Guilloty-Perez v. Fuentes Agostini

United States Court of Appeals
For the First Circuit

No. 00-1857

AMILCAR GUILLOTY PEREZ,

Plaintiff, Appellant,

v.

PEDRO PIERLUISI; LYDIA MORALES;
DOMINGO ALVAREZ AND ARMANDO SANCHEZ,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Héctor M. Laffitte, Chief U.S. District Judge]

Before

Torruella, Selya and Lipez, Circuit Judges.

Irma R. Valldejuli for appellant.
Roberto Márquez-Sanchez, with whom Law Offices of Benjamin
Acosta, Jr., was on brief, for appellees Pierluisi and Morales.
Leticia Casulduc Rabell, Assistant Solicitor General, with
whom Roberto J. Sanchez Ramos, Solicitor General, and Vanessa Lugo
Flores, Deputy Solicitor General, were on brief, for appellees
Alvarez and Sanchez.

August 7, 2003
 LIPEZ, Circuit Judge. Amilcar Guilloty Perez

("Guilloty"), an agent in the Special Investigation Bureau of the

Puerto Rico Department of Justice, brought suit against four

higher-ranking officials in the Department of Justice alleging that

they retaliated against him for exercising his First Amendment

rights. After an eight-day jury trial the district court granted

the defendants' motions for judgment as a matter of law under Fed.

R. Civ. P. 50. Guilloty now appeals, arguing that he presented

sufficient evidence for the case to go to the jury. We agree with

the district court that no reasonable jury could have rejected the

defense of the government officials that they would have given

Guilloty negative evaluations and extended his probationary period

even in the absence of his protected conduct.

I.

Guilloty brought suit under 42 U.S.C. § 1983 (2002),

arguing that certain Department of Justice officials retaliated

against him after he reported instances of alleged corruption and

improper handling of investigations within the Special

Investigation Bureau ("SIB"). Before we reach the question of

whether Guilloty adduced sufficient evidence of protected activity

and subsequent retaliation, we will summarize the relevant evidence

produced during the eight-day trial.

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A. The Parties

Guilloty has been an agent with the Department of Justice

since February 1994. After completing his training in May 1994,

Guilloty was assigned to the Organized Crime Investigation Division

of the Special Investigation Bureau, working out of the

Department's Ponce district office. Defendant-appellee Armando

Sanchez was Guilloty's immediate supervisor in the Ponce office

from May 1994 until Guilloty was transferred to a different office

in October 1996. Defendant-appellee Domingo Alvarez was the

director of the Organized Crime Investigation Division from July

1994 until December 1996, and was Sanchez's supervisor during that

time. Defendant-appellee Lydia Morales was the Director of the

Special Investigation Bureau from July 1994 through December 1996,

and served as Alvarez's supervisor. Pedro Pierluisi was the

Secretary of Justice during the relevant time period until December

1995. Among his numerous other duties, he served as Morales's

supervisor.1

B. Guilloty's Charges

Guilloty complained about three incidents involving the

conduct of his supervisor Sanchez and other agents in the Ponce

district office. The first incident and complaint related to a

1
Guilloty also brought suit against José Fuentes Agostini,
Pierluisi's successor as the Secretary of Justice of Puerto Rico.
The district court granted Fuentes Agostini's motion for summary
judgment before the trial began. Guilloty does not appeal this
ruling.

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botched drug importation investigation. In May 1995, Guilloty went

to see Director Alvarez to report that he had received information

from an informant in August 1994 that a corrupt police officer (not

one of the defendants) was providing protection for drug

shipments.2 Guilloty told Alvarez that he had passed this

information on to his supervisor Sanchez, and had also told Sanchez

that United States Customs agents were investigating the same

importation and cover-up and were interested in collaborating with

the Puerto Rican agents on this investigation. Guilloty told

Alvarez that while he made a number of reports between August 1994

and May 1995 and repeatedly asked Sanchez if he could share his

information with the federal agents working on the case, Sanchez

refused to act on the reports or make a final decision regarding

agency cooperation. Eventually, Guilloty passed on the results of

his investigation to the federal officers, and they arrested the

corrupt police officer and seized a shipment of drugs in May 1995.

Guilloty went to Alvarez in May 1995 to complain about Sanchez's

failure to fully authorize investigation of this drug shipment and

cover-up after Guilloty read in the newspaper about the arrests by

the federal officers.

In August 1995, a few months after his meeting with

Alvarez and after seeing no signs of an investigation, Guilloty met

2
We have provided an appendix setting forth a chronology of
the important dates and events in this case.

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with SIB Director Morales and made the same charges against his

supervisor, Sanchez. Morales told him she would order an internal

investigation of the incident, but Guilloty was never interviewed

as part of such an investigation, and Morales was never asked at

trial whether any such investigation occurred.

At this August 1995 meeting with SIB director Morales,

Guilloty informed her of his suspicions that Ponce district office

agents (including Sanchez) were receiving illegal gifts from the

owner of a local stable that Guilloty also suspected of being

involved in illegal drug importation. Guilloty had accompanied two

agents to the stable where they received what he believed to be

gifts of hay. During this visit, his fellow agents told him that

he could obtain a horse from the owner of the stable, and that

there was a horse waiting there for Sanchez as well. Director

Morales did not act on his information. Morales testified at trial

that Guilloty never told her about his suspicions regarding bribes.

