Butler v. New York State Department of Law (211 F.3d 739, 2000)

PARKER, Circuit Judge:

Plaintiff-Appellant Barbara B. Butler appeals from a judgment of the United States District Court for the Southern District of New York (Charles L. Brieant, Judge), entered on March 27, 1998, granting summary judgment to Defendants-Ap-pellees the New York State Department of Law (the “NYSDL” or the “Department”), Dennis Vacco, and William Flynn (collectively “defendants”). The decision is reported at Butler v. New York State Dep’t of Law, 998 F.Supp. 336 (S.D.N.Y.1998).

Butler brought a complaint against defendants alleging that she had been fired from her position as a Deputy Bureau Chief of the Litigation Department at the NYSDL in violation of her right to freedom of association under the First Amendment to the United States Constitution and the New York Constitution. In addition, she claimed that defendants fired her because of her age and sex in violation of federal and state employment discrimination statutes. The district court held that Butler could not prevail on her First Amendment free association claim because she was a policymaker and could therefore be fired for reasons of political patronage. Alternatively, the district court held that defendants Vacco and Flynn, individually, were entitled to dismissal on the ground of qualified immunity. The district court also found that Butler had failed to adduce sufficient evidence to establish a prima facie case for her federal law claims of sex and age discrimination. The court also called into question Butler’s status as an “employee” entitled to sue under the statutes. Having granted summary judgment to defendants on the federal claims, the district court declined to exercise supplemental jurisdiction over plaintiffs state law claims. We affirm in part and dismiss in part.

I. BACKGROUND

A. Facts

In 1980 Butler was appointed an Assistant Attorney General (“AAG”) for New York State by then-Attorney General (“AG”) Robert Abrams. The appointment letter explained that her employment was terminable by the AG at will; she served “at the pleasure of the Attorney General.” Butler was hired into the Litigation Bureau (the “Bureau”) of the NYSDL’s New York office, and promoted to Section Chief in 1981. She was promoted in 1983 to Deputy Bureau Chief. The Litigation Bureau is managed by the Bureau Chief, two Deputy Bureau Chiefs and ten Section Chiefs. Butler assisted in overseeing the Section Chiefs and approximately 112 employees, including 80 attorneys.

A job description for AAGs prepared by Human Resources at the NYSDL states that the responsibilities for the position include “appearing for the Attorney General before State and Federal Courts, preparing, presenting, and arguing cases, examining witnesses, conducting hearings under oath and preparing evidence, briefs and memoranda of law.” According to Butler’s complaint and her resume, as Deputy Bureau Chief she helped supervise over eighty attorneys, advised attorneys within the Bureau on how to proceed with litigation, reviewed and edited briefs and other court papers, and assigned new cases. Butler also interviewed candidates for the position of AAG, and was consulted regarding promotion of personnel.

Effective January 1,, 1995, Dennis Vacco was elected AG of New York. He informed the NYSDL that all AAGs would be required to reapply for their positions. Butler reapplied on January 20, 1995, requesting that she retain her position as Deputy Bureau Chief, but voicing her willingness to take another suitable position within the Department. Butler was interviewed, and later received a letter from Salvatore W. Page, Deputy for Administration, dated June 2,1995, informing her that she would not be rehired. Although the letter stated that her last day of work would be June 16, 1995, this date was later extended to July 5,1995.

B. Proceedings Below

On January 25, 1996, Butler timely filed a charge of discrimination with the Equal Employment Opportunity Commission (the “EEOC”), alleging that her employment had been terminated because of her age and sex. She subsequently received a right to sue letter from the EEOC, dated ■May 1, 1996, indicating that its review of the evidence failed to reveal that discrimination had taken place. Butler filed a complaint in federal district court on July 29, 1996 against the NYSDL, AG Vacco, and First Deputy Attorney General William Flynn. The complaint alleged that the NYSDL discriminated against her on the basis of age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the “ADEA”), and the New York Human Rights Law (the “NYHRL”), Executive Law § 290 et seq., and on the basis of sex, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the NYHRL. Pursuant to 42 U.S.C. § 1983, Butler also alleged that defendants Vacco and Flynn, in their official capacities, violated her right to freedom of association under the constitutions of the United States and New York State by firing her because she was not politically affiliated with Vacco or anyone in his political party.

