Diaz-Bigio v. Santini

United States Court of Appeals
For the First Circuit
No. 09-2575
MARÍA S. DÍAZ-BIGIO,
Plaintiff, Appellee,
v.
JORGE SANTINI, in his official and personal capacity as Mayor;
DR. ALFREDO ESCALERA, in his official and personal capacity;
MARITZA AGUILAR-JUSINO, in her official and personal capacity;
JORGE COLOMER-MONTES, in his official and personal capacity;
ELMER SAURÍ-SANTIAGO, in his official and personal capacity,
Defendants, Appellants,
MUNICIPALITY OF SAN JUAN, ET AL.,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Harry D. Leinenweber,* U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Siler,** Circuit Judges.
Eliezer A. Aldarondo-López, with whom Claudio Aliff-Ortiz,
Iván M. Castro-Ortiz, and Aldarondo & López Bras, PSC were on
brief, for appellant Aguilar-Jusino.
*
Of the Northern District of Illinois, sitting by
designation.
**
Of the Sixth Circuit, sitting by designation.
Vanessa Saxton-Arroyo, with whom Toledo & Toledo Law Offices
PSC was on brief, for appellant Escalera.
Francisco J. Amundaray, with whom Ricardo Pascual and
Mercado, Soto, Ronda, Amundaray & Pascual, PSC were on brief, for
appellants Santini, Colomer-Montes, and Saurí-Santiago.
Rosa M. Seguí Cordero, with whom Simonet Sierra Law Office
was on brief, for appellee.
June 29, 2011
LYNCH, Chief Judge. Plaintiff Maria Díaz-Bigio, who
was a Medical Social Worker at the Health Department of San Juan,
Puerto Rico, brought this suit against the Municipality of San Juan
and several city officials under 42 U.S.C. § 1983, alleging that
they fired her in retaliation for statements she made on matters of
public concern in violation of the First Amendment. Her complaint
requested reinstatement and monetary damages. Before us is an
interlocutory appeal from the district court's denial of summary
judgment to the individual defendants in their personal capacities
on grounds of qualified immunity.
Díaz-Bigio made statements in August 2004 accusing the
Executive Director of the Health Department of having a serious
conflict of interest. In both print and radio media, she alleged
that he had economic interests in companies and a medical group
that had been given Health Department contracts. The city
immediately investigated these charges, and Díaz-Bigio was twice
issued a summons to provide testimony in support of her
allegations, but she refused to do so. After the investigation
concluded that the charges were false and groundless, the city
notified Díaz-Bigio that it intended to terminate her employment
and that she had the right to an administrative hearing on the
issue. After that hearing on December 6, in which she again
declined to testify, she was fired. The letter of termination
informed her that in making false and groundless allegations
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against the Executive Director of the Health Department and failing
to comply with the summons to appear before the body investigating
her allegations, she had broken several laws and regulations
governing her obligations as a public employee.
The question before us is whether the undisputed facts of
the record demonstrate that a reasonable public official could have
concluded that terminating Díaz-Bigio's employment in these
circumstances would not violate her First Amendment rights. The
answer to this question determines whether the defendants are
entitled to qualified immunity. The district court concluded that
they are not. Díaz-Bigio v. Municipality of San Juan, No. 06-1704,
2009 WL 3497961 (D.P.R. Oct. 28, 2009). We reverse and direct
entry of judgment for defendants in their individual capacities on
grounds of qualified immunity.
I.
A claim of qualified immunity demands deference to the
objectively reasonable beliefs and actions of the defendants as to
the constitutionality of their actions, even if the beliefs are
mistaken. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011). The
summary judgment standard requires that reasonable inferences be
drawn in Díaz-Bigio's favor, as long they are based on facts that
"are put forward on personal knowledge or otherwise documented by
materials of evidentiary quality." Morelli v. Webster, 552 F.3d
12, 18-19 (1st Cir. 2009). We identify the "version of events that
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best comports with the summary judgment standard and then ask[]
whether, given that set of facts, a reasonable officer should have
known that his actions were unlawful." Id. at 19.
