Padilla Garcia v. Guillermo Rodriguez , 212 F.3d 69 ( 2000 )


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  •               United States Court of Appeals
    For the First Circuit
    ____________________
    No. 99-1193
    SANTA PADILLA-GARCIA,
    Plaintiff, Appellant,
    v.
    JOSE GUILLERMO RODRIGUEZ, In his Personal
    Capacity and in his Official Capacity as
    Mayor of the Municipality of Mayaguez;
    MUNICIPALITY OF MAYAGUEZ; REINALDO TORRES;
    EDGARDO LUGO, In his Personal Capacity and
    in his Official Capacity; Z, Y, W PERSONS,
    Who also conspired to discriminate against
    plaintiff depriving her of protected rights
    for wrongful termination of employment contract,
    Defendants, Appellees.
    ____________________
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Carmen Consuelo Cerezo, U.S. District Judge]
    ____________________
    Before
    Torruella, Chief Judge,
    Wallace,* Senior Circuit Judge,
    and Lynch, Circuit Judge.
    _____________________
    *   Of the Ninth Circuit, sitting by designation.
    Francisco R. González for appellant.
    Sigfredo Rodríguez-Isaac, Assistant Solicitor General, Department
    of Justice, with whom Carlos Lugo-Fiol, Solicitor General, and Edda
    Serrano-Blasini, Deputy Solicitor General, were on brief, for appellees
    Hon. José Guillermo Rodríguez, Reinaldo Torres and Edgardo Lugo.
    Juan Rafael González-Muñoz, with whom González Muñoz & Quiñones
    Tridas was on brief, for appellees the Municipality of Mayagüez, Hon.
    José Guillermo Rodríguez, Reinaldo Torres and Edgardo Lugo, in their
    official capacity.
    ____________________
    May 15, 2000
    ____________________
    -2-
    TORRUELLA, Chief Judge. This First Amendment case addresses
    political discrimination within a political party -- specifically,
    whether direct support for members of a rival faction within a
    political party is sufficiently political to serve as the basis for a
    political discrimination claim. The appellant, Santa Padilla-García,
    worked for the municipality of Mayaguez until she was informed by the
    new mayor and members of his administration (collectively "the
    appellees") that her contract would not be renewed. She alleges that
    the decision not to renew her contract came about because she supported
    the former mayor and his preferred successor and because she spoke out
    against the new administration. As a result, she claims that her First
    Amendment rights were violated because (1) the appellees discriminated
    against her on the basis of her political beliefs, and (2) they
    infringed on her freedom of speech.
    The district court granted summary judgment for the appellees
    on both claims. The court concluded that the appellant failed to make
    a prima facie case of political discrimination because her association
    with the former mayor was personal, rather than political, in nature.
    See Padilla-García v. Rodríguez, No. 94-1659, at 15 (D.P.R. Oct. 15,
    1998) (opinion and order granting summary judgment) [hereinafter
    "Opinion"]. Although the constitutionality of political patronage is
    a complicated and controversial area of jurisprudence in which we
    normally refrain from taking an expansive view, in this case, we
    -3-
    construe the Supreme Court's decisions that address political patronage
    to require a different result than that reached by the district court.
    By establishing that she was a well-known supporter of the new mayor's
    rivals within the party and had actively campaigned against him in a
    hotly contested primary election, the appellant created a dispute of
    fact as to whether her relationship with the new mayor's factional
    opponents was a "political" association protected by the First
    Amendment.
    Additionally, the district court erred when it dismissed the
    appellant's free speech claim because she could not show that her
    protected expression was "the 'substantial or motivating factor'" in
    the decision not to renew her contract. Opinion at 21. The proper
    standard under Mt. Healthy City School District Board of Education v.
    Doyle, 
    429 U.S. 274
    , 287 (1977), is whether the protected conduct
    constitutes a factor in the adverse employment decision.
    Based on the facts of this case, viewed in a light most
    favorable to the appellant, we must reverse the district court's
    judgment for the reasons discussed below.1
    I.   BACKGROUND
    1 Because we reverse the district court's outright dismissal of
    Padilla-García's claims, we need not reach the issue of municipal
    liability under Monell v. Department of Social Services of New York,
    
