United States Court of Appeals
For the First Circuit
No. 02-2103
MARTA I. TORRES-ROSADO,
Plaintiff, Appellant,
v.
ÁNGEL E. ROTGER-SABAT; JOSÉ A. FUENTES-AGOSTINI;
ANÍBAL TORRES-RIVERA,
Defendants, Appellees;
JOSÉ R. RAMOS-ROMÁN; ITALA RIVERA-BUONOMO; EDWIN VÁZQUEZ-
BERRIOS; CARLOS D. RIESTRA-CORTÉS,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.
Manuel R. Suarez Jiménez for appellant.
Leticia Casalduc-Rabell, Assistant Solicitor General,
with whom Roberto Y. Sánchez-Ramos, Solicitor General, and
Vanessa Lugo-Flores, Deputy Solicitor General, were on brief for
appellees.
July 2, 2003
LYNCH, Circuit Judge. This is an appeal from entry of
summary judgment against claims by a public employee that her
superiors retaliated for her speech on a matter of public concern
and terminated her employment without due process. Plaintiff Marta
Torres-Rosado, an agent in the Puerto Rico Justice Department's
Special Investigations Bureau (SIB), claims that her superiors
fired her because she wrote a confidential internal memorandum
suggesting that the SIB's investigation of an important politician
might be "paralyzed" as part of a cover-up. She has since been
reinstated, pursuant to a settlement of related litigation in the
Puerto Rico courts.
The defendants remaining in the case are Aníbal Torres-
Rivera, Ángel Rotger-Sabat, and José Fuentes-Agostini, who were, at
the relevant time, Director of the SIB, Assistant Attorney General,
and Attorney General, respectively. In her federal case, brought
under 42 U.S.C. §§ 1983, 1985 (2000), plaintiff1 claims that these
defendants denied her procedural due process, violated her First
Amendment rights, and engaged in a conspiracy to deprive her of
civil rights. She also advanced pendent claims under Puerto Rico
law that are not part of this appeal.
The district court granted summary judgment to defendants
on all federal claims and declined jurisdiction over the pendent
1
To avoid confusion between plaintiff Torres-Rosado and
defendant Torres-Rivera, we will refer to the former as
"plaintiff."
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claims. We affirm the dismissal of the due process and civil
rights conspiracy claims. On the First Amendment claim, we find
that the district court erred in determining that plaintiff's memo
raised no issue of public concern. Nonetheless, we affirm summary
judgment against the First Amendment claim on other grounds.
I.
A. Scope of Summary Judgment Record
Before turning to the facts of the case, we address a
preliminary question of what material should properly be considered
in the summary judgment record before us. The district court
deemed defendants' motion for summary judgment, and the factual
assertions supporting it, to be unopposed, because plaintiff failed
to file timely oppositions to them. See Torres-Rosado v. Rotger-
Sabat, 204 F. Supp. 2d 252, 253 & n.1 (D.P.R. 2002). Such
oppositions are required by the district court's local rules. See
D.P.R. R. 311.5, 311.12. This court has held repeatedly that the
district court in Puerto Rico is justified in holding one party's
submitted uncontested facts to be admitted when the other party
fails to file oppositions in compliance with local rules. See,
e.g, United Parcel Serv., Inc. v. Flores-Galarza, 318 F.3d 323, 330
& n.10 (1st Cir. 2003); Corrada-Betances v. Sea-Land Serv., Inc.,
248 F.3d 40, 43 (1st Cir. 2001); Morales v. A.C. Orssleff's EFTF,
246 F.3d 32, 33-34 (1st Cir. 2001); Ruiz-Rivera v. Riley, 209 F.3d
24, 27-28 (1st Cir. 2000). This, of course, does not mean the
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unopposed party wins on summary judgment; that party's uncontested
facts and other evidentiary facts of record must still show that
the party is entitled to summary judgment.
Defendants moved for summary judgment on April 15, 2002,
and included with their motion a statement of uncontested facts.
Plaintiff's response was due ten days later. See D.P.R. R. 311.5.
