Curran v. Cousins

United States Court of Appeals
For the First Circuit

No. 07-1686
JOSEPH V. CURRAN,

Plaintiff, Appellant,

v.

FRANK G. COUSINS, JR., individually and in his official capacity
as Essex County Sheriff; THOMAS C. GOFF, individually and in his
official capacity as Essex County Special Sheriff; and ESSEX
COUNTY SHERIFF'S DEPARTMENT,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
Oberdorfer, Senior District Judge.*

Harvey A. Schwartz with whom Lori A. Jodoin and Rodgers,
Powers & Schwartz were on brief for appellant.
Geoffrey P. Wermuth with whom Michael J. Pacinda and Murphy,
Hesse, Toomey & Lehane LLP were on brief for appellees.

December 5, 2007

*
Of the District of Columbia, sitting by designation.
 LYNCH, Circuit Judge. Joseph V. Curran sued the Essex

County Sheriff's Department, the Sheriff, and others, asserting

they terminated his employment as a correctional officer in

retaliation for his speech, in violation of the First Amendment and

the Massachusetts Declaration of Rights. The district court found

that the public interest in the employee's speech was outweighed by

the danger the speech would cause to the effective functioning of

the Department and entered judgment for the defendants. Curran v.

Cousins, 482 F. Supp. 2d 36 (D. Mass. 2007). We affirm, in our

first case on the subject since the Supreme Court's opinion in

Garcetti v. Ceballos, 126 S. Ct. 1951 (2006).

I.

Curran was hired by the Essex County Sheriff's Department

as a corrections officer on June 1, 1991 and remained one until his

termination on February 17, 2006.

Frank G. Cousins, Jr. was appointed Sheriff of Essex

County by the governor of Massachusetts in 1996, after the former

Sheriff pleaded guilty to corruption charges. The following year,

the Essex County Correctional Officers Association (the "union" or

"ECCOA") was formed. Cousins and the union had a contentious

relationship, creating a high level of public conflict during

Cousins's tenure.

In 2004, Cousins ran for re-election as Sheriff. The

union took a strong public position against him. Curran served as

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the campaign manager for Bill Murley, Cousins's opponent; this was

widely known among Department employees, including Cousins himself.

Cousins was re-elected in November 2004.

The plaintiff claims that within days of the election,

Cousins vowed to "deal with" those who supported his opponent.

Curran also claims that immediately thereafter, Cousins removed him

from the Department's Tactical Team, a prestigious high-security

unit. Cousins then closed a boot camp program that had been

created and led by Cousins's opponent.

A. Thirty-Day Suspension of Curran

On September 8, 2005, roughly a year after Cousins's re-

election, Curran called in sick to work. About a month later, on

October 7, 2005, Department Captain Michael Halley approached

Curran at work to discuss the Department's policy of conducting

home visits when corrections officers called in sick (the

"sick-call policy"), apparently in reference to Curran's earlier

sick day. [The record does not indicate whether the Department had

visited Curran at home during his September 8 sick day.] When

Curran told Halley that the sick-call policy wasted taxpayers'

money, Halley responded that he was "just following orders." In

response, Curran told Halley that German officers had raised the

same defense during the Nuremberg war crimes trials following World

War II.

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 Three weeks later, on October 25, 2005, Department

Captain Arthur Statezni discussed with Curran concerns about

whether Curran's September 8 sick leave was legitimate. Later that

day, Captain Statezni filed an Information Report with the

Department which stated that he felt threatened by Curran in that

conversation. Statezni wrote that Curran became "upset" in the

conversation and then said to Statezni, "[Y]ou captains and

deputies are gonna get shot." When Captain Statezni asked Curran

if he was threatening him, Curran replied, "[N]ot by me but by

someone else." Statezni's report recounted that Curran added,

"I'll see you tomorrow at my house . . . I'll be out sickness in

family [sic] . . . you['re] not welcome" and "a cruiser would be

parked in [my] driveway." Statezni then told Curran that "it

sounds like you['re] threatening me." Curran then left work for

the day.

