Vargas-Harrison, Jua v. Racine Unified

In the

United States Court of Appeals

For the Seventh Circuit

No. 01-1440

JUANA VARGAS-HARRISON,

Plaintiff-Appellant,

v.

RACINE UNIFIED SCHOOL DISTRICT,

DENNIS McGOLDRICK, JOHN PELEJ, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 99 C 845--Rudolph T. Randa, Judge.

ARGUED SEPTEMBER 13, 2001--DECIDED November 30, 2001

Before RIPPLE, ROVNER and EVANS, Circuit

Judges.

RIPPLE, Circuit Judge. Juana Vargas-

Harrison filed this action against her

employer, the Racine Unified School

District ("School District"), alleging

that the School District had violated her

First Amendment rights when it demoted

her for opposing publicly one of its

policies. The complaint also named the

School District’s Superintendent Dennis

McGoldrick, Assistant Superintendent John

Pelej, and Director of School Operations

Patricia Stephens-Rogers (collectively

"Administrators") as individual

defendants to the suit. The district

court entered summary judgment for the

School District and its Administrators,

finding that Ms. Vargas-Harrison occupied

a policy-making position within the

school system. The district court

concluded that, because Ms. Vargas-

Harrison was a policy-making employee who

had engaged in speech critical of her

superiors’ policies, the School District

could demote her without implicating her

First Amendment rights. The district

court also dismissed as moot Ms. Vargas-

Harrison’s pending motion to amend her

complaint to include a procedural due

process claim against the School

District. For the reasons set forth in

the following opinion, we affirm the

judgment of the district court.

I

BACKGROUND

A. Facts

In the fall of 1998, Ms. Vargas-Harrison

became the principal of Knapp Elementary,

a grade school located in the Racine

Unified School District. As the head

administrator at Knapp, Ms. Vargas-

Harrison evaluated the school’s

personnel, provided guidance in

curriculum and instructional development,

and implemented the policies of the Board

of Education. In addition, the School

District required each of its principals,

including Ms. Vargas-Harrison, to

spearhead the development of a P-5 grant

proposal for his or her school.

The P-5 Program is a legislative program

of the State of Wisconsin that offers

financial aid to public schools serving

disadvantaged children. For a school to

receive this funding, the local school

board, on its own initiative or by appli

cation of the principal, petitions the

State for a P-5 grant. Although the

proposal must detail how the school

intends to spend the funds, Wisconsin

does not mandate any particular use for

the grant. To the contrary, each school

has wide discretion in crafting its own

proposal. In the case of Knapp

Elementary, this discretion fell to its

principal, Ms. Vargas-Harrison.

On April 22, 1999, Ms. Vargas-Harrison

presented her initial P-5 proposal to the

School District’s Curriculum and

Instruction Committee ("Committee"). The

proposal suggested using the P-5 grant to

fund an alternative reading program. Ms.

Vargas-Harrison’s plan would mark a

dramatic shift in the use of the funds

because the proposal channeled money away

from several teaching positions

traditionally paid for by the grant.

Confronted with the prospect of job cuts,

the local teachers’ union vehemently

objected to Ms. Vargas-Harrison’s

proposal. Based on this opposition, the

Committee did not approve Ms. Vargas-

Harrison’s plan.

Dismayed with the outcome of the

meeting, Ms. Vargas-Harrison contacted

her superior, Patricia Stephens-Rogers,

and expressed frustration with the

union’s reaction to the proposal.

However, Ms. Vargas-Harrison received

little solace from the School District

because it had been attempting to improve

its relations with the union. Rather than

supporting Ms. Vargas-Harrison’s

proposal, Stephens-Rogers directed Ms.

Vargas-Harrison to collaborate with union

officials in modifying the plan. Despite

the admonition, Ms. Vargas-Harrison did

not participate in the ongoing effort to

recast Knapp’s P-5 proposal. A group of

parents and teachers, however, proceeded

to cobble together a new plan without the

assistance of Ms. Vargas-Harrison.

