Domenic J. Curinga v. City of Clairton

PRECEDENTIAL
UNITED STATES
COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-1278
DOMENIC J. CURINGA,
Appellant
v.
CITY OF CLAIRTON;
GEORGE ADAM SON, City Council
Member, in his individual capacity;
THOM AS MEADE, City Council
Member, in his individual capacity;
DOMENIC VIRGONA,City Council
Member, in his individual capacity
On Appeal from the
United States District Court for the
Western District of Pennsylvania
D.C. Civil Action No. 00-cv-00907
(Honorable Robert J. Cindrich)
Argued July 31, 2003
Before: SCIRICA, Chief Judge,
RENDELL and AMBRO, Circuit Judges
(Filed February 4, 2004)
SAMUEL J. CORDES, ESQUIRE
(ARGUED)
Ogg, Cordes, Murphy & Ignelzi
245 Fort Pitt Boulevard
Pittsburgh, Pennsylvania 15222
Attorney for Appellant
RONALD D. BARBER, ESQUIRE
(ARGUED)
Strassburger, McKenna, Gutnick &
Potter
322 Boulevard of the Allies, Suite 700
Pittsburgh, Pennsylvania 15222
Attorney for Appellees
OPINION OF THE COURT
SCIRICA, Chief Judge.
At issue is whether a city council
lawf ully d ismiss ed it s p r i n ci p al
policymaking employee who campaigned
against winning councilmanic candidates
in a primary election. The City of Clairton
fired its municipal manager, Dominic
Curinga, after he campaigned against an
incumbent city council member who won
re-election and against another successful
councilmanic candidate. Curinga asserts
the city council’s decision to terminate him
violated his First Amendment right to
speak freely on a matter of public concern.
Summary judgment was granted for
defendants. We will affirm.1
1We exercise appellate review over the
entry of summary judgment under 28
U.S.C. § 1291. Our standard of review is
plenary. Morton Int’l, Inc. v. A.E. Staley

-- 1 of 12 --

I.
In August 1997, Dominic Curinga
was appointed municipal manager of the
City of Clairton, Pennsylvania. Prior to
this appointment, Curinga had served two
terms on the Clairton City Council and one
term as its mayor. The city council, which
included Mayor Dominic Serapiglia and
four council members, voted 4-1 in favor
of Curinga’s appointment as municipal
manager. Curinga and all council
members were members of the Democratic
Party.
Curinga was responsible to the city
council “for the administration of all
municipal affairs placed in the Manager’s
charge.” Curinga described his position as
“run[ning] the day-to-day business
operations of the city.” In this capacity, he
oversaw all city departments and
supervised and managed all city
employees, including the finance director,
public safety director, public works
director, fire chief and police chief.
Curinga also implemented city council
decisions in various departments within
the municipality. He had the power to
appoint, suspend, or remove all municipal
employees and administrative unit heads
with the advice and consent of the council.
Curinga received a salary of $39,000 per
year. His employment contract allowed at-
will termination.
In 1999, while employed as
municipal manager, Curinga ran for the
position of District Justice as an “Action
Team” Democrat. The “Action Team”
ticket ran against the “regular” Democratic
Party’s ticket in the primary election. The
“regular” party’s endorsed ticket included
City Councilman incumbent George
Adamson and candidate Dominic Virgona,
who was challenging incumbent City
Councilwoman and “Action Team”
Democrat Ruth Pastore.
In his deposition, Curinga admitted
speaking out during the primary election
campaign in favor of Pastore and against
Adamson and Virgona. At one point in the
primary campaign , all Demo cratic
candidates were present at a roundtable
question and answer session of a “Meet the
Candidates” forum sponsored by the First
AME Church of Clairton. During the
session, a member of the audience
questioned Curinga about alleged racial
discrimination at the Sons of Columbus, an
Italian ethnic heritage organization to
which Curinga and other candidates
belonged. The audience member asked,
“How could you say you are going to be a
fair magistrate when you’re a member of
an organization, a club, that does not allow
blacks admittance[?]” Curinga was upset
that two other club members present at the
forum, Virgona and Curinga’s opponent
for District Justice, Armand Martin, failed
to come to the club’s defense.
The incident prompted Curinga to
Mfg. Co., 343 F.3d 669, 679 (3d Cir.
2003). A motion for summary judgment is
properly granted when the record reveals
no genuine issue of material fact, and the
movant is entitled to judgment as a matter
of law. Id. at 680.

