Opinion

Galli v. NJ Meadowlands Comm

Court: Court of Appeals for the Third Circuit
Filed: Jun 20, 2007
Status: Published
Cited by: 0 cases
Authority: More cited than 40.4%

“[T]he language . . . on which the district court relied constitutes dictum, and therefore does not bind us.”

How later courts described this case

“[T]he language . . . on which the district court relied constitutes dictum, and therefore does not bind us.”
reversing grant of summary judgment where the court finds question of material fact as to whether defendants knew of plaintiff police officers’ political affiliations, and whether such knowledge was a substantial motivating factor in the officers’ discharge
discussion not part of the holding is dicta, and not precedential
summarizing the Roberts distinction between intimate and expressive associations, describing protection of the former as a fundamental personal liberty and protection of the latter as an indispensable means of preserving other personal liberties

Written by the judges who cited it.

The opinion

Opinions of the United

2007 Decisions States Court of Appeals

for the Third Circuit

6-20-2007

Galli v. NJ Meadowlands Comm

Precedential or Non-Precedential: Precedential

Docket No. 05-4114

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 05-4114

ANNE GALLI,

Appellant

NEW JERSEY MEADOWLANDS COMMISSION;

SUSAN BASS LEVIN, in her official

and individual capacities

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 03-cv-01237)

District Judge: Honorable Joseph A. Greenaway

Argued December 4, 2006

Before: RENDELL and AMBRO, Circuit Judges

BAYLSON,* District Judge

(Opinion filed: June 20, 2007)

Kevin Kiernan, Esquire (Argued)

Kiernan & Campbell

206 Claremont Avenue

Montclair, NJ 07042

Counsel for Appellant

William F. Maderer, Esquire

Sean R. Kelly, Esquire (Argued)

Bryan P. Schroeder, Esquire

Saiber, Schlesinger, Satz & Goldstein

One Gateway Center

Suite 1300

Newark, NJ 07102-5311

Counsel for Appellee

New Jersey Meadowlands Commission

Zulima V. Farber

Attorney General of New Jersey

Michele A. Daitz

Deputy Attorney General

Jane A. Greenfogel, Esquire (Argued)

Office of Attorney General of New Jersey

Honorable Michael M. Baylson, United States District Judge

for the Eastern District of Pennsylvania, sitting by designation.

25 Market Street

Richard J. Hughes Justice Complex

Trenton, NJ 08625

Counsel for Appellee

Susan Bass Levin

OPINION OF THE COURT

AMBRO, Circuit Judge

An apolitical government employee appeals a grant of

summary judgment rejecting her claim that she was fired in

violation of her First Amendment rights because she failed to

support the administration or political party in power. We hold

that First Amendment rights to freedom of speech and

association protect government employees who lack a political

affiliation from political patronage discrimination. We therefore

vacate the District Court’s grant of summary judgment and

remand for application of this legal standard.

I. Factual Background and Procedural History

Anne Galli filed a political patronage discrimination

claim against the New Jersey Meadowlands Commission

(“Commission”) and its Chair, Susan Bass Levin. Galli alleges

that she was unlawfully terminated from her position with the

Commission because she was neither an active Democrat nor a

supporter of then newly elected Democratic Governor James

McGreevey.

Galli holds degrees in biology, environmental science,

and ecology, and has worked as a naturalist and professor of

ornithology. She was hired to serve on the Commission in 1984

during the Republican administration of Governor Thomas

Kean. At the time of her termination in 2002, she was the

Commission’s Director of Environmental Education, earning

more than $100,000 annually. During her tenure, Galli claims

that she was not registered with a political party and kept her

lack of political affiliation private. Galli never shared her

political views with her supervisor and was not asked to

participate in any partisan political activity.

The Commission—whose charge includes environmental

protection, economic development, and solid waste

management—is an affiliate of the New Jersey Department of

Community Affairs and is governed by a seven-member Board.

The Board appoints an Executive Director, who runs the

Commission day-to-day. Following Governor McGreevey’s

election in November 2001, Levin was appointed as the Director

of the Department of Community Affairs, and she installed

herself as head of the Commission soon thereafter. In July

2002, Robert Ceberio was appointed Executive Director of the

Commission.

The Commission has a detailed manual outlining its

employee personnel policies. It specifies that three Commission

Board members, who comprise the “Personnel Committee,” are

charged with supervision of personnel matters. With respect to

terminations due to “problematic” performance, a written

performance improvement plan must be conducted, the

termination must be in writing, and the terminated employee

must be granted the opportunity for a hearing. Finally, creation

of new jobs must be reviewed by the Board.

In March 2002, Executive Director Ceberio met with

newly appointed Commissioner Levin to discuss operations and

personnel changes. As a result of that meeting, in April 2002

Galli and ten other employees of the Commission—all of whom

had been hired during Republican administrations—were fired.

A few days prior, Ceberio met with Galli to inform her that she

would be terminated. According to Galli, Ceberio stated that

she was being fired because the Commission was going in a

“different direction”; however, he made no reference to either

poor job performance or a Commission-wide reorganization, the

two reasons later given by the Commission for Galli’s

termination. Immediately following this meeting, Galli

telephoned Commissioner Eleanore Nissley, a Republican who

was serving as Vice Chair of the Commission at the time.

