# United Stat es Court of Appeals For the First C ircuit

No. 02-2103 MARTA I. TORRES-ROSADO, Plaintiff, Appellant,

v. ÁNGEL E. ROTGER-SABAT; JOSÉ A. FUENTES-AGOSTINI;

ANÍBAL TORRES-RIVERA, Defendants, Appellees;JOSÉ R. RAMOS-ROMÁN; ITALA RIVERA-BUONOMO; EDWIN VÁZQUEZBERRIOS; CARLOS D. RIESTRA-CORTÉS,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO [Hon. Jaime Pieras, Jr., Senior U.S. District Judge ]

Before Selya, Circuit Judge , Cyr, Senior Circuit Judge , and Lynch, Circuit Judge . Manuel R. Suarez Jiménez for appellant. Leticia Casalduc-Rabell , Assistant Solicitor General, with whom Roberto Y. Sánchez-Ramos , Solicitor General, and Vanessa Lugo-Flores , Deputy Solicitor General, were on brief for appellees. July 2, 20031 To avoid confusion between plaintiff Torres-Rosado and

defendant Torres-Rivera, we will refer to the former as "plaintiff." -2-

LYNCH, Circuit Judge . This is an appeal from entry of summary judgment against claims by a public employ ee that her superiors retaliated for her speech on a matter of public concern andterminatedher employment without due process. Plaintiff Marta Torres-Rosado, an agent in the Puerto Rico Justice Department's Special Inves tigations Bureau (SIB), claims that her superiors firedher because she wrote a confid enti al 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 TorresRivera, 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), plaintiff 1 claims that these defendants denied her procedural due process, viol ated 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 grantedsummary judgment to defendants

on all federal claims and de clined jurisdiction over the pendent-3-

claims. We affirm the dismissal of the due process and civi l rights conspiracy claims. On the First Amendment claim, we find that the district court erredin determining that plaintiff's memo raisedno 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 deemeddefendants' 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. RotgerSabat , 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 subm itt eduncontested 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-4-

unopposedparty 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, andincluded 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 Apr il 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 respo nse on Ma y 7, 2002, the same day that the district court grantedsummary judgment. The pla intiff 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. How eve r, she does not offer any sustained argument that the court erre d in denying the initial extension of time or the motion to reconsider. The failure to argue the point means2 Even if we considered the issue, we would find that the

district court was well within its discretion. In its unpublished opinion denying the motion for reconsiderat ion, the court exhaustively chronicled the plaintiff's repeated delays andmissed deadlines in this litigation. The court counted at least fifteen requests for extensions of time by plaintiff, many of which were filed after deadlines had already passed. Plaintiff did not even serve defendant Torres-Rivera, who was living in Romania at the time, until over a year after filing the compla int. One motion filedby plaintiff explaining the failure to meet deadlines is entitled, "Plaintiff's Attorney Apologies to the Court." The district court correctly said that it had been "more than generous" in offering plaintiff repeated extensions of time. Give n th e history of the litigation, and the clear deadlines found in both Local Rule 311.5 and the court's November 2001 pretrial order, this decision was quite justifiable.

3 There is no merit in the su gges tion, advanced by plaintiff at oral argument, that the district court consideredthe late-filedfacts when it rejected the motion to reconsider, so that they are part of the record. Rather, in i ts order denying reconsideration, the district court meticulously explained why it rejectedplaintiff's filing. It then, as a matter of its discretion, went on to discuss why, "even if the Court had consideredplaintiff's factual problems with [defendants'] uncontestedfacts . . . it would have arrived at the same conclusion." -5- 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. 2dat 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 ot her material qualifies as part of the summary judgment record, such as a verified objection filed by4 This memo and much of the rest of the record was written

in Spanish; we rely on the certified translations provided by the parties. -6- 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 confe rre d 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 informan t wh o was providing information to her about alleged unlawful behavior by Marrero. Apparently, this informant provided pla intiff with an accusation and some evidence suggesting th a t 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:-7- It is my concern that at present this invest igation is paralyzeddue 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 wouldmake efforts to verify with the fed eral 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."