-- 2 of 12 --

write “An Open Letter to the Membership
of the Sons of Columbus, Clairton:”
This forum was attended by
a majority of African-American
citizens. During the question
period of the forum, the audience
began to question President
Curinga as to why African-
American people are not permitted
to join the Sons of Columbus. You,
the members of the Sons of
Columbus should know that
Domenic Virgona and Armand
Martin both stood back and were
ashamed to admit that they are
members of our organization. Why
did they just step back? Why didn’t
they help to explain that our
organization is an ethnic society,
promoting our Italian heritage?
Instead, these two members were
aligned with the people sponsoring
the forum, in an attempt to present
a negative impression on [sic] the
A frican-American people in
attendance about our organization
and our heritage.
An appeal is made to all
members of the Sons of Columbus
in Clairton, to NOT remember
these two members on Election
Day. The same way that they did
not remember they were members
of our organization at the forum.
It is up to you, the
membership, to vote and support
people that our [sic] proud of their
Italian heritage and of their
association with our organization.
E l e c t : D o m e n i c J .
Curinga—District Justice; Ruth
Pastore—Council; . . . .
(emphasis in original). The letter was
signed by “The ‘A ction Team ’
Democrats.” Curinga admits he wrote the
letter.
Following the letter’s distribution to
the membership, the Sons of Columbus
expelled Virgona from the club. Virgona
later stated that this letter and the resulting
expulsion damaged his relationship with
Curinga: “I was highly upset [about the
letter] . . . [because Curinga] was attacking
me and I wasn’t running against him. But
he had a purpose for attacking me that if
Ruth Pastore won, he was sure that his job
still existed.” Virgona also explained,
“[t]his letter did it all. And then after that,
I mean we were having arguments all
through, at every meeting of the Sons of
Columbus.”
During his campaign for District
Justice, Curinga took off eleven weeks
from work with pay, claiming he deserved
“comp time” because of his prior
attendance at evening and weekend city
meetings. The city council never approved
this use of “comp time.”
On May 18, 1999, Curinga lost to
Martin in the District Justice primary
election. Adamson was re-elected and
Pastore lost her seat on the city council to
Virgona. Thus the “regular” Democratic
Party candidates prevailed over the
“Action Team” Democrats and the balance
of power in the city council shifted to the

