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Saturday, March 21, 2015

The Petition Clause of the First Amendment and Borough of Duryea v. Guarnieri

Facts of the Case 
In 2005, Duryea police chief Charles Guarnieri filed a discrimination lawsuit against the Pennsylvania borough, alleging that council members retaliated against him because he had successfully challenged a 2003 decision to fire him. Guarnieri had challenged his firing through arbitration and was reinstated to his position as chief in 2005. His suit alleged that council then issued 11 employment directives, which he claimed placed humiliating restrictions on him, to retaliate against him. He further alleged the borough improperly withheld overtime pay from him and had improperly delayed issuing health insurance benefits. A jury heard the case in April 2008 and awarded Guarnieri $45,358 in compensatory damages and $52,000 in punitive damages. The borough appealed, arguing the evidence did not support the verdict. In February 2010, the U.S. Court of Appeals for the Third Circuit upheld the overall verdict entered by a federal jury, but it overturned the panel's award of $52,000 in punitive damages. The ruling differs from decisions by all 10 other federal circuits and four state supreme courts.
May state and local government employees sue their employers for retaliation under the First Amendment's Petition Clause when they petition the government on matters of private concern?
Decision: 9 votes for Duryea, 0 vote(s) against
Legal provision: First Amendment, Petition Clause
The Supreme Court vacated and remanded the lower court order in an opinion by Justice Anthony Kennedy. "A government employer's allegedly retaliatory actions against an employee do not give rise to liability under the Petition Clause unless the employee's petition relates to a matter of public concern," Kennedy wrote. "The Third Circuit's conclusion that the public concern test does not limit public employees' Petition Clause claims is incorrect." Justice Clarence Thomas concurred in the judgment, writing: "Even where a public employee petitions the government in its capacity as sovereign, I would balance the employee's right to petition the sovereign against the government's interest as an employer in the effective and efficient management of its internal affairs." Meanwhile, Justice Antonin Scalia dissented in part: "I find the proposition that a lawsuit is a constitutionally protected 'Petition' quite doubtful."
Full Opinion by Justice Anthony M. Kennedy 

High Court Limits Public Employee First Amendment Retaliation Claims

June 24, 2011
In Borough of Duryea v. Guarnieri, one of several important rulings issued this week, the United States Supreme Court limited retaliation claims by public employees under the Petition Clause of the First Amendment to cases in which the employee’s petition relates to matter of “public concern.”
The First Amendment provides that “Congress shall make no law … abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” The last clause, known as the “Petition Clause,” has been interpreted to prohibit the government from taking adverse action against an individual merely because the individual sought access to the courts for the resolution of a legal dispute. 
In this case, plaintiff Charles Guarnieri was employed as Chief of Police of the borough of Duryea, a small town in Northern Pennsylvania. After his employment was terminated, Guarnieri filed a union grievance challenging his termination. Guarnieri’s grievance proceeded to arbitration, and the arbitrator ordered Guarnieri reinstated after a disciplinary suspension. Following his reinstatement, Guarnieri complained that the borough council retaliated against him for filing his grievance by issuing 11 directives instructing him on the performance of his duties. For example, the council instructed Guarnieri that he was not to work overtime without the council’s express permission, that his police car was to be used only for official business, and that smoking was not permitted anywhere in the municipal building, including the police department.
The Lawsuit
Guarnieri filed suit, alleging that his grievance was a “petition” protected by the First Amendment, and that the directives issued upon his reinstatement were retaliation for his protected activity. After the lawsuit was filed, the council denied a request by Guarnieri for $338 in overtime. The U.S. Department of Labor investigated and concluded that Guarnieri was entitled to payment. The council offered Guarnieri a check for the amount due, but he refused. Instead, he amended his complaint to allege that his lawsuit was a “petition” and that denial of his request for overtime was retaliation for filing the lawsuit.
Guarnieri’s case went to trial, and the jury awarded him $97,358 in compensatory and punitive damages. In addition, the trial court awarded Guarnieri $45,000 in attorneys’ fees. The borough appealed to the Third Circuit Court of Appeals, arguing that the lawsuit should have been dismissed because Guarnieri’s petitions related only to his personal interests, and not to any matter of public concern. While the Court of Appeals reversed the award of punitive damages, it affirmed the remainder of the judgment, holding that “a public employee who has petitioned the government through a formal mechanism such as the filing of a lawsuit or grievance is protected under the Petition Clause from retaliation for that activity, even if the petition concerns a matter of solely private concern.” The borough appealed to the Supreme Court.
The Ruling
In evaluating the plaintiff’s Petition Clause claim, the Supreme Court noted that when an employee sues a government employer under the Speech Clause of the First Amendment, the employee must show that he or she spoke on a matter of public concern.  Even if the employee speaks on a matter of public concern, the speech is not automatically protected.  Rather, courts must balance the employee’s right to free speech against the interest of the government, as an employer, in promoting the efficiency of the public services it performs through its employees.
Because the right of speech and the right to petition share substantial common ground, the Supreme Court held that the public concern test should also apply to Petition Clause claims.  The Court reasoned that petitions, like speech, can interfere with the efficient and effective operation of government.  A public employee might, for example, use the courts to pursue personal vendettas or harass members of the public.  Such actions could cause a breakdown in public confidence in the government and its employees.  The government must, therefore, have the authority to restrain employees who use petitions to frustrate progress.  The Supreme Court further noted that unless limits are imposed on the scope of the Petition Clause, a wide range of government operations would be subject to judicial supervision, as every government action in response to a grievance could represent a potential constitutional issue. 
Therefore, the Court ruled that a government employer’s allegedly retaliatory action against an employee because the employee brought a court action against the government employer does not give rise to liability under the Petition Clause unless (i) the employee’s petition relates to a matter of public concern and (ii) the employee’s First Amendment interest outweighs the interest of the government employer in promoting the efficiency of public services.  A petition that involves nothing more than a complaint about the employee’s own duties does not relate to a matter of public concern and is not actionable under the Petition Clause.
Because the Court of Appeals and District Court applied the incorrect legal standard, the Court vacated the judgment of the Court of Appeals, and remanded the case for a determination as to how the above framework would apply to Guarnieri’s claims.
Insights for Employers
The Duryea case demonstrates that not every “petition” by a public employee will support a claim for retaliation under the Petition Clause of the First Amendment. However, this ruling does not leave employers free to retaliate against employees who file a grievance or lawsuit, as such retaliation will still often be prohibited by state or federal law. Consequently, employers should still proceed with caution and consult legal counsel when taking adverse action against any employee who has filed a formal grievance, lawsuit, or other complaint.

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