Finally, Guilloty blew the whistle on a fellow agent who

allegedly made a false statement in an affidavit to support the

seizure of an automobile. In January 1995, a small group of Ponce

district agents, including Guilloty, executed an arrest warrant for

a suspect. One of the other agents involved in the arrest,

Maximino Rivera Laporte, filed a sworn statement to support the

seizure of the suspect's car. In that statement, he swore that the

suspect was observed smoking marijuana in his car before his

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arrest. Four months later, Guilloty became aware of the contents

of this sworn statement, and informed the agent in charge of the

case, Una Sepulveda, that the contents of the sworn statement were

false -- the suspect was not smoking marijuana in his car before

his arrest. At this same time, Sepulveda and Guilloty also

informed Sanchez of the false statements. Sanchez tried to

convince Guilloty to keep this incident quiet, offering him a

transfer he had asked for previously and other benefits. Instead,

Guilloty reported the incident to Director Alvarez when he met with

him in May 1995. Guilloty then reported the situation to Director

Morales at the August 1995 meeting.

These incidents of alleged corruption and questionable

police conduct -- the botched drug investigation, the gifts from

the stable, and the false statement and the bribe to keep it quiet

-- occurred over an eleven-month period between June 1994 and April

1995, but Guilloty first went to Director Alvarez in May 1995, and

then to Director Morales in August 1995 to report his suspicions.

Guilloty never met personally with Secretary Pierluisi. In

November 1996, the local newspaper El Vocero published a series of

articles discussing alleged corruption within the SIB, citing an

inside source. The parties do not dispute that Guilloty was the

inside source for these articles.

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C. Guilloty's Evaluations

At trial, the defendants and their witnesses testified

that Guilloty was underperforming as an agent with the SIB. In

September 1994, only three months after Guilloty began working with

the SIB, Sanchez, the supervisor of the SIB in the Ponce district

office, sent a memorandum to Director Alvarez detailing a number of

complaints raised by Guilloty's fellow agents. These agents

described Guilloty's inappropriate questioning of confidential

informants and otherwise questionable conduct while in the

community. Sanchez stated that he believed Guilloty could be

endangering his fellow agents by his conduct. Director Alvarez

forwarded this memo to Director Morales, who instructed Alvarez to

acquire "data" on Guilloty, including information on his history of

conduct with the SIB. Alvarez and Morales met to discuss the

problems with Guilloty.

In March 1995, Sanchez sent another memorandum to

Director Alvarez describing more recent problems Guilloty was

experiencing on the job. Specifically, Sanchez explained that

Guilloty had recently disrupted a nighttime surveillance of

suspected criminal behavior when he brought, and used, a flash

camera to photograph the individuals under surveillance. According

to Sanchez's memo, the subjects of the surveillance quickly

dispersed after seeing the flash, and the investigation was

scrapped. By the end of May, Sanchez had sent Alvarez three

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additional memos outlining problems he was having with Guilloty.

Sometime before May 1995, Sanchez's memos were given to Juan Reyes,

an SIB agent from a different district office, so that he could

conduct an independent investigation of the charges listed therein.

In August 1995, Reyes reported that the incidents described in the

memos could be substantiated, and he recommended that the charges

against Guilloty be referred to the Justice Department's Inspector

General.

During this time, Guilloty was still in his probationary

period as an agent and subject to regular evaluations.3 His first

evaluation, covering April 1994 to June 1994, was generally

negative, but his next three evaluations, covering three quarters

from July 1994 to March 1995, were generally positive. Guilloty's

final two evaluations, delivered to him in November 1995 and

January 1996, were highly critical, revealing negative conclusions

in nearly all categories listed.4

3
Justice Department agents are in probationary status for
their first two years in the Department. After the two years are
concluded, the Department is supposed to either offer the agent a
permanent position or discharge the agent. Hired in February 1994,
Guilloty should have been in probationary status only until
February 1996. In actuality, the Department did not make a final
decision regarding Guilloty's permanent status until three years
later. Although Guilloty eventually obtained permanent status, he
claims that this three-year period of uncertainty was a form of
retaliation for exercising his First Amendment rights.
4
Additionally, in January 1996, Sanchez submitted a memo to
Director Morales (through Director Alvarez) stating that Guilloty
had not completed the probationary period satisfactorily, and
recommending his dismissal. Guilloty was unaware of Sanchez's

-8-
 Guilloty lodged a formal complaint about these negative

evaluations by writing a letter to Alvarez, Morales, and Secretary

Pierluisi.5 In this letter, along with challenging the evaluations

directly, Guilloty claimed that the negative evaluations were an

attempt by Sanchez to retaliate against him for speaking out about

irregularities in the Ponce district office. After some discussion

between Morales and Secretary Pierluisi's office, Morales held a

meeting attended by Guilloty, Sanchez, Alvarez, and a Department

attorney in September 1996. Guilloty was presented with the memos

Sanchez had written between September 1994 and May 1995 detailing

Guilloty's errors on the job. Guilloty insisted that his conduct

was appropriate at all times, and Sanchez and Alvarez insisted that

the negative evaluations and memoranda correctly described

Guilloty's inappropriate conduct. Guilloty mentioned again to

Morales the questionable activities in the Ponce office, and he

told Morales that the negative evaluations Sanchez gave him were in

retaliation for his speaking to Alvarez and Morales about the

irregularities in the Ponce office. After the parties failed to

arrive at a compromise solution, Guilloty agreed to accept a

recommendation of dismissal at the time the memo was sent.
5
Guilloty also reported his disagreement with these negative
evaluations to Martha Marrero, a union representative at the
Department of Justice. Marrero eventually met with Secretary
Pierluisi to discuss Guilloty's situation, but Pierluisi did not
intervene in ongoing discussions among Guilloty, Sanchez, Alvarez
and Morales.

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transfer he had previously requested to a district office closer to

his home. He was transferred the next month.

D. The District Court's Decision

At the close of the plaintiff's case in chief, all four

defendants moved for judgment as a matter of law pursuant to Rule

50. The court granted the motion of defendant Secretary Pierluisi,

concluding that the evidence adduced by the plaintiff "fail[ed] to

show reckless disregard, callous disregard," for Guilloty's First

Amendment rights. The court denied the motion as to Morales,

Alvarez and Sanchez. After the close of the defendants' cases, the

three remaining defendants renewed their Rule 50 motions and also

argued for qualified immunity.