-- 3 of 12 --

“ r e g u l a r ” D e m o c r a t i c P a r t y
representatives.
In the summer of 1999, Curinga and
two other defeated candidates filed an
election challenge in the Court of
Common Pleas of Allegheny County. The
court dismissed the lawsuit, noting it was
“grossly insufficient procedurally and
substantively.” Pastore et al. v. Virgona et
al., GD 99-8592 (C.P. Allegheny Cty., July
2 2 , 199 9). T h e P e n n s yl v a n ia
Commonw ealth Court dismissed a
subsequent appeal because petitioners
failed to provide notice to defendants.
Pastore et al. v. Virgona et al., 741 A.2d
256 (Pa. Commw. Ct., Oct. 21, 1999).
On January 3, 2000, the new city
council met a nd term inated the
employment contracts of the municipal
manager and municipal solicitor. Council
members Adamson, Thomas Meade, and
Virgona voted in favor of Curinga’s
termination, while Mayor Serapiglia and
Councilman Terry Lee Julian voted
against.
According to council minutes, the
newly appointed municipal solicitor stated
that the city council fired Curinga because
he violated the Home Rule Charter by
campaigning on city time and using
taxpayer money to fund his campaign.
Reasons for Curinga’s termination cited in
the council members’ depositions included
campaigning on city time; excessive
absences during the campaign; the lawsuit
alleging election fraud; a conviction for
driving under the influence of alcohol; the
Sons of Columbus letter; and interpersonal
problems. Taking the facts in the light
most favorable to Curinga, we assume he
was fired because of his political speech,
including the Sons of Columbus letter.
Curinga brought suit under U.S.
Const. amend. I and 42 U.S.C. § 1983
against the City of Clairton and the three
council members who voted for his
termination, claiming the Clairton City
Council had retaliated against him for
exercising his right to free speech in
writing the Sons of Columbus letter and
for filing the election fraud lawsuit. In a
Repo rt and Recommendation, the
Magistrate Judge recommended summary
judgment for all defendants. The District
C o u r t a d opted the R epor t a n d
Recommendation. Curinga timely
appealed.
II.
A.
This matter falls at the intersection
of two separate First Amendment
doctrines: freedom of speech and freedom
of association. Both are implicated when
a high-level government employee speaks
out against his public employer during an
election campaign. Wilbur v. Mahan, 3
F.3d 214, 215 (7th Cir. 1993). The First
Amendment protects an employee who
speaks out on a matter of public concern,
so long as the employee’s interests
outweigh the government’s interest in
efficient operations. At the same time,
public officials may be able to terminate a
policymaking employee on the basis of
political affiliation and conduct, regardless
of freedom of association rights. While

-- 4 of 12 --

this case implicates both doctrines, the
result here is the same, because the public
employer’s interest is especially strong.
Although there has been little
disparity in application and outcome, the
various courts of appeals have divided
over whether to employ an analysis based
on freedom of speech or on freedom of
association. In cases such as these, under
both doctrines, the outcome is likely to be
the same. Nevertheless, we believe that in
most cases, where a confidential or policy
making employee engages in speech or
conduct against his public employer, the
better analytical approach is found under
the freedom of speech doctrine.
B.
Public employees have a First
Amendment right to speak freely on
matters of public concern. See, e.g., Perry
v. Sindermann, 408 U.S. 593, 597 (1972);
Pickering v. Board of Educ., 391 U.S. 563,
571-72 (1968), (teacher’s speech against
school board is protected as a matter of
public concern); Watters v. City of
Philadelphia, 55 F.3d 886, 891 (3d Cir.
1995) (“judicial vigilance is required to
ensure that public employers do not use
their authority to silence discourse on
matters of public concern simply because
they disagree with the content of the
employee’s speech.”). But there is
protection only for speech in matters of
public concern, Connick v. Myers, 461
U.S. 138, 146 (1983), and that which is not
likely to disrupt the efficient operation of
the workplace. Pickering, 391 U.S. at 568.
At the same time, the government
has an interest in regulating the speech of
its employees to promote “efficiency and
integrity in the discharge of official duties,
and [in maintaining] proper discipline in
the public service.” Connick, 461 U.S. at
150-51.2 These interests must be balanced
against the employee’s interest in
addressing matters of public concern and
enabling the electorate to make informed
decisions. 391 U.S. at 572.
The Pickering balancing test
considers “whether the statement impairs
discipline by superiors or harmony among
co-workers, has a detrimental impact on
close working relationships for which
personal loyalty and confidence are
necessary, or impedes the performance of
the speaker’s duties or interferes with the
2Justice Powell elaborated:
To this end, the Government, as an
employer, mu st hav e w ide
discretion and control over the
management of its personnel and
internal affairs. This includes the
prerogative to remove employees
whose conduct hinders efficient
operation and to do so with
dispatch. Prolonged retention of a
d i s r u p t i v e o r o t h e r w i s e
unsatisfactory emp loyee can
adversely affect discipline and
morale in the work place, foster
disharmony, and ultimately impair
the efficiency of an office or
agency.
Arnett v. Kennedy, 416 U.S. 134, 168
(1974) (Powell, J., concurring in part).