This deadline came and went, and only on April 29 did plaintiff
submit a motion requesting still another week to respond -- an
extension which would have taken her response up to the eve of the
trial date that had been set in a pretrial order entered five
months before. The next day, April 30, the district court denied
the requested extension. Plaintiff nonetheless filed her belated
response on May 7, 2002, the same day that the district court
granted summary judgment. The plaintiff later moved for
reconsideration, arguing that the court should consider her tardy
opposition. The court denied this motion in a detailed unpublished
opinion issued on July 11, 2002.
Plaintiff's appellate briefs draw repeatedly on facts and
arguments that were included only in the rejected filing, and her
notice of appeal encompasses the denial of the motion to
reconsider. However, she does not offer any sustained argument
that the court erred in denying the initial extension of time or
the motion to reconsider. The failure to argue the point means
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that the issue has been waived. See Donovan v. City of Haverhill,
311 F.3d 74, 76 (1st Cir. 2002).2
When the district court granted defendants' summary
judgment motion, its findings of fact were based on the defendants'
submission of uncontested facts. See Torres-Rosado, 204 F. Supp.
2d at 253-56 & n.1.3 On appeal, we consider the same record that
was before the district court. The uncontested facts are deemed
admitted. A small amount of other material qualifies as part of
the summary judgment record, such as a verified objection filed by
2
Even if we considered the issue, we would find that the
district court was well within its discretion. In its unpublished
opinion denying the motion for reconsideration, the court
exhaustively chronicled the plaintiff's repeated delays and missed
deadlines in this litigation. The court counted at least fifteen
requests for extensions of time by plaintiff, many of which were
filed after deadlines had already passed. Plaintiff did not even
serve defendant Torres-Rivera, who was living in Romania at the
time, until over a year after filing the complaint. One motion
filed by plaintiff explaining the failure to meet deadlines is
entitled, "Plaintiff's Attorney Apologies to the Court." The
district court correctly said that it had been "more than generous"
in offering plaintiff repeated extensions of time. Given the
history of the litigation, and the clear deadlines found in both
Local Rule 311.5 and the court's November 2001 pretrial order, this
decision was quite justifiable.
3
There is no merit in the suggestion, advanced by
plaintiff at oral argument, that the district court considered the
late-filed facts when it rejected the motion to reconsider, so that
they are part of the record. Rather, in its order denying
reconsideration, the district court meticulously explained why it
rejected plaintiff's filing. It then, as a matter of its
discretion, went on to discuss why, "even if the Court had
considered plaintiff's factual problems with [defendants']
uncontested facts . . . it would have arrived at the same
conclusion."
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plaintiff at an earlier stage of the litigation and some portions
of depositions and interrogatories submitted to the court.
B. Factual Background
In October 1998, plaintiff was a career employee of the
SIB with approximately fifteen years of experience. She held the
title of "Agent III." She also supervised a public integrity
squad. Torres-Rivera conferred these supervisory duties on
plaintiff; they were not part of plaintiff's status as an Agent
III, nor were they assigned through civil service competition.
One of the squad's pending investigations concerned
corruption allegations against Aníbal Marrero-Pérez, then the vice
president of the Puerto Rico Senate. Plaintiff had a confidential
informant who was providing information to her about alleged
unlawful behavior by Marrero. Apparently, this informant provided
plaintiff with an accusation and some evidence suggesting that
Marrero had received an improper payment.
Plaintiff wrote a four-paragraph internal memorandum to
Torres-Rivera on October 16, 1998 expressing concerns about the
pace of the Marrero investigation. The first and fourth paragraphs
of the memo alluded to leads that had been developed in the case.4
The middle two paragraphs stated:
4
This memo and much of the rest of the record was written
in Spanish; we rely on the certified translations provided by the
parties.
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It is my concern that at present this investigation is
paralyzed due to lack of communication with you, since it
is you who are authorized to give us instructions whether
to proceed or not regarding this case with the aforesaid
debriefings.
At the last meeting held with you, you indicated that you
would make efforts to verify with the federal agencies
whether there was any investigation into this matter to
thus know what course of action to follow.
The memo closed, "For your information and appropriate action."
A week later, on Friday, October 23, Torres-Rivera wrote
a memo responding to plaintiff. It quoted her accusation of
paralysis and then stated:
Your concern is groundless, inasmuch as communication
with my office flows openly at my request or at the
request of a party. It is by means of your memorandum
that I found out about the information you cited. I do
not know what your intentions are in making such serious
imputations.
In the face of your assertion, I have no other
alternative but to withdraw you from my trust as a
supervisor . . . .
