Citations
- 68 F. Supp. 3d 261
Full opinion text
OPINION AND ORDER
BRUCE J. McGIVERIN, United States Magistrate Judge.
In an amended complaint, plaintiff Alvin Camacho-Morales (“Camacho”) brought this action under 42 U.S.C. § 1983 against Puerto Rico Police Department (“PRPD”) Superintendent José Caldero, in his official capacity; former Superintendents Emilio Díaz Colón (“Díaz”) and José Figueroa Sancha (“Figueroa”), in their personal and official capacities; Associate Superintendent José Luis Rivera Diaz (“Rivera Diaz”), in his personal and official capacity; Officers Leovigildo Vásquez (“Vásquez”), Reinaldo Bermúdez Ortiz (“Bermúdez”), José Rivera Alicea (“Rivera Alicea”), and Digno Cartagena, in their personal and official capacities; Human Resources Department employee Yadira Rivera Pabón (“Rivera Pabón”), in her personal and official capacity; and the Commonwealth of Puerto Rico (the “Commonwealth”), alleging violations of his rights under the First and Fourteenth Amendments to the United States Constitution, as well as under the laws and Constitution of Puerto Rico. Docket No. 5 (“Amend. Compl.”).
Defendants moved to dismiss the complaint for failure to state a claim. Docket Nos. 28, 32. The court denied the motion. Docket No. 40. Camacho then moved for partial summary judgment, Docket No. 54 (“PL’s Mot”), and defendants moved for summary judgment on all claims, Docket No. 56 (“Defs.’ Mot.”). Both sides opposed the other’s summary judgment motion. Docket Nos. 68 (“Pl.’s Opp.”), 70 (“Defs.’ Opp.”). Camacho also filed a reply. Docket No. 84. The parties consented to proceed before a magistrate judge. Docket Nos. 77, 80.
For the reasons set forth below, Camacho’s motion for partial summary judgment is denied, and defendants’ motion for summary judgment is granted as to the federal claims.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is material only if it “might affect the outcome of the suit under the governing law,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and “[a] ‘genuine’ issue is one that could be resolved in favor of either party.” Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir.2004). The court does not weigh the facts, but instead ascertains whether the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Leary v. Dalton, 58 F.3d 748, 751 (1st Cir.1995).
“[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [evidence] ... which it believes demonstrate the absence of a genuine issue of material fact.” Crawford-El v. Britton, 523 U.S. 574, 600 n. 22, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (quoting Cel otex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); Fed. R.Civ.P. 56(c)(1). If this threshold is met, the opponent “must do more than simply show that there is some metaphysical doubt as to the material facts” to avoid summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The nonmoving party may not prevail with mere “conclusory allegations, improbable inferences, and unsupported speculation” for any element of the claim. Medinar-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990). Still, the court draws inferences and evaluates facts “in the light most favorable to the nonmov-ing party,” Leary, 58 F.3d at 751, and the court must not “superimpose [its] own ideas of probability and likelihood (no matter how reasonable those ideas may be) upon the facts of the record.” Greenburg v. P.R. Mar. Shipping Auth., 835 F.2d 932, 936 (1st Cir.1987).
BACKGROUND
This summary of the facts is guided by the parties’ Local Rule 56 statements of uncontested facts. See Docket Nos. 54-1 (“Pl.’s SUMF”), 57 (“Defs.’ SUMF”), 68-1 (“Pl.’s OSMF”), 70-1 (“Defs.’ OSMF”).
Camacho worked as ■ a PRPD officer from 1996 until July 2011. PL’s SUMF ¶ 1. He first developed a relationship with the FBI in 1999, when he was put in contact with the agency after reporting his observations of illegal conduct within the PRPD to a supervisor and to Puerto Rico’s' Special Investigation Bureau (Spanish ae-ronym “NIE”). Defs.’ SUMF ¶¶ 1-2. From 1999 to 2006, Camacho covertly collected information about corruption inside the force and relayéd it to the FBI. Defs.’ SUMF ¶¶ 3, 6-7. He testified that, during this period, he viewed himself as acting as a sort of undercover agent for the FBI, though technically, because he was still a PRPD officer, he was really acting as a “confidential source.” Defs.-’ SUMF ¶¶4, 8-9; PL’s OSMF ¶¶ 8-9. He stopped regularly providing the FBI with information in 2006, but for the next two years, the FBI contacted him every six months to ask whether he had witnessed any corrupt activities. Defs.’ SUMF ¶ 10.
In November 2009, Camacho was approached at a CompUSA store, where he worked part-time as a loss prevention manager, by an NIE agent, whom he had known since 1999, and an FBI agent. PL’s SUMF ¶ 2; Defs.’ SUMF ¶2, 13-14. At the time, Camacho-was not actively participating in any FBI investigation. Defs.’ SUMF ¶ 14; Pí.’s OSMF ¶ 14. The agents asked him to participate in an ongoing FBI investigation into police corruption, later known as Operation Guard Shack, by posing as a corrupt officer himself; he agreed. PL’s SUMF ¶ 3-4; Defs.’ SUMF ¶ 18. For about 10 months, until September 2010, he took part in illegal activities with other PRPD officers and reported his observations directly to the FBI agent who had asked him to serve as an informant. PL’s SUMF ¶ 5; Defs.’ SUMF ¶25, 27. The FBI did not instruct Camacho to take any particular actions or gather any particular information. Pl.’s SUMF ¶ 5. Although Camacho did not know it at the time, at least four other PRPD officers were providing the FBI with information in the same manner. Pl.’s SUMF ¶ 7; Defs.’ SUMF ¶¶ 19, 26; Pl.’s OSMF ¶26.
In October 2010, almost 100 Puerto Rico law enforcement officers were arrested, at least in part due to the evidence furnished by Camacho. PL’s SUMF ¶ 9. For security reasons, Camacho took leave from the PRPD from August 2010 to April 2011. PL’s SUMF ¶ 13; Defs.’ SUMF ¶26. Soon after the arrests, while Camacho was still on leave, he learned that he had been transferred from his current unit, the Tactical Operations Division in Bayamón, to the Police Academy in Gurabo. PL’s SUMF ¶ 15; Defs.’ SUMF ¶ 29. Camacho testified that he does not know precisely who was responsible for his transfer to the Academy. Defs.’ SUMF ¶ 30. Specifically, as far as he knows, his transfer was not ordered by Rivera Alicea or Rivera Diaz. Defs.’ SUMF ¶¶ 31-33. He never actually worked a day at his new post; while he was still on leave, he ■ received notice of another transfer, this time to the Joint Operations Division (“JOD”), located at the PRPD’s General Headquarters in San Juan, effective April 6, 2011. PL’s SUMF ¶¶ 19; Defs.’ SUMF ¶ 37, 39.
