Flynn v. City of Boston

upon ed to claims which the District Court

granted summary judgment.” cannot We

agree. Dykes request-

Even if were obtain discovery DePuy’s

ed asserted reasons terminating pretextual, him he being employ-

could still not recover. Not

ee, protected he is not federal and state ap-

antidiscrimination And under statutes. may

plicable state law he not recover for implied duty good

breach of an faith and dealing.

fair No viable claims remain.12

Hence, any possible abuse discretion

denying Dykes’s compel motion to was harm-

less. appellee. Costs to

Affirmed. son, Randy

Kevin N. FLYNN and Wolf

Plaintiffs, Appellants, BOSTON, al., Defendants,

CITY et OF

Appellees.

No. 97-1076. Appeals,

United States Court of

First Circuit. July

Heard May

Decided grant Dykes challenge appeal 12. We have affirmed the district court's VI. does not in this I, II, III, VIII, summary judgment prejudice Counts district court's without X dismissal Dykes's complaint. Dykes pursuant XI amended Counts VII and IX to 28 U.S.C. IV, 1367(c). § consented to the dismissal of Counts V and Bourbeau, with Liam C.

Mark S. whom Boston, MA, Bour- Floyd, and Bourbeau & beau, Bonilla, Floyd, LLP were Tocchio & brief, Plaintiffs, Appellants. Harris, Boston, MA, Mary with whom Jo brief, for Kopelman Paige, P.C. was on Defendants, Appellees. BOUDIN, Judge, R. Circuit JOHN