The memo instructed plaintiff to report for duty to José Ramos,
another SIB official, the following Monday.
The same day, Friday, Torres-Rivera and Ramos held a
meeting with plaintiff where Torres-Rivera read her this memo aloud
and said that plaintiff would be removed from the Marrero
investigation. The following Monday, however, Torres-Rivera wrote
another memo to plaintiff which reversed this decision and
reinstated her as the agent in charge of the Marrero
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investigation.5 This memo concluded, "I reiterate that all the
resources necessary to help you conduct this investigation to the
consequences that it warrants, will be at your disposal."6
During the meeting on Friday, after she had been given
the memo and told that she was being removed from the
investigation, plaintiff asked that she be allowed to use some
accumulated vacation time. She filed a form, which Ramos signed,
requesting leave from the following Monday until December 8.
Torres-Rivera told her at that meeting that she could commence her
leave only after filing a report about the Marrero investigation.
After the meeting, but before she left the premises, she told Ramos
that she refused to complete the report that she had been ordered
to prepare because she did not want to name her informant to
another agent.
Plaintiff did not come to work the following Monday,
October 26. She telephoned Ramos and told him that her young son
was sick and she would be unable to come to the office. She says
5
The translation submitted to this court indicates that
the memo was written on November 26, not October 26, but this
appears to be an error, and the district court found that it was
written on Monday, October 26. This conclusion makes sense,
especially since Torres-Rivera no longer worked at the SIB by
November 26.
6
It is not entirely clear from the record whether this
reinstatement also extended to plaintiff's other supervisory
duties. Earlier in the litigation, plaintiff stated under oath
that she was a supervisor of the squad as well as the investigation
"[a]t the time of her dismissal," suggesting that she regained both
of her supervisory roles.
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that she indicated in this conversation that he had chicken pox and
that she was potentially contagious. Also on Monday, Torres-Rivera
went to Ramos' office and asked if plaintiff had filed the report;
when he found out that she had not done so, he annotated the
vacation request form that Ramos had signed, indicating that
plaintiff could not take leave until she handed in the report.
Meanwhile, plaintiff had attempted to go over Torres-Rivera's head
by requesting and receiving an appointment with Rotger-Sabat at
3:00 that day, an appointment she then cancelled. Finally, in
another telephone conversation between plaintiff and Ramos that
day, Ramos told her that no vacation time was approved until she
submitted the report, and she repeated her previous statements
about not revealing her confidential informant.
Plaintiff remained out of the office from October 26
until November 20. Her verified statement is that her two-year-old
son had chicken pox between October 23 and November 11; that she
and her son were both ill with bronchitis between November 11 and
November 24 and so she was unable to work; and that regulations
instructed her not to go to work if she were exposed to a
contagious disease. She later submitted medical documentation to
her employer. Defendants have submitted sworn evidence indicating
that plaintiff was informed several times during that period that
her absence was unauthorized. She has not denied this; she says
the SIB acquiesced to her leave by accepting her form.
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During her absence, plaintiff did not hand in the report
that Torres-Rivera had ordered her to submit. She received a memo
on October 30 again instructing her to prepare the status report.
Plaintiff does not say that she was physically unable to do so;
indeed, her evidence is that she offered to come into the office
and prepare the report, but would have to bring her contagious son.
While plaintiff was still out of the office, the
newspaper El Vocero published nine articles concerning
investigations of Senator Marrero for alleged corruption.
Plaintiff denies speaking to journalists or anyone else concerning
the case. Another El Vocero article in November reported that
materials for santería rituals were found in plaintiff's SIB car
and suggested that she was practicing witchcraft against Torres-
Rivera and other government officials. Plaintiff, a Roman
Catholic, says the story was baseless.
Also during plaintiff's absence, Torres-Rivera left his
position as director of the SIB; his last day was November 16. On
that final day, he wrote a complaint, which he gave to Attorney
General Fuentes-Agostini, requesting a disciplinary investigation
of plaintiff. This complaint began by discussing the original memo
from plaintiff, stating that it "described in writing a situation
of lack of communication with the undersigned Director, alluding
that for those reasons an investigation was paralyzed." It said
that Torres-Rivera had removed plaintiff from her supervisory
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position because of "the falseness of the imputations" and
complained about her ignoring the chain of command by trying to
meet with Rotger-Sabat. It went on to characterize her absence as
unauthorized; there is no indication in the complaint that
plaintiff had ever requested or received approval for sick time.
