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Cicchetti v. Davis

January 26, 2009


The opinion of the court was delivered by: Conner, Senior D.J.



Plaintiff Nicholas Cicchetti brings suit under 42 U.S.C. §§ 1981 and 1983 against defendant Ernest D. Davis, individually and in defendant's 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 ("Fire Commissioner"). Plaintiff alleges that defendant fired him because of his political beliefs and associations, in violation of plaintiff's First Amendment rights. Plaintiff also claims that defendant fired him because of plaintiff's race. Additionally, plaintiff brings First Amendment claims as a third party. Defendant made a pre-discovery motion for summary judgment on all counts in the Complaint on the ground that he was free to terminate plaintiff's employment for political reasons because plaintiff was a "policymaker" as defined in Elrod v. Burns, 427 U.S. 347 (1976). We denied that motion in an Opinion and Order dated March 5, 2008 because the record before us was insufficient to decide whether plaintiff was a "policymaker," and we granted defendant leave to renew the motion after adequate discovery. Cicchetti v. Davis, 2008 WL 619013, at *1 (S.D.N.Y. Mar. 5, 2008) (Conner, J.). Defendant now renews his motion for summary judgment. For the reasons stated herein, defendant's motion is granted in part and denied in part.


Plaintiff was appointed to the position of Fire Commissioner by defendant on January 1, 2001. (Sherwani Aff'm ¶ 8.) Plaintiff contends that defendant did not consider political affiliation to be relevant to the position of Fire Commissioner. (Pl. R. 56.1 Stmt. ¶¶ 4, 26 (citing Davis Tr. at 14, 63-65, 82).) Plaintiff also contends that, at the time defendant made this appointment, defendant knew that plaintiff had no specialized training or skills to become Fire Commissioner. (Pl. R. 56.1 Stmt. ¶¶ 1-3 (citing Davis Tr. at 15, 110, 11 and Cicchetti Tr. at 8-9, 74).)

Regarding the nature of plaintiff's work as Fire Commissioner, plaintiff states that defendant "micromanaged" the "Department Heads," requiring that they obtain defendant's prior approval in order to prefer disciplinary charges, that defendant had the "final say" in the hiring process, that defendant did not permit plaintiff to speak publicly on behalf of defendant, that plaintiff was never permitted to attend public sessions of the City Council or address its members on behalf of defendant and that plaintiff never attended any function or event on behalf of Mount Vernon. (Id. ¶¶ 29-32, 40.) Plaintiff states that he did not swear in new firefighters, did not create any policies regarding overtime, did not get involved in fire management decisions, was not responsible for policies, had no responsibility as to firefighters' uniforms and had no discretionary authority over firefighters' receipt of job injury benefits. (Id. ¶¶ 36, 38, 41.)

According to defendant's description of the nature of plaintiff's work as Fire Commissioner, plaintiff had the statutory authority to promulgate the "Fire Department's Rules and Regulations"*fn1 and that "all [employees] reported to [plaintiff]." (Def. R. 56.1 Stmt. ¶¶ 3-4.) Defendant contends that the Fire Commissioner is the "ultimate decision maker in his agency," that the position is a "politically appointed one" and that the Fire Commissioner "represented the Mayor and the City in speaking to the media."*fn2 (Def. R. 56.1 Stmt. ¶¶ 7-9.) The Fire Commissioner is exempt from Civil Service and, according to defendant, "possesses general control and direction of the Fire Department's budget." (Id. ¶¶ 17-18.) Defendant also avers that plaintiff applied for federal grants and interacted with the City Council and State Senator Guy Velella. (Id. ¶¶ 19-22.)

In September 2007, defendant ran for re-election as Mayor in the Democratic primary and was defeated by Clinton Young. Cicchetti, 2008 WL 619013, at *1. Following his defeat in the primary, defendant ran for re-election in the general election on the Conservative and Independent party lines. Id. Young defeated defendant in the November 2007 general election. Id. During both the primary and general election campaigns, a local newspaper, the Westchester Guardian (the "Guardian"), published a series of negative articles and editorials about defendant. Id. The Guardian alleged that defendant's administration was corrupt, 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. The Guardian also ran a headline calling defendant "DUMB." Id.

On November 15, 2007, shortly after the general election, plaintiff attended a fund-raising dinner for mayor-elect Young at a local restaurant, accompanied by Selim Zherka ("Zherka"), the publisher of the Guardian. Id. Coincidentally, defendant was also dining at the same restaurant that evening and "'appeared shocked that [p]laintiff was associating with the [Guardian]'s publisher in support of Young.'" Id. (internal citation omitted).

The day after the fund-raising dinner, plaintiff received an order to report to defendant's office for a meeting to take place the following Monday, November 19, 2007. Id. At that meeting, plaintiff alleges that defendant called him a "traitor," terminated his employment as Fire Commissioner, effective immediately, and instructed that police remove plaintiff from plaintiff's office.*fn3 Id. Plaintiff contends that he was the "only non-African that was fired" after defendant's defeat in the 2007 election.*fn4 (Pl. R. 56.1 Stmt. ¶ 25 (citing Cicchetti Tr. at 71).)

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.


I. Legal Standard

Summary judgment may be granted where there are no genuine issues of material fact and the movant 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). A fact is material only if, based on that fact, a reasonable jury could find in favor of the nonmoving party. Anderson, 477 U.S. at 248. The burden rests 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 deciding whether summary judgment is appropriate, the Court resolves all ambiguities and draws all permissible factual inferences against the movant. See Anderson, 477 U.S. at 255. To defeat summary judgment, the non-movant must go beyond the pleadings and "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 (1986). The ...

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