Full opinion text
Opinion KEETON, District Judge. TABLE OF CONTENTS I. PROCEDURAL BACKGROUND AND OUTCOME....................................280 A. THE COMPLAINT AND PRETRIAL PROCEEDINGS............................280 B. THE JURY TRIAL............................................................281 C. THE JUDGMENT.............................................................281 D. POST-JUDGMENT MOTIONS..................................................281 E. OUTCOME ...................................................................281 II. STRUCTURE OF THE OPINION...................................................282 III. PENDING PROCEDURAL MOTIONS...............................................282 IV. MUNICIPAL LIABILITY...........................................................283 A. PLAINTIFF’S CLAIMS OF JOINT AND SEVERAL LIABILITY..................283 B. FOR WHOSE CONDUCT IS A MUNICIPALITY LIABLE?.......................284 V. QUALIFIED IMMUNITY ..........................................................286 A QUALIFIED IMMUNITY AS A SHIELD FOR A PUBLIC OFFICIAL .............286 B. A PREREQUISITE TO REACHING QUALIFIED IMMUNITY....................286 VI. FIRST AMENDMENT CLAIMS.....................................................287 A. INTRODUCTION .............................................................287 B. BALANCING TESTS FOR FIRST AMENDMENT CLAIMS.......................287 C. APPLYING A BALANCING TEST WHILE DECIDING WHETHER CONSTITUTIONAL RIGHTS ARE CLEARLY ESTABLISHED.................288 D. EMPLOYEE STATUS AND ADVERSE EMPLOYMENT DECISIONS .............289 E. MATTERS OF PUBLIC AND PRIVATE CONCERN .............................290 F. APPLYING QUALIFIED IMMUNITY TO FIRST AMENDMENT CLAIMS.......293 1. MORE ABOUT PRECEDENTS ON BALANCING.............................293 2. MOTIVATING FACTORS..................................................294 3. AN ALTERNATIVE DETERMINATION FAVORING ALLOWANCE OF THE FIRST AMENDMENT CLAIM AGAINST DEFENDANT CRONIN................................................................295 VII. CLAIMS OF HARM TO REPUTATION..............................................295 VIII.CLAIMS OF INTERFERENCE WITH ADVANTAGEOUS RELATIONSHIPS...........297 IX. CLAIMS FOR EMOTIONAL DISTRESS.............................................298 X. MORE ABOUT DEFENDANT CRONIN’S POST-JUDGMENT MOTIONS ..............300 A. MOTION FOR NEW TRIAL....................................................300 B. MOTION FOR JUDGMENT AS A MATTER OF LAW............................300 C. REMITTITUR................................................................300 XI. ATTORNEY FEES AND COSTS ....................................................300 ORDER..................................................................................301 I. Procedural Background and Outcome A. The Complaint and Pretrial Proceedings Plaintiff Helen Lynch filed her complaint in state court (Middlesex Superior Court) on January 12, 1996. The defendants removed the case to federal court (Docket No. 1, filed January 29,1996). The five-count complaint in this case originally named the City of Boston, Kelley Cronin, Ann Maguire, and John Greeley as defendants. By stipulation of dismissal (Docket No. 37, filed May 29,1997), the parties agreed to the dismissal of John Greeley as a defendant. B. The Juiy Trial This civil action came before thé court for a trial by jury as to all claims remaining after dismissal as to John Greeley. By rulings during trial, the court determined as a matter of law some issues bearing on claims and defenses, ordered that the ease be submitted to the jury in two phases, and ordered that in each phase the verdict be in the form of answers to special questions under Rule 49(a) of the Federal Rules of CM Procedure. The jury returned a verdict answering in favor of the plaintiff questions bearing on Counts I and V and finding $24,000 in damages for harm to plaintiff’s reputation because of the termination and nonrenewal of her relationship with the City of Boston, $12,000 in damages for injury to reputation because of her removal from the Mayor’s Hunger Commission, $4,000 in emotional distress damages because defendant Cronin instructed plaintiff to “clear out her desk,” and $10,000 in punitive damages for violating plaintiff’s First Amendment rights. C. The Judgment On October 16, 1997, the court entered Final Judgment (Docket No. 158) for the plaintiff against Kelley Cronin on Count I based on a First Amendment violation and on Count V based on intentional interference with an advantageous relationship. The judgment was for the defendant Cronin on the verdict of the jury as to Counts II, III, and IV, for the defendant Ann Maguire, and for the defendant City of Boston. D. Post-Judgment Miotions Now before the court are: (1) Defendant Kelley Cronin’s Motion for Judgment as a Matter of Law or in the Alternative for a New Trial or Remittitur (Docket No. 159, filed October 27, 1997) and Memorandum in Support (Docket No. 160, filed October 27,1997); (2) Plaintiff’s Motion to Alter or Amend Judgment Under Rule 59(e) with Rule 7.1 Certificate (Docket No. 161, filed October 27, 1997) and Plaintiff’s Memorandum of Law in Support of Her Motion to Alter Amend Judgment (Docket No. 162, filed October 27, 1997); . (3) Plaintiffs Application for Attorney Fees and Costs (Docket No. 163, filed October 30, 1997) and Plaintiff’s Memorandum in Support of Her Application for Attorney Fees and Costs (Docket No. 164, filed October 30,1997); (4) Response by Kelley Cronin in Opposition to Motion to Amend Judgment Order (Docket No. 169, filed October 31, 1997); (5) Plaintiff’s Motion to File Reply to Opposition to Plaintiffs Motion to Alter or Amend Judgment (Docket No. 172, filed November 11,1997); ; (6) Plaintiff’s Emergency Motion for Leave to Supplement Opposition to Motion for Judgment as a Matter of Law or in the Alternative for a New Trial or Remittitur (Docket No. 173, filed November 11, 1997); (7) Plaintiff’s Supplemental Opposition to Defendant’s Motion for Judgment as a Matter of Law or in the Alternative for a New Trial or Remittitur (Docket No. 174, filed November 12,1997); (8) Defendant Kelley Cronin’s Opposition to Motion for Attorney Fees (Docket No. 175, filed November 13,1997); (9) Plaintiffs Motion to Add Addendum to Her Emergency Motion for Leave to Supplement Opposition (Docket No. 176, filed November 17,1997); and (10) Plaintiff’s Assented-To Motion for Leave to File a Reply Brief in Support of Her Application for Attorneys’ Fees and Costs (Docket No. 179, filed November 26, 1997). E.Outcome For the reasons explained ini this opinion, defendant Kelley Cronin’s motion for judgment notwithstanding the verdict is sustained in part, on grounds of qualified immunity, and that part of the judgment against her on the First Amendment claim, including punitive as well as compensatory damages, is vacated. Having made these ruhngs, the court orders entry of an amended judgment in favor of defendant Cronin on Count I. The amended judgment still includes the award for plaintiff against defendant Cronin on Count V (for intentional interference with plaintiffs advantageous relationship). Plaintiffs motion for attorney fees is denied. In all other respects the motions for modification of the judgment are denied. ' II. Structure of the Opinion This opinion addresses procedural motions in Part III. In other Parts, it addresses substantive