Because the department's inspector general was friendly with
plaintiff, she recused herself from any such inquiry, and Fuentes-
Agostini assigned another employee, Itala Rivera-Buonomo, to
investigate plaintiff for "improper conduct."
Plaintiff returned to work on November 20, before the end
of her requested leave. It is unclear if she had learned of
Torres-Rivera's complaint, but that day she received a hand-
delivered letter from Rivera-Buonomo informing her of the internal
investigation of her conduct. Enclosed with the letter were
various documents on which the investigation relied, including
copies of Torres-Rivera's complaint and a memo from another SIB
official, Carlos Riestra-Cortés, discussing her absence. Plaintiff
delivered the report on the Marrero investigation on November 20;
it was deemed unsatisfactory and she submitted a revised version
four days later, which was also deemed unsatisfactory. On November
24, she turned in medical certificates and again requested regular
vacation leave.
Rivera-Buonomo prepared a preliminary report about her
investigation on December 9, 1998. According to the report,
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plaintiff had again been out of the office since November 24.
Rivera-Buonomo concluded that, because plaintiff failed to follow
rules concerning permission for absences, she had been "absent from
her job from October 26, 1998 until November 20th without having
her absence . . . authorized for any reason." The report also
recounted sworn testimony by Ramos that plaintiff had told him she
refused to write the report about the Marrero investigation, in
part because she did not want others to speak with her confidential
informant, and that if Torres-Rivera "wanted information, that he
should search for it." Rivera-Buonomo determined that this
constituted insubordination. It is an uncontested fact that agents
must disclose confidential sources to their supervisors upon
request.
On January 28, 1999, Fuentes-Agostini suspended plaintiff
with pay and sent her a detailed letter informing her of the
decision and the reasons for it, which were based on Rivera-
Buonomo's conclusions that plaintiff was absent without leave and
insubordinate. Plaintiff appealed, and an administrative hearing
concerning the charges was held on April 9, 1999. Plaintiff was
represented by counsel and had the opportunity to present evidence
and testimony. The hearing officer found that plaintiff's sick
leave was not authorized, and that she resisted handing in her
report because she did not want anyone else communicating with her
confidential informant. As a result, he concluded that she had
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been absent without leave and had disobeyed orders, and that
dismissal was warranted. Plaintiff's employment was terminated on
June 30, 1999.
Plaintiff filed a defamation suit against Torres-Rivera
in the Puerto Rico courts in November 1999, which alleged that he
was the source for El Vocero's santería story. In June 2001, a new
attorney general reached a settlement of this defamation suit
whereby plaintiff was reinstated with back pay. Plaintiff had
filed her federal case on July 14, 2000.7
II.
Even where the record is circumscribed because summary
judgment was unopposed, a district court may grant summary judgment
against the nonresponding party only "if appropriate." See Fed. R.
Civ. P. 56(e). "Under this provision it is clear that where the
evidentiary matter in support of the motion does not establish the
absence of a genuine issue, summary judgment must be denied even if
no opposing evidentiary matter is presented." NEPSK, Inc. v. Town
of Houlton, 283 F.3d 1, 7 (1st Cir. 2002) (quotation omitted); see
Kelly v. United States, 924 F.2d 355, 358 (1st Cir. 1991) (in
considering unopposed summary judgment motion, "[o]f course, the
district court was still obliged to consider the motion on its
7
Although the settlement mooted much of the relief
plaintiff had sought, her federal complaint also pled emotional
distress damages, including "partial hospitalization in a mental
institution and a miscarriage." The record before us contains no
evidence of these damages.
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merits"). We look at the "pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any," Fed. R. Civ. P. 56(c), and we apply the
familiar de novo standard of review. See Mullen v. St. Paul Fire
& Marine Ins. Co., 972 F.2d 446, 452 (1st Cir. 1992). Plaintiff
"may not rest upon the mere allegations or denials of [her]
pleading." Fed. R. Civ. P. 56(e). An unsworn assertion of fact in
the complaint alone is not enough to create a material factual
dispute.