In the meantime, Ms. Vargas-Harrison

continued to advocate her original plan.

In particular, she sent a letter to the

president of the local school board that

detailed the deficiencies in the current

use of the P-5 grant funds. As an

alternative, she enclosed a copy of her

rejected plan.

On May 25, 1999, a coalition of teachers

and parents was scheduled to present

their revised P-5 proposal to the

Committee. The School District, however,

recognized that Ms. Vargas-Harrison

opposed the modification of her original

plan. Therefore, on three separate

occasions prior to the presentation,

School District officials asked Ms.

Vargas-Harrison to attend the meeting.

Although the School District did not

order her to participate in the

presentation, its officials believed that

Ms. Vargas-Harrison’s presence would

indicate her support for the revised

proposal. For her part, Ms. Vargas-

Harrison understood that the School

District wanted her to support the

proposal even if she did not agree with

it.

At the May 25 public meeting, Ms.

Vargas-Harrison disregarded the advice of

her superiors. After the new plan had

been presented, Ms. Vargas-Harrison

received permission to speak to those

gathered at the meeting. She proceeded to

emphasize the flaws in the new proposal.

Once again, Ms. Vargas-Harrison

distributed copies of her original plan

and offered it as an alternative to the

new proposal. She indicated it was "time

to let the principal do the job and stop

the union running the school." R.42 at

157.

Her stance was not well received by the

School District. On two occasions, Ms.

Vargas-Harrison met with School District

officials concerning her conduct at the

May presentation. Soon after these

meetings, on June 18, 1999, the School

District demoted her to the position of

assistant principal at another

institution. However, she would never

serve in that position. Over the next

seventeen months, Ms. Vargas-Harrison did

not report to work; rather, she consumed

her vacation days and various leave

periods. After she had exhausted all

possible excused absences and still had

failed to return to her new position, the

School District terminated her in January

2001.

B. District Court Proceedings

1.

On July 26, 1999, Ms. Vargas-Harrison

filed suit against the School District

and its Administrators, alleging that

they had demoted her in retaliation for

her public opposition to their preferred

P-5 grant proposal. The district court

denied Ms. Vargas-Harrison’s initial

request for a temporary restraining order

that would have reinstated her as

principal of Knapp Elementary. After a

lengthy hearing, the district court also

rejected Ms. Vargas-Harrison’s motion for

a preliminary injunction.

The School District and its

Administrators then moved for summary

judgment. They submitted that Ms.-Vargas-

Harrison occupied a policy-making

position within the school system. The

School District argued that, because

local school regulations unequivocally

indicated that Knapp’s principal had

input into governmental decisionmaking,

the court could resolve, as a matter of

law, Ms. Vargas-Harrison’s status as a

policy-making employee. If Ms. Vargas-

Harrison was a policy-maker, continued

the School District, she owed her

superiors a degree of loyalty with regard

to job-related policy issues. The School

District maintained that she had

disregarded that duty when she criticized

her superiors’ preferred P-5 proposal.

Because she was a policy-maker and

because her May 25 speech involved a

matter of educational policy, the School

District contended that the First

Amendment did not protect her May 25

speech. Consequently, in its view, the

demotion of Ms. Vargas-Harrison was

constitutionally permissible.

In the alternative, the Administrators

sought to be dismissed from the case on

qualified immunity grounds. They

maintained that the law concerning the

precise scope of the policy-maker

analysis was unrefined at the time of Ms.

Vargas-Harrison’s dismissal. They

contended that a reasonable school

official would not have recognized that

Ms. Vargas-Harrison’s demotion violated

the Constitution.

In opposing the motion for summary

judgment, Ms. Vargas-Harrison maintained

that the record did not support a finding

that she occupied a policy-making

position within the school system. She

also submitted that the Administrators

were not entitled to qualified immunity

because they had violated her clearly

established right to speak on matters of

public concern.

