dissenting:
I believe the record in this case supports the grant of summary judgment for defendants, and that the Virginia Department of Corrections acted permissibly in first suspending and then in transferring Jackson. Accordingly, I respectfully dissent.
In First Amendment cases, we have an obligation to conduct an independent examination of the whole record to make sure there is no forbidden intrusion on the field of free expression. Rankin v. McPherson, — U.S. —, 107 S.Ct. 2891, 2897 n. 9, 97 L.Ed.2d 315 (1987), reh'g denied — U.S. —, 108 S.Ct. 31, 97 L.Ed.2d 819 (1987). In reviewing this grant of summary judgment, consideration is limited to facts which are undisputed, viewing them in a light most favorable to Jackson.
Mecklenburg Correctional Center is a maximum security institution. It houses death row inmates, maximum security inmates, and in addition the most disruptive and trouble-making inmates of the prison system, as well as some inmates in protective custody. Maximum security inmates are those with sentences of 50 years or more, and even those are described by Jackson as the “lesser of two evils.”
*723In the months preceding Jackson’s transfer, Mecklenburg had experienced several crises, and at least one change of administration. The “[s]taff was extremely demoralized” and the department administration was “in the midst of trying to rebuild the confidence in the people who worked there and to reestablish good security practices and operations.” On May 31, 1984, several death row inmates escaped. In July of that year, there was a riot.1 In August 1984, inmates staged an uprising, taking hostages who were held for 19 hours. Jackson acknowledged that during the summer of 1984, Mecklenburg was a “stressful situation to work in”; the inmates were violent toward property or people and there were frequent assaults. Against this backdrop of volatility, Meck-lenburg experienced interim administrations from the summer of 1984 until Toni Bair was appointed Warden on January 16, 1985. In the three weeks that elapsed between the time Bair assumed the position of warden and the incident under inquiry here which occasioned Jackson’s suspension and transfer, Jackson had already voiced to Bair criticism of certain of Bair’s actions in connection with the way Bair handled a confrontation between Jackson and an inmate.
Remarkably, this factual setting, as well as certain other facts which will appear in this dissent, is not taken account of by the majority, but I cannot divorce it from the case at hand.
Jackson was in charge of the Prison Emergency Response Team (PERT) then in existence at Mecklenburg. The PERT team, whose responsibilities are related in the majority opinion, was comprised of two squads, a total of twelve men, who in turn were charged with responding to prison emergencies.
On February 6,1985, Jackson uttered the remarks that spawned this controversy. I take no issue with the majority’s recitation of the undisputed portions of Jackson’s remarks in the staff cafeteria. But, I would add that it is also undisputed that when Martha Williams heard Jackson’s criticism of Bair’s policies, it disturbed her so much that she went to the assistant warden and related the remarks to him. She was “concerned about my own security;” to Miss Williams, “... that’s [referring to Jackson] a very serious statement, and I think it can jeopardize the security of an institution.” Later that afternoon, Miss Williams was summoned to Warden Bair's office where she repeated to Bair the conversation she had heard in the lunchroom. She told both Bair and the assistant warden that the remarks were made in the presence of inmates, and they had obviously been made in the presence of the staff members at the table. Before taking any action with respect to Jackson, Warden Bair consulted with his superiors in Richmond, was first advised to place Jackson on suspension pending an investigation of the incident, and later that same day was advised to transfer Jackson. Bair requested a meeting with Jackson, and in that meeting Jackson admitted to having criticized the warden’s policies and predicting that a riot would occur due to those allegedly lenient policies. Jackson was initially suspended pending further investigation and was escorted from the prison. About an hour and a half later, the suspension was lifted and *724he was ordered transferred to Nottoway Correctional Center. Later that same day, the order of transfer was amended, and he was directed to report to the Virginia State Penitentiary the following day, February 7th. Jackson refused to report as ordered. Rather than reporting to his new post, he traveled to Richmond, seeking and obtaining ad hoc meetings with department officials, including Director Sielaff. Jackson sought rescission of the transfer and reinstatement to his position at Mecklenburg. This request was denied and he was directed to report for duty at the penitentiary. Jackson persisted in his refusal to report to his new duty assignment, and, on or about February 11th, he filed a grievance protesting the transfer, claiming it was punitive and in violation of the First Amendment. On February 25th, Fred Jordan, then the Department’s Regional Administrator, wrote Jackson informing him that the department’s investigation indicated that Jackson had not acted inappropriately but that it would be in the best interests of all concerned that he be transferred to Notto-way, effective March 1st. Jackson also refused this lateral transfer, and, on March 5th, Jordan