The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Defendants New York State, New York State Senate, and New York State Senate Minority move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure in this employment discrimination action. In the amended complaint, plaintiff Joseph Maioriello, who worked as a photographer, videographer, and cable television coordinator, claims that defendants discriminated against him on the basis of his race or color. Specifically, plaintiff, a Caucasian, asserts that Senate Minority leader David Paterson, an African-American, fired him in order to hire an African-American photographer in plaintiff's stead. The amended complaint advances three causes of action: termination based on race or color, in violation of 42 U.S.C. § 2000e ("Title VII"); intentional infliction of emotional distress; and loss of opportunity for employment benefits.*fn1 Plaintiff opposes defendants' motion for summary judgment.
The following facts are undisputed: The New York State Assembly employed plaintiff from 1977 to 1989. In 1989, plaintiff changed employment and moved to the New York State Senate, where he worked as a photographer and cable television coordinator. Since a new legislative body is established following each biennial general election, plaintiff re-applied for his position every two years. Each time, plaintiff signed an employment application indicating his understanding that "if appointed", he would "serve at the pleasure of the Senate, that my employment is at will, that I am not guaranteed employment for any specific period of time, and that my employment may be terminated by the Senate at any time without prior notice." On March 30, 2003, after working in the New York State legislature for twenty-six years, plaintiff received notice that Senate Minority leader David Paterson had decided to terminate his employment.
Many of the events leading up to and surrounding the termination of plaintiff's employment are disputed. The following is a summary of the evidence relevant to the disposition of the instant motion.
A. Defendants' Evidence on the Motion
1. Senator David Paterson - Declaration and Deposition Testimony
In his declaration, Senator Paterson described the staffing in the Senate: During my entire tenure in the Senate, the Democrats have been in the minority and the Republicans have had the majority, though the disparity in number of members in each caucus has diminished in recent years to the point where the Democratic caucus now has twenty seven members while there are thirty-five members of the Republican caucus.
In addition to its members or Senators, the Senate employs hundreds of staff members who support the Senate and its members in the pursuit of the Senate's business. These employees may be roughly divided into two separate categories: those employees who work on the central staff of the Senate, and those who work in the offices of the individual senators.
Each of those categories may be further dividend into two subcatgories: central staff members either work for the majority party, currently the Republican party, or the minority party, currently the Democratic party. Employees on central staff work at the pleasure of the senator elected by his or her caucus as the caucus leader. Employees who are on the staffs of individual senators either work for the member in Albany, or in his or her district office located in the member's senatorial district. These employees work at the pleasure of the individual senator on whose staff he or she serves.
All Senate employees are "at will" employees. They can be terminated from Senate employment at any time, with or without cause. They are in the "unclasssifed service" (New York Civil Service Law section 35 (c)), and are afforded no protection by the New York Civil Service Law section 75. They have no employment contract and are not covered by any collective bargaining agreement. At the beginning of each two-year legislative session, each Senate employee must sign an Employment Application which states in part, I understand that I will serve at the pleasure of the Senate, that my employment is at will, that I am not guaranteed employment for any specific period of time, and that my employment may be terminated by the Senate at any time without prior notice. These documents are signed every two years in the January following the general election for legislative members since, in effect, there is a new legislative body every two years.
All Senate staff members are employees of the Senate; the Senate majority and the Senate minority employ no one. Nonetheless, by Senate tradition, the leader of each caucus makes employment decisions - hiring, salary, continued employment or termination - for employees who work for the caucus. The same decisions are made by the individual Senate member for his or her office staff, even though those employees, too, are employed by the Senate.
Each of the two caucuses in the Senate is run by a leader elected by the members of the caucus. In addition to legislative responsibilities, the caucus leader (Majority leader or Minority leader) is given control of the central staff which works for the caucus. The leader decides who is hired, who is terminated, and what salary is paid to each member of the central staff working for his or her caucus. These decisions are not made in a vacuum, however, since each leader holds his or her position by dint of election by his or her caucus colleagues. Thus the leader is constantly bombarded with recommendations from caucus members to hire, fire, or adjust the salary or duties of staff members.
In November 2002, Senator David Paterson challenged Senator Martin Connor, the incumbent Minority leader, in the caucus election for Senate Minority leader and prevailed.
Senator Paterson stated in his declaration that when he assumed the role of Minority leader, he "became in charge of approximately 143 employees who worked on the minority caucus' central staff." Senator Paterson averred that he could not count on the transfer of these staff members' loyalties from Senator Connor to himself because, unlike assuming the position following a Senator's retirement or failure to win re-election, Senator Paterson defeated Senator Connor, a sitting Senator, in an election. Therefore, Senator Paterson stated, he was hesitant to "continu[e] in place persons who had been on his staff for fear that the confidentiality any leader needs would be compromised, and delicate matters would be communicated to a former and potentially future rival for the leader's position."
