Anne Galli v. New Jersey Meadowlands Commission Susan Bass Levin, in Her Official and Individual Capacities

490 F.3d 265, 26 I.E.R. Cas. (BNA) 324, 2007 U.S. App. LEXIS 14473, 2007 WL 1760662

• Court: Court of Appeals for the Third Circuit
• Decided: June 20, 2007
• Docket: 05-4114
• Status: Published

Opinions

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 Ce-berio 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 Niss-ley, 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 Mereu-rio’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. § 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2505).

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, 84 S.Ct. 710, 11 L.Ed.2d 686 (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, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990).

The Court first clarified these constitutional constraints in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (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, 96 S.Ct. 2673 (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, 100 S.Ct. 1287. 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, 96 S.Ct. 2673, and Branti 445 U.S. at 514-15, 100 S.Ct. 1287). 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, 110 S.Ct. 2729.

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 Commission ² 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 Edue. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). We discuss each of these matters separately.

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, 96 S.Ct. 2673. 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 decisionmak-ing 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 policymak-ing 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, 96 S.Ct. 2673. 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, 100 S.Ct. 1287 (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 prim a 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, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984), for the proposition that “[flreedom 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 [Ajmendment 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 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, 100 S.Ct. 1287. 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, 96 S.Ct. 2673 (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 no-naffiliation 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, 100 S.Ct. 1287 (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 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.

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.

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. “[implicit in th[is] prong is a requirement that the plaintiff produce sufficient evidence to show [that] the defendant knew of [the] plaintiffs 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 McGree-vey’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.

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. National 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

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 fade 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 Mercu-rio’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 •

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 fa-cie 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.

1 . Although Nissley denies making this statement, for the purpose of summary judgment, we view the evidence in the light most favorable to Galli.

2 . 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.

3 . 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, 110 S.Ct. 2729); 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”).

4 . 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 282.

5 . Our colleague's suggestions that a “failure to support” must be “close to a refusal” to support, Dis. Op. at 290, and that by deciding to be apolitical Galli was not really "exercising” her rights, Dis. Op. at 291, are inconsistent with well-settled First Amendment understandings. As the Supreme Court stated in Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (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, 97 S.Ct. 1428 (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.

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 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.