concurring in part and dissenting in part:
I concur with the majority as to the due process claim, but dissent as to the First Amendment claim.
In reversing judgment for the plaintiffs, the majority finds that the district court failed to apply the proper legal standard. See Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977) (employer may avoid liability if it demonstrates by a preponderance of the evidence that it would have reached the same decision absent the protected conduct). The majority nevertheless concludes that the district court’s findings “compel” rejection of the plaintiffs’ claim. I disagree.
Defendants must prove that they would have terminated Cherico even absent the personnel complaint. In light of the district court’s finding that Cherico’s complaint was a “substantial motivating factor” in the defendants’ decision to cancel the referrals, I cannot conclude, on this record, that defendants have met their burden of proof. Therefore, I believe the more appropriate course is to remand this *1065matter to the district court for further findings.