The JOD is responsible for coordinating and integrating the efforts of the PRPD and the federal governmént; it is divided into task forces that work with various federal law enforcement agencies, including the FBI. Defs.’ SUMF ¶ 51. Starting in May 2011, Rivera Alicea served as the director of the JOD. Defs.’ SUMF ¶¶ 50, 52, 62. As with his first transfer to the Academy, Camacho testified that he lacks personal knowledge as to who assigned him to the JOD. He does not know whether any of Figueroa, Rivera Díaz, Vásquez, Bermudez, or Rivera Alicea was directly responsible. Defs.’ SUMF ¶¶ 40-44. However, he points to the PRPD’s internal guidelines, which provide that the Superintendent and Associate Superintendent have authority to transfer officers within divisions. PL’s SUMF ¶ 21. In any case, it is uncontested that in February 2011, the FBI asked Figueroa, then Superintendent, to transfer Camacho to the JOD, along with other officers who had served as informants in Operation Guard Shack. PL’s SUMF ¶ 18; Defs.’SUMF ¶ 35. Camacho did not actually want to be transferred to the JOD, because of threats against his life that had been received at General Headquarters. PL’s SUMF ¶¶ 19-20; Defs.’ SUMF ¶ 59.
At his new post, Camacho had very little to do; Rivera Alicea testified that the office did not generate enough administrative work to fully occupy Camacho and the two other officers who had been transferred to the JOD at • the time. PL’s SUMF ¶ 24. Camacho was not assigned to any of the JOD’s task forces. Id. Generally, officers are assigned to task forces at the request of the relevant federal agency, with the approval of the PRPD. Defs.’ SUMF ¶ 52; PL’s OSMF ¶52. Rivera Alicea testified, however, that he never received a request, at least from the FBI, to place Camacho on a task force. Defs.’ SUMF ¶ 52. While at General Headquarters, Camacho never complained about harassment by his coworkers, and Rivera Alicea never witnessed any harassment. Defs.’ SUMF ¶¶ 62-63.
On May 13, 2011, Camacho met with Bermúdez, and two other PRPD officers who had played roles in Operation Guard Shack similar to Camacho’s. PL’s SUMF ¶ 28; Defs.’ SUMF ¶ 72. The meeting was ordered by Superintendent Figueroa to address concerns that had been expressed by officers who had, like Camacho, covertly participated in Operation Guard Shack. PL’s SUMF ¶ 27; Defs.’ SUMF ¶ 69. The previous day, in fact, the other two officers had appeared on a radio show and made statements critical of the PRPD. Pl.’s SUMF ¶ 25; Defs.’ SUMF ¶ 67.
At the meeting, Bermúdez proposed that Camacho and the other two officers make a formal complaint to the Cuerpo de Inves-tigación Criminal regarding the death threats that they had received. Defs.’ SUMF ¶ 74; Pl.’s SUMF ¶ 28. Camacho and the other officers declined; they told Bermúdez that the FBI was independently looking into the threats and that they preferred to let it handle the investigation. Defs.’ SUMF ¶75. Similarly, they declined to be provided with security details because of concerns that they could be infiltrated by corrupt officers. Pl.’s SUMF ¶ 28; Defs.’ SUMF ¶ 79. The minutes of the meeting, which Camacho signed, also indicate that the PRPD provided Camacho with a more powerful handgun, a rifle, and a portable radio for his protection. Defs.’ SUMF ¶¶ 76-78. After the meeting, Camacho told Bermú-dez, “If you’re not going to help me for whatever reason, if you’re not going to help, then tell the superintendent that I want to leave.” Defs.’ SUMF ¶ 84. Camacho also requested a personal meeting with Superintendent Figueroa, but no such meeting ever took place. PL’s SUMF ¶ 29.
On two occasions, the FBI gave Camacho money, totaling between $50,000 and $60,000. Defs.’ SUMF ¶¶ 66, 86,109; PL’s OSMF ¶¶ 66, 85-86, 109. According to Camacho, the money was for security purposes, prompted by threats against his life, and he used it to relocate his family to the United States. PL’s OSMF ¶¶ 66, 86-86, 109. Camacho denies that the money was compensation for his services in Operation Guard Shack. PL’s OSMF' ¶ 66.
On June 8, 2011, Camacho submitted a letter of resignation,, effective June 28, to the Department of Human Resources. PL’s SUMF ¶ 32; Defs.’ SUMF ¶ 87. He told Cartagena that he was resigning because he was upset with the system, and that he planned to leave Puerto Rico for the United States. Defs.’ SUMF ¶ 94. On June 27, Camacho submitted another letter changing the effective date of his resignation to September 5. PL’s SUMF ¶ 33; Defs.’ SUMF ¶ 95. Camacho wrote in the letter that the new effective date was subject to approval by Figueroa; if Figueroa did not accept the new terms, the resignation would have no effect. On July 5, Camacho signed a third letter, drafted by Rivera Alicea, rescinding his resignation altogether. PL’s SUMF ¶ 34; Defs.’ SUMF ¶ 96. Rivera Alicea forwarded the letter to Bermúdez, who forwarded it to Human Resources. PL’s SUMF ¶ 34. Bermúdez’s subordinate, Francisco Rodriguez, also apparently forwarded the letter to Superintendent Diaz, who had assumed office on July 6, with a recommendation that he allow Camacho to rescind the resignation. PL’s SUMF ¶ 35; Defs.’ SUMF ¶110.
Section 14.8 of the PRPD Staff Bylaws provides:
Any employee may resign his position freely through written notification to the Superintendent. This notification will be made with not less than fifteen (15) days prior to his last day of work, except that the Superintendent may accept resignations presented in a shorter period of time. The Superintendent must within the term of fifteen (15) days of having said resignation been submitted, notify the employee if he accepts the same or if he rejects it because there are reasons to justify investigating the conduct of the employee. In cases of rejection, the Superintendent, within the shortest time possible, must conduct the investigation and determine if he accepts the resignation or proceeds with the formulation of charges.