issues in sequence. Part IV addresses key issues of municipal liability. Part V concerns application of the law of qualified immunity to plaintiffs claims against individual defendants. Part VI addresses whether qualified immunity bars recovery for a First Amendment violation. Part VII addresses whether qualified immunity bars recovery for harm to reputation. Part VIII addresses defendant’s challenge to the judgment entered for plaintiff on Count V (intentional interference with an advantageous relationship). Part IX addresses plaintiffs request to make the finding of intentional interference with an advantageous relationship a basis for the emotional distress award of damages. Part X addresses defendant Cronin’s remaining arguments for judgment as a matter of law, a new trial, and remittitur. Part XI addresses plaintiffs motion for attorney fees. III. Pending Procedural Motions Plaintiff filed a Motion for Leave to File Reply to Opposition to Motion to Alter or Amend Judgment (Docket No. 172, filed November 11, 1997). This motion is ALLOWED, but only to the extent and subject to the conditions explained here. Plaintiff filed an Assented-To Motion for Leave to File a Reply Brief in Support of Her Application for Attorneys’ Fees and Costs (Docket No. 179, filed November 26, 1997). This motion is ALLOWED, but only to the extent and subject to the conditions explained here. The parties filed a Joint Motion to Extend Time to Reply (Docket No. 170) seeking to extend to December 10, 1997, the date by which the plaintiff had to respond to Motion by Kelley Cronin for Judgment as a Matter of Law or in the Alternative for a New Trial or Remittitur, and by which the defendant had to respond to Motion by Helen A Lynch for Attorney Fees. By a Memorandum & Order issued on November 10, 1997 (Docket No. 171), the court denied this motion. The plaintiff filed her Opposition to Motion by Kelley Cronin for Judgment as a Matter of Law or in the Alternative for a New Trial or Remittitur (Docket No. 180, filed November 11, 1997). In addition, the plaintiff filed an Emergency Motion for Leave to Supplement Opposition to Motion for Judgment as a Matter of Law (Docket No. 173, filed November 11, 1997), and filed a Motion to Add Addendum to Her Emergency Motion for Leave to Supplement Opposition (Docket No. 176, filed November 17,1997). To the extent that a trial court has authority to extend deadlines for post-judgment motions, including reply deadlines, I conclude that the authority is for discretionary extensions rather than extensions that are mandatory on request. In denying the Joint Motion to Extend Filing Deadlines, the court found that “[t]he parties had ample opportunity for research and investigation before trial and have not shown any good cause for being allowed to raise new issues after trial and verdict.” See Memorandum & Order of November 10, 1997 (Docket No. 171). Plaintiffs counsel has argued that the court misled counsel to believe the court would allow an extension of time for replies. The record of the conference in which plaintiffs counsel asserts the court misled her, however, shows clearly that the court called attention to its concern about authority to allow new issues to be raised after trial, and the possibility that a purported extension of time for that purpose might be treated on appeal as unauthorized. Transcript, Conference of October 15, 1997, pages 9-13. The court’s promise was, Now, once you’ve filed whatever motions you wish to file, both of you, I will do my best to be reasonable, but only reasonable and not generous, in allowing time for whatever submissions in support of an opposition in the way of memoranda of authorities or whatever. Id. at 11. This promise did not extend to authorizing any party to raise new issues long after all issues relevant to the outcome should have been raised, even before trial commenced. Timely disclosure of contentions in advance of trial is needed in order to provide fair opportunity to an opposing party to prepare before trial to respond and not be confronted for the first time after trial with new contentions or new grounds for contentions previously stated with such generality that no reasonable notice had been given that they would be made. In view of these circumstances, and in the interests of fair protection against untimely assertions of new contentions, plaintifPs motions to file supplemental oppositions (Docket Nos. 173 and 176) are allowed only to the extent and on the conditions explained in this paragraph. I have considered these filings solely to assure myself that they do not present a contention that, if rejected, would result in a fundamental miscarriage of justice. See Fed.R.Civ.P. 15(a) (leave to amend granted when “justice so requires”). A trial court does have discretion in many circumstances to allow departures from ordinary procedure to avoid a miscarriage of justice. See, e.g., Johnston v. Holiday Inns, Inc., 595 F.2d 890, 894 (1st Cir.1979) (recognizing the possibility of circumstances “so compelling as virtually to insure success of the contention,” or arguments so compelling that they “must be ruled upon to avoid a miscarriage of justice”); see also United States v. Roberts, 119 F.3d 1006, 1014 (1st Cir.1997) (recognizing First Circuit law on preclusion that bars errors not objected to at trial unless fundamental fairness would be undermined); Scarfo v. Cabletron Sys., Inc., 54 F.3d 931, 941 (1st Cir.1995) (noting that the plain evidence rule should be applied only to prevent a clear miscarriage of justice); Aetna Casualty Surety Co. v. P & B Autobody, 43 F.3d 1546, 1571 (1st Cir.1994) (concluding no miscarriage of justice occurred as a result of harmless errors); Davet v. Maccarone, 973 F.2d 22, 29 (1st Cir.1992), discussed in Part X below. A court must take into account also, however, that “[a] vigorously enforced timeliness principle is fundamental both to fair process and to avoiding adverse effect on substantial rights of the parties.” Scarfo, 54 F.3d at 940. Haying considered all the submissions tendered for filing, I have concluded that they are in substance no more than reformulations of arguments previously made and do not call attention to any issue material to the outcome and not previously considered. Moreover, as was true of the earlier Joint Motion to Extend Filing Deadlines (Docket No. 170) and the Emergency Motion for Leave to Supplement Opposition (Docket No. 173), “[t]he parties had ample opportunity for research and investigation before trial and have not shown any good cause for being allowed to raise new issues after trial and verdict.” Memorandum & Order of November 11,1997 (Docket No. 171). IY. Municipal Liability A. PlaintifPs Claims of Joint and Several Liability Plaintiff requests that the court alter judgment and hold the City of Boston jointly and severally liable, along with defendant Cronin/ for the compensatory damages awarded under Count I (the First Amendment violation). The label “joint and several” liability, standing alone, might be interpreted as suggesting that the City should be held liable on the ground that “joint and several” liability is a theory developed in the common law and the law of Massachusetts, independent from other theories of liability in tort, and that the court should hold the City of Boston liable under this theory, regardless of whether or not this or higher courts determine