Before GIBSON,* Judge, Circuit Senior POLLAK,** Judge. District Senior BOUDIN, Judge. Circuit Randy appeal Kevin summary grant of the district court’s judgment in favor the defendants discharged alleging that action Community Cen- jobs from their with Boston Amendment. violation the First ters agency is an employer Their former and a City employees of Boston with It is concerned with budget million. of $15 services, including delivery child of social work, care, pro- youth citizen and senior ** * sitting Circuit, Pennsylvania, sitting designation. District of Eighth Of the Eastern Of the by designation. discovery, plaintiffs grams, grants and it administers both from state law. After claims, city funds and from other sources. waived some district summary granted judgment dismissed January newly mayor elected remaining favor of defendants on all of the appointed Evelyn Riesenberg, of Boston for- claims. assistants, merly special one of his as the Community director of Boston Centers. summary dispositions, we take the On Flynn Kevin was then the associate director in the non- facts and draw inferences favor of finance; Randy of administration and Wolf- moving party. v. Ortiz-Pinero Rivera-Ar Cir.1996). (1st 7, of two royo, son was one associate directors for 11 84 F.3d But the operations. subject In question field their later filed court whether a papers, Flynn political discharge, and Wolfson describe Riesen- or how far the First berg’s reign very unflattering protects against having one’s terms. Amendment personnel views considered adverse ac particular, they charge In that from the tions, essentially legal questions are for the outset, Riesenberg pressed Wolfson to tell court, they questions. if are even close her which senior staff members had worked 92, Connolly, McGurrin Ehrhard 867 F.2d candidates; mayoral particular Flynn Cir.1989). (1st 93 says Riesenberg that asked him how she Republic, govern From the outset of the could fire the entire central office staff and jobs gone political patronage, have replace supporters them with her own or tempered now civil service laws that af mayor. say they those of the Both that varying degrees protection, especially ford argued Riesenberg against this course employees. to lower level See Elrod v. of action. Burns, 347, 377-79, 2673, 427 96 U.S. They say Riesenberg sought, also that over (1976) 2691-92, (Powell, J., L.Ed.2d 547 49 opposition, appoint unqualified per- their accommodation, dissenting). To this the Su supporters mayor, sonnel to reward years preme ago brought Court about 25 they provide specific examples. Flynn principle: constitutional fir new that says Riesenberg ordered him to raise ings by government are allowed pay for a union worker violation of the jobs political loyalty those for which is an Flynn say union contract. and Wolfson also Burns, “appropriate” criterion. Elrod v. See Riesenberg mishandled several sexual 372-73, 347, 2673, 2689-90, 96 S.Ct. complaints harassment and related (1976); Finkel, 49 L.Ed.2d 547 Branti v. 445 actions, despite objections. 507, 518, 1287, 1294-95, U.S. 100 S.Ct. August Riesenberg gave In (1980). L.Ed.2d 574 notices, termination asserting and Wolfson response, the lower federal courts have reorganizing agency.. that she was When doctrine, develop largely tried to but it is they protested, city’s corporation counsel porridge general statements and variables: they being wrote to them that dis- positions likely protected are less to be charged reorganization because of the they “higher,” “politi extent that more performance.” Flynn “an evaluation of their cal,” “confidential,” on; more and so duties say reorganiza- in turn that the and Wolfson titles; prevail everything depends over tion was a sham and that neither of them has See, e.g., circumstances. Cordero v. De Je any negative person- evaluations in or her sus-Mendez, 1, 10-21 Cir.1989); nel files. Nowak, 4 R.D. see also Rotunda & J.E. fired, they After and Wolfson were Constitutional Law: Substance and Proce (2d ed.1992). 20.42, § brought against get suit in the district court dure at 272-75 To mayor, any Riesenberg, city. practical and the sense of where the lines have drawn, injunctive plaintiffs sought declaratory and been one has to look at the results. Gaztambide, relief, § damages under 42 Fuentes v. Torres U.S.C. See Jimenez (1st Cir.1986) (en banc) ground on the that their First Amendment cases), denied, rights infringed; (collecting cert. had been also made U.S. (1987). statutory and common law claims based on 107 S.Ct. Circuit, 1289-90, 1295-96; Republican Par have Rutan v. the cases At least in First 62, 67, 76, ty, First Amendment regularly upheld against (1990). political grounds 2737-38, Thus, challenge dismissal on it is L.Ed.2d employees upper-level officials or jobs of mid- primarily pro been low-level have policy- connected to significantly tected, who are although encompasses most result has followed where making. This agencies government. workers in most pol- merely represented agency’s plaintiff “Appropriate”—the test used icy positions or to the to other entities concept, Branti—is an elastic but we have an important personnel functions were or where See, Cordero, obligation apply consistently within the e.g., part portfolio. decisions, prior Flynn is 11-12, circuit. Under our thread is F.2d at 14. The common protected. not ad policy- As associate director of employees officials were that the or working and finance Communi ministration at Boston makers or those who are close ty Centers, authority he human relationships policymakers. had over with issues, supervision