A. Procedural Due Process
Plaintiff alleges her right to procedural due process
under the Fourteenth Amendment was violated, first when she was
removed from her supervisory duties (but not from her status as an
Agent III), then when she was suspended with pay, and finally when
she was terminated. Constitutional procedural due process protects
only those aspects of public employment recognized as property
interests; we refer to Puerto Rico law for guidance in defining
such interests. Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 538 (1985); Figueroa-Serrano v. Ramos-Alverio, 221 F.3d 1, 5-6
(1st Cir. 2000).
Plaintiff's supervisory duties alone do not qualify as
such a protected interest -- even if we assume, despite indications
to the contrary in her own sworn statement, that they were
eliminated permanently. It was uncontested that the supervisory
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duties were conferred on a discretionary basis to those of the rank
of Agent III "who held the trust of the Director of the SIB."
Torres-Rosado, 204 F. Supp. 2d at 254. Plaintiff was assigned
these duties without any civil service competition. Id. Thus, she
cannot demonstrate that Puerto Rico's public employment law created
any "reasonable expectation, arising out of a statute, policy,
rule, or contract," that she would continue to perform supervisory
duties. Wojcik v. Mass. State Lottery Comm'n, 300 F.3d 92, 101
(1st Cir. 2002). Torres-Rivera wrote in his memo to plaintiff that
he had decided to "withdraw you from my trust as a supervisor." He
did not violate procedural due process by doing so. See Figueroa-
Serrano, 221 F.3d at 7 ("Without career status, the plaintiffs do
not have a constitutionally protected property interest in
continued employment . . . .").
Due process requirements do not attach to the paid
suspension either, at least on the facts of record in this case.
The Supreme Court explained in Loudermill that a government
employer who wishes to remove a worker immediately may suspend that
worker with pay until the procedures associated with termination
can be completed. 470 U.S. at 544-45. That is exactly what
happened here. More recently, a unanimous Supreme Court rejected
a categorical rule imposing constitutional due process requirements
on suspensions without pay. See Gilbert v. Homar, 520 U.S. 924,
929-30 (1997) ("Due process is flexible and calls for such
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procedural protections as the particular situation demands.")
(quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). The
Gilbert Court also called the deprivation in such cases "relatively
insubstantial." Id. at 932. Plaintiff's paid suspension in this
case, which caused only a very temporary deprivation of job
functions and no financial loss, did not give rise to any
constitutional entitlement to due process.8
The termination of her employment, however, did require
due process. It is well-established under Puerto Rico law and
First Circuit precedents that career employees in positions such as
plaintiff's -- and who are not in political or policymaking
positions, cf. Flynn v. City of Boston, 140 F.3d 42, 45 (1st Cir.
1998) -- are entitled to due process in association with their
termination. See Acosta-Orozco v. Rodriguez-De-Rivera, 132 F.3d
97, 104 (1st Cir. 1997). The crucial question becomes: what
process was due? This is an issue of federal law. See Loudermill,
470 U.S. at 541; Vitek v. Jones, 455 U.S. 480, 491 (1980).
8
Numerous courts have held that paid suspensions could be
imposed without the sorts of procedures the Constitution demands
for terminations of career employees who have proprietary interests
in their jobs. Pratt v. Ottum, 761 A.2d 313, 320 (Me. 2000)
(collecting cases); see, e.g., Hicks v. City of Watonga, 942 F.2d
737, 746 n.4 (10th Cir. 1991); Koelsch v. Town of Amesbury, 851 F.
Supp. 497, 500 (D. Mass. 1994). Still, it is conceivable that a
very long or open-ended paid suspension might function so much like
a termination that some due process protection might attach. We
need not consider that prospect here.
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Plaintiff received far more than the minimum elements of
procedural due process: "some kind of a hearing" and an opportunity
to respond to the allegations against her. Loudermill, 470 U.S. at
542; see O'Neill v. Baker, 210 F.3d 41, 47-48 (1st Cir. 2000). The
day she returned to the office, November 20, 1998, she received
notice of the investigation and a copy of the documents enumerating
the allegations against her. When the investigation was complete,
the January 28, 1999, letter informed plaintiff of its specific
conclusions, that she faced possible termination, and that she had
a right to a hearing before such action was taken. Finally, the
hearing on April 9, 1999, was conducted before an examining
officer, plaintiff was accompanied by counsel, plaintiff herself
testified, and she had the opportunity to present other witnesses
and evidence.