    436 U.S. 658
    , 694 (1978).
    -4-
    The relevant facts are briefly summarized below in the light
    most favorable to the plaintiff-appellant.        Padilla-García was
    appointed "Chief of Planning" for the Office of Economic and Community
    Development ("O.D.E.C.O.") in Mayaguez, Puerto Rico, on June 25, 1991
    by then-Mayor Benjamín Cole. She signed a contract specifying that her
    employment was effective from July 1, 1991 to June 30, 1992 and
    indicating that her contract was of fixed duration and would only be
    renewed at the prerogative of the municipality. On July 3, 1992, her
    appointment was extended to June 30, 1993, subject to the availability
    of funds for the O.D.E.C.O. program.
    In November 1992, José Guillermo Rodríguez was elected mayor.
    Although Cole and Rodríguez are both members of the Popular Democratic
    Party ("PDP"), Cole represents a different faction than that of
    Rodríguez. Padilla-García was commonly associated with Mayor Cole and
    his administration and well known for participating in the primary
    campaign against Mayor Rodríguez. Nevertheless, Padilla-García was
    appointed to be a member of the transition committee, during which time
    she experienced several incidents of humiliation and harassment which
    she attributes to her role in the previous administration. She also
    had a running conflict with the new administration regarding compliance
    with rules and regulations.
    On May 27, 1993, Padilla-García was informed that her
    employment with the city would not be renewed because her duties would
    -5-
    be subsumed by the new Municipal Planning Office. She brought this
    suit on May 13, 1994 against the Municipality of Mayaguez and José
    Guillermo Rodríguez, Reinaldo Torres, Edgardo Lugo, and Luis Rodríguez-
    Fernández, in their individual and official capacities, under 
    42 U.S.C. § 1983
    .   She alleged a violation of the Due Process Clause of the
    Fourteenth Amendment, unconstitutional discrimination based on her
    political beliefs, and an impermissible infringement on her freedom of
    speech. The district court entered summary judgment in favor of the
    defendants on October 15, 1998. Padilla-García appeals from summary
    judgment on her First Amendment claims only.
    II.    STANDARD OF REVIEW
    Summary judgment is only appropriate if there is no genuine
    issue as to any material fact and the moving party is entitled to
    judgment as a matter of law. See Fed. R. Civ. P. 56(c). We review the
    district court's summary judgment de novo, "viewing 'the entire record
    in the light most hospitable to the party opposing summary judgment,
    indulging all reasonable inferences in that party's favor.'"
    Euromotion, Inc. v. BMW of N. Am., Inc., 
    136 F.3d 866
    , 869 (1st Cir.
    1998) (quoting Griggs-Ryan v. Smith, 
    904 F.2d 112
    , 115 (1st Cir.
    1990)); see also Morris v. Government Dev. Bank, 
    27 F.3d 746
    , 748 (1st
    Cir. 1994).
    III.    POLITICAL DISCRIMINATION
    -6-
    It is now well established that political patronage restrains
    freedom of belief and association, core activities protected by the
    First Amendment. See Elrod v. Burns, 
    427 U.S. 347
    , 354 (1976). In a
    trilogy of cases, Elrod v. Burns, 
    427 U.S. at 354
    ; Branti v. Finkel,
    
