Opinion
02-CV-240S.
March 28, 2005
DECISION AND ORDER
I. INTRODUCTION
Plaintiff James F. Notaro commenced the above-captioned case on March 28, 2002, by filing a Complaint in the United States District Court for the Western District of New York. He alleges that Defendants discriminated against him because of his political beliefs and associations, in violation of his rights under the First Amendment. Currently before this Court is the County and Workforce Defendants' Joint Motion for Summary Judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, which has been joined in by the Buffalo Defendants.
Plaintiff's Complaint names three groups of defendants: first, Defendants Anthony M. Masiello and the City of Buffalo (the "Buffalo Defendants"); second, Defendants Joel A. Giambra, Carl A. Calabrese, County of Erie, and Erie Community College (the "County Defendants"); and third, Defendants James Finamore, Buffalo Erie County Workforce Development Consortium, Inc., Workforce Development Board, Inc., and Buffalo Erie County Private Industry Council, Inc. (the "Workforce Defendants").
II. BACKGROUND
A. Facts
The following facts are undisputed for purposes of the instant motion, except where indicated. Plaintiff James Notaro was a salaried member of the New York State Liberal Party from 1960 through 1986. (Amend. Compl., ¶ 13). In April of 1988, Plaintiff was appointed by then-Erie County Executive Dennis T. Gorski to the Buffalo and Erie County Private Industry Counsel, Inc. ("PIC"). (Amend. Compl., ¶ 14). PIC was created under the former federal statute, the Job Training Partnership Act ("JTPA"), which funded programs across the United States to train and retrain workers, and to assist workers in self-directed job searches. (Amend. Compl., ¶ 15). As an agency, PIC implemented and supervised the employment and job training programs for Erie County, including Buffalo, to ensure the municipality's continuing eligibility for JTPA funding. (Amend. Compl., ¶ 15). PIC was a consortium of four offices — the City of Buffalo, the Town of Cheektowaga, the Town of Tonawanda and the Balance of Erie County. (Amend. Compl., ¶ 16). The Balance of Erie County Office serviced the remaining Erie County cities and towns not covered by the other three offices. (Amend. Compl., ¶ 16). Plaintiff was appointed to PIC as the Director of the Balance of County Office. (Amend. Comp., ¶ 14). There was also a Central PIC Office, which received JTPA funds and operated as the "Payroll of Conveniences" for the Balance of County Office at the direction of Dennis Gorski. (Amend. Compl., ¶ 16).
Plaintiff was not required to take a qualifying civil service examination for his position as Director of PIC's Balance of County. (Defendants' Joint Statement of Undisputed Material Facts, Ex. B, Notaro Dep., 154:15-17) ("Defs' Jt. State."). As the Director, Plaintiff was the highest ranking Official at PIC's Balance of County Office. (Defs' Jt. State, Ex. B, Notaro Dep., 126:19-21). In his role as Director, Plaintiff hired people, trained them, supervised staff, helped design his office building, and negotiated with the labor department regarding "placing [his] employment and training counselors in labor department offices like the City of Tonawanda." (Defs' Jt. State, Ex. B, Notaro Dep., 125:18-126:4). In addition, Plaintiff attended director meetings, at which the directors "would go through the money [they] had to spend in the coming month and three-month period." (Defs' Jt. State, Ex. B, Notaro Dep., 126:5-9). Plaintiff also attended program meetings "where programs were established for training and help[ed] to judge which ones were worthy of being passed." (Defs' Jt. State, Ex. B, Notaro Dep., 126:9-12). While Plaintiff "got a lot of assistance from Central PIC on how to perform [his] duties and what the standards were and how to meet them," he was not supervised on a daily basis. (Defs' Jt. State, Ex. B, Notaro Dep., pp. 127:3-10). Ultimately, Plaintiff, his deputy and his senior supervisor were responsible for ensuring that JTPA standards were being met by the Balance of County Office. (Defs' Jt. State, Ex. B, Notaro Dep., 127:20-128:16). Plaintiff's deputy and senior supervisor reported to Plaintiff. (Defs' Jt. State, Ex. B, Notaro Dep., 128:17-19). When necessary, it was Plaintiff's duty to discipline his employees. (Defs' Jt. State, Ex. B, Notaro Dep., 128:20-22).
Relevant portions of the deposition testimony of James Notaro, James Finamore and Carl Calabrese have been provided by the various parties. For ease of reference, this Court will use the following citation format to indicate the document, exhibit and line where the cited testimony is located: (Defs' Jt. State., Ex. ___, Finamore Aff., page #:line #).
Defendants' Statement of Undisputed Material Facts is located at Docket No. 51. Pursuant to Rule 56.1(c) of the Local Rules of Civil Procedure for the United States District Court for the Western District of New York, "all material facts set forth in the statement required to be served by the moving party will be deemed admitted unless controverted by the statement required to be served by the opposing party."
