concurring.
I join my colleagues in affirming the dismissal of Klug’s claims. With respect to the First and Fourteenth Amendment claims, however, I do so for reasons distinct from the grounds they have articulated.
My colleagues resort to the second prong of the Pickering balancing test to affirm the dismissal of Klug’s First Amendment claim. See Pickering v. Board of Education of Township High School Dist. 205, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968); Waters v. Churchill, 511 U.S. 661, 674-75, 114 S.Ct. 1878, 1887-88, 128 L.Ed.2d 686 (1994). They read the complaint to suggest that Prosser was on the brink of chaos when Klug and her allies were removed, and that is probably a fair reading of the complaint. Ante at 859. I therefore have no difficulty with the proposition that the Board of Education had to intervene. Id. But to hold that the Board’s interest in saving the school far outweighed Klug’s First Amendment interest in expressive association with her allies (see id.) is a significant leap, when the only basis we have for making that judgment is the complaint itself. Reading the complaint favorably to Klug, as we must, I am not confident that we can legitimately make that judgment so early in the litigation. The complaint, after all (and not surprisingly) attributes the malfeasance entirely to the “old guard”; Klug, Nagle, and the other reformers are portrayed as the innocent victims of the insurrection. I am uncomfortable suggesting that the government can, in effect, silence one of its employees by transferring her out of her job when it is not she (or her speech) but others who are causing disruption in the workplace. The facts, of course, might in the end justify the decision to remove Klug; but that is the point — we don’t have any facts before us.
What does persuade me that it was appropriate to dismiss the First Amendment claim is the lack of an identified expressive component in Klug’s association with the Nagle faction. As Judge Evans quite rightly points out, the complaint itself gives rise to the impression that the battle between the old guard and the new at Prosser was simply another variant, if a particularly virulent one, of office politics. Ante at 858; see also R. 33 at 2. What the First Amendment protects (insofar as is relevant here) is association for the purpose of expression (see generally Board of Directors of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 548, 107 S.Ct. 1940, 1947, 95 L.Ed.2d 474 (1987); Roberts v. United States Jaycees, 468 U.S. 609, 622, 104 S.Ct. 3244, 3252, 82 L.Ed.2d 462 (1984)), and one reads the complaint in vain for clues as to what types of speech Klug and her allies at Prosser were pursuing. The lack of such detail in the complaint is not alone fatal (see Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168-69, 113 S.Ct. 1160, 1163, 122 L.Ed.2d 517 (1993); Scott v. City of Chicago, 195 F.3d 950, 951-52 (7th Cir.1999)), but one would expect to see in the briefs some explanation as to why and how Klug’s association with the Nagle faction enjoys First Amendment protection (see Stransky v. *862Cummins Engine Co., 51 F.3d 1329, 1335 (7th Cir.1995); Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir. 1999)). I inquired about this at argument, and Klug’s attorney suggested that her day-to-day work was expressive of her educational philosophy. But if that is true, then any government employee would have a potential First Amendment claim when discharged, disciplined, or transferred based on asserted deficiencies in his job performance. For Klug’s claim to be viable, she would have to be able to identify some concrete expressive purpose to her affiliation with Nagle and the others. This she has not done.
As for the Fourteenth Amendment liberty interest claim, I share my colleagues’ concern that not every loss of overtime be deemed constitutional in magnitude, such that a pre-deprivation hearing is invariably mandated whenever an employee is denied overtime pay. Ante at 859-60. Again, my concern relates to the fact that this case never moved beyond the pleading stage. It is the Board of Education that slaps the “overtime” label on the pay that Klug lost when she was removed from her position at Prosser. That label suggests the absence of any legal, enforceable relationship between the position Klug held at Prosser and the nine hours a day for which she was paid in that position. The facts might bear the Board out on that claim, but then again they might not. Based on a record devoid of evidence, I find it a stretch to say that under no set of facts could Klug show a liberty interest in being assigned a longer work day with commensurately greater compensation. Judge Zagel reached the same conclusion when he initially denied the Board’s motion to dismiss this claim. R. 19 at 2 & n. 1.
Like Judge Zagel, however, I interpret the Fourteenth Amendment claim to focus on something other than the loss of additional work hours. See R. 33 at 2. The thrust of the second amended complaint appears to be that IClug was effectively “discharged” from employment at Prosser in such a way as to diminish her prospects of employment at other schools. See R. 28 at 18-19, ¶¶ 63, 68, 71. Her opening brief sounds a similar theme. See Klug Br. 14 n. 3, 15 n. 5. Indeed, in the section of her brief devoted to the liberty interest claim, the nine-hour work day is not even mentioned. See Klug Br. 14-16. Only in the reply brief is the length of the work day emphasized, an argument which comes too late. E.g., Finance Inv. Co. (Bermuda) Ltd. v. Geberit AG, 165 F.3d 526, 531 (7th Cir.1998). The notion that Klug was effectively “discharged” from her employment as in Colaizzi v. Walker, 542 F.2d 969, 973-74 (7th Cir.1976), cert. denied, 430 U.S. 960, 97 S.Ct. 1610, 51 L.Ed.2d 811 (1977), is, as my colleagues agree, not a viable one. Ante at 860. Klug’s employer was the school board, which simply assigned her to posts elsewhere within the system. Thus, having failed to pursue the loss of additional hours, Klug was left with no viable liberty interest claim.