grants resource of the Thus, discharges political have upheld we director, managers personnel nego and labor regional director of an administrative of the tiations, responsibilities a and liaison with secretary mayor’s agency, municipal in a city agencies. or number state See Corde office, charge an of human re officer ro, 11-15; Goyco, at 867 F.2d at 849 F.2d cf. sources, relations, public a su a director major responsibilities 685. These meant that works, a perintendent public a director of ap policy disagreements politically with office, city’s a programs federal and director pointed supervisor effective could lead less a the Massachusetts Sec satellite office of implementation political goals. Many plaintiffs were retary of such State.1 Just subordinates within own offices. case, Wolfson a closer but not is protected offi provisionally one decision an much—given prior the standards of cases. title, high-sounding a her duties cial with but opera for field She was associate director essentially technical. See De Choudens supervised and about half the site coor tions Rico, Bank Puerto v. Government Dev. dinators, programs, several served oversaw denied, (1st Cir.1986), cert. 801 F.2d agencies, city as liaison oriented with two 1013,107 L.Ed.2d 494 481 95 U.S. members, new local council and monitored (1987).2 Nu compliance legal requirements. Cf. contrast, po- has By this court disallowed nez, Flynn, at 24. Like 834 F.2d Wolfson cleaning supervisor, firings for a a litical directly reported to the executive director of aide, an employee career administrative and represented top manage agency and so Cordero, auditor of and records. See books agency employees. an ment in with 400 14-15, Supreme 16-18. The 867 F.2d at responsibilities The Wolfson cases, looking pro- granting toward Court functions, just described—and these tection, supervisor, a floor have involved Indeed, titles—obviously implicate policy. server, process guard, a an assistant manage- they defender, counselor, are the same kind of senior a road a rehabilitation earlier decisions worker, ment functions that our garage equipment operator, a Elrod, employees number 427 at have ascribed to a dietary manager. See 2689-90; discharge. 372-73, 2678-79, 350-51, subject found be 96 S.Ct. at Cordero, 13-14, 508, 519-20, F.2d at example, 100 For 867 445 U.S. at S.Ct. at Branti Cordero, Fuentes, 246; enough protected for a but that there was 807 F.2d at See Jimenez Steeves, 10-12, 14; Later, discussing injunction. v. 994 De preliminary 867 F.2d at O'Connor Cir.), denied, (1st Choudens, F.2d 911 cert. employ clear that an this court made (1993); 593 126 L.Ed.2d might still be ee in technical matters involved (1st Rivera-Arroyo, v. 84 F.3d Ortiz-Pinero discharge subject of other on account 1996); Connolly, 867 v. Cir. McGurrin Ehrhard advice) (public litigation, technical duties less Cir.1989). (1st F.2d Izquierdo-Mora, nature. v. Nunez (1st Cir.1987). Goyco See also de Maldonado interlocutory appeal, arose on De Choudens Rivera, 1988). F.2d Cir. was did not decide that the official resisting honestly very dubious be- upheld municipality’s of a di- servants dismissal finance, primary remedy in- by superior. whose But main rector of tasks havior accounting system, supervision of the cluded And offi- mismanagement is elections. for matters, and su- advising on fiscal officials who the level cials rise to municipality pervising the disbursement any do cost of constitution- so at the ' Ehrhard, And funds. in McGurrin protection against political dis- al tenure 93-95, at we sustained dismissal charge—unless Supreme until Court Secretary of of the Massachusetts director Elrod and takes a different view and extends office, satellite whose consisted State’s Branti further. essentially citi- providing information to related, different, although A issue is issues, zens, “input” and de- into claim presented plaintiffs’ alternative velopment policies. of office pro “in were fired retaliation” decisions, employee our Under speech. legal in this tected standard merely political firing not immune from be notoriously fuzzy the cases area is because “parti the employee apart cause stands very head with different deal under the same Mendez-Palou, polities, san” see at example, problems “justifications,” for 1262-63, or not the ultimate decisionmaker disruptive employee, whistle-blower Ehrhard, agency, see McGurrin channels, ignores the dis who official who 95, or her guided F.2d at or is some of his agrees policy, the who of about contractor by professional functions or technical stan agency, public criticism the fers of dards, Cordero, Rath see 867 F.2d at 13-14. on.3 and so er, enough it is that the official be involved in case, present In the we concerned Fuentes, are not 246, policy, F.2d at see Jimenez 807 public political opposition of expressions with adviser, only implementer, if even as an reports publicly or or. whistle-blower made Flynn spokesperson, certain as agency regular chan- within the but outside ly Flynn to be were. To hold and Wolfson Rather, plaintiffs policy nels. the are level effectively protected depart from the would disagreed superior who with on officials their of in this main line case law circuit. policy number of issues be- anyone, might why apart from One ask (quite agency properly, the based on fore officials, subject “politi- elected should be to allegations) expressed disagree- their their wisdom, firing. cal” The answer—this is folk it, Although Riesenberg to her. denies proof—is implement that to not mathematical (on summary judgment) suppose must we mandates, a