Torres-Rosado v. Rotger-Sabat

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: Lynch
• Citation: Torres-Rosado v. Rotger-Sabat, 335 F.3d 1 (1st Cir. 2003)
• Decision Date: 02 July 2003
• Docket Number: No. 02-2103.,02-2103.
• Parties: Marta I. TORRES-ROSADO, Plaintiff, Appellant, v. Ángel E. ROTGER-SABAT; José A. Fuentes-Agostini; Aníbal Torres-Rivera, Defendants, Appellees, José R. Ramos-Román; Itala Rivera-Buonomo; Edwin Vázquez-Berrios; Carlos D. Riestra-Cortés, Defendants.

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335 F.3d 1

Marta I. TORRES-ROSADO, Plaintiff, Appellant, v. Ángel E. ROTGER-SABAT; José A. Fuentes-Agostini; Aníbal Torres-Rivera, Defendants, Appellees José R. Ramos-Román; Itala Rivera-Buonomo; Edwin Vázquez-Berrios; Carlos D. Riestra-Cortés, Defendants.

No. 02-2103.

United States Court of Appeals, First Circuit.

Heard May 6, 2003.

July 2, 2003.

COPYRIGHT MATERIAL OMITTED

Manuel R. Suarez Jiménez for appellant.

Leticia Casalduc-Rabell, Assistant Solicitor General, with whom Roberto Y. Sánchez-Ramos, Solicitor General, and Vanessa Lugo-Flores, Deputy Solicitor General, were on brief for appellees.

Before SELYA, Circuit Judge, CYR, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

This is an appeal from entry of summary judgment against claims by a public employee that her superiors retaliated for her speech on a matter of public concern and terminated her employment without due process. Plaintiff Marta Torres-Rosado, an agent in the Puerto Rico Justice Department's Special Investigations Bureau (SIB), claims that her superiors fired her because she wrote a confidential internal memorandum suggesting that the SIB's investigation of an important politician might be "paralyzed" as part of a cover-up. She has since been reinstated, pursuant to a settlement of related litigation in the Puerto Rico courts.

The defendants remaining in the case are Aníbal Torres-Rivera, Ángel Rotger-Sabat, and José Fuentes-Agostini, who were, at the relevant time, Director of the SIB, Assistant Attorney General, and Attorney General, respectively. In her federal case, brought under 42 U.S.C. §§ 1983, 1985 (2000), plaintiff¹ claims that these defendants denied her procedural due process, violated her First Amendment rights, and engaged in a conspiracy to deprive her of civil rights. She also advanced pendent claims under Puerto Rico law that are not part of this appeal.

The district court granted summary judgment to defendants on all federal claims and declined jurisdiction over the pendent claims. We affirm the dismissal of the due process and civil rights conspiracy claims. On the First Amendment claim, we find that the district court erred in determining that plaintiff's memo raised no issue of public concern. Nonetheless, we affirm summary judgment against the First Amendment claim on other grounds.

I.

A. Scope of Summary Judgment Record

Before turning to the facts of the case, we address a preliminary question of what material should properly be considered in the summary judgment record before us. The district court deemed defendants' motion for summary judgment, and the factual assertions supporting it, to be unopposed, because plaintiff failed to file timely oppositions to them. See Torres Rosado v. Rotger Sabat, 204 F.Supp.2d 252, 253 & n. 1 (D.P.R.2002). Such oppositions are required by the district court's local rules. See D.P.R. R. 311.5, 311.12. This court has held repeatedly that the district court in Puerto Rico is justified in holding one party's submitted uncontested facts to be admitted when the other party fails to file oppositions in compliance with local rules. See, e.g, United Parcel Serv., Inc. v. Flores-Galarza, 318 F.3d 323, 330 & n. 10 (1st Cir.2003); Corrada Betances v. Sea-Land Serv., Inc., 248 F.3d 40, 43 (1st Cir.2001); Morales v. A.C. Orssleff's EFTF, 246 F.3d 32, 33-34 (1st Cir.2001); Ruiz Rivera v. Riley, 209 F.3d 24, 27-28 (1st Cir.2000). This, of course, does not mean the unopposed party wins on summary judgment; that party's uncontested facts and other evidentiary facts of record must still show that the party is entitled to summary judgment.

Defendants moved for summary judgment on April 15, 2002, and included with their motion a statement of uncontested facts. Plaintiff's response was due ten days later. See D.P.R. R. 311.5. This deadline came and went, and only on April 29 did plaintiff submit a motion requesting still another week to respond — an extension which would have taken her response up to the eve of the trial date that had been set in a pretrial order entered five months before. The next day, April 30, the district court denied the requested extension. Plaintiff nonetheless filed her belated response on May 7, 2002, the same day that the district court granted summary judgment. The plaintiff later moved for reconsideration, arguing that the court should consider her tardy opposition. The court denied this motion in a detailed unpublished opinion issued on July 11, 2002.

