Vezzetti v. PellegriniVezzetti v. Pellegrini
- Reporters:
- , ,
- Before:
- Newman, Winter, Jacobs
JACOBS, Circuit Judge:
Two former employees of the Town of Orangetown, New York, appeal the dismissal of their complaint alleging that they were fired on account of their political affiliation as Republicans. Plaintiffs-Appellants Charles Vezzetti and David Stuart pleaded under
BACKGROUND
With the 1992 election of Neil O‘Sullivan and Edward Fisher, Democrats achieved control of the Town Board of Orangetown for the first time since 1976. Also sitting on the Town Board at that time were Democrat Pauline Levin and Republican Cornelius O‘Sullivan. Rounding out Orangetown‘s decision-making body was Roger Pellegrini, also a Democrat, who had been the Town Supervisor since 1989. Shortly after the election, Pellegrini and the newly constituted Town Board adopted a 1992 budget that effected a number of economies, including the elimination оf the positions held by Stuart, a Republican, and William Griffith, a member of the Conservative Party. Although the 1992 budget eliminated two other positions as well, those positions were vacant when abolished. At about the same time, the Town Board voted to remove Vezzetti as Superintendent of Highways and appoint Raymond Hull, a Democrat, in his рlace.
The Republican-controlled Town Board appointed Vezzetti to his first two-year term as Orangetown Superintendent of Highways in 1982. He was reappointed to successive two-year terms until 1992, when the newly elected Democrat-controlled Board appointed Hull to replace him. Vezzetti claims that the decision to replace him was due to his political affiliation. The Town Board claims that its decision was based on disagreements concerning expenditures for Orangetown‘s vehicle replacement program, and Vezzetti‘s support for purchasing highway equipment from a supplier who had been convicted of selling equipment to municipalities at prices that were inflated to cover the cost of kickbacks.
On April 1, 1991, then-Superintendent of Highways Vezzetti provisionally appointed Stuart to the position of Administrative Assistant in the Highway Department. Stuart became a permanent employee after he passed a civil servicе examination. Stuart‘s appointment provoked some local controversy, which was reflected in public statements by Pellegrini and others characterizing Stuart‘s appointment as a political favor. While campaigning for re-election to the office of Town Supervisor, Pellegrini vowed to eliminate Stuart‘s “brаnd new patronage job.” In addition, Stuart claims that Town Board member Neil O‘Sullivan privately told him that, while he liked Stuart personally, he had to go after Stuart‘s job because of Stuart‘s affiliation with the Republican party and his close association with Joseph Collelo--a former Town Supervisor and political foe of Pellegrini.
Vezzetti, Stuart and Griffith filed a complaint in the district court charging Pellegrini, the members of the Town Board, and Orangetown itself with civil rights violations under
DISCUSSION
We review de novo a district court‘s grant of summary judgment and will affirm that decision only if, resolving all ambiguities and drawing all factual inferences in favor of the nonmoving party, there is no genuine issue of material fact to be tried. See
Although Defendants profess on appeal (as in the district court) that the Town Board was animated by non-political concerns when it dеclined to reappoint Vezzetti as Highway Superintendent, they also urge that summary judgment dismissing Vezzetti‘s claim is proper even if his removal was politically motivated, because the superintendency is a policymaking position for which politics is a valid consideration in making appointment decisions. Although a firing based on аn employee‘s political affiliation ordinarily is an infringement on
In Elrod, we suggested that policy-making and confidential employees probably could be dismissed on the basis of their political views. In Branti, we said that a State demonstrates a compelling interest in infringing
First Amendment rights only when it can show that “party affiliation is an appropriate requirement for the effective performance of the public office invоlved.”
Rutan, 497 U.S. at 71 n. 5, 110 S.Ct. at 2735 n. 5 (citations omitted). We have noted that “the Branti guidelines do not lend themselves to easy or automatic application.” Hawkins v. Steingut, 829 F.2d 317, 320 (2d Cir.1987); see also Jimenez Fuentes v. Torres Gastambide, 807 F.2d 236, 241 (1st Cir.1986) (en banc) (“Identifying generic categories of positions where partisan selection and rejection are permissible has ... proven to be an elusive and intractable task.“), cert. denied, 481 U.S. 1014, 107 S.Ct. 1888, 95 L.Ed.2d 496 (1987).
This Court recently examined the Elrod-Branti politiсal dismissal exception and listed several inquiries useful in deciding whether a position is one “calling for party loyalty.” See Regan v. Boogertman, 984 F.2d 577, 579-80 (2d Cir.1993). These factors include whether the employee (1) is exempt from civil service protection, (2) has some technical competence or expertise, (3) controls others, (4) is authorized tо 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. See id. at 580; Ecker v. Cohalan, 542 F.Supp. 896, 901 (E.D.N.Y.1982). This is not an exhaustive list of indicators, nor is any one factor or group of them always dispositive. The proper approach is to assess all the factors in order to determine whether “there is a rational connection between shared ideology and job performance.” Savage v. Gorski, 850 F.2d 64, 68 (2d Cir.1988).
