978) (the "prohibitions of
the ADEA were derived in haec verba from Title VII").
Therefore, although there is no legislative history with
respect to the definition of "employee" in the ADEA, there is
legislative history concerning Title VII and the exemptions of
covered employees. In fact, the Court of Appeals in E.E.O.C. v.
Vermont relied upon the legislative history of § 2000e(f)'s
exceptions to the definition of a Title VII "employee." 904
F.2d at 798-800.
The legislative history of § 2000e(f) makes clear that the
policymaking exception to Title VII is to be construed
narrowly. For example, during Senate debate on the 1972
amendments to Title VII, Senator Jacob Javits argued that it
was necessary to limit the scope of the "adviser" exception in
the definition of "employee." Vermont, 904 F.2d at 799 (citing
118 Cong.Rec. 4097 (1972)). Senator Javits suggested confining
the immediate adviser exception to higher officials in a
"policymaking or policy advising capacity." Id. He added:
"The other thing, the immediate advisers, I was
thinking more in terms of a cabinet, of a Governor
who would call his commissioners a cabinet, or he
may have a cabinet composed of three or four
executive officials, or five or six, who would do
the main and important things. That is what I
would define those things to expressly mean."
Id. (quoting 118 Cong.Rec. at 4493).
In the end, the House and Senate conferees agreed to add a
policymaker category to the group of appointees to be excluded
from the protection of Title VII. Id.
Finally, the legislative history of § 2000e(f) contains the
following statement issued by the conferees:
"It is the intention of the conferees to exempt
elected officials and members of their personal
staffs, and persons appointed by such elected
officials as advisers or to policymaking positions
at the highest levels of the departments or
agencies of State and local governments, such as
cabinet officers, and persons with comparable
responsibilities at the local level."
Id. at 800 (quoting 1972 U.S. Code Cong. & Admin. News 2137,
2180) (emphasis added).
In the instant case, plaintiff was neither an elected
official nor an appointee of an elected official. The
legislative history shows that only those policymakers chosen
by the county executive "who are in a close personal
relationship [or] an immediate relationship with him" may be
exempt from the coverage of the ADEA. 904 F.2d at 799 (quoting
118 Cong.Rec. 4492-93 (1972)). Since plaintiff was not
appointed by the county executive, he does not fall within the
statutory exception for "appointees on the policymaking level."
Although it is somewhat anomalous that plaintiff is a
policymaker under the First Amendment analysis but not under
the ADEA, there are valid reasons for the difference. First,
unlike the judicially created Elrod/Branti guidelines which do
not lend themselves to easy or automatic application, Hawkins
v. Steingut, supra, the ADEA exception for policymaking
employees was created by statute. Further, the Second Circuit
has interpreted the Elrod/Branti exception broadly to exempt
most confidential and policymaking employees from First
Amendment protection. Savage, 850 F.2d at 68.
On the other hand, Title VII's legislative history supports
a narrow interpretation of § 630(f) and its exceptions. Relying
on this legislative history, the Second Circuit has rejected
the notion that the ADEA policymaker exception covers any
person appointed to a policymaking position. Vermont, 904 F.2d
at 798. This is in keeping with the broad scope of the ADEA and
its purpose of eliminating age discrimination.
Although it may be reasonable to liberally construe the
policymaker exception under First Amendment analysis to assure
that policies of newly elected officials are implemented, it
does not follow that the exceptions under the ADEA should be
similarly construed. Such a broad interpretation would only
dilute the age discrimination prohibitions without any
corresponding benefit to the elected official. An elected
official may be able to pick his advisors for their loyalty,
but it does not follow that he can exclude certain ones solely
because of age.
In view of the narrow way in which the policymaker exception
has been interpreted by the Second Circuit, plaintiff was not
a person "on the policymaking level" as that term is used in
§ 630(f) of the ADEA. Consequently, defendants' motion for
summary judgment on plaintiff's ADEA claim must be denied.
