2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-4-2004

Curinga v. Clairton

Precedential or Non-Precedential: Precedential

Docket No. 03-1278

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 PRECEDENTIAL

UNITED STATES

COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 03-1278

DOMENIC J. CURINGA,

Appellant

v.

CITY OF CLAIRTON;

GEORGE ADAMSON, City Council

Member, in his individual capacity;

THOMAS 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 dismiss ed its principal

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
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 atwill 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 Democratic

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.
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 AfricanAmerican 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

African-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.

Elec t : Domeni c J .

Curinga—District Justice; Ruth

Pastore—Council; . . . .

(emphasis in original). The letter was

signed by “The ‘Action 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
“ r egul ar” Dem ocratic Part 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

22, 199 9). The Pennsylvania

Commonwealth 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 and terminated 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

Report and Recommendation, the

Magistrate Judge recommended summary

judgment for all defendants. The District

Cou rt adopted the Report and

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
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

 

2

Justice Powell elaborated:

To this end, the Government, as an

employer, must have wide

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

disrupt ive or oth erw i s e

unsatisfactory employee 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).
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

analysis for politically motivated

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.
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 openly supported

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
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

with 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

thatsome 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).

 

5

For 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
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

politica lly loyal employees to

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

potential 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.6See

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.
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 nonelective position in the City of Clairton

carried gr eate r poli cy ma kin 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[] the

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

principal mo tivation b ehind the

termination.

 

8As noted, the other courts of appeals

have taken somewhat different approaches
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 forsupporting 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).
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.