    445 U.S. 507
    , 516 (1980); and Rutan v. Republican Party, 
    497 U.S. 62
    ,
    75 (1990), the Supreme Court addressed the constitutionality of
    political patronage and collectively held that non-policymaking2 public
    employees are protected from adverse employment decisions based on
    their political affiliation.     Justice Brennan's opinion in Elrod
    emphasized the right to associate with the political party of one's
    choice as a basic constitutional freedom. See Elrod, 
    427 U.S. at 356
    .
    This right flows naturally from the principle that "'debate on public
    issues should be uninhibited, robust, and wide-open.'" 
    Id. at 357
    (quoting New York Times Co. v. Sullivan, 
    376 U.S. 254
    , 270 (1964)).
    In Mt. Healthy City School District Board of Education v.
    Doyle, the Court established a two-part burden-shifting analysis for
    evaluating free speech claims, which has also been applied in the
    2 The Court acknowledged that policymaking and confidential employees
    might justifiably be dismissed on the basis of their political views if
    the government employer can show that it is "'an appropriate
    requirement for the effective performance of the public office
    involved.'" Rutan, 
    497 U.S. at
    70 n.5 (quoting Branti, 
    445 U.S. at 518
    ). The appellees in this case do not allege that Padilla-García was
    in a policymaking position or one that would require confidentiality.
    Instead they argue that her non-renewal was not based on her political
    views.
    -7-
    political discrimination context. See Rodríguez-Ríos v. Cordero, 
    138 F.3d 22
    , 24 (1st Cir. 1998); Acevedo-Díaz v. Aponte, 
    1 F.3d 62
    , 67 (1st
    Cir. 1993).     First, the plaintiff must show that she engaged in
    constitutionally protected conduct, and that this conduct was a
    substantial or motivating factor for the adverse employment decision.
    If she does so, then the defendant is given the opportunity to
    establish that it would have taken the same action regardless of the
    plaintiff's political beliefs – commonly referred to as the Mt. Healthy
    defense.   See 
    429 U.S. at 287
    .
    A.   Appellant's Prima Facie Case
    The plaintiff's burden under Mt. Healthy goes directly to
    causation. To prevail she must point to evidence in the record that
    would "permit a rational factfinder to conclude that the challenged
    personnel action occurred and stemmed from a politically based
    discriminatory animus." Rivera-Cotto v. Rivera, 
    38 F.3d 611
    , 614 (1st
    Cir. 1994); see also Rodríguez-Ríos, 
    138 F.3d at 24
    ; Vázquez v. López-
    Rosario, 
    134 F.3d 28
    , 36 (1st Cir. 1998). This showing requires more
    than merely "juxtaposing a protected characteristic – someone else's
    politics – with the fact that plaintiff was treated unfairly." Correa-
    Martínez v. Arrillaga-Beléndez, 
    903 F.2d 49
    , 58 (1st Cir. 1990); see,
    e.g., Rodríguez-Ríos, 
    138 F.3d at 24
     (evidence demonstrating that
    defendants were politically active and were aware of plaintiff's
    opposing views).
    -8-
    Thus, there are two components to Padilla-García's prima
    facie case:   1) that an affiliation with Mayor Cole and the rival
    primary candidate was a motivating factor for her non-renewal, and 2)
    that the affiliation was political. The district court granted summary
    judgment for the appellees on the political discrimination claim
    because it determined that the appellant's affiliation was not
    political. The court concluded that "[w]hile it is probable that
    Padilla has made a showing that she suffered discrimination in the form
    of the municipality's failure to rehire her," Opinion at 15, she had
    not shown that the decision "was premised on politics and not simply
    her      personal          associations,"            id.         at    17.
    The appellant argues that the district court construed the
    term   "political"   too   narrowly    in   the   context   of    political
    discrimination. For the reasons discussed more fully below, we agree.
    1.   Substantial or Motivating Factor
    First, we must address appellees' challenge to the
    sufficiency of the appellant's evidence establishing a causal link
    between her non-renewal3 and her affiliations with Mayor Cole and the
    other primary candidate. After reviewing the record, we agree with the
    3  It is settled law that the Elrod-Branti doctrine extends to a
    politically motivated non-renewal of a term of employment, regardless
    of the transitory nature of the position. See Nieves-Villanueva v.
    Soto-Rivera, 
    133 F.3d 92
    , 94 n.3, 98 (1st Cir. 1997) (citing Cheveras
    Pacheco v. Rivera-González, 
    809 F.2d 125
     (1st Cir. 1987)); Figueroa v.
    Aponte-Roque, 
    864 F.2d 947
    , 951 (1st Cir. 1989) (citing same).
    -9-
    district court that a factfinder could reasonably infer from the
    evidence that Padilla-García's affiliation with another faction within
    PDP was a "significant" or "motivating" factor in her non-renewal.
    It was well known that Padilla-García was tied to the Cole