Aweek 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 b y 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 wit hdraw 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 Ramo s he ld a meeting with plaintiff where Torres-Rivera read her this memo aloud

an d s aid that plaintiff would be removed from the Marrero investigation. The following Monday, however, Torres-Rivera wrote another memo to plaintiff which reversed this deci sion and reinstatedher as the agent in charge of the Marrero5 The translati on s ubmitted to this court indicates that

the memo wa s written on November 26, not October 26, but this appears to be an error, and the district court found that it was written on Mo nday, October 26. This conclusion makes sense, especially since Torres-Riv era no longer worked at the SIB by November 26.

6 I t i s not entirely clear from the record whether this reinstatement also extended to plaintiff's other supervisory d uties. Earlier in the litigation, plaintiff stated under o at h that she was a supervisor of the squad as well as the investigation "[a]t the time of her dismissal," suggesting that she regained both of her supervisory roles. -8- 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, af ter sh e 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 f rom 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 toldRamos that she refused to complete the report that she had been ordered to prepa re because she did not want to name her informant to another agent.

Plaintiff di d no t 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-9-

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 hadfiled the report; when he found out that she had not done so, he annotated the vacation request form that Ramos hadsig ned, 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 Ram o s that day, Ramos told her that no vacat ion time was approved until she submittedthe report, and she repeatedher previous statements about not revealing her confidential informant.

Plaint iff remained out of the office from October 26 until November 20. Her verified statement is that her two-year-old

son had ch icken pox between October 23 and November 11; that she and her son were both ill with bronchitis between November 11 and Nove mber 24 an d so she was unable to work; and that regulations instructedher not to go to work if she were exposed to a contagious disease. She later submitted medical documentation to her employer. Defendants have submitted sworn evidence indicating that plaintiff was informed several times during that period that her absence was unauthorized. She h as no t denied this; she says the SIB acquiesced to her leave by accepting her form.-10- During her absence, plaintiff did not hand in the report that Torres-Rivera had orderedher to submit. She receiveda memo on October 30 again instructing her to prepare the status report. Plaintiff does not say that she was physic ally unable to do so; indeed, her evidence is that she offered to come into the office andprepare the report, but would have to bring her contagious son.

While plaintiff was stil l out of the office, the newspaper El Vocero published nine articles concerning investigations of Senator Marrero for alleged corruption. Plaintiff denies speaking to journalists or anyone else concerning the case. Another El Vocero article in November reported that materials for santería rituals were found in plain tiff's SIB car andsugg este d that she was practicing witchcraft against TorresRi vera and other government officials. Plaintiff, a Roman Catholic, says the story was baseless.

Also during plaintiff's absence, Torres-Rivera left his position as director of the SIB; his last day was November 16. On that final day , he wrote a complaint, which he gave to Attorney General Fuentes-Agostini, requesting a disciplinary investigation of plaintiff. This complaint began by discussing the original memo from plaintiff, stating that it "described in writing a situation of lack of communi cation with the undersigned Director, alluding that for those reasons an investigation was paralyzed." It said that Torres-Rivera had removed plaintiff fr om her supervisory-11-

posi tion because of "the falseness of the imputations" and complainedabout her ignoring the chain of command by trying to meet with Rotger-Sabat. It went on to characterize her absence as unauthor ized ; there is no indication in the complaint that plaintiff had ever reque sted o r received approval for sick time. Because th e depa rtment's inspector general was friendly with plaintiff, she recused herself from any such inquiry, andFuentesAgostini assigned another employee, Itala Rivera-Buonomo, to investigate plaintiff for "improper conduct."

Plaintiff returned to work on November 20, before the end of her requested leave. It is unclear if she had learned of Torres-Rivera's complaint, but tha t da y she received a handdeliveredletter from Rivera-Buonomo informing her of the internal investigation of her conduct. Enclosed wi th the letter were vari ous documents on which the investigation relied, includi n g copies of Torres- Riv era's complaint and a memo from another SIB official, Carlos Riestra-Cortés, discussing her absence. Plaintiff delivered the report on the Marrero investigation on November 20; it was deeme d unsa tisfactory and she submitted a revised version four days later, which was also deemed unsatisfactory. On November 24, she turned in medical certificates and again requested regular vacation leave.