Pl.’s SUMF ¶ 41; Docket No. 93-2. The procedures for resignation are governed more particularly by PRPD General Order No. 79-6, which provides that an employee must submit his notice of resignation for endorsement to his immediate supervisor, who must then have the employee fill out Form PPR-210, certifying that he has no remaining obligations to the PRPD. Pl.’s SUMF ¶ 42; Docket No. 93-1L The form and a copy of the resignation notice are then to be submitted to the Director of Personnel and forwarded by him to the Superintendent for his signature. Pl.’s SUMF ¶ 42; Docket No. 93-11. General Order No. 79-6 states that the Director of Personnel must not process any resignation not accompanied by a completed Form PPR-210. PL’s SUMF ¶ 42; Docket No. 93-11.
On July 8, after investigating an irregularity in his June paycheck, Camacho learned from Human Resources that he had been removed from the PRPD’s system effective June 27. Pi’s SUMF ¶ 37. In a July 11 memo to Bermúdez, Rivera Alicea noted that he had been told by Rivera Pabón that Camacho’s resignation was effective as of June 28. PL’s SUMF ¶ 38; Defs.’ SUMF ¶ 97. In mid-July, before Camacho received any official notice from the Superintendent about the status of his resignation, Rivera Alicea took possession of Camacho’s service weapons, pursuant to PRPD policy, behind the CompU-SA store where Camacho worked part-time. ' PL’s SUMF ¶ 40; Defs.’ SUMF ¶ 107.
On August 31, a letter was issued on Superintendent Diaz’s letterhead informing Camacho that his resignation had been accepted effective June 28. PL’s SUMF ¶ 46. Diaz testified that he did not sign the letter and that he does not recognize its signature. PL’s SUMF ¶ 46. Diaz was present in office at the time the letter was issued. PL’s SUMF ¶ 49. According to defendants, the letter was signed by Associate Superintendent Rivera Diaz. Defs.’ OSMF ¶ 46. There is some disagreement about when, or if, Camacho received the letter; Camacho submits that it was not sent to the correct address. PL’s SUMF ¶ 53; Defs.’ OSMF ¶ 53. In any case, in December, Camacho filled out Form PPR-210 and went through the other procedures necessary to effect his separation from the PRPD, including handing over his badge. PL’s SUMF ¶¶ 51-52; Defs.’ SUMF ¶ 108. Camacho requested a meeting with the Superintendent on several occasions without success. PL’s SUMF ¶ 54. No hearing was held before Camacho’s employment was officially terminated. Id.
DISCUSSION
Camacho alleges that defendants retaliated against him for his participation in Operation Guard shack in violation of the First Amendment by transferring him twice, subjecting him to harassment, failing to provide him with adequate protection, and accepting his resignation. He also alleges that the acceptance of his resignation violated his right to due process under the Fourteenth Amendment, characterizing his separation from the PRPD as a de facto termination for which some degree of process was required. His claims under the laws and Constitution of Puerto Rico are based on the same conduct and grounded in similar theories. He seeks monetary relief, including punitive damages, and injunctive relief in the form of reinstatement. He moves for summary judgment as to whether his communications with the FBI were the motivating factor behind defendants’ alleged acts of retaliation, and as to the entirety of his due process claim.
Defendants argue for summary judgment on several grounds. As to both the First and Fourteenth Amendment claims, they contend that Camacho has failed to personally connect any individual defendant to the conduct alleged, that the claims are partially barred by the Eleventh Amendment, and that they are protected by the doctrine of qualified immunity. As to the First Amendment claim in particular, they argue that Camacho did not suf.fer any adverse employment action; that even if there were a constitutional deprivation, Camacho has failed to produce evidence sufficient to connect any individual defendant to that deprivation; and that Camacho’s communications with the FBI do not qualify as protected speech. They argue that the due process claim must fail because Camacho resigned from the PRPD voluntarily. Finally, they urge that the court should, if it dismisses Camacho’s § 1983 claims, decline to exercise supplemental jurisdictions over the claims founded in state law.
I. Eleventh Amendment
As a threshold matter, defendants assert that Camacho’s claims against the Commonwealth of Puerto Rico and the individual defendants in their official capacities are barred by the Eleventh Amendment. The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const, amend. XI. Despite the literal language of the amendment, this immunity extends to states sued by their own citizens as well as by citizens of other states. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). The First Circuit has consistently held that Puerto Rico is considered a “State” for purposes of the Eleventh Amendment. See Metcalf & Eddy, Inc. v. P.R. Aqueduct & Sewer Auth., 991 F.2d 935, 939 n. 3 (1st Cir.1993) (collecting cases). The sovereign immunity established by the Eleventh Amendment is not absolute, but may be waived by a state or abrogated by Congress. See Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 267, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997); Metcalf & Eddy, 991 F.2d at 938. But Congress did not abrogate the immunity by adopting § 1983, Quern v. Jordan, 440 U.S. 332, 340-42, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979), and Camacho makes no suggestion that the Commonwealth has specifically consented to be sued in this case. Accordingly, all of Camacho’s claims against the Commonwealth must be dismissed.
As for his claims against PRPD employees: the Eleventh Amendment extends not only to states themselves, but also to public entities that function as arms or alter egos of the state. See Ainsworth Aristocrat Intern. Pty. Ltd. v. Tourism Co. of P.R., 818 F.2d 1034, 1036 (1st Cir.1987) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). It is well-settled that the PRPD is considered an alter ego of the Commonwealth. Nieves Cruz v. Puerto Rico, 425 F.Supp.2d 188, 192 (D.P.R.2006). And because suits against state officers in their official capacities “generally represent only another way of pleading an action against an entity of which an officer is an agent,” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Eleventh Amendment applies to Camacho’s official-capacity claims.
However, those official-capacity claims premised on federal law are barred only to the extent that they seek “to impose a liability which must be paid from public funds in the state treasury.” Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Under the doctrine of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the Eleventh Amendment does not preclude Camacho from seeking prospective declaratory or injunctive relief from state officers in their official capacities for a violation of federal law. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Mills v. Maine, 118 F.3d 37, 54 (1st Cir.1997) (citing Seminole Tribe, 517 U.S. at 73, 116 5.Ct. 1114). This exception does not apply to official-capacity claims grounded in state law; such claims are barred no matter the relief sought. Halderman, 465 U.S. at 106, 104 S.Ct. 900. Camacho’s Commonwealth law claims against the individual defendants in their official capacities are therefore dismissed.