    administration and that she had campaigned in the primary election
    against Mayor Rodríguez. Moreover, the record shows that "the primary
    election left serious conflict between the two defined groups within
    the same political party." Opinion at 4. This circumstantial evidence
    that the appellant was a "conspicuous target[]" could alone create an
    issue of fact on discriminatory animus. See Acevedo-Díaz, 
    1 F.3d at 69
    (recognizing that highly charged political atmosphere "coupled with
    fact that plaintiffs and defendants are of competing political
    persuasions" may be probative of discriminatory animus). However, it
    is further supported by the testimony of the appellant and witnesses
    Norma I. Soler-Echandy, Pedro Bisbal-Ramos, and Sixto Negrón-Hernández,
    which reveal that from the beginning Padilla-García was targeted for
    humiliation and harassment by the appellees because Mayor Rodríguez
    perceived her as a political threat.4
    4 Because we limit our review to the record as it stood before the
    district court at the time of its ruling, see J. Geils Band Employee
    Benefit Plan v. Smith Barney Shearson, Inc., 
    76 F.3d 1245
    , 1250 (1st
    Cir. 1996) (citing Voutour v. Vitale, 
    761 F.2d 812
    , 817 (1st Cir.
    1985)), we will not consider the declaration of Padilla-García
    submitted to the district court as part of the Motion for
    Reconsideration.
    -10-
    2.   Political Nature
    The appellant proffers two constitutionally protected
    associations that served as sources for the alleged political
    discrimination: (1) Padilla-García's affiliation with former Mayor
    Cole and his administration, and (2) her support for Mayor Rodríguez's
    opponent in the primary election.       The appellees argue that the
    evidence clearly establishes that her affiliations had nothing to do
    with politics, and the appellant concedes that there is no direct
    evidence in the record that differing political philosophies was her
    motivation for supporting members of the rival PDP faction. However,
    as the appellant suggests, Padilla-García's relationships with Mayor
    Cole and his preferred successor are so suggestive of political
    connotations that they inherently create an issue of fact as to whether
    they are protected by the First Amendment.5 In a different context,
    merely producing evidence of affiliation with a political faction might
    not be sufficient to withstand summary judgment; however, the record
    here shows that Padilla-García was not just affiliated with the rival
    faction -- she was clearly identified as a close ally of the former
    5 We recognize that Padilla-García's relationship with the Cole
    administration may be more susceptible to attack as a personal
    affiliation than her role in the primary election. However, because
    both activities are intimately related to the factions within the PDP,
    which implicate the same core concern of expression of political
    beliefs, we do not find it necessary to separate the analysis into two
    distinct questions for summary judgment.
    -11-
    mayor and actively campaigned against the new mayor. Support for a
    political candidate -- whether as an official in his administration or
    a behind-the-scenes member of his campaign -- is an example of an
    association that inevitably implicates the "right 'to engage in
    association for the advancement of beliefs and ideas.'"        Correa-
    Martínez, 
    903 F.2d at 57
     (quoting NAACP v. Button, 
    371 U.S. 415
    , 429-30
    (1963)). Padilla-García's reason for the association – her motivation
    for supporting Mayor Cole and the primary candidate – is purely a
    question of fact for the jury.
    Nor is the association's constitutionally protected status
    altered by the fact that Mayor Rodríguez is a member of the same party
    as the candidates that Padilla-García chose to support.        Clearly
    factions within one party can represent different political
    philosophies. Thus, the underlying principle, freedom to express
    political beliefs, is very much still at stake. In a case such as this
    one, where there is a heated battle during the primary, the risk of
    retaliation against an employee who supported the opposition is just as
    high as in any other election.6
    6  This is not an entirely new understanding of the Elrod-Branti
    doctrine.    See Vázquez, 
    134 F.3d at 32
     (applying political
    discrimination analysis to facts arising from primary election); LaRou
    v. Ridlon, 
    98 F.3d 659
    , 661-62 (1st Cir. 1996) (same); Rodríguez-
    Rodríguez v. Muñoz Muñoz, 
    808 F.2d 138
    , 140-43 (1st Cir. 1986)
    (considering applicability to intra-party conflicts). And this view is
    shared by other courts that have considered the patronage doctrine in
    the context of primary elections. See Robertson v. Fiore, 
    62 F.3d 596
    ,
    -12-
    Finally, we see no discrepancy between our conclusion today
    and our decisions that place the burden of proof on the plaintiff to
    demonstrate that her association was political and not personal. See
    