wrote Jackson informing him that he was being placed on five day suspension for “[fjailure to follow supervisor’s instructions, perform assigned work or otherwise comply with established written policy”. The March 5th letter advised Jackson that he would be terminated if he failed to report for duty at Nottoway on March 9th. Jackson failed to report and on March 14th Jackson was notified that he was being terminated effective March 9th. The grievance process ultimately resulted in a three-member panel deciding that Jackson be reinstated at Mecklenburg. The panel also found that the transfers were “disciplinary and grievable”. Jackson was reinstated at the same rank and pay he had previously earned, although the department refused to reassign him as head of the PERT team. Jackson made it clear that he believed the department had an obligation to reinstate him as head of the PERT team at Mecklen-burg and that any other assignment, irrespective of pay scale and rank, was unacceptable. Jackson testified that because of the department’s refusal to comply with his demand to be reassigned as head of the PERT team at Mecklenburg, he resigned. He filed the underlying complaint in the United States District Court for the Eastern District of Virginia on September 25, 1986.
In granting summary judgment to defendants, the district judge articulated findings of fact and conclusions of law, which the majority criticizes as, among other things, unsupported by the summary judgment record. Slip op. at 18.2 The district court determined that the “place and manner and nature in which [Jackson] chose to exercise his speech in this case ... does not merit protection under these circumstances.”
I believe the district court’s findings of fact are supported by the record. As set forth above, Mecklenburg was in turmoil. As a direct result of the serious problems experienced at the institution, staff morale *725was low, “things were at an all time low. They could not have gotten any lower.” Thus, the actual existence of the potential for another serious disturbance is not disputed.3 Jackson has offered nothing contradicting the characterization of daily life at Mecklenburg as volatile. Indeed, he testified at length about that very matter.
In this case, those charged with administering a maximum security prison, housing among the worst behaved inmates incarcerated in the state prison system, were presented with information that the officer in charge of the emergency response team, responsible for quelling disturbances, was openly hostile to the policies being implemented by the newly appointed warden of the institution at a time when the staff was demoralized and things were at an all time low. Acting on that information, they first ordered Jackson suspended, which lasted something more than an hour, and then ordered him transferred to another environment, in a different institution. It is difficult for me to perceive a set of facts which better support a finding of fact that, at the time of the action undertaken as a result of the speech, there existed a potential for adverse impact upon discipline and morale as well as the possibility of disharmony and ultimate impairment of the efficiency of the agency. See Connick v. Myers, 461 U.S. 138, 151, 103 S.Ct. 1684, 1692, 75 L.Ed.2d 708 (1983) (quoting Arnett v. Kennedy, 416 U.S. 134, 168, 94 S.Ct. 1633, 1651, 40 L.Ed.2d 15 (1974) (Justice Powell concurring). See also Jurgensen v. Fairfax County, Va., 745 F.2d 868, 879 (4th Cir.1984) (“it is sufficient that [damage] to morale and efficiency is reasonably to be apprehended”).
The requisite elements for consideration of a first amendment claim in the context of public employment are whether the speech is related to a matter of public concern, and hence protected, and whether the employer’s reaction to protected speech promotes the governmental interest in maintaining discipline and promoting efficiency and integrity in the discharge of official duties. Jurgensen, supra at 880.4 Even assuming, for purposes of summary judgment, that the subject matter of Jackson’s speech was a matter of public concern, I fail to see how he survives the application of the second prong of the analysis.5 Discerning a lack of undisputed or sufficiently developed facts capable of sustaining a finding that there was an “actual” threat posed by Jackson’s speech, the majority decides that the “district court could not properly balance the conflicting interests”. Maj. op. at 721. The factual context is critical to the resolution of the constitutional issue. At 718. Based upon its review of this record, the majority fails to find the existence of a real threat to, or actual disruption of, the employer’s interests, “other than Bair’s apparent perception of such a threat”. The majority further believes that the district court imper-missibly assumed the existence of a threat from the content of the speech and official reaction thereto. With all respect, I suggest the district judge has the better of it. The majority’s reading of the record ignores the background of riot and turmoil and improperly minimizes much of the factual setting of the speech for which protec*726tion is sought. While the majority acknowledges that there are special considerations favoring this public employer, maj. op. at 722, it never mentions the fact that Mecklenburg was a severely troubled maximum security correctional facility. Similarly, it fails to recognize Jackson’s disagreement with department policy that is not disputed in the record.