On August 16, 2004, Díaz-Bigio, apparently acting as the
president of the Brotherhood of Health Employees, made statements
during a demonstration in front of San Juan's Puerto Nuevo Health
Plus Center. In radio interviews and statements to newspapers,
Díaz-Bigio accused the Executive Director of San Juan's Health
Department, defendant Dr. Alfredo Escalera, of having economic
interests in a medical group that had a contract with the Center
and in private companies that provided emergency room, laboratory,
x-ray, and dental services to the Center. Díaz-Bigio further
alleged that this conflict of interest was responsible for
differences in the quality of the conditions in different areas of
the hospital to the benefit of Escalera.
In an interview on WAPA Radio, Díaz-Bigio stated that the
air conditioning "works in the areas of the hospital that Escalera
has privatized which is the emergency room, laboratory, X-Rays and
dental areas," but that "in the areas under San Juan Municipal
control, that are not generating money for Escalera, it is not
working." When asked, "Is it not generating money for the Health
Plus Center?" she responded, "No, it is generating money for
Escalera." This allegation was also reported in the El Vocero
newspaper, which quoted Díaz-Bigio as saying that the emergency
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room, laboratory, x-rays, and dental area of the Center "have air
conditioning and are in good condition because they belong to the
San Juan Vice-Mayor and Health Medical Director, Dr. Alfredo
Escalera."
Díaz-Bigio also stated, in an interview on Radio Puerto
Rico, that Dr. Escalera "is the owner of the Emergency Rooms," and
when a reporter asked what proof she had of this, she told the
reporter to look in the records of corporations registered with the
Puerto Rico State Department. She said, "You make the search, I
tell you what there is," but when asked for the name of the
corporation recorded with the State Department, she responded: "I
don't know, I can't tell you that. . . . The owner is Alfredo
Escalera. If with a group . . . it's as if it were an IPA."
Díaz-Bigio repeated her allegations in a press conference
on September 1, 2004. As reported the following day in the El
Nuevo Dia newspaper: "Maria Díaz-Bigio said that Dr. Escalera 'Owns
the MPL', but when she was asked to substantiate the accusations,
she declined to do so." This article also reported that the
Executive Director of the Brotherhood "was more cautious and
underscored that although he could not accuse Escalera of having a
contractual relation with the privatizing entity, he did allege
that he had 'some type of economic ties' with that company."
On August 17, 2004, the day after Díaz-Bigio first made
her accusations against Escalera, the Mayor of San Juan, defendant
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Jorge Santini, ordered San Juan's Internal Auditing Office to
initiate an internal investigation to determine whether the
allegations were true. The investigation was overseen by defendant
Elmer Saurí-Santiago, the Director of the Internal Auditing Office,
who explained in a report to the Mayor that the investigation was
carried out "in accordance with generally accepted governmental
rules and procedures in current auditing practices," using a
methodology that included obtaining statements under oath from the
implicated parties and reviewing pertinent documentary evidence.
Several sources of documents were considered in the
investigation. Records in the State Department were reviewed to
identify the directors and officers of the medical group operating
at the Center. Although Díaz-Bigio had claimed that this would
show that the group was controlled by Dr. Escalera, the
investigation found that Dr. Escalera was not among the group's
directors or officers during the relevant time period. The medical
group's contract with the Center was also reviewed to determine
when the contractual relationship originated and to identify the
executing parties. The investigation found that Dr. Escalera was
not an original party and that the relationship originated before
Dr. Escalera was a member of the cabinet of the municipal
administration. Finally, a certified report from the Collections
and Revenue Office showed that the city, and not Dr. Escalera, was
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receiving the payments from the Center's emergency room,
laboratory, x-rays, and dental services.
The Internal Auditing Office also obtained statements
under oath from Dr. Escalera, the contractors in the privatized
medical service areas, and the administrator and director of the
Center, none of which provided any support for Díaz-Bigio's
allegations.