    903 F.2d at 56-58
    . In Correa-Martínez, there was nothing inherently
    political about the plaintiff's relationship with the former
    administrative judge, and the complaint
    contained no facts regarding the political
    contours, if any, of Correa's relationship with
    Judge Padilla. It contained no facts capable of
    supporting an inference that the relationship
    came within the constitutional orbit. It did not
    maintain that defendants knew anything about
    plaintiff's politics or that their motivation
    related in the slightest to plaintiff's exercise
    of any first amendment or other constitutionally
    protected right.
    600 (3d Cir. 1995) ("The danger that employees will abandon the
    expression or exercise of their political beliefs to appease their
    supervisors is not diminished because a supervisor supports a different
    identifiable faction within a party as compared to a different party
    altogether."); Tomczak v. City of Chicago, 
    765 F.2d 633
    , 640 (7th Cir.
    1985) ("[Branti's] reasoning applies with equal force to patronage
    dismissals when one faction of a party replaces another faction of the
    same party, especially in election districts where a primary victory
    within the dominant party virtually assures victory in the subsequent
    general election." (citation omitted)); Barnes v. Bosley, 
    745 F.2d 501
    ,
    506 & n.2 (8th Cir. 1984) (agreeing with district court that political
    motives prompted dismissal even though members of same party); McBee v.
    Jim Hogg County, 
    703 F.2d 834
    , 838 n.1 (5th Cir. 1983) (concluding that
    Elrod-Branti rationale applies when employment decisions are based upon
    support and loyalty to individual politician as well as a political
    party because Supreme Court's disapproval of political patronage
    extends beyond "opposing political party situations"); see also Joyner
    v. Lancaster, 
    553 F. Supp. 809
    , 817-18 (M.D.N.C. 1982) (applying
    political discrimination analysis to case involving fallout from
    primary election); Ecker v. Cohalan, 
    542 F. Supp. 896
    , 898-901
    (E.D.N.Y. 1982) (same).
    -13-
    Id. at 57-58 (footnote omitted). Likewise, in LaRou v. Ridlon, the
    evidence was indisputable that the plaintiff's relationship with
    Sergeant Muse was not political at the point of his termination – LaRou
    admitted that he was not even aware that Muse intended to run against
    Sheriff Ridlon for the Democratic nomination for sheriff. See LaRou,
    