Rivera-Buonomo prepared a preliminary report about her investigation on Decem ber 9, 1998. According to the report,-12-

plaintiff had again been out of the office since November 24. Rivera-Buonomo concluded that, because plaintiff failed to follow rules concerning permission for absences, she had been "absent from her job from October 26, 1998 until November 20th without having her absence . . . authorized for any reason." The report also recountedsworn testimony by Ramos that plaintiff had told him she refusedto write the report about the Marrer o i nvestigation, in part because she did not want others to speak with her confidential informant, and that if Torres-Rivera "wanted information, that he shouldsearch for it." Rivera-Buonomo determined that this constitutedinsubordination. It is an uncontested fact that agents must disclose confidential sources to th eir supervisors upon request. On January 28, 1999, Fuentes-Agostini suspended plaintiff with pay and sen t h er a detailed letter informing her of the decision and the reasons for it, which were based on RiveraBuonomo's conclusions that plaintiff was absent without leave and insubordinate. Plaintiff appealed, and an administrative hearing concerning t he ch arges was held on April 9, 1999. Plaintiff was representedby counsel and had the opportunity to present evidence andtestimony. The hearing officer found that plaintiff's sick leave was not authorized, and that she resisted handing in her report because she did not want anyone else communicating with her confidential informant. As a result, he concluded that she had7 Although the settlement mooted much of the relief

plaintiff had sought, her federal complaint also pled emotional distress dam ages, including "partial hospitalization in a mental institution and a miscarriage." The record before us contains no evidence of these damages. -13- been absent without lea ve and had disobeyed orders, and that dismissal was warranted. Plaintiff's employment was terminated on June 30, 1999.

Plaintiff filed a defamation suit against Torres-Rivera in the Puerto Rico courts in November 1999, which alleged that he

was the source for El Vocero's santería story. In June 2001, a new attorney general reached a settlement of this defamation suit whereby plaintiff was reinstated with back pay. Plaintiff had filed her federal case on July 14, 2000. 7 II. Even where the rec ord is circumscribed because summary judgment was unopposed, a district court may grant summary judgment against the nonresponding party only "if appropriate." See Fed. R. Civ. P. 56(e). "Under this provision it is clear that where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if

no opposing evidentiary matter is presented." NEPSK, Inc. v. Town of Houlton , 283 F.3d 1, 7 (1st Cir. 2002) (quotation omitted); see Kelly v. United S tates , 924 F.2d 355, 358 (1st Cir. 1991) (in considering unopposed summary judg ment motion, "[o]f course, the district court was still obliged to consider the motion on its-14-

merit s"). We look at the "pleadings, depositions, answers t o interrogatories, and admissions on file, together with the affidavits, if any," Fed. R. Ci v. P. 56(c), and we apply the familiar de novo standard of review. See Mullen v. St. Paul Fire & Marine Ins. Co. , 972 F.2d 446, 452 (1st Cir. 1992). Plaintiff "may not rest upon the mere allegations or denials of [her] pleading." Fed. R. Civ. P. 56(e). An unsworn assertion of fact in the complaint alone is not enough to create a material factual dispute. A. Procedural Due Process

Plaintiff alleges her right t o procedural due process under the Fourteenth Amendment was violated , f irst when she was removedfrom her supervisory duties (but not from her status as an Agent III), then when she was suspended with pay, and finally when she was terminated. Constitutional procedural due process protects only those aspects of publ ic e mployment recognized as property interests; we refer to Puerto Rico law for guidance in defining such interests. Cleveland Bd. of Educ. v. Loudermill , 470 U.S. 532, 538 (1985); Figueroa-Serrano v. Ramos-Alverio , 221 F.3d 1, 5-6 (1st Cir. 2000).