According to Galli, Nissley acknowledged that the Commission

was “letting Republicans go,” and stated by way of explanation

that “some Democrat [obviously] wants the spot” and that one

has to “pay to play with this administration.”1 Galli claims that

the Commission’s personnel policies with respect to termination

were not followed in her case.

Although the eleven employees (including Galli)

purportedly were fired as part of a “reorganization” to make the

Commission more efficient and cost-effective, it hired eighteen

new employees in the year following these terminations. Galli

contends that the eighteen new hires were almost all political

patrons of the Democratic administration. She also alleges that

many of these new hires were unqualified and extensively

connected to the administration or the Democratic Party. In

particular, she notes that her replacement, Linda Mercurio,

formerly was a tax attorney with no background in

environmental science or education. Galli asserts that Mercurio

had strong ties to the Democratic Party establishment, having

previously run for office twice on the Democratic ticket, which

Galli believes explains Mercurio’s hiring. Galli, on the other

hand, had never before received negative feedback from her

superiors, and, in fact, helped the Environmental Education

Division earn an award of excellence that was bestowed shortly

after she was fired.

In February 2003, Galli filed a complaint under 42 U.S.C.

Although Nissley denies making this statement, for the

purpose of summary judgment, we view the evidence in the light

most favorable to Galli.

§ 1983 against both the Commission and Levin in the United

States District Court for the District of New Jersey, alleging that

her termination amounted to political patronage discrimination

in violation of her First Amendment rights. The Commission

and Levin responded by filing motions for summary judgment.

In August 2005, the District Court granted these motions and

dismissed Galli’s complaint, holding that Galli could not

establish that she had engaged in constitutionally protected

activity because she was unaffiliated with any political party and

disinclined to be active politically. In addition, the Court held

that the Commission had no knowledge of Galli’s political

affiliation or lack thereof; thus political considerations could not

have motivated her termination.

Galli appeals to us, arguing that the rights to freedom of

speech and association guaranteed by the First Amendment

protect employees like her (who lack political affiliation) from

political patronage discrimination.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction in this case under 28

U.S.C. § 1331, and we have appellate jurisdiction pursuant to 28

U.S.C. § 1291.

Our review of a District Court’s grant of summary

judgment is plenary. See, e.g., Slagle v. County of Clarion, 435

F.3d 262, 263 (3d Cir. 2006). A grant of summary judgment is

proper when the moving party has established that there is no

genuine dispute of material fact and that “the moving party is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

A fact is material if it might affect the outcome of the suit under

the governing substantive law. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986). A court should view the facts in the

light most favorable to the non-moving party and make all

reasonable inferences in that party’s favor. Hugh v. Butler

County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).

To prevail on a motion for summary judgment, the non-

moving party must show specific facts such that a reasonable

jury could find in that party’s favor, thereby establishing a

genuine issue of fact for trial. See Fed. R. Civ. P. 56(e). “While

the evidence that the non-moving party presents may be either

direct or circumstantial, and need not be as great as a

preponderance, the evidence must be more than a scintilla.”

Hugh, 418 F.3d at 267 (citing Anderson, 477 U.S. at 251).

Finally, where the First Amendment is involved, we

“undertake exacting review of the whole record with a

particularly close focus on facts that are determinative of a

constitutional right.” Armour v. County of Beaver, Pa., 271

F.3d 417, 420 (3d Cir. 2001) (citing New York Times Co. v.

Sullivan, 376 U.S. 254, 285 (1964)).

III. Discussion

A. Political Patronage Discrimination

Political patronage is a practice “as old as the American

Republic.” Boyle v. County of Allegheny Pa., 139 F.3d 386, 394

(3d Cir. 1998). However, the Supreme Court has set limits to its

use, emphasizing that “[t]o the victor belong only those spoils

that may be constitutionally obtained.” Rutan v. Republican

Party of Ill., 497 U.S. 62, 64 (1990).

The Court first clarified these constitutional constraints

in Elrod v. Burns, 427 U.S. 347 (1976), and Branti v. Finkel,

445 U.S. 507 (1980), holding that termination of public

employees because of their political affiliation violates the First

Amendment unless the position at issue involves policymaking.

See Elrod, 427 U.S. at 359, 373 (concluding that conditioning

public employment on support for the political party in power

“unquestionably inhibits protected belief and association”);

Branti, 445 U.S. at 513–17. In general, “an employee’s exercise

of First Amendment rights outweighs the government’s interest

in maintaining a system of political patronage.” Stephens v.

Kerrigan, 122 F.3d 171, 176 (3d Cir. 1997) (citing Elrod, 427

U.S. at 372–73, and Branti, 445 U.S. 514–15). The exception

for “policymaking” jobs exists because political loyalty is

essential to the position itself. Boyle, 139 F.3d at 394. In Rutan,

the Court extended the Elrod-Branti doctrine, holding that the

First Amendment protects public employees not only from

politically motivated discharge, but also from promotion,

transfer, recalls, and other hiring decisions conditioned on

political affiliation, unless the government can demonstrate that

party affiliation is a proper requirement for the position. 497

U.S. at 75.

