*By George S. Crisci
In a decision released yesterday, the United States Supreme Court found
that the First Amendment’s Petition Clause does not protect a public
employee’s filing of a grievance or other legal proceedings against an
employer unless the grievance involves a matter of public concern. See
Borough of Duryea, Pennsylvania, et al. v Guarnieri, No. 09-1476, 564
U.S. ___ (2011).
The chief of police, Charles Guarnieri (“Guarnieri”), filed a
union grievance challenging his termination. An arbitrator awarded
reinstatement. After Guarnieri returned to work, the Borough of Duryea
(“Duryea”) implemented several directives instructing him on how to
carry out his position. One directive prohibited Guarnieri from working
overtime without the council’s “express permission.” Guarnieri
believed these directives were too restrictive and he filed a union
grievance. The arbitrator ordered Duryea to modify or withdraw some of
the directives.
Guarnieri then filed suit against Duryea for violation of his
civil rights under 42 U.S.C. § 1983. Guarnieri claimed that he was
subject to retaliation when Duryea instituted the directives upon his
reinstatement. Guarnieri also added a claim for denial of overtime to
his suit.
The district court instructed the jury that the lawsuit and
union grievances were “protected activity under the constitution,” and
that the jury could find Duryea liable if there was an adequate
connection between the protected activity and the alleged retaliation.
The jury returned a verdict in favor of Guarnieri, awarding him over
$90,000 in both compensatory and punitive damages, along with
attorney’s fees.
Duryea appealed the verdict arguing that Guarnieri’s
grievances and lawsuit did not address matters of public concern. The
Third Circuit Court of Appeals upheld the verdict even though
Guarnieri’s petition was solely a matter of private concern.
The United States Supreme Court held that the Third Circuit
applied a more generous rule and remanded the case. When a public
employee sues a government employer under the First Amendment’s Speech
Clause, the employee must show that he or she spoke as a citizen on a
matter of public concern. This test, known as the Connick-Pickering
test, also involves a balancing of the First Amendment interests of
the employee against the interest of the State in promoting efficiency.
While this case involved the Petition Clause, and not the
Speech Clause, the Court reasoned that the two are closely related and
there was no cause for divergence in this case. Therefore, the lower
courts should have applied the Connick-Pickering analysis to
Guarnieri’s Petition Clause claims. As a result, when a public
employee petitions on a matter solely of private concern, the employee
cannot pursue his First Amendment rights.
While this decision garnered far less attention than the Dukes v. Wal-Mart ruling also issued yesterday, Duryea
promises to have a significant impact on public employees. 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. The holding
requires courts to conduct a Connick-Pickering analysis for future Petition Clause claims brought by public employees.
*George S. Crisci, an OSBA Certified
Specialist in Labor and Employment Law, represents public employers in
negotiations, grievances, arbitrations and practices in all areas of
public and private employment and labor relations. For more information
about this decision or labor law, please contact George (gsc@zrlaw.com) at 216.696.4441.