Pla intiff's supervisory duties alone do not qualify a s such a protected interest -- even if we assume, despite indications to the contrary in her own sworn statement, that they were eliminatedpermanently. It was uncontested that the super viso ry-15-

duties were conferred on a discretionary basis to those of the rank of Agent III "who held the trust of the Director of the SIB." Torres-Rosado , 204 F. Supp. 2d at 254. Plaintiff was assigned these duties without any civil service competition. Id. Thus, she cannot demonstrate that Puerto Rico's public employment law created any "reasonable expectation, arising out of a statute, p olic y, rule, or contract," that she wouldcontinue to performsupervisory duties . Wojcik v. Mass. State Lottery Comm'n , 300 F.3d 92, 101 (1st Cir. 2002). Torres-Rivera wrote in his memo to plaintiff that he had decided to "withdraw you from my trust as a supervisor." He didnot violate procedural due process by doing so. See FigueroaSerrano , 221 F.3d at 7 ("Without career status, the plaintiffs do not have a constitutionally protected property interest in continued employment . . . .").

Due process requirements d o no t attach to the paid suspension eith er, at least on the facts of record in this case. The Supreme Court explained in Loudermill that a government employer who wishes to remove a worker immediately may suspend that worker with pay until the procedures associated with termination

can be completed. 470 U.S. at 544-45. That is exactly what happened here. More recently, a unanimous Supreme Court rejected

a categorical rule imposing constitutional due process requirements

on suspensions without pay. See Gil bert v. Homar , 520 U.S. 924, 929 -30 (1997) ("Due process is flexible and calls for suc h8 Numerous courts have heldthat paid suspensions couldbe

impose d wi thout the sorts of procedures the Constitution demands for terminations of career employees who have proprietary interests in their jobs. Pratt v. Ottum , 761 A.2d 313, 320 (Me. 2000) (collecting cases); see, e.g. , Hicks v. City of Watonga , 942 F.2d 737, 746 n.4 (10th Cir. 1991); Koelsch v. Town of Amesbury , 851 F. Supp. 497, 500 (D. Mass. 1994). Still, it is conceivable that a very long or open-ended paid suspension might function so much like a termination that some due process protection might attach. We need not consider that prospect here. -16- procedural protections as the particular situation demands.") (quoting Morrissey v. Brewer , 408 U.S. 471, 481 (1972)). The Gilbert Court also called the deprivation in such cases "relatively insubstantial." Id. at 932. Plaintiff's paid suspension in this case, which caused only a very temporary deprivation of job functions and no financial loss, did not give rise to any constitutional entitlement to due process. 8

The termination of her employment, however, did require due process. It is well-established under Puerto Rico law and First Circuit precedents that career employees in positions such as plaintiff's -- and who are not in political or policymaking positions, cf. Flynn v. City of Boston , 140 F.3d 42, 45 (1st Cir. 1998) -- are entitled to due process in association with their termination. See Acosta-Orozc o v. Rodriguez-De-Rivera , 132 F.3d 97, 104 (1st Cir. 1997) . The crucial question becomes: what process was due? This is an issue of federal law. See Loudermill , 470 U.S. at 541; Vitekv. Jones , 455 U.S. 480, 491 (1980).-17- Plaintiff received far more than the minimum elements of procedural due process: "some kind of a hearing" and an opportunity to respond to the allegations against her. Loudermill , 470 U.S. at 542; see O'Neill v. Baker , 210 F.3d 41, 47-48 (1st Cir. 2000). The day she returned to the office, November 20, 1998, she received notice of the investigation and a copy of the documents enumerating the allegations against her. When the investigation was complete, the Ja nua ry 28, 1999, letter informed plaintiff of its specific conclusions, that she faced possible termination, and that she had

a right to a hearing before such action was taken. Finally, the hearing on April 9, 1999, was conducted before an examining officer, plaintiff was accompanied by counsel, pla inti ff herself testified, and she had the opportunity to present other witnesses and evidence.