Before the district court rendered a

judgment on the motion,/1 on January

18, 2001, the School District terminated

Ms. Vargas-Harrison. It alleged that it

had taken this action because Ms. Vargas-

Harrison had not returned to work since

her demotion eighteen months earlier. Ms.

Vargas-Harrison, however, contended that

the discharge gave rise to two new claims

against the School District.

Specifically, she maintained that the

termination had not only amounted to

retaliatory discharge but had also

violated her right to procedural due

process. As such, she sought from the

district court leave to amend her

complaint to incorporate these new

allegations.

2.

Before the district court addressed Ms.

Vargas-Harrison’s motion to amend her

complaint, it entered summary judgment

for the School District and its

Administrators. The district court held

that, as a matter of law, Ms. Vargas-Har

rison was a policy-making employee who

had advocated publicly positions in

conflict with her superiors’ job-related

policy viewpoints. The School District

therefore could demote and ultimately

terminate Ms. Vargas-Harrison without

impinging upon her First Amendment

rights. In reaching its conclusions, the

district court acknowledged that an

individual’s status as a policy-making

employee generally poses a question of

fact. However, because detailed

regulations clearly delineated the duties

and responsibilities of Knapp’s

principal, the district court determined

that it could resolve the issue as a

matter of law. The court also emphasized

the discretion the School District had

vested in Ms. Vargas-Harrison with regard

to development of the P-5 proposal. In

the view of the district court, these

considerations permitted but one

conclusion--Ms. Vargas-Harrison held a

policy-making position within the School

District and, because she was a policy-

making employee, the School District

could demote and ultimately terminate her

for advocating stances in opposition to

its stated policies.

The district court then turned to the

two remaining aspects of the case.

Although recognizing that its

determination that Ms. Vargas-Harrison

was a policy-maker disposed of the case,

the district court nevertheless addressed

the Administrators’ claim of qualified

immunity. The district court concluded

that reasonable school officials would

not have known that their demotion of Ms.

Vargas-Harrison for opposition to their

policies was unconstitutional. The court

emphasized that the Administrators

believed they were demoting a policy-

making employee. The district court found

that, even if the Administrators were

wrong in that conclusion, the case law

concerning the scope of the policy-maker

analysis was not refined in 1999; the

Administrators would not have known that

their demotion of Ms. Vargas-Harrison was

unconstitutional. Finally, the district

court briefly addressed Ms. Vargas-

Harrison’s motion to amend her complaint

to include procedural due process and

retaliatory discharge claims. Without

elaboration, it dismissed the pending

motion as moot.

II

DISCUSSION

A.

We review de novo the district court’s

grant of summary judgment. See Thomas v.

Pearle Vision, Inc., 251 F.3d 1132, 1136

(7th Cir. 2001). Summary judgment is

appropriate "if the pleadings,

depositions, answers to interrogatories,

and admissions on file, together with

affidavits, if any, show that there is no

genuine issue as to any material fact and

that the moving party is entitled to a

judgment as a matter of law." Fed. R.

Civ. P. 56(c); see Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986). The

court’s function is not to weigh the

evidence but merely to determine if

"there is a genuine issue for trial."

Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249 (1986). We must ask whether

"there are genuine factual issues that

can properly be resolved only by a finder

of fact because they may reasonably be

resolved in favor of either party." Id.

at 250. In assessing whether a genuine

issue of material fact exists, we must

construe all facts and draw all

reasonable inferences in the light most

favorable to the nonmoving party. See id.

at 255; Basith v. Cook County, 241 F.3d

919, 926 (7th Cir. 2001).

B.

We must determine whether the district

court properly characterized Ms.

Vargas-Harrison as a policy-maker and

whether, as a matter of law, the School

District’s action violated her rights

under the First Amendment.

As a general rule, the government cannot

retaliate against its employees for

engaging in constitutionally protected

speech. See, e.g., Myers v. Hasara, 226

F.3d 821 (7th Cir. 2001). An employee may

bring suit to vindicate his First

Amendment rights provided two elements

are present. The plaintiff must

demonstrate that he engaged in speech

protected by the First Amendment. See

Horwitz v. Board of Educ. of Avoca Sch.