-- 5 of 12 --

regular operation of the enterprise.”
Rankin v. McPherson, 483 U.S. 378, 388
(1987). The test also takes into account
the extent of authority entailed in the
employee’s position. Id. at 390.
In a public employee’s retaliation
claim for engaging in protected activity,
there are three factors to consider. First,
the employee must demonstrate that the
speech involves a matter of public concern
and the employee’s interest in the speech
outweighs the government employer’s
countervailing interest in providing
efficient and effective services to the
public. Pro v. Donatucci, 81 F.3d 1283,
1288 (3d Cir. 1996). Next, the speech
must have been a substantial or motivating
factor in the alleged retaliatory action.
Baldassare v. New Jersey, 250 F.3d 188,
194-95 (3d Cir. 2001); Green v. Phila.
Hous. Auth., 105 F.3d 882, 885 (3d Cir.
1997). Finally, the employer can show
that it would have taken the adverse action
even if the employee had not engaged in
protected conduct. Pro, 81 F.3d at 1288.
The second and third factors are questions
of fact, while the first factor is a question
of law. Id.
More than twenty five years ago,
the Supreme Court set forth a separate
an alys is for p olitically mo tivated
discharges of public employees. In Elrod
v. Burns, 427 U.S. 347 (1976), the Court
restricted the dismissal of public
employees for partisan reasons to protect
the employees’ freedom of political belief
and association. 427 U.S. at 357-58
(Brennan, J., plurality opinion). The Court
also restricted the use of patronage to
insure the efficiency of the public
workplace, stating that “mere political
association is an inadequate basis for
imputing disposition to ill-willed conduct.”
Id. at 364-65.
At the same time, the Court in
Elrod allowed dismissals based on
political affiliation for “policymaking”
positions. Policymaking employees with
different politic al affiliations or
orientations could thwart the will of the
electorate and block the implementation of
new policies. Id. at 367. Those who were
not “policymakers” were “not in a position
to thwart the goals of the in-party” and
were protected. Id. The Court refined the
policymaker exception four years later in
Branti v. Finkel, 445 U.S. 507 (1980),
holding “the ultimate inquiry is not
whether the label ‘policymaker’ or
‘confidential’ fits a particular position;
rather the question is whether the hiring
authority can demonstrate that party
affiliation is an appropriate requirement
for the effective performance of the public
office involved.” Id. at 518.
This court has considered factors
that might lead to an Elrod exception. The
determining test in Ness v. Marshall was
whether a difference in party affiliation
was “highly likely to cause an official to
be ineffective in carrying out” his duties.
660 F.2d 517, 521 (3d Cir. 1981). In
Brown v. Trench, we held a key factor was
whether the employee has “meaningful
input into decisionmaking concerning the
nature and scope of a major township
program.” 787 F.2d 167, 168 (3d Cir.

