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LARGO v. PAGE

July 18, 1997

ALFRED LARGO, TERENCE REYNOLDS, GREGORY CHAMBERS, GEORGE M. PARRY, MELVIN LOPEZ, DOMINICK AMENDOLARE, JAMES LYNCH, VICTOR COLE, and RICHARD F. SCHALLER, Plaintiffs, against DENNIS C. VACCO and SALVATORE W. PAGE, Defendants.


The opinion of the court was delivered by: BRIEANT

MEMORANDUM & ORDER

 Brieant, J.

 By motion heard and fully submitted on June 6, 1997, Defendants move for summary judgment pursuant to Rule 56(b), F.R.Civ.P., on the ground that no genuine issues of material fact exist and that the Defendants are entitled to judgment as a matter of law. [Notice of Motion at 5/9/97]. Since our Court of Appeals reviews summary judgment de novo, we assume full familiarity with the record including the respective statements of the parties under Local Civil Rule 56.1 of this Court [formerly numbered 3(g)], and will refrain from extensive recital of the uncontested facts.

 Plaintiffs Alfred Largo, Terence Reynolds, Gregory Chambers, George M. Parry, Melvin Lopez, Dominick Amendolare, James Lynch, Victor Cole and Richard F. Schaller ("Plaintiffs") were formerly employed by the New York State Department of Law's Medical Fraud Control Unit ("MFCU") as criminal fraud investigators. *fn1" [First Amended Complaint at 3/26/96]. The function of the MFCU, which was established under New York Executive Law § 63(3) and (8), is to investigate and prosecute offenses which arise from New York's various health care services, including Medicaid.

 Plaintiffs' claims arise out of the Defendants' termination or failure to reappoint Plaintiffs to their positions on November 29, 1995 allegedly because of their political affiliations. The sole Defendants are New York State Attorney General Dennis C. Vacco ("Vacco"), as Chief Executive Officer of the State's Department of Law, and Salvatore W. Page ("Page"), the Deputy for Administration of the Department of Law. The Complaint suggests that they are sued solely in their individual capacities. [Complaint at 3-4].

 Plaintiffs allege that each was appointed "in the Department of Law by a Democratic predecessor of Vacco," Id. at 4.

 The First Amended Complaint charges that Defendants were engaged in an alleged common plan and/or scheme, along with other un-named co-conspirators, to terminate Plaintiffs' positions without a pre-termination hearing, which it is claimed, the Fourteenth Amendment of the United States Constitution requires. Id. at 11-12. Plaintiffs contend that such scheme included the removal of Plaintiffs' positions,

 
"not on the basis of merit and fitness, but on the basis of partisan policies and with a view towards creating job positions for members of the Republican Party who had supported Vacco in his election campaign."

 Id. at 6. As a result, Plaintiffs claim to have suffered a deprivation of their salaries and benefits, embarrassment, humiliation, anxiety, public degradation and ridicule, and impairment to their reputations." Id. at 12. Plaintiffs seek compensatory and punitive damages, as well as reasonable attorneys' fees, Id. at 14, on the grounds that their First Amendment rights of association and/or speech have been violated; their First Amendment right to petition the government has been denied; and their rights under the Equal Protection Clause of the Fourteenth Amendment have been violated, pursuant to 42 U.S.C. § 1983. Id. at 12-13. Essentially, plaintiffs present an Elrod case ( Elrod v. Burns, 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976). *fn2"

 Defendants seek summary judgment on the grounds that: (1) the Plaintiffs cannot satisfy their initial burden to prove that their terminations were politically motivated; (2) the Plaintiffs are "policy makers" and confidential investigators, and therefore not Constitutionally protected from a patronage dismissal; (3) the defendants are entitled to qualified immunity; (4) the Defendants' alleged acts did not constitute an abridgement of the Plaintiffs' right to petition the government for a redress of their grievances; and (5) the Plaintiffs fail to sustain a claim of violation of the Equal Protection Clause. [Defendants' Memorandum in Support of Motion at 5/9/97].

 In order to establish claims for wrongful termination based on political patronage, a Plaintiff must prove that he or she engaged in constitutionally protected conduct relating to a political affiliation or activity, and that such affiliation or activity was a motivating factor leading to dismissal. Vezzetti v. Pellegrini, 22 F.3d 483, 487 (2d Cir. 1994), citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977). The First Amendment restricts the power of government officials to dismiss public employees because of their political affiliation. Elrod v. Burns, 427 U.S. 347, 372-373, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976) (". . . any contribution of patronage dismissals to the democratic process does not suffice to override their severe encroachment on First Amendment freedoms."). However, Plaintiffs concede in their depositions that they never advised anyone at the MFCU of their political affiliations, and they were never asked about them. Plaintiffs Alfred Largo, George M. Parry, Dominick Amendolare, Gregory Chambers and Melvin Lopez are all Republicans. The remaining Plaintiffs are Democrats.

 Plaintiffs have been deposed and do not set forth any evidence whatever which would support a conclusion that their termination decision was effected by these defendants, or that it was because of their political affiliation. To the extent the Republican plaintiffs regard themselves as being terminated because other job aspirants were friends of the appointing authority, the Court does not apprehend that such an allegation will support an Elrod claim, and in any event, there is no evidentiary support.

 Following his election in November 1994, and in the summer of 1995, Attorney General Vacco met with employees of MFCU throughout the State, and instructed the professional staff that if they wished to be reappointed to their positions, they should submit a letter, resume and job description to Deputy Attorney General William M. Flynn, not sued in this case. He told the employees that he did not wish to politicize the reappointment process and therefore discouraged the submission of recommendations from individuals who were not directly familiar with the quality of the individual's work.

 The activities complained of did not directly involve the personal participation of the two individually sued Defendants. The undisputed record shows that Plaintiffs and others who sought reappointment were required to and did submit their letter, resume and job description to First Deputy General William M. Flynn. There is no dispute that Mr. Flynn had been granted the authority to decide, on the merits, whom to reappoint and whom to hire as investigators and auditors, and also to decide that Plaintiffs should not be rehired, and he did so after interviewing the aspirants and after consulting Russell Buscaglia, a Special Assistant Attorney General, and Daniel B. Reardon, a Chief Investigator for the Attorney General's Office. The Attorney General himself did not participate ...


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