Díaz-Bigio was aware that her claims against Dr. Escalera
were under investigation. On August 26, and again on August 30,
she was issued a summons to appear at the Internal Auditing Office
to make a statement under oath about everything that she knew
regarding her allegations, but she did not comply, despite express
instructions to do so from her supervisor. She did not comply with
the first summons because it requested that she appear three hours
after it was served and her attorney and union representative were
unavailable. She wrote a letter requesting that the appearance be
rescheduled and that she be given more notice. For the second
summons, she appeared at the requested time at the Internal
Auditing Office accompanied by her attorney and a representative
from the Brotherhood. When she was told that she needed to go into
the office alone, however, she declined to do so and left without
providing a statement.1
1
On September 3, 2004, Díaz-Bigio filed a complaint with
San Juan's Equal Employment Opportunity Office, alleging that she
had been the "victim of unfair, unequal and discriminatory
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On September 9, 2004, defendant Saurí-Santiago provided
a report on the investigation's findings to the Mayor. Summarizing
the evidence described above, he explained that the investigation
"was able to determine that there is insufficient competent and
relevant evidence to validate the expressions that were made by
Mrs. Maria Díaz-Bigio to the Press." He stated that the
investigation concluded that Díaz-Bigio's allegations "are lacking
in grounds," and that this was based on "evidence and testimony
that . . . we consider to be competent, sufficient and relevant."
The report concluded with recommendations that the Mayor send a
copy of the report to the Puerto Rico Governmental Ethics Office,
which was investigating the same matter, and that the Director of
Human Resources for the Municipality of San Juan evaluate the
report so that "appropriate action" could be taken.
On September 20, 2004, the Director of Human Resources,
defendant Martiza Aguilar-Jusino, sent a letter to Díaz-Bigio
notifying her that the city intended to terminate her employment
and that she had a right to a pre-termination hearing. The letter
summarized the allegations that Díaz-Bigio had made against Dr.
Escalera and informed her that based on an analysis of the
documents and testimony, her allegations were found to be false and
treatment" when she was prevented from bringing her attorney and
the representative from the Brotherhood into her meeting at the
Internal Auditing Office. There is nothing in the record about the
outcome of this complaint.
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groundless. It explained that she had obstructed the Internal
Auditing Office's investigation by failing to comply with express
instructions to appear and provide a statement in support of her
allegations. The letter also explained that in making these
groundless allegations of conflict of interest and failing to
respond to the Internal Auditing Office's summons, Díaz-Bigio had
violated several provisions of the laws and regulations defining
the duties and obligations of San Juan employees, including the
Governmental Ethics Regulation and the San Juan Municipal Conduct
and Disciplinary Actions Regulation. These regulations require
that employees not take actions that will "adversely affect the
trust of the public in the integrity and honesty of governmental
institutions," that they not make "false or defamatory averments
against other employees, supervisors, directors or against the
Nominating Authority," and that they "appear at a citation or
summons for an administrative procedure hearing or for an
investigation." Noting that Díaz-Bigio had been subject to earlier
disciplinary actions in 2002 and 2003, including a suspension for
10 days without pay, the letter explained that her "reiterated
pattern of conduct that violates the disciplinary rules applicable
to the employees of the Municipality of San Juan constitutes a
breach of labor peace and the defamatory and vicious nature of
[the] accusations justifies the filing of new charges."
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On December 6, 2004, the administrative hearing on Díaz-
Bigio's termination was held. Díaz-Bigio was present with counsel,
but refused to present any testimony or evidence on her behalf.
She stated she would not do so, on advice of counsel, because the
Governmental Ethics Office was in an ongoing investigation of Dr.
Escalera's alleged conflict of interest.
While the outcome of that hearing was pending, the Puerto
Rico Governmental Ethics Office issued a summons for Díaz-Bigio to
attend an interview on June 7, 2005, stating that she must bring
any documents, papers, or other "tangible things" containing
evidence that supported her allegations against Dr. Escalera. It
is unclear whether she provided the office with any such evidence.
In her deposition for this case, Díaz-Bigio stated that she could
not remember whether she brought any evidence. She also made an
admission that she never had any documents to sustain her
allegations and that the allegations were made relying on
"information" received at the Brotherhood.
In a letter dated June 28, 2005, San Juan's Secretary for
Administration, defendant Jorge Colomer-Montes, informed Díaz-Bigio
that she was being dismissed from her position in conformity with
the recommendation of the administrative panel after the hearing.
This letter reiterated the grounds for dismissal that were listed
in the September 20, 2004 letter from defendant Aguilar-Jusino.