The court granted judgment for all three defendants and

subsequently filed an order explaining its decision. Finding that

Guilloty's complaints of corruption and questionable police tactics

were generally unsupported and overly disruptive to the operation

of the SIB, the court concluded that his First Amendment rights did

not outweigh the rights of the Department in efficient agency

performance. See Pickering v. Bd. of Educ., 391 U.S. 563, 568

(1968). The court also found that Guilloty could not show that his

speaking out was a substantial factor motivating the negative

evaluations he received, given that most of them were written

before he began to complain about the Department. See Mt. Healthy

City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).

-10-
Even if Guilloty had shown the requisite connection between the

evaluations and his speaking out, the court concluded that the

defendants "met the burden of showing that they would have taken

the same adverse actions against Guilloty even if he had never

spoken out on the alleged improprieties within the SIB." Guilloty-

Perez v. Sanchez, No. 97-1264 (HL), slip op. at 7 (D.P.R. May 12,

2000). On the question of qualified immunity, the court concluded

that the defendants were immune from suit because there was no

clearly established law indicating that the Department's treatment

of Guilloty's complaints was unconstitutional.

II.

We review the district court's grant of judgment as a

matter of law de novo. Espada v. Lugo, 312 F.3d 1, 2 (1st Cir.

2002). Judgment as a matter of law under Rule 50(a) is appropriate

if "there is no legally sufficient evidentiary basis for a

reasonable jury to find for the [non-moving] party." Fed. R. Civ.

P. 50(a)(1). In reviewing the district court's ruling, we apply

"the same standards as the district court," Katz v. City Metal Co.,

87 F.3d 26, 28 (1st Cir. 1996) (quoting Andrade v. Jamestown

Housing Auth., 82 F.3d 1179, 1186 (1st Cir. 1996)), meaning that we

"examine the evidence and all fair inferences in the light most

favorable to the plaintiff and may not consider the credibility of

witnesses, resolve conflicts in testimony, or evaluate the weight

of the evidence." Id. (quoting Richmond Steel, Inc. v. Puerto

-11-
Rican Am. Ins. Co., 954 F.2d 19, 22 (1st Cir. 1992)). If we

conclude that "fair-minded persons could draw different inferences

from the evidence presented at trial, the matter is for the jury,"

and judgment as a matter of law was improperly granted. Espada,

312 F.3d at 2. Nevertheless, if the non-moving party has the

burden of proof in the underlying case, that party must have

presented "more than a mere scintilla of evidence in its favor" to

withstand judgment as a matter of law. Invest Almaz v. Temple-

Inland Forest Prods. Corp., 243 F.3d 57, 76 (1st Cir. 2001)

(quoting Katz, 87 F.3d at 28) (internal quotation marks omitted).

A. First Amendment Rights of Government Employees

A government employee does not lose his First Amendment

right to comment on matters of public concern by virtue of his

employment with the government. Connick v. Myers, 461 U.S. 138,

147 (1983). When analyzing an employee's claim that his

governmental employer retaliated against him for speaking out, the

court's task is to seek "a balance between the interests of the

[employee], as a citizen, in commenting upon matters of public

concern and the interest of the State, as an employer, in promoting

the efficiency of the public services it performs through its

employees." Pickering, 391 U.S. at 568. Like the district court,

we consider this complicated relationship between free speech and

public employment through the prism of a three-part test extracted

from the Supreme Court's decisions in Connick, 461 U.S. at 147,

-12-
Pickering, 391 U.S. at 563, and Mt. Healthy, 429 U.S. at 274. See

Mullin v. Town of Fairhaven, 284 F.3d 31, 37-38 (1st Cir. 2002)

(setting forth three-part test).

Our first task, laid out by the Supreme Court in its

opinion in Connick, is to determine "whether the speech at issue

involves 'matters of public concern.'" Id. at 37 (quoting Connick,

461 U.S. at 147). If an employee speaks out only on a matter of

personal interest, the First Amendment value of his words is low,

and "absent the most unusual circumstances, a federal court is not

the appropriate forum in which to review the wisdom of a personnel

decision taken by a public agency allegedly in reaction to the

employee's behavior." Connick, 461 U.S. at 147. If the court

concludes that the employee did speak out on a matter of public

concern, the second step requires the court to "balance the

strength of plaintiffs' and the public's First Amendment interests

against the strength of the countervailing governmental interest in

promoting efficient performance of the public service the

government agency or entity must provide through" its employees.

Mullin, 284 F.3d at 37 (internal quotation marks omitted). This

evaluation of the employee's rights and the employer's interests is

referred to as the "Pickering balancing" test. See id., (citing

Pickering, 391 U.S. at 568). These first two parts of the analysis

-- the Connick matters of public concern and Pickering balancing

determinations -- "depend on whether the employee statements 'are

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of a character which the principles of the First Amendment . . .

protect,'" and, therefore, are questions of law subject to de novo

review. O'Connor v. Steeves, 994 F.2d 905, 912 (1st Cir. 1993)

(quoting Connick, 461 U.S. at 150 n.10).

If the court determines that the Pickering balance favors

the employee's First Amendment rights over the efficiency interests

of the government agency, the employee must next show that the

"protected expression was a substantial or motivating factor" in

the adverse employment decision. Mullin, 284 F.3d at 38 (citing

Mt. Healthy, 429 U.S. at 287). If the employee makes an adequate

showing on this point, the defendants must counter by proving by a

preponderance of the evidence that the governmental agency would

have taken the same action against the employee "even in the

absence of the protected conduct." Mt. Healthy, 429 U.S. at 287.

If the employer cannot adduce evidence of an alternative

justification for the employment action, or if that evidence, once

adduced, does not suffice to prove the point, the employee has

established a constitutional violation.