-- 6 of 12 --

1986).3 See also Zold v. Township of
Mantua, 935 F.2d 633 (3d Cir. 1991)
(applying the Branti test to determine
whether party affiliation is an appropriate
requirement for the effective performance
of the duties of the public office).
Elrod has been traditionally applied
to terminations based on an employee’s
different political affiliation. Members of
the same party are presumed to share
common interests and goals, and patronage
appointments usually come from the same
party as the elected official. Hall v. Ford,
856 F.2d 255, 263 (D.C. Cir. 1988). But
identical party affiliation does not
necessarily ensure the subordinate’s loyal
adherence to the superior’s policies.
Primary election fights can be famously
brutal, sometimes more so than contests in
the general election, and animosity
between candidates is likely to result. See
Robertson v. Fiore, 62 F.3d 596, 600 (3d
Cir. 1995); Wilbur, 3 F.3d at 219.
Recognizing this, other courts of appeals
have broadened the definition of “political
affiliation” to include commonality of
political purpose, partisan activity, and
political support. See Kaluczky v. City of
White Plains, 57 F.3d 202, 208 (2d Cir.
1995); Williams v. City of River Rouge,
909 F.2d 151, 153 n.4 (6th Cir. 1990).
These courts have upheld terminations
under Elrod-Branti of policymaking
employees who open ly suppo rted
campaigns against their current or
subsequently elected employer. Kaluczky,
57 F.3d at 204-05; Williams, 909 F.2d at
153-54.
So the Supreme Court has
apparently crafted two methods of
analyzing First Amendment claims
depending on the constitutional rights
implicated – the right of free speech
(addressed by the Pickering balancing test)
and the right of political affiliation
(addressed by Elrod/Branti). But, as
noted, Pickering and Elrod may easily
overlap in situations involving campaign
speech against one’s public employer.
C.
The Supreme Court has not yet
directly confronted a situation where a
policymaker is terminated both for
political affiliation and speech. The
District Court here applied the Pickering
balancing test to the Sons of Columbus
letter and the election fraud lawsuit, citing
O’Hare Truck Service, Inc. v. City of
Northlake, 518 U.S. 712, 718-20 (1996).4
3Brown listed specific factors in this
determination, including “whether the
employee participates in . . . discussions or
other meetings, whether the employee
prepares budgets or has authority to hire or
fire employees, the salary of the employee,
and the employee’s power to control others
and to speak in the name of policymakers.”
787 F.2d at 169.
4The Court in O’Hare stated:
Our cases call for a
different, though related, inquiry
where a government employer
takes adverse action on account of
an employee or service provider’s
right of free speech. There, we

-- 7 of 12 --

But the plaintiff in O’Hare was not a
policymaking or confidential employee.
See Rose v. Stephens, 291 F.3d 917, 921
(6th Cir. 2002). Nonetheless, O’Hare
implied that Pickering balancing should be
used when termination is motivated by
both a public employee’s speech and
political affiliation:
A reasonableness analysis will also
accommodate those many cases,
perhaps including the one before
us, where specific instances of the
employee’s speech or expression,
which require balancing in the
Pickering context, are intermixed
w ith a political affiliation
requirement. In those cases, the
balancing Pickering mandates will
be inevitable.
518 U.S. 712, 719-20 (1996). Not only the
balancing, but the outcome as well, may be
inevitable because the public employer’s
interest may weigh so heavily that no other
outcome is possible.5 The speech may
apply the balancing test from
Pickering . . . Elrod and Branti
involved instances where the raw
test of political affiliation sufficed
to show a constitutional violation,
without the necessity of an inquiry
more detailed than asking whether
the requirement was appropriate for
the employment in question. There
is an advantage in so confining the
inquiry where political affiliation
alone is concerned, for one’s
beliefs and allegiances ought not to
be subject to probing or testing by
the government. It is true, on the
other hand, as we stated at the
outset of our opinion, supra, at 714,
that the inquiry is whether the
affiliation requirement is a
reasonable one, so it is inevitable
that some case-by-case adjudication
will be required even where
political affiliation is the test the
government has imposed. A
reasonableness analysis will also
accommodate those many cases,
perhaps including the one before
us, where specific instances of the
employee’s speech or expression,
which require balancing in the
Pickering context, are intermixed
with a politica l affiliation
requirement. In those cases, the
balancing Pickering mandates will
be inevitable. This case-by-case
process will allow the courts to
consider the necessity of according
to the government the discretion it
requires in the administration and
awarding of contracts over the
whole range of public works and
the delivery of governmental
services.
Id. at 719-20 (citation omitted).
5For this reason, the Court of Appeals
for the Sixth Circuit recently held that
“where a confidential or policymaking
public employee is discharged on the basis
of speech related to his political or policy
views, the Pickering balance favors the
government as a matter of law.” Rose, 291