We do not revi ew the substance of decisionmaking under the rubric of procedural due process analysis. See Bishop v. Wood , 426 U.S. 341, 349-50 (1976). Plaintiff alleges that the procedures empl o yeddeparted from applicable regulations under Puerto Rico law. An agency's failure to follow i ts own rules may be significant in adm inistrative law, but the federal Due Process Clause does not incorporate the particular procedural st ruct ures enactedby state or local governments; t hese c laims should be pursued, if at all, under Puerto Rico law. See O'Neill , 210 F.3d at 49 n.9.-18- Plaintiff also argues that she was not given sufficient warning of the evidence to be used against her at the hearing, as she says Arnett v. Kennedy , 416 U. S. 1 34 (1974), requires. We disagree. The original complaint by Torres-Rivera and the January 28 letter laid out in detail the allegations and findings that providedcause for termination. There was no unfair surprise to plaintiff or her attorney. This was "an explanation of the employer's evidence" which, combined with notice and an opportunity to respond, satisfied the requirements of procedural due process. Loudermill , 470 U.S. at 546 (explaining Arnett ). B. First Amendment

Agovernment em ploy ee "may not be dismissed for exercising rights protected under the First Amendment." Hennessy

v. City of Melrose , 194 F.3d 237, 245 (1st Cir. 1999). At the same time, that employee's free speech rights must be balanced against "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Bd. of Educ. , 391 U.S. 563, 568 (1968);

see Rankin v. McPherson , 483 U.S. 378, 384 (1987); Connick v. Myers , 461 U.S. 138, 140 (1983).

The line of Supreme Court cases striking this balance has yieldeda three-part test, which this court summarized in O'Connor

v. Steeves , 994 F.2d 905, 912-13 (1st Cir. 1993). The court must f irst determine whether the issue about which the employee spok e9 Plaintiff's complaint presents the alleged First

Amendment infractions as three different claims: freedom of speech as a public employee, unlawful retaliation, and whis tl eblower protection. Since she appeals under the First Amendment and not under Puerto Rico law, the s ubstantive issues raised by these -19- was a "matter of public concern;" if not, there is no claim for First Amendment protection. Connick , 461 U.S. at 146; see Tang v. Rhode Island , 163 F.3d 7, 12 (1st Cir. 1998). Second, the court

ev aluate s the balance between the employee's First Amendment i nteres ts and the government's interests as an employer. See Rankin , 483 U.S. at 388; Mullin v. Town of Fairhaven , 284 F.3d 31, 39-41 (1st Cir. 2002). Fi nally, if the claim survives both of these tests, the plaintiff emplo yee must show that the protected speech was a substantial or motivating factor be hind t he adverse employment action; the burden then shifts to the government employer to demonstrate by a preponderance of the evidence that it wouldhave taken the same action absent the protected speech. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle , 429 U.S. 274, 287 (1977); Wytrwal v. Saco Sch. Bd. , 70 F.3d 165, 170 (1st Cir. 1995). While the first two tests are typically legal determinations subject to de novo review, the third is a question of fact which normally belongs to the jury. Nethersole v. Bulger , 287 F.3d 15, 18-19 (1st Cir. 2002); O'Connor , 994 F.2d at 912-13.

The district court here disposed of plaintif f 's First Amendment claim at the initial stage, finding that her speech was not about a matter of public concern. 9 It concluded thatclaims are essentially identical and we consider them together. -20- the matters in the case at bar relate to the fundamental inner workings of an office -- that Plaintiff perceived the i nvestigation was proceeding too slowly. While [allegations of] corruption in the Puerto Ric an senate are certainly matters of public concern, the investigation i tself, or how it is progressing, is entirely an internal matter, and not of public concern. That is to say, while the end result might be a matter of public concern, the means to that end[] is not. Torres-Rosado , 204 F. Supp. 2d at 260.

As a matter of law, the district court too narrowly evaluatedthe nature of the public concern in context. In essence, some months before plaintiff wrote her October 16, 1998 memo, she hadbeen told that she should hold off on he r in vestigation of Marrero while her supervisors checked to see if federal authorities

were also investigating him. When she heard nothing, she expressed

conce rn that "at present this investigation is paralyzed due to lack of communication with you, since it is you who are authorized to give us instructions whether to proceed or not." "Paralyze" is definedas "to de pri ve of strength or activity; make powerless; make ineffective." Webster's Th ird New International Dictionary 1638 (1993). The public is concerned about more than just the "end result" of the investigation of an electedofficial. The public is also concerned, and understandably so, about whether g o vernment investigations of political corruption are influenced improperly or

are derailed by political connections. Plaintiff's interpretation of her memo to Torres-Rivera is that the word "paralyzed"-21-

represented "an elegant way of accusing him of being engaged in a

cover up." Certainly Torres-Rivera's response to the memo suggests that he understood it in exactly that way.