Plaintiff's appellate briefs draw repeatedly on facts and arguments that were included only in the rejected filing, and her notice of appeal encompasses the denial of the motion to reconsider. However, she does not offer any sustained argument that the court erred in denying the initial extension of time or the motion to reconsider. The failure to argue the point means that the issue has been waived. See Donovan v. City of Haverhill, 311 F.3d 74, 76 (1st Cir.2002).²

When the district court granted defendants' summary judgment motion, its findings of fact were based on the defendants' submission of uncontested facts. See Torres Rosado, 204 F.Supp.2d at 253-56 & n. 1.³ On appeal, we consider the same record that was before the district court. The uncontested facts are deemed admitted. A small amount of other material qualifies as part of the summary judgment record, such as a verified objection filed by plaintiff at an earlier stage of the litigation and some portions of depositions and interrogatories submitted to the court.

B. Factual Background

In October 1998, plaintiff was a career employee of the SIB with approximately fifteen years of experience. She held the title of "Agent III." She also supervised a public integrity squad. Torres-Rivera conferred these supervisory duties on plaintiff; they were not part of plaintiff's status as an Agent III, nor were they assigned through civil service competition.

One of the squad's pending investigations concerned corruption allegations against Aníbal Marrero-Pérez, then the vice president of the Puerto Rico Senate. Plaintiff had a confidential informant who was providing information to her about alleged unlawful behavior by Marrero. Apparently, this informant provided plaintiff with an accusation and some evidence suggesting that Marrero had received an improper payment.

Plaintiff wrote a four-paragraph internal memorandum to Torres-Rivera on October 16, 1998 expressing concerns about the pace of the Marrero investigation. The first and fourth paragraphs of the memo alluded to leads that had been developed in the case.⁴ The middle two paragraphs stated:

It is my concern that at present this investigation is paralyzed due to lack of communication with you, since it is you who are authorized to give us instructions whether to proceed or not regarding this case with the aforesaid debriefings.

At the last meeting held with you, you indicated that you would make efforts to verify with the federal agencies whether there was any investigation into this matter to thus know what course of action to follow.

The memo closed, "For your information and appropriate action."

A week later, on Friday, October 23, Torres-Rivera wrote a memo responding to plaintiff. It quoted her accusation of paralysis and then stated:

Your concern is groundless, inasmuch as communication with my office flows openly at my request or at the request of a party. It is by means of your memorandum that I found out about the information you cited. I do not know what your intentions are in making such serious imputations.

In the face of your assertion, I have no other alternative but to withdraw you from my trust as a supervisor....

The memo instructed plaintiff to report for duty to José Ramos, another SIB official, the following Monday.

The same day, Friday, Torres-Rivera and Ramos held a meeting with plaintiff where Torres-Rivera read her this memo aloud and said that plaintiff would be removed from the Marrero investigation. The following Monday, however, Torres-Rivera wrote another memo to plaintiff which reversed this decision and reinstated her as the agent in charge of the Marrero investigation.⁵ This memo concluded, "I reiterate that all the resources necessary to help you conduct this investigation to the consequences that it warrants, will be at your disposal."⁶

During the meeting on Friday, after she had been given the memo and told that she was being removed from the investigation, plaintiff asked that she be allowed to use some accumulated vacation time. She filed a form, which Ramos signed, requesting leave from the following Monday until December 8. Torres-Rivera told her at that meeting that she could commence her leave only after filing a report about the Marrero investigation. After the meeting, but before she left the premises, she told Ramos that she refused to complete the report that she had been ordered to prepare because she did not want to name her informant to another agent.

Plaintiff did not come to work the following Monday, October 26. She telephoned Ramos and told him that her young son was sick and she would be unable to come to the office. She says that she indicated in this conversation that he had chicken pox and that she was potentially contagious. Also on Monday, Torres-Rivera went to Ramos' office and asked if plaintiff had filed the report; when he found out that she had not done so, he annotated the vacation request form that Ramos had signed, indicating that plaintiff could not take leave until she handed in the report. Meanwhile, plaintiff had attempted to go over Torres-Rivera's head by requesting and receiving an appointment with Rotger-Sabat at 3:00 that day, an appointment she then cancelled. Finally, in another telephone conversation between plaintiff and Ramos that day, Ramos told her that no vacation time was approved until she submitted the report, and she repeated her previous statements about not revealing...