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After Díaz-Bigio was dismissed, the Puerto Rico
Governmental Ethics Office completed its investigation of her
August claims that Dr. Escalera acted with a conflict of interest.
It found that Díaz-Bigio's allegations were groundless and
concluded that Dr. Escalera did not have "an economic interest in
said companies or a contractual relationship in this matter."
None of these facts are disputed by Díaz-Bigio.
II.
In general, "the denial of a motion for summary judgment
is not immediately appealable, but a denial of qualified immunity
may be appealed to the extent the decision is a 'purely legal'
one." Rodríguez-Rodríguez v. Ortiz-Vélez, 391 F.3d 36, 39 (1st
Cir. 2004). We have jurisdiction to decide whether Díaz-Bigio's
"own version of events together with uncontested facts entitles the
defendant[s] to immunity." Id. at 40; see also Valdizán v.
Rivera-Hernandez, 445 F.3d 63, 65 (1st Cir. 2006) ("[T]he court of
appeals retains jurisdiction to entertain an immediate appeal in
'situations in which the district court assumes a set of facts and
decides, as a matter of law, that those facts will not support a
qualified immunity defense.'" (quoting Camilo-Robles v. Hoyos, 151
F.3d 1, 8 (1st Cir. 1998))).
A. Qualified Immunity
The doctrine of qualified immunity protects public
officials "from liability for civil damages insofar as their
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conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)) (internal quotation
marks omitted). It provides "immunity from suit and not a mere
defense to liability." Maldonado v. Fontanes, 568 F.3d 263, 268
(1st Cir. 2009).
Under Pearson, we follow a two-prong analysis for
determining whether defendants are entitled to qualified immunity,
asking "(1) whether the facts alleged or shown by the plaintiff
make out a violation of a constitutional right; and (2) if so,
whether the right was 'clearly established' at the time of the
defendant's alleged violation." Id. at 269; see also al-Kidd, 131
S. Ct. at 2083. The second prong, in turn, has two parts: (a)
whether the legal contours of the right in question were
sufficiently clear that a reasonable official would have understood
that what he was doing violated that right, and (b) whether the
particular factual violation in question would have been clear to
a reasonable official. Decotiis v. Whittemore, 635 F.3d 22, 36
(1st Cir. 2011). The salient question is whether the state of the
law at the time gave a defendant "clear notice that what he was
doing was unconstitutional." Id. at 37 (quoting Costa–Urena v.
Segarra, 590 F.3d 18, 29 (1st Cir. 2009)) (internal quotation mark
omitted).
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Unlawfulness must be apparent at the time of the alleged
violation "in the light of pre-existing law." Anderson v.
Creighton, 483 U.S. 635, 640 (1987). "Immunity exists even where
the abstract 'right' invoked by the plaintiff is well-established,
so long as the official could reasonably have believed 'on the
facts' that no violation existed." Dirrane v. Brookline Police
Dep't, 315 F.3d 65, 69 (1st Cir. 2002). Although the Supreme Court
has made clear that municipal officers can "be on notice that their
conduct violates established law even in novel factual
circumstances," Hope v. Pelzer, 536 U.S. 730, 741 (2002), it has
also stressed that qualified immunity "protects 'all but the
plainly incompetent or those who knowingly violate the law,'"
al-Kidd, 131 S. Ct. at 2085 (quoting Malley v. Briggs, 475 U.S.
335, 341 (1986)).
A right is clearly established and immunity will not
issue only if "every 'reasonable official would have understood
that what he is doing violates that right.'" Id. at 2083 (quoting
Anderson, 483 U.S. at 640) (emphasis added). If "officers of
reasonable competence could disagree" on the lawfulness of the
action, they are entitled to immunity. Malley, 475 U.S. at 341.
B. The First Amendment
Although this case is about qualified immunity, we start
with the general requirements of a First Amendment retaliation
claim by a public employee. The law is "settled that as a general
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matter the First Amendment prohibits government officials from
subjecting an individual to retaliatory actions . . . for speaking
out," Hartman v. Moore, 547 U.S. 250, 256 (2006),2 but this
prohibition is not absolute. "[I]n recognition of the government's
interest in running an effective workplace, the protection that
public employees enjoy against speech-based reprisals is
qualified." Decotiis, 635 F.3d at 29 (quoting Mercado–Berrios v.
