Supreme Court Establishes Standard For Retaliation Claims Brought Against Public Employers Under The First Amendment’s Petition Clause

Supreme Court Establishes Standard For Retaliation Claims Brought Against Public Employers Under The First Amendment’s Petition Clause

On June 20, 2011, the United States Supreme Court held in Borough of Duryea v. Guarnieri that a government employer’s allegedly retaliatory action does not give rise to liability under the Petition Clause of the First Amendment unless the employee’s petition relates to a matter of public concern.

The case arose out of the termination of Charles Guarnieri, the chief of police for the Borough of Duryea in northeastern Pennsylvania. Guarnieri filed a union grievance challenging his termination, and the grievance proceeded to arbitration pursuant to the union’s collective bargaining agreement with the borough. The arbitrator ultimately ordered that Guarnieri be reinstated. Upon his return to work, the borough council issued 11 directives concerning the ways in which Guarnieri would be expected to perform his job going forward. Guarnieri filed a second union grievance based on the borough’s directives, and an arbitrator instructed the borough council to withdraw or modify certain of the directives on the grounds that they were vague, interfered with the borough mayor’s authority, or were contrary to the collective bargaining agreement.

Following the second arbitration, Guarnieri filed a lawsuit in federal court against the borough, the borough council, and certain of the borough council’s members under 42 U.S.C. § 1983, alleging the directives were issued in retaliation for the filing of his first grievance. Specifically, Guarnieri alleged that the Petition Clause (not the Speech Clause) of the First Amendment protects “the right of the people . . . to petition the Government for a redress of grievances,” that his first union grievance constituted a petition within this context, and that the directives issued upon his reinstatement were issued in retaliation for that protected activity. Guarnieri later amended his complaint to include a claim that he was denied overtime payments in retaliation for having filed his § 1983 lawsuit, which he also alleged constituted a petition under the First Amendment.

Following a jury trial, the jury awarded Guarnieri approximately $97,000 in compensatory and punitive damages, and the district court awarded him $45,000 in attorneys’ fees. The defendants appealed on the ground that Guarnieri’s grievances and lawsuit did not regard matters of public concern. The Third Circuit rejected the defendants’ position (a view previously adopted by several other circuit courts of appeal), ruling 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 Supreme Court granted certiorari to resolve the circuit split, and vacated and remanded the Third Circuit’s decision.

Justice Kennedy, writing for the Court, framed the Court’s analysis by noting that 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. The question before the Court, therefore, was whether the same test applies when the employee invokes the Petition Clause, or whether the history and purpose of the Petition Clause justify the imposition of broader liability for matters of solely private concern.

The Court declined to find that broader liability is justified under the Petition Clause, stating that “[t]he substantial government interests that justify a cautious and restrained approach to the protection of speech by public employees are just as relevant when public employees proceed under the Petition Clause.” Among the most significant of those interests is the government’s interest in managing its internal affairs by restraining its employees who use petitions to “frustrate progress toward the ends they have been hired to achieve” without “invasive judicial superintendence” over the propriety of the government’s operations. The Court also noted that a separate test for liability under the Petition Clause would increase the complexity, and thereby compound the cost, of the government’s compliance with the Constitution.

Accordingly, the Court found that the framework used to govern Speech Clause claims made by public employees will apply equally to public employees’ claims under the Petition Clause. Therefore, when a public employee petitions as an employee on a matter of purely private concern, the employee’s First Amendment claim will fail, just as it would in a speech case. Additionally, as with speech claims, when a public employee petitions as a citizen on a matter of public concern, the court must balance the employee’s First Amendment interest against the countervailing interest of the government in the effective and efficient management of its internal affairs to determine whether the claim will be sustained.

The Court’s decision in Borough of Duryea is a clear win for public employers inasmuch as it narrows the scope of potential liability under the Petition Clause and requires a uniform approach to Speech and Petition Clause claims which, as the Court noted, will relieve public employers of the burden and expense of defending such claims under separate standards.