2. Plaintiff's Motion for Summary Judgment on the ADEA Claim.
Plaintiff contends that he is entitled to summary judgment on
the issue of liability under the ADEA.*fn3 Plaintiff argues
that he has made out a prima facie case by showing that he is
a member of the protected class and that he was replaced by a
younger person with less experience. Plaintiff states that the
defendants' purported reasons justifying the termination were
merely pretextual. The proof of this, according to plaintiff,
is the fact that defendant Malgieri's only source concerning
plaintiff's alleged incompetence was Margaret Burt, a
prospective job applicant. In addition, plaintiff claims that
defendants, after taking office, fired or transferred all
attorneys over the age of 50 in the County Law Department.
Defendants, on the other hand, allege that plaintiff was
terminated for cause because of his failure to adequately
supervise the attorneys in the Support Unit. The defendants'
motivation and claimed legitimate reason for the dismissal
raise genuine issues of material fact which may not be resolved
on this motion. For this reason, plaintiff's cross-motion for
summary judgment must also be denied.
3. The Status of Defendants Frey and Malgieri as "Employers"
Under the ADEA.
Defendants Frey and Malgieri move for summary judgment as to
plaintiff's ADEA claims on an alternative ground. Specifically,
Frey and Malgieri argue that they are not "employers" under the
ADEA, and are therefore not subject to suit under that statute.
The term "employer" under the ADEA "means a person engaged in
an industry affecting commerce who has twenty or more employees
. . . [and] (1) any agent of such a person, and (2) a State or
political subdivision of a State and any agency or
instrumentality of a State or political subdivision of a
State." 29 U.S.C. § 630(b). The Act also defines the term
"person." This definition, however, does not include any
reference to states and political subdivisions. 29 U.S.C. § 630(a).
Section 630(b) refers expressly to an agent of a "person" as
an employer but fails to refer to an agent of a state or its
instrumentalities. Apparently, Congress made no provision for
agents of states and political subdivisions. Consequently, the
Court concludes that agents of a state or political subdivision
of a state are not employers within the meaning of 29 U.S.C. § 630(b).
See also Sagarino v. Town of Danvers, 750 F. Supp. 51,
52 (D.Mass. 1990) (Town attorney not an employer under the
ADEA); Price v. County of Erie, 654 F. Supp. 1206, 1207
(W.D.N.Y. 1987) ("A fair reading of the statute's language is
that agents of a state's instrumentalities . . . are not
employers within the contours of the ADEA"); Young v. Sedgwick
County, 660 F. Supp. 918, 924 (D.Kan. 1987); McCroan v. Bailey,
543 F. Supp. 1201, 1210-11 (S.D.Ga. 1982).
The statute itself clearly reflects a difference between
those engaged in commerce and political subdivisions. Congress
could have changed the result. "It would have only required the
insertion of the short phrase `and their agents' in
29 U.S.C. § 630(b)(2) to express Congress' intent to hold individuals
such as these defendants liable for age discrimination." Ditch
v. Board of County Commissioners, 650 F. Supp. 1245, 1251
(1986), modified on other grounds, 669 F. Supp. 1553 (D.Kan.
The legislative history of amendments to the ADEA and Title
VII lends support to the view that Congress intended to exclude
from the proscriptions of the ADEA agents of states and
political subdivisions. See Price v. County of Erie,
654 F. Supp. 1206, 1207-08 (W.D.N.Y. 1987). For example, Title VII
and the ADEA originally applied only to certain private
employers. Then, in 1972, Title VII was amended to expressly
include within its parameters state and local governments.
Likewise, the definition of the term "person" in Title VII was
also changed to include governments, governmental agencies and
political subdivisions. See 42 U.S.C. § 2000e(a); Price, 654
F. Supp. at 1208. By amending the Title
VII definition of "person," Congress clearly designated agents
of states and their instrumentalities as "employers." Congress,
however, failed to follow this pattern in 1974 when it amended
the ADEA. Price, 654 F. Supp. at 1208.
Given the language of the ADEA, this Court finds that
plaintiff's ADEA claim against defendants Frey and Malgieri
fails to state a cause of action. Thus, the individual
defendants are entitled to judgment as a matter of law.