The majority is of course correct in noting the complex nature of the issue as well as the difficulty in applying the “public concern” and “interest balancing” elements required by relevant case law. Maj. op. at 717. And, it is important to note that it has been recognized that in undertaking a balancing test, courts must6
give weight to the nature of the employee’s job in assessing the possible effect of his action on employee morale, discipline or efficiency. In so doing, it must be recognized that such effect may vary with the job occupied by the employee. In analyzing the weight to be given a particular job in this connection non-poli-cymaking employees can be arrayed on a spectrum, from university professors at one end to policemen at the other. State inhibition of academic freedom is strongly disfavored.... In polar contrast is the discipline demanded of, and freedom correspondingly denied to policemen.
Jurgensen, supra at 880 (citations omitted).
We are also cautioned to avoid creating constitutional issues out of every public employment decision. Connick, supra at 143, 103 S.Ct. at 1688; see also Daniels v. Quinn, 801 F.2d 687, 690 (4th Cir.1986). Indeed, Connick instructed against placing an unduly onerous burden on the State to justify its action, stating that the burden to be met by the State “varies depending upon the nature of the employee’s expression”. Connick at 149-50, 103 S.Ct. at 1692. In light of the Supreme Court’s instructions to consider the nature of the employee’s expression in balancing protected speech against the public employer’s interests, it was not error for the district court to conclude, as it did, that Jackson’s comments, “even if [they] concerned matters of public interest in a limited way” were outweighed by the interests of the State. Even if the public interest was more than limited, as the majority apparently holds, it is apparent that the interests of the State outweigh whatever public interest there may be, and rather than being a threshold legal error tainting the judgment, maj. op. at 719, this determination appears to be consistent with First Amendment decisions in this circuit and of the Supreme Court.
Another factor in the equation is whether close working relationships are essential to fulfilling the public employer’s public responsibilities. If they are, “a wide degree of deference to the employer’s judgment is appropriate”. Connick at 151-52, 103 S.Ct. at 1692. We have previously noted that when circumstances concern a supervisor within a para-military unit, as here, “mutual confidence and loyalty are of great importance”. Joyner, supra at 24. It follows that we owe a wide degree of deference to the department’s judgment first to suspend and then to transfer Jackson. No reason is shown in the record not to defer to the prison authorities in this case.
But my most pronounced disagreement with the majority is on account of the following.
The Supreme Court has stated that: we do not see the necessity for an employer to allow events to unfold to the extent that the disruption of the office is manifest before taking action.
Connick at 152, 103 S.Ct. at 1692 (emphasis added).
The majority today decides that a public employer may not permissibly act to discipline an employee for commenting upon matters of public concern unless the employer can establish an “objectively justifiable basis for his apprehension of a threat.” Maj. op. at 722. “Acting on *727mere potential for disruption” is not enough. Id. Thus, the only conclusion to be logically drawn from the majority opinion is that the department had a duty to gather evidence which tended to show probable disruption or harm before it acted. This is evident in the emphasis placed upon actual perceptions and suggested reactions of co-workers. Maj. op. at 722. This standard, however, I suggest, is nowhere reflected in the case law. In fact, we have repeatedly stated that it is the potential for harm that allows the public employer to act. Jurgensen v. Fairfax County Va., supra at 879 (“[i]f the perception of potential harm or damage is present, that fact may outweigh any First Amendment rights involved”); Jones v. Dodson, 727 F.2d 1329, 1334 (4th Cir.1984), (court must weigh “the degree of ‘public concern’ ” against “the degree to which the employee’s conduct is justifiably viewed by the public employer as an actual or threatened disruption of the conduct of government operations”). See also Connick, supra at 152, 103 S.Ct. at 1692. Whether or not a public employer is justified in perceiving a threat is a very different standard from requiring that the employer prove the existence of an objectively justifiable basis for such a perception. Thus, the majority would unfortunately misconstrue Connick, but nothing in the cases, I think, requires a public employer to meet such a standard. Indeed, I discern no real difference between the standard adopted by the majority today and that already rejected in Con-nick (it is error to require the public employer to “clearly demonstrate” that the speech “substantially interfered” with official responsibilities”). Connick at 150, 103 S.Ct. at 1691.