Dist. No. 37, 260 F.3d 602, 618 (7th Cir.

2001); Ryan v. Ill. Dep’t of Children &

Family Servs., 185 F.3d 751, 758 (7th

Cir. 1999). In addition, the employee

must show his speech was "a substantial

or motivating factor in the defendant’s

challenged actions." Horwitz, 260 F.3d at

618; see also Ryan, 185 F.3d at 758.

Failure to satisfy either element of the

inquiry will prove fatal to the

employee’s claim. In this case, we must

focus on the first prong of this inquiry.

It is well-established in our

jurisprudence that a public employee does

not shed his First Amendment rights at

the steps of the government building. See

Pickering v. Board of Educ., 391 U.S.

563, 568 (1968). It is equally

well-established, however, that a

government employee does not enjoy

unlimited freedom of expression with

respect to matters that relate to

official responsibilities. In Pickering,

the Supreme Court of the United States

set forth an approach designed to strike

an appropriate balance between the rights

of the government employee as a private

individual with freedom of expression and

the need of government to conduct its

affairs effectively and efficiently.

Pickering requires that we ask (1)

whether the public employee spoke on a

matter of public concern; and (2) whether

"the interests of the [employee], as a

citizen, in commenting upon matters of

public concern" outweigh "the interest of

the State, as an employer, in promoting

the efficiency of the public services it

performs through its employees."

Pickering, 391 U.S. at 568. The second

prong of this inquiry, known as Pickering

balancing, requires that we engage in a

seven factor analysis, weighing the

respective interests of the government

and its employee, to determine if the

First Amendment protects the speech at

issue./2 See Kokkinis v. Ivkovich, 185

F.3d 840, 845 (7th Cir. 1999). However,

drawing from the principles established

in the closely analogous area of

patronage cases,/3 we have recognized

that the First Amendment does not

prohibit the discharge of a policy-making

employee when that individual has engaged

in speech on a matter of public concern

in a manner that is critical of superiors

or their stated policies. See Warzon v.

Drew, 60 F.3d 1234, 1239 (7th Cir. 1995);

Wilbur v. Mahan, 3 F.3d 214, 219 (7th

Cir. 1993). In essence, we have

determined that, with respect to these

employees, the Pickering analysis

regularly will result in a determination

that "the government employer’s need for

political allegiance from its

policymaking employee outweighs the

employee’s freedom of expression to such

a degree that it obviates Pickering

balancing." Bonds v. Milwaukee County,

207 F.3d 969, 977 (7th Cir. 2000).

Consequently, there is no need for a

fact-specific analysis of the

circumstances of each case:

Legal proofs are not the only source of

knowledge and decision. Categorical

judgments based on experience and common

sense play an important role in all areas

of law. The exception recognized in the

patronage cases for sensitive employees

rests on such judgments and it retains

its force in cases that have nothing

directly to do with patronage or party

affiliation. An elected official is

entitled to insist on the loyalty of his

policymaking subordinates . . . . It

would be a strange rule that gave more

job protection to policymaking employees

who vociferously attack their superiors

than to policymaking employees who do

their best to serve those superiors

faithfully but have the misfortune to

belong to the wrong party. It would give

policymaking employees and other

sensitive employees an incentive to

attack their bosses in order to retain

their jobs.

Wilbur, 3 F.3d at 218-19.

C.

We next must decide whether this case

falls within the ambit of this policy-

maker corollary to the Pickering

analysis. This inquiry requires that we

determine whether Ms. Vargas-Harrison

occupied a policy-making position, see

Warzon, 60 F.3d at 1239, and whether her

speech was of the kind that falls within

the scope of the corollary. See Bonds,

207 F.3d at 979.

1.

A policy-making employee is one whose

position "authorizes, either directly or

indirectly, meaningful input into

government decisionmaking on issues where

there is room for principled disagreement

on goals or their implementation."

