assistants attorney general impacted adversely on candidates over forty years of age." Complaint P 22. Regarding her Title VII claim Ms. Butler does not allege in her complaint that she was replaced by a male employee, and states only that she, "is informed that the selection procedure used in the process of reappointing assistants attorney general resulted in a disproportionately high number of women being at a deputy level or higher fired." Id.
It is true that a prima facie case of discrimination may rest on a minimal or evanescent evidentiary showing. See Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997) (en banc), cert denied 139 L. Ed. 2d 752, 118 S. Ct. 851; American Federation of State v. County of Nassau, 96 F.3d 644, 651 (2d Cir. 1996). Our Supreme Court has held, however, that "the prima facie case requires 'evidence adequate to create an inference that an employment decision was based on an [illegal] discriminatory criterion...'" O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312, 134 L. Ed. 2d 433, 116 S. Ct. 1307, 1310 (1996) (quoting Teamsters v. United States, 431 U.S. 324, 358, 97 S. Ct. 1843, 1866, 52 L. Ed. 2d 396 (1977)).
This Court concludes that Ms. Butler's evidence does not demonstrate sufficiently that her dismissal occurred in circumstances giving rise to an inference of discrimination on the basis of her age or gender. Her dismissal occurred following the election of Mr. Vacco as Attorney General and was part of the general change and upheaval in administration of the DoL which took place at the start of the new administration. Ms. Butler herself argues that her termination was the result of political patronage, and it probably was, although not all political appointees of the prior administration were denied reappointment.
The Equal Employment Opportunity Commission apparently agreed that her dismissal was political. Its letter to Ms. Butler stated, "it appears from the evidence in your case that the terminations referred to in your charge, were terminations following the election of Dennis Vacco, Attorney General on January 1, 1995. The evidence suggests that the actions taken by respondent may have been politically motivated; even though you disagree, it is very unlikely that EEOC would find a violation if it invested additional resources in this case." See Ex. B, EEOC letter dated May 1, 1996.
If Ms. Butler's proffered evidence were sufficient to present a prima facie case, the Court would then determine whether she fell within the statutory policymaker exception to Title VII and the ADEA.
Both Title VII and the ADEA contain statutory exemptions for high-level policy-makers. See 29 U.S.C. § 630(f) ("The term 'employee' shall not include any person elected to public office. . . or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policymaking level, or an immediate advisor with respect to the exercise of the constitutional or legal powers of the office."); 42 U.S.C. § 2000e(f) (same) (emphasis added). Those exempt from the protections of Title VII and the ADEA are protected under the Civil Rights Act of 1991, 2 U.S.C. § 1201 et seq., which requires a final determination by the EEOC appealable only to the United States Court of Appeals, see 2 U.S.C. § 1220(b)-(c); 28 U.S.C. §§ 2341-42; McNulty v. New York City Dep't of Finance, 941 F. Supp. 452, 457 (S.D.N.Y. 1996). Accordingly if Ms. Butler is found to be a policymaker under these statutes, this Court would be without subject matter jurisdiction to adjudicate her claims.
While some Circuits have held that the First Amendment policymaker exception, and the Title VII/ADEA policymaker exceptions should be analyzed under the same standards, see Americanos v. Carter, 74 F.3d 138, 144 (7th Cir. 1996), cert. denied, 517 U.S. 1222, 134 L. Ed. 2d 953, 116 S. Ct. 1853 (1996), our Court of Appeals in its older cases, may have set a higher threshold for the Title VII/ADEA policymaker exception.
In order to be considered an "appointee on the policymaking level" Ms. Butler must have been appointed by an elected official. In Tranello v. Frey, 962 F.2d 244, 249 (2d Cir. 1992) our Court of Appeals held that although the policymaking clause "does not contain clear language specifically stating that an appointee must be directly appointed by an elected official to fall within section 630(f), the placement of [that] category in the middle of a statute primarily exempting elected officials from ADEA coverage strongly indicates that this provision must be read to require appointment by elected officials." Because Ms. Butler was appointed by then Attorney-General Robert Abrams (See Ex. J), an elected official, she meets this threshold.
In Equal Employment Opportunity Commission v. State of Vermont, 904 F.2d 794, 800 (2d Cir. 1990) our Court of Appeals held that "both the evolution of the exception and the direction that it be construed narrowly support our interpretation that by excluding appointees on the policymaking level, Congress meant to deny ADEA protection only to such appointees as would normally work closely with and be accountable to the official who appointed them." See also Tranello, 962 F.2d at 250 (reaffirming Vermont's holding that "the language and structure of the definition of 'employee' suggest that Congress meant the policymaker category to comprise only policymakers working closely with the elected official"). While she was certainly accountable to him, no evidence has been presented to show that Ms. Butler worked closely with the prior Attorney General, and she never worked with the present incumbent. Any Assistant, especially a Bureau Chief, may from time to time be called upon to do so depending only on the fortuity of his or her current case load.
Potentially at least, Ms. Butler seems to fall within the policymaker exceptions to Title VII and the ADEA.
The holding in Vermont was based on the unique issue presented in that case, i.e. whether appointed state judges come within the protection of the ADEA.
The affirmative holding of our Court of Appeals on that issue was overruled thereafter by Gregory v. Ashcroft, 501 U.S. 452, 111 S. Ct. 2395, 115 L. Ed. 2d 410 (1991). While Tranello reaffirmed the conclusions expressed in Vermont as to § 630(f), that portion of Tranello regarding the definition of a policymaker was dicta. The precise holding in Tranello was that "because Tranello was appointed by another appointed official and not appointed by an elected official, his position as Deputy County Attorney does not fall within section 630(f), regardless of whether the position was on a policymaking level." 962 F.2d at 249 (emphasis added). Because Ms. Butler was appointed directly by an elected official, the facts of her case are more favorable to applicability of the policymaker exemption than those of Tranello.
While the Court recognizes that the policymaker exception of Title VII/ADEA is to be narrowly construed, it seems logical that where, as here, plaintiff's job title makes her, in effect, an alter ego of the elected official, as a political appointee she should fall within the exception. High level personnel who appear for and help fulfill the duties of the elected official, and who, by virtue of their job titles could potentially be required to work closely with the elected official, regardless of whether they actually did or not, should fall within this exception.
In one of the first cases to test the scope of a similar exemption
in the ADEA permitting compulsory retirement for "bona fide executives" or "high policymaking" employees, Judge Leval, then a district judge, held that the inherent duties of the job, rather than those actually performed, should control the policymaker determination. Whittlesey v. Union Carbide Corp., 567 F. Supp. 1320, 1327 (S.D.N.Y. 1983), aff'd, 742 F.2d 724 (2d Cir. 1984).
If the organizational structure of the enterprise makes clear that the position in question has bona fide executive rank or serves a high policymaking function, courts probably should not allow the occupant to disavow the attributes of his position by seeking to prove, for example, that no one paid attention to his policy recommendations or followed his executive orders.