"Whether an employee's speech addre ss es a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." Connick , 461 U.S. at 147-48. Even if the content of the employee's speech

on its face relates largely to the internal affairs of the government agency, Connickrequ i res a more searching contextual analys is to determine if the speech implicates matters of public

concern as well. See id. at 148-49 (assistant district attorney distributedsurvey to her colleagues asking their opin ions about the functioning of the office; most questions related to internal matters that were not of public concern, but one asking whether employees felt pressure to work in political campaigns passed this initial inquiry and court went on to the second test); O'Connor , 994 F.2d at 914 (interpreting Connick to r equ ire more searching inquiry even where speech "would not necessarily quali fy, on the basis of its content alone, as a matter of inherent public concern"). Under Connick 's directive to examine "the whole record," it is difficul t to understand Torres-Rivera's heated reaction to pla int iff's memo if it truly signified only an internal concern about intra-office communication or the pace of investigative work.10 It is true that plaintiff did not speak publicly about

her cover-up accusation; indeed, she specifically denied that she haddone so. But the First Amendment protects employee speech about matters of public concern even if the employee does not seek to make that speech to an audience outside the workplace. Givhan v. W. Line Consol. Sch. Dist. , 439 U.S. 410, 414 (1979); see also Rankin , 483 U.S. at 387; O'Connor , 994 F.2d at 916. -22- Torres-Rivera's memo characterized her statements as "serious imputations" that left him " no other alternative but to withdraw you fro m my trust ." He had already halted the investigation in

or der to make inquiries with federal authorities about their possible parallel inquiries, but had not orderedthe SIB's investigation resumed. He the n re moved plaintiff from the investigation; the fact that he reinstated her a few days later does not negate an interpretation that he read her memo as involving charge s of cover-up and obstruction. Significantly, Torres-Rivera's strong reaction happened before other issues arose

-- such as plaintiff's absence from the office and the dispute over the report -- that might otherwise explain his displeasure with her. We find, contrary to the district court's conclusion, that the "public concern" test was satisfied here. 10 Cf. Nethersole , 287 F.3dat 18 n.5 (memo seeking meeting to discuss "concerns" about diversity at university survived first test at Rul e 12 (b)(6) stage). Since we may affirm summary judgment "on any basis that is manifest in the record," John G. Danielson, Inc. v. WinchesterConant Props., Inc. , 322 F.3d 26, 37 (1st Cir. 2003), we go on. We-23-

will assume without deciding that plaintiff satisfies the second test. In general, gov ernm ent interests outweigh First Amendment

r ights when employee speech prevents efficient provision o f government services or disrupts the workplace. See Rankin , 483 U.S. at 388-89; Connick , 461 U.S. at 152-54; see also Hennessy , 194 F.3dat 248 (teacher's immoderate, intransigent, and public criticismof curriculum undermined operation of school). Here, howeve r, plaintiff wrote a private memo which she worded fairly dip lomati cally; it is difficult to think of a less disruptive manner in which plaintiff might have communicated. See O'Connor , 994 F.2d at 915-17 (town employee who disclosed alleged wrongdoing by a town selectman to the full Board of Selectmen pass ed second test, despite the fact that he also had personal reasons for doing so). We will likewise assume th at p laintiff has met her initial bu rden under the third test to create a question of fact for the jury as to whether the memo was at least a substantial or motivating factor in her termination. Mt. Healthy , 429 U.S. at 287. After all, it was Torres-R ive ra's complaint about her, shortly after her memo to him, tha t init iated the investigation, andplaintiff need not produce a "smoking gun" to carry this burden. Lewis v. City of Boston , 321 F.3d 207, 219 (1st Cir. 2003).-24- All of this is to no avail for plainti ff if , under the thirdtest, the defendants have met their burdens of both persuasion and proof to demonstrate other reasons for the adverse actions beside s her speech. The uncontested facts and the documentation submittedby defendants supply several such reasons. Plaintiff, as the party opposing summary judgment, has not produced any evidence creating a material issue of fact that she would not have been terminat ed in any event for insubordination or for absenteeism. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249 (1986).