Nekolny v. Painter, 653 F.2d 1164, 1170

(7th Cir. 1981). In applying this

criterion, however, it is necessary to

"go beyond labels to consider the nature

of the responsibilities in question." See

Pleva v. Norquist, 195 F.3d 905, 912 (7th

Cir. 1999) (internal quotation marks

omitted). Simply put, an individual’s job

title will not decide her fate as a

policy-making employee; rather, the

actual duties of the position must be

examined and evaluated. Because the

unique characteristics of a job will

often influence this determination, an

individual’s status as a policy-making

employee frequently poses a fact

question. See Soderbeck v. Burnett

County, 752 F.2d 285, 288-89 (7th Cir.

1985). However, when the duties and

responsibilities of a particular position

are clearly defined by law and

regulations, a court may resolve this

issue without the aid of a finder of

fact. See Pleva, 195 F.3d at 912.

Our decision in Warzon provides guidance

on the application of this standard. In

Warzon, the plaintiff, Maureen Warzon,

served as the controller of Milwaukee

County’s Department of Administration--a

position that entailed management of the

entity’s health care plan. See Warzon, 60

F.3d at 1235. At the time she took over

the position, the plan was in crisis

because it confronted severe budgetary

shortfalls. See id. Warzon, at the

request of her superiors, developed an

initiative to improve the health system’s

financial situation. See id. However, her

superiors rejected her idea and pursued

other remedies. See id. at 1236. When

Warzon publicly criticized her superiors’

preferred methods for reforming the

health system, she was terminated. See

id. at 1236-37. In rejecting her First

Amendment claim, we determined that

Warzon served as a policy-making employee

of Milwaukee County. See id. at 1240. We

emphasized that Warzon’s position

entailed more than ministerial duties.

See id. The plaintiff admitted that she

was empowered to make recommendations

concerning the plan including the

development of new "policies and

procedures" to improve the system. See

id. at 1239. Although her superiors

ultimately dismissed her recommendation,

we stated that "the relevant inquiry is

input, not control." See id. at 1240.

Turning to the facts of this case, we

first note that no factual dispute exists

concerning Ms. Vargas-Harrison’s duties

and responsibilities as principal at

Knapp Elementary. To the contrary, School

District regulations provide considerable

insight into her status as a policy-

making employee. In particular, District

Policy 2213 delineates the role Ms.

Vargas-Harrison held within the School

District. As principal, Ms. Vargas-

Harrison served as the highest ranking

school official at Knapp Elementary. In

this position, she exercised discretion

over the organizational structure of her

school. She assisted in the selection,

supervision and evaluation of the faculty

at Knapp. The responsibility for leading

the development of curriculum and

instruction fell to her. These duties, in

themselves, are far from ministerial.

Another aspect of her job also indicates

that Ms. Vargas-Harrison had meaningful

input into government decisionmaking on

issues where there is room for principled

disagreement. The development of the P-5

proposal indicates the scope of Ms.

Vargas-Harrison’s decisionmaking

responsibilities. The School District

assigned Ms. Vargas-Harrison the task of

creating a P-5 proposal for Knapp

Elementary. The statutory scheme behind

the P-5 program provided each school with

wide discretion in developing a grant

proposal to fit its particular needs. Ms.

Vargas-Harrison used that discretion to

its fullest--discarding Knapp’s

traditional use of the funds in favor of

an innovative exploitation of the grant.

Although her superiors ultimately

rejected the proposal, "the relevant

inquiry is" whether she had "input, not

control." Warzon, 60 F.3d at 1239. Ms.

Vargas-Harrison’s well-defined duties as

principal at Knapp lead to one

conclusion--she had significant input

into government decisionmaking. We

therefore conclude that she occupied a

policy-making position within the School

District.

2.