We do not review the substance of decisionmaking under
the rubric of procedural due process analysis. See Bishop v. Wood,
426 U.S. 341, 349-50 (1976). Plaintiff alleges that the procedures
employed departed from applicable regulations under Puerto Rico
law. An agency's failure to follow its own rules may be
significant in administrative law, but the federal Due Process
Clause does not incorporate the particular procedural structures
enacted by state or local governments; these claims should be
pursued, if at all, under Puerto Rico law. See O'Neill, 210 F.3d
at 49 n.9.
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Plaintiff also argues that she was not given sufficient
warning of the evidence to be used against her at the hearing, as
she says Arnett v. Kennedy, 416 U.S. 134 (1974), requires. We
disagree. The original complaint by Torres-Rivera and the January
28 letter laid out in detail the allegations and findings that
provided cause for termination. There was no unfair surprise to
plaintiff or her attorney. This was "an explanation of the
employer's evidence" which, combined with notice and an opportunity
to respond, satisfied the requirements of procedural due process.
Loudermill, 470 U.S. at 546 (explaining Arnett).
B. First Amendment
A government employee "may not be dismissed for
exercising rights protected under the First Amendment." Hennessy
v. City of Melrose, 194 F.3d 237, 245 (1st Cir. 1999). At the same
time, that employee's free speech rights must be balanced against
"the interest of the State, as an employer, in promoting the
efficiency of the public services it performs through its
employees." Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968);
see Rankin v. McPherson, 483 U.S. 378, 384 (1987); Connick v.
Myers, 461 U.S. 138, 140 (1983).
The line of Supreme Court cases striking this balance has
yielded a three-part test, which this court summarized in O'Connor
v. Steeves, 994 F.2d 905, 912-13 (1st Cir. 1993). The court must
first determine whether the issue about which the employee spoke
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was a "matter of public concern;" if not, there is no claim for
First Amendment protection. Connick, 461 U.S. at 146; see Tang v.
Rhode Island, 163 F.3d 7, 12 (1st Cir. 1998). Second, the court
evaluates the balance between the employee's First Amendment
interests and the government's interests as an employer. See
Rankin, 483 U.S. at 388; Mullin v. Town of Fairhaven, 284 F.3d 31,
39-41 (1st Cir. 2002). Finally, if the claim survives both of
these tests, the plaintiff employee must show that the protected
speech was a substantial or motivating factor behind the adverse
employment action; the burden then shifts to the government
employer to demonstrate by a preponderance of the evidence that it
would have taken the same action absent the protected speech. See
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,
287 (1977); Wytrwal v. Saco Sch. Bd., 70 F.3d 165, 170 (1st Cir.
1995). While the first two tests are typically legal
determinations subject to de novo review, the third is a question
of fact which normally belongs to the jury. Nethersole v. Bulger,
287 F.3d 15, 18-19 (1st Cir. 2002); O'Connor, 994 F.2d at 912-13.
The district court here disposed of plaintiff's First
Amendment claim at the initial stage, finding that her speech was
not about a matter of public concern.9 It concluded that
9
Plaintiff's complaint presents the alleged First
Amendment infractions as three different claims: freedom of speech
as a public employee, unlawful retaliation, and whistleblower
protection. Since she appeals under the First Amendment and not
under Puerto Rico law, the substantive issues raised by these
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the matters in the case at bar relate to the fundamental
inner workings of an office -- that Plaintiff perceived
the investigation was proceeding too slowly. While
[allegations of] corruption in the Puerto Rican senate
are certainly matters of public concern, the
investigation itself, or how it is progressing, is
entirely an internal matter, and not of public concern.
That is to say, while the end result might be a matter of
public concern, the means to that end[] is not.
Torres-Rosado, 204 F. Supp. 2d at 260.