From these general principles, we have derived a three-

part test to establish a claim of discrimination based on political

patronage in violation of the First Amendment. To make out a

prima facie case, Galli must show that (1) she was employed at

a public agency in a position that does not require political

affiliation, (2) she was engaged in constitutionally protected

conduct, and (3) this conduct was a substantial or motivating

factor in the government’s employment decision. See, e.g.,

Stephens, 122 F.3d at 176. Once she makes this demonstration,

the Commission2 may “avoid a finding of liability by proving by

a preponderance of the evidence that the same employment

action would have been taken even in the absence of the

protected activity.” Id.; see also Mt. Healthy City Sch. Dist. Bd.

of Educ. v. Doyle, 429 U.S. 274, 287 (1977). We discuss each

of these matters separately.

For the purposes of our analysis, we consider the claim

against Levin, in both her official and personal capacities,

together with the claim against the Commission, as both depend

on the prima facie case that was dismissed by the District Court.

B. Analysis

1. Political Affiliation as a Job Requirement

As just noted, Galli must first show that she works in a

position that does not require political affiliation. This burden

of proof shifts to the government if it claims to have properly

discharged an employee because political affiliation is central to

the job itself. See, e.g., Armour, 271 F.3d at 420.

While permitted political patronage lies in a gray area,

employers are allowed to make employment decisions based on

political affiliation when “policymaking” positions are at issue;

however, “[n]o clear line can be drawn between policymaking

and nonpolicymaking positions.” Elrod, 427 U.S. at 367. In

Brown v. Trench, our Court clarified this line by setting out

several factors that should be considered when determining

whether political affiliation is an appropriate precondition for a

government position. 787 F.2d 167, 169 (3d Cir. 1986). These

factors include whether the employee has duties that are non-

discretionary or non-technical, participates in discussions or

other meetings, prepares budgets, possesses the authority to hire

and fire other employees, has a high salary, retains power over

others, and can speak in the name of policymakers. Id. The

“key factor seems to be not whether the employee was a

supervisor or had a great deal of responsibility[,] but whether

[she] has meaningful input into decisionmaking concerning the

nature and scope of a major [] program.” Armour, 271 F.3d at

429 (citations and quotations omitted).

The parties, of course, disagree as to whether Galli’s

position with the Commission was policymaking. She alleges

her job was not under the Brown factors because: (1) she did not

enjoy decisionmaking authority with respect to personnel

decisions (for though she was responsible for issuing

performance evaluations for three employees under her direct

supervision, she retained no power to hire, fire, or discipline

staff); (2) her budget role was that of a low-level drone,

preparing no more than informational forms that were subject to

review by the Commission’s Chief Financial Officer and to

ultimate approval by its Board; (3) she could not enter into

contracts for goods or services and was required to obtain prior

approval from the Executive Director and the Board before

implementing any policies or plans; and (4) execution and

implementation of policy decisions rested with the Board, with

her role allowing only the offer of information to her superiors.

The Commission maintains that Galli’s responsibilities

included: supervising and managing a thirteen-person staff;

developing, sponsoring, and presenting resolutions to the

Commission to be adopted as policy; developing and

implementing environmental education programs for school

groups and the general public; preparing a budget;

recommending the hiring, promoting, and terminating of

employees (along with preparing the evaluations that

accompany these tasks); managing the construction of an

environmental museum; and communicating with government

officials, as well as public and private organizations, regarding

the Commission and its programs. Given these responsibilities,

the Commission alleges that Galli had significant authority in

managing the Environmental Education Division and

contributed to policy development; therefore, her job was a

policymaking position for which a political affiliation

requirement was appropriate.

In deciding whether Galli established a prima facie case

at the summary judgment stage, the District Court must draw all

factual inferences in favor of her. See, e.g., Hugh, 418 F.3d at

267. With respect to the central issue under Brown—namely,

whether Galli had meaningful input into decisionmaking—the

scope of her actual influence and authority in this area is in

dispute. As such, the District Court was correct in concluding

that, with regard to the first prong of her political discrimination

claim, Galli sustained her burden of putting forward evidence

that political affiliation was not a requirement for her position

sufficient to defeat summary judgment on this element.

2. Constitutionally Protected Conduct

The second hurdle for a prima facie political patronage

discrimination claim is for Galli to show that she “engaged in

constitutionally protected conduct.” See, e.g., Stephens, 122

F.3d at 176. Our Court sometimes has described this as a

requirement that “the employee maintain [] an affiliation with a

political party.” See, e.g., Goodman v. Pa. Turnpike Comm’n,

293 F.3d 655, 663–64 (3d Cir. 2002). However, the

constitutionally protected activity here is broader than the act of

joining a political party. Indeed, “[t]he threat of dismissal for

failure to provide [] support [to the party in power]

unquestionably inhibits protected belief and association, and

dismissal for failure to provide support only penalizes its

exercise.” Elrod, 427 U.S. at 359. In other words, the right not

to have allegiance to the official or party in power itself is

protected under the First Amendment, irrespective of whether an

employee is actively affiliated with an opposing candidate or

party. See Branti, 445 U.S. at 519 (holding that continued

public employment “cannot properly be conditioned upon . . .

allegiance to the political party in control”).

