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Alan Fishman v. the County of Nassau

October 26, 2011


The opinion of the court was delivered by: Hurley, Senior District Judge:


Plaintiff Alan Fishman alleges that defendants violated his First Amendment rights of association by terminating his employment based upon his political affiliation. Defendants moved to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). By Memorandum & Order dated September 7, 2011 (the "Order"), the Court granted defendants' motion in part and dismissed, inter alia, plaintiff's claims made pursuant to 42 U.S.C. §§ 1983 and 1985, in which he asserted that the termination of his employment violated his Fourteenth Amendment due process rights.*fn1 The Court denied defendants' motion as to: (1) plaintiff's First Amendment claim brought pursuant to Section 1983, including as brought against defendant Edward P. Mangano in his individual capacity; (2) plaintiff's Section 1983 conspiracy claim; (3) plaintiff's Section 1985 claim to the extent it is based upon an alleged conspiracy to violate plaintiff's First Amendment rights; (4) plaintiff's Section 1988 claim for attorneys' fees; and (5) plaintiff claim pursuant to New York Labor Law Section 201-d. (See Order at 23-24.)

Presently before the Court is defendants' October 18, 2011 letter application requesting that the Court amend the Order to certify the matter for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Plaintiff opposes defendants' request. For the reasons set forth below, defendants' application is denied.


I. Factual Background

The relevant facts are set forth at length in the Order. In sum, plaintiff alleges that, beginning in 2006, he was employed by defendants County of Nassau (the "County") and County of Nassau Legislature (the "Legislature"). Plaintiff alleges that between December 2006 and April 2008, he held the title of "Records Clerk" with attendant duties that were "clerical and administrative," and included "making copies, scanning documents, fixing audio-visual equipment, data entry, . . . filling water pitchers, delivering office supplies, and acting as an aid to all nineteen Nassau County legislators and staff regardless of party affiliation." (Order at 3.) In or about April 2008, plaintiff's title was changed to Special Assistant to the Clerk of the Legislature but plaintiff continued to perform the same tasks that he performed as Records Clerk. (Id.) The position of Special Assistant to the Clerk of the Legislature is a bi-partisan position for which no party affiliation is required. (Id.) Plaintiff, an active member of the Nassau County Democratic Committee, alleges that defendants conspired with Joseph Mondello, the head of the Republican Committee of Nassau County, and terminated plaintiff's employment due to his political affiliation. (See id. at 2-4.)

II. The Portion of the Order at Issue

Defendants moved to dismiss plaintiff's First Amendment claim, arguing that the termination of plaintiff's employment did not violate the Constitution because "patronage dismissals do not offend the First Amendment when restricted to policymaking positions." (Id. at 8 (internal quotation marks omitted).) The Court held as follows:

"The determination of whether an employee is a policy-maker is a question of law, although it involves a fact-intensive inquiry." Almonte[v. City of Long Beach, 2009 WL 962256, at *5 (E.D.N.Y. Mar. 31, 2009)]. Such "inquiry generally requires consideration of the duties of the office as set forth in the job description, as well as applicable regulations." Morin [v. Tormey, 626 F.3d 40, 45 (2d Cir. 2010)] (internal citations omitted.) In addition, the Second Circuit has outlined several other relevant factors: 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 to be 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.

Venzetti v. Pellegrini, 22 F.3d 483, 486 (2d Cir. 1994). Defendants argue that plaintiff fits the description of "policy-maker" because "[a]lthough [his] responsibilities were largely clerical and administrative, the nature of this position was confidential and he reported directly to Muller, a policymaker." (Defs.' Mem. at 8.) Defendants also argue that plaintiff "did not have Civil Service protection," "had substantial contact with elected officials and policymakers[,] and had to answer to the political agenda of the County Administration." (Id. at 8-9.) According to defendants, individuals holding plaintiff's title are "authorized to 'fill in' for the Clerk [of the Legislature] and step in his shoes at meetings in his absence." (Id. at 9.)

While the facts adduced during discovery may ultimately support defendants' description of the nature of plaintiff's position, on a Rule 12(b)(6) motion the Court must accept the facts as they are pled in the complaint. Here, plaintiff alleges that his position as "Special Assistant to the Clerk of the Legislature" was a "bi-partisan position for which no party affiliation [was] needed." (Compl. ¶ 43.) Further, even after his title changed from "Records Clerk" to "Special Assistant to the Clerk," plaintiff asserts that his duties remained entirely clerical and administrative. (Id. ¶¶ 16-17.) Based on the allegations contained in the Complaint, the Court cannot conclude, as a matter of law, that plaintiff's position was a "policymaking position" that would exempt defendants from liability under the First Amendment. See Alberti [v. Cnty. of Nassau, 393 F. Supp.2d 151, 165 (E.D.N.Y. 2005)]. Accordingly, that portion of defendants' motion seeking to dismiss Count I of the Complaint is denied. (Order at 9-10.)


I. Legal Standard

A district court may certify a matter for interlocutory appeal when three conditions are met: (1) the order to be appealed from "involves a controlling question of law," (2) "as to which there is substantial ground for difference of opinion," and (3) "an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b). "These three prerequisites create a significant hurdle to certification, and the barrier is elevated by the mandate that section 1292(b) be strictly limited because only exceptional circumstances will justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment." Secs. & Exch. Comm'n v. Syndicated Food Servs. Int'l, Inc., 2010 WL 5173267, at *1 (E.D.N.Y. Dec. 14, 2010) (internal quotation marks and alteration omitted). The Second Circuit has "urge[d] the district courts to exercise great care in making a § 1292(b) certification," Westwood Pharm., Inc. v. Nat'l Fuel Gas Dist. Corp., 964 F.2d 85, 89 (2d Cir. 1992), and has noted that certification pursuant to Section 1292(b) "is a rare exception to the final judgment rule that generally prohibits piecemeal appeals," Koehler ...

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