    98 F.3d at 660, 662
    .      In contrast, Padilla-García's targeted
    association – with another faction within the same political party,
    with a former administration, and with a political opponent's campaign
    – has on its face everything to do with politics.7
    Vázquez v. López-Rosario raises a related yet significantly
    different issue. See 
    134 F.3d at 36
    . The question before us there was
    not whether Vázquez's affiliation with the rival primary candidate was
    political, but rather whether he had introduced sufficient evidence
    that the affiliation was a motivating factor in his termination -- the
    other element of the plaintiff's prima facie case.        See 
    id.
       We
    determined that he was missing the causal link between his political
    affiliation and the adverse employment action; his "'unsupported and
    speculative assertions regarding political discrimination'" were
    7  We note that the complaint states that she "was not related to
    partisan politics," Complaint ¶ 6, but drawing all inferences in favor
    of the nonmovant, she may have been referring to her work history as a
    non-elected administrative employee, her recent introduction to Puerto
    Rico politics, and her lack of party membership.
    -14-
    insufficient to survive summary judgment. 
    Id.
     (quoting LaRou, 
    98 F.3d at 661
    ).
    As we discussed above, we agree with the district court that
    Padilla-García has met this threshold by establishing a direct causal
    link between her association with, and campaign for, a rival faction of
    the PDP and her non-renewal.     See Rodríguez-Ríos, 
    138 F.3d at
    24
    (citing Acevedo-Díaz, 
    1 F.3d at 69
    ). While it is possible that her
    relationships may not ultimately prove to have been based on political
    ideas and beliefs, the appellant has made a prima facie case, and the
    appellees are free to dispute her allegations at trial.
    B.   Appellees' Mt. Healthy Defense
    The appellees argue that we can still affirm the district
    court's grant of summary judgment on the alternative ground that they
    established by a preponderance of the evidence that they would have
    taken the same action regardless of the appellant's political
    affiliation because they were reorganizing her department.          See
    Rodríguez-Ríos, 
    138 F.3d at 24
    ; Acevedo-Díaz, 
    1 F.3d at 66
    .         The
    reorganization included the creation of a new Municipal Planning Office
    – one of Mayor Rodríguez's campaign goals – that incorporated the
    duties performed by Padilla-García as Chief of Planning in the Housing
    Department.
    In a political discrimination case, the plaintiff may
    discredit     the   proffered   nondiscriminatory     reason,   either
    -15-
    circumstantially or directly, by adducing evidence that discrimination
    was more likely than not a motivating factor. See Rodríguez-Ríos, 
    138 F.3d at 26
    ; Acevedo-Díaz, 122 F.3d at 69; see also Stephens v.
    Kerrigan, 
    122 F.3d 171
    , 181 (3d Cir. 1997). In this way, the burden-
    shifting mechanism is significantly different from the device used in
    other employment discrimination contexts, such as Title VII cases,
    where a plaintiff is required to come forward with affirmative evidence
    that the defendant's nondiscriminatory reason is pretextual.8 See
    Acevedo-Díaz, 
    1 F.3d at 67
    ; see also Stephens, 
    122 F.3d at 176
    (explaining the distinction between political discrimination and Title
    VII employment discrimination). In a political discrimination case,
    the defendant bears the burden of persuading the factfinder that its
    reason is credible. The evidence by which the plaintiff established
    her prima facie case may suffice for a factfinder to infer that the
    defendant's reason is pretextual and to effectively check summary
    8 Under Title VII, once the plaintiff establishes a prima facie case
    of discrimination, only a limited burden of production passes to the
    employer to articulate a legitimate, nondiscriminatory reason for its
    actions. See Acevedo-Díaz, 
    1 F.3d at 67
    . The employer under Title VII
    need not submit sufficient evidence to persuade the factfinder because
    the plaintiff retains the burden of persuasion at all times. See 
    id.
    (citing Texas Dep't of Community Affairs v. Burdine, 
    450 U.S. 248
    , 254
    (1981)). In contrast, under the Mt. Healthy analysis for political
    discrimination, the burden of persuasion passes to the defendant-
    employer once the plaintiff produces sufficient evidence of her prima
    facie case. See 
    id.
     In other words, "the plaintiff-employee will
    prevail unless the fact finder concludes that the defendant has
    produced enough evidence to establish that the plaintiff's dismissal
    would have occurred in any event for nondiscriminatory reasons."          
    Id.
    -16-
    judgment. See Rodríguez-Ríos, 
    138 F.3d at 26
     ("Where the elements of
    a sufficient prima facie case combine with the factfinder's belief that
    the ostensible basis for [demoting an] employee was pretextual, . . .
    the factfinder is permitted to infer . . . intentional [political]
    discrimination . . . ." (quoting Woodman v. Haemonetics Corp., 
    51 F.3d 1087
    , 1092 (1st Cir. 1995))); Acevedo-Díaz, 
    1 F.3d at 69-70
    (considering circumstantial evidence that some plaintiffs were
    "conspicuous targets" for political discrimination as sufficient
    evidence of pretext).
    Although it is clear that the municipal restructuring was a
    campaign promise, and thus was not entirely concocted to explain
    Padilla-García's employment non-renewal, there is not enough
    information in the record about the restructuring to foreclose the
    possibility that it was in fact used as a discriminatory tool for the
    non-renewal. For instance, the record to which appellees point does
    not show that others in municipal government were also terminated as a
    result of the restructuring. With nothing more from the appellees than
    the mere averment that the appellant's position was eliminated due to
    the reorganization, we remain unconvinced that they are entitled to
    judgment as a matter of law based on the Mt. Healthy defense. Although
    we are not bound by the district court's determination, we are in
    agreement that the appellees' argument is not "particularly
    -17-
    persuasive," especially in light of the counter-evidence suggesting
    that politics played a role in the non-renewal.
    IV.   FREEDOM OF SPEECH
    We now turn to Padilla-García's allegation that the non-
    renewal of her position was based on her outspoken criticism of the
    Rodríguez administration for the unlawful activity of its officers.
    One confrontation related to appellee Torres' use of a government
    vehicle for personal needs. On another occasion the appellant spoke
    out against the appellees' practice of violating regulations by not