Accordingly, we have held that a plaintiff can meet the

second prong of a prima facie political discrimination claim if

she suffers because of active support for a losing candidate

within the same political party. See, e.g., Robertson v. Fiore, 62

F.3d 596, 600–01 (3d Cir. 1995). In addition, we have ruled that

the First Amendment also protects an employee from

discrimination for failure to support the winning candidate. See

Bennis v. Gable, 823 F.2d 723, 731 (3d Cir. 1987) (stating that

“a citizen’s right not to support a candidate is every bit as

protected as his right to support one,” and quoting Roberts v.

United States Jaycees, 468 U.S. 609, 623 (1984), for the

proposition that “[f]reedom of association . . . plainly

presupposes a freedom not to associate”). Finally, and most

relevant here, we have suggested that the First Amendment

protects an employee’s failure to engage in any political activity

whatsoever. Bennis, 823 F.2d at 727 n.4 (“[W]e [] reject [the]

suggestion [] that plaintiffs’ alleged associations . . . necessarily

had to be political in order to be entitled to [F]irst [A]mendment

protection.” (emphasis in original)).3

Despite this protection for constitutionally protected First

Amendment activity, the District Court nonetheless concluded

that Galli had no constitutional interest at stake because she did

not affiliate with a political party and was apolitical. It held that

Galli’s silence was not a form of expression, as it was “simply

District courts in our Circuit similarly have concluded that

the First Amendment protects against discriminatory

employment action targeting public employees who are

politically neutral or apolitical. See Raniero v. Antun, 943 F.

Supp. 413, 422 (D.N.J. 1996) (holding that “disinclination to

become involved with [protected activity] is protected by the

First Amendment,” and citing Rutan, 497 U.S. at 67); Christy v.

Pa. Turnpike Comm’n, 904 F. Supp. 427, 430 (E.D. Pa. 1995)

(citing Bennis, 823 F.2d at 731, for the proposition that “the

right not to politically associate is [] protected”); Conjour v.

Whitehall Township, 850 F. Supp. 309, 317 (E.D. Pa. 1994)

(stating that “the fact that [a public employee] was not

politically active . . . is not dispositive of [his] First Amendment

claim” because Bennis interpreted the Elrod-Branti doctrine to

protect against “demotions or terminations carried out to make

room for political supporters”).

a lack of interest” in politics, which is unprotected by the First

Amendment. The Court also found it persuasive that Galli was

neither compelled to participate in the Democratic Party nor

forced to keep her true beliefs to herself.

This misreads our interpretation of the Elrod-Branti

doctrine. A citizen’s right not to support a candidate is just as

relevant for First Amendment purposes as her right to support

one. Bennis, 823 F.2d at 731. This applies to public employees

as well. Indeed, adverse employment actions taken against

public employees merely “to make positions available for

political supporters” could amount to political discrimination.

Id.; see also Conjour, 850 F. Supp. at 317. Therefore, contrary

to the conclusion of the District Court, Galli’s failure to support

the McGreevey campaign or the Democratic Party—even if

because of a general apathy toward, or disdain for, politics—is

constitutionally protected under the First Amendment.

That Galli was not pressured or forced to support the

McGreevey administration or the Democratic Party, or even to

silence her true beliefs, does not strip her constitutionally

protected interest vested here. “[T]here is no requirement that

dismissed employees prove that they, or other employees, have

been coerced into changing, either actually or ostensibly, their

political allegiance.” Branti, 445 U.S. at 517. In this context,

the District Court improperly imposed on Galli a coercion

requirement in order to find that she established a

constitutionally protected interest.

Our dissenting colleague faults our analysis on the

second prong for relying on “dicta” in decisions of the Supreme

Court and our Court. With regard to Elrod and Branti, however,

our colleague appears to quarrel with the breadth with which the

Supreme Court stated its own holdings. See Elrod, 427 U.S. at

350 (stating that the question presented was “whether public

employees who allege that they were discharged or threatened

with discharge solely because of their partisan political

affiliation or nonaffiliation state a claim for deprivation of

constitutional rights,” and holding that the plaintiff public

employees could not be discharged “solely for the reason that

they were not affiliated with or sponsored by the Democratic

Party”) (emphasis added)); Branti, 445 U.S. at 519 (reaffirming

Elrod’s plurality holding and holding that “the continued

employment of an assistant public defender cannot properly be

conditioned upon his allegiance to the political party in control

of the county government”) (emphasis added)).4 Even if what

we read as the holdings of Elrod and Branti could be

characterized as dicta and therefore not binding on us, such

dicta are highly persuasive. Indeed, with regard to statements

made by the Supreme Court in dicta, “we do not view [them]

lightly.” Official Comm. of Unsecured Creditors of Cybergenics

Corp. v. Chinery, 330 F.3d 548, 561 (3d Cir. 2003). Because

Interestingly, our colleague turns to statements in Justice

Stewart’s dissent in Branti (rather than the majority’s opinion)

in an attempt to define the scope of the Court’s holding. Dis.

Op. at 13.

the “Supreme Court uses dicta to help control and influence the

many issues it cannot decide because of its limited docket,”

failing to follow those statements could “frustrate the

evenhanded administration of justice by giving litigants an

outcome other than the one the Supreme Court would be likely

to reach were the case heard there.” Id. (quoting In re

McDonald, 205 F.3d 606, 612-613 (3d Cir. 2000)). To ignore

what we perceive as persuasive statements by the Supreme

Court is to place our rulings, and the analysis that underlays

them, in peril.