Cancel–Alegría, 611 F.3d 18, 26 (1st Cir. 2010)) (internal
quotation marks omitted); see also Rivera-Jiménez v. Pierluisi, 362
F.3d 87, 94 (1st Cir. 2004). Three requirements must be met to
make out a claim of unconstitutional retaliation in public employee
speech cases. Decotiis, 635 F.3d at 29-30.
First, the employee must have been speaking "as a citizen
on a matter of public concern." Garcetti v. Ceballos, 547 U.S.
410, 418 (2006). Otherwise, "the employee has no First Amendment
cause of action based on his or her employer's reaction to the
speech." Id.; see also Snyder v. Phelps, 131 S. Ct. 1207, 1215
(2011) ("[S]peech on 'matters of public concern' . . . is 'at the
heart of the First Amendment's protection.'" (alteration in
2
See also Powell v. Alexander, 391 F.3d 1, 16-17 (1st Cir.
2004) ("Retaliation, though it is not expressly referred to in the
Constitution, is nonetheless actionable because retaliatory actions
may tend to chill individuals' exercise of constitutional rights."
(quoting ACLU of Md., Inc. v. Wicomico Cnty., 999 F.2d 780, 785
(4th Cir. 1993)) (internal quotation marks omitted)).
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original) (quoting Dun & Bradstreet, Inc. v. Greenmoss Builders,
Inc., 472 U.S. 749, 758-759 (1985))).
Second, under the balancing test of Pickering v. Board of
Education, 391 U.S. 563, 568 (1968), the employee's First Amendment
interests in the speech must "outweigh the government's interests
as an employer in avoiding disruption in the workplace."
Rivera-Jiménez, 362 F.3d at 94. This balancing test "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." Rankin v.
McPherson, 483 U.S. 378, 384 (1987).
Third, the employee must meet the "burden of producing
sufficient direct or circumstantial evidence from which a jury
reasonably may infer that his constitutionally protected conduct
. . . was a 'substantial' or 'motivating' factor behind his
dismissal."3 Acevedo-Diaz v. Aponte, 1 F.3d 62, 67 (1st Cir.
1993); see also Guilloty Perez v. Pierluisi, 339 F.3d 43, 56 (1st
Cir. 2003).
3
The employee's burden of proving motivation "is more
substantial than the burden of producing prima facie evidence in,
for example, the first stage of a Title VII discrimination case."
Guilloty Perez v. Pierluisi, 339 F.3d 43, 56 n.11 (1st Cir. 2003).
The employee "must produce sufficient evidence of motivation at the
initial stage such that 'the burden of persuasion itself passes to
the defendant-employer.'" Id. (quoting Acevedo-Diaz v. Aponte, 1
F.3d 62, 67 (1st Cir.1993)).
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If an employee succeeds in establishing this causal
relationship, an employer can still defeat the claim "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.'" Id. (quoting Mt. Healthy City
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). These
two criteria--"the 'but for' causation test" and "the
defendant-employer's 'Mt. Healthy defense'"--"ensure[] 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." Acevedo-Diaz v. Aponte, 1 F.3d 62, 66
(1st Cir. 1993); see also Mt. Healthy, 429 U.S. at 285.
C. The Termination of Díaz-Bigio's Employment
Assuming arguendo that the facts alleged by Díaz-Bigio
set forth a claim of a First Amendment violation, we turn to the
second prong of Pearson and ask whether a reasonably competent city
official could have thought that he or she would not violate the
First Amendment by terminating Díaz-Bigio's employment given the
circumstances of the case--where the city investigated Díaz-Bigio's
much publicized allegations of serious improprieties by the
executive director of her department, where she refused to provide
testimony or evidence to corroborate her claims, where the
investigation determined that the claims were false and baseless,
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and where her actions were found to violate state and local
regulations.