that individual defendants are not liable. Under such a theory, for example, liability might be imposed on the City by extending the label “joint” to apply in some circumstances, even though only one person (or entity, such as a corporation or municipality) is hable. See generally Restatement (Third) of Torts §§ 20, -24, -27, 28, 50-52 (Council Draft No. 2, November 13, 1997). Any contention that the law of Massachusetts recognizes an independent theory of “joint and several” liability, if made, should be rejected. But plaintiffs submissions, closely read, do not appear to be using the label “joint” for any reason other than to reinforce the point that plaintiff continues to assert liability of defendant Cronin individually and argue that the City is jointly liable with any employee who acted on behalf of the City.' Moreover, rejection of the independent theory and the label associated with it does not preclude the possibility that the City alone may be held liable (“solely” rather than “jointly”) in circumstances in which all the elements of joint and several liability of the City and one of its employees or independent contractors existed but for the applicability of qualified immunity to protect the employee or independent contractor. See Restatement (Second) of Torts § 880 (1977). For this reason, potential grounds of municipal liability in this ease must be examined in more detail. Part IV.B, below, and later Parts of this opinion consider potential grounds of liability of the City both in the event that qualified immunity protects the individual defendants and in the event that it does not. B. For Whose Conduct Is a Municipality Liable? Because defendant Cronin was the final decisionmaker with respect to employment decisions on behalf of the City for the Emergency Shelter Commission, plaintiff contends that Cronin necessarily was acting on behalf of the City in matters as to which the court ordered judgment on the verdict of the jury against Cronin (Cronin’s acting in retaliation against Lynch because of Lynch’s telephone call of January 12, 1994). Plaintiff notes in her memorandum in support of her motion that if a “municipal decisionmaker possesses final - authority to establish municipal policy with respect to the action ordered,” municipal liability may be found. Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 1299, 89 L.Ed.2d 452 (1986). Plaintiff’s argument fails, however, to respond adequately to well settled qualifications of the scope of municipal liability. The Supreme Court of the United States has “consistently refused to hold municipalities liable under a theory of respondeat superior” as that concept is ordinarily understood and applied in tort law generally, and in the law of constitutional torts particularly. Board of County Comm’rs v. Brown,—U.S.-,-, 117 S.Ct. 1382, 1388, 137 L.Ed.2d 626 (1997); see also Monell v. Dept. of Social Servs., City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). In order to hold a municipality liable under a 42 U.S.C. § 1983 claim, the plaintiff must identify a municipal policy or custom that caused the plaintiff’s injury. See Monell, 436 U.S. at 694, 98 S.Ct. at 2037. It is true, as plaintiff contends, that the law has been clear since Pembaur that a single act by a municipal policymaker may give rise to a municipal policy. Pembaur, 475 U.S. at 480, 106 S.Ct. at 1298 But plaintiff’s heavy reliance on Pembaur, like that of the plaintiff in Brown, “blurs the distinction between cases that present no difficult questions of fault and causation and those that do.” Brown, — U.S. at-, 117 S.Ct. at 1389. The present case does involve difficult questions of fault arid causation with respect to some of the plaintiff’s claims, and it also involves additional difficulties that bear upon the elements of a prima facie showing of legal responsibility of both the municipality and the individual municipal officials, Kelley Cronin and others, and upon the qualified immunity that may be invoked by the individually sued officials. One settled proposition'is that a mere showing of discretion to make a decision (such as a hiring or firing decision), is not necessarily sufficient to constitute a showing of a “final government policy” that supports municipal liability. See Pembaur, 475 U.S. at 483 n. 12, 106 S.Ct. at 1299 n. 12. The Supreme Court did not veer from this line of analysis in its most recent opinion on the topic. The Court stated that merely showing conduct attributable to the municipality is not enough; rather the plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the moving force behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights. Brown, — U.S. at-, 117 S.Ct. at 1388. The opinion of the Court in Brown observes: “Where a court fails to adhere to rigorous requirements of culpability and causation, municipal liability collapses into re-spondeat superior liability.” Id. — U.S. at -, 117 S.Ct. at 1394. In the present case, the problem with plaintiffs argument (especially on the First Amendment claim) is not that it collapses municipal liability into classic respondeat superior liability (as in Brown), but that it would expand municipal liability beyond the liability of private employers by making the municipality liable for intentional torts for which the private employer would not be liable because the employee had stepped outside the scope of employment to wreak private vengeance and retaliation. Indeed, citing Pembaur, plaintiff argues that a municipality's “vicarious” liability is more expansive than “respondeat superior” liability, public or private. Plaintiff’s Reply to Defendant’s ■ Motion to Alter or Amend Judgment at p. 2 (attached to Docket No. 172). To support liability of the scope plaintiff claims here, the court would have to conclude that the municipality’s granting authority to a department head to hire, fire, supervise, and discipline employees and independent contractors to do work within that designated department is authority to set a policy of retaliation against free speech within that department. Even Justice Souter’s dissent in Brown, interpreting' precedent to further municipal liability to an extent contrary to the opinion of the Court, and Justice Breyer’s dissent in Brown (joined by Justices Stevens and Ginsburg), suggesting a basic reexamination and reconsideration of municipal liability, would reach this case only if the interpretations of present doctrine or the refashioned doctrine made municipalities liable more broadly to include liability for more of the intentional torts of employees and independent contractors than private enterprise bears under present law. In some circumstances, it is true, statutory mandates support liability “to the same extent” as a'private individual. See, e.g., Mass. Gen. L. ch. 258, § 2 (“Public employers shall be liable ... to the same extent as a private individual under the same circumstances”); see also Meyers v. Grubaugh, 242 Kan. 716, 750 P.2d 1031, 1037 (1988) (finding no duty imposed on state where no duty would be imposed on private employer). But ordinarily the law does not impose on a governmental entity broader liability for more of the intentional torts of employees and independent contractors than private enterprise bears under present law. As illustrated in the Restatement of Agency, and in numerous cases citing it, a private enterprise has liability of