B. Application to Guilloty's Case

Guilloty's constitutional claim is based on the

statements he made to Sanchez, Alvarez, and Morales regarding three

incidents at the Ponce district office: (1) the allegedly

mishandled drug investigation; (2) the improper gifts allegedly

received by Ponce district agents from a stable owner; and (3) a

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fellow agent's false claims in a sworn statement. Guilloty argues

that his complaints to officials within his chain of command

constituted activity protected under the First Amendment, and that

the named defendants violated his constitutional rights by giving

him poor marks on his evaluations and withholding a determination

on his status as a permanent agent for three years.6

1. The Connick "Public Concern" Test

Turning to the Connick inquiry, we conclude that the

subjects of Guilloty's statements to his superior officers involved

matters of public concern. "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. Guilloty's statements described his

suspicion that the SIB was mishandling a potentially important

investigation and the possibilities of police corruption and

perjury. The diligence and lawfulness of a police department's

activities are matters of great interest to the public. See

Branton v. City of Dallas, 272 F.3d 730, 740 (5th Cir. 2001)

("Exposure of official misconduct, especially within the police

6
Although Secretary Pierluisi was involved neither in
Guilloty's evaluations nor in his appeals, Guilloty argues that the
Secretary is also liable under section 1983 because Guilloty
reported to him (in his letter objecting to the January 1996
evaluations and through his union representative Marrero) that he
was being retaliated against for speaking out about irregularities
in the Ponce district office but Pierluisi failed to take action.

-15-
department, is generally of great consequence to the public.").

Guilloty's frustrations with the conduct of his fellow agents and

his supervisor Sanchez went beyond mere concerns over the internal

working conditions of the department. See Connick, 461 U.S. 148

(concluding that plaintiff's questionnaire regarding office

transfer policy, morale and confidence in supervisors did not

implicate matters of public concern); Tang v. Rhode Island, 163

F.3d 7, 12 (1st Cir. 1998) ("None of these matters constitutes an

issue of public concern; they are all individual personal

complaints about working conditions."). Nor is there any

indication that Guilloty revealed his suspicions to Alvarez and

Morales to benefit himself personally or professionally. See

Mullin, 284 F.3d at 39 (recognizing that motive is relevant to the

analysis of whether an issue raised by a government employee is of

public concern). Finding that Guilloty's statements addressed

issues of public concern, we must move on to balance Guilloty's

interest in making those statements against the Department's

interests.

2. The Pickering Balancing Test

Under Pickering, we are required to balance the value of

an employee's speech -- both the employee's own interests and the

public's interest in the information the employee seeks to impart

-- against the employer's legitimate government interest in

"preventing unnecessary disruptions and inefficiencies in carrying

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out its public service mission." O'Connor, 994 F.2d at 915 (citing

Pickering, 391 U.S. at 568-75). As the Supreme Court explained in

Rankin v. McPherson:

This balancing is necessary in order to
accommodate the dual role of the public
employer as a provider of public services and
as a government entity operating under the
constraints of the First Amendment. On the
one hand, public employers are employers,
concerned with the efficient function of their
operations. . . . On the other hand, "the
threat of dismissal from public employment is
. . . a potent means of inhibiting speech."
Pickering, 391 U.S. at 574. Vigilance is
necessary to ensure that public employers do
not use authority over employees to silence
discourse, not because it hampers public
functions but simply because superiors
disagree with the content of employees'
speech.

483 U.S. 378, 384 (1987).

In evaluating this balance, the content of the employee's

speech is once again relevant. The Connick inquiry -- whether the

subject of the employee's speech was of public concern -- serves a

gatekeeping function in these cases by permitting a court to award

judgment to the defendant once it determines that the speech was

not of public concern. But the principles of Connick are also

relevant to the Pickering inquiry: the greater the value of the

subject of the speech to the public, the more the balance tilts

towards permitting the employee to express himself. As we found in

the previous section, Guilloty's reports to Sanchez, Alvarez and

Morales regarding misconduct and possible corruption within the SIB

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contained information of great interest to the public. "When

balancing the rights of the employee against those of the employer,

an employee's First Amendment interest is entitled to greater

weight where he is acting as a whistleblower in exposing government

corruption." Conaway v. Smith, 853 F.2d 789, 797 (10th Cir. 1988);

see O'Connor, 994 F.2d at 915 ("O'Connor's disclosures concerned

alleged abuse of public office on the part of an elected official,

a matter traditionally occupying the highest rung of the hierarchy

of first Amendment values."); see also Moore v. City of Wynnewood,

57 F.3d 924, 933 (10th Cir. 1995) ("For example, Moore did not

disclose any 'wrongdoing or inefficiency or other malfeasance on

the part of the government[],' which we have previously recognized

as particularly important matters of public concern.") (quoting

Koch v. City of Hutchinson, 847 F.2d 1436, 1445-47 (10th Cir. 1988)

(en banc) (alteration in original)). The substantial public

interest in Guilloty's observations as an agent with the SIB

"heavily weight[s] the Pickering scale in favor of First Amendment

protection against retaliation" for Guilloty's speech. O'Connor,

994 F.2d at 916.

On the other side of the balance is the Department of

Justice's legitimate interest in maintaining the effective

functioning of the SIB. The Supreme Court recognized in Rankin a

number of considerations pertinent to this analysis:

[W]hether the statement impairs discipline by
superiors or harmony among co-workers, has a

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 detrimental impact on close working
relationships for which personal loyalty and
confidence are necessary, or impedes the
performance of the speaker's duties or
interferes with the regular operation of the
enterprise.

483 U.S. at 388; see also McDonough v. Trs. of the Univ. of N.H.,

704 F.2d 780, 784 (1st Cir. 1983) (outlining similar factors). The

importance of discipline, maintenance of harmony among co-workers,

and close working relationships requiring personal loyalty and

confidence is greater in the context of a law enforcement agency

like the SIB than it might be in another type of government agency.