Before and during his employment with PIC, Plaintiff served as an informal advisor to Dennis Gorski on political matters. (Amend. Compl., ¶ 18; Defs' Jt. State, Ex. B, Notaro Dep., 15:2-19, 103:19-104:16, 143:12-22). According to Plaintiff, his "previous involvement with the Liberal Party and ties to Gorski were no secret to various political players in Erie County, including Joel Giambra." (Amend. Compl., ¶ 18). In 1992 or 1993, Dennis Gorski authorized Plaintiff "to reach out to Mr. Giambra to see if he was interested in the position of deputy county executive." (Defs' Jt. State, Ex. B, Notaro Dep., pp. 179:9-180:16). During his tenure as the Director of PIC's Balance of County Office, Plaintiff frequently interacted with Dennis Gorski, and then-Deputy County Executive James Keane. (Defs' Jt. State, Ex. B, Notaro Dep., 131:19-132:19). During this time frame, Workforce Defendant James Finamore represented the Town of Tonawanda for the purpose of policy decisions affecting PIC. (Finamore Aff., ¶ 3). According to James Finamore, Plaintiff represented the County of Erie and was the only jurisdictional director employed by PIC. (Finamore Aff., ¶ 3). James Finamore testified that it was his understanding that Plaintiff "was the representative of County Executive Gorski," and "[i]n meetings and conversations [he] took [Plaintiff's] views to be a reflection of the County position." (Defs' Jt. State, Ex. A1, Finamore Dep., 13:20-14:12).
This individual's name appears as Jim Kane in Mr. Notaro's deposition transcript and James Keane in the Amended Complaint. This Court will refer to him as James Keane.
James Finamore's affidavit is located at Docket No. 45.
In 1998, the United States Congress enacted new federal legislation, the Workforce Investment Act ("WIA"), to replace the JTPA. (Defs' Jt. State., p. 3). Accordingly, Plaintiff and other PIC officials were notified in 1998 that the JTPA would "sunset" over a two year period, would end on July 1, 2000, and the WIA would then take effect. (Amend. Compl., ¶ 19). A contract was executed under which PIC would continue until October 1, 2000. (Amend. Compl., ¶ 19). According to James Finamore, PIC's Tonawanda representative, "there was an awareness, as to the dates I don't know, that when either June 30th or September 30th came around, that everyone was being laid off, every PIC employee was being laid off." (Defs' Jt. State, Ex. A2, Finamore Dep., 47:10-16).
Prior to PIC's dissolution, Plaintiff was appointed by Dennis Gorski to serve on the Governance Committee, which was charged with phasing out PIC and implementing the WIA and was headed by then-Deputy County Executive James Keane. (Amend. Compl., ¶ 20). In January 2000, Joel Giambra took office as Erie County Executive, after defeating Dennis Gorski in November 1999. (Amend. Compl., ¶ 17). After Joel Giambra won the election, Plaintiff was no longer invited to the Governance Committee meetings. (Plaintiff's Statement of Undisputed Material Facts, Ex. A, Notaro Dep., 35:1-11) ("Pl's State."). On or about July 25, 2000, PIC informed Plaintiff by letter that he was going to be laid off as of September 30, 2000, as PIC would cease to provide services on that day. (Amend.Compl., ¶ 23). The PIC duties previously administered by Plaintiff were divided and reorganized in accordance with the WIA, and were assumed by three entities: the Workforce Investment Board ("WIB"), the Workforce Development Consortium, Inc. ("WDC"), which is the fiscal agent of the WIB, and Erie Community College ("ECC"). (Finamore Aff., ¶ 22). ECC provides many services previously administered by the PIC's Balance of County Office, under the supervision of their Dean of Employment and Training Services. (Finamore Aff., ¶ 22).
Plaintiff's Statement of Undisputed Material Facts is located at Docket No. 65.
This Defendant is improperly referred to as the "Workforce Development Board" in the Amended Complaint.
In January 2000, prior to the delegation of PIC's duties, James Finamore sent an e-mail to Deputy County Executive Carl Calabrese regarding the WIA. (Pl's State., Ex. E). Therein, James Finamore acknowledged Carl Calabrese and Joel Giambra's request that he "put together a consortium that is an equal partnership between the City and the County, with the County taking on key administrative responsibilities." (Pl.'s State., Ex. E). James Finamore recommended ECC as the best agency to run a "suburban One-Stop center," and acknowledged that "[w]hatever entity is designated for the suburban One-stop center would ultimately supplant the balance-of-county PIC staff now supervised by Jim Notaro." (Pl.'s State., Ex. E). On hardcopies of this e-mail, Carl Calabrese made handwritten notes in the margins, including the word "Notaro" with a slash through it, as well as the words "yes — jobs" and "JG decision." (Pl.'s State., Ex. E; Pl.'s State., Ex. D, Calabrese Dep., 46:1-16). When asked at his deposition why Mr. Notaro's name appeared with a slash through it, Carl Calabrese answered "I have no idea." (Pl's State., Ex. D, Calabrese Dep., 46:9-11).
