The opinion of the court was delivered by: Conner, Sr. D.J.
Plaintiff Nicholas Cicchetti brings suit against defendant Ernest D. Davis, individually and in his official capacity as Mayor of the City of Mount Vernon, New York. At all times relevant to this action, plaintiff was the Fire Commissioner of Mount Vernon. Plaintiff alleges that defendant fired him because of his political beliefs and associations, thus violating plaintiff's First Amendment Rights. Plaintiff also claims that the termination was motivated at least in part by his race. Defendant now moves for summary judgment on the ground that he was free to terminate plaintiff's employment for political reasons because plaintiff was a policymaker as defined by Elrod v. Burns, 427 U.S. 347 (1976). For the following reasons, the motion is denied.
Unless otherwise indicated, the following facts are undisputed. Defendant appointed plaintiff Fire Commissioner on January 1, 2001. (Sherwani Aff'm ¶ 3.) In September 2007, defendant lost the Democratic mayoral primary to Clinton Young and ran for re-election on the Conservative and Independence Party lines. (1st Am. Complt. ¶¶ 4, 6.) During the general election campaign, plaintiff, who was Vice Chairman of the Democratic Party in Mount Vernon, supported Young. (Id. ¶¶ 3-5.) Young defeated defendant in the November 2007 general election. (Id. ¶ 8.)
During both the primary and general election campaigns, the Westchester Guardian, a local newspaper, published a series of negative news articles and editorials about defendant. The Guardian alleged corruption in defendant's administration, complained of the high level of violent crime in Mount Vernon during defendant's tenure as mayor and expressed hope that a then-pending federal investigation of defendant's administration would lead to his arrest and prosecution. (Id. ¶ 7.) The Guardian also ran a headline calling defendant "DUMB." (Id.)
On November 15, 2007, shortly after the election, a fund-raising dinner for mayor-elect Young was held at a local restaurant. (Id. ¶¶ 9-10.) Plaintiff attended the dinner, accompanied by Selim Zherka, the publisher of the Guardian. (Id. ¶¶ 7, 9.) By coincidence, defendant happened to be dining at the same restaurant that night, and he "appeared shocked that Plaintiff was associating with the Guardian's publisher in support of Young." (Id. ¶ 10.) The next day, plaintiff received an order to report to defendant's office the following Monday, November 19, 2007. (Id. ¶¶ 11-12.) At that meeting, plaintiff alleges, defendant called him a "traitor," terminated his employment as Fire Commissioner (effective immediately) and had the police remove plaintiff from plaintiff's office.*fn1 (Id. ¶ 12.) Plaintiff alleges that defendant's decision to fire him was motivated by the Guardian's negative coverage of defendant, plaintiff's support for Young in the general election and/or plaintiff's race. (Id. ¶ 13.)
Defendant did not answer the First Amended Complaint, but chose to file this motion instead. In his moving papers, defendant does not deny any of plaintiff's material factual allegations; instead, defendant simply argues that he had the right to fire plaintiff for political reasons because the Mount Vernon Fire Commissioner is a policymaker who serves at the pleasure of the Mayor.
Summary judgment is appropriate when there is no genuine issue of material fact and one party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986). The Court must resolve all ambiguity in favor of the non-moving party and draw every permissible factual inference in that party's favor. See Anderson, 477 U.S. at 255. The burden is on the movant to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). When the movant has met that burden, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting FED. R. CIV. P 56(e)) (citations omitted) (emphasis in original).
II. Plaintiff's First Amendment Claim
The first issue before the Court is whether terminating plaintiff's employment because of his political beliefs or associations violated plaintiff's First Amendment rights. "As a general rule, public employees may not be dismissed for the exercise of their First Amendment rights." Kaluczky v. City of White Plains, 57 F.3d 202, 208 (2d Cir. 1995); Butler v. N.Y. State Dep't of Law, 998 F. Supp. 336, 339 (S.D.N.Y. 1998). Those rights include freedom of political speech, belief and association. See Elrod, 427 U.S. at 367. The Supreme Court has recognized, however, that political loyalty is a legitimate job criterion for certain government employees. See Branti v. Finkel, 445 U.S. 507, 517 (1980); Elrod, 427 U.S. at 367; Butler, 998 F. Supp. at 339. Those employees, known as policymakers, "hold their office at the will of their employer, and may be discharged by reason of political affiliations, political beliefs, ideological viewpoints or partisan activity." Kaluczky, 57 F.3d at 208.
In determining whether a public employee may legitimately be terminated because of his political expressions or beliefs, the key inquiry is "whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." Branti, 445 U.S. at 518. The Second Circuit has interpreted Branti to mean that party affiliation is an appropriate job requirement where there is a "rational connection between shared ideology and job performance." Regan v. Boogertman, 984 F.2d 577, 580 (2d Cir. 1993); Savage v. Gorski, 850 F.2d 64, 68 (2d Cir. 1988). Several specific factors are relevant to the inquiry: whether the employee (1) is exempt from civil service protection, (2) has some technical competence or expertise, (3) controls others, (4) is authorized to speak in the name of policymakers, (5) is perceived as a policymaker by the public, (6) influences government programs, (7) has contact with elected officials, and (8) is responsive to partisan politics and political leaders.
Vezzetti v. Pellegrini, 22 F.3d 483, 486 (2d Cir. 1994). The last five factors can be condensed into the question "whether the employee . . . is empowered to act and speak on behalf of a policymaker, especially an elected official." Gordon v. County of Rockland, 110 F.3d 886, 890 (2d Cir. 1999). Other indications of policymaker status include direct appointment by an elected official, see Alberti v. County of Nassau, 393 F. Supp. 2d 151, 170 (E.D.N.Y. 2005), and ...