Whether public employees may sue their government employers for retaliation under the First Amendment's Petition Clause when their petitions concern only matters of private interest.
In 2003, the Borough of Duryea, Pennsylvania fired its police chief, Charles J. Guarnieri, Jr. Guarnieri filed a grievance leading to arbitration and his reinstatement. When Guarnieri returned to his position, Duryea issued him a number of directives limiting the tasks he could and could not do on the job. Guarnieri filed a second grievance, leading to modification of the directives. Subsequently, Guarnieri sued Duryea in District Court alleging that Duryea issued the directives in retaliation for his filing of the 2003 grievance, violating his First Amendment right to petition. After a jury found for Guarnieri in District Court, Duryea appealed to the Third Circuit. The Third Circuit held that the First Amendment protects public employees in filing grievances concerning any matter, even those of a personal nature. The Supreme Court granted certiorari to determine whether public employees may sue their employers for retaliation, when the alleged retaliation is for the filing of grievances based on private matters rather than issues of public concern.
Questions as Framed for the Court by the Parties
Whether the Third Circuit erred in holding that state and local government employees may sue their employers for retaliation under the First Amendment's Petition Clause when they petitioned the government on matters of purely private concern, contrary to decisions by all ten other federal circuits and four state supreme courts that have ruled on the issue.
In February 2003, the Borough of Duryea, Pennsylvania ("Duryea") fired Police Chief Charles J. Guarnieri, Jr. Guarnieri filed a union grievance resulting in arbitration and his reinstatement as police chief. In January 2005, Duryea issued eleven directives to Guarnieri, ordering him to perform certain job duties. Guarnieri filed another grievance resulting in modification of the directives. Following additional disputes with Duryea, Guarnieri sued Duryea in the United States District Court for the Middle District of Pennsylvania alleging that Duryea issued the directives as retaliation for his filing of grievances, thereby violating his right to petition for redress of grievances under the Petition Clause of the First Amendment. Subsequently in 2006, Duryea denied Guarnieri's request for $338.00 in overtime pay. Thereafter, the Department of Labor determined that Duryea violated the law in withholding the overtime pay. Guarnieri then amended his complaint to allege that the withholding of his overtime pay also constituted retaliation.
Following a trial, a jury awarded Guarnieri $45,358 in compensatory damages, $52,000 in punitive damages, and attorneys' fees. Duryea moved for judgment as a matter of law, a new trial, and a reduction in the amount of Guarnieri's attorneys' fees. The District Court denied Duryea's motion for judgment as a matter of law and for a new trial, but reduced the amount of Guarneri's attorneys' fees. Duryea appealed to the United States Court of Appeals for the Third Circuit, arguing that the First Amendment only protects public employees from retaliation when an employee files a grievance addressing a matter of public concern. Additionally, Duryea asserted that the trial evidence did not support an award of punitive damages, and that Duryea was entitled to qualified immunity.
The Third Circuit held that the First Amendment protects public employees in filing grievances concerning any matter, even those of a personal nature. Additionally, the Third Circuit determined that Duryea was not entitled to qualified immunity, but set aside Guarnieri's award of punitive damages because there was no evidence of malicious conduct. The Supreme Court granted Duryea's petition for certiorari to determine whether public employees can sue their employers for retaliation under the First Amendment’s Petition Clause when they file grievances addressing purely private matters.
Petitioner the Borough of Duryea, Pennsylvania ("Duryea") states that public employees may not sue their employees for retaliation under the First Amendment’s Petition Clause if their petitions concern purely private matters. Duryea asserts that the Free Speech Clause’s public concern requirement is used to review adverse employment actions brought by public employees under the Petition Clause. Accordingly, Duryea contends that both constitutional clauses – freedom of speech and right to petition – are interdependent and subject to the same public concern requirement and analysis. Respondent Charles J. Guarnieri, Jr. argues that the Petition Clause allows petitioners to sue for retaliation on matters that are of purely private concern. Guarnieri adds that the Petition Clause is distinct from the Free Speech Clause and that it is not subject to the public concern requirement that has been explicitly held to apply to public employee speech claims.
