Curran v. Cousins, 07-1686.

• Citation: 509 F.3d 36
• Decision Date: 05 December 2007
• Docket Number: No. 07-1686.,07-1686.
• Parties: 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.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

509 F.3d 36

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.

No. 07-1686.

United States Court of Appeals, First Circuit.

Heard October 4, 2007.

Decided December 5, 2007.

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.

Before LYNCH, Circuit Judge, STAHL, Senior Circuit Judge, OBERDORFER, Senior District Judge.^*

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, ___ U.S. ___, 126 S.Ct. 1951, 164 L.Ed.2d 689 (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 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.

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 "up-set" 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] drive-way." 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 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 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. . . .

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 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...