In his First Amendment claim under § 1983, Camacho seeks $3,000,000 in compensatory damages, apparently from each defendant, an unspecified amount in punitive damages, back pay, and front pay. In his due process claim under § 1983, he seeks only back pay and front pay. As against the individual defendants in their official capacities, the requested relief is wholly barred by the Eleventh Amendment. An award of damages, whether compensatory or punitive, would obviously require the Commonwealth to open its coffers. Back pay, which “compensates plaintiffs for lost wages and benefits between the time of the discharge and the trial court judgment,” Johnson v. Spencer Press of Me., Inc., 364 F.3d 368, 379 (1st Cir.2004), would have the same effect, and the First Circuit has accordingly held that “the Eleventh Amendment bars an award of back pay against a state or an alter ego of the state,” Figueroa-Rodriguez v. Aquino, 863 F.2d 1037, 1044 (1st Cir.1988).
Front pay is an equitable remedy consisting of “money awarded for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement.” Johnson, 364 F.3d at 379 (quoting Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 846, 121 S.Ct. 1946, 150 L.Ed.2d 62 (2001)). Though the First Circuit has not addressed whether front pay is precluded by the Eleventh Amendment despite its function as an alternative to reinstatement, a permissible form of prospective relief under Ex parte Young, see Whalen v. Mass. Trial Court, 397 F.3d 19, 30 (1st Cir.2005), those courts of appeals to have considered the issue have found that it is. See Campbell v. Ark. Dep’t of Corr., 155 F.3d 950, 962 (8th Cir.1998); Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 697 (3d Cir.1996); Freeman v. Mich. Dep’t of State, 808 F.2d 1174, 1179 (6th Cir.1987). An award of front pay would require the Commonwealth to compensate Camacho using pub-lie funds. Accordingly, Camacho’s request for front pay is barred by the Eleventh Amendment.
In sum, all claims against the Commonwealth and against the individual defendants in their official capacities are dismissed. The Eleventh Amendment does not preclude the claims against the individual defendants in their personal capacities.
II. First Amendment Claim
To make out a valid First Amendment retaliation claim under § 1983, a public employee such as Camacho must make a three-part showing. See O’Connor v. Steeves, 994 F.2d 905, 912-13 (1st Cir.1993). First, he must have spoken “as a citizen upon matters of public concern,” as opposed to “as an employee upon matters only of personal interest.” Id. at 912 (quoting Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). Second, his First Amendment interest in free expression, together with the public’s interest in the content of his speech, must outweigh the state’s legitimate interest in curbing the speech. Id. (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Brasslett v. Cota, 761 F.2d 827, 839 (1st Cir.1985)). Third, the speech must have been “a substantial or motivating factor” in an adverse employment action taken against him. Id. at 913 (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). If the public employee plaintiff is able to satisfy this third prong, through direct or circumstantial evidence from which a jury could reasonably infer a causal link between his protected speech and the allegedly retaliatory conduct by his employer, he has met his initial burden. Diaz-Bigio v. Santini, 652 F.3d 45, 51-52 (1st Cir.2011) (quoting Acevedo-Diaz v. Aponte, 1 F.3d 62, 67 (1st Cir.1993)). The employer may then rebut the claim by proving, by a preponderance of the evidence, that it “would have taken the same action against the employee ‘even in the absence of the protected conduct.’” Guilloty Perez v. Pierluisi, 339 F.3d 43, 51 (1st Cir.2003) (quoting Mt. Healthy, 429 U.S. at 287, 97 S.Ct. 568).
A. Substantial or Motivating Factor in Adverse Employment Action 1. Substantial or Motivating Factor
Camacho moves for summary judgment only on the third issue, asserting that he has proven that his protected speech was a substantial or motivating factor in the adverse employment actions allegedly taken against him. Puzzlingly, however, he fails utterly to engage in any meaningful analysis of the defendants’ motivations, instead focusing his argument on the first two elements of the claim. Moreover, he acknowledges that it “is a question of fact, which normally belongs to a jury,” whether protected speech was in fact the impetus behind a public employer’s allegedly punitive actions, and that in this case there are “serious issues of fact” as to that question. Pl.’s Mot. 16, 20.
Because it is • difficult to prove what goes on inside a person’s head — even at trial, with the opportunity to present and examine witnesses — “great circumspection is required where summary judgment is sought on an issue involving state of mind.” Hahn v. Sargent, 523 F.2d 461, 468 (1st Cir.1975) (citing Poller v. Columbia Broad. Sys., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962)); see also Catrone v. Thoroughbred Racing Ass’ns of N. Am., Inc., 929 F.2d 881, 889 (1st Cir.1991) (“[S]ummary judgment is to be used sparingly when intent or motive is at issue.”). Summary judgment often will prove an inappropriate vehicle for resolution of such issues; it is not designed to appraise credibility or determine the weight properly afforded to competing versions of the facts. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505 (“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge ... ruling on a motion for summary judgment.”); accord Poller, 368 U.S. at 473, 82 S.Ct. 486; 10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2730 (3d ed.1998).
Camacho thus faces a hard row to hoe in arguing that there is no genuine issue regarding the defendants’ motivations. In any case, I cannot settle the question of intent at this stage because his motion is bereft of any developed argumentation on that point. See Paterson-Leitch Co., Inc. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir.1988) (“A party has a duty to put its best foot forward before the magistrate: to spell out its arguments squarely and distinctly.... Given plaintiffs obfuscation, the district court’s finding that the theory was not adequately placed in issue before the magistrate was eminently supportable.”). Camacho’s motion for summary judgment as to the “substantial or motivating factor” issue is therefore denied.
2. Adverse Employment Action
Defendants deny that Camacho was ever subjected to an adverse employment action. Camacho is far from clear in describing precisely what alleged conduct his First Amendment claim is premised on. Construed liberally, the amended complaint alleges at least five acts or non-acts that might potentially be characterized as adverse employment actions: (1) Camacho’s first transfer to the Police Academy, (2) his second transfer to General Headquarters, (3) workplace harassment, (4) the PRPD’s failure to provide him with adequate protection, and (5) the events surrounding his unsuccessfully withdrawn resignation. Defendants squarely address only the two transfers and the lack of protection. Even if, as they argue, neither the transfers nor the lack of protection amount to adverse employment actions forbidden by the First Amendment, summary judgment solely on this ground would thus be inappropriate. Defendants have not shown that there is no genuine issue of material fact whether Camacho’s other allegations qualify as adverse employment actions. I will nevertheless address the arguments that defendants do make.