As a result of Statezni's complaint about Curran, the

Department held a disciplinary hearing on November 14, 2005. The

Department found Curran's comments to be "threatening and menacing"

and that the two incidents "would tend to adversely affect the

operations of the Department by prompting employees to second-guess

direct orders."1 It suspended Curran for thirty days starting on

1
Cousins also wrote a letter on November 1, 2005 to the
police chief of Billerica -- where Curran held a town firearms
permit -- explaining the incidents and informing the chief that
Curran was on paid administrative leave pending a disciplinary
hearing. As a result, the Billerica police chief revoked Curran's

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November 23, 2005. Curran was also ordered to submit to a

psychological evaluation to assess his fitness for duty as a

corrections officer. Within a week, Curran had posted an angry

message on the union website.

B. Curran's Internet Posting

The union maintained a website, www.eccoa.org, which it

owned and controlled fully independently from the Department. The

website contained a public discussion board on which any registered

user could post comments and statements. Any person with access to

the Internet -- whether a member of the union or not -- could

register, post, and read messages. Some messages were posted using

pseudonyms while others had readily identifiable authors.

Thousands of messages were posted on the discussion board since it

was created. According to the complaint, topics discussed included

"allegations of improprieties in the Department, poor supervision

of inmates, misuse of public funds, corruption, political coercion

of employees and contractors and unsafe jail conditions."

The discussion board had earlier hosted threatening and

racist messages by others directed towards Cousins, who is African-

American. One posting included a picture superimposing cross hairs

on the face of the Sheriff with a caption stating, "Pull the

trigger on the NIGGER!!!" Another posting referred to the Sheriff

as a "pimp" and his subordinates as "whore[s]." One poster

firearms license.

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referred to a Department employee as a "[h]ouse slave" and the

Sheriff as the "master who thinks he's white cause he lives in

whitevill."2 In a posting responding to a question of whether

there was anyone able to help address alleged disparities in

discipline, the author responded, "Yeah, there was someone who can

[sic] help, but James Earl Ray is DEAD!"3 Cousins requested that

the Essex County District Attorney investigate the postings for

potential hate crimes and civil rights violations.

Curran had also posted messages on the board. On August

1, 2004, he posted the following:

My main thoughts are, that there are five
types of people in this world:

1. The Jews that got marched into the
death chambers (our officers)
2. The Dictator (Hitler) that ordered
it (you know who)
3. The Nazi - SS that pushed the Jews
in (Dictator's supporters)
4. The people that put on blinders and
did nothing (any one that does nothing)
5. The few that rebelled and ATTACKED
the nazi's and saved some Jews lives.
(us - you know who you are)

If you are the ones (#3) that mess with and
hurt my fellow officers, you are the worst
form of human - aggressively hurting people
for personal gain, I promised you I WILL do
everything in my power to ensure that you are
exposed and dealt with appropriately. . . .

2
All quotations from the website postings are reproduced
verbatim.
3
James Earl Ray was convicted of assassinating Dr. Martin
Luther King, Jr.

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 If you're a #5 person I praise you for having
the courage of your conviction. But be
careful about bashing the #4 people, not
everyone has been brought up to fight the good
fight. Thank God for people like Harriet
Tubman who helped free the slaves, Rosa Parks
- the one who started the civil rights
movement (bus), Audey Murphy (WWII), most
decorated soldier, and Bill Murley, for
running against this dictator. . . .

More than a year later and seven days into Curran's

suspension, on November 30, 2005, Curran posted a message on the

discussion board under a topic entitled "inmate assault." The

message stated:

I wonder what it will take before one of the
administrators gets the balls to stand up to
the sheriff and do the right thing. How can a
"man" allow all the evil that is unfairly
being done to their people. I would think
that out of the 320 administrators there would
be one that had an ounce of integrity. How
can you sit back and watch the unfairness of
the discipline and harassement being doled out
to political/union rivals of the sheriff and
not stand up and say that it's not right and
try to stop it. The excuse of "I need my job
to take care of my family" = crap.

Look at the list of people that have taken the
biggest hits, all are from the list of Murley
supporters/ Union people - most were both. I
won't bother going through the list of names,
but if you look at the comparison list of
alleged violation vs punishment, you would see
that Murly/Union people were harassed/punished
much more severe. That's wrong.

