Tranello v. Frey
| Decision Date | 01 May 1992 |
| Docket Number | D,Nos. 883,s. 883 |
| Citation | 962 F.2d 244 |
| Parties | 58 Fair Empl.Prac.Cas. (BNA) 1334, 58 Empl. Prac. Dec. P 41,479, 60 USLW 2719 Lawrence F. TRANELLO, Plaintiff-Appellee--Cross-Appellant, v. Thomas R. FREY, individually, and as Monroe County Executive, Patrick M. Malgieri, individually, and as the Monroe County Attorney, County of Monroe, Defendants- Appellants- -Cross-Appellees. ockets 91-7944, 91-7946. |
| Court | U.S. Court of Appeals — Second Circuit |
Nira T. Kirmisch, Rochester, N.Y., for plaintiff-appellee-cross-appellant.
J. Mark Krause, Rochester, N.Y. (Gerald L. Paley, Phillips, Lytle, Hitchcock, Blaine & Huber, of counsel), for defendants-appellants-cross-appellees.
Samuel A. Marcosson, Washington, D.C. (Donald R. Livingston, Gen. Counsel, Gwendolyn Young Reams, Associate Gen. Counsel, Vincent J. Blackwood, Asst. Gen. Counsel, E.E.O.C., of counsel), filed a brief for amicus curiae.
Before FEINBERG and MINER, Circuit Judges, and PATTERSON, District Judge. *
This appeal pertains to an order granting partial summary judgment entered in the United States District Court for the Western District of New York (Larimer, J.). The order granted defendants' motion for summary judgment on plaintiff Deputy County Attorney's claims that defendants County and County officials violated the First, Fourth, Fifth and Fourteenth Amendments of the Constitution, 42 U.S.C. §§ 1981, 1983 and 1985, and breached an employment contract, by terminating plaintiff's employment on the basis of political affiliation and age, and without proper notice. The order denied summary judgment on a claim that defendant County violated the Age Discrimination in Employment Act ("ADEA"), see 29 U.S.C. § 621 et seq., by terminating plaintiff's employment because of age. Summary judgment was granted in favor of the two individual defendants on the ADEA claim, however, because the district court found that neither of these individuals could be considered an "employer," as defined in ADEA, 29 U.S.C. § 630(b).
Plaintiff-appellee-cross-appellant Thomas F. Tranello, a Republican, was a Deputy County Attorney for defendant-appellant-cross-appellee Monroe County. In 1987, a Democrat, defendant-appellant-cross-appellee Thomas R. Frey, was elected Monroe County Executive. Frey appointed another Democrat, defendant-appellant-cross-appellee Patrick M. Malgieri, as County Attorney after assuming office. Shortly after Malgieri took office, he terminated Tranello's employment. Tranello commenced this action in the district court, alleging that he was fired because of his political affiliation and age, and without any pretermination hearing. The district court granted defendants' motion for summary judgment, by an order dated and filed March 13, 1991, on all but the ADEA claim asserted against defendant Monroe County.
By order dated and filed July 29, 1991, the district court granted the County's application For the reasons stated below, we now hold that permission for Tranello to file a late cross-petition and for leave to appeal was improvidently granted and therefore dismiss for lack of jurisdiction his cross-appeal challenging the portion of the district court's order granting summary judgment for defendants. We affirm the portion of the district court's order, timely appealed from by the County, denying the County's motion for summary judgment on the ADEA claim.
for certification pursuant to 28 U.S.C. § 1292(b), thereby enabling the County to seek permission to appeal the denial of summary judgment on the ADEA claim. By notice of motion dated August 8, 1991, the County sought permission from this Court for leave to appeal, pursuant to section 1292(b) and Rule 5 of the Federal Rules of Appellate Procedure. Thereafter, Tranello, by notices of motion dated August 16, 1991, sought leave of this Court to file a late answer to the County's petition for leave to appeal and applied, on the basis of an untimely filed cross-petition, for leave to appeal the district court's grant of summary judgment for defendants on the various causes of action asserted in the complaint. On October 1, 1991, this Court granted both of Tranello's motions, and also granted the County's request for leave to appeal
Lawrence Tranello began work for the County of Monroe in 1972 as Assistant Social Services Counsel in the Department of Social Services ("DSS"). In this position, Tranello mainly handled paternity and child support matters. Tranello became Chief Counsel to the DSS in 1974, but shortly thereafter was demoted to his previous position. In 1977 he was assigned to the DSS Support Unit.