-- 8 of 12 --

adversely affect the public employer’s
ability to effectively run its operations and
accomplish its objectives. At the same
time, the speech may impair the public
employer’s ability to implement policies
through loyal subordinates. Hall, 856 F.2d
at 263.
In these situations, it may be
difficult to distinguish where the efficient
functioning of the government workplace
ends and the employee’s loyalty and ability
to implement the public employer’s
policies begins. See McEvoy v. Spencer,
124 F.3d 92, 99 (2d Cir. 1997). In this
sense, Elrod considerations of fidelity may
easily converge with the government’s
interest in managing an efficient
workplace under the Pickering spectrum.
See, e.g., Kinsey v. Salado Indep. Sch.
Dist., 950 F.2d 988, 994 (5th Cir. 1992)
(en banc) (“[C]ases involving public
employees who occupy policymaker or
confidential positions fall much closer to
the employer’s end of the spectrum, where
the government’s interests more easily
outweigh the employee’s (as a private
citizen).”); Hall, 856 F.2d at 263 (“Given
the similarity in the bases and
countervailing interests recognized in
Pickering and Elrod-Branti, the
government interest recognized in the
affiliation cases is also relevant in the
employee speech cases.”). The
government’s interest in appointing
p o l i ti c a l l y l o y a l e m p l o y e e s t o
policymaking positions converges with its
interest in running an efficient workplace.
D.
To establish a First Amendment
violation under Pickering, Curinga must
demonstrate that his speech involved a
matter of public concern, and that his
interest in the speech outweighs any
poten tial disruption of the work
environment and decreased efficiency of
the office. Curinga openly campaigned
against the “Regular Team” Democrats by
writing the Sons of Columbus letter and
urging members of the organization to
vote for his ticket and against his
opponents. His speech and conduct
involved a matter of public concern.6 See
Green, 105 F.3d at 885-86 (“A public
employee’s speech involves a matter of
public concern if it can be ‘fairly
considered as relating to any matter of
political, social or other concern to the
community’”) (citations omitted). See also
Bass v. Richards, 308 F.3d 1081, 1088-89
(10th Cir. 2002) (holding that speech
regarding political elections involves a
matter of public concern); Brady v. Fort
Bend County, 145 F.3d 691, 706-07 (5th
Cir. 1998) (stating that campaigning for a
F.3d at 921. Whether or not this can be
decided as a matter of law, the
government’s interest in these kinds of
cases is likely dispositive.
6The District Court found that
Curinga’s letter addressed only a matter of
personal concern. We disagree. The letter
contained a mixture of personal and public
matters. For our purposes, however, there
was sufficient content of public concern to
warrant consideration under Pickering.

-- 9 of 12 --

political candidate relates to a matter of
public concern); Gardetto v. Mason, 100
F.3d 803, 812 (10th Cir. 1996) (“In the
spectrum of expression protected by the
First Amendment, we place great value
upon political speech in the electoral
process.”).
But Curinga cannot establish that
his interest in speech outweighed the
government’s interest in efficiency. See
Baldassare, 250 F.3d at 195; Swineford v.
Snyder County, 15 F.3d 1258, 1280 (3d
Cir. 1994). Curinga’s campaign against
the candidates who won the election
impaired the reconstituted city council’s
interest in efficient operations. The record
strongly supports this conclusion. As
noted, Curinga occupied the most
sensitive, high-level policy making
appointive position in the City of Clairton,
one that required confidentiality and a
close working relationship with city
council members to effectively implement
their policies. Under this set of facts, the
strong government interest outweighs the
employee’s speech. Pickering, 391 U.S. at
581.7
Nor can Curinga prevail under
Elrod-Branti. The District Court held that
political “affiliation” was a reasonable
requirement for Curinga’s position. We
agree. The duties of the city manager
required the management of all city
departments, hiring and firing city
employees, representing the city at
meetings, and implementing policies
promulgated by the city council. No non-
elective position in the City of Clairton
c a r r i e d g r e a te r p o li c y m a k i n g
responsibility. Because of Curinga’s
conduct, the “regular” Democratic council
members had good reason to doubt
whether they could rely on him to follow
and implement their policies, or whether
he would instead “obstruct[] th e
implementation of policies of the new
administration, policies presumably
sanctioned by the electorate.” Elrod, 427
U.S. at 367. For these reasons, Curinga’s
policy making responsibilities exempt him
from Elrod/Branti protections generally
afforded to patronage dismissals.
Curinga, therefore, cannot prevail
under either constitutional doctrine.
Although in this case the outcome will be
the same, we believe the dispositive
analysis should fall under the Pickering
balancing standard.8
7As noted, defendants provided several
reasons for terminating Curinga, including
Curinga’s prior DUI conviction; his job
performance and track record as City
Manager; his excessive absences during
the campaign; the Sons of Columbus
letter; his suit alleging election fraud; and
the desire of the city council to retain a
City Manager “more acceptable and
compatible with their policies, beliefs,
desires, and aims for the future of the City
of Clairton.” The District Court believed
the Sons of Columbus letter provided the
p r i n c ip a l mo tiv ation b ehin d th e
termination.
8As noted, the other courts of appeals
have taken somewhat different approaches