E. Deprivation of Property Interest.
The defendants also move for summary judgment on plaintiff's
due process claims asserting that plaintiff did not have a
property interest in his position. Plaintiff, however, contends
that he was entitled to a pre-termination hearing pursuant to
§ 75 of the New York State Civil Service Law. Since the
defendants failed to provide such a hearing, plaintiff alleges
that defendants deprived him of his property, in violation of
his Fourteenth Amendment right to due process.
However, "[a] property interest in a particular position
arises only when an individual possesses `a legitimate claim of
entitlement' to continued job tenure. Such entitlements are not
created by the Constitution, but rather by independent sources
such as state law." Hawkins v. Steingut, 829 F.2d 317, 321 (2d
Cir. 1987) (citations omitted). In plaintiff's case, the
controlling state law does not create a "legitimate claim of
entitlement" to continuing job tenure. See N.Y. County Law §
Plaintiff, as a member of the exempt class of the Civil
Service, did not hold his "position by right of entitlement
but, rather, at the pleasure of the [County Attorney]."
DeLucia v. Lefkowitz, 62 A.D.2d 674, 406 N.Y.S.2d 150, 152 (3d
Dep't 1978), aff'd sub nom. Hopkins v. Lefkowitz, 48 N.Y.2d
901, 424 N.Y.S.2d 897, 400 N.E.2d 1349 (1979). In fact, section
502(1) of the County Law provides that "any such appointment
[of an assistant county attorney] may be revoked by the county
attorney at any time. . . ." (emphasis added).
Plaintiff also claims that he is entitled to job protection
as a World War II veteran. He claims that he is protected by
New York Civil Service Law § 75(1)(b) which protects certain
employees, including veterans, from removal "except for
incompetency or misconduct shown after a hearing. . . ." The
parties agree that only the category defined in § 75(1)(b) is
relevant to plaintiff. Section 75(1)(b) provides protection to:
[A] person holding a position by permanent
appointment or employment in the classified
service of the state or in the several cities,
counties, towns or villages thereof, or in any
other political or civil division of the state or
of a municipality, . . . who was honorably
discharged or released under honorable
circumstances from the armed forces of the United
States having served therein as such member in
time of war defined in section eighty-five of this
chapter, . . . except when a person described in
this paragraph holds the position of private
secretary, cashier or deputy of any official or
The crucial issue to be decided here is whether, as a matter
of law, plaintiff was a "deputy" as that term is used in the
veterans' discharge statute, § 75(1)(b). A review of the state
court decisions interpreting § 75(1)(b), and its predecessor
statute, reveals that the term "deputy" has been construed
broadly in cases involving government attorneys. See Byrnes v.
Windels, 265 N.Y. 403, 193 N.E. 248 (1934); DeLucia v.
Lefkowitz, supra; Clarke v. O'Brien, 91 Misc.2d 190, 397
N.Y.S.2d 509 (Sup.Ct. Suffolk Co. 1975), aff'd, 56 A.D.2d 869,
392 N.Y.S.2d 383 (2d Dep't 1977); Darcy v. Fraiman, 49 Misc.2d 319,
267 N.Y.S.2d 455 (Sup.Ct.N.Y.Co.), aff'd, 25 A.D.2d 951,
270 N.Y.S.2d 374 (1st Dep't), appeal denied, 18 N.Y.2d 578, 274
N.Y.S.2d 1025, 220 N.E.2d 813 (1966).
"An appointee's status as deputy is determined not by what
the appointee in fact does but by what he is directed or
authorized to do by statute, i.e. whether there is a statute
authorizing the principal officer
to delegate his duties to the subordinate." Clarke v. O'Brien,
397 N.Y.S.2d at 511; see also Behringer v. Parisi, 5 N.Y.2d
147, 151, 182 N.Y.S.2d 365, 156 N.E.2d 71 (1959) ("It is
sufficient if a statute authorizes the delegation . . . of
duties") (emphasis in original).