In the First Amendment context, the adverse employment action inquiry is a broad one, focusing “on whether an employer's acts, viewed objectively, place substantial pressure on the employee’s political views — or,' more generally, on whether the defendants’ acts would have a chilling effect on the employee’s exercise of First Amendment rights.” Barton v. Clancy, 632 F.3d 9, 29 (1st Cir.2011) (quoting Bergeron v. Cabral, 560 F.3d 1, 8 (1st Cir.2009)) (internal quotation marks omitted). Thus, “[ejmployment actions short of outright dismissal or demotion,” such as transfers, may qualify if they are sufficiently punitive to deter speech. Rosario-Urdaz v. Velazco, 433 F.3d 174, 178 (1st Cir.2006) (quoting Rutan v. Republican Party of Ill., 497 U.S. 62, 75-76, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990)). This standard is met when such actions “result[ ] in conditions ‘unreasonably inferior’ to the norm for that position.” Id. (quoting Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209, 1218-19 (1st Cir.1989) (en banc)). The plaintiff bears the burden of demonstrating that an alleged adverse employment action resulted in “unreasonably inferior” conditions by clear and convincing evidence. Agosto-de-Feliciano, 889 F.2d at 1220.
Camacho has not adduced any competent evidence, or made any coherent claim, that his transfer to Gurabo resulted in “unreasonably inferior” conditions. The record contains no description of his post transfer duties. That transfer cannot, then, serve as an adverse employment action upon which to base a viable retaliation claim. His second transfer is a closer question. Camacho argues that conditions were inferior at his new post at General Headquarters because he was not placed on a task force, as he expected, or given a sufficient amount of work. While it is true that “depriving an employee of all or almost all his work for an indefinite period of time can be sufficient to establish an ‘unreasonably inferior’ work environment,” Bisbal-Ramos v. City of Mayaguez, 467 F.3d 16, 22-23 (1st Cir.2006), Camacho has not produced sufficient evidence to carry his burden. He has provided no specific information about the amount of work he was assigned or the amount someone in his position is normally assigned. And while he apparently expected to be assigned to a task force, the mere fact that he was not is insufficient to establish that he was treated unreasonably; officers assigned to the JOD are placed on task forces at the request of federal agencies, and Rivera Ali-cea never received a request for Camacho. From the evidence in the record, a reasonable jury could not find that Camacho established “unreasonably inferior” conditions by clear and convincing evidence, and his second transfer therefore also fails to qualify as an adverse employment action.
Camacho has also failed to show that the PRPD’s alleged failure to provide him with protection was meaningful enough to have a chilling effect on the speech of a reasonable employee. As defendants point out, when Camacho and the other similarly situated officers voiced concerns about their security, Figueroa, then Superintendent, ordered Bermudez to meet with them. Figueroa then approved Camacho’s request for backup and supplemental weapons. At the meeting, the PRPD offered to provide Camacho and the other officers with a protective detail, an offer they declined. The PRPD also offered to investigate the death threats received by the officers, but this offer was also declined, as they were more comfortable letting the FBI investigate independently.
Based on these facts, I cannot say that Figueroa, or the PRPD as a whole, was derelict to the point that a reasonable officer in Camacho’s position would feel reluctant to speak out. Whatever other punitive measures the PRPD may have taken, it does not appear that it failed to take necessary protective action. Camacho was provided with extra arms, as he requested, and would have taken further protective steps had Camacho agreed to the proposed course of action. Camacho was apparently unsatisfied with the outcome of the meeting and requested an audience with Figueroa himself; that meeting never occurred. But it is unclear.what security measures Camacho hoped to receive as a result of speaking with Figueroa. He rejected the PRPD’s offers to investigate the death threats and arrange for a protective detail out of concerns — perhaps valid, perhaps not — that whatever help the PRPD provided would be tainted by corruption. If Camacho did not trust the PRPD, it is difficult to imagine what he hoped to gain from the follow-up meeting. The PRPD’s alleged lack of protection, therefore, does not constitute an adverse employment action for which Camacho may seek redress under the First Amendment.
To recap: Camacho may not succeed based on the allegations that he was transferred to the Police Academy, that he was transferred to General Headquarters, or that the PRPD failed to provide him with sufficient protection. Any claim against a particular defendant premised solely on those alleged acts (or non-acts) will be dismissed. However, defendants have failed to show that the two other alleged adverse employment actions are not viable. To prevail on their motion for summary judgment, defendants must demonstrate some other infirmity when it comes to claims based on the transfer to General Headquarters, workplace harassment, or Camacho’s failed attempt to rescind his resignation.
B. Personal Involvement of Individual Defendants
It is well established that “the liability of persons sued in their individual capacities under section 1983 must be gauged in terms of their own actions.” Welch v. Ciampa, 542 F.3d 927, 936 (1st Cir.2008) (quoting Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.1999)). For a defendant to be liable in his personal capacity, there must be “a causal connection between [his] conduct and the [alleged] deprivation.” Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 559 (1st Cir.1989). As discussed, Camacho’s amended complaint locates deprivations in his two transfers, in harassment he faced at General Headquarters, in the PRPD’s inadequate protective measures, and in the handling of his resignation and attempt to rescind it. The first transfer and the PRPD’s allegedly defective security do not qualify as valid adverse employment actions. Accordingly, for any individual defendant to be liable in his personal capacity, Camacho must show a direct link between the defendant’s actions and at least one of the two alleged adverse employment actions that do so qualify. For several of the individual defendants, there is insufficient evidence, even when viewed in the light most favorable to Camacho, to establish such a link.
1. Officers
The amended complaint connects Vázquez, Bermúdez, and Rivera Alicea to only one alleged adverse employment action: harassment. But as defendants point out, the uncontested facts reveal that none of those officers personally harassed Camacho. The only harassment evidenced in the record is the series of death threats against Camacho received, at some point, by General Headquarters.. There is no suggestion that any of the individual defendants made those threats. Nor is there evidence that the threats came from officers subordinate to any of the individual defendants (or, indeed, from still-employed PRPD officers at all), such that it might be appropriate to hold the individual defendants liable on a supervisory liability theory. Accordingly, because it is not possible to infer from the facts that they personally contributed to any adverse employment action, Vázquez, Bermúdez, and Rivera Al-icea are entitled to summary judgment on Camacho’s First Amendment claim.
2. Associate Superintendent and Former Superintendents
Like the officer defendants, Associate Superintendent Rivera Diaz is named explicitly in the amended complaint only as a perpetrator of harassment, and Camacho admits that Rivera Diaz did not in fact personally harass him. However, it appears that Rivera Diaz signed the letter informing Camacho that his resignation had been accepted. Therefore, to the extent the PRPD’s handling of Camacho’s resignation amounted to an adverse employment action — a question defendants fail to address — it remains a genuine issue whether Rivera Diaz’s conduct directly contributed to it, and summary judgment based on the lack of a causal connection would be inappropriate.