See Conaway, 853 F.2d 798 (comparing a police department to a

building inspection agency); see also Oladeinde v. City of

Birmingham, 230 F.3d 1275, 1293 (11th Cir. 2000) (recognizing the

"heightened need for order, loyalty, morale and harmony" in a

police department); Moore, 57 F.3d at 934 (same). Therefore,

courts must be sensitive to the needs of law enforcement agencies

in disciplining an employee whose expressive conduct interferes

with these interests.

Certainly, in theory, Guilloty's charges that his fellow

agents were accepting inappropriate gifts could have caused

conflict within the SIB. There was also the potential for conflict

in his complaints that his supervisor, Sanchez, mishandled an

investigation, and that a fellow agent submitted a false sworn

statement to support the seizure of a car. Nevertheless, the

defendants failed to show that there were any such disruptions.

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Guilloty did not go public with his complaints about the Ponce

district office until November 1996, at least one month after he

had been transferred out of the office. Until that time, Guilloty

primarily aired his concerns only to his superior officers --

Sanchez, Alvarez, and Morales.7 There is no evidence that any

internal investigations of his allegations occurred until after

they were published in the newspaper. Therefore, the possibility

of internal conflict among agents who knew they were under

investigation and still had to work alongside Guilloty, the

whistleblower, never materialized.

The district court stated in its written decision that

"the balancing at the second prong of the Pickering test supported

a finding that Guilloty's conduct had a detrimental impact on the

7
In one circumstance -- regarding the false sworn statement
-- Guilloty also made a fellow agent, Una Sepulveda, aware of the
improper conduct. Guilloty only became aware of the false contents
of this sworn statement when Agent Sepulveda was assigned to
organize the paperwork to support the arrest and the seizure of the
suspect's car. As Agent Sepulveda testified at trial: "I found
the sworn statement and I started reading it out loud, and it just
so happened that Guilloty was standing right next to me." Guilloty
remarked to Agent Sepulveda at that time that he did not believe
the facts of the sworn statement were true. Agent Sepulveda then
showed the statement to another agent and asked him whether the
facts in it were true. This agent agreed with Guilloty that the
affidavit contained false statements. Agent Sepulveda then took
this agent and Guilloty into Sanchez's office where Sepulveda
reported her suspicions. As Sanchez did not follow up on these
allegations, there is no evidence that any other agents (outside
those who met with Sanchez) ever found out about the allegations,
or that the agent who made the alleged false statement was
investigated, before Guilloty took his allegations to the
newspaper.

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working relationships of the Ponce SIB office. The evidence shows

that a number of [Guilloty's] fellow agents did not have faith in

him." Guilloty-Perez, slip op. at 4-5. After a thorough review of

the record, we disagree with the district court's finding of a link

between any lack of faith in Guilloty among his co-workers and

Guilloty's complaints. The documentary evidence and testimony

indicated that Ponce district office agents were hesitant to work

with Guilloty because he made inappropriate comments to

confidential informants and, in one instance, may have ruined an

investigation because he used the wrong type of surveillance

equipment. Sanchez summarized these complaints -- the reasons that

Ponce district agents were unwilling to work with Guilloty -- in

his September 1994 and March 1995 memos to Alvarez. There is no

evidence in the record that fellow agents had lost faith in

Guilloty or were unwilling to work with him because he had lodged

complaints with Sanchez, Alvarez or Morales.8

In this manner, this case is similar to the situation

presented in O'Connor v. Steeves, 994 F.2d at 916. There, we

8
At the time Sanchez was receiving complaints from Ponce
district office agents regarding Guilloty's tactics, Guilloty had
not yet taken his complaints beyond Sanchez's office. All parties
agree that Guilloty did not meet with Alvarez until May 1995 (and
Morales in August 1995), at least two months after Sanchez's memo
to Alvarez regarding the flash photography incident at the drug
surveillance. Therefore, it is debatable whether Guilloty even
engaged in any protected activity before May 1995, thus undermining
the defendants' claims of a link between such activity and co-
worker complaints recorded in September 1994 and March 1995.

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concluded that the Pickering balance weighed in favor of the

employee O'Connor because the defendant town had failed to

demonstrate a legitimate interest in curtailing O'Connor's

disclosures. "Although the Town has shown considerable disruption

in the Department operations, and serious deterioration in the

working relations between O'Connor and Steeves, . . . it has not

yet met its burden of showing that the disruption was attributable

to the exercise of O'Connor's First Amendment right to speak out on

this subject." Id. at 916 (emphasis added). O'Connor and Steeves

had a long-standing dispute regarding authority over a town

department that preceded O'Connor's public reporting of Steeves'

questionable activities. Id. at 908. Similarly, in Guilloty's

case, his fellow agents' complaints about him preceded his engaging

in protected activity. Complaints concerning Guilloty's conduct as

an agent are certainly relevant to this case because they provide

an alternative non-discriminatory reason justifying his negative

evaluations.9 Nevertheless, complaints about his conduct that are

not attributable to his protected activity have little relevance to

the Pickering balance.

In concluding that the Pickering balance weighed in favor

of the defendants, the district court also decided that two of the

three incidents Guilloty complained about -- the botched drug

investigation and the gifts from the stable owner -- were "lacking

9
See discussion infra Part II.B.3.

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in substance." Guilloty Perez, slip op. at 4. But as we have

previously held, "the mere fact that the statements [made by the

plaintiff] were erroneous does not remove them from the

Constitution's protection; erroneous remarks are an inevitable by-

product of unrestrained public debate." Brasslett v. Cota, 761

F.2d 827, 844 (1st Cir. 1985). Unless Guilloty "knowingly or

recklessly made false statements," the subsequent determination

that his allegations were untrue will not deprive them of their

constitutional protection. Id. There is no such evidence in this

case.