cadre their elected officials need plaintiffs prove at these that could trial that top re- agency of leaders and subordinates firing. disagreements contributed their See, sponsive goals. elected officials’ the Elrod, 367, e.g., at at 2686- 427 U.S. 96 S.Ct. extent, plaintiffs’ expression To this effectively preventing A the re- rule played in their their views on issues a role by adminis- placement of senior officials new position, arguendo and we will assume loss very step. A trations would be serious upon Flynn and Wolf- issues which tenure, legislature provide such but the can expressed disagreement types of son are the it. Constitution does command social, political, “of or other concern matters community” Supreme that the Court every “political” None of this means trigger Amendment good has said would First firing of a official is an act of senior 103 S.Ct., Connick, 146, Indeed, analysis. 461 U.S. allegations if the of the at government. true, only expressing matters they at 1689-90. But views on complaint are are still step in the public public is the first allegations, Flynn and Wolfson were concern 694-95, 693, (1979); Township 619 v. Pickering 58 L.Ed.2d Connick 3. See v. Board Educ. 138, 140-41, 1684, 563, 564, Myers, High 461 S.Ct. Sch. 391 U.S. 88 S.Ct. U.S. 103 Dist. 1686-87, (1983); 1731, 1732-33, (1968); Coun Mt. 75 L.Ed.2d 708 Board Comm’rs, Umbehr, County, Healthy City Doyle, ty 429 Kan. v. Sch. Dist. Bd. Educ. v. Wabaunsee -, 274, 281-82, 568, 573-74, 135 U.S. 116 S.Ct. U.S. 97 S.Ct. O'Connor, (1996); (1977); at 911- v. Con L.Ed.2d 843 L.Ed.2d 471 Givhan Western Line Dist., U.S. sol. Sch. 410. 411-13. employ- working But it is a rule an we think reasonable test for whether Supreme Court’s that, by employee subject from be- to dis- protected the Constitution where ee is charge views. under Elrod ing expressing fired for reasons cases, may a superior and Branti also—with- here, balancing step, vital The second offending the free out First Amendment’s citizen, in employee’s interests “as a of the speech sub- guarantee—consider official’s public concern” commenting upon matters of agency deciding matters stantive views on State, as “the an against interest policy whether to retain the official in a efficiency of promoting employer, Indeed, con- position. related without this its performs through em- services it superior gruence, the latitude allowed Pickering, 391 at ployees.” effectively Supreme Court could be Supreme at Court has 1734-35. nullified. interests that a number state identified impaired employee’s state- might be The issues about which and Wolfson (discipline, harmony among co-work- ments spoke—and speech to which attrib- duties), ers, but one such interference with firings—related operation ute their large looms here: the effect interest hiring, (primarily the office to matters of working on “close relation- statements those firing discipline). it is this Yet issues of personal loyalty and confi- ships for which kind, management employ- and the views of necessary----” Rankin are dence issues, properly ees about these McPherson, 378, 388, 107 S.Ct. by the in decid- considered head of office (1987). L.Ed.2d ing best to be her direct subor- who is suited (D.C.Cir. Ford, In Hall v. 856 F.2d 255 Precisely because and Wolf- dinates. 1988), of Columbia Circuit ad the District “speech” son’s did bear on justification in a type situa dressed working relationship Riesenberg, Hall, to this In the tion somewhat akin ease. Riesenberg permitted to conclude rea- was University of District of Columbia’s ath the necessary she not have the sonably that did allegedly fired due to a director was letic them. trust and confidence to retain him and the universi disagreement between context, any it does not make dif- university’s compli the ty’s president over may have ference that and Wolfson rules. The with its own and NCAA ance Riesenberg wrong in the “right,” and been initially the held that athletic director’s court jury might A easi- positions urged taken. matters of con statements were about ly point, thinking that a be confused on this step, then second as cern. It moved the fired junior praised should and not official be in this we do case. staffing But the giving sound for advice. Supreme the had .Recognizing Court city agency is of a the business senior levels yet squarely situation in not addressed the responsible mayor appointees, and of the terms, speech the District Columbia free electorate, legislature unless a turn to the political patronage Circuit looked says otherwise. help. “Al- for 856 F.2d at 261-64. eases patronage though directly applicable, for anything goes This does not mean recognize concerns and cases address similar a dif- policy-related positions: this would be apposite government interest that is here.” a fired for ferent if an executive were case Ultimately, upheld at 261. court Id. expressing reporting crime or fraud or a university president to insist on right of one church or another. Com- adherence to compatible had director who views an athletic So, too, O’Connor, 994 F.2d at 915-16. pare matters, university paralleling the on if a clerical would be different the situation DiMeglio v. patronage See also cases. worker, non-disruptive otherwise in a (4th Cir.1995). Haines, 790, F.3d manner, disagreed about how proper doing job. employee If agency its to re was No mechanical formula exists level, might hard to policy a be employee is were not at all where fired solve cases pertinent would be firing why see such criticism be traced back some and the can way “speech” by employee. retention. causal