At some point during his discussions with Carl Calabrese regarding the "suburban One-stop," James Finamore opined that Plaintiff would not be a good candidate to head the program because of his lack of education. (Pl's State., Ex. B,Calabrese Dep., 67:12-68:5).
Under the Workforce Development Consortium Agreement, the County Executive was authorized to appoint one person to the position of Executive Director. (Defs' Jt. State., Ex. L, ¶ 6). County Executive Joel Giambra appointed James Finamore to the position. (Amend. Compl., ¶ 22). At some point prior to PIC's dissolution, James Finamore asked James Bratek, Executive Director of PIC, "to help [him] identify people who had recommended employees in the past." (Finamore Aff., ¶ 20). According to James Finamore, "Mr. Bratek was able to identify some information about some individuals." (Finamore Aff., ¶ 20). Apparently as a result of this process, a list was generated, which included the names of "Marketing," "Balance of County," and "Welfare to Work" employees. (Defs' Jt. State., Ex. M). A hard copy of this list bears James Finamore and Carl Calabrese's handwritten notes. (Finamore Aff., ¶¶ 20-21; Defs' Jt. State., Ex. C1, Calabrese Dep., 59:8-20). The words "mostly D.G. people" and "will all be on ECC payroll — post-7/1" appear next to the names of the Balance of County employees. (Defs' Jt. State., Ex. M).
Nearly all of the PIC employees who lost their employment were hired into the new workforce development structure comprised of the WDC, WIB and ECC. (Amend. Compl., ¶ 23; Defs' Jt State., Ex. B, Notaro Dep., 173:13-18). Plaintiff was one of the few PIC employees and the only PIC director who was not hired into the WDC or "any of the cooperating corporations." (Amend. Compl., ¶¶ 23, 24). Plaintiff formally applied for the position of Dean of Employment and Training at ECC, but he was not selected for an interview because he did not meet the minimum educational qualifications. (Amend. Compl., ¶ 29, Willis Aff., ¶ 10). Specifically, the Dean of Employment and Training at ECC requires a four year college degree, a Master's degree, and five years of experience in a responsible educational, administrative or supervisory capacity. (Amend. Compl., ¶ 28).
Darley Willis' affidavit appears at Docket No. 49.
Darley Willis, Director of Human Resources at ECC, and Carrie Kahn, Executive Dean for Workforce Development, drafted the job description for this position. (Willis Aff., ¶¶ 1, 3). According to Darley Willis, "[t]he educational requirements [for the position] were determined in conjunction . . . with the Administrator's Association Union of ECC and the County and the College." (Willis Aff., ¶ 3). The agreement between the Administrator's Association Union, the College and the County requires a Master's Degree for any positions that are a job grade 14 or higher. (Willis Aff., ¶ 7). The Dean of Employment and Training is a job grade 15. (Willis Aff., ¶ 7). Moreover, every dean position at ECC requires a Master's Degree. (Willis Aff., ¶ 7). In her affidavit, Darley Willis swore that she never received any direction from Joel Giambra or Carl Calabrese or any of their representatives regarding what the minimum educational requirements should be. (Willis Aff., ¶¶ 4-5). Moreover, she swore that "Mr. Finamore's input on the job description was limited to providing advice on the technical duties of the position." (Willis Aff., ¶ 6). James Finamore apparently provided Carrie Kahn with "job descriptions from some other One Stop Center [he] had picked up in [his] travels," but he did not see any reason to redact the academic qualifications from the job description. (Pl's State., Ex. K, Finamore Dep., 61:7-18, 63:13-23). In response to the advertisement for the Dean of Employment and Training Position, Plaintiff sent a letter, resume, application and other documents to ECC for consideration, but he was not selected for an interview because he did not possess a four year college degree or a Master's degree. (Willis Aff., ¶ 10; Defs' Jt. State., Ex. E). Darley Willis was not aware of Plaintiff's educational qualifications or work experience until her office received his application for the Dean of Employment and Training. (Willis Aff., ¶ 9).
By contrast, the woman who was ultimately selected for the position possessed a Master's degree, had previous employment with ECC, and scored the highest number of points based on the screening criteria and her responses to the interview questions. (Defs' Jt. State., Ex. I; Defs' Jt. State., Ex. K, p. 1 5;Willis Aff., ¶¶ 11, 13-15).
Plaintiff also applied to Mayor Anthony Masiello for a position as a Deputy Director for the WDC. (Amend. Compl., ¶ 26). According to Plantiff, Samuel LaGreca and James Finamore advised him in July of 2000 that the Deputy Director of the WDC would be appointed by Anthony Masiello, and Joel Giambra could not veto his appointment. (Buffalo Defendants' Statement of Undisputed Material Facts, Ex. A, Notaro Dep., 243:5-22) (Buff. Defs' State."). In August of 2000, Plaintiff called Anthony Masiello to express his interest in the position, but he did not send a letter of interest nor did he record the conversation or take any written notes. (Buff. Defs' State., Ex. A, Notaro Dep., 250:5-253:12; 254:6-18; Buff. Defs' State., p. 6). Approximately one week later, Anthony Masiello called Plaintiff and advised him that he was appointing a member of his own staff to the position. (Buff. Defs' State., Ex. A,Notaro Dep., 253:13-254:5; Buff. Defs' State., p. 6). Anthony Masiello subsequently appointed his former aide, who allegedly had no previous experience in the field of employment training. (Buff. Defs' State., p. 6; Amend. Compl., ¶ 26).