Camacho does not personally connect Figueroa to any instance of harassment, and, as discussed, Figueroa cannot be held liable for harassment in a supervisory capacity because there is no evidence that the death threats made against Camacho came from active PRPD officers under Figueroa’s control. Figueroa also has no connection to the handling of Camacho’s resignation; he was no longer in power when the PRPD notified Camacho that his resignation had been accepted. Camacho’s First Amendment claim against Figueroa in his personal capacity is therefore dismissed.
Former Superintendent Diaz assumed office on July 6, 2011, one day after Camacho signed the letter rescinding his resignation. Diaz could not have been personally involved in either Camacho’s harassment or his transfer to General Headquarters, nor would it be appropriate to hold him liable for those potential adverse employment actions in a supervisory capacity. As for the acceptance of Camacho’s resignation, Camacho has failed to provide evidence that Diaz was personally involved. Diaz did not sign the acceptance letter. See Velez-Rivera v. Agosto-Alicea, 487 F.3d 145, 156 (1st Cir.2006) (“Peña claims that Agosto canceled his contract. However, ... the letter terminating his contract was not signed by Agosto.... Peña has not alleged any facts to substantiate his claim that Agosto was directly involved.”). Nor can Diaz be held liable under a theory of supervisory liability, as Camacho has not shown an affirmative link between his conduct and that of Rivera Diaz or any other subordinate. The First Amendment claim against Diaz in his personal capacity is therefore dismissed.
3. Rivera Pabón
Camacho alleges that Rivera Pabón, as Director of Human Resources, “decided not to grant [Camacho’s] revocation letter (although it was approved by Co-Defendant Col. Bermúdez), and to make his resignation effective retroactively on June 28, 2011 based on the fact that the [Superintendent] had not signed his resignation letter.” Amend. Compl. ¶¶ II.l.l, III.47. In his Local Rule 56 statement, Camacho states that Rivera Pabón “proceeded to keep [his] resignation effective retroactively [sic ] June 28, 2011.” PL’s SUMF ¶ 38. Defendants take issue with Camacho’s characterization of Rivera Pabón’s role and actions on two grounds. First, they assert that at the relevant time she was not the Director of Human Resources, but rather merely an analyst in that department. Second, they assert that the record materials cited by Camacho do not support the conclusion that Rivera Pabón acted on her own authority to reject Camacho’s attempt to rescind his resignation and instead accept it effective June 28, 2011. The dispute over Rivera Pabón’s precise position is a genuine one, though neither party makes clear why it matters. As for defendants’ second objection, I agree that Camacho has not cited admissible evidence to support the assertion that Rivera Pabón was responsible for accepting his resignation. The material cited — the deposition of Rivera Alicea — supports only the inference that Rivera Pabón declined to process Camacho’s letter rescinding his resignation because it had already been determined, by some other, presumably higher-ranking authority, that it would not be accepted, and that his initial resignation would be. See Docket No. 54-11, at 12. Camacho does not link Rivera Pabón to any other alleged adverse employment action. His First Amendment claim against her in her personal capacity therefore fails and is dismissed.
C. Protected Speech
Defendants next argue that Camacho’s communications with the FBI did not constitute protected speech. In Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), the Supreme Court “clarified and expanded on” what it means for a public employee to' speak on matters of. public concern “as a citizen,” Curran v. Cousins, 509 F.3d 36, 44-45 (1st Cir.2007), effectively restricting the protection afforded to public employees by the First Amendment. See Dahlia v. Rodriguez, 735 F.3d 1060, 1068 (9th Cir.2013) (noting that Garcetti “narrowed” the scope of First Amendment protection for employee speech); Reilly v. City of Atlantic City, 532 F.3d 216, 228 (3d Cir.2008) (same). The Court recognized that “public employees do not surrender all their First Amendment rights by reason of their employment.” Garcetti, 547 U.S. at 417, 126 S.Ct. 1951. But those rights must be qualified, because government “[ejmployers have heightened interests in controlling speech made by an employee in his or her professional capacity.” Id. at 422, 126 S.Ct. 1951. Accordingly, the Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Id. at 421, 126 S.Ct. 1951.
Here, then, the question is whether Camacho’s communications with the FBI about corruption within the PRPD were “pursuant to [his] official duties.” This is • a question of law that the court may decide on summary judgment, at least “where the material facts are not in dispute.” Foley v. Town of Randolph, 598 F.3d 1, 5 n. 8 (1st Cir.2010) (citing Gagliardi v. Sullivan, 513 F.3d 301, 306 n. 8 (1st Cir.2008); Curran v. Cousins, 509 F.3d 36, 45 (1st Cir.2007)). Since there was no dispute in Gar-cetti itself that the plaintiffs speech was pursuant to his official duties, the Court did not “articulate a comprehensive framework for defining the scope of an employee’s duties,” instead emphasizing that the “proper inquiry is a practical one.” Id. at 424, 126 S.Ct. 1951. In trying to flesh out a more specific standard, the First Circuit has found guidance in phrases used by the Court throughout, its opinion to describe the relevant class of speech. See Decotiis v. Whittemore, 635 F.3d 22, 30 (1st Cir.2011). The Court referred to “speech that ‘owes its existence to a public employee’s professional responsibilities,’ speech that the employer ‘has commissioned or created,’ speech that the employee ‘was paid to’ make, speech that the employee’s ‘duties ... required him.to’ make, speech that amounts to the employee’s “work product,’ and speech that is an ‘official communieation[ ].’ ” Mercado-Berrios v. Cancel-Alegria, 611 F.3d 18, 27 n. 9 (1st Cir.2010) (quoting Garcetti, 547 U.S. at 421-23, 126 S.Ct. 1951) (alteration and omission in original) (citations omitted).
The Court also addressed certain factors that did not, at least individually, settle the issue. See Foley, 598 F.3d at 6 (citing Garcetti, 547 U.S. at 420-25, 126 S.Ct. 1951). The fact that the plaintiff “expressed his views inside his office, rather than publicly, [was] not dispositive.” Garcetti, 547 U.S. at 420, 126 S.Ct. 1951. Nor was it dispositive that the plaintiffs speech “concerned the subject matter of [his] employment.” Id. at 421, 126 S.Ct. 1951. The Court also explicitly rejected the proposition that a public employee’s official duties could be determined from a mere glance at his job description; were that the case, employers would be able to unduly limit their employee’s rights through the imposition of ovefbroad internal guidelines. Id. at 424, 126 S.Ct. 1951. “Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform,” the Court cautioned, “and the listing of a given task in an employee’s written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee’s professional duties for First Amendment purposes.” Id. at 424-25, 126 S.Ct. 1951.