Likewise, while we are not bound by our Court’s prior

dicta, we give such statements respect consistent with their

persuasive value, see McLeod v. Hartford Life and Accident Ins.

Co., 372 F.3d 618, 628 (3d Cir. 2004), and “can, of course,

accord dicta as much weight as we deem appropriate,” New

Castle County v. Nation Union Fire Ins. Co. of Pittsburgh, 174

F.3d 338, 345 n. 7 (3d Cir. 1999). We acknowledge that our

Court in Bennis reached issues, including the nonaffiliation

issue, that were unnecessary to its conclusion in order to provide

guidance to the District Court on remand. 823 F.2d at 730.

Nonetheless, we deem its analysis persuasive and adopt the path

it suggests.

Dicta versus holding aside, Elrod, Branti and Bennis all

stand for the proposition that a public employee, not in a

policymaking position, may not be fired for failing to support

the political party or candidate in power. Galli has presented

some evidence that she did not politically support the

Democratic Party or Governor McGreevey. Whether her failure

to support is evidenced by a decision to support a competing

candidate or party, or by a decision to be apolitical and support

no candidate or party, it is constitutionally protected.5

Because political unaffiliation, or “failure to support” the

official or party in power, creates a constitutionally protected

interest under the First Amendment, the District Court erred in

finding that Galli did not establish this prong of her prima facie

case.

Our colleague’s suggestions that a “failure to support” must

be “close to a refusal” to support, Dis. Op. at 35, and that by

deciding to be apolitical Galli was not really “exercising” her

rights, Dis. Op. at 36, are inconsistent with well-settled First

Amendment understandings. As the Supreme Court stated in

Wooley v. Maynard, 430 U.S. 705 (1977):

[T]he right of freedom of thought protected by the First

Amendment against state action includes both the right to

speak freely and the right to refrain from speaking at all.

. . . A system which secures the right to proselytize

religious, political, and ideological causes must also

guarantee the concomitant right to decline to foster such

concepts.

Id. at 714 (emphasis added). To read the First Amendment in

the current context as protecting only party affiliation or active

political activity is, in our view, to read the constitutional

protection at issue too narrowly.

3. Substantial or Motivating Factor

Finally, Galli must establish that her constitutionally

protected conduct was a “substantial or motivating factor” in the

Commission’s adverse employment action. See, e.g., Stephens,

122 F.3d at 176. “[I]mplicit in th[is] prong is a requirement that

the plaintiff produce sufficient evidence to show [that] the

defendant knew of [the] plaintiff’s political persuasion,” which

requires proof of both knowledge and causation. Goodman, 293

F.3d at 664. Thus, Galli must produce evidence tending to show

that the Commission knew she was not a Democrat or supporter

of the administration and fired her as a result. Stephens, 122

F.3d at 177.

a. Knowledge

The District Court concluded that the Commission did

not know enough of Galli’s political affiliation to incur liability

because she did not make her political proclivities known and

her supervisors and colleagues did not make any inquiries about

her political views. But this inquiry does not depend on whether

Galli made her political views known to the Commission; rather,

it is whether the Commission was aware that Galli failed to

show public support for its officials and the political party in

power. Here, Galli has offered ample evidence to bolster her

claim that the Commission did not consider her to be a supporter

of the current administration or party in power. For example,

Galli’s deposition testimony indicates that, following her

termination, Commissioner Nissley allegedly stated that the

Commission was “letting Republicans go,” that “some Democrat

[obviously] wants the spot,” and that one has to “pay to play

with this administration.” App. at Pa-431–33. These statements

permit an inference that the Commission did not perceive Galli

to be a supporter of McGreevey’s administration or affiliated

with the Democratic Party.

Galli also has provided support for her claim that other

politically motivated terminations occurred alongside her own.

Indeed, Executive Director Ceberio acknowledged that he knew

that Galli, as well as the other ten members discharged from the

Commission, were all appointed or hired during Republican

administrations, which supports her allegation that employees

who were politically unconnected to the McGreevey

administration were forced out. In addition, Galli submits that

she and the other unaffiliated or Republican-appointed

employees who were discharged were replaced by eighteen

employees who were affiliated with the McGreevey campaign

or Democratic Party in some way. This supports the contention

that knowledge of Galli’s failure to support the administration

was a substantial or motivating factor in her (and the other

employees’) termination.

Viewing the facts in the light most favorable to Galli, as

we must at the summary judgment stage, a jury could conclude

that the Commission believed that she was not supportive of the

McGreevey administration. This satisfies all the knowledge

required for Galli to make her case.

b. Causation

Because the District Court found that the Commission

did not know of Galli’s lack of support for the McGreevey

administration, the Court did not consider the causation element

of the prima facie test. Before us, the Commission argues that

the cause for Galli’s termination was her poor performance, not

her lack of political affiliation. It singles out Galli’s ostensible

mishandling of a new museum project, which it alleges was

over-budget, delayed, and ultimately removed from Galli’s

scope of authority. In addition, the Commission submits that a

Commission-wide reorganization, initiated to increase the

organization’s efficiency and economic health, triggered the

terminations that Galli claims were politically motivated.