The Buffalo Defendants' Statement of Undisputed Material Facts is located at Docket No. 81.
B. Procedural History
Plaintiff commenced this action on March 28, 2002, by filing a Complaint in the United States District Court for the Western District of New York. Therein, Plaintiff asserted two causes of action. The first cause of action, brought pursuant to 42 U.S.C. § 1983, alleged that Defendants interfered with his First Amendment right to hold political beliefs and engage in political associations. In the second cause of action, Plaintiff claimed that Defendants discriminated against him with respect to his employment because of his political activities, in violation of New York Labor Law § 201-d. On January 30, 2004, the Buffalo Defendants filed a Motion for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. By Decision and Order entered on August 20, 2004, this Court granted the Buffalo Defendants' Motion with respect to both causes of action, thereby dismissing with prejudice Plaintiff's state law claim against the Buffalo Defendants. However, the Court granted Plaintiff leave to amend his Section 1983 claim against the Buffalo Defendants. Plaintiff filed an Amended Complaint on September 15, 2004. The Buffalo, County and Workforce Defendants each filed timely answers to the Amended Complaint.
In the interim, on April 14, 2004, the County and Workforce Defendants filed a Joint Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Court heard oral argument on October 19, 2004, during which Plaintiff abandoned his state law cause of action against all Defendants. This Court reserved decision on the Motion at that time. By Order entered on October 26, 2004, in the interest of judicial economy, this Court deemed the Buffalo Defendants, upon their motion, joined in the County and Workforce Defendants' Motion for Summary Judgment and directed them to file and serve a memorandum in support thereof.
In support of their Joint Motion, the County and Workforce Defendants filed a Statement of Undisputed Material Facts with numerous exhibits, a Memorandum of Law on behalf of the Workforce Defendants, a Memorandum of Law on behalf of the County Defendants, an Affidavit by James Finamore, an Affidavit by Darley Willis, a Reply Affidavit by Cheryl Fisher, and a Reply Affidavit by Kristin Klein Wheaton. In opposition to the Motion, Plaintiff filed an Affidavit by Andrew Fleming with numerous exhibits, and a Memorandum of Law.
In support of Summary Judgment, the Buffalo Defendants filed a Statement of Undisputed Material Facts with exhibits, an Affidavit by Kelly Gale Eisenried, and a Memorandum of Law. The Buffalo Defendants' Memorandum of Law sets forth standards governing Motions for Judgment on the Pleadings. However, the Buffalo Defendants are deemed joined in the Joint Motion for Summary Judgment. As such, their papers are construed in support of that Motion. Plaintiff filed an Affidavit of Andrew Fleming with an exhibit in opposition.
III. DISCUSSION AND ANALYSIS
A. Summary Judgment StandardFederal Rule of Civil Procedure 56 provides that summary judgment is warranted where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). A "genuine issue" exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit under governing law." Id.
In deciding a motion for summary judgment, the evidence and the inferences drawn from the evidence must be "viewed in the light most favorable to the party opposing the motion." Adickes v. S.H. Kress Co., 398 U.S. 144, 158-59, 90 S. Ct. 1598, 1609, 26 L. Ed. 2d 142 (1970). Of course, the reviewing court is only required to consider admissible evidence in ruling on a motion for summary judgment. Nora Beverages v. Perrier Group of Am., Inc., 164 F.3d 736, 746 (2d Cir. 1998). "Only when reasonable minds could not differ as to the import of the [admissible] evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). Ultimately, the function of the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.
Once a moving party has met its initial burden to demonstrate that no genuine issue as to any material fact exists, the nonmovant "must 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, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). Rather, the nonmovant "must come forward with evidence sufficient to allow a reasonable jury to find in their favor." Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001) (internal quotations omitted). "Bald assertions or conjecture unsupported by evidence are insufficient to overcome a motion for summary judgment." Zdziebloski v. Town of Greenbush, 336 F. Supp. 2d 194, 201 (N.D.N.Y. 2004) (citing Carey v. Crecenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
B. Defendants' Motions for Summary Judgment
Plaintiff's remaining cause of action, brought pursuant to 42 U.S.C. § 1983, alleges that the Buffalo, County, and Workforce Defendants interfered with his First Amendment right to hold political beliefs and engage in political associations. (Amend Compl., ¶¶ 33-35). Defendants argue that they are entitled to summary judgment because: (1) Plaintiff was a "policymaker" whose political affiliations are not protected; and (2) Plaintiff has failed to show that he was terminated or otherwise denied employment because of his political affiliations. This Court will address these arguments below.