Because the Garcetti inquiry is “so highly fact intensive and context specific,” Decotiis, 635 F.3d at 26, my analysis of the issue is guided primarily by the several First Circuity cases squarely applying the Supreme Court’s imprecise standard to their particular facts. See Alberti v. Carlo-Izquierdo, 548 Fed.Appx. 625 (1st Cir.2013), cert. denied, - U.S. -, 135 S.Ct. 66, 190 L.Ed.2d 33 (2014); O’Connell v. Marrero-Recio, 724 F.3d 117 (1st Cir.2013); Decotiis, 635 F.3d 22; Mercado-Berrios, 611 F.3d 18; Chamberlin v. Town of Stoughton, 601 F.3d 25 (1st Cir.2010); Foley, 598 F.3d 1; Curran, 509 F.3d 36. Though I have already discussed some general lessons drawn from these decisions, it is useful to examine further the facts, and the court’s reasoning, in each case. I review them in turn.
In Curran v. Cousins, a corrections officer (Curran) alleged that the Sheriffs Department suspended him in retaliation for threatening statements he made to supervisors during an inquiry into a questionable sick day he had taken about a month earlier. 509 F.3d at 39-40, 44-46.- The court held, without much discussion, that the threats were not protected by the First Amendment: they were made not in Curran’s capacity as a citizen, but “in the course of his duties within the Department, to his superiors, and during a discussion of official Department policy.” Id. at 45-46.
In Foley v. Town of Randolph, the court again found the plaintiffs speech unprotected. 598 F.3d at 8-9. Foley, the chief of Randolph’s fire department, alleged that he was suspended for criticizing the department during a press conference he held at the scene of a fatal fire. Id. at 2-4. Holding that it was “not. dispositive that Foley was not required to speak to' the media,” the court emphasized that speech must be viewed in context in order to determine whether it was made pursuant to the speaker’s official duties. Id. at 6-7 (emphasis in original). Similarly, it was not dispositive that Foley “expressed his views to the public rather than within the workplace.” Id. at 8. The court noted that “when a government employee answers a reporter’s questions involving matters relating to his employment, there will be circumstances in which the employee’s answers will take on the character of ‘[o]ffieial communications.’ ” Id. (quoting Garcetti, 547 U.S. at 422, 126 S.Ct. 1951) (alteration in original). Three factors, in particular, lent Foley’s speech an official appearance: “Foley spoke while in uniform and on duty; he spoke from the scene of a fire where he had been in command as the Chief of the Fire Department; and his comments were bookended by those of another official — the State Fire Marshall.” .Id. It was also relevant that the speech “was entirely related to matters concerning the Fire Department.” Id. .
The issue in Chamberlin v. Town of Stoughton, as here, was the cooperation by a police officer with an external investigation into police misconduct. 601 F.3d at 27-28. While serving as interim police chief, Chamberlin received information that several officers had engaged in criminal activity; in the course of investigating the allegations, he and his co-plaintiff Wohlgemuth, another high-ranking officer, conferred with the district attorney and a special prosecutor. Id. at 28. The court noted at the outset that Garcetti could be read to preclude virtually all First Amendment claims brought by police officers who spoke out about police misconduct, and that it was “unclear how far the Supreme Court intends to carry Garcetti.” Id. at 30-31. But the Chamberlin court explicitly left open the question whether any police whistleblower claim could survive Gar-cetti focusing only on the facts before it. The speech at issue was unprotected because, “[a]s two senior officers in the police department, it was within the scope of both plaintiffs’ duties to cooperate with the district attorney and the special prosecutor in investigating the alleged criminal activity within the police department. Wohlge-muth shared responsibility for internal investigations, and Chamberlin had launched the investigation as part of his duties as chief.” Id. at 35. Stressing the context- and fact-specific nature of its finding, however, the court cautioned that it was “not suggesting that Garcetti applies every time a police officer has conversations with a prosecutor. What constitutes official duties will necessarily vary with the circumstances including the rank of the officer, his areas of responsibility and the nature of the conversations.” Id.
The court again emphasized the importance of context in Mercado-Berrios v. Cancel-Alegria, separating the Garcetti question into two parts: “(1) what are the employee’s official responsibilities? and (2) was the speech at issue made pursuant to those responsibilities?” 611 F.3d at 26. Mercado-Berrios worked for the Puerto Rico Tourism Company, a public corporation responsible for regulating and disciplining providers of tourism-related ground transportation. Id. at 20. After her supervisors instructed her to stop issuing citations to luxury vehicles not in compliance with safety regulations, she complained about the policy to co-workers, shift supervisors, and an attorney. Id. at 21. As in Chamberlin, the court observed that it was unclear how broadly Garcetti should be interpreted. It might be read narrowly, to mean “that unofficial communications that are not ‘part of what [the plaintiff] ... was employed to do,’ like Mercado-Berrios’s complaints, fall outside the scope of its rule” and remain protected under the First Amendment. Id. at 27 (alteration in original) (quoting Garcetti, 547 U.S. at 421, 126 S.Ct. 1951). Indeed, the Garcetti Court “did not expressly indicate that it meant to sweep more broadly and include, for example, all speech that relates to, contributes to, or incidentally facilitates the performance of official functions.” Id.
At the same time, Garcetti’s holding was motivated at least in part by the recognition that government employers must be afforded latitude in employment decisions, a motivation that would support a less restrictive view. Other courts of appeals, the court noted, have construed Garcetti to deny protection to “all speech made ‘during the course of performing an official duty’ that ‘reasonably contributes to or facilitates the employee’s performance of [an] official duty.’ ” Id. (alteration in original) (quoting Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1203 (10th Cir.2007)) (citing Williams v. Dall. Indep. Sch. Dist., 480 F.3d 689, 693 (5th Cir.2007) (per curiam)). “On that view, complaints like Mercado-Berrios’s might be unprotected, since they could be said to facilitate job performance by removing (or attempting to remove) an obstacle.” Id. The D.C. Circuit took precisely that position, holding that “a public employee speaks without First Amendment protection when he reports conduct that interferes with his job responsibilities, even if the report is made outside his chain of command.” Id. (quoting Winder v. Erste, 566 F.3d 209, 215 (D.C.Cir.2009)). The court concluded that both parties had a strong argument as to the official character of the speech. Id. Because the defendant failed to brief the issue, however, the court affirmed the lower court’s decision in Mercado-Berrios’s favor without actually deciding the issue.