Defendants filed an answer on September 19, 1996, denying the allegations and asserting affirmative defenses. On February 18, 1997, defendants moved for summary judgment pursuant to Fed.R.Civ.P. 56(b), asserting that the individual defendants were entitled to qualified immunity on the constitutional claims, and that Butler was a “policymaker” who could be fired without violating her First Amendment rights and who was statutorily exempt from the protections of the ADEA and Title VII. The district court granted defendants’ summary judgment motion in a memorandum and order on March 25, 1998. Judgment was entered for defendants on March 27,1998.

The district court held that Butler’s First Amendment claim failed because she was a policymaker who could be discharged for political affiliation. Id. at 339-43. In the alternative, the district court held that Vacco and Flynn were entitled to qualified immunity under Danahy v. Buscaglia, 134 F.3d 1185 (2d Cir.1998). See Butler, 998 F.Supp. at 338, 343.

Turning to Butler’s ADEA and Title VII claims, the court held that Butler had failed to establish a prima facie case of either age or sex discrimination because her evidence failed to demonstrate “that her dismissal occurred in circumstances giving rise to an inference of discrimination on the basis of her age or gender.” See id. at 344. The court also found that even if Butler had established a prima facie case, her claims would probably still fail because she “seems to fall within the policymaker exceptions to Title VII and the ADEA.” Id. at 344-45.

In granting summary judgment against Butler, the court noted that although she had no remedy under either the ADEA or Title VII, she could pursue a claim under the Government Employees Civil Rights Act of 1991, 2 U.S.C. § 1201 et seq., which provides for review by the EEOC with a right of direct appeal to the Court of Appeals. Finally, having dismissed Butler’s claims under federal law, the court declined to exercise supplemental jurisdiction over her state law claims. See Butler, 998 F.Supp. at 346.

II. DISCUSSION

On appeal, Butler argues that the district court erred in finding that she was a policymaker and therefore not protected by the First Amendment from a dismissal predicated on political affiliation. She also argues that the district court incorrectly held that she failed to establish a prima facie case of age or sex discrimination and erred in finding that she was not an “employee” under the definition set forth in the ADEA and Title VII.

This Court reviews a district court’s grant of summary judgment de novo. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 764 (2d Cir.1998). We consider the evidence in the light most favorable to the appellant, drawing all reasonable inferences in her favor. Summary judgment is appropriate only in the absence of a genuine issue of material fact. See id. at 764-65.

A. First Amendment

Generally, public employees may not be discharged for exercising their First Amendment rights, including the right to freedom of association. See Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). However, political affiliation is a valid employment criterion for jobs held by “policymaking” or “confidential” employees. See Branti v. Finkel, 445 U.S. 507, 517, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod, 427 U.S. at 367, 372, 96 S.Ct. 2673. The district court held that Butler’s position fell within this policymaker exception to First Amendment protection. See Butler, 998 F.Supp. at 342-43. Butler argues that the district court erred because party affiliation is not an appropriate requirement for the effective performance of her job. We agree with the district court and affirm on this issue.

In determining whether an employee is a “policymaker” under Elrod and Branti, this Court considers several 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 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.

Vezzetti v. Pellegrini, 22 F.3d 483, 486 (2d Cir.1994). This list is not exhaustive, but instead serves as a guide; no one factor or group of factors is always dispositive. See id.; see also Vona v. County of Niagara, 119 F.3d 201, 209 (2d Cir.1997).

Consideration of these factors reveals that the District Court was correct in concluding that Butler held a policymaking position, and was therefore excepted from First Amendment protection against political patronage dismissals. See Butler, 998 F.Supp. at 342-43. We analyze the factors with respect to Butler’s position at the time she was discharged, i.e., Deputy Bureau Chief. First, all AAGs are exempt employees under New York Civil Service Law §§ 35, 40, 41, N.Y.C.R.R. § 2.1. Second, attorneys have some expertise. See Vona, 119 F.3d at 209. Third, as Deputy Bureau Chief Butler supervised approximately 80 other attorneys, so clearly she controlled others within the meaning of the third factor. See Vezzetti, 22 F.3d at 486 (plaintiff who managed about sixty employees was policymaker); cf. Gordon, 110 F.3d at 890 (although plaintiffs were found exempt from First Amendment protection, third Vezzetti factor weighed in plaintiffs’ favor because “each [plaintiff] was not in charge of a large group of employees”).