Although Ms. Vargas-Harrison’s

responsibilities fit the definition of a

policy-maker, the question still remains

whether she engaged in the type of speech

that triggers this corollary to the

Pickering analysis. We repeatedly have

declined to decide whether a policy-maker

may be terminated for speaking on any

matter of public concern. See Bonds, 207

F.3d at 979; Ryan, 185 F.3d at 759;

Warzon, 60 F.3d at 1239 n.1; Wilbur, 3

F.3d at 214. However, we have said that

the policy-maker corollary "does not

apply, and the courts must apply

Pickering balancing, when the speech at

issue does not implicate the employee’s

politics or substantive policy

viewpoints."/4 Bonds, 207 F.3d at 979.

This reluctance to cast the policy-maker

corollary in sweeping terms stems from

the rationale underlying it. As we noted

earlier, the corollary is a shorthand for

the Pickering balancing; in certain

instances, "the government employer’s

need for political allegiance from its

policymaking employee outweighs the

employee’s freedom of expression to such

a degree" that the fact-specific

Pickering inquiry is not required. Bonds,

207 F.3d at 977.

Therefore, we have concluded that this

corollary applies when a policy-making

employee engages in speech that

implicates his political viewpoints. See

Wilbur, 3 F.3d at 217-18. In such a

situation, the friction between a

politically adverse policy-maker and

superior poses such a potential

disruption to the efficient functioning

of government that a fact-specific

inquiry is unnecessary. Similarly, we

have determined that the policy-maker

analysis applies to situations where a

policy-making employee engages in speech

critical of his superiors’ work-related

policies. See Warzon, 60 F.3d at 1239.

When the policy-maker’s speech creates a

conflict with the policy stance of his

superiors, the effects on government are

"acute." See id. By contrast, when the

employee’s speech addresses matters that

have no impact on his official duties,

there is a diminished threat that this

expression will hamper the government’s

performance of its functions. In these

circumstances, the corollary does not

apply, and courts must apply the fact-

specific Pickering balancing test when

the speech at issue does not implicate

the employee’s politics or substantive

policy viewpoints. Bonds, 207 F.3d at

979. "Speech unrelated to job duties or

political viewpoint runs too remote from

interests that animate the exception."

Id.

Turning to the facts of this case, Ms.

Vargas-Harrison’s speech falls within the

contours of the policy-maker corollary.

Ms. Vargas-Harrison’s speech on May 25

unequivocally concerned work-related

policies. Ms. Vargas-Harrison advocated

shifting the use of the P-5 funds from

teachers’ salaries to an alternative

reading program. This stance placed her

in square opposition to the stated goals

and policies of her superiors. The School

District’s need for allegiance from Ms.

Vargas-Harrison during the creation of

the P-5 proposal was acute. The union’s

vehement opposition to Ms. Vargas-

Harrison’s proposal boded poorly for

labor relations in the School District.

The Committee’s refusal to approve Ms.

Vargas-Harrison’s plan denied the School

District much needed funding. This is the

precise type of situation that implicates

the policy-maker rule.

Accordingly, we hold that the district

court correctly determined that Ms.

Vargas-Harrison’s opposition to the

School District’s efforts to secure

approval of its P-5 program was not

protected speech. As a policy-maker in

the School District, she owed her

superiors a duty of loyalty with respect

to this subject. The First Amendment does

not protect her against discharge based

on her opposition to the School

District’s proposal./5

D.

Finally, we must address whether the

district court properly dismissed as moot

Ms. Vargas-Harrison’s motion to amend her

complaint. We conduct a de novo review of

the district court’s decision to dismiss

as moot a motion to amend the complaint

in light of the grant of summary judgment

for the defendant. See Sanders v. Venture

Stores, Inc., 56 F.3d 771, 773 (7th Cir.

1995). We are not bound by the rationale

underlying the district court’s

determination. Rather, we may affirm the

district court’s judgment "on any ground

that is supported in the record." Id.

(citations omitted).