As a matter of law, the district court too narrowly
evaluated the nature of the public concern in context. In essence,
some months before plaintiff wrote her October 16, 1998 memo, she
had been told that she should hold off on her investigation of
Marrero while her supervisors checked to see if federal authorities
were also investigating him. When she heard nothing, she expressed
concern that "at present this investigation is paralyzed due to
lack of communication with you, since it is you who are authorized
to give us instructions whether to proceed or not." "Paralyze" is
defined as "to deprive of strength or activity; make powerless;
make ineffective." Webster's Third New International Dictionary
1638 (1993). The public is concerned about more than just the "end
result" of the investigation of an elected official. The public is
also concerned, and understandably so, about whether government
investigations of political corruption are influenced improperly or
are derailed by political connections. Plaintiff's interpretation
of her memo to Torres-Rivera is that the word "paralyzed"
claims are essentially identical and we consider them together.
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represented "an elegant way of accusing him of being engaged in a
cover up." Certainly Torres-Rivera's response to the memo suggests
that he understood it in exactly that way.
"Whether an employee's 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." Connick,
461 U.S. at 147-48. Even if the content of the employee's speech
on its face relates largely to the internal affairs of the
government agency, Connick requires a more searching contextual
analysis to determine if the speech implicates matters of public
concern as well. See id. at 148-49 (assistant district attorney
distributed survey to her colleagues asking their opinions about
the functioning of the office; most questions related to internal
matters that were not of public concern, but one asking whether
employees felt pressure to work in political campaigns passed this
initial inquiry and court went on to the second test); O'Connor,
994 F.2d at 914 (interpreting Connick to require more searching
inquiry even where speech "would not necessarily qualify, on the
basis of its content alone, as a matter of inherent public
concern").
Under Connick's directive to examine "the whole record,"
it is difficult to understand Torres-Rivera's heated reaction to
plaintiff's memo if it truly signified only an internal concern
about intra-office communication or the pace of investigative work.
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Torres-Rivera's memo characterized her statements as "serious
imputations" that left him "no other alternative but to withdraw
you from my trust." He had already halted the investigation in
order to make inquiries with federal authorities about their
possible parallel inquiries, but had not ordered the SIB's
investigation resumed. He then removed plaintiff from the
investigation; the fact that he reinstated her a few days later
does not negate an interpretation that he read her memo as
involving charges of cover-up and obstruction. Significantly,
Torres-Rivera's strong reaction happened before other issues arose
-- such as plaintiff's absence from the office and the dispute over
the report -- that might otherwise explain his displeasure with
her. We find, contrary to the district court's conclusion, that
the "public concern" test was satisfied here.10 Cf. Nethersole, 287
F.3d at 18 n.5 (memo seeking meeting to discuss "concerns" about
diversity at university survived first test at Rule 12(b)(6)
stage).
Since we may affirm summary judgment "on any basis that
is manifest in the record," John G. Danielson, Inc. v. Winchester-
Conant Props., Inc., 322 F.3d 26, 37 (1st Cir. 2003), we go on. We
10
It is true that plaintiff did not speak publicly about
her cover-up accusation; indeed, she specifically denied that she
had done so. But the First Amendment protects employee speech
about matters of public concern even if the employee does not seek
to make that speech to an audience outside the workplace. Givhan
v. W. Line Consol. Sch. Dist., 439 U.S. 410, 414 (1979); see also
Rankin, 483 U.S. at 387; O'Connor, 994 F.2d at 916.
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will assume without deciding that plaintiff satisfies the second
test. In general, government interests outweigh First Amendment
rights when employee speech prevents efficient provision of
government services or disrupts the workplace. See Rankin, 483
U.S. at 388-89; Connick, 461 U.S. at 152-54; see also Hennessy, 194
F.3d at 248 (teacher's immoderate, intransigent, and public
criticism of curriculum undermined operation of school). Here,
however, plaintiff wrote a private memo which she worded fairly
diplomatically; it is difficult to think of a less disruptive
manner in which plaintiff might have communicated. See O'Connor,
994 F.2d at 915-17 (town employee who disclosed alleged wrongdoing
by a town selectman to the full Board of Selectmen passed second
test, despite the fact that he also had personal reasons for doing
so).
We will likewise assume that plaintiff has met her
initial burden under the third test to create a question of fact
for the jury as to whether the memo was at least a substantial or
motivating factor in her termination. Mt. Healthy, 429 U.S. at
287. After all, it was Torres-Rivera's complaint about her,
shortly after her memo to him, that initiated the investigation,
and plaintiff need not produce a "smoking gun" to carry this
burden. Lewis v. City of Boston, 321 F.3d 207, 219 (1st Cir.
2003).