The First Circuit next applied Garcetti in Decotiis v. Whittemore, reviewing the district court’s dismissal of the complaint for failure to state a claim. 635 F.3d at 26. Decotiis, a speech and language therapist, expressed to parent clients that her public employer, Child Development Services, was not in compliance with state regulations, and encouraged the parents to seek the aid of advocacy organizations. 635 F.3d at 26-27. After considering several factors gleaned from a close reading of Garcetti the court held that Decotiis’s complaint plausibly alleged that the speech was made in her capacity as a citizen. Id. at 35. Decotiis’s speech was “not made ‘pursuant to’ her job duties in the most literal sense.” Id. at 32 (quoting Mercado-Berrios, 611 F.3d at 27). Though her communications with parents concerned the general subject matter of her job, it was clear that her employer did not ask or expect her to make them, and “[n]othing in Garcetti or the decisions interpreting it can fairly be read to suggest that all speech tangentially or broadly relating to the work of a public employee is per se unprotected.” Id. at 32-33.
The court then attempted to put the speech in context, asking whether Decotiis spoke to the parents in her office, whether the speech was made during work hours, whether the speech “bore the appearance of official status or significance,” id. at 33, and whether the speech reflected “special knowledge” particularly attributable to her work. Id. at 34 (quoting Williams, 480 F.3d at 694). Given the posture of the case, the court could consider only the allegations in the complaint, which did not clearly provide an answer to those questions. Id. Viewing the alleged facts in Decotiis’s favor, it was unable to conclude that Decotiis spoke with parents in her office or while on the job, that parents were led to believe that she spoke on her employer’s behalf, or that the subject matter of her speech “was confined to information she had obtained through her employment.” Id. at 33-34. Finally, the court looked to whether the speech had a “citizen analogue.” Id. (citing Garcetti, 547 U.S. at 423, 126 S.Ct. 1951). Again drawing inferences in Decotiis’s favor, it found that her speech was sufficiently analogous to that of the concerned “parents ..., advocacy groups, therapists, professional associations, and lawyers” discussing the same issues about which she spoke. Id. at 34. Though the court was unable to “conclusively say that [Decotiis’s] speech was made as a citizen,” it found that the district court’s dismissal of her complaint was in error. Id. at 34-35.
In O’Connell v. Marrero-Recio, O’Connell, Human Resources Director for the Puerto Rico Permits and Regulation Administration, told her superiors that she refused to engage in personnel actions she viewed as illegal and unethical. 724 F.3d at 120-123. The court held that her speech “solely focused on events at her workplace and was made exclusively to fulfill her [official] responsibilities.... This type of communication is the quintessential example of speech that owes its existence to a public employee’s official responsibilities and thus is not protected under the First Amendment.” Id. at 123 (citing Garcetti, 547 U.S. at 421-22, 126 S.Ct. 1951; Foley, 598 F.3d at 7-8).
The First Circuit’s most recent dip into Garcetti’s jnuddied waters came in Alberti v. Carlo-Izquierdo. Alberti was a professor at the University of Puerto Rico and the director of the School of Nursing’s family nurse practitioner (“FNP”) program. 548 Fed.Appx. at 634. She “bypassed the chain of command” and wrote a letter to the Chancellor of the school’s Medical Science Campus complaining about one of her students, who she claimed had violated the Health Insurance Portability and Accountability Act (“HIPAA”), and about fellow faculty members, who she claimed were interfering with her work as director of the FNP program. Id. The court found it clear, that Alberti’s speech was made pursuant to her official duties. Id. at 638. Her complaints were “made in her supervisory capacity over [the student], as her teacher, and in her capacity as FNP program directory, concerning the administration of the FNP program.” Id. The court found particularly relevant the fact that “Alberti signed the letter as FNP director, and it pertained to issues regarding the administration of the FNP program.” Id. at 639.
Having considered the First Circuit’s application of Garcetti as well as the approaches of other courts, I conclude that the extent of Camacho’s official duties remains a genuine issue of material fact, and defendants therefore have failed to show that Camacho’s speech was unprotected as a matter of law. The record does not conclusively establish whether Camacho had a duty, as a PRPD officer, to report corruption within the police force to an outside law enforcement agency such as the FBI. Defendants rely on the Puerto Rico Police Act, which states that the police have, among others, the duty to “prevent, discover, investigate and persecute crime.” 25 L.P.R.A. § 3102. As they see it, that statute imposed on Camacho the duty to take steps necessary to rid the PRPD. of corruption, including, if necessary, reporting the corruption to an appropriate outside agency. Camacho, for his part, points to two more specific descriptions of his duties: internal PRPD bylaws, which make no mention of any duty to report crime or otherwise cooperate with external agencies, and a PRPD general order reciting the basic responsibilities of members of the Tactical Operations Division, which again does not address the issue of cooperation.
Both parties thus draw inferences in their own favor from sources that do not explicitly say that there is or is not a duty to cooperate with or inform the FBI of police corruption. But for purposes of defendants’ motion for summary judgment, Camacho is entitled to all reasonable favorable inferences. I therefore conclude that these various job descriptions do not affirmatively establish a formal duty to refer police misconduct to the FBI. At the same time, however, they do not establish, as Camacho urges, that there is no such duty. It is not reasonable to infer from the material cited by Camacho that PRPD officers generally, or members of the Tactical Operations Division in particular, have absolutely no affirmative responsibilities beyond those expressly enumerated.
Regardless, “the scope of an employee’s duties for First Amendment purposes may not necessarily be determined by the employee’s formal job description, as ‘[formal job descriptions often bear little resemblance to the duties an employee is actually expected to perform.]’ ” Foley, 598 F.3d at 6 (quoting Garcetti, 547 U.S at 424-25, 126 S.Ct. 1951). The parties have provided no more specific evidence as to whether Camacho, or any other PRPD officer, was “actually expected” to report police corruption to the FBI. Compare, e.g., Livingston v. Bartis, No. 4:06-CV-1574 (JCH), 2008 WL 185791, at *8 (E.D.Mo. Jan. 18, 2008) (finding genuine issue as to official duties given, first, written policy prohibiting officers from sharing with persons outside department any information learned in connection with employment and, second, evidence that no officer other than plaintiff had reported misconduct to an external agency in 22 years), and Batt v. City of Oakland, No. C 02-04975 MHP, 2006 WL 1980401, at *4 (N.D.Cal. July 13, 2006) (plaintiff officer presented evidence demonstrating an unwritten