Vezzetti v. Pellegrini

• Decision Date: 20 April 1994
• Docket Number: D,No. 926,926
• Citation: 22 F.3d 483
• Parties: Charles VEZZETTI and David Stuart, Plaintiffs-Appellants, William Griffith, Plaintiff, v. Roger PELLEGRINI, Supervisor; Cornelius "Neil" O'Sullivan; Cornelius "Connie" O'Sullivan; Dr. Edward Fisher and Pauline Levin, councilpersons, constituting the Town Board of the Town of Orangetown and The Town of Orangetown, Defendants-Appellees. ocket 93-7834.
• Court: U.S. Court of Appeals — Second Circuit

Page 483

22 F.3d 483

Charles VEZZETTI and David Stuart, Plaintiffs-Appellants William Griffith, Plaintiff, v. Roger PELLEGRINI, Supervisor; Cornelius "Neil" O'Sullivan Cornelius "Connie" O'Sullivan; Dr. Edward Fisher and Pauline Levin, councilpersons, constituting the Town Board of the Town of Orangetown and The Town of Orangetown Defendants-Appellees.

No. 926, Docket 93-7834.

United States Court of Appeals Second Circuit.

Argued Jan. 14, 1994.

Decided April 20, 1994.

David MacRae Wagner, Freedman, Wagner, Tabakman, Weiss & Insler, New York City, for plaintiffs-appellants.

Lisa L. Shrewsberry, D'Amato & Lynch, New York City, for defendants-appellees.

Before: NEWMAN, Chief Judge, WINTER and JACOBS, Circuit Judges.

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 42 U.S.C. Sec. 1983 that their rights of free speech and association, as guaranteed by the First and Fourteenth Amendments to the Constitution, were thereby violated by Town Supervisor Roger Pellegrini, the members of the Town Board, and the Town of Orangetown (collectively, "Defendants"). The United States District Court for the Southern District of New York (Goettel, J.) granted summary judgment, finding that Vezzetti held a policymaking position for which party loyalty may be a legitimate test of employment, and that Stuart failed to adduce evidence supporting his allegation that his firing was attributable to his membership in the Republican Party. The district court thereupon also dismissed Stuart's pendent state claim for lack of subject matter jurisdiction, and entered judgment on July 15, 1993.

We affirm with respect to Vezzetti, but vacate the dismissal with respect to Stuart and remand to the district court for further proceedings.

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 of 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 place.

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 service 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 "brand 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 Sec. 1983. The complaint also alleged, as a pendent state claim, that Defendants' actions violated Stuart's contractual rights under a collective bargaining agreement. Defendants moved for summary judgment. The district court granted summary judgment against Vezzetti and Stuart, and dismissed Stuart's pendent contract claim for lack of subject matter jurisdiction. The district court denied Defendants' motion for summary judgment against Griffith, whose case proceeded to trial and ended with a jury verdict in favor of Defendants. Vezzetti and Stuart appealed.

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 Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir.1991). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. The party seeking summary judgment bears the burden of demonstrating the absence of any genuine factual dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

A. Vezzetti

Although Defendants profess on appeal (as in the district court) that the Town Board was animated by non-political concerns when it declined 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 an employee's political affiliation ordinarily is an infringement on First Amendment rights, see Elrod v. Burns, 427 U.S. 347, 360, 96 S.Ct. 2673, 2683, 49 L.Ed.2d 547 (1976), the Supreme Court has indicated that, for some positions, political affiliation is a permissible employment criterion. See id. at 367, 96 S.Ct. at 2686; Branti v. Finkel, 445 U.S. 507, 517-18, 100 S.Ct. 1287, 1294, 63 L.Ed.2d 574 (1980). In Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990), the Supreme Court summarized the exception it had developed in Elrod and Branti:

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 involved."

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 political 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 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. 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 which 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 decisions. 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...