substantially less scope for harm caused intentionally than for harm caused negligently or otherwise accidentally. See Restatement (Second) of Agency § 228 (1965) (master not subject to liability for torts of servants acting outside scope of employment); Id. at § 245 cmt. f (servant acting in outrageous manner or inflicting disproportionate punishment indicates action outside the scope of employment). Here', the jury found that defendant Cronin had the final authority to make hiring and firing decisions on behalf of the City. See Phase One Verdict Form, Part I, Question 6. Also, the evidence adduced at trial indicated that defendant Cronin’s personnel decisions were not subject to review. . Defendant Cronin was a final municipal decisionmaker within the scope of this delegated authority. It does not follow, however, that her authority extended to establishing a special policy for her department, different from that of other departments and from that of the City government as a whole, regarding free speech. This , point applies both to issues regarding the elements of a showing of a prima facie basis of liability,' discussed in Part VI below, and to the issue of qualified immunity, discussed in Part V below. V. Qualified Immunity A. Qualified Immunity as a Shield for a Public Official Qualified immunity is not a “defense” in the ordinary sense, but an immunity from suit. See Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985). Qualified immunity shields a public official from tort liability for an administrative act if she is engaged in the exercise of a discretionary function, or she is privileged and does not exceed or abuse the privilege. See Restatement (Second) of Torts § 895D(3) (1977). Government officers performing discretionary functions are protected from liability in order to “preserve independence of action without deterrence or intimidation by the fear of personal liability and vexatious suits.” Id. at § 895D cmt. a. Qualified immunity is broad in that it “provides ample protection to all. but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). Hiring and firing are discretionary functions. See Davis v. Scherer, 468 U.S. 183, 196-97 n. 14, 104 S.Ct. 3012, 3020-21, 82 L.Ed.2d 139 (1983). In the absence of a precise specification of the action that a government official must take, the official ordinarily has discretionary authority. Id. Allocation of office space is among the kinds of everyday decisions an administrator must make for which decision rules are not precisely specified. I conclude that Kelley Cronin’s decisions to move the plaintiff’s work area, to reorganize the Can Share position, to hire Mr. Markland for the new position, and not to rehire plaintiff Helen Lynch to coordinate the 1994 Can Share program were within Kelley Cronin’s discretionary functions as Director of the Emergency Shelter Commission. Standing alone, these discretionary decisions by Kelley Cronin would be immune from suit. The plaintiff is not entitled to damages just because her desk was moved, or her position was changed in a reorganization, or her services were no longer needed. Qualified immunity is not an absolute. Government officials performing discretionary functions are protected from civil damages only so long as “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1981). A defense of qualified immunity ordinarily fails where the law that was violated was clearly established, “since a reasonably competent public official should know the law governing his conduct.” Harlow, 457 U.S. at 819, 102 S.Ct. at 2738. Harlow modified to some extent the earlier declaration of the Court, in Wood v. Strickland, that an official is not immune if he or she “knew or should have known” that the action taken would violate constitutional rights. 420 U.S. 308, 321, 95 S.Ct. 992, 1000, 43 L.Ed.2d 214 (1974) (emphasis added). Under the law of qualified immunity as it now stands, an objective standard concerned with what a reasonable official would have known applies, and the standard is more precisely focused on the particular conduct at issue than one might have inferred from Wood v. Strickland. Thus, for a plaintiff to recover damages against the official who asserts qualified immunity, the right allegedly violated must be “sufficiently clear that a reasonable official would understand that what he’s doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640,107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1986). If the plaintiff can demonstrate that Kelley Cronin’s conduct violated her clearly established constitutional rights, and that an ordinarily prudent official in Kelley Cronin’s position would have known that what she was doing was a violation of plaintiff’s rights, plaintiff can overcome Kelley Cronin’s qualified immunity. B. A Prerequisite to Reaching Qualified Immunity A debatable issue regarding qualified immunity need not be reached, however, in the adjudication of a claim brought under 42 U.S.C. § 1983, unless plaintiff shows conduct and injury of a significance that measures up to or above the threshold of violation of some provision of the Constitution and laws of the United States. See Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991) (citing Harlow, 457 U.S. at 818, 102 S.Ct. at 2738). In other words, “before even reaching qualified immunity, a court ... must ascertain whether the [plaintiff has] asserted the violation of a constitutional right at all.” Watterson v. Page, 987 F.2d 1, 7 (1st Cir.1993). Issues bearing on whether the plaintiff has satisfied this requirement as to each of her claims are discussed in Parts VI-VII, below. VI. First Amendment Claims A. Introduction A government entity may not discharge an employee for that employee’s exercise of rights of speech protected by the First Amendment. See Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972). Even a person who ordinarily may be discharged for any reason whatsoever (that is, an employee at-will) may have a claim against a government entity that decides not to .rehire based on the exercise of that person’s constitutionally protected First Amendment rights. See Mt. Healthy v. Doyle, 429 U.S. 274, 283, 97 S.Ct. 568, 573, 50 L.Ed.2d 471 (1976). This general proposition about protected speech in employment relationships is well established. The Supreme Court has said, for example, that “[i]t is now clearly established that a State may not discharge an employee on a basis that infringes that employee’s constitutionally protected interest in freedom of speech.” Rankin v. McPherson, 483 U.S. 378, 383, 107 S.Ct. 2891, 2896, 97 L.Ed.2d 315 (1987); see also Perry, 408 U.S. at 597, 92 S.Ct. at 2697. Often, however, a court must consider complex subsidiary rules to determine whether the general proposition applies to a particular ease before the court. In the present case, defendant Cronin argues that Ms. Lynch does not qualify for First Amendment protections because: (1) she was not an employee at the time of the telephone call; (2) her call was not based on matters of public concern; (3) the City’s interest in efficiency outweighs the plaintiffs interest; and (4) the plaintiffs telephone call was not “the motivating factor” (emphasis added) behind defendant Cronin’s actions. See Defendant Kelley Cronin’s Memorandum of Law in Support of Her Motion for Judgment as a Matter of Law After Trial or in the Alternative for