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.
