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Cicchetti v. Davis

April 6, 2009


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



Plaintiff Nicholas Cicchetti brings suit against defendant Ernest D. Davis in his capacity as Mayor of the City of Mount Vernon, New York, for allegedly violating plaintiff's First Amendment rights by firing plaintiff because of plaintiff's political associations. Defendant made a pre-discovery motion 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 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. Cicchetti v. Davis, 2008 WL 619013, at *1 (S.D.N.Y. Mar. 5, 2008) (Conner, J.). Defendant then renewed his motion and, in an Opinion and Order dated January 26, 2009, we found, inter alia, that defendant was entitled to qualified immunity on plaintiff's First Amendment claim because it was reasonable for defendant to believe that plaintiff was a policymaker; however, we found that defendant had still not met his burden to prove, as a matter of law, that plaintiff was a policymaker. Cicchetti v. Davis, 2009 WL 222379, at *3-5 (S.D.N.Y. Jan. 26, 2009) (Conner, J.).

On March 25, 2009, following a trial before this Court, a jury found that plaintiff's political activity was a substantial or motivating factor in defendant's decision to terminate plaintiff's employment.*fn1 We now consider, in light of the evidence presented during the trial and the special interrogatories answered by the jury, whether defendant has met his burden to prove that he is entitled to the affirmative defense that plaintiff was a policymaker. For the reasons stated herein, we find that defendant is entitled to judgment as a matter of law.


The facts of this case are set forth extensively in our previous opinions, familiarity with which is presumed. Accordingly, we recite only the facts relevant to our resolution of this issue and background facts that may be helpful in providing context.

At all times relevant to this action, plaintiff was the Fire Commissioner of the City of Mount Vernon, New York ("Fire Commissioner"). Plaintiff was appointed to that position by defendant on January 1, 2001. In September 2007, defendant ran for renomination 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.

On November 15, 2007, shortly after the general election, plaintiff attended a fund-raising dinner for Young at a local restaurant, accompanied by the publisher of a newspaper that had published a series of negative articles about defendant. Id. Coincidentally, defendant was also present at the same restaurant and, by chance, observed plaintiff attending the mayor-elect's fund-raiser and associating with the publisher of the newspaper that had been critical of his administration. Id. The next day, plaintiff received an order to report to defendant's office on the following Monday. Id. When plaintiff reported to defendant's office as instructed, defendant accused him of being a traitor and terminated his employment, effective immediately. Id.

The jury in this case found that plaintiff's "political activity was a substantial or motivating factor in the decision of defendant Ernest D. Davis to terminate his employment as Fire Commissioner." (Jury Verdict Form Ques. 1(a).) We turn now to the question of whether plaintiff was a policymaker, so that he is not protected by the First Amendment.


"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), however, the Supreme Court has recognized an exception to this rule where political loyalty is a legitimate criterion for a position. Branti v. Finkel, 445 U.S. 507, 517 (1980); see also Elrod, 427 U.S. at 367; and Butler v. N.Y. State Dep't of Law, 998 F. Supp. 336, 339 (S.D.N.Y. 1998). Employees holding positions for which political loyalty is a requirement, which employees are 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. A defendant may raise an employee's status as a policymaker as an affirmative defense to a suit predicated on alleged infringements of the employee's First Amendment rights and the defendant bears the burden of proof on this defense. Krause v. Buffalo & Erie County Workforce Dev. Consortium, Inc., 426 F. Supp. 2d 68, 103 (W.D.N.Y. 2005). Whether an employee is a policymaker is a question of law for the Court, though it requires a factual inquiry into the nature of the job itself. Almonte v. City of Long Beach, 478 F.3d 100, 110 (2d Cir. 2007).

For a court to find that "political affiliation is an appropriate requirement" of a specific job, there must be a "rational connection between shared ideology and job performance." Savage v. Gorski, 850 F.2d 64, 68 (2d Cir. 1988). The Second Circuit has set forth several factors to consider in this 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). These factors should be applied to the formal description of the job at issue, that is, to the inherent powers of the position, rather than the duties actually performed by plaintiff. Regan v. Boogertman, 984 F.2d 577, 580 (2d Cir. 1993).

In our previous Opinions, we found that several factors weighed in favor of a finding that plaintiff was a ...

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