a New Trial or Remittitur at pp. 3-9 (Docket No. 160). The Court of Appeals for the First Circuit has articulated a three-part test for determining whether a plaintiff has presented an actionable claim for the infringement of a public employee’s First Amendment rights. See O’Connor v. Steeves, 994 F.2d 905, 912 (1st Cir.1993). Neither in the O’Connor opinion nor in any other opinion to date, however, has the Court of Appeals for the First Circuit explicitly decided whether this framework for decision must be modified when speech of an independent contractor, rather than an employee in the ordinary sense, is involved. Nevertheless, a factor in the decision to submit this case to the jury on special questions only under Rule 49(a) of the Federal Rules of Civil Procedure was the likelihood that an O’Connor test, or one closely analogous to it, would be applied in this context and would require consideration of disputed historical facts as well as evaluative questions. The historical and evaluative questions that are potentially relevant to the ultimate determination of the merits of plaintiffs First Amendment claims of municipal and individual liability are complex. The inquiry begins here, with the role of balancing tests in the First Amendment context. B. Balancing Tests for First Amendment Claims One of the questions potentially material to claims of municipal liability for speech in the employment context is whether the plaintiffs speech was an expression of the speaker in the role of citizen on matters of public concern, or instead an expression in the role of employee (or independent contractor) on matters of only personal interest (or perhaps some combination of the two).- See O’Connor, 994 F.2d at 912 (quoting Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 1690-91, 75 L.Ed.2d 708 (1983)). Many precedents support the use of what is commonly called a “balancing” test in this context. If the speech was on a matter of public concern, the court must balance the strength of the employee’s First Amendment interest, and any parallel public interest in the information which the employee sought to impart, against the strength of the countervailing governmental interest in promoting efficient performance of the public service Id. (citing Pickering). C. Applying a Balancing Test While Deciding Whether Constitutional Rights Are Clearly Established Many of the Courts of Appeals of the Circuits, including the First Circuit, have approved the use of a balancing test for deciding a wide variety of claims of municipal liability to employees, recognizing that because an employee’s interest must always be balanced against the governmental interest involved, it is difficult if not impossible, for officials to know when they have violated “clearly established” law. Frazier v. Bailey, 957 F.2d 920, 931 (1st Cir.1992) (addressing generalized right to “familial integrity”). The definition of federal constitutional and statutory rights as refined by use of a balancing test may fall short of being clearly established because public officials would have difficulty in ascertaining when those rights are infringed. Id. (citations omitted). As suggested in the foregoing discussion of Frazier, I conclude that the Court of Appeals for the First Circuit has not explicitly decided whether a First Amendment right is to be evaluated under a balancing test, with a consequence, among others, of impeding a plaintiffs effort to show that an ordinarily prudent official would have known that what plaintiff claims was done was in violation of a clearly established right. Other Circuits have ruled on the matter, however, and the overwhelming majority have determined that when a balancing test is to be applied, the right is not clearly established. See, e.g., Bartlett v. Fisher, 972 F.2d 911, 917 (8th Cir.1992) (First Amendment rights not “clearly established” for the purposes of qualified immunity because “the defendants placed the Pickering balancing test squarely at issue”); Guercio v. Brody, 911 F.2d 1179, 1188 (6th Cir.1990) (qualified immunity appropriate because reasonable persons in the defendant-judge’s position as employer could have disagreed on the outcome of balancing), cert. denied, 500 U.S. 904, 111 S.Ct. 1681, 114 L.Ed.2d 76 (1991); Melton v. Oklahoma City, 879 F.2d 706, 729 (10th Cir.1989) (deciding that fact-specific inquiry precludes the determination of a clearly established right), vacated on other grounds, 928 F.2d 920 (10th Cir.1991); Dartland v. Metropolitan Dade County, 866 F.2d 1321, 1324 (11th Cir.1989) (deciding that the only relevant consideration is whether a reasonable official would necessarily know that the termination of the employee violated constitutional rights); Noyola v. Texas Dept. of Human Resources, 846 F.2d 1021, 1025 (5th Cir.1988) (“There will rarely be a basis for a priori judgment that the termination or discipline of a public employee violated ‘clearly established’ constitutional rights”); Rakovich v. Wade, 850 F.2d 1180, 1213 (7th Cir.1988) (deciding it was not clearly established that defendants’ actions violated constitutional rights), cert. denied, 488 U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 534 (1988). Where a balancing of competing interests is required, the analysis “is so fact dependent that the law can rarely be considered clearly established.” Benson v. Allphin, 786 F.2d 268, 276 (7th Cir.1986) (internal quotations omitted), cert. denied, 479 U.S. 848, 107 S.Ct. 172, 93 L.Ed.2d 109 (1986). The reason for this rule is that where a balancing test is required, reasonable public officials cannot be expected to know what the outcome of application of the test will be, and therefore cannot be expected to know that what is being done will be a violation of a “clearly established” right. This does not necessarily mean, however, that only binding precedent directly on point produces a “clearly established” right. See Rakovich, 850 F.2d at 1209. Rather, cogently analogous cases may be sufficient to establish a right. The relevant question is whether a reasonable official in the defendant’s position would be expected to know that adverse action toward the plaintiff under the circumstances would violate the plaintiffs constitutional rights. See Dartland, 866 F.2d at 1324. It is also true, on the other hand, that the applicability of a balancing test to a particular case inevitably lends weight to whatever other support exists for a determination in favor of qualified immunity in that case. Because no bright-line standard puts the reasonable public employer on notice of a constitutional violation, the employer is entitled to immunity except in the extraordinary case where Pickering balancing would lead to the inevitable conclusion that the discharge of the employee was unlawful. Id. at 1234. Thus the question here is whether the balancing test would lead to the inevitable conclusion that defendant Cronin’s actions were unlawful. In some Circuits, this approach to qualified immunity in the First Amendment context has been explicitly rejected because of its tendency to lead courts to the conclusion of qualified immunity whenever a balancing test is applied. As one court stated, “We decline to adopt a rule that would effectively eviscerate whistleblower protection for public employees.” Roth v. Veteran’s Admin., 856 F.2d 1401, 1408 (9th Cir.1988) (distinguishing Benson which