    publicly announcing new projects developed by the municipality and
    their respective budget allotments. She expressed her belief that this
    was a deliberate effort on the part of Mayor Rodríguez to avoid public
    comment.   For purposes of summary judgment, the appellees do not
    dispute that the appellant often expressed her belief that the
    administration was not acting in accordance with the law.
    The district court properly employed a three-part test to
    evaluate the appellant's First Amendment free speech claim: 1) whether
    she was speaking on matters of public concern; 2) whether her and the
    public's interest in free discourse on those matters outweighed the
    countervailing governmental interest in promoting efficient performance
    of public service; and 3) whether her protected expression was a
    motivating or substantial factor in the mayor's decision not to renew
    her contract. See Tang v. Rhode Island Dep't of Elderly Affairs, 163
    -18-
    F.3d 7, 12 (1st Cir. 1998) (citing Pickering v. Board of Educ., 
    391 U.S. 563
    , 568 (1968)); O'Connor v. Steeves, 
    994 F.2d 905
    , 912 (1st Cir.
    1993). Again, the appellees have the opportunity to make a Mt. Healthy
    defense. See O'Connor, 
    994 F.2d at
    912 (citing Mt. Healthy, 
    429 U.S. at 287
    ).
    The court concluded that the plaintiff could satisfy the
    first two prongs, but granted summary judgment because she could not
    establish a causal link between her protected speech and her non-
    renewal. As the court was adequately convinced that her non-renewal
    was based on her close association with Mayor Rodríguez's political
    opponents, it reasoned that "Padilla's protected speech was not the
    motivating factor behind her non-renewal." Opinion at 21 (emphasis
    added). Because the district court erred in applying the third prong,
    we reverse.
    The plaintiff is only required to show that her "protected
    expression was a substantial or motivating factor in an adverse
    employment action." Tang, 163 F.3d at 12. The fact that her political
    affiliations may also have been a factor does not preclude the
    possibility that her repeated criticism of the administration also
    contributed to her non-renewal. The appellant has submitted sufficient
    evidence to create a dispute of fact as to whether her interactions
    with the appellees over personal use of government vehicles and
    publication of project proposals resulted in discriminatory treatment
    -19-
    and eventually the elimination of her position. And as we discussed
    above, we are not persuaded by the appellees' claim that Padilla-
    García's non-renewal was the inevitable result of governmental
    reorganization.
    Relying on Flynn v. City of Boston, 
    140 F.3d 42
     (1st Cir.),
    cert. denied, 
    119 S. Ct. 403
     (1998), the appellees additionally argue
    that we should affirm on the alternate ground that Padilla-García's
    expression was not a matter of public concern but consisted merely of
    statements made "as part of the duties of her position as a policy
    level official who disagreed with her superiors on a number of issues."
    Brief for Appellees José Guillermo Rodríguez, Reinaldo Torres, and
    Edgardo Lugo, at 15 (citing Flynn, 
    140 F.3d at 46
    ).      However, the
    appellees misread Flynn.
    In Flynn, we assumed that the plaintiff's statements were
    matters of public concern. See Flynn, 
    140 F.3d at 46-47
    . Accordingly,
    our decision turned on the second prong of the test. We held that
    Flynn's interest in free speech, and the public's, were outweighed by
    the government's interest in promoting efficiency of its services,
    specifically "the effect of the statements on those 'close working
    relationships for which personal loyalty and confidence are necessary.
    . . .'"   
    Id. at 47
     (quoting Rankin v. McPherson, 
    483 U.S. 378
    , 388
    (1987)). Our holding was explicitly limited to policymakers – which in
    Flynn's case were highly placed members of the mayor's administration
    -20-
    – who were also "subject to discharge for political reasons under the
    Elrod and Branti cases."     
    Id.
    Here, it is fatal to the appellees' position that they did
    not argue before the district court that Padilla-García's political
    discrimination claim should fail because she was a policymaking or
    confidential official subject to termination for her political views
    under the Elrod/Branti exception. See supra note 1. Consequently,
    they cannot now claim that a conflict with her in the policymaking
    arena impairs their administration. See Flynn, 
    140 F.3d at 47
     ("[T]he
    situation would be different if a clerical worker, in a non-disruptive
    and otherwise proper manner, disagreed about how the agency was doing
    its job. If the employee were not at a policy level, it might be hard
    to see why such criticism would be pertinent to retention.").
    From our independent examination of the content, form, and
    context of Padilla-García's speech, see Connick, 461 U.S. at 147-48;
    Tang, 163 F.3d at 12; O'Connor, 
    994 F.2d at 914
    , we infer for purposes
    of summary judgment that she spoke on a matter of public concern, as
    opposed to a matter of personal interest.      As the district court
    recognized, "Padilla's revelations seem to implicate a topic of
    inherent concern to the community and her comments appear to have had
    a direct bearing on the legality of the municipality's administration
    of federally funded programs." Opinion at 19; see O'Connor, 
    994 F.2d at 915
     (viewing official misconduct as topic of inherent concern to the
    -21-
    community).    Padilla-García's comments relating to regulatory
    compliance are easily distinguishable from self-serving statements that
    promote a personal interest. See Connick, 461 U.S. at 141, 147-48;
    Tang, 163 F.3d at 12.
    -22-
    V.   CONCLUSION
    Our opinion today does not expand upon the First Amendment
    protection afforded to government employees that are targeted by a new
    political administration.     Supporting a political party is an
    inherently political activity. It is only a logical application of Mt.
    Healthy that once Padilla-García adduced sufficient facts from which
    one could infer that her close ties to a faction within the PDP was a
    factor in the non-renewal of her contract, she created a trialworthy
    issue of whether she engaged in constitutionally protected conduct.
    Because we cannot conclude that her position would nevertheless have
    been eliminated based on the reorganization of the municipal
    government, we have no choice but to reverse summary judgment. For
    similar reasons, we are unable to determine that the appellant's
    political speech was not a motivating factor in her non-renewal.
    Reversed and remanded for proceedings consistent with this
    opinion.
    -23-
    

