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March 25, 1998


The opinion of the court was delivered by: BRIEANT

 Brieant, J.

 Before this Court for decision is the motion of the defendants, New York State Department of Law ("DoL"), the Hon. Dennis C. Vacco, the Attorney General of the State of New York, and the Hon. William M. Flynn, First Deputy Attorney General of the State of New York, for summary judgment pursuant to Fed. R. Civ. P. 56(b).

 Plaintiff Barbara B. Butler, a former Deputy Bureau Chief in the New York State DoL, alleges that she was unlawfully discharged from her position as an Assistant Attorney General of New York in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act of 1967, 29 USC §§ 621 et seq. ("ADEA"), her First Amendment rights and state laws. She is seeking back pay, front pay, compensatory damages and reinstatement. The motion was held pending the decision of our Court of Appeals in Danahy v. Buscaglia, 134 F.3d 1185 (2d Cir. 1998) which was decided on January 27, 1998.

 Danahy was a patronage discharge case in which seven employees of the Medicaid Fraud Control Unit of the DoL sued Mr. Vacco and two of his Deputies for wrongful discharge from government employment in violation of their First Amendment right of free association. Our Court of Appeals held that Mr. Vacco and his Deputies were entitled to qualified immunity for their decision to discharge the employees. The holding in Danahy is decisive on the issue of Ms. Butler's political discharge claim, but not on her ADEA and Title VII claims.


 Ms. Butler was appointed to the position of Assistant Attorney General ("AAG") in 1980 by Robert Abrams, then Attorney General of the State of New York. In 1981 she was promoted to Section Chief, and in 1983 she was promoted to Deputy Bureau Chief of the New York City Litigation Bureau ("the Bureau"). The Bureau represents State agencies, the officials who manage them and other State employees in civil litigation arising out of the performance of their official functions. It is managed by a Bureau Chief, two Deputy Bureau Chiefs and ten Section Chiefs. Her employment was to serve at the pleasure of the Attorney General and her job was at all times in the "Exempt" class under New York State Civil Service.

 Mr. Vacco, a Republican, was elected Attorney General of New York effective January 1, 1995, changing the political control of the DoL for the first time since 1978. Upon his entry to office Mr. Vacco informed employees of the DoL that a review of staff would be conducted and that all AAG's would be required to reapply for appointment. Ms. Butler reapplied for the position of AAG and was interviewed. In early June she received a letter from Salvatore W. Page, Deputy for Administration (not sued), dated June 2, 1995 informing her that she would not be offered continued employment as an AAG. Ms. Butler received a right to sue letter from the Equal Employment Opportunity Commission dated May 1, 1996 and filed the Complaint in this action on July 26, 1996.

 The defendants claim that Ms. Butler is not entitled to protection from political discharge as she is a "policymaker;" that she is not entitled to protection from age and gender discrimination under Title VII and the ADEA because she falls under the "policymaker" exception to those statutes; and alternatively that the defendants are entitled to qualified immunity.

 I. Summary Judgment

 Summary judgment is appropriate only where the moving party demonstrates that there exists no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Id. A properly asserted summary judgment motion can be defeated by the non-moving party by demonstrating the existence of a material issue of fact. Celotex Corp v. Catrett, 477 U.S. 317, 323-24, 106 S. Ct. 2548, 2552-54, 91 L. Ed. 2d 265 (1986); Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986).

 To sustain this burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1355, 89 L. Ed. 2d 538 (1986); Williams, 781 F.2d at 323 ("Mere conclusory allegations or denials will not suffice."). In turn, the moving party may discharge its burden by "pointing out to the district court-- that there is an absence of evidence to support the non-moving party's case." Celotex, 477 U.S. at 325, 106 S. Ct. at 2554. Even where evidence is offered, summary judgment may still be granted if that evidence is not significantly probative. Anderson, 477 U.S. at 249-50, 106 S. Ct. at 2510-11.

 II. Political Discharge

 As a general rule public employees may not be dismissed for the exercise of their First Amendment rights. However, the United States Supreme Court has held that political affiliation is a permissible employment criterion for some positions. Elrod v. Burns, 427 U.S. 347, 367, 96 S. Ct. 2673, 2687, 49 L. Ed. 2d 547 (1976); Branti v. Finkel, 445 U.S. 507, 517-18, 100 S. Ct. 1287, 1294-95, 63 L. Ed. 2d 574 (1980). In Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S. Ct. 2729, 111 L. Ed. 2d 52 (1990) the Court summarized the so-called "Elrod-Branti political dismissal exception":

In Elrod we suggested that policymaking and confidential employees probably could be dismissed on the basis of their political views. In Branti, we said that a State demonstrates a compelling interest in infringing First Amendment rights only when it can show that party affiliation is an appropriate requirement for the effective performance of the public office involved.

 Id. at 71 n.5, 110 S. Ct. at 2735 n. 5 (citation omitted). The first issue presented in this case is whether the public employment position held by Ms. Butler falls within this "policymaker" exception to First Amendment protection. This Court concludes that it does.

 In Gordon v. County of Rockland, 110 F.3d 886, 890 (2d Cir. 1997), cert. denied, 139 L. Ed. 2d 34, 118 S. Ct. 74 (1997), our Court of Appeals noted that "all circuit court decisions- and almost all other court decisions- involving attorneys in government service, other than public defenders, have held that Elrod/Branti do not protect those positions" (citation omitted). Prosecutors in particular have been held to fit within the policymaker exception to Elrod/Branti. See Danahy, 134 F.3d 1185 at 1192 (listing cases).

 In Gordon, our Court of Appeals held that the policymaker inquiry presents a question of law informed by the discharged employee's job description and the powers inherent in the office rather than the actions actually taken by the employee while in office. In McEvoy v. Spencer, 124 F.3d 92 (2d Cir. 1997), Gordon was clarified to include consideration of a statutory job description. Ms. Butler's official job title while she was employed by the DoL was Assistant Attorney General. See Berens Declaration. The official job description for an AAG states that she, "performs all the duties of an Assistant Attorney General, such as appearing for the Attorney General before State and Federal Courts, preparing, presenting, and arguing cases, examining witnesses, conducting hearings under oath and preparing evidence, briefs and memoranda of law." *fn1"

 The Attorney General is an elected constitutional officer whose job description is found in § 63 of the New York Executive Law which ...

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