considered Pickering balancing after a full trial rather than on a motion for summary judgment). The Court of Appeals .for the Eighth Circuit declared First Amendment rights clearly established in the retaliatory discharge context based on the language in Rankin. See Casey v. City of Cabool, 12 F.3d 799, 803 (8th Cir.1993), cert. denied, -513 U.S. 932, 115 S.Ct. 325, 130 L.Ed.2d 285 (1994). But, in Casey the court did not fully examine the effect of an analysis under the balancing test for public officials forced to make determinations as to whether a right is clearly established. At the time, that defendant Cronin told plaintiff to clear out her desk in January, 1994 (and now), the only decisions of the First Circuit, available to guide district courts in this Circuit, support the outcome of qualified immunity where the finding of a constitutional right depends upon a balancing test. See, e.g., O’Connor, 994 F.2d at 917 n. 11; Frazier, 957 F.2d at 931. In the present case, the jury found that defendant Cronin had “reason to believe that retaliation against employees who ‘blow the whistle’ ... would, more likely than not, be illegal.” Phase One Verdict Form, Part I, Question 4(a). The plaintiff, however, was not an employee, on January 13, 1994. See Phase One Verdict Form, Part I, Question 3. And although the Supreme Court has extended First Amendment protection to independent government ■ contractors facing retaliatory nonrenewal, see Board of County Comm’rs v. Umbehr, 5l8 U.S. 668,-, 116 S.Ct. 2342, 2346, 135 L.Ed.2d 843 (1996), this extension came two years after Cronin’s retaliatory action. Courts cannot expect government officials to predict the law, especially not on issues so complex and divisive that the Supreme Court must be called upon to rule. At the time defendant Cronin told plaintiff to clear out her desk, a reasonable official in her position would not have known the outcome of an adjudicator’s application of a balancing test. For this reason, a reasonable official would not have been able to know that telling Helen Lynch to clear out her desk was a violation of a clearly established right. At the time defendant Cronin decided on nonrenewal of Helen Lynch’s contractual relationship with the City, a reasonable official would not have been able to know that the nonrenewal was a violation of a clearly established right., D. Employee Status and Adverse Employment Decisions The jury found that as of January 12,1994, the day Helen Lynch placed the telephone call, she was not a current employee of the City of Boston, but instead, that she was a former employee under one of a succession of temporary contracts for part-time employment during part of the year. See Phase One Verdict Form, Part I, Question 3(a)-(e). The defendant argues that the plaintiff could not have First Amendment protection as an employee because she could not have been discharged, as she was not an employee. This argument fails in two respects: the plaintiff need not be a current employee to receive First Amendment protection, and adverse employment decisions other than discharge may be actionable. Although plaintiff Lynch was not an employee at the time she was instructed to clear out. her desk, she is protected as an independent contractor. The First Amendment analysis that has in the past been applied to persons engaged by the government to perform some services has been extended recently to apply to persons engaged as independent contractors. See O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 116 S.Ct. 2353, 135 L.Ed.2d 874 (1996) (protecting independent contractor from retaliation for refusal to offer support to a political campaign); Board of County Comm’rs v. Urnbehr, 518 U.S. 668, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996) (protecting independent contractor from retaliation for speech critical of county government). Furthermore, discharge is not, as the defendant would have it, an accurate description of the adverse employment action challenged in this case. Rather, an adverse employment action, or decision, in a broader sense, including the failure to rehire, is what the court must examine. For example, in Mt. Healthy, a teacher was not discharged for his views, but the Board of Education’s failure to rehire him was actionable. 429 U.S. at 283, 97 S.Ct. at 573. Similarly, in Perry, the Supreme Court noted that lack of a contractual right to continued employment (in that case, tenure) did not defeat the plaintiff’s First Amendment claim. 408 U.S. at 596, 92 S.Ct. at 2696. If any doubt remained previously, in 1996 the Supreme Court resolved the doubt by making it clear that an independent contractor is protected from retaliatory nonrenewal of its contract for expressing political views. See Urnbehr, 518 U.S. at -, 116 S.Ct. at 2346. The defendant further argues that no adverse employment decision was made in retaliation since “the Jury found that the Plaintiff was not qualified for the new Staff Assistant II position, which was the only position available” because the Can Share coordinator position had been incorporated into the new Staff Assistant II position. Defendant Kelley Cronin’s Memorandum of Law in Support of Her Motion for Judgment as a Matter of Law After Trial or in the Alternative for a New Trial or Remittitur at pp. 3,6 (Docket No. 160). True, it is undisputed that the Jury found that the plaintiff was unqualified for the new Staff Assistant II position. See Phase One Verdict Form, Part II, Question 4(c)(2)(B). Furthermore, the jury found that defendant Cronin’s hiring of Mr. Markland for the new position was not done in retaliation against plaintiff for plaintiff’s telephone call. See id. at Part II, Question 5(a)(2)(A). The violation of plaintiff Lynch’s rights had occurred earlier, on January 13, 1994, when defendant Cronin told plaintiff to clear out her desk. At that time, the Emergency Shelter Commission had not yet been reorganized. At that time, a possibility still existed that the City of Boston would contract with the plaintiff for the 1994 Can Share season. The fact that the defendants chose to reorganize and redefine a job position after January 13, 1994 cannot have the retroactive effect of shielding the defendant from liability for a violation that had already occurred. Thus, it is irrelevant that Helen Lynch was not qualified for a position created after the violation, nor is it relevant that another, more qualified individual was hired for the new position. E. Matters of Public and Private Concern Not all speech by government employees and contractors is protected. Rather, in order to be protected, the speech must be on a matter of public concern. See Connick, 461 U.S. at 146, 103 S.Ct. at 1689. Courts have established two different approaches to determining whether speech is on a matter of public concern. One approach is an objective content-based analysis that provides protection for speech that, as evaluated by an authorized adjudicator, is on a topic of public concern, such as charges of official malfeasance or abuse of office. See Koch v. City of Hutchinson, 847 F.2d 1436, 1446 n. 17 (10th Cir.) (en banc), cert. denied, 488 U.S. 909, 109 S.Ct. 262, 102 L.Ed.2d 250 (1988). The second approach is subjective in the sense that the adjudicator determines the plaintiffs motivation, leaving speech made purely for private interests unprotected, even if it touches on a