Senator Paterson attempted to assess the staff he inherited, but his effort "was crippled by the refusal of Senator Connor to provide me with any documents concerning staff members." Consequently, Senator Paterson compiled a roster of employee names and positions. When he became Minority leader, Senator Paterson learned that "there was a photographer [Joseph Maioriello] on my staff." Senator Paterson stated that he "did not know much about the incumbent in that position . . . since [he], as one of twenty-three or twenty-seven members of the Democratic caucus, had little contact with him." Senator Paterson avers that his "impression" when he became the Minority leader was that the photographer "would often be in my presence taking pictures" and would therefore have the "opportunity" to listen to his "confidential discussions with my staff or other senators, in person or on the telephone". Senator Paterson explained that "[s]ince [plaintiff's] loyalty to me was, in my mind, in question since he had been Senator Connor's photographer, I perceived a need to have someone in that position whose loyalty to me was not in question."
Early in his tenure as Minority leader, Senator Paterson's staff and Senator Malcolm Smith, who had supported his election as leader, recommended J. El-Wise Noisette, a photographer, to replace plaintiff. Senator Paterson stated that Noisette is an African-American and that he had been the photographer for Carl McCall, the former New York State Comptroller. Senator Paterson averred that he and McCall were, and continue to be, "very good friends." Senator Paterson stated that his staff and Senator Smith informed him that McCall and his staff "highly recommended" Noisette and that he had heard "Noisette's photography work was . . . of high quality." Senator Paterson, who is visually impaired, asserted that he "never viewed the work of either photographer" but "assumed that [plaintiff and Noisette] were equally competent at their craft". Senator Paterson avers that the "key distinction" to him "was on the question of loyalty" because plaintiff had been on the staff of his rival, Senator Connor, who "did not take well his defeat" and whom he suspected was plotting with "other senators loyal to him to re-gain control of the caucus". Therefore, Senator Paterson states, he "could not be certain that [plaintiff] was not part of that effort." Although Senator Paterson knew Noisette no better than he knew plaintiff, he "determined that if McCall could trust Noisette, so could I." Id.
Senator Paterson averred that although his staff and several members of his caucus urged him to hire Noisette, the decision to do so was his alone. Senator Paterson stated that he "directed [his] staff to carry out [his] determination to terminate the plaintiff's employment and to offer employment to Mr. Noisette" but that he "was not involved in the execution of this direction". Senator Paterson asserted that race never entered his calculus in determining the position of photographer and "[g]iven my visual impairment I did not know for certain the race of either the plaintiff or Noisette."
Senator Paterson stated in his declaration that after deciding to terminate plaintiff's employment and hire Noisette, he learned "there was some criticism of [plaintiff's] performance, more in terms of his reliability than his skill in taking pictures." Senator Paterson further stated: "That criticism, learned after the fact, did not enter into my decision as to which photographer to employ."
2. Tracey Pierce-Smith - Declaration
Tracey Pierce-Smith, Director of Senate Minority Conference Services and Correspondence, stated in her declaration that she was plaintiff's direct supervisor. Pierce-Smith averred that when Senator Paterson replaced Senator Connor as Minority leader, she "was asked to prepare a memorandum for the new leadership presenting my view of the direction of Conference Services and its staff." In a memorandum dated December 12, 2002, Pierce-Smith outlined her assessment of Conference Services's "structure and staffing, frankly commenting on the quality of some of [her] subordinates." About plaintiff, Pierce-Smith wrote:
While Joe Maioriello is a decent photographer, I know there have been some complaints lodged against him from Members. I truly cannot work like that. I need someone who's sole reason for being is to make the conference happy. Further, the nature of his position really begs for it to be a session only job. And Joe does not motivate himself to make good use of his time during the off session. He will certainly do anything I ask of him, and I appreciate that, but he does not bring another talent to the table to allow me to say that I can account for his off session time.
If I did not someone [sic] to replace Joe at this time, my recommendation would be to make this job a session one. It is a necessary position, and Joe has a good amount of institutional knowledge. That said, we do have the ability to hire someone immediately who would more than serve our purposes. El-Wise Noisette is an incredible catch. Once again, in addition to his sharp photography skills, El-Wise can manage website and has experience with Quark, which can be useful as a backup for the Graphic Artist. His addition to my staff would be a great investment indeed, and he would have other assignments to ...