1. Section 1983 and the First Amendment
Under 42 U.S.C. § 1983, an individual whose constitutional rights have been violated by a person acting under color of state law may file a lawsuit in federal court seeking compensation.See Richardson v. McKnight, 521 U.S. 399, 403, 117 S. Ct. 2100, 2103, 138 L. Ed. 2d 540 (1997). In order to prevail on a Section 1983 claim, "a plaintiff must prove that the challenged conduct was attributable at least in part to a person acting under color of state law, and that the conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States." Wimmer v. Suffolk County Police Dep't, 176 F.3d 125, 137 (2d Cir. 1999).
To prevail on a First Amendment claim asserted under 42 U.S.C. § 1983, a plaintiff must prove by a preponderance of the evidence that: "(1) the expression at issue was constitutionally protected, (2) the alleged retaliatory action adversely affected his constitutionally protected expression, and (3) a causal relationship existed between the constitutionally protected expression and the retaliatory action." Camacho v. Brandon, 317 F.3d 153, 160 (2d Cir. 2003) (citing Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001), overruled in part on other grounds by Phelps v. Kapnolas, 308 F.3d 180, 187 n. 6 (2d Cir. 2002)). The First Amendment protects, inter alia, freedom of speech, the right of peaceable assembly, and the right "to petition the Government for a redress of grievances." U.S. CONST. amend. I. As such, affiliation with a political party or faction is an expression that is protected by the First Amendment. Camacho, 317 F.3d at 160.
"The First Amendment prevents the government, except in the most compelling circumstances, from wielding its power to interfere with its employees' freedom to believe and associate, or to not believe and not associate." Rutan v. Republican Party of Illinois, 497 U.S. 62, 76, 110 S. Ct. 2729, 2738, 111 L. Ed. 2d 52 (1990); see also African Trade Info. Ctr., Inc. v. Abromaitis, 294 F.3d 355, 360-62 (2d Cir. 2002) (discussingRutan). Consistent with this principle, the Supreme Court has held that the failure to promote, transfer, or recall a low-level public employee after layoffs based on his or her political affiliation is an impermissible infringement on First Amendment rights. Rutan, 497 U.S. at 75.
2. First Amendment Protections for Policymakers
While the political affiliations of "low-level" political players are constitutionally protected from government retaliation, the political affiliations of "policymakers" are not similarly protected. Camacho, 317 F.3d at 160-61. According to the Second Circuit, a "policymaker" is a person for whom "political affiliation is an appropriate requirement when there is a rational connection between shared ideology and job performance." Savage v. Gorski, 850 F.2d 64, 68 (2d Cir 1988). Where a person occupies a confidential, "policymaking" position, political affiliation may be a valid and acceptable criterion for employment. See Branti v. Finkel, 445 U.S. 507, 517, 100 S. Ct. 1287, 1294, 63 L. Ed. 2d 574 (1980) (citing Elrod v. Burns, 427 U.S. 347, 366, 96 S. Ct. 2973, 2686, 49 L. Ed. 2d 547 (1976)). Accordingly, "policymaking staffers may permissibly be fired by elected officials based on the staffers' political views and associations." Velez v. Levy, ___ F.3d ___, No. 03-7875, 2005 WL 564175, at *15 (2d Cir. Mar. 11, 2005).
This exception to the First Amendment retaliation doctrine, established by the Second Circuit in Elrod and Branti, "derives from a political imperative: the people's chosen representatives must be allowed to select aides who share their political views, and hence to fire — on political grounds — the aides of a previous incumbent." Velez, 2005 WL 564175, at *15 (citing Elrod, 427 U.S. at 367; Branti, 445 U.S. at 518). To determine whether an employee is a "policymaker," as contemplated by the Elrod and Branti Courts, a court may consider 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." Butler v. New York State Dep't of Law, 211 F.3d 739, 744 (2d Cir. 2000) (citing Vezzetti v. Pellegrini, 22 F.3d 483, 486 (2d Cir. 1994)). While no one factor is dispositive of whether a person occupies a "policymaking" position, a court may use this non-exhaustive list as a guide in making its assessment. Id. (citing Vona v. County of Niagara, 119 F.3d 201, 209 (2d Cir. 1997)).
Applying these factors to the instant case, this Court finds that Plaintiff occupied a "policymaking" position with Erie County under the Gorski administration. The record reflects that Plaintiff was active in Dennis Gorski's campaign for County Executive, and was appointed as Director of PIC's Balance of the County Office without the requirement of a civil service exam or application. (Defs' Jt. State., Ex. B, Notaro Dep., 103:15-104:5; 154:15-17). Plaintiff's resume reflects that he possessed years of experience as a labor mediator with the International Hatters Union prior to his appointment as Director of PIC's Balance of County Office. (Defs' Jt. State., Ex. E, p. 3). Moreover, although Plaintiff did not have expertise in the field of employment training before his appointment, he certainly developed it during his 12 and one-half year tenure as Director of PIC's Balance of County Office.