Under a long line of cases from this circuit granting
qualified immunity, the defendants are entitled to summary judgment
because the outcome of the Pickering balancing of interests in this
case was not so clear as to put all reasonable officials on notice
that firing Díaz-Bigio would violate the law. Reasonable officials
could well have concluded there was no First Amendment violation on
these facts. See, e.g., Philip v. Cronin, 537 F.3d 26, 31, 34 (1st
Cir. 2008) (administrator of medical examiner's office could have
reasonably believed that firing an examiner who had sent letters to
the governor criticizing procedures used in office would not
violate First Amendment when there were other complaints about his
conduct); Wagner v. City of Holyoke, 404 F.3d 504, 507, 509 (1st
Cir. 2005) (police officials could have reasonably believed that
firing sergeant who made public allegations of corruption and
discrimination in police department would not violate First
Amendment when sergeant had, in doing so, disregarded
confidentiality protocols and bypassed chain of command); Fabiano
v. Hopkins, 352 F.3d 447, 450, 456, 458 (1st Cir. 2003) (city
officials could have reasonably believed that firing city attorney
who filed pro se suit alleging improper variance renewal by city's
zoning board of appeal would not violate First Amendment, even
though city eventually admitted allegations' truth, when lawsuit
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created potential conflict of interest); Dirrane, 315 F.3d at 68,
70-71 (police officials could have reasonably believed that
transferring an officer who had made complaints about the
falsification and destruction of fingerprint reports would not
violate First Amendment under circumstances of case); O'Connor v.
Steeves, 994 F.2d 905, 908, 916 n.8, 917 n.11 (1st Cir. 1993) (town
selectman could have reasonably believed that firing employee who
had publicly accused selectman of personal use of town funds would
not violate First Amendment even though allegations's truth was
undisputed, as outcome of Pickering balance was unclear).
As we have previously highlighted, "[w]e and other
circuits have noted that the Pickering balancing is 'subtle, yet
difficult to apply, and not yet well defined,' and that,
consequently, only in the extraordinary case will it have been
clearly established that a public employee's speech merited
constitutional protection." Jordan v. Carter, 428 F.3d 67, 75 (1st
Cir. 2005) (citation omitted) (quoting Pike v. Osborne, 301 F.3d
182, 185 (4th Cir. 2002)); see also Brewster v. Board of Educ., 149
F.3d 971, 980 (9th Cir. 1998) (listing cases).
Indeed, two years before Díaz-Bigio's termination, this
court held in Fabiano that "[b]ecause Pickering's constitutional
rule turns upon a fact-intensive balancing test, it can rarely be
considered 'clearly established'" for qualified immunity purposes.
Fabiano, 352 F.3d at 457 (quoting O'Connor, 994 F.2d at 917 n.11)
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(internal quotation marks omitted). Likewise, in Frazier v.
Bailey, 957 F.2d 920 (1st Cir. 1992), we held that "if the
existence of a right or the degree of protection it warrants in a
particular context is subject to a balancing test, the right can
rarely be considered 'clearly established,' at least in the absence
of closely corresponding factual or legal precedent." Id. at 931(quoting Myers v. Morris, 810 F.2d 1437, 1462 (8th Cir. 1987))
(internal quotation marks omitted). The case before us--in which
an investigation concluded that there was no basis for Díaz-Bigio's
very serious allegations of impropriety and self-dealing--is not
the exceptional case in which all reasonable officials would have
concluded they were barred by the First Amendment from terminating
her employment.
First, although Díaz-Bigio's allegations that a senior
public official had a conflict of interest that potentially
violated the law were on a clear matter of public concern,4 this
fact weighs on both sides of the Pickering balancing test, as it
4
See, e.g., O'Connor v. Steeves, 994 F.2d 905, 915 (1st
Cir. 1993) ("[A]llegations of improper purchases clearly
constituted a matter of legitimate public concern."); see also
Propst v. Bitzer, 39 F.3d 148, 152 (7th Cir. 1994) (holding that
allegations of misuse of university funds touched upon matters of
public concern); Conaway v. Smith, 853 F.2d 789, 797 (10th Cir.
1988) ("Speech that seeks to expose improper operations of the
government or questions the integrity of governmental officials
clearly concerns vital public interests."); McDowell v. Paiewonsky,
769 F.2d 942, 948 (3rd Cir. 1985) (holding that a "possible
conflict of interest of a government official" and "the awarding of
government contracts" are undeniably matters of public concern).