Examining Vezzetti‘s position in light of these factors, we agree with the district court that Vezzetti held a job for whiсh political affiliation is a valid consideration. The following facts are not disputed in the record before us. Vezzetti lacked civil service status. He was responsible for a budget of over four million dollars--roughly one-sixth of the entire Orangetown budget. He managed about sixty employees and had broad authority to make hiring dеcisions. As a department head, Vezzetti consulted directly with elected officials of the Town Board on budgets and programs (such as the vehicle replacement program). Under his supervision, the Highway Department developed public relations campaigns promoting various highway department programs, and Vezzetti himself apparently made frequent public speeches. We conclude, as did the district court, that these elements are sufficient to place the Highway Superintendent within the category of policymaking positions for which party affiliation and a shared ideology may be an appropriate employmеnt consideration.
B. Stuart
Defendants concede that Stuart, unlike Vezzetti, did not hold a policymaking position. As noted above,
There can be no doubt that Stuart‘s political views and affiliations are constitutionally protected under the
The role of a court in deciding whether to grant a motion for summary judgment “is not to resolve disputed issues of fact but only to determine whether there is a genuine issue to be tried.” Rattner, 930 F.2d at 209. Stuart urges three grounds for demonstrating that his job was eliminated because of his political views and affiliations in violation of his
A problematic aspect of this case is that the two contending explanations for Stuart‘s firing--punishment for political views and elimination of patronage employment--are not distinct and opposed considerations; politics colors both. The correlation between political allegiance and tenure in a patronage job complicates the determination of what evidence is relevant, what evidence suffices to carry a case to a jury and how a dual motivation affects the outcome. Stuart‘s claim is not advanсed by Pellegrini‘s denunciation of Stuart‘s job as a patronage position, or by Pellegrini‘s campaign promise to eliminate it--except insofar as Pellegrini‘s positions can be shown to be pretextual. Had Pellegrini fired Stuart in order to replace him with a Pellegrini stalwart, the campaign rhetoric might well support the view thаt Stuart‘s firing was political retribution. However, Pellegrini did not replace Stuart; he eliminated Stuart‘s position altogether. Abolishing a job because it is a patronage position is a ground of justification, not evidence of an improper motive, notwithstanding the fact that patronage jobs are usually awarded because of political affiliation, support or favor.
Few cases have applied the Branti-Elrod doctrine in the context of a job eliminated ostensibly for budgetary considerations. In one such case, Laidley v. McClain, 914 F.2d 1386 (10th Cir.1990), the plaintiff complained that her job as an investigator was eliminated by a newly elected district attorney after a bitter campaign in which plaintiff had supported the losing incumbent. The Tenth Circuit reversed the district court‘s grant of summary judgment dismissing the complaint, finding that, although plaintiff‘s termination “may have been for legitimate budgetary reasons,” most of her duties were redistributed between two newly created jobs with a combined payroll exceeding the plaintiff‘s salary. Id. at 1393. Therefore, the Tenth Circuit conсluded that there was a “legitimate question as to whether the defendant used the budget as a pre-text for dismissing her.” Id. A root distinction in the present case is that Stuart‘s job was eliminated altogether,
A Branti-Elrod claim cannot rest on the implementation of a policy to eliminate one or more patronage jobs. Otherwise, Branti-Elrod would institutionalize patronage jobs, which often are not the most critical or arduous. Prudent city managers would be forced to tolerate wasteful employment rather than incur the sometimes greater expense of litigation. And the political debate that the
Nevertheless, we are constrained to reverse the district court because the record does contain some evidence that the new administration acted to punish Stuart for his political affiliation. Stuart‘s brief recites that he “was told by defendant-appellee NEIL O‘SULLIVAN that while he liked STUART personally, they had to go after him and his job as a result of plaintiff-appellant STUART‘S party affiliation and being the right-hand man of former Republican Supervisor (and confrontational adversary) of defendant-appellant PELLEGRINI.” Appellant‘s Brief at 3. The transcript of Stuart‘s testimony, on which his brief relies for support, is rather less emphatic:
Q: What about April 1, 1991, how would you desсribe your relationship with Neil O‘Sullivan; did it stay the same as it had been back in the ‘70‘s?
A: I didn‘t have too many dealings with him at the time of my appointment. At a town board meeting, which of course is just going to be unsubstantiated, because he made sure he said it by himself when we were alone. He liked me personally, but he had to do this.
Q: What?
A: Meaning going after me and my job.
Q: Did he explain why?
A: Figure it out.
Q: Because of your affiliation with the parties?
A: That, and being the right-hand man of Joe Colello.
Q: When did he say this to you?
A: Sometime at a town boаrd meeting that I attended late April 1991.
This testimony is sufficient to defeat summary judgment, at least when coupled with one other suggestive fact. Stuart points out that he was not the victim of a broad-based personnel cutback. Rather, the budget eliminated only two occupied non-policymaking positions: those held by Griffith, a Conservative, аnd Stuart, a Republican. In light of the evidence that the Board specifically targeted Stuart for political reasons, and the fact that the only two jobs eliminated by the Town Board‘s 1992 budget were held by members of opposition parties, we are unable to conclude that no rational factfinder could resolve in Stuart‘s favor the issue of whether Stuart‘s political affiliation was a substantial or motivating factor in the Town Board‘s decision to eliminate his job.
CONCLUSION
For the reasons stated above, we affirm the district court‘s dismissal of Vezzetti‘s claims, vacate the dismissal of Stuart‘s