-- 10 of 12 --

III.
To summarize, the Clairton City
Council did not unlawfully terminate
Curinga for stumping for the “Action
Team” Democrats and against the
“regular” Democratic candidates.
Although the result is likely to be the
to similar fact situations. The Fifth, Tenth
and Eleventh Circuits have applied the
Pickering test when a policymaker speaks
against his employer during an election
campaign. See Kinsey, 950 F.2d at 994-96
(5th Cir. 1992) (upholding the termination
under Pickering of a school district
superintendent for vocally opposing school
board members); Kent v. Martin, 252 F.3d
1141, 1142-43 (10th Cir. 2001) (applying
Pickering to analyze the termination of a
deputy clerk who unsuccessfully ran
against the county clerk); Stough v.
Gallagher, 967 F.2d 1523, 1528-29 (11th
Cir. 1992) (finding deputy sheriff’s
demotion for supporting political opponent
of sheriff violated deputy sheriff’s First
Amendment rights under Pickering).
The First, Second, Sixth, and
Seventh Circuits have upheld terminations
or other disciplinary measures taken by the
government under the Elrod/Branti
exception when an employee speaks out
against his employer during an election
campaign. See Rosenberg v. City of
Everett, 328 F.3d 12, 17-18 (1st Cir. 2003)
(upholding termination of television
station director by current mayor under
Elrod because the director allowed the
former mayor to submit his candidacy
videotape after the station’s established
deadline, creating a perceived lack of
political support for the current mayor);
Regan v. Boogertman, 984 F.2d 577, 581-
82 (2d Cir. 1993) (holding that the
dismissal of a public employee for
“partisan political reasons” was allowable
under Elrod when the employee actively
opposed her employer’s party and
endorsed candidates from an opposing
party); Kaluczky, 57 F.3d at 204-05 (2d
Cir. 1995) (upholding demotion of
personnel officer under Elrod for actively
endorsing mayor who was not re-elected);
Williams, 909 F.2d at 153-54 (6th Cir.
1990) (upholding termination of city
attorney under Elrod for distributing
campaign literature that criticized a
subsequently elected member of city
council); Heideman v. Wirsing, 7 F.3d
659, 662 (7th Cir. 1993) (upholding
suspension and termination under Elrod of
a deputy sheriff who actively campaigned
against the subsequently elected sheriff);
Wilbur, 3 F.3d 214, 217-18 (7th Cir. 1993)
(upholding under Elrod unpaid leave for
deputy sheriff who announced his
candidacy for office against the current
sheriff). The Ninth Circuit allows for
disciplinary action against policymakers
for any type of speech under Elrod,
including speech not related to policy
views or a political agenda. Fazio v. City
& County of San Francisco, 125 F.3d
1328, 1332 (9th Cir. 1997) (upholding
termination under Elrod of assistant
district attorney who filed papers to run
against district attorney in upcoming
election).

-- 11 of 12 --

same under Elrod and Pickering, when
an employee’s speech is intermixed with
political affiliation, the Pickering
balancing standard is the better analysis
to apply. Because the City of Clairton’s
interest in efficient management strongly
outweighs Curinga’s interests, his
political speech in this case is not
protected under Pickering.
IV.
For the reasons stated, we will
affirm the grant of summary judgment
for defendants.

-- 12 of 12 --