Flynn v. City of Boston

• Decision Date: 28 July 1997
• Docket Number: No. 97-1076,97-1076
• Citation: 140 F.3d 42
• Parties: 73 Empl. Prac. Dec. P 45,373, 13 IER Cases 1671 Kevin N. FLYNN and Randy Wolfson, Plaintiffs, Appellants, v. CITY OF BOSTON, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 42

140 F.3d 42

73 Empl. Prac. Dec. P 45,373, 13 IER Cases 1671

Kevin N. FLYNN and Randy Wolfson, Plaintiffs, Appellants, v. CITY OF BOSTON, et al., Defendants, Appellees.

No. 97-1076.

United States Court of Appeals First Circuit.

Heard July 28, 1997.

Decided May 12, 1998.

Mark S. Bourbeau, with whom Liam C. Floyd, Boston, MA, and Bourbeau & Bourbeau, Bonilla, Tocchio & Floyd, LLP were on brief, for Plaintiffs, Appellants.

Mary Jo Harris, Boston, MA, with whom Kopelman and Paige, P.C. was on brief, for Defendants, Appellees.

Before BOUDIN, Circuit Judge, JOHN R. GIBSON, ^* Senior Circuit Judge, and POLLAK, ^** Senior District Judge.

BOUDIN, Circuit Judge.

Kevin Flynn and Randy Wolfson appeal from the district court's grant of summary judgment in favor of the defendants in their action alleging that they were discharged from their jobs with Boston Community Centers in violation of the First Amendment. Their former employer is an agency of the City of Boston with 400 employees and a budget of $15 million. It is concerned with the delivery of social services, including child care, youth work, and senior citizen programs and it administers grants both from city funds and from other sources.

In January 1994, the newly elected mayor of Boston appointed Evelyn Riesenberg, formerly one of his special assistants, as the director of Boston Community Centers. Kevin Flynn was then the associate director of administration and finance; Randy Wolfson was one of two associate directors for field operations. In their later filed court papers, Flynn and Wolfson describe Riesenberg's reign in very unflattering terms.

In particular, they charge that from the outset, Riesenberg pressed Wolfson to tell her which senior staff members had worked for particular mayoral candidates; and Flynn says that Riesenberg asked him how she could fire the entire central office staff and replace them with her own supporters or those of the mayor. Both say that they argued with Riesenberg against this course of action.

They also say that Riesenberg sought, over their opposition, to appoint unqualified personnel to reward supporters of the mayor, and they provide specific examples. Flynn says that Riesenberg ordered him to raise pay for a union worker in violation of the union contract. Flynn and Wolfson also say that Riesenberg mishandled several sexual harassment complaints and related personnel actions, despite their objections.

In August 1994, Riesenberg gave Flynn and Wolfson termination notices, asserting that she was reorganizing the agency. When they protested, the city's corporation counsel wrote to them that they were being discharged because of the reorganization and "an evaluation of their performance." Flynn and Wolfson in turn say that the reorganization was a sham and that neither of them has any negative evaluations in his or her personnel files.

After Flynn and Wolfson were fired, they brought suit in the district court against Riesenberg, the mayor, and the city. The plaintiffs sought declaratory and injunctive relief, and damages under 42 U.S.C. § 1983, on the ground that their First Amendment rights had been infringed; they also made statutory and common law claims based on state law. After discovery, the plaintiffs waived some claims, and the district court dismissed or granted summary judgment in favor of defendants on all of the remaining claims.

On summary dispositions, we take the facts and draw inferences in favor of the non-moving party. Ortiz-Pinero v. Rivera-Arroyo, 84 F.3d 7, 11 (1st Cir.1996). But the question whether a position is subject to political discharge, or how far the First Amendment protects against having one's views considered in adverse personnel actions, are essentially legal questions for the court, even if they are close questions. McGurrin Ehrhard v. Connolly, 867 F.2d 92, 93 (1st Cir.1989).

From the outset of the Republic, government jobs have gone by political patronage, tempered now by civil service laws that afford varying degrees of protection, especially to lower level employees. See Elrod v. Burns, 427 U.S. 347, 377-79, 96 S.Ct. 2673, 2691-92, 49 L.Ed.2d 547 (1976) (Powell, J., dissenting). To this accommodation, the Supreme Court about 25 years ago brought a new constitutional principle: that political firings by the government are allowed only in those jobs for which political loyalty is an "appropriate" criterion. See Elrod v. Burns, 427 U.S. 347, 372-73, 96 S.Ct. 2673, 2689-90, 49 L.Ed.2d 547 (1976); Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 1294-95, 63 L.Ed.2d 574 (1980).