A totaly unrelated history lesson (don't want
to get in trouble again)
During WWII Adolf Hitler's (whose motto was
""Have no pity! Act brutally"), generals were
deathly afraid of him, followed orders

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 regardless of how immoral/wrong the orders
were. Near the end, some of the generals
realized just how wrong the orders were and
started to plot against him knowing that the
end was inevitable. Well you know how the
story ended. My point is that the right thing
is not always the easy thing.

Stay strong my borthers/sisters and I'll see
you at the Union party.

Joe C.
______________
Death before dishonor

There is no dispute Curran posted this message to the website.

Cousins responded to the November 30 posting with a

letter to Curran dated February 1, 2006, informing Curran that he

would be subject to another disciplinary hearing "due to

allegations of misconduct against you in making inappropriate and

offensive comments regarding Adolf Hitler's generals in World War

II while on suspension." The letter noted that Curran's previous

suspension had been based in part on references to German officers

in World War II, and stated that the alleged misconduct would be in

direct violation of Departmental policies, procedures and employee

work rules, and the collective bargaining agreement.

The disciplinary hearing took place on February 13, 2006.

Curran and his counsel presented evidence on his behalf, but Curran

declined to testify in his own defense. After the hearing, the

Department, by letter dated February 17, 2006 from Special Sheriff

Thomas C. Goff, notified Curran that his employment was terminated.

The February 17, 2006 termination letter expressly referenced

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Curran's prior discipline for "confront[ing] senior officers in a

threatening and/or insubordinate manner while on duty."4 This

letter stated that after reviewing Curran's website postings, it

was "clear that you identify Hitler as the Sheriff, the Jews as the

Correctional Officers, the Nazi generals as the Department's

deputies and captains, and another group, including yourself, as

ones who may attack the Nazis." The letter noted that "your

references [in the November 30 posting] are violent and reference

plots against Hitler who you have repeatedly identified as the

Sheriff." Taking into account both the November 30 posting and

"the circumstances leading to your suspension," the letter informed

Curran that "it is clear that you are either unable or unwilling to

follow the Department's Work Rules and Code of Ethics.

Consequently, I have decided to terminate your employment with the

Department effective today."

4
Specifically, the letter stated:

Reviewing your prior disciplinary record, on October
27, 2005, the Department placed you on paid
administrative leave pending a hearing regarding your
misconduct on October 7 and October 25, 2005, in which
you confronted senior officers in a threatening and/or
insubordinate manner while on duty. In particular, on
October 7, 2005, you equated captains and deputies'
compliance with Departmental orders to Nazi officers
following orders to execute Jews during the Holocaust.
The Department found that your conduct in October 2005
was threatening and menacing, and would tend to adversely
affect the operations of the Department by prompting
employees to second-guess direct orders.

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C. Lawsuit: Procedural History

On March 30, 2006, Curran filed a complaint pursuant to

42 U.S.C. § 1983 against Cousins and Goff, in their individual and

official capacities, and the Department, asserting violations of

Curran's First Amendment rights. The complaint also pled a pendent

state-law claim under the Massachusetts Declaration of Rights, and

defamation based on Cousins's letter to the Billerica police chief

during Curran's suspension. After the defendants answered, Curran

moved for partial judgment on the pleadings under Rule 12(c). The

defendants filed a cross-motion for judgment on the pleadings

thereafter.

The district court, on March 30, 2007, granted the

defendants' motion for judgment on the pleadings on the § 1983

First Amendment claim and declined to exercise jurisdiction over

the remaining state-law claims, leaving Curran to pursue his state-

law claims in state court. Curran, 482 F. Supp. 2d at 50. The

district court found that while Curran's November 30 posting

narrowly involved a matter of public concern, id. at 46, the

interests served by his speech were outweighed by the Department's

legitimate interests in preventing disruptions in carrying out its

mission of law enforcement and maintenance of a correctional

institution. Id. at 49.

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 Curran appeals the district court's grant of judgment on

the pleadings to the defendants and the denial of his motion for

judgment on the pleadings.

II.