The Public Concern Requirement of the Free Speech Clause
Duryea argues that the Petition Clause, which states that “Congress shall make no law . . . abridging . . . the right of the people . . . to petition the Government for a redress of grievances,” does not enjoy any special hierarchical status within the First Amendment and that it is equivalent to the Amendment’s Free Speech Clause. Accordingly,Duryea contends that when a public employee’s expression takes the form of both speech and petition, the Free Speech Clause’s public concern requirement is used to review adverse employment action claims under the Petition Clause.
Guarnieri, however, asserts that, although the Petition and Speech clauses may overlap, they should not be interpreted as equals. He states that provisions of constitutional and statutory construction generally avoid redundant interpretations. Accordingly, Guarnieri argues that Duryea’s narrow view of the Petition Clause violates these principles of construction because its interpretation only affords the clause constitutional protections that have been already guaranteed by the Free Speech Clause. Guarnieri, moreover, contends that Duryea ignores the distinctive role of the Petition Clause, and the way it protects the right of an aggrieved individual to seek remedies through justice, not public opinion. Thus, Guarnieri argues that public employees asserting a petition claim need not fulfill any public concern requirement because the Supreme Court has never imposed the speech claim requirement or any similar public concern limitation in the Petition Clause context.
The Petition Clause and Review of Matters Regarding Private Concern
Duryea maintains that, although public employees do not surrender all of their First Amendment rights by virtue of their employment, courts must distinguish between the government’s role as a sovereign and the government’s role as an employer, where it should be openly allowed to act in an effective, decisive manner, similar to private employers. Accordingly, Duryea asserts that, in the context of speech claims, courts rightfully consider whether a public employee that was allegedly subjected to retaliation for particular speech was speaking as a citizen regarding public concerns. Duryea adds that if the public employee was speaking solely on private matters and was not speaking as a citizen, then any subsequent adverse employment action is not subject to First Amendment review.
Duryea also argues that public employee petitions against the government that allege retaliation and are of purely private interest are not subject to First Amendment review because these petitions do not meet the public concern requirement held to apply under the Free Speech Clause. Duryea also maintains that if public employees were able to bring Petition Clause claims without asserting a matter of public concern, then employees would be likely to turn routine intra-office complaints into formal grievances or lawsuits that would be subject to judicial review under the Petition Clause but not the Free Speech Clause. Accordingly, Duryea maintains this would incorrectly turn an adverse employment decision regarding private concerns into a reviewable, constitutional matter.
Guarnieri, however, argues that the Petition Clause also protects petitions that do not concern public matters. Specifically, Guarnieri states that the Petition Clause does not limit the availability of constitutional protection to a petition’s particular subject matter. Guarnieri maintains that the Petition Clause requires only that a petition that sought redress for a grievance be brought against the government. Accordingly, Guarnieri states that the primary purpose of the clause is to “protect the right of a petitioner to seek redress.”
Guarnieri, moreover, argues that when the Petition Clause was adopted, Americans believed that the right to petition allowed claims seeking redress for private matters. Guarnieri asserts that the history of redressing petitions that concern private matters, which precedes the American Revolution by centuries, signifies that the framers of the Petition Clause would have anticipated that such petitions would enjoy First Amendment protection. Guarnieri also adds that case law does not rigidly require that the Petition Clause would only protect public employees who bring matters of public concern. Moreover, Guarnieri claims that if petitioners were required to demonstrate that their petition deals with a matter of public concern, then many petitioners who have meritorious grievances would unreasonably be excluded from seeking redress under the Petition Clause.
The Possibility of Increased Litigation
Duryea, however, argues that if the public concern requirement were not recognized in petition claims brought by public employees, then the volume and expenses of public employment litigation would increase and burden the government’s ability to carry out its functions. Duryea argues that, because petitioners could easily circumvent the public concern requirement of the Free Speech Clause by formalizing employment disputes as petition claims, petitions regarding adverse employment actions that are of purely private concern would incorrectly become federal cases entitled to First Amendment protection. Duryea, moreover, states that federal courts are not the appropriate forum to review the wide range and number of personnel decisions that are made on a daily basis by public employers.
Guarnieri, however, maintains that petitions do not pose a real threat of increased litigation since it is far less common for employees to be involved in lawsuits or grievances under the Petition Clause as compared to those asserted under Free Speech Clause. Accordingly, Guarnieri states that the public concern requirement rightfully applies to public employment speech claims, not to petition claims, since if this requirement were waived in speech claims, then almost all government personnel decisions would give rise to constitutional claims.
