Padilla Garcia v. Guillermo Rodriguez

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
____________________

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 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

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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).

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 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

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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

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 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.

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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).

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 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).

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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.

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 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.

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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,

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 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).

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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.

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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

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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.

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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

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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

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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

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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

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– 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

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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.

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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.

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