A. Standard of Review

We review judgments on the pleadings under Federal Rule

of Civil Procedure 12(c) de novo. Aponte-Torres v. Univ. of P.R.,

445 F.3d 50, 55 (1st Cir. 2006). The district court had before it

cross-motions for judgment on the pleadings. It appropriately

focused its opinion on the defendants' motion for judgment on the

pleadings: since a "court may not grant a defendant's Rule 12(c)

motion 'unless it appears beyond doubt that the plaintiff can prove

no set of facts in support of his claim which would entitle him to

relief,'" granting the defendant's motion will necessarily resolve

the plaintiff's motion. Rivera-Gomez v. de Castro, 843 F.2d 631,

635 (1st Cir. 1988) (quoting George C. Frey Ready-Mixed Concrete,

Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 553 (2d Cir.

1977)); cf. Bellino v. Schlumberger Techs., Inc., 944 F.2d 26, 33

(1st Cir. 1991) (district court not required to write separately on

each party's cross-motion for summary judgment as long as it

evaluated each motion on its own merits).

A Rule 12(c) motion implicates the pleadings as a whole.

Aponte-Torres, 445 F.3d at 55. Because this motion, like a motion

to dismiss a complaint under Rule 12(b)(6), involves some

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assessment of the merits, we view the facts contained in the

pleadings in the light most favorable to the party opposing the

motion -- here, the plaintiff -- and draw all reasonable inferences

in the plaintiff's favor. Id.; R.G. Fin. Corp. v. Vergara-Nuñez,

446 F.3d 178, 182 (1st Cir. 2006). "The court may supplement the

facts contained in the pleadings by considering documents fairly

incorporated therein and facts susceptible to judicial notice."

R.G. Fin., 446 F.3d at 182.

In reviewing a motion under Rule 12(c), as in reviewing

a Rule 12(b)(6) motion, we may consider "documents the authenticity

of which are not disputed by the parties; . . . documents central

to plaintiffs' claim; [and] documents sufficiently referred to in

the complaint." Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993)

(under Rule 12(b)(6)). This is true even when the documents are

incorporated into the movant's pleadings.5 Beddall v. State Street

Bank and Trust Co., 137 F.3d 12, 17 (1st Cir. 1998) ("When, as now,

a complaint's factual allegations are expressly linked to -- and

admittedly dependent upon -- a document [offered by the movant]

5
Curran argues that because he is entitled to the most
favorable reading of the facts, we may not consider exhibits
attached to the defendants' answer. We reject his argument. There
is no dispute over the authenticity of the exhibits. Curran moved
to strike four of the website postings by others that were
offensive on the grounds that they were irrelevant, but has not
raised any argument then (or now) as to their authenticity.
Because the postings show that the discussion board was relevant as
it was clearly a forum for threatening commentary directed towards
Cousins, the district court appropriately denied the motion to
strike.

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(the authenticity of which is not challenged), that document

effectively merges into the pleadings and the trial court can

review it . . . ." (citing Fudge v. Penthouse Int'l, Ltd., 840 F.2d

1012, 1015 (1st Cir. 1988))). See also Dirrane v. Brookline Police

Dept., 315 F.3d 65, 69 n.2 (1st Cir. 2002).

This is similar to the situation when a court is

presented with cross-motions for summary judgment. Here, as there,

"[c]ross motions simply require us to determine whether either of

the parties deserves judgment as a matter of law on facts that are

not disputed." Barnes v. Fleet Nat'l Bank, N.A., 370 F.3d 164, 170

(1st Cir. 2004) (quoting Wightman v. Springfield Terminal Ry., 100

F.3d 228, 230 (1st Cir. 1996)) (internal quotation marks omitted).

B. The First Amendment Claim

Public employees do not lose their First Amendment rights

to speak on matters of public concern simply because they are

public employees. Connick v. Myers, 461 U.S. 138, 142 (1983).

Still, those rights are not absolute: "the First Amendment protects

a public employee's right, in certain circumstances, to speak as a

citizen addressing matters of public concern." Garcetti, 126 S.

Ct. at 1957. If a court finds the employee has made statements

that are within the scope of First Amendment protection, the court

must then "balance . . . the interests of the [employee], as a

citizen, in commenting upon matters of public concern and the

interest of the State, as an employer, in promoting the efficiency

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of the public services it performs through its employees."

Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968); see also,

e.g., Waters v. Churchill, 511 U.S. 661, 668 (1994); Rankin v.

McPherson, 483 U.S. 378, 388 (1987); Connick, 461 U.S. at 150-52.