Consequently, because the defendants have not shown that

complaints about Guilloty's conduct as an agent are attributable to

his protected activity, they have failed to show a countervailing

governmental interest in quelling Guilloty's speech sufficient to

overcome the strong First Amendment interest in his whistleblowing

speech.10 Thus, the Pickering balance weighs in favor of Guilloty.

3. The Mt. Healthy "Substantial or Motivating Factor"
Test

Even if the government employee adduces sufficient

evidence to convince a court that his speech merits First Amendment

10
We are not suggesting that establishing a causal
relationship between Guilloty's protected conduct and complaints
about him from fellow officers would necessarily tilt the Pickering
balancing analysis in favor of the defendants. We are simply
saying that the failure to establish such a relationship precludes
a favorable finding for the defendants on the balancing analysis in
this case.

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protection, he still must introduce sufficient evidence to permit

a finding that his participation in this protected activity was a

substantial or motivating factor behind the adverse employment

action. Mt. Healthy, 429 U.S. at 287. In order to satisfy his

burden of proof, the employee need not produce direct evidence of

his employer's motivation. See, e.g., Brasslett, 761 F.2d at 846

("[T]he letter of dismissal written by [the defendant] . . . states

unequivocally that Brasslett's comments to the press were the

primary reason for his discharge."). "[A]s in other contexts where

motivation is an issue, he can rely upon circumstantial evidence."

Lewis v. City of Boston, 321 F.3d 207, 219 (1st Cir. 2003). The

Mt. Healthy causation test is a burden-shifting test. If the

plaintiff succeeds in establishing this causal relationship,11 the

11
In our recent decision in Lewis, we stated that "if [the
plaintiff] succeeds in establishing a prima facie case, the burden
of persuasion shifts to the [employer]. . . ." 321 F.3d at 219
(emphasis added). Taken in a vacuum, that statement understates
the plaintiff's Mt. Healthy burden. The plaintiff's burden of
proving motivation under the first stage of the Mt. Healthy test is
more substantial than the burden of producing prima facie evidence
in, for example, the first stage of a Title VII discrimination
case. A plaintiff in a Title VII case retains the ultimate burden
of persuasion, and therefore, need only make a modest initial
showing of discrimination before the defendant is required to offer
a non-discriminatory explanation. See Texas Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 256 (1981). In contrast, a plaintiff in
a First Amendment discrimination case must produce sufficient
evidence of motivation at the initial stage such that "the burden
of persuasion itself passes to the defendant-employer." Acevedo-
Diaz v. Aponte, 1 F.3d 62, 67 (1st Cir. 1993) (comparing Title VII
and First Amendment discrimination cases) (emphasis in original).
Therefore (even though discrimination must in both instances be
proved by a preponderance of the evidence), the initial burden on
the plaintiff under Mt. Healthy is more substantial than the "prima

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burden of persuasion shifts to the defendants to prove "by a

preponderance of the evidence," id., that the adverse employment

action would have been taken "even in the absence of the protected

conduct," Mt. Healthy, 429 U.S. at 287.

This question of motivation, though usually one for the

factfinder, can be resolved by the court on a summary judgment or

Rule 50 motion if the plaintiff's evidentiary showing is

insufficient. See, e.g., Torres-Rosado v. Rotger-Sabat, No. 02-

2103, 2003 WL 21508360, at *9 (1st Cir. July 2, 2003) (resolving

the Mt. Healthy question at the summary judgment stage); Lewis, 321

F.3d at 220 (same). This determination is fact-bound. Wytrwal v.

Saco Sch. Bd., 70 F.3d 165, 170 (1st Cir. 1995). Although we are

to "examine the evidence and all fair inferences in the light most

favorable to the plaintiff," Katz, 87 F.3d at 28, the plaintiff

who must prove that the protected conduct was a motivating factor

in the adverse employment action must produce some facts linking

that action to his conduct. See Rakovich v. Wade, 850 F.2d 1180,

1191 (7th Cir. 1988) ("[I]n the directed verdict and judgment

notwithstanding the verdict contexts, evidence of some disagreement

or dislike must be accompanied by evidence linking it to the

injury. More than mere speculation must serve as the basis for

finding that such disagreement is the 'motivating cause.'").

facie case" burden on Title VII plaintiffs. Logically, then, our
prior statement in Lewis cannot be read to imply a lighter burden.

-25-
Therefore, we will uphold a grant of judgment as a matter of law to

a defendant "only if: (1) the record evidence compelled the

conclusion that the plaintiff would have [suffered the adverse

employment action] in any event for nondiscriminatory reasons, or

(2) the plaintiff did not introduce sufficient evidence in the

first instance to shift the burden of persuasion to the

defendants." Acevedo-Diaz, 1 F.3d at 67 (emphasis added).

Guilloty argues that Sanchez, Alvarez, Morales, and

Pierluisi retaliated against him by returning negative evaluations

and keeping him on probationary status three years longer than he

should have been.12 The district court held that Guilloty's

protected activities could not have motivated the negative

evaluations because "the evidence showed that he began to receive

these negative evaluations before he spoke out." Guilloty Perez,

slip op. at 5. Our review of the record indicates that this is not

the case. Guilloty received five evaluations while assigned to the

Ponce district office. His first evaluation, given to him in

October 1994 and covering the period from April to June 1994, is

somewhat negative. It reports that Guilloty did not meet

expectations in two categories and excelled only in one category

12
As Guilloty's direct superior, Sanchez completed Guilloty's
evaluations. Evidence adduced at trial indicated that Alvarez and
Morales initialed evaluation forms to confirm that they had been
completed but did not routinely review the content of the
evaluations.

