            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


                                       -3-
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


                                   -4-
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


                                   -5-
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


                                 -6-
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




                                        -7-
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

                                             -8-
           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.

                                      -9-
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."




                                 -10-
            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.




                                      -11-
             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


                                      -12-
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).


                                      -13-
            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


                                      -14-
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)).

                                      -15-
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)).

                                     -16-
            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,


                                   -17-
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


                                      -18-
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)


                                           -19-
(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).

                                   -20-
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.




                                           -21-
            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


                                           -22-
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


                                   -23-
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


                                       -24-
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

                                          -25-
"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.

                              -26-