In 1985 the attorneys in the Support Unit were placed under the supervision of the Monroe County Attorney, and new positions were created within the Department of Law as part of a reorganization authorized by the County Legislature. In that same year Tranello was appointed to the position of Deputy County Attorney, Grade II. The County Civil Service Commission classified the Deputy County position as "exempt," in contrast to the "competitive" civil service status Tranello maintained prior to his appointment. See generally N.Y.Civ.Serv.Law §§ 41 and 44 (McKinney 1983). The then County Attorney, Charles Valenza, a Republican, designated Tranello "in charge" of supervising the other paternity and support attorneys within the Department; Tranello remained in this supervisory role until his termination in January 1988.
In November 1987, the political winds changed direction in Monroe County. Thomas Frey, a Democrat, defeated the Republican incumbent and became Monroe County Executive. After assuming office, Frey appointed Patrick Malgieri, a Democrat, to replace Valenza as County Attorney. Prior to assuming office, Malgieri allegedly was informed by Democrat Margaret Burt, at the time a public defender and an applicant for the position of Deputy County Attorney, that the Support Unit run by Tranello was poorly supervised and inefficient. (Burt now holds the position of Deputy County Attorney.) Shortly after Malgieri assumed office on January 1, 1988, he informed Tranello that he was being terminated as Deputy County Attorney for the purported reason that Tranello inadequately supervised the Support Unit.
Tranello filed charges with the Equal Employment Opportunity Commission and the New York State Division of Human Rights, alleging age discrimination. He also commenced this action in the district court claiming, inter alia, that he was fired because of his political affiliation, his age, and without a pretermination hearing, in violation of the First, Fourth, Fifth and Fourteenth Amendments to the Constitution, 42 U.S.C. §§ 1981, 1983 and 1985, ADEA, and in breach of his employment contract. See Tranello v. Frey, 758 F.Supp. 841, 843 (W.D.N.Y.1991).
Defendants moved for summary judgment, arguing: (i) the First Amendment and ADEA claims should be dismissed because a deputy county attorney falls within By order dated July 29, 1991, the district court, pursuant to 28 U.S.C. § 1292(b), granted defendant Monroe County's request for permission to pursue an interlocutory appeal of the denial of summary judgment on the ADEA claim and certified "its March 13, 1991 Decision and Order for an interlocutory appeal to the Second Circuit Court of Appeals." The County then filed in this Court a Notice of Motion, dated August 8, 1991, requesting permission for leave to appeal pursuant to section 1292(b) and Rule 5 of the Federal Rules of Appellate Procedure. By Notices of Motion dated August 16, 1991, Tranello requested permission to file a late answer to the County's petition for leave to appeal and sought permission for leave to appeal, on an untimely filed cross-petition, the district court's grant of summary judgment on all but the ADEA claim asserted against the County. On October 1, 1991, a panel of this Court allowed Tranello to file a late answer to the County's petition for leave to appeal, granted the County's motion for permission for leave to appeal, and granted Tranello's motion for leave to appeal on his untimely filed cross-petition.
the "policymaking" exemptions; (ii) defendants enjoy qualified immunity; (iii) no property interest existed to support a due process claim; and (iv) there could be no breach of contract, since Tranello was an employee "at will" under New York law. Tranello cross-moved for summary judgment on the various claims asserted in his complaint. The district court, by order dated March 13, 1991, granted summary judgment for defendants on (i) the First Amendment claim, as Tranello's position fell within a category that is exempt from First Amendment protection, and, alternatively, on qualified immunity grounds; (ii) the due process claim, because Tranello lacked a discernable property interest; (iii) the section 1983 and 1985 claims, because ADEA preempted these claims; (iv) on the breach of contract claim, since an employment at will relationship existed; and (v) on the remaining constitutional claims, as without foundation. The district court denied the motion for summary judgment sought by defendant Monroe County on the ADEA claim, finding inapplicable the ADEA exception for "appointee[s] on the policymaking level", see 29 U.S.C. § 623(a)(1). The court did, however, grant the two individual defendants summary judgment on the ADEA claim, holding that the individuals fell outside the definition of "employer" set forth in 29 U.S.C. § 630(b). The district court denied in all respects Tranello's cross-motion for summary judgment on the various claims asserted in his complaint
Before proceeding to the merits of this appeal, we are faced with a question concerning the jurisdiction of this Court to hear the various issues raised by Tranello on his cross-appeal. "Section 1292(b) provides a means of appealing from interlocutory orders that are otherwise...
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