Jackson’s comments were not uttered in a vacuum. Rather, they represented a dispute between a subordinate and his superi- or officer over how to best manage this maximum security prison in a very troubled and delicate situation. The remarks were not directed in private to a sole coworker, but were made in a busy cafeteria to several people, and not only to colleagues, Bair was advised. Whether or not Jackson said he would sit back and watch the predicted riot, or whether he spoke in a loud manner, are issues which need not be decided to conclude, as a matter of law based upon the application of the undisputed facts in this record, that there existed the threat of disruption or harm entitling the public employer to suspend and then transfer Jackson. I believe the record amply supports the finding that the department perceived a legitimate threat to the safe operation of Mecklenburg. In this case, I think the balance was properly struck by the district court in favor of the public employer. Accordingly, I would affirm the grant of summary judgment.
. Officer Jackson described the July riot:
A. Basically, we had officers suited in riot gear. Inmates had taken equipment off the recreation yard and broken it up into weapons, and we went into the rec yard and had to physically subdue the inmates, take the weapons away from them and put them back in the buildings. Building 1 was first to do it. They took the yard over. Then as we took Building 1 yard back, the two officers that were stationed on Building 2 recreation yard were attacked by a group of inmates in the recreation yard, then we responded and took that yard back.
Q. Both of these yards had to be taken back by force?
A. Yes.
Q. Inmates just didn’t give up?
A. No, sir.
Q. Did they fight you?
A. Yes.
Q. Did you physically fight with any inmates?
A. Yes.
******
Q. Any officers injured seriously?
A. Yes. Several of us were injured.
. The district judge found, considering only those facts admitted by Jackson, that Jackson’s remarks were uttered in a maximum security prison environment, which “required prison guards to have a close and trusting relationship with their co-workers”; and that the comments were made in a "busy, populated dining facility, in the presence of other Corrections Department employees”. Based upon these facts as to time, place and manner of the speech, the district court concluded that 1) in a maximum security prison environment, the State has "great need for harmony in the workplace”; 2) Jackson's remarks "had the potential to damage a fellow prison guard's faith in the plaintiffs ability to continue to do his job” and to further damage co-workers’ faith in the larger controls of the prison system; 3) the speech had the clear and present potential "to impede [Jackson's] ability to perform his duties, which in turn [impacts] on other employees and ultimately endangered the total mission of the Corrections Department at that institution.”
The district judge explicitly considered the potential for harm or damage attributable to Jackson’s remarks, and found extant the "possibility of morale problems; ... the possibility of tension being created between guards and inmates". The district court also determined that whether the inmates heard Jackson utter the comment (which he denies), "or if they got word" of it, there was a clear danger ... that Mr. Jackson’s prophesy of a riot or some kind of disturbance would possibly become self-fulfilling.”
. The majority maintains that whether Jackson’s remarks would have caused disruption is undeveloped on the record. I maintain the potential for harm or disruption attributable to the comments is established by this record. What is not subject to interpretation is that at the time the comments were made, the atmosphere at Meck-lenburg remained tense, capable of exploding at any misstep.
. It is undisputed that Jackson was transferred as a direct result of his remarks. Hence we need not engage in the "but for” analysis established by Mt. Healthy City School Bd. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).
I also note here that Jackson received all the procedural due process to which he was entitled, so the only question is, was the llA hour suspension and transfer justified under the facts of this case in the face of the First Amendment claim.
.While I am not convinced that Jackson's speech is protected, I need not engage in this analysis since I believe that the employer’s interests in maintaining harmony and discipline within a maximum security correctional facility which was already in turmoil and housed among the State’s most disruptive inmates outweighs any such protection.
. As we noted in Joyner v. Lancaster, 815 F.2d 20, 23 (4th Cir.1987), cert. denied — U.S. —, 108 S.Ct. 102, 98 L.Ed.2d 62 (1987), “[these] kinds of variables have been noted by other courts”, (citations omitted).