As the Director of PIC's Balance of County Office, Plaintiff was the highest ranking official in that Office. (Defs' Jt. State., Ex. B, Notaro Dep., 126:19-21). Moreover, Plaintiff exercised substantial authority as Director of PIC's Balance of County Office. For example, the record reflects that Plaintiff hired people, trained them, supervised staff, helped design his office building, and negotiated with the labor departments of the various Erie County cities and towns. (Defs' Jt. State., Ex. B,Notaro Dep., 125:18-126:4). At least sixteen PIC employees reported to Plaintiff, including his deputy and senior supervisor. (Pl.'s State., ¶ 2; Defs' Jt. State., Ex. B,Notaro Dep., 128:17-19). When necessary, it was Plaintiff's duty to discipline his employees. (Defs' Jt. State., Ex. B,Notaro Dep., 128:20-22).
Plaintiff also exercised his authority as Director of PIC's Balance of County with autonomy. For example, Plaintiff was not supervised on a daily basis. (Defs' Jt. State., Ex. B, Notaro Dep., 127:3-10). He was authorized to make decisions regarding what job training programs would be implemented and how available funds should be managed. (Notaro Dep., 126:5-12). By all appearances, Plaintiff was authorized to speak on behalf of Dennis Gorski and on behalf of the County with respect to PIC matters. For example, it was Plaintiff who "reached out" to Joel Giambra on behalf of Dennis Gorski to see if he was interested in the position of deputy county executive in 1992 or 1993. (Defs' Jt. State., Ex. B, Notaro Dep., 179:9-180:16). Apparently, Plaintiff represented Erie County in the same capacity that James Finamore represented the Town of Tonawanda. (Finamore Aff., ¶ 3). That being the case, both men made policy decisions affecting the PIC on behalf of their respective jurisdictions. (Finamore Aff., ¶ 3). As James Finamore testified at his deposition, it was his understanding that Plaintiff "was the representative of County Executive Gorski," and "[i]n meetings and conversations [he] took [Plaintiff's] views to be a reflection of the County position." (Defs' Jt. State., Ex. A1, Finamore Dep., 13:20-14:12).
Plaintiff apparently influenced policy with respect to job training and development in the County, as evidenced by his appointment to PIC, and thereafter to the Governance Committee, which was charged with implementing the WIA and phasing out the PIC. (Amend. Compl., ¶ 20). In his official and political capacities, Plaintiff frequently interacted with County Executive Dennis Gorski, and Deputy County Executive James Keane. (Defs' Jt. State., Ex. B, Notaro Dep., 131:19-132:19). Moreover, Plaintiff was clearly responsive to these partisan leaders. Before and during his employment with PIC, Plaintiff served as an informal advisor to Dennis Gorski on political matters. (Amend. Compl., ¶ 18; Defs' Jt. State., Ex. B, Notaro Dep., 15:2-19, 103:19-104:16, 143:12-22). Moreover, Plaintiff obtained the Liberal Party endorsement for Dennis Gorski, issued public statements on his behalf, and acted as the Upstate Director or State Executive Director for the New York State Liberal Party for over twenty years. (Defs' Jt. State., Ex. B, Notaro Dep., 15:2-22; Defs' Jt. State., Ex. E, p. 3). Under these circumstances, it is clear that Plaintiff's "previous involvement with the Liberal Party and ties to Gorski were no secret to various political players in Erie County, including Joel Giambra." (Amend. Compl., ¶ 18).
Consideration of all of these factors compels the conclusion that Plaintiff acted as a "policymaker" for Erie County under the Gorski administration, and that political affiliation was an appropriate requirement for his job. No reasonable trier of fact could conclude otherwise. As a "policymaker" for the previous incumbent, Plaintiff was not protected from being terminated by the newly elected County Executive or his Deputy. Therefore, even assuming that Joel Giambra and Carl Calabrese eliminated Plaintiff's job because of his role in the Gorksi administration, that conduct did not constitute a violation of Plaintiff's First Amendment rights. Because there is no genuine issue as to whether Plaintiff meets the factual criteria for a "policymaker," Defendants Joel Giambra and Carl Calabrese are entitled to Summary Judgment.
3. Political Affiliation as a Motivating Factor
Even assuming that Plaintiff was not a "policymaker," he has failed to demonstrate that he was terminated and not rehired because of his political affiliations. As previously noted herein, to prevail on a First Amendment claim asserted under 42 U.S.C. § 1983, a plaintiff must prove by a preponderance of the evidence that a causal relationship existed between the constitutionally protected expression and the retaliatory action.Camacho, 317 F.3d at 160. The Second Circuit has held that a plaintiff cannot rely upon "conclusory assertions of retaliatory motive to satisfy the causal link." Zdziebloski, 336 F. Supp. 2d at 204 (citing Cobb v. Pozzi, 363 F.3d 89, 102 (2d Cir. 2004)).