The crux of this case turns on the Supreme Court's interpretation of the Petition Clause of the First Amendment. The Court will determine whether public employees have the right to petition concerning private matters, or only on issues of public concern. The Borough of Duryea (“Duryea”) argues that, under the First Amendment, public employees may only speak on matters of public concern, and that statements made in a grievance or petition should not receive greater protection. Additionally, Duryea contends that the government should have broad discretion as an employer; it fears increased litigation costs if the Third Circuit opinion is upheld. In contrast, Guarnieri argues that, historically, the Petition Clause has protected individuals petitioning for private problems beyond the scope of public concern. Guarnieri maintains that only a small number of individuals file grievances, and that allowing these individuals to sue would not substantially impact governmental efficiency.
Government Efficiency and Adjudication of Grievances
The United States argues that protecting public employees who petition on private matters will undermine the strong interest in promoting government efficiency. The United States contends that protecting petitions on private matters could harm the efficiency of the workplace and disrupt the government's ability to provide public services. Limiting protection to petitions regarding matters of public concern would not hinder democratic political and social change, the United States points out, noting that public employees already have protections beyond those of individuals in the private sector. Moreover, the National School Boards Association (“NSBA”) warns that limiting petitions to matters of public concern is critical to the functioning of the public school system, and fears that a change will upset the balance of protections currently afforded to employees. The NSBA further contends that adopting the Third Circuit's approach could turn the thousands of grievances filed under state systems into federal litigation, dramatically increasing the caseload of federal courts.
On the other hand, the American Federation of Labor and Congress of Industrial Organizations (“AFL-CIO”) argues that protecting petitions on private matters will have no substantial impact on government efficiency. The AFL-CIO contends that litigation brought by employees will not increase costs beyond those associated with other suits brought against the government. Finally, the AFL-CIO maintains that the government's ability to discipline employees would not be limited, and that the denial of protection for grievances based on private matters simply represents an attempt to prevent employees from exercising their employment rights and benefits.
Forums for Redress of Public Employees' Grievances
Twenty-one states (“States”) argue that adopting the Third Circuit's extension of protection to private matters would undermine collective bargaining agreements and state and local laws that address workplace grievances. The States contend that every state has whistleblower laws providing protection from retaliation for reporting employer misconduct. The States maintain that providing greater federal remedies would allow employees to circumvent existing state grievance systems.
In contrast, the American Civil Liberties Union ("ACLU") argues that public employees should have access to the federal courts to bring retaliation claims and should not be limited to certain forums by public employers. The ACLU maintains that individuals, regardless of their status as public employees, should have access to the courts to address even individual, private disputes. Moreover, the Justice and Freedom Fund argues that limiting public employees’ right to petition could also hinder their ability to associate. The Justice and Freedom Fund contends that it is often difficult to distinguish between private problems and public concerns, and that this distinction should not bar individuals from access to the courts. Finally, the National Fraternal Order of Police warns that reversing the Third Circuit's holding could eliminate one of the few protections police officers have from retaliation, noting that twenty-four states prohibit officers from entering collective bargaining agreements.
This case will determine whether public employees may bring retaliation claims against their employers under the First Amendment’s Petition Clause when their petitions concern matters of purely private interest. Duryea argues that public employees may not bring such retaliation petitions against their government employers because the Petition and Free Speech Clauses are analytically and constitutionally interdependent and the Free Speech Clause’s public concern requirement should also be applied to Petition Clause claims. Conversely, Guarnieri contends that public employees may sue their employers under the Petition Clause even if their claim does not concern matters of public interest. Guarnieri argues that the Free Speech Clause’s public concern requirement has never been, and should not be, imparted to the Petition Clause, as the two clauses employ distinct constitutional frameworks. The decision will likely affect public employees' ability to bring retaliation claims involving private matters in federal court.
· Annotated Constitution, Legal Information Institute: First Amendment: Government as Employer.
· Society for Human Resource Management, Joanne Deschenaux: High Court to Decide Scope of Public Employees’ Retaliation Protection (Oct. 14, 2010).
· Business Management Daily, Hera S. Arsen: Supremes at Work: 8 Key Employment Law Cases on Docket (Nov. 26, 2010).
· First Amendment Center, Tony Mauro: Could Petition Shield Outspoken Public Employees? (Oct. 13, 2010).