Further, the lack of a First to Reisen Amend distance that, berg, policymaker, plaintiffs to determine whether claim does not mean jobs job political. Although title remedy. are are The district court dis without position certainly relevant to decide plaintiffs’ wrong missed state-law counts for position political, whether a is the court’s misconduct, discharge ful and related inquiry square inquiries does not with the plaintiffs appealed. But federal have absent Supreme directed Court in Branti v. claims, why it is not clear either this court or Finkel, 1287, 445 U.S. the district court should be drawn into issues 1294-95, (1980), 63 L.Ed.2d 574 or this court that involve the construction of state statutes Steeves, (1st in O’Connor v. applied regu and of state common law as Cir.), denied, cert. 114 S.Ct. govern late the actions of a local (1993), require 126 L.Ed.2d 593 which mental unit. close examination of the overall functions only jurisdiction in the district employee’s department, as well as pendent, court over the state was claims particular responsibilities position. of the the federal claims were before tri dismissed Indeed, emphasized ap we have subject matter, special al. Given the is there propriateness making political affiliation a why judges reason state should referee dis job solely requirement is not determined agreements about whether when state or agency hierarchy job scope either or the may Pyle local officials be fired. v. South Cf. “Regardless duties. of the of an Comm., (1st Hadley Sch. employee government hierarchy, within the Cir.1995). so, Where this is and where as duties, scope or the broad of his or her if the here there are few economies in a federal employee responsible only for duties that resolution, the better course is ordi solely by strictly are measured technical or narily to dismiss the state claims without criteria, professional nonpartisan prejudice and leave them to local courts. Cf. properly target patron nature and not Cohill, Carnegie-Mellon Univ. age dismissal.” Mendez-Palou v. Rohena- 343, 350, 614, 619, Betancourt, Cir. (1988). 1987). reasons, foregoing For the district today significance The court avoids the grant summary judgment in court’s favor our en banc decision De Choudens v. Gov defendants the federal claims is Rico, Development ernment Bank Puerto affirmed, grant the district court’s of sum- (1st Cir.1986), denied, 801 F.2d 5 cert. judgment in favor of the defendants on mary vacated, the state-law claims is and the ease (1987).4 Choudens, companion De a case to is remanded for dismissal of the state-law Gaztambide, Jimenez Fuentes v. Torres prejudice. claims without Each side shall (1st Cir.1986) (en banc), F.2d 236 cert. de appeal. its bear own costs on this nied, It is so ordered. (1987), nonetheless, L.Ed.2d 496 is control ling. De Choudens had been Senior Vice- GIBSON, Judge, R. JOHN Senior Circuit President Finance at the Puerto Rico Gov dissenting. Bank, Development ernment one of three view, I respectfully my presidents serving dissent. president the vice under the job today place president. focuses on title and and executive vice Id. at 6. The organizational hierarchy the to decide wheth- primary bank’s fimctions were to act as fiscal position subject agent er a to a affiliation financial and advisor to the Common ‘ Rico, requirement. majority governor, po- The measures the wealth of Puerto its and granted preliminary 4. While De Choudens a in- F.2d at 10. The cases cited the court have Choudens, junction, only ruling uniformly only finding limitation to its is that endorsed De See, development distinguishable permanent e.g., later record for a on its facts. Nunez injunction Izquierdo-Mora, could cause a different result if we 834 F.2d 23-25 Cir. 1987); Rivera, Goyco found "a sufficient between nexus” de Maldonado v. (1st Cir.1988). "policy relating partisan and concerns.” O’Connor, requirement.” subdivisions; propriate government lender litical .of industry; depository and Nor the court factors private at 910. does consider and Id. at De Choud- to this determination such as “rela- funds. relevant Commonwealth power pay, competence, was demoted because to con- ens claimed she tive technical affiliation, others, and we affirmed authority speak name of her trol reinstating her. public perception, court’s order influence on policy-makers, district elected and programs, contact with officials the bank had “indicia held that We partisan politics politi- responsiveness to and op- partisan government legitimate goals Fuentes, F.2d at cal leaders.” Jimenez erations, from some of far removed objectives agency] discussed policy [the ' Id. at 8. Unlike Jimenez Jimenez Fuentes.” Wolfson, as Field Associate Director for Fuentes, however, De we concluded has her Operations, described as: job position justify politi- did not Chouden’s overseeing operations at 20 Communi- a “staff requirement. affiliation She was cal centers, recreation, ty including aquatics, who, indubitably policymak- while official programming, personnel, budgets, and confidential, position, communicative ing, and monitoring programs various of the empowered by the and constrained is both Community compli- Centers] for [Boston specialized functions.” Id. at 9. limits of her state, municipal, reg- and ance with federal Fuentes, department in Jimenez Unlike ulations, providing technical assistance not a microcosm of [was] “her division non-profit corporate arms cen- government empha- The larger agency.” Id. ters, writing: operational and non- rule-making, her broad discretion sized profit compliance fiscal manuals for the accounting policy, investment reorganization, capital agency, supervision improve- and strategy, budget and and recom- ments, maintenance, repairs. mendations, politi- but found need'for we lacking: City job descrip- cal affiliation submitted a written The description position. tion for Wolfson’s signify posi- responsibilities these While “shall, provided the Associate Director substance, policy of valued contribu- tion of ' daily ... tions, recommendations, advice, they under the Director oversee the technical, Community operations of Schools politically-neutral, the Boston involve Program.” The re- Similarly, though & Recreation Centers professional matters. supervis- sponsibilities monitoring, included: agency spokesper- plaintiff was indeed coordinators; assisting son, any “party ing, assisting suggestion there no governance process applies as it message in the political, goal-oriented line” councils; facilitating refer- formation new ever that she communicated. oper- between local support ral and networks added). (emphasis Id. ations; in the providing technical assistance today gives brief consider- The court coordinators; hirings recruitment required Flynn and the ation to tasks supervision to coordi- giving orientation and not The court does focus on wheth- Wolfson. ninety days em- during initial nators the Flynn’s “political- duties are and er Wolfson’s ployment. “technical,” “professional,” De or ly-neutral,” Choudens, light most Viewing the the at or evidence 801 F.2d whether Wolfson, maker, I that privy to do not believe “policy of a favorable duties are those information, communicator, appropriate job re- affiliation an party is confidential ,The of her quirement position. is for her focus whose function some other office holder community opera- equally ap- responsibilities an was center party that affiliation is such Flynn job. testimony describing and Wolf- description was not her that this 5. Wolfson contends employed job descrip- description when she was the official also attached to their affidavits son relied the Central Office. The district court Operations for the contained Manual tions in the testimony describing deposition court, her Wolfson’s Community Centers. The district Boston description. rely position, and on this did not affidavits, however, which were sub- struck these Nevertheless, description I have reviewed the discovery.- mitted after close largely it consistent with Wolfson’s and believe is tions, “hands-on,” Flynn’s job description6 describes written and she was involved evaluating Flynn’s planning as: respon was duties and day-to-day operations. Wolfson procedures programs; for the as administrative operational for concerns such recre sible analytical in the developing models for use programs, program personnel and ational evaluations; preparing reports and statistical capital budgeting, improve maintenance and data; working with others to evaluate ments, compliance applicable regu and with procedural guidelines ap- developing and for deposition that lations. testified her She propriate staff. Neighborhood the Boston Bas she oversaw supervised aquatics League ketball and reviewing Flynn’s political I agree that pools. explained that directors for She question claim a closer than affiliation is advisory with the board and she worked Flynn’s position more Wolfson’s because was centers, community councils for the and her closely and policy involved with formulation compliance plan role was with the to ensure information at Central Office. confidential operations. party goals Political not Nevertheless, do in the viewing the evidence play aspects operations. in these Flynn, role light we are most favorable to as Rather, specialized job responsibilities required summary her appeal technical, “politically-neutral, judgment, position involved and not I believe that his did Choudens, professional Flynn’s matters.” De partisan 801 concern interests. DeJesus-Mendez, influencing position capabilities F.2d at 9. Cordero v. lacked the See (1st Cir.1989). Although political goals. affidavit that he His states Mayor’s office to policy- had a connection to some “never worked with Wolfson functions, objectives only making goals ... specialized her functions establish but objectives goals find were.” impact any policies not out what did create or Flynn Choudens, explained deposition “[t]he his department. De 801 F.2d at See largest policy issues would dealt occupied be 6. There no doubt that is Although with the executive director.” [sic] important position the Boston Com depart- in charge preparing was Centers, however, munity there no evi budget, his he deposition clarifies that her to make dence that her allowed budget following prepared the the directives decisions, any partisan sugges nor there mayor from the and executive director. any political tion she ever communicated Flynn’s responsibilities quite seem similar to Choudens, message. De 801 F.2d at 9. See those in Fontane-Rexach Puerto Rico (D.C.Cir. Ford, Hall v. Cf. Authority, Electric Power 1988) spokesman”). (“highly visible Political Cir.1988), in which we noted job appropriate require affiliation is not an although supply officer would ment. way, always