matter of public concern. See Terrell v. University of Texas Sys. Police, 792 F.2d 1360, 1362 (5th Cir.1986), cert. denied, 479 U.S. 1064, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987). The Court of Appeals for the First Circuit has adopted a tiered approach that first asks whether the speech was on a matter of “inherent” public concern. See O’Connor, 994 F.2d at 913. If the speech is not on a matter of “inherent” public concern, a further inquiry into the plaintiffs motives is necessary. Id. Under this tiered approach, motive alone is not dispositive; if it were, there would be no need to consider whether the speech was on a matter of public concern. Id. at 914 n. 5 (quoting Zamboni v. Stamler, 847 F.2d 73, 78 (3d Cir.), cert. denied, 488 U.S. 899, 109 S.Ct. 245, 102 L.Ed.2d 233 (1988)). The Supreme Court has observed that whether speech addresses a matter of public concern must be determined by the “content, form, and context of a given statement, as revealed by the whole record.” See Connick, 461 U.S. at 147-48, 103 S.Ct. at 1689. No precise definition of “matters of inherent public concern” has been formulated, yet other cases can be instructive. See, e.g., O’Connor, 994 F.2d at 916 (public statements by superintendent of Public Works about town selectmen’s improper use of department monies was a matter of inherent public concern); Brasslett v. Cota, 761 F.2d 827, 844 n .14 (1st Cir.1985) (a fire chiefs public statements about a Town Council’s actions in regard to fire protection was considered a matter of inherent public concern). In O’Connor, the Court of Appeals for the First Circuit considered it relevant that the speech was not limited to “internal personnel procedures, affecting only [the plaintiff] and other department employees.” O’Connor, 994 F.2d at 915. “Rather [the plaintiffs] revelations directly implicated a topic of inherent concern to the community — official misconduct by an incumbent elected official.” Id. As to matters that are not of “inherent” public concern, the Court of Appeals for the First Circuit instructs a district court to conduct a thorough examination of the form and context of the expression with a view to whether the community in fact manifested a legitimate concern in the internal workings of the particular agency or department of government, and if so, whether the “form” of the employee’s expression suggests a subjective intent to contribute to any such public discourse. Id. at 914 (emphasis in original). Whether the plaintiffs speech is on a matter of publie concern, the First Circuit has stated, is not a question for the júry, but one of law for the court. See id. at 912. The Jury’s answers, however, may provide factual context that aids the court in its decision. In the case at hand, the Jury returned answers regarding the purpose of plaintiff Lynch’s telephone call as follows: 1. In Ms. Lynch’s telephone call of January 12, 199k, did she discuss any of the following matters? (a)(1) Inadequate services to homeless people provided by the Emergency Shelter Commission X YES NO (a)(2) People in need of help being unable to obtain help quickly enough from the Emergency Shelter Commission X YES _NO (a)(3) Any matter that was of personal concern to her alone X YES NO (b) Objection to an activity, policy, or practice of the Emergency Shelter Commission X YES NO Although the matters discussed in plaintiffs call may not be characterized as relating to official misconduct, they also were not limited to internal personnel procedures. The jury found that plaintiff discussed matters that were of personal concern to her, and that she also discussed inadequate services to the homeless, people in need of help being unable to obtain help quickly enough, and her objections to activities, policies and practices of the Emergency Shelter Commission. The defendants argue that be'eause the jury did not find that these concerns 'were objectively reasonable, see Phase One Verdict Form,- Part I-, Questions 2(b)(l)-(2), the plaintiffs speech does not rise to the level of speech on matters of public concern. See Defendant Kelley Cronin’s Memorandum of Law in Support of Her Motion for Judgment as a Matter of Law After Trial or m the Alternative for a New Trial or Remittitur at p. 6 (Docket No. 160). Objective reasonableness, however, is not the applicable standard with respect to the matter under consideration at this point. The questions in the Verdict Form referring to objective reasonableness were included in order to address plaintiffs claim under the Massachusetts Whistleblower Statute, which requires, in certain circumstances, that a whistleblower have an objectively reasonable basis for believing that a risk to public health, safety, or the environment existed. See Mass. Gen. L. ch. 149, § 185(c)(2). The defendants also argue that the court should focus on -what defendant Cro-' nin believed was said by the plaintiff in the telephone call to determine whether the plaintiffs speech * was on matters of public concern. In support of this argument, the defendant cites to the syllabus of Waters v. Churchill, 511 U.S. 661, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994), for the proposition that the Connick test should be applied to what the government employer reasonably thought was said, not what the trier of fact ultimately determines was said. See Defendant Kelley Cronin’s Memorandum of Law in Support of Her Motion for Judgment as a Matter of Law After Trial or in the Alternative for a New Trial or Remittitur at p. 7 (Docket No. 160). This defense argument is without merit. In Waters, the Court did note that government employers attempting to reach their own factual conclusions must not be held to the evidentiary rules used in court. Waters, 511 U.S. at 676, 114 S.Ct. at 1888. For example, it might be entirely appropriate for a government employer to rely on hearsay, even if inadmissible in court proceedings, in determining what was said by an aggrieved employee. Id. But the Court also stated that lower courts applying the Connick test should not take the facts “as the employer thought them to be, without considering the reasonableness of the • employer’s conclusions.” Id. at 677, 114 S.Ct. at 1889. Thus, an objective test is appropriate for use in determining what the employer thought the speech to be. And here, there is not a shred of evidence in the record to show that defendant Cronin believed Ms. Lynch’s telephone call related only to matters of personal concern (that is, that the plaintiffs call did not address staffing of the Emergency Shelter Commission or services to homeless people). Not only did defendant Cronin fail to present evidence on “her view” of-what matters plaintiff discussed in her telephone call, but several witnesses, including defendant’s husband, John Greeley, and the director of the Mayor’s 24-Hour Hotline, Jerry Cuddyer, stated under oath that the plaintiff discussed inadequate services to homeless people. Even if defendant Cronin believed that the plaintiffs call concerned matters of only private concern, that belief was unreasonable in light of the, testimony adduced at trial. Thus, I conclude that it is irrelevant whether the plaintiff was objectively reasonable in her belief that the staffing policies of the Emergency Shelter Commission constituted a risk to public health. I conclude, also, that a belief by defendant Cronin that