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(he "met" expectations in the other seven categories).13 But his

next evaluation is substantially better. Given to Guilloty in

December 1994 and covering the period from July to October 1994,

this evaluation reports that Guilloty excelled in eight categories

of review and met the expectations in the other two categories. He

was not below expectations in any categories. His next evaluation,

given to him on March 31, 1995, is similarly positive.

Guilloty did not receive another evaluation until January

1996, months after he had met with Alvarez and Morales to complain

about Sanchez and the Ponce district office. The two evaluations

he received in January 1996 were clearly negative. In one

evaluation, he received a positive remark in only one category --

personal appearance. He received "unsatisfactory" remarks in all

other categories of evaluation.14 The second evaluation he received

that month, supposedly the final evaluation of this probationary

period, revealed unsatisfactory marks in three categories of

evaluation. Hence, on this record, as a matter of sequence, the

evaluations Guilloty received after he met with Directors Alvarez

and Morales to complain about Sanchez and other officers were

13
While it is debatable whether this review is actually
negative, the evidence indicates that Guilloty was upset enough by
it to meet with his superiors to discuss it.
14
The SIB changed the format of its evaluation forms in 1995.
Instead of three evaluative categories -- "excels," "meets," or
"does not meet" expectations -- the new form had only two
categories -- satisfactory or unsatisfactory.

-27-
markedly lower than the evaluations he received before those

meetings. The proximity in time between the protected activity and

the alleged retaliation is circumstantial evidence of motive.

Ulrich v. City and County of San Francisco, 308 F.3d 968, 980 (9th

Cir. 2002); Pike v. Osborne, 301 F.3d 182, 185 (4th Cir. 2002).

The defendants testified that the ratings in Guilloty's

January 1996 evaluations were supported by a series of memoranda

Sanchez had written to Alvarez chronicling Guilloty's problems in

Ponce. As discussed above, Sanchez first memorialized in a memo to

Alvarez written in September 1994 a series of problems Ponce

district agents had with Guilloty. Between March 1995 and May

1995, Sanchez wrote an additional four memos (not shown to Guilloty

until over a year later) chronicling Guilloty's allegedly

inappropriate behavior on the job, including Guilloty's

unauthorized use of an official automobile, his use of a flash

camera during a nighttime surveillance, and his sleeping in the

backseat of a police car while another agent drove to and from a

surveillance. But even though Sanchez had been complaining about

Guilloty's conduct since September 1994, Guilloty received positive

evaluations from Sanchez in both December 1994 and March 1995.15

15
As discussed earlier, the first evaluation Guilloty received
after he was assigned to Ponce was somewhat negative -- it reported
that he "did not meet" expectations in two categories. Guilloty
complained about the conclusions in this evaluation, and he met
with Sanchez and Alvarez to discuss it. After that meeting,
Guilloty took his complaint no further. As this first evaluation
purported to cover the period from April 22 to June 22, 1994, and

-28-
He did not receive a negative evaluation until January 1996, after

he spoke with Alvarez and Morales. While the irregular and

inappropriate incidents described in Sanchez's memos may have

justified Guilloty's negative evaluations in January 1996, so too

would those incidents have justified negative evaluations in

December 1994 and March 1995. Sanchez, though, refrained from

giving Guilloty negative evaluations until after Guilloty spoke out

against him and other agents in Ponce. Considering the proximity

of Sanchez's change of attitude to Guilloty's complaints, we must

find that Guilloty introduced sufficient evidence of motivation to

shift the burden of persuasion under Mt. Healthy to the defendants.

In order to defeat Guilloty's claim, the defendants had

to articulate a non-discriminatory ground for his negative

evaluations and the extension of his probationary period, and prove

by a preponderance of the evidence that Guilloty would have

received those evaluations and the extension even in the absence of

his complaints to Alvarez and Morales. See Acevedo-Diaz, 1 F.3d at

66. The structure of the analysis under Mt. Healthy -- giving the

defendants the opportunity and the burden to rebut the causal link

the plaintiff previously established -- allows the court to root

was given to Guilloty on October 14, 1994, it is unclear whether
any of the events identified in Sanchez's September 20, 1994, memo
to Alvarez occurred during this evaluation period. It is clear,
though, that the incidents described in Sanchez's memo had occurred
by the time Sanchez evaluated Guilloty for the second time. This
second evaluation covered the period from July 15 to October 6,
1994, and it was delivered to Guilloty on December 12, 1994.

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out those cases in which retaliation may have been one factor, but

was not the only justification for the employment action. As the

Supreme Court unequivocally stated in Mt. Healthy, "the fact that

the protected conduct played a 'substantial part' in the actual

decision" would not necessarily amount to a constitutional

violation. 429 U.S. at 285. The court must assess the role that

other factors played in the employment decision. In Mt. Healthy,

for example, the Court considered the lower court's decision that

an employee whose contract was not renewed after he exercised his

First Amendment rights was entitled to reinstatement because he had

proved that retaliation played a "substantial part" in the

employer's decision. Id. at 276.

A rule of causation which focuses solely on
whether protected conduct played a part,
"substantial" or otherwise, in a decision not
to rehire, could place an employee in a better
position as a result of the exercise of
constitutionally protected conduct than he
would have occupied had he done nothing. The
difficulty with the rule enunciated by the
District Court is that it would require
reinstatement in cases where a dramatic and
perhaps abrasive incident is inevitably on the
minds of those responsible for the decision to
rehire, and does indeed play a part in that
decision -- even if the same decision would
have been reached had the incident not
occurred. The constitutional principle at
stake is sufficiently vindicated if such an
employee is placed in no worse a position than
if he had not engaged in the conduct. . . .
[An employee] ought not be able, by engaging
in such conduct, to prevent his employer from
assessing his performance record and reaching
a decision not to rehire on the basis of that
record, simply because the protected conduct

-30-
 makes the employer more certain of the
correctness of its decision.