Garcetti has clarified and expanded on the earlier law.

The Supreme Court described the correct analysis as involving a

two-step initial inquiry. The first step requires a determination

of:

whether the employee spoke as a citizen on a
matter of public concern. If the answer is
no, the employee has no First Amendment cause
of action based on his or her employer's
reaction to the speech.

Garcetti, 126 S.Ct. at 1958 (citing Connick, 461 U.S. at 147;

Pickering, 391 U.S. at 568) (citations omitted). Garcetti

recognizes that this first step itself has two subparts: (a) that

the employee spoke as a citizen and (b) that the speech was on a

matter of public concern. Id.

If the answer to the Garcetti's first (two subpart) step

is yes, then the possibility of a First Amendment claim arises, and

the second step of the inquiry is made:

The question becomes whether the relevant
government entity had an adequate
justification for treating the employee
differently from any other member of the
general public. This consideration reflects
the importance of the relationship between the
speaker's expressions and employment. A
government entity has broader discretion to
restrict speech when it acts in its role as
employer, but the restrictions it imposes must

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 be directed at speech that has some potential
to affect the entity's operations.

Id. (citing Pickering, 391 U.S. at 568) (citation omitted).

Garcetti's initial steps are consistent with this

circuit's prior three-part test, Torres-Rosado v. Rotger-Sabat, 335

F.3d 1, 11 (1st Cir. 2003), which also asks a third question. That

third question is concerned with causation, with whether the

plaintiff can show that the protected expression was a substantial

or motivating factor in the adverse employment decision. Of

course, the employer must have the opportunity to prove that it

would have made the same decision regardless of the protected

expression. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274, 287 (1977). The parties agree there is a causal

relationship between termination of Curran's employment and his

speech, particularly his posting on November 30, 2005.

This is significant in the context of a motion for

judgment on the pleadings because it is the judge who decides as a

matter of law the issues in the two steps Garcetti identifies. See

Connick, 461 U.S. at 148 n.7 ("The inquiry into the protected

status of speech is one of law, not fact."); Lewis v. City of

Boston, 321 F.3d 207, 219 (1st Cir. 2003). The court must first

determine whether the speech involved is entitled to any First

Amendment protection -- that is, whether the speech is by an

employee acting as a citizen on a matter of public concern. If so,

the court then decides whether the public employer "had an adequate

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justification," to use Garcetti's rephrasing of the Pickering test.

126 S. Ct. at 1958. Whatever the label of the cross-motions before

the district court, the material facts were not disputed. The

issues were ones for the court to decide.

1. Speech as a Citizen on a Matter of Public Concern

We analyze the first Garcetti question as to his speech,

one leading to his prior suspension and his speech in his November

30 posting. The termination of Curran's employment was the

culmination of progressive discipline within the Department, and so

both events are relevant.

Curran had earlier been disciplined, through a

suspension, for threats made to others. The suspension did not

involve speech by Curran which had First Amendment protection under

Garcetti. Curran's initial threats were made not as a citizen, but

were made in the course of his duties within the Department, to his

superiors, and during a discussion of official Department policy.

Thus, the first event in the history leading to Curran's

termination involved speech which had no First Amendment

protection. See Garcetti, 126 S.Ct. at 1960.

The plaintiff concedes that he was fired because of his

November 30 posting: "It is uncontested, based on the pleadings,

that but for the November 30 statement, the plaintiff would not

have been fired and that because of the November 30 statement, he

was fired." We ask whether the November 30 posting involved speech

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Curran made (a) as a citizen and (b) on a matter of public concern.

We will assume arguendo that Curran was acting as a citizen since

the posting was on a union website open to public posting and

viewing. As to the next inquiry, the district court found that the

posting did contain speech on matters of public concern. We agree,

rejecting the defendants' argument that no matter of public concern

was involved.

Whether an employee's speech involves a "matter of public

concern" is a case-specific, fact-dependent inquiry. While an

employee has his own First Amendment interest in his speech, "the

First Amendment interests at stake extend beyond the individual

speaker." Garcetti, 126 S.Ct. at 1958. The Supreme Court has

acknowledged "the importance of promoting the public's interest in

receiving the well-informed views of government employees engaging

in civic discussion." Id.