After her termination on January 18,

2001, the plaintiff sought leave to amend

her complaint to include a procedural due

process claim. She alleged, in the most

conclusory manner, that her termination

had deprived her of property without due

process of law. In the course of

dismissing her First Amendment count, the

district court dismissed as moot all

pending motions, including the motion to

amend the complaint to include this due

process claim.

Ms. Vargas-Harrison correctly notes that

the district court’s dismissal of a First

Amendment case does not necessarily moot

a procedural due process claim. However,

we nevertheless must affirm the dismissal

because an examination of the proposed

amended complaint and the record of the

earlier preliminary injunction hearing

make clear that the amendment would have

been futile. See Forman v. Davis, 371

U.S. 178 (1962) (indicating leave to

amend may be denied if new claim would be

futile); Bethany Pharmacal Co., Inc. v.

QVC, Inc., 241 F.3d 854, 861 (7th Cir.

2001); Payne v. Churchich, 161 F.3d 1030,

1036 (7th Cir. 1998).

A new claim is futile if it would not

withstand a motion to dismiss. See Bower

v. Jones, 978 F.2d 1004, 1008 (7th Cir.

1992). The proposed amended complaint

recites no basis for the assertion that

Ms. Vargas-Harrison has a property

interest in her job. Notably, there is no

allegation that she is a tenured employee

and, at the hearing on the preliminary

injunction in the district court, her

counsel specifically noted that she was

"a non-tenured employee, has no civil

service protection." R.42 at 205. The

defendants noted this deficiency and the

earlier admission by counsel in their

brief and Ms. Vargas-Harrison has

supplied no answer in her reply brief.

Moreover, although Ms. Vargas-Harrison’s

proposed amended complaint is rather

conclusory on this issue, it appears that

the district court was correct in

determining that, if a hearing had been

held, she would have alleged the same

retaliation claim that we hold non-

meritorious today. As such, we hold that

the district court’s dismissal of Ms.

Vargas-Harrison’s motion to amend her

complaint was appropriate.

Conclusion

Because Ms. Vargas-Harrison was a

policy-making employee who had engaged in

speech critical of her superiors’

policies, we conclude that the School

District’s adverse employment action did

not violate her First Amendment rights.

We also conclude that the district court

properly dismissed Ms. Vargas-Harrison’s

motion to amend her complaint.

Accordingly, the judgment of the district

court is affirmed.

AFFIRMED

FOOTNOTES

/1 The district judge who presided over the initial

phase of this litigation, including the hearing

on the preliminary injunction, became ill before

the conclusion of the case. The case therefore

was assigned to another judge whose ruling is

currently before us. The original district judge

had denied the School District’s and Administra-

tors’ motion for summary judgment. The new judge,

upon assuming responsibility for the litigation,

proceeded to reconsider the School District’s

motion for summary judgment. It was while the

second judge had the motion under reconsideration

that Ms. Vargas-Harrison was terminated.

/2 When conducting Pickering balancing, a court

weighs the following seven factors:

(1) whether the statement would create problems

in maintaining discipline by immediate supervi-

sors or harmony among co-workers; (2) whether the

employment relationship is one in which personal

loyalty and confidence are necessary; (3) whether

the speech impeded the employee’s ability to

perform her daily responsibilities; (4) the time,

place, and manner of the speech; (5) the context

in which the underlying dispute arose; (6) wheth-

er the matter was one on which debate was vital

to informed decisionmaking; and (7) whether the

speaker should be regarded as a member of the

general public.

Kokkinis v. Ivkovich, 185 F.3d 840, 845 (7th Cir.

1999).

/3 See Warzon v. Drew, 60 F.3d 1234, 1238 (7th Cir.

1995) (collecting cases and secondary authorities

on the relationship of the patronage dismissal

cases to the Pickering balancing test).

/4 Similarly, speech critical of a superior’s abuse

of office does not come within the policy-maker

analysis. See Bonds, 207 F.3d at 979.

/5 Because this conclusion disposes of Ms. Vargas-

Harrison’s First Amendment claims, we need not

address the Administrators’ claim of qualified

immunity.