plaintiff discussed only matters of private concern in her telephone call would be an unreasonable one. I conclude that the evidence received during the trial showed beyond genuine ■ dispute that the matters discussed in plaintiffs telephone call (specifically that she believed that the Emergency Shelter Commission was providing inadequate services to homeless people and that homeless-people in need of help were not receiving help quickly enough) were matters of “inherent” public concern. Moreover, the community had “in fact manifested a legitimate concern in the internal workings” of all the 'mayoral departments, as evidenced by exhibit number 26, the Mayor’s letter to City employees seeking feedback on the efficiency and possible improvement of City operations. Granted, the plaintiffs telephone call was not made to the automated voice-mail system established by the Mayor’s Office for this- purpose, but the call was made to the Mayor’s Office. The plaintiffs expression was not made as a letter to the editor of a newspaper, or as part of a discussion on talk radio. These forms and methods of expression might be evaluated as likely to be far more disruptive than a telephone call or a quiet visit to the Mayor’s office. The form of the plaintiffs expression suggests a subjective intent to contribute to the public discourse, in a way that would not be disruptive. F. Applying Qualified Immunity to First Amendment Claims 1. More About Precedents on Balancing Once a court determines that a plaintiff spoke on a matter of public concern, the court must aim at striking an appropriate balance after weighing the employee’s First Amendment interest, together with any public interest in that speech, against the strength of the government interest in promoting efficiency in accomplishing government services to the community. See Pickering, 391 U.S. at 568, 88 S.Ct. at 1734. The plaintiff, even though the jury found that she was not an employee at the time of the speech at issue, obviously had a strong and legitimate interest in being able to exercise her First Amendment rights and to continue serving as a contractor to the City of Boston. Among the considerations to be weighed, in a balancing test adapted to the distinctive circumstances of this case, is the plaintiff’s motivation for speaking. See O’Connor, 994 F.2d at 915. The jury found that the plaintiff discussed matters of personal concern during her telephone call. See Phase One Verdict Form, Part I, Question 1(a)(3). Defendant Cronin argued that plaintiffs telephone call was made to criticize .defendant Cronin’s administration of the Emergency Shelter Commission at a time of mayoral transition in an effort to force defendant Cronin to resign. The jury finding cannot reasonably be construed as saying this was the sole motivation of plaintiffs telephone call, but is 'consistent with the defense contention that this was one among other reasons for the call, and the weight of plaintiffs legitimate interest in making the call is somewhat lessened by the likelihood that she had this kind of personal interest in making the telephone call. The balancing must also take account of the public’s interest in the plaintiffs speech. Here, an assessment of the reasonableness of the plaintiffs belief that public health was at risk, is relevant. The jury finding that this belief was not reasonable sharply reduces the weight of the public interest in this aspect of her speech. On the other hand, the public has a separate interest, apart from public health, in having the contributions to public discussion of persons who are concerned and informed. This public interest extends not only to citizens generally but also to those who are City of Boston employees, contractors, former employees, and former contractors. The weight of this interest was reinforced by published requests of the Mayor for suggestions about how to make City government work better. I conclude that in addition to the plaintiff’s interest, this case involves a significant public interest in encouraging employees and contractors of the City of Boston to respond to mayoral requests for information about potential avenues of improvement in City services. On the other side of the weighing process, the City has not demonstrated a significant interest, as employer, in curtailing the disclosures by plaintiff. The City has not shown disruption in the operations of City government except for the minor difficulties experienced by Mr. Greeley and Ms. Cuddyer in taking a complaint regarding Mr. Greeley’s wife. Nor has there been any showing of inefficiencies experienced at the Emergency Shelter Commission as a result of the telephone call, except, perhaps, on the day that the defendant Cronin confronted the plaintiff in the Commission offices. Nor has the City shown any deterioration in the working relations among staff members of the Commission. In essence, the plaintiffs telephone call did not hinder either the efficiency of City government as a whole, or that of the Emergency Shelter Commission in particular. Thus, the City’s interest in efficiency is minimal in the circumstances of this case, and is far outweighed by the plaintiffs interest in freedom to speak and the public interest in encouraging response to mayoral requests for performance improvement suggestions and information. 2. Motivating Factors If a plaintiff succeeds in showing that speech is on a matter of public concern, and that the plaintiff’s and the public’s interest in the speech outweigh the governmental interest in efficiency, still at least one more requirement must be satisfied for a plaintiff to succeed on a claim for damages for an adverse employment decision. The plaintiff must also obtain from the court or jury a determination that the “protected expression was a substantial or motivating factor in that adverse employment decision.” O’Connor, 994 F.2d at 912. The burden of persuasion on the issue may be shifted to the employer in these circumstances, but at least the government employer is given the opportunity to show that it would have .reached the same decision even in the absence of the protected expression. Id. (citing Mt. Healthy, 429 U.S. at 287, 97 S.Ct. at 576). By analogy to these settled rules, I conclude that the plaintiff in this case cannot succeed in her claim for damages for violation of rights regarding protected speech without a determination that she was speaking on issues of public concern and that her interest and the public interest in the exercise of plaintiff’s -First Amendment rights outweigh, the City of Boston’s interest in efficient operation of government. By analogy also, however, I conclude that, shouldering the burden of persuasion, the City is entitled to the opportunity to prove that it would have reached the same decision anyway with respect to the nonrenewal of the plaintiffs contractual relationship with the City. See Mt. Healthy, 429 U.S. at 274, 97 S.Ct. at 569. The City failed to satisfy that burden in this case. The plaintiff has shown that retaliation was a motivating factor for Kelly Cronin’s prompt reaction to the telephone call of January 12,1994. The jury answered “YES” in response to Question 1(a) of Part II of the Phase One Verdict Form that “Kelley Cronin, in instructing the plaintiff, on January 13, 1994, to clear out her desk act[ed] with a motive of retaliating for Ms. Lynch’s telephone call