If the topic of the speech "is clearly a legitimate

matter of inherent concern to the electorate, the court may eschew

further inquiry into the employee's motives as revealed by the

'form and context' of the expression." Baron v. Suffolk County

Sheriff's Dep't, 402 F.3d 225, 233 (1st Cir. 2005). Matters of

inherent concern include official malfeasance, abuse of office, and

neglect of duties. See id. at 234; Jordan v. Carter, 428 F.3d 67,

73 (1st Cir. 2005).

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 The first and second paragraphs of Curran's November 30

posting may be read as accusing Cousins of using political

favoritism rather than merit in making personnel decisions as to

non-policymaking employees. See Rutan v. Republican Party of Ill.,

497 U.S. 62, 71 n.5, 75-76 (1990) (holding that consideration of

political affiliation is impermissible in making employment

decisions about non-policymaking employees). In the first

paragraph, Curran asks, "How can you sit back and watch the

unfairness of the discipline and harassement [sic] being doled out

to political/union rivals of the sheriff and not stand up and say

that it's not right and try to stop it." He then references "the

list of people that have taken the biggest hits," points out that

those people were all supporters of the union or Cousins's

political opponent, and notes that "if you look at the comparison

list of alleged violation vs punishment, you would see that

Murly[sic]/Union people were harassed/punished much more severe.

That's wrong."

The topic of a public official basing personnel actions,

as to non-policymaking employees, on political affiliation rather

than merit is a topic of public concern. See, e.g., Connick, 461

U.S. at 149 (finding speech about political pressure applied to

employees in a prosecutor's office to be a matter of public

concern).

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 There was public interest value in the identified

portions of the November 30 posting. However, that does not

establish that there was First Amendment value in the remainder of

the posting.

2. Adequacy of the Defendants' Justification

We turn to the next step in the inquiry: whether the

Department "had an adequate justification" for terminating Curran.6

Garcetti, 126 S. Ct. at 1958.

"Government employers, like private employers, need a

significant degree of control over their employees' words and

actions; without it, there would be little chance for the efficient

6
On appeal, Curran also makes an argument purportedly
based on Mihos v. Swift, 358 F.3d 91 (1st Cir. 2004). Curran
suggests there is yet a further issue to be addressed regarding
whether, even if the firing was caused by the November 30 posting,
there was an underlying motivation to get rid of Curran because he
supported Cousins's opponent and the Sheriff seized on the posting.
We reject the argument. The issue was not preserved. Indeed,
plaintiff concedes that the November 30 posting was the but for
cause of his firing. It is clear that the Mihos reference was made
in the district court for the purpose of arguing Curran should
prevail in the Pickering balance. Curran may not switch theories
on appeal. Ouimette v. Moran, 942 F.2d 1, 12 (1st Cir. 1991).
Further, Curran misreads Mihos, which is a qualified immunity case.
358 F.3d at 102.
Even if such an argument were not waived and were
permissible, there is no factual support for it. The record
confirms this. Curran's employment continued without incident for
over eleven months after the election. His earlier provocative
posting of August 1, 2004 did not subject him to any type of
discipline. There are multiple other instances in the record, none
of which resulted in Curran's dismissal -- Curran's threatening
comments, his earlier suspension, his termination letter, and the
Sheriff's letter to the Billerica police chief about Curran's
conduct -- that make clear that Curran was terminated as a result
of his November 30 posting.

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provision of public services." Id. Because public employees

"often occupy trusted positions in society[,] [w]hen they speak

out, they can express views that contravene governmental policies

or impair the proper performance of governmental functions." Id.

However, because a citizen who works for the government is

nonetheless a citizen, "so long as employees are speaking as

citizens about matters of public concern, they must face only those

speech restrictions that are necessary for their employers to

operate efficiently and effectively." Id.