approach job in a his uniform Similarly, Flynn responsi- describes in- improbable was that his decisions would including bilities as the: political goals. partisan at 1496. volve Id. oversight personnel func- Likewise, of all finance and Flynn’s job largely duties were Community tions specialized [Boston within Cen- limited to the technical and as- ters], preparation implementation of pects budgeting, finance and his department budget, supervision beyond areas duties those carried state, federal, private grants manage- potential influencing political limited Choudens, ment, management agency’s payroll goals. in De essen- As was functions, fiscal, tially specialized providing le- a staff official with knowl- contract edge, “although pol- his involved gal, assistance to the non- confidence, icy-making, of reposing centers profit corporate arms of the liaison communicating,” department, functions were “re- city’s to the law labor rela- such tions, agen- agencies. advancing thwarting federal mote Nevertheless, Wolfson, testimony. descrip- Flynn deposition that this was not 6. Like contends be, job description appears many respects, when he was em- the official to consistent tion ployed the Central Office. The district court job. Flynn’s description of his rely description, Flynn’s not this but on did on concern, goals.” public See matter of we must examine cy’s partisan-responsive O’Connor, fully. its Accordingly,, context more See political affiliation F.2d at 6. F.2d at 914. requirement. Unlike statement Con- appropriate not an nick, the at issue not statements were made have I and Wolfson believe decision, employment the adverse thus after presented sufficient to survive.sum- evidence retaliation, suggesting directly not were they mary on their claim that judgment plaintiffs’ employment related to the own jobs of from their because terminated situation. 461 U.S. at 103 S.Ct. at See Mayor. lack affiliation with issue, I 1690-91. While this is close am Accordingly, I would reverse district employees’ convinced that evidence is judgment on this issue. court’s summary judgment. sufficient to survive Flynn’s I conclude that and Wolf- Because Personnel based decisions on affilia- political positions, are I positions son’s tion much more than an individual em- view company with the court’s part also ployee’s against employer. grievance See First claim. have no Amendment Connick, at at 1690- 103 S.Ct. I objections 91. do not address second and Flynn’s to Ries- third and Wolfson’s steps analysis (balancing the O’Connor handling enberg’s of certain sexual harass- interests and consideration of motivations for legitimate constitute a matter of claims terminations) plaintiffs’ because the district allegations bear public concern. The on reach did not those issues. See Riesenberg’s fitness as Executive to serve at I only 912-13. would hold that the Director, public concern we similar employees a genuine raised factual is- have F.2d. at 915. identified in O’Connor. See 994 they engaged speech as sue to whether a topic concern Because such statements public pro- concerning a concern matter concern which is a matter inherent to tected the First Amendment. plaintiffs’ per- public, not examine we need speaking for out. Id. at Finally, sonal motivations I also and Wolf- would allow pendent son to assert their state law claims wrongful The district court termination. objections employees’ I concede that employee “whistleblowing” decided that a personnel practices Riesenberg pres about may public protection under be entitled to ent a more difficult circumstance. Con Nevertheless, law. the court Massachusetts Myers, nick v. summary judgment city’s granted in the fa- (1983), the Court considered wrongful on termination claim be- vor questionnaire by an assistant circulated speech ruling employees’ that the cause its attorney, about inquiring matters district Riesenberg’s not con- criticizing decision did (cid:127) policy, such the office’s transfer office as whistleblowing. I have reached a stitute in supervi level of confidence morale and the contrary nature public conclusion as 141, 103 at 1686-87. The sors. Id. at S.Ct. therefore, and, I speech question speech that this related Court concluded genuine there would conclude that is a issue policy and did not touch to internal office speech material fact as to whether the at public Id. upon matters of concern.7 at exception. public policy issue falls within the at 1693-94. Stewart, Corp. GTE See Products Connick, speech Compared to the how- (1995). Mass. 653 N.E.2d ever, complaints Flynn and judg- I the district court’s would reverse policies procedures touch about office ment. upon likely public more to be matters concern, i.e., city person- whether the based political alliances without

nel on decisions speech

regard qualifications. Because necessarily qualify on its face as a

does not questionnaire upon lation and concluded questionnaire one matter of her did touch accurately concern—pressure employees as em- was "most characterized poli- grievance concerning ployee internal office political campaigns—but the ex- Court work cy.” plaintiff’s 461 U.S. at S.Ct. at 1694. circu- amined the circumstances

Case Details

Case Name: Flynn v. City of Boston

Court Name: Court of Appeals for the First Circuit

Date Published: May 13, 1998

Citation: 140 F.3d 42

Docket Number: 97-1076

Court Abbreviation: 1st Cir.