To demonstrate causation, Galli argues that her

successor, and those replacing her terminated colleagues, were

unqualified Democrats who were active in the McGreevey

campaign or the Democratic Party. She specifically highlights

Mercurio’s lack of qualifications for the position Galli held,

noting that Mercurio formerly was a tax attorney with no

background in environmental issues. What Mercurio did do,

however, was run on the Democratic ticket twice, at the urging

of the party, in races that she was widely expected to lose. In

addition, Galli points out the odd timing of her discharge and

Mercurio’s hiring, alleging that Mercurio was offered Galli’s job

before the latter was even informed of her termination. Galli

also disputes the Commission’s allegations of poor work

performance, claiming that she never received negative

feedback from her superiors, even at the time of termination;

indeed, as mentioned above, the Environmental Education

Division’s work under Galli’s leadership garnered an award of

excellence that was, ironically, bestowed shortly after she was

fired. Finally, Galli submits that the supposed reorganization of

the Commission, allegedly undertaken to promote economic

efficiency, was not only curiously undocumented, but also

undermined by its decision to hire even more employees

(eighteen) than it fired (eleven) in the name of streamlining.

Once again, viewing the facts in the light most favorable

to Galli, it would be premature to grant the Commission

summary judgment on the causation issue. Because Galli’s

evidence contradicts the Commission’s allegation that her work

performance was subpar, and because she offers evidence from

which a reasonable juror could conclude that her lack of

political affiliation was a substantial factor in her termination,

Galli has alleged enough to proceed with her causation theory

and, therefore, has established the third prong of her prima facie

claim.6

We are perplexed by our colleague’s suggestion that our

decision somehow discourages political participation. He posits

that an individual may decide not to join a political party

because government officials may be reluctant to hire that

IV. Conclusion

We hold that the First Amendment protects politically

neutral or apolitical government employees from political

patronage discrimination. In addition, we conclude that Galli

put forward sufficient evidence to create an issue of material

fact regarding whether the Commission knew of her political

unaffiliation and fired her because of it. We, of course, make no

prediction as to whether Galli will succeed in her claim, but we

are satisfied that she has presented a prima facie case. As a

result, we vacate the District Court’s grant of summary

judgment to the Commission, as well as to Commissioner Levin,

and remand this case for further proceedings.

person to replace an apolitical employee for fear of litigation.

Such fear and reluctance would be unfounded. It is not enough

for a non-policymaking apolitical employee simply to show that

she was replaced by someone with a party affiliation; to make

a prima facie case, an employee must present evidence that her

failure to support the party or candidate in power was a

“substantial or motivating factor” in the adverse employment

decision. Galli has sustained that initial burden in this case.

Galli v. New Jersey Meadowlands Commission

No. 05-4114

BAYLSON, District Judge, dissenting.

I respectfully dissent from the majority’s opinion and

would affirm the grant of summary judgment to the

Defendants, because controlling decisions of the Supreme

Court, and prior decisions of this Court, do not compel the

result reached by the majority. The decision in this case is an

unwise extension of the scope of constitutionally-based but

judicially created protection from politically motivated

adverse employment decisions, to which state employees are

entitled.

It is undisputed that Galli did not have any political

party affiliation, and kept her political beliefs, if any, to

herself. Under these facts, to grant Galli the same protection

against adverse employment action that prior decisions have

granted to politically active public employees, ignores the

fundamental nature of the constitutional right being protected.

Under the holdings of the Supreme Court and this Court, a

public employee who exercises his or her political beliefs may

not be punished for doing so. The majority, however, relies

exclusively on dictum. Indeed, in this area of the law, like a

cloud enshrouding a skyscraper, dictum has disguised the

actual holdings of the case precedents. The public employee

who chooses to remain non-political, or apolitical, or silent,

has, by definition, not “exercised” political rights and

therefore cannot claim the same constitutional protection from

adverse employment decisions.

In the pages that follow, I will first demonstrate that

the specific holdings of the Supreme Court’s precedents, and

our own precedential opinions in this area, do not require the

result reached by the majority, and that the District Court’s

grant of summary judgment was correct under the undisputed

facts and controlling law. I will then show that the majority’s

extension of current law will pose many difficulties to

litigants and district judges trying to apply this new rule, and

that it is not wise on policy grounds.

I recognize that the result of this analysis will

necessarily appear unfair to the discharged employee.

However, the result reached by the majority, which essentially

promises lifetime job protection to any apolitical state

employee who is able to persuade a jury that an adverse

employment decision was a result of politics – however vague

that standard sounds, and it is a vague standard – puts courts

in the unenviable, and improper, position of delving into First

Amendment activity and beliefs, and whether such protected

conduct was the motive for an employment action. Although

Congress or a state legislature could clearly give courts that

power, we judges should not give it to ourselves.