Defendants' uncontested evidence that plaintiff would have been terminated anyway is but tres sed by the conclusions reached duri ng the administrative investigation and appeal. The report by Rivera-Buonomo concluded that plaintiff violatedseveral departmental policies unconnected to her speech. It fo und that plaintiff was absent without authorization for a prolonged period andthat she disobeyed several direct orders to submit a report on the investigation, which constituted insubordination. Moreover, the uncontested fact is that she was required to identify her informant to her supervisors; refusal to do so amounted to insubordination. The record plainly shows insubordination.

De fenda nts also submitted a sworn statement from the hearing officer, who concluded there was both unauthorized absence andinsubordination, and who says that he decided the issues at the11 As to the change in plaintiff's duties, as d iscu ssed

above, plaintiff's own sworn statement indicates that this change was temporary. The only remedies still at stake in the case are emotional distress and similar damages, and plaintiff has not adequately demonstrated that she suffered any such harm from whatever changes in duties occurred. See Memphis Cmty. Sch. Dist. v. Stachura , 477 U.S. 299, 309-10 (1986) (damages in § 1983 case basedon First Amendment must b e co mpensatory). This is not a situation comparable to Nethersole , 287 F.3d at 17, where a university's statewide vice president was transferr ed t o another campus and made an assistant dean. -25- hearing "based on th e law and the evidence there presented. No other factors were tak en int o consideration when deciding on the facts of the hearing . . . and no one intervened with my

re comm endations, either before or after the hearing." Plaintiff testifiedat that hearing and was represented there by an attorney. The defendants have offered ample uncontested evidence that the

same decisions as to her employment would have been reached whether

or not plaintiff sent the memo to Torres-Rivera. See Mt. Healthy , 429 U.S. at 285; Wytrwal , 70 F.3d at 171. 11

Plaintiff protests in her brief to us that these determinations, made during the disciplinary process, were factually incorrect in various ways. We assume th at it would be probativ e for plaintiff if she could show she was subjected to a biasedkangaroo court in the disciplinary process. But her objections come too late. Even assuming, dubitante, that such evidence exists, she failed to contes t thes e facts before the district court within the deadlines established by the local rules, andto provide evidence -- not just assertions -- that the process-26-

had been biased and flawed. Plaintiff has lost the right to make these arguments. Parties ignore rules such as Local Rule 311.12 at their peril. Ruiz-Rivera , 209 F.3d at 27-28. "[T]he decision to sit idly by and allow the summary judgment proponent to configure the record is likely to prove fraught with consequence. This case is no exception." Kelly , 924 F.2d at 358.

Because defendants have carried their Mt. Healthy burden on the facts of record, the First Amendment claim fails. C. Conspiracy

Finally, plaintiff alleges a conspiracy to deprive her of civi l righ ts, actionable under 42 U.S.C. §§ 1983 and 1985(3). Under § 1985(3), a conspiracy must be motivated by some "racial, or perhaps otherwise class-based, invidiously discriminatory animus." Bray v. Alexandria Women's Health Clinic , 506 U.S. 263, 268-69 (1993) (quoting Griffin v. Breckenridge , 403 U.S. 88, 102 (1971));

see Romero -Barce lo v. Hernandez-Agosto , 75 F.3d 23, 34 (1st Cir. 1996). Plaintiff failed to offe r any indication whatsoever that this threshold requirement of class-based animus has been met.

To dem onstrate conspiracy under § 1983, plaintiff must show "an actual abridgement of some fed er ally-secured right." Nieves v. McSwee ney , 241 F .3d 46, 53 (1st Cir. 2001) ("The fact that a plainti ff style s her claim as a conspiracy . . . does not diminish her need to show a constitu tion al deprivation."); see Ea rle v. Benoit , 850 F.2d 836, 844 (1st Cir. 1988). Plaintiff-27-

cannot resuscitate h er fai led constitutional claims to prove conspiracy. Summary judgment was proper against both claims. III. For the reasons stated in this opinion, the judgment of the district court is affirmed . Costs are awarded to defendants.