Here, there is no dispute about what Curran said in the

posting.7 Further, there is no dispute about the employer's stated

justifications, which are contained in the termination letter as

follows:

(1) Based on Curran's actions on October 7 and October

25, he had been suspended because his conduct "was threatening and

menacing, and would tend to adversely affect the operations of the

Department by prompting employees to second-guess direct orders."8

7
What Curran said is what the employer believed he said
and so this case does not raise the issue involved in Waters, 511
U.S. at 668. Without addressing the extent to which the First
Amendment embodies any procedural requirements for determining what
the speech by the employee actually was, cf. id. at 671, we note
that Curran did receive procedural protections in the form of a
termination hearing under the collective bargaining agreement, at
which Curran had counsel and presented evidence.
8
The earlier suspension was an entirely appropriate matter
for the Department to consider in evaluating what actions should be
taken in response to the posting of November 30. See Hennessy v.
City of Melrose, 194 F.3d 237, 247 (1st Cir. 1999).

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 (2) While Curran was serving his suspension on November

30, he "made highly inappropriate and violent comments regarding

Adolf Hitler and the Nazis on the ECCOA's website." Reviewing

Curran's prior website postings and comments, it is clear that

Curran identifies Hitler as the Sheriff, the Jews as the

Correctional Officers, the Nazi generals as the Department's

deputies and captains, and another group -- including himself -- as

those who may attack the Nazis. In Curran's November 30 posting,

Curran's references are violent and reference plots against Hitler,

whom Curran has repeatedly identified as the Sheriff.

(3) In his psychiatric evaluation required as part of the

November 23 discipline, Curran "acknowledged the importance of [the

employer's interest in Curran's] getting along and not creating

'friction' with the administration and senior officers."

(4) Based on not only the "offensive and violent

comments posted while on suspension but also the circumstances

leading to [Curran's] suspension, it [was] clear that [he was]

either unable or unwilling to follow the Department's Work Rules

and Code of Ethics."

We turn to Curran's arguments as to why these reasons are

insufficient to justify the termination of his employment. Curran

recognizes that the stronger the First Amendment interests in the

speech, the stronger the justification the employer must have. See

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Connick, 461 U.S. at 150. From this, Curran first argues that the

value of his speech was very high.9

That some of Curran's speech expressed topics of value in

the civil discourse does not render all of his speech protected.

See, e.g., Waters, 511 U.S. at 681 ("An employee who makes an

unprotected statement is not immunized from discipline by the fact

that this statement is surrounded by protected statements."); Heil

v. Santoro, 147 F.3d 103, 110 (2d Cir. 1998) (noting that "an

employee who engages in unprotected conduct [cannot] escap[e]

discipline for that conduct by the fact that it was related to

protected conduct"); cf. Hennessy v. City of Melrose, 194 F.3d 237,

246-47 (1st Cir. 1999) (analyzing each instance of speech

separately to determine whether it was protected). The November 30

posting included speech going far beyond providing information in

which there was a legitimate public interest.

The posting urged Department administrators to engage in

insubordination and insulted their integrity. The posting then

referred to Adolf Hitler and his generals, likening Sheriff Cousins

9
The defendants argue that Curran's motive was purely
personal and thus entitled to less First Amendment weight in the
balancing test. We do not go down that path. It may not be
appropriate to evaluate the value of the speech to the public by
looking at whether plaintiff's motives were good, bad, or
indifferent.
We also express no view on defendants' other argument that
speech which is repetitive of speech already in the public domain
is entitled to lesser protection.

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to Hitler, with a motto of "Have no pity! Act brutally." This

repeated the theme of his August 1 posting, that the Sheriff was

"the Dictator (Hitler)," who ordered the "Jews . . . marched into

the death chambers (our officers)." Curran likened those who

followed Cousins's instructions to Hitler's generals, and accused

them of following orders regardless of how immoral or wrong the

orders were.

The posting referred to a plot by Hitler's generals

against him. The reference was to a July 20, 1944 attempt by

German military officers to assassinate Hitler by placing a bomb in

a meeting which Hitler attended. See M.R.D. Foot, Schwarze

Kapelle, in The Oxford Companion to World War II 764, 765 (I.C.B.

Dear & M.R.D. Foot, eds., 2005). The bomb went off and killed

three people; Hitler escaped death. Id. By analogy, Curran urged

a similar secret plot against the Sheriff, which was "the right

thing [if] not always the easy thing." Indeed, Curran ended the

posting by saying, "Death before dishonor."

It is difficult to find any First Amendment value to the

citizenry in these portions of the November 30 posting. To start,

the speech is defamatory of the Sheriff and put pejorative labels

on those who did not engage in insubordination. Speech done in a

vulgar, insulting, and defiant manner is entitled to less weight in

the Pickering balance. Jordan, 428 F.3d at 74 (citing Stanley v.