In response, the lower federal courts have tried to develop doctrine, but it is largely a porridge of general statements and variables: positions are less likely to be protected to the extent that they are "higher," more "political," more "confidential," and so on; duties prevail over titles; everything depends on circumstances. See, e.g., Cordero v. De Jesus-Mendez, 867 F.2d 1, 10-21 (1st Cir.1989); see also 4 R.D. Rotunda & J.E. Nowak, Constitutional Law: Substance and Procedure § 20.42, at 272-75 (2d ed.1992). To get any practical sense of where the lines have been drawn, one has to look at the results. See Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 241 (1st Cir.1986) (en banc) (collecting cases), cert. denied, 481 U.S. 1014, 107 S.Ct. 1888, 95 L.Ed.2d 496 (1987).

At least in the First Circuit, the cases have regularly upheld against First Amendment challenge the dismissal on political grounds of mid- or upper-level officials or employees who are significantly connected to policy-making. This result has followed where the plaintiff merely represented the agency's policy positions to other entities or to the public or where important personnel functions were part of the portfolio. See, e.g., Cordero, 867 F.2d at 11-12, 14. The common thread is that the officials or employees were policymakers or those who are in close working relationships with policymakers.

Thus, we have upheld political discharges of the regional director of an administrative agency, the municipal secretary in a mayor's office, an officer in charge of human resources, a director of public relations, a superintendent of public works, a director of a city's federal programs office, and a director of a satellite office of the Massachusetts Secretary of State. ¹ Many such plaintiffs were subordinates within their own offices. Just one decision provisionally protected an official with a high-sounding title, but her duties were essentially technical. See De Choudens v. Government Dev. Bank of Puerto Rico, 801 F.2d 5, 9-10 (1st Cir.1986), cert. denied, 481 U.S. 1013, 107 S.Ct. 1886, 95 L.Ed.2d 494 (1987). ²

By contrast, this court has disallowed political firings for a cleaning supervisor, a career employee administrative aide, and an auditor of books and records. See Cordero, 867 F.2d at 14-15, 16-18. The Supreme Court cases, granting or looking toward protection, have involved a floor supervisor, a guard, a process server, an assistant public defender, a rehabilitation counselor, a road equipment operator, a garage worker, and a dietary manager. See Elrod, 427 U.S. at 350-51, 372-73, 96 S.Ct. at 2678-79, 2689-90; Branti, 445 U.S. at 508, 519-20, 100 S.Ct. at 1289-90, 1295-96; Rutan v. Republican Party, 497 U.S. 62, 67, 76, 110 S.Ct. 2729, 2733, 2737-38, 111 L.Ed.2d 52 (1990). Thus, it is primarily low-level jobs that have been protected, although this encompasses most workers in most agencies of government.

"Appropriate"--the test used in Branti--is an elastic concept, but we have an obligation to apply it consistently within the circuit. Under our prior decisions, Flynn is not protected. As associate director of administration and finance at Boston Community Centers, he had authority over human resource issues, supervision of the grants managers and personnel director, labor negotiations, and liaison responsibilities with a number of city or state agencies. See Cordero, 867 F.2d at 11-15; cf. Goyco, 849 F.2d at 685. These major responsibilities meant that policy disagreements with his politically appointed supervisor could lead to less effective implementation of political goals.

Wolfson is a closer case, but not by much--given the standards of prior cases. She was associate director for field operations and supervised about half the site coordinators, oversaw several programs, served as liaison with two city agencies, oriented new local council members, and monitored compliance with legal requirements. Cf. Nunez, 834 F.2d at 24. Like Flynn, Wolfson reported directly to the executive director of the agency and so represented top management in an agency with 400 employees.

The responsibilities of Flynn and Wolfson just described--and these are functions, not titles--obviously implicate policy. Indeed, they are the same kind of senior management functions that our earlier decisions have ascribed to a number of employees found to be subject to political discharge. For example, Cordero, 867 F.2d at 13-14 upheld the dismissal of a municipality's director of finance, whose primary tasks included supervision of the accounting system, advising officials on fiscal matters, and supervising the disbursement of municipality funds. And in McGurrin Ehrhard, 867 F.2d at 93-95, we sustained the dismissal of the director of the Massachusetts Secretary of State's satellite office, whose job consisted essentially of providing information to citizens, "input" into personnel issues, and development of office policies.

Under our decisions, an employee is not immune from political firing merely because the employee stands apart from "partisan" politics, see Mendez-Palou, 813 F.2d at 1262-63, or is not the ultimate decisionmaker in the agency, see McGurrin Ehrhard, 867 F.2d at 95, or is guided in some of his or her functions by professional or technical standards, see Cordero, 867 F.2d at 13-14. Rather, it is enough that the...