A. Plaintiff's Termination
Plaintiff asserts that Joel Giambra, Carl Calabrese and James Finamore targeted him for termination based on his political affiliations. This Court finds that there are certain undisputed facts which belie this assertion. As an initial matter, the dissolution of PIC was heralded in 1998 by a change in federal legislation, specifically, the replacement of the JTPA with the WIA. (Defs' Jt. State., p. 3). As previously noted herein, Plaintiff and other PIC officials were notified in 1998, while Dennis Gorski was still County Executive, that the JTPA would "sunset" over a two year period, would end July 1, 2000, and the WIA would then take effect. (Amend. Compl., ¶ 19). Secondly, Plaintiff was not the only person who was terminated from PIC after the WIA took effect. It is undisputed that every Buffalo and Erie County PIC employee (including Plaintiff) was laid off when PIC ceased its operations on September 30, 2000. (Amend. Compl., ¶ 23). As James Finamore testified "there was an awareness . . . that when either June 30th or September 30th came around, that everyone was being laid off, every PIC employee was being laid off." (Defs' Jt. State., Ex. A2, Finamore Dep., 47:10-16).
Plaintiff argues that the WIA did not mandate that PIC be dissolved, and that Joel Giambra made the final decision to terminate Plaintiff's position. However, as set forth above, the record clearly reflects that it was determined during Dennis Gorski's tenure as County Executive that PIC would be eliminated. According to the Amended Complaint, Dennis Gorski even appointed Plaintiff to the Governance Committee, which was charged with phasing out PIC and was headed by then-Deputy County Executive James Keane. (Amend. Compl., ¶ 20). There is evidence that Joel Giambra designated ECC as the "suburban One-Stop center" to provide services previously administered by the Balance of County Office, and that he based this decision, at least in part, upon the recommendation of James Finamore. (Pl. State., Ex. E). At most, this evidence establishes that Joel Giambra failed to intervene to salvage PIC, and Plaintiff's job, after Dennis Gorski determined that they would be eliminated. This failure, standing alone, does not amount to a violation of Plaintiff's First Amendment rights. Accordingly, this Court finds that Defendants Joel Giambra, Carl Calabrese, PIC and the County of Erie are entitled to summary judgment.
B. The Failure to Hire Plaintiff as the Dean of Employment and Training at ECC
Plaintiff alleges that "[i]t was clearly arranged so Notaro was not qualified for the position that he successfully held for over twelve years." (Amend. Compl., ¶ 28). However, Plaintiff has failed to present any evidence that he was denied the position as the Dean of Employment and Training at ECC because of his political affiliations. According to Darley Willis, Director of Human Resources at ECC, Plaintiff was not selected for an interview because he did not possess a four year college or a Master's degree, which were the minimal educational requirements for the job. (Willis Aff., ¶¶ 1, 10; Defs' Jt. State., Ex. E). This Court finds that there is no evidence to suggest that this reason was merely pretextual. For example, it is undisputed that Darley Willis, who drafted the job description, was not familiar with Plaintiff's educational qualifications or work experience until her office received his application for the Dean of Employment and Training position. (Willis Aff., ¶¶ 1, 8). Moreover, Darley Willis determined the educational requirements for the position "in conjunction . . . with the Administrator's Association Union of ECC and the County and the College." (Willis Aff., ¶, 3). As previously noted herein, the agreement between the Administrator's Association Union, the College and the County requires a Master's Degree for any positions that are a job grade 14 or higher. (Willis Aff., ¶ 7). The Dean of Employment and Training is a job grade 15. (Willis Aff., ¶ 7). In addition, it is undisputed that every dean position at ECC requires a Master's degree. (Willis Aff., ¶ 7).
Plaintiff has presented no evidence to refute Darley Willis' sworn statement that Joel Giambra and Carl Calabrese did not influence what the educational requirements for the Dean of Employment and Training position would be. (Willis Aff., ¶¶ 4-5). On the other hand, Plaintiff has presented proof that James Finamore assisted in creating the job description for the position, at least indirectly. For example, James Finamore provided sample job descriptions from "some other One Stop Center," which contained minimum education requirements. (Pl's State., Ex. K, Finamore Dep., 61:7-18, 63:13-23; Pl's State., Ex. L). Moreover, James Finamore opined to Carl Calabrese that he did not believe that Plaintiff was a good candidate to head the "suburban One-Stop center" because of his lack of education. (Pl's State., Ex. B, Calabrese Dep., 67:12-68:5).