City of Dalton, Ga., 219 F.3d 1280, 1290 (11th Cir. 2000)).

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 Curran attempts to excuse his intemperate and extreme

language by referring to language from general free speech cases

protecting robust and offensive speech. See, e.g., New York Times

Co. v. Sullivan, 376 U.S. 254, 270 (1964) ("[D]ebate on public

issues should be uninhibited, robust, and wide-open, and . . . may

well include vehement, caustic, and sometimes unpleasantly sharp

attacks on government and public officials."). The Supreme Court

has flatly rejected that defense in public employee cases. The

Court held in Waters that the general free speech jurisprudence on

which Curran relies "cannot reasonably be applied to speech by

government employees." 511 U.S. at 672 (plurality opinion).

Further, "[A] government employer may bar its employees from using

[] offensive utterance[s] to . . . the public or to the people with

whom they work. . . . [W]hen an employee counsels her co-workers

to do their job in a way with which the public employer disagrees,

her managers may tell her to stop, rather than relying on

counterspeech." Id.

At the heart of this case is Curran's argument that no

one could have reasonably taken this speech as being either

disruptive or threatening; in essence, Curran contends that the

Department overreacted to his speech, no matter how extreme it was.

He buttresses this with an argument that the Department did not

show that the speech had any actual detrimental effect. Both

arguments fail.

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 An employer need not show an actual adverse effect in

order to terminate an employee under the Garcetti/Pickering test.

Garcetti itself refers to "speech that has some potential to

affect" a public employer's operations. 126 S. Ct. at 1958. An

employer need not "allow events to unfold to the extent that the

disruption of the office and the destruction of working

relationships is manifest before taking action." Connick, 461 U.S.

at 152. In Waters, the Court stated that it has "consistently

given greater deference to government predictions of harm used to

justify restriction of employee speech than to predictions of harm

used to justify restrictions on the speech of the public at large.

Few of the examples we have discussed involve tangible, present

interference with the agency's operation. The danger in them is

mostly speculative." 511 U.S. at 673.

The substantial risk of disruption to the department is

apparent from the text of the speech and the escalation of Curran's

speech.10 Significant weight is given to the public employer's

"reasonable predictions of disruption, even when the speech

involved is on a matter of public concern." Id. There is little

question in this case that the Department's concerns about

10
Our decision in O'Connor v. Steeves, 994 F.2d 905, 916
(1st Cir. 1993), on which Curran relies, does not help him. In
O'Connor, the court found that the defendant had not "met its
burden of showing that the disruption was attributable" to the
plaintiff's speech. Id. Here, there is no question that any risk
of disruption came from Curran's conduct.

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disruption were reasonable.11 The statements here directly went to

impairing discipline by superiors, disrupting harmony and creating

friction in working relationships, undermining confidence in the

administration, invoking oppositional personal loyalties, and

interfering with the regular operation of the enterprise. See

Rankin, 483 U.S. at 388.

The Department is a law enforcement agency and

administers a correctional facility, heightening the governmental

interest on the other side of the balance under our circuit

precedent. See, e.g., Guilloty Perez, 339 F.3d at 53; Jordan, 428

F.3d at 74. Other circuits agree. See, e.g., Oladeinde v. City of

Birmingham, 230 F.3d 1275, 1293 (11th Cir. 2000) (holding that the

"heightened need for order, loyalty, morale and harmony" in a law

enforcement agency affords it "more latitude in responding to the

speech of its officers than other government employers");

O'Donnell v. Barry, 148 F.3d 1126, 1135 (D.C. Cir. 1998)

("[B]ecause of the special degree of trust and discipline required

in a police force there may be a stronger governmental interest in

regulating the speech of police officers than in regulating the

speech of other governmental employees."). The district court

reached the correct result.

11
Curran argues that his call to "do the right thing" was
an entreaty to his fellow officers to avoid following what he
thought were illegal orders. What is relevant for the purposes of
preventing disruption is the Department's reasonable reading, not
Curran's subjective intent.

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 III.

The decision of the district court is affirmed. Costs

are awarded to the defendants.

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