I. The Majority’s Result Is Not Required by

Precedent

A. Supreme Court Decisions

The Supreme Court first outlined a balancing test

weighing the First Amendment rights of government

employees against the State’s interest as an employer in

Pickering v. Board of Education, 391 U.S. 563 (1968). Of

importance was the citizen’s interest, not just an abstract

interest in the freedom to speak, but rather the freedom of

public employees to engage in open public debate on subjects

of public concern balanced against the government’s interest

in the effective and efficient provision of public services. Id.

at 568. In Pickering, a public school teacher in Illinois was

dismissed after writing a letter critical of the school board and

superintendent for the handling of a bond issue and

subsequent allocation of financial resources between

academic and sports programs, and sued, alleging a violation

of civil rights. Id. at 566. Recognizing the impracticality of

constructing a general standard, the Court nevertheless

indicated the “general lines along which an analysis of the

controlling interests should run.” Id. at 569.

The Court first looked to what impact Pickering’s letter

may have had on the efficient running of the schools. Two

important factors weighed against the school board on this

point. First, to the extent the letter contained truthful

statements on matters of public concern, it criticized the

School Board and the superintendent, people with whom

Pickering had no regular direct communication. As such,

there was no threat to workplace discipline or harmony

resulting from his criticism. Thus, that the statements were

critical in tone could not justify Pickering’s termination. Id.

at 570. Second, as to the false statements in the letter, the

Court noted the apathy with which the public greeted it. Id. at

570-571. Rejecting the School Board’s claim that the false

statements were harmful per se,7 the Court expressly

distinguished between “the Board members’ own interests

with that of the schools.” Id. at 571. With this in mind, the

Court characterized Pickering’s criticism as a difference of

opinion on how public money should be spent on the public

school. Id. Moreover, since the letter was published after the

bond issue had been approved, Pickering airing his opinion

Just as the Court disagreed with Pickering that the normal

defamation standard should apply to him, only holding him

liable for statements which he knew to be false, or the falsity of

which he recklessly disregarded, Pickering, 391 U.S. at 569, the

Court also did not credit the School Board’s analogy to the law

of libel. Id. at 570-571. While the reasoning for this is only

expressed in the discussion of Pickering’s defamation argument,

it seems to apply to both situations; namely, the competing

interests of public employee as citizen and government as

employer must be balanced.

could not have prevented the School Board from acquiring

and using the funds as it saw fit. Id.

After reviewing the case from the perspective of the

School Board’s interests as employer – and finding little to

support the Board’s position – the Court moved to the other

side of the scale: the constitutional and democratic values at

stake in limiting speech. Here, the Court focused on the value

the public derives from allowing open debate. When it comes

to the administration of public schools, “free and open debate

is vital to informed decision-making by the electorate.” Id. at

571-572. Moreover, “Teachers are, as a class, the members of

a community most likely to have informed and definite

opinions as to how funds allotted to the operations of the

schools should be spent.” Id. at 572. Thus, it is the interest of

the public in free speech that determines the balance in the

Pickering test. Id. (“Accordingly, it is essential that [teachers]

be able to speak out freely on such questions without fear of

retaliatory dismissal.”)

The first Supreme Court case specifically addressing

allegedly politically motivated dismissals is Elrod v. Burns,

427 U.S. 347 (1976). The district court had granted a motion

to dismiss the complaint under Rule 12(b)(6), so the factual

setting was confined to the well-pleaded allegations of the

complaint. The facts alleged in the complaint concerned

employees within the Cook County, Illinois Sheriff’s Office,

who claimed that they were all Republicans and had been

discharged, or threatened with discharge, because the

incoming elected Sheriff of Cook County was a Democrat,

and in accordance with long-standing practice, when the

elected Sheriff was of a different political party than his

predecessor, all the employees not of the same political party

as the Sheriff were discharged.

Although Elrod is often cited for the proposition that

political patronage dismissals are unconstitutional under the

First and Fourteenth Amendments, the actual holding is more

limited. The plurality opinion8 first notes that the question to

be decided was as follows:

This case presents the question whether public

employees who allege that they were discharged

or threatened with discharge solely because of

their partisan political affiliation or

nonaffiliation state a claim for deprivation of

constitutional rights secured by the First and

Fourteenth Amendments.

Id. at 349. However, it can be immediately seen that dictum,

with the reference to “nonaffiliation,” has crept into the

plurality opinion, because it is clear from the facts that all of

the plaintiffs alleged that they were Republicans, and thus

The plurality opinion in Elrod was authored by Justice

Brennan, on behalf of himself, and Justices Marshall and White.

admittedly had political affiliation.9

Justice Brennan begins his analysis by identifying “the

constitutional limitations implicated by a challenged

governmental practice.” Id. at 355. As in Pickering, although

not explicitly relying on that decision for the point, the import

of restrictions on belief and association lies in the fact that

“[t]he free functioning of the electoral process also suffers.”

Elrod, 427 U.S. at 356 (“Patronage thus tips the electoral

process in favor of the incumbent party, and where the

practice’s scope is substantial relative to the size of the

electorate, the impact on the process can be significant.”).

Thus, the reason for safeguarding public employees’ rights to

free speech and association derive from “our profound

national commitment to the principle that debate on public

issues should be uninhibited, robust and wide-open.” Id. at

357 (quoting N. Y. Times Co. v. Sullivan, 376 U.S. 254, 270

(1964)).