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means that the allegations could also prove highly disruptive to
public trust and confidence in the accused government office and
the functioning of the office. At the time of Díaz-Bigio's
termination, the law recognized that a government employer has a
strong interest in "preventing unnecessary disruptions and
inefficiencies in carrying out its public service mission."
Guilloty Perez, 339 F.3d at 52 (quoting O'Connor, 994 F.2d at 915)
(internal quotation marks omitted).
Also clear was the government's "wide discretion and
control over the management of its personnel and internal affairs
. . . includ[ing] the prerogative to remove employees whose conduct
hinders efficient operation and to do so with dispatch." Connick
v. Myers, 461 U.S. 138, 151 (1983) (quoting Arnett v. Kennedy, 416
U.S. 134, 168 (1974) (Powell, J., concurring in part)). Public
employers need not allege or show that an employee's speech
actually disrupted the workplace, and substantial weight has been
given "to government employers' reasonable predictions of
disruption." Waters v. Churchill, 511 U.S. 661, 673 (1994); see
also Curran v. Cousins, 509 F.3d 36, 49 (1st Cir. 2007) ("An
employer need not show an actual adverse effect in order to
terminate an employee under the Garcetti/Pickering test."). Here,
the nature of Díaz-Bigio's conduct supported a reasonable
prediction that her retention could cause disruption.
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That Díaz-Bigio made false and groundless allegations
could have been reasonably seen as part of a broader disciplinary
problem--a problem that included her refusal to appear before the
Internal Auditing Office's investigation after receiving a summons
and order to do so, as well as the behavior for which she had been
subject to prior disciplinary actions. The legitimate interest of
public employers in maintaining discipline is well established.
See, e.g., Rankin v. McPherson, 483 U.S. 378, 388 (1987) ("We have
previously recognized as pertinent considerations whether the
statement impairs discipline by superiors . . . ."); Guilloty
Perez, 339 F.3d at 53 (recognizing discipline as relevant
consideration). Here, this interest was formally stated in a
regulation, noted in the termination letter, authorizing
disciplinary action for employees who make "false or defamatory
averments against other employees, supervisors, directors, or
against the Nominating Authority." In addition, in failing to
appear before the Internal Auditing Office to substantiate her
allegations, Díaz-Bigio violated a direct order from her supervisor
and a regulation requiring that employees "appear at a citation or
summons for an administrative procedure hearing or for an
investigation." Reasonable officials would have found those facts
supportive of the view that her employment could be terminated.
Defendants could have also reasonably concluded that they
did not have the necessary confidence and trust in Díaz-Bigio to
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maintain her employment going forward. See Foote v. Town Of
Bedford, No. 10–2094, 2011 WL 1499901, at *4 (1st Cir. Apr. 21,
2011) ("'Precisely because [the plaintiffs'] speech did bear on the
job and on their working relationship,' the employer 'was permitted
to conclude reasonably that she did not have the necessary trust
and confidence to retain them.'" (quoting Flynn v. City of Boston,
140 F.3d 42, 47 (1st Cir. 1998))); Rendish v. City of Tacoma, 123
F.3d 1216, 1225 (9th Cir. 1997) (city had valid concerns supporting
termination when employee's allegations "demonstrated lack of trust
and confidence in the department").