Id. at 285-86; see Acevedo-Diaz, 1 F.3d at 66 ("[T]he . . . 'Mt.

Healthy defense' ensures that a plaintiff-employee who would have

been dismissed in any event on legitimate grounds is not placed in

a better position merely by virtue of the exercise of a

constitutional right irrelevant to the adverse employment

action."). Therefore, we must carefully consider the defendants'

contentions that Guilloty's conduct while an agent in the Ponce

district office justified his negative evaluations and the

extension of his probationary period.

The district court found that Guilloty "committed errors

and demonstrated poor judgment" during his first two years as an

agent in the Ponce district office. In its written opinion, the

court summarized the evidence presented at trial:

For example, [Guilloty] used a flash camera
during a nighttime surveillance, jeopardizing
both the investigation and the lives of the
agents involved. In an undercover operation
in Villalba, he attempted to make direct
contact with the principal target of the
investigation. One agent's uncontradicted
testimony stated that this conduct put at risk
the operation's success, as well as the safety
of SIB agents. In another undercover
operation, he revealed to a subject
information about the workings of the SIB
which made it obvious that Guilloty had to
have been an agent. And in the course of
another investigation, Guilloty was to drive
to Cabo Rojo with other agents. He was
instructed to be vigilant and on the look-out
for certain suspects. Instead, he slept in
the car ride out and back.

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 . . . .

There was also uncontradicted testimony that
Guilloty handled confidential informants
improperly. . . .

Guilloty-Perez, slip op. at 5-6. After an independent review of

the evidence presented at trial, we conclude that the district

judge's summary of the evidence was correct. In addition to the

testimony of Guilloty's supervisors and fellow officers, the

defendants introduced the report of the internal investigation

conducted by Agent Juan Reyes, a man with no ax to grind. Reyes

testified that the "errors and incidents of poor judgment"

articulated in Sanchez's memos to Alvarez could be corroborated by

Guilloty's fellow agents. At the time he completed his

investigation in August 1995, Reyes recommended that these

incidents should be referred to the Inspector General of the

Department of Justice.

At trial, Guilloty tried to question the accuracy of the

Reyes investigation by having two of the agents Reyes interviewed

explain their remarks as constructive criticism instead of the

outright criticism and lack of faith Reyes portrayed them to be.

Guilloty summarized their testimony in this same way in his brief

on appeal. Nevertheless, even if Agent Reyes interpreted these

agents' statements more negatively than they were intended, Agent

Reyes is not a defendant here. The defendants are Sanchez,

Alvarez, Morales and Pierluisi, who, after reading the report of

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Reyes' investigation, had no reason to question its reliability and

no reason to believe that his investigation did not support the

negative evaluations of Guilloty's work by Sanchez and Guilloty's

continued probationary status. Even if Guilloty's whistleblowing

activity caused anger among his superiors and ultimately

satisfaction among them over Guilloty's unhappiness with the

negative evaluations and the prolonged probation, the existence of

the Reyes report compels the conclusion that no reasonable jury

could have found that Guilloty would not have received the same

negative evaluations and extended probation even in the absence of

his protected activity. Therefore, the district court ruled

correctly in taking his section 1983 claim from the jury and

entering judgment for the defendants.

Affirmed.

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 Appendix: Important Dates and Events

February 1994 Guilloty begins training with the Department
of Justice.

May 1994 Guilloty completes training and is assigned
to the Ponce district office.

June/July 1994 Guilloty begins to suspect that Ponce
district agents are receiving bribes from the
owner of a local stable.

August 1994 Guilloty receives information about an
incoming drug shipment and a corrupt police
officer assisting drug traffickers. Guilloty
reports this to his supervisor, Sanchez.

September 1994 Sanchez authors memo to Director Alvarez
detailing a number of complaints Guilloty's
fellow agents raised about his conduct.
Alvarez forwards this memo to SIB Director
Morales.

October 1994 Guilloty receives first evaluation from
Sanchez describing average to below average
conduct.

December 1994 Guilloty receives a generally positive second
evaluation.

March 1995 Sanchez authors memo to Alvarez detailing
Guilloty's improper conduct as an agent.

March 1995 Guilloty receives third evaluation, also
generally positive.

March-May 1995 Sanchez authors at least four additional
memos outlining problems he is having with
Guilloty. Alvarez directs Agent Juan Reyes
to investigate the allegations of these memos
and the September 1994 memo.

April-May 1995 Guilloty becomes aware that Agent Maximino
Rivera Laporte allegedly filed a false sworn
statement to support the seizure of an
automobile. Guilloty reports this to
Sanchez.

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May 1995 Guilloty meets with Alvarez and tells
him that Sanchez mishandled a drug
importation investigation, and that Agent
Rivera Laporte filed a false statement.

August 1995 Guilloty meets with Morales and tells
her about the same three irregularities he
reported to Alvarez three months earlier.

August 1995 Juan Reyes completes the investigation of
charges against Guilloty listed in Sanchez's
memos and declares that the allegations were
corroborated by Guilloty's fellow agents.

January 1996 Guilloty receives two highly negative
evaluations from Sanchez. In response,
Guilloty writes a letter to Alvarez, Morales
and Secretary Pedro Pierluisi stating his
objections to the results of these
evaluations and suggesting they were written
in retaliation for his reporting of
irregularities to Alvarez and Morales.

September 1996 Guilloty meets with Sanchez, Alvarez, and
Morales to discuss the evaluations. He is
presented with Sanchez's series of memos
outlining Guilloty's problems as an agent.

October 1996 Guilloty is transferred out of the Ponce
district office.

November 1996 Local newspaper El Vocero publishes a series
of articles outlining alleged irregularities
in the Ponce office of the Department of
Justice. Guilloty is the inside source for
these articles.

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