Document Info

Docket Number: 99-1193

Citation Numbers: 212 F.3d 69, 16 I.E.R. Cas. (BNA) 530, 2000 U.S. App. LEXIS 10386, 2000 WL 562309

Judges: Torruella, Wallace, Lynch

Filed Date: 5/15/2000

Precedential Status: Precedential

Modified Date: 11/4/2024

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Jimmie McBee v. Jim Hogg County, Texas, Javier Alfonso ... , 703 F.2d 834 ( 1983 )

Patrick J. O'COnnOr v. Robert W. Steeves , 994 F.2d 905 ( 1993 )

Ecker v. Cohalan , 542 F. Supp. 896 ( 1982 )

Morris v. Government Development Bank , 27 F.3d 746 ( 1994 )

Aurora Figueroa v. Hon. Awilda Aponte-Roque, Etc., Aurora ... , 864 F.2d 947 ( 1989 )

Euromotion, Inc. D/B/A Prime Wholesalers v. Bmw of North ... , 136 F.3d 866 ( 1998 )

Waldo G. Vazquez v. Carlos Lopez-Rosario , 134 F.3d 28 ( 1998 )

Monell v. New York City Dept. of Social Servs. , 98 S. Ct. 2018 ( 1978 )

Texas Department of Community Affairs v. Burdine , 101 S. Ct. 1089 ( 1981 )

National Ass'n for the Advancement of Colored People v. ... , 83 S. Ct. 328 ( 1963 )

New York Times Co. v. Sullivan , 84 S. Ct. 710 ( 1964 )

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