In Clarke, a case virtually identical to the present one, an
assistant district attorney in the exempt class sought
reinstatement under § 75(1)(b) after his appointment was
revoked. The Clarke court found that § 702 of the N.Y. County
Law authorized the district attorney to delegate duties to his
assistants and, in turn, directed his assistants to perform the
powers and duties of the office in the principal's absence. 397
N.Y.S.2d at 511. This authorization was sufficient to bring the
assistant district attorney in that case within the statutory
exclusion for "deputies." The court also noted that "the nature
of the position requires that [the district attorney] be
entitled to appoint and remove his assistants at will." Id.
Significantly, § 502 of the County Law, which applies to
assistant county attorneys, is identical to § 702. Section
502(1) empowers the county attorney to revoke the appointment
of an assistant county attorney at any time. Subdivision 2
mandates the performance by the assistant of such duties
pertaining to the office as the county attorney may direct.
Plaintiff contends, however, that § 41(1)(b) of the N.Y.
Civil Service Law narrowly defines the term "deputy" and that
this definition governs the meaning of the term "deputy" in the
veterans' discharge statute. Section 41(1)(b) provides that
"the deputies of principal executive officers authorized by law
to act generally for and in place of their principals" shall be
members of the exempt class of the Civil Service.
New York courts have rejected plaintiff's contention that the
meaning of the term "deputy" in § 41(1)(b) limits use of the
term "deputy" in § 75(1)(b). See, e.g., Byrnes v. Windels, 265
N.Y. at 409, 193 N.E. 248 (use of the word "deputy" in
predecessor statute to § 41(1)(b) was "not intended to be a
definition or limitation upon the use of word throughout the
entire act"); DeLucia v. Lefkowitz, 62 A.D.2d 674, 406 N.Y.S.2d
at 152 ("The term, as used in section 75 of the Civil Service
Law, may be broader in meaning than the term as used in
subdivision 1 of section 41."); Clarke, 397 N.Y.S.2d at 511
(same). Accordingly, this court declines to impose a narrower
interpretation of the word "deputy" than a New York State court
would in this situation.
Based on the above authority, plaintiff was not in a
protected class and was not entitled to a pre-termination
hearing. Therefore, defendants are entitled to summary judgment
on plaintiff's due process claims.
F. Breach of Contract.
Finally, defendants move for summary judgment on the grounds
that there was no breach of an employment contract because
plaintiff was an "at-will" employee. Plaintiff, on the other
hand, responds that the defendants breached an employment
contract by failing to provide him with a pre-termination
hearing. Plaintiff's only basis for this claim is § 75(1)(b) of
the Civil Service Law, the veterans' discharge statute, which I
have rejected in Part E. In any event, plaintiff's claim that
he had a lifetime contract with the County of Monroe is clearly
First, there was no written employment contract guaranteeing
a position with the County for life. Second, New York County
Law expressly provides that plaintiff's appointment as a deputy
county attorney "may be revoked by the county attorney at any
time." N.Y. County Law § 502(1) (emphasis added). Finally, it
is well-settled in New York that "where an employment is for an
indefinite term it is presumed to be a hiring at will which may
be freely terminated by either party at any time for any reason
or even for no reason." Murphy v. American Home Products Corp.,
58 N.Y.2d 293, 300, 461 N.Y.S.2d 232, 235, 448 N.E.2d 86
(1983); see Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329, 333,
514 N.Y.S.2d 209, 211, 506 N.E.2d 919 (1987).
Furthermore, plaintiff has not introduced any evidence that
the defendants expressly
limited their right to terminate him. See O'Connor v. Eastman
Kodak Co., 65 N.Y.2d 724, 725, 492 N.Y.S.2d 9, 10,
481 N.E.2d 549 (1985) (affirming summary judgment for employer where there
was no express limitation of defendant's common-law right).
Since plaintiff's employment relationship was at-will,
defendants' motion for summary judgment is granted, dismissing
plaintiff's breach of contract claim.
Defendants' motion for summary judgment is granted, in part
and denied in part. Summary judgment is granted in favor of
defendants as to the First, Second, Third, Fourth, Sixth and
Seventh Causes of Action in plaintiff's amended complaint.
Summary judgment is denied as to plaintiff's ADEA claim, the
Fifth Cause of Action in the complaint.
Plaintiff's cross-motion for summary judgment is denied.
IT IS SO ORDERED.