That the city first investigated the allegations, then
learned that they were false and groundless, and only then
terminated Díaz-Bigio's employment further supports the grant of
qualified immunity. The truth or falsity of an employee's speech
is in itself a factor that is relevant in striking the balance
between the employee's right to free speech and the government's
interest in efficient administration. Brasslett v. Cota, 761 F.2d
827, 839 (1st Cir. 1985) ("[A]n employer has a greater interest in
curtailing erroneous statements than correct ones, and still a
greater interest in curtailing deliberate falsehoods."); see also
See v. City of Elyria, 502 F.3d 484, 493 (6th Cir. 2007) (stating
that falseness of statements should be considered under Pickering);
Johnson v. Multnomah County, 48 F.3d 420, 424 (9th Cir. 1995)
(same). Here, the city took Díaz-Bigio's charges seriously and
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investigated them, basing its termination decision on the fact that
they were found false and groundless. Cf. Dirrane, 315 F.3d at 70
(if an investigation had "determined that the allegations were
unfounded, the disruption they generated would have amply
justified" the transfer of the employee under Pickering); Brewster,
149 F.3d at 981 (under Pickering, termination of employment was
supported by the fact that employee's allegations were ultimately
determined to be false, both by his employer and by a team of
independent auditors). Of particular significance is the fact that
Díaz-Bigio failed to provide any evidence in support of her
allegations, despite requests and orders. A reasonable public
official could have easily concluded that the city could lawfully
fire an employee who made false allegations of possible criminal
activity by the executive director of a municipal department
without providing any supporting evidence.
On the facts of this case, a reasonable public official
even could have concluded that Díaz-Bigio made the allegations with
reckless indifference to the truth, and that this in itself
permitted termination. While the Supreme Court in Pickering
"expressly declined to adopt a rule directing that knowingly or
recklessly false statements are per se unprotected . . . the fact
that a statement is recklessly false may well create a presumption
that the employee's interest in uttering it is subordinate to the
government's interest in suppressing it." Brasslett, 761 F.2d at
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840; see also Gossman v. Allen, 950 F.2d 338, 342 (6th Cir. 1991)
("If an official reasonably believes that an employee made
statements with knowledge of, or reckless indifference to, their
falsity, the official would conclude that the employee could be
fired without offending the First Amendment. Qualified immunity
would therefore attach.").
Viewing the record as a whole, we find that the
defendants could have reasonably concluded that firing Díaz-Bigio
would not violate her First Amendment rights.5 Even if their
5
Díaz-Bigio's complaint also alleged that she was fired
because she made public statements about the deaths of patients in
the Bariatric Surgery Program of the San Juan Municipal Hospital
and these statements led the Health Department of Puerto Rico to
initiate an investigation that concluded with the closing of the
program. However, Díaz-Bigio presents no argument on appeal that
this was the actual reason for her dismissal or a violation of her
First Amendment rights, so she has waived the claim.
Even if we were to bypass the waiver, the claim would fail.
The evidence produced by Díaz-Bigio shows that she did not make any
statements about deaths in the program, and the Health Department
of Puerto Rico did not launch its investigation, until after the
city investigated her charges against Dr. Escalera, found them
false, and provided her with notice of its intent to terminate her
employment.
The only earlier statements about the bariatric program in the
record were at a February 18 Brotherhood press conference. This
press conference did not address the deaths of patients, but rather
focused on the different assertion that the bariatric program was
contrary to the purposes and financial interests of the hospital.
Such accusations are not relevant to Díaz-Bigio's claim. Further,
there is little detail in the record about what Díaz-Bigio herself
said at this event; the only evidence is her sworn declaration,
which says only that she "addressed issues regarding the Bariatric
Surgery Program" and "spoke about the contract" establishing the
program.
There is nothing in the record that would support a reasonable
inference that post-notice-of-dismissal statements about patient
deaths were a substantial or motivating cause for Díaz-Bigio's
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"reasoning were mistaken, it would not have been egregiously so
and, accordingly, qualified immunity is available." Wagner, 404
F.3d at 509; see also Decotiis, 635 F.3d at 38 (holding that
regardless of whether defendant did in fact violate plaintiff's
First Amendment rights, which was yet to be determined, defendant
was entitled to qualified immunity because a reasonable person in
defendant's position could have believed there was no violation).
III.
We reverse and remand with instructions to the district
court to enter summary judgment for defendants in their individual
capacities on grounds of qualified immunity.
dismissal, or that the reasons stated for her dismissal were a
pretext. On the contrary, the evidence is incompatible with such
inferences. As the evidence produced does not make out a First
Amendment violation, Díaz-Bigio's claim fails on the merits under
the first prong of Pearson. Further, under the second prong of
Pearson, defendants are entitled to immunity because, on the facts
of record, it is clear that reasonable officials, even if aware of
her February 18 statements and the time line, would still have
thought that firing Díaz-Bigio would not violate the First
Amendment.
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