We have previously condensed the remaining Vezzetti factors to ask “whether the employee in question is empowered to act and speak on behalf of a policymaker, especially an elected official.” Gordon v. County of Rockland, 110 F.3d 886, 890 (2d Cir.1997); see also Bavaro v. Pataki, 130 F.3d 46, 50 (2d Cir.1997). That question can only be answered in the affirmative here because an AAG routinely acts and speaks on behalf of an elected official-the AG. “There is no likely circumstance in which a shared ideology is more important than when an elected official appoints a deputy who may act in his or her stead.” Gordon, 110 F.3d at 890 (quoting Regan v. Boogertman, 984 F.2d 577, 580 (2d Cir.1993)). Every time Butler managed a case she acted on behalf of the AG, an official elected by the citizens of New York to “effectuate the policies promised the electorate.” Regan, 984 F.2d at 580.

We are not persuaded by Butler’s argument that she was not a policymaker because she had to consult her superiors or clients on policy issues. The issue is not whether Butler independently made policy from day to day, but rather what the general required duties of her position were. See Regan, 984 F.2d at 580 (“We do not merely look at her actions taken while in office. Rather, we also look at the power with which she is vested by law, and which is inherent in the office.”); Gordon, 110 F.3d at 891. Thus, since the AAG job description stated that one of Butler’s job responsibilities was “appearing for the Attorney General before State and Federal Courts,” Butler satisfied the test outlined in Gordon. See Gordon, 110 F.3d at 890.

The conclusion that Butler was a policymaker for First Amendment purposes is consistent with other cases in which we have held that attorneys working in public capacities in New York State were not protected against patronage dismissals under the Elrod-Branti analysis. See Adler v. Pataki 185 F.3d 35, 46 (2d Cir.1999)(deputy counsel in the New York State Office of Mental Retardation and Developmental Disabilities); Bavaro v. Patato, 130 F.3d 46, 51 (2d Cir.1997)(associate and assistant counsel in the New York State Department of Health); Gordon, 110 F.3d at 892 (assistant county attorneys); Vona, 119 F.3d at 209 (assistant county attorneys in county department of social services). We have also previously found persuasive “other circuits’ cases concluding that government attorneys ... do not fall under the Elrod-Branti umbrella. ‘All circuit court decisions-and almost all other court decisions-involving attorneys in government service, other than public defenders, have held that Elrod/Branti do not protect these positions.’ ” Gordon, 110 F.3d at 890 (quoting Susan Lorde Martin, A Decade of Branti Decisions, 39 Am. U.L.Rev. 11, 46-47 (1989)). The district court properly granted summary judgment for the defendants as to Butler’s First Amendment claim.

B. ADEA and Title VII

Butler argues on appeal that the district court erred in holding that she failed to establish a prima facie case of age or sex discrimination. Further, Butler contends that the district court erred in deciding that she was not an employee, as defined in the ADEA and Title VII, and instead fell into the statutory exemption for an “appointee on the policy making level.” Because we hold that Butler does not have an ADEA claim after Kimel v. Florida Bd. of Regents, — U.S. -, 120 S.Ct. 631, 650, 145 L.Ed.2d 522 (2000), and that she was not an employee under Title VII, we do not consider whether she established a prima facie case of either age or sex discrimination.

1. The ADEA

The ADEA makes it unlawful for an employer to discharge an employee who is at least 40 years old because of her age. See 29 U.S.C. §§ 623(a), 631(a); Gregory, 501 U.S. at 456, 111 S.Ct. 2395. After Butler’s appeal was argued, the United States Supreme Court held that states cannot be sued under the ADEA because Congress lacked the power under Section 5 of the Fourteenth Amendment to abrogate states’ Eleventh Amendment immunity for claims of age discrimination. See Kimel, 120 S.Ct. at 650. The rule of Kimel must be applied to all cases still open on direct review. See Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 95-97, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) (