The plurality opinion recited these facts:

In December 1970, the Sheriff of Cook County, a

Republican, was replaced by Richard Elrod, a

Democrat. At that time, respondents, all

Republicans, were employees of the Cook County

Sheriff’s Office. They were non-civil-service

employees and, therefore, not covered by any

statute, ordinance, or regulation protecting them

from arbitrary discharge.

427 U.S. at 350.

The plurality’s opinion looked at this practice of

political patronage, finding it unnecessary to efficient

governance and an affront to democratic values:

In summary, patronage dismissals severely

restrict political belief and association. Though

there is a vital need for government efficiency

and effectiveness, . . . [t]hat interest can be fully

satisfied by limiting patronage dismissals to

policymaking positions. . . . More

fundamentally, however, any contribution of

patronage dismissals to the democratic process

does not suffice to override their severe

encroachment on the First Amendment

freedoms.”

Id. at 372-373.

However, it is important to recall that the above

statement only represented the views of a three-judge

plurality. Justice Stewart, joined by Justice Blackmun,

concurred in the judgment in a five-sentence opinion, as

follows:

Although I cannot join the plurality’s wide-

ranging opinion, I can and do concur in its

judgment. This case does not require us to

consider the broad contours of the so-called

patronage system, with all its variations and

permutations. In particular, it does not require

us to consider the constitutional validity of a

system that confines the hiring of some

governmental employees to those of a particular

political party, and I would intimate no views

whatever on that question. The single

substantive question involved in this case is

whether a nonpolicymaking, nonconfidential

government employee can be discharged or

threatened with discharge upon the sole ground

of his political beliefs. I agree with the plurality

that he cannot. Perry v. Sindermann, 408 U.S.

593, 597-598 (1972).

Elrod, 427 U.S. at 374-375 (Stewart, J., concurring).10

Elrod’s broad plurality statement, “we hold, therefore,

that the practice of patronage dismissal is unconstitutional

under the First and Fourteenth Amendment,” is not the

holding of a majority of the Court. In any event, the

discussion shows that the plurality was focusing on

individuals whose political views were well known and/or had

engaged in political activity.

Perry holds that a state government may not deny a benefit

to a person on a basis which infringes a constitutionally-

protected interest.

Elrod recognized that there must be a distinction for

policymaking employees, which exception itself points out

necessary limits of the judicial exercise into defining the

scope of the constitutional right being protected. The

exception carved out for policymaking officials provides the

balancing-test formulation of the rule. Clearly weighing some

governmental interests and allowing patronage-based hiring

and firing for policymaking employees against the personal

constitutional interests of those employees, the plurality

stated, “The justification is not without force, but is

nevertheless inadequate to validate patronage wholesale.

Limiting patronage dismissals to policymaking positions is

sufficient to achieve this governmental end.

Nonpolicymaking individuals usually have only limited

responsibility and are therefore not in a position to thwart the

goals of the in-party.” Id.11

Next, in Branti v. Finkel, 445 U.S. 507 (1980), a

majority of the Court revisited and relied on both the plurality

and concurring opinions in Elrod. Plaintiffs were two

assistant public defenders who brought an action under the

civil rights laws alleging that they were about to be

I agree with the District Court and the majority that Plaintiff

had presented sufficient evidence to require a trial on the issue

of whether her position was policymaking or not. However, that

question would not be reached if the district court’s granting of

summary judgment was proper on the grounds that plaintiff, as

apolitical, was not entitled to protection under governing law.

discharged solely because they were Republicans. The

district court entered a temporary restraining order to preserve

the status quo, and then took evidence and made detailed

findings of fact, following which it permanently enjoined the

Public Defender of Rockland County, New York from

terminating or attempting to terminate the plaintiffs’

employment upon the sole grounds of their political beliefs.

The district court made a specific finding that one plaintiff

had been regarded as a Republican, notwithstanding a formal

change of registration, and found that the plaintiffs “had been

selected for termination solely because they were Republicans

and thus did not have the necessary Democratic sponsors.”

See 445 U.S. at 510 (citing Finkel v. Branti, 457 F. Supp.

1284, 1293 (S.D.N.Y. 1978)).

In Branti the district court had found:

The sole grounds for the attempted removal of

plaintiffs were the facts that plaintiffs’ political

beliefs differed from those of the ruling

Democratic majority in the County Legislature

and that the Democratic majority had

determined that Assistant Public Defender

appointments were to be made on political

bases.”

457 F. Supp. at 1293 (cited at 445 U.S. at 510).

The six justice majority in Branti also relied on Perry

v. Sindermann, as well as Pickering, and noted the two

different opinions which constituted a majority of the Court in

Elrod. The Court analyzed the contentions of the Public

Defender which attempted to limit the holding of Elrod, but

held that under Elrod, considering the opinions of both Justice

Brennan and Justice Stewart, “the First Amendment prohibits

the dismissal of a public employee solely because of his

private political beliefs.” Branti, 445 U.S. at 517-518. The

Court then stated:

In sum, there is no requirement that dismissed

employees prove that they, or other employees,

have been coerced into changing, either actually

or ostensibly, their political allegiance. To

prevail in this type of an action , it was

sufficient, as Elrod holds, for respondents to

prove that they were discharged “solely for the

reason that they were not affiliated with or