Nonetheless, this Court finds that there is no evidence that James Finamore suggested these educational requirements to ensure that Plaintiff, in particular, was not hired as the Dean of Employment and Training. Rather, it appears that James Finamore wanted that the person who headed the "One Stop Center" to possess certain education credentials. Further, even assuming James Finamore intervened to prevent Plaintiff from being hired as the Dean of Employment and Training, there is no evidence that he did so because of Plaintiff's political affiliation to Dennis Gorski or the Liberal Party. It is undisputed the vast majority of former PIC employees, including those appointed by Dennis Gorski, were hired into the WDC, WIB or ECC. (Amend. Compl., ¶ 23; Defs' Jt. State, Ex. B, Notaro Dep., 173:13-18). These former PIC employees were rehired into the WDC, WIB and ECC based, at least in part, on the recommendations of James Finamore. (Pl's State., Ex. B, Calabrese Dep., 54:1-23). Based on the foregoing, this Court finds that Plaintiff has failed to present any evidence that he was denied employment at ECC because of his political affiliations. Accordingly, this Court finds that Defendants James Finamore, WDC, WIB, and ECC are entitled to Summary Judgment.
For example, as Carl Calabrese testified "[James Finamore] has a pretty good idea of the quality of staff, from poor to excellent and where certain people might fit into the organization and he did make recommendations to me in saying this is a person that is really good and we want to make sure we can keep him and her [sic] in the organization and these are people who may not fit these bills." (Pl's State., Ex. B, Calabrese Dep., 54:10-20).
C. Anthony Masiello's Failure to Appoint Plaintiff as Deputy Director of the WDC
With respect to the Buffalo Defendants, Plaintiff alleges that Anthony Masiello did not appoint him as Deputy Director to the WDC because he was not politically active on Masiello's behalf. (Amend. Compl., ¶¶ 26, 27). It is undisputed that Anthony Masiello appointed his former aide as Deputy Director to the WDC, instead of Plaintiff. (Buff. Defs' State., p. 6). According to Plaintiff, this individual had no previous experience in the field of employment training. (Amend. Compl., ¶ 26). However, the fact that Anthony Masiello appointed another individual as Deputy Director of the WDC, standing alone, does not compel the conclusion that he did not appoint Plaintiff because of his political affiliations.
Plaintiff's claim against Anthony Masiello, a Democrat, apparently implicates an "intra-party" political dispute. See Thorsen v. County of Nassau, 294 F. Supp. 2d 371, 377 (E.D.N.Y. 2003) (citing Juncewicz v. Patton, No. 01-CV-0519E(SR), 2002 WL 31654957, at *6 (W.D.N.Y. Oct. 8, 2002); Hering v. Hill, 814 F. Supp. 356, 358 (S.D.N.Y. 1993); Mirabella v. Bd. of Elections, 507 F. Supp. 338, 340 (S.D.N.Y. 1990).
Plaintiff argues, through his attorney, that "a review of the exhibits . . . demonstrates (beyond any real doubt) that this was all a "political deal," that "[he] was a victim of a political connection," and that he was precluded from employment "with the Mayor's understanding, permission, participation and consent, be it reluctant or otherwise." (Pl's Aff. in Opp. to the City's Mot., ¶¶ 7-8). In particular, Plaintiff directs this Court to review a 120-page Grand Jury Report "released as a result of an investigation into the `Aurora Barn' scandal." (Fleming Aff. in Opp. to Defs' Jt. Mot., ¶ 17). However, it is not this Court's duty or function to search the record in support of a litigant's suggested arguments. See Amnesty Am. v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002) ("[Rule 56] does not impose an obligation on a district court to perform an independent review of the record to find proof of a factual dispute."); Smith v. Ward Leonard Elec. Co., Inc., No. 00 Civ. 3703, 2004 WL 1661098, at *3 n. 2 (S.D.N.Y. July 23, 2004) ("It is the job of Plaintiff's counsel, not the Court, to identify evidence sufficient to avoid summary judgment.").
Plaintiff's reply affidavit is located at Docket Number 82.
Mr. Fleming's Affidavit is located at Docket No. 65.
Moreover, the mere allegation that Anthony Masiello did not appoint Plaintiff to the WDC, because of his political affiliations, unsupported by specific facts, is insufficient to overcome a motion for summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552-53, 91 L.Ed. 2d 265 (1986); FED. R. CIV. P. 56(e) ("an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial"); Wyler v. United States, 725 F.2d 156, 160 (2d Cir. 1983) (plaintiff cannot rely on conclusory statements in the pleadings or unsupported allegations). Accordingly, this Court finds that Defendants Anthony Masiello and the City of Buffalo are entitled to summary judgment.
IV. CONCLUSION
Based on the foregoing, this Court finds that there is no genuine issue as to whether Plaintiff meets the factual criteria for a "policymaker." As a "policymaker," Plaintiff was not protected under the First Amendment from political retaliation by Defendants Joel Giambra and Carl Calabrese. Further, even assuming Plaintiff was not a "policymaker," this Court finds that no reasonable trier of fact could conclude that Plaintiff was fired or otherwise denied employment because of his political affiliations.V. ORDERS
IT HEREBY IS ORDERED that the County and Workforce Defendants' Joint Motion for Summary Judgment (Docket No. 41), which was joined in by the Buffalo Defendants (Docket No. 81) is GRANTED.
FURTHER, that the Clerk of the Court take the necessary steps to close this case.
SO ORDERED.