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All of this is to no avail for plaintiff if, under the
third test, the defendants have met their burdens of both
persuasion and proof to demonstrate other reasons for the adverse
actions besides her speech. The uncontested facts and the
documentation submitted by defendants supply several such reasons.
Plaintiff, as the party opposing summary judgment, has not produced
any evidence creating a material issue of fact that she would not
have been terminated in any event for insubordination or for
absenteeism. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986).
Defendants' uncontested evidence that plaintiff would
have been terminated anyway is buttressed by the conclusions
reached during the administrative investigation and appeal. The
report by Rivera-Buonomo concluded that plaintiff violated several
departmental policies unconnected to her speech. It found that
plaintiff was absent without authorization for a prolonged period
and that she disobeyed several direct orders to submit a report on
the investigation, which constituted insubordination. Moreover,
the uncontested fact is that she was required to identify her
informant to her supervisors; refusal to do so amounted to
insubordination. The record plainly shows insubordination.
Defendants also submitted a sworn statement from the
hearing officer, who concluded there was both unauthorized absence
and insubordination, and who says that he decided the issues at the
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hearing "based on the law and the evidence there presented. No
other factors were taken into consideration when deciding on the
facts of the hearing . . . and no one intervened with my
recommendations, either before or after the hearing." Plaintiff
testified at that hearing and was represented there by an attorney.
The defendants have offered ample uncontested evidence that the
same decisions as to her employment would have been reached whether
or not plaintiff sent the memo to Torres-Rivera. See Mt. Healthy,
429 U.S. at 285; Wytrwal, 70 F.3d at 171.11
Plaintiff protests in her brief to us that these
determinations, made during the disciplinary process, were
factually incorrect in various ways. We assume that it would be
probative for plaintiff if she could show she was subjected to a
biased kangaroo court in the disciplinary process. But her
objections come too late. Even assuming, dubitante, that such
evidence exists, she failed to contest these facts before the
district court within the deadlines established by the local rules,
and to provide evidence -- not just assertions -- that the process
11
As to the change in plaintiff's duties, as discussed
above, plaintiff's own sworn statement indicates that this change
was temporary. The only remedies still at stake in the case are
emotional distress and similar damages, and plaintiff has not
adequately demonstrated that she suffered any such harm from
whatever changes in duties occurred. See Memphis Cmty. Sch. Dist.
v. Stachura, 477 U.S. 299, 309-10 (1986) (damages in § 1983 case
based on First Amendment must be compensatory). This is not a
situation comparable to Nethersole, 287 F.3d at 17, where a
university's statewide vice president was transferred to another
campus and made an assistant dean.
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had been biased and flawed. Plaintiff has lost the right to make
these arguments. Parties ignore rules such as Local Rule 311.12 at
their peril. Ruiz-Rivera, 209 F.3d at 27-28. "[T]he decision to
sit idly by and allow the summary judgment proponent to configure
the record is likely to prove fraught with consequence. This case
is no exception." Kelly, 924 F.2d at 358.
Because defendants have carried their Mt. Healthy burden
on the facts of record, the First Amendment claim fails.
C. Conspiracy
Finally, plaintiff alleges a conspiracy to deprive her of
civil rights, actionable under 42 U.S.C. §§ 1983 and 1985(3).
Under § 1985(3), a conspiracy must be motivated by some "racial, or
perhaps otherwise class-based, invidiously discriminatory animus."
Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 268-69
(1993) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971));
see Romero-Barcelo v. Hernandez-Agosto, 75 F.3d 23, 34 (1st Cir.
1996). Plaintiff failed to offer any indication whatsoever that
this threshold requirement of class-based animus has been met.
To demonstrate conspiracy under § 1983, plaintiff must
show "an actual abridgement of some federally-secured right."
Nieves v. McSweeney, 241 F.3d 46, 53 (1st Cir. 2001) ("The fact
that a plaintiff styles her claim as a conspiracy . . . does not
diminish her need to show a constitutional deprivation."); see
Earle v. Benoit, 850 F.2d 836, 844 (1st Cir. 1988). Plaintiff
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cannot resuscitate her failed constitutional claims to prove
conspiracy. Summary judgment was proper against both claims.
III.
For the reasons stated in this opinion, the judgment of
the district court is affirmed. Costs are awarded to defendants.
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