On June 20, the Supreme Court ruled (8-1) that a government employer’s allegedly retaliatory actions against an employee do not violate the First Amendment’s Petition Clause unless the employee’s petition relates to a matter of public, rather than private, concern. Borough of Duryea v. Guarnieri, No. 09-1476.
The case arose when Charles Guarnieri was terminated from his position as chief of police of the borough of Duryea in Pennsylvania. He filed a union grievance challenging his termination, and was ultimately reinstated by an arbitrator. After his reinstatement, the borough council took certain adverse employment actions against Guarnieri. Guarnieri brought suit under 42 U.S.C. § 1983, arguing that his union grievance was a petition protected by the First Amendment, and that the borough violated that clause by retaliating against him for bringing the grievance. Later, when the borough denied Guarnieri overtime pay, Guarnieri amended his lawsuit to allege that the lawsuit was also a petition and the denial of overtime constituted retaliation for filing the lawsuit.
Other federal appellate courts have previously ruled that allegedly retaliatory actions by government employers against government employees do not give rise to liability under the Petition Clause of the First Amendment unless the employee’s petition is related to a matter of public concern. The appellate court considering Guarnieri’s claim disagreed, affirming a jury verdict in favor of Guarnieri and 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.”
In considering this circuit court split, Justice Kennedy’s majority opinion first noted that a public employee who sues his governmental employer under the Speech Clause of the First Amendment must show that he spoke as a citizen on a matter of public concern. If the employee makes this showing, the court then balances the employee’s First Amendment rights against the state’s interest in efficiency and effectiveness in its operations. The Court found that that there was “substantial common ground” between the right of speech and the right to petition, although it cautioned that “[c]ourts should not presume there is always an essential equivalence in the two Clauses or that Speech Clause precedents necessarily and in every case resolve Petition Clause claims.”
However, the Court concluded that claims of retaliation by public employees, whether brought under the Speech Clause or the Petition Clause, are sufficiently closely connected that the same rule should apply. Indeed, petitions can be more disruptive to government operations than speech since, for example, the government is obligated to use its resources to respond to a lawsuit while it is not always required to respond to speech. Accordingly, the government has a significant interest in disciplining public employees who abuse the judicial process. Further, if every government action in response to an employee grievance presented a potential federal constitutional issue, juries would be asked to scrutinize government actions in areas typically left to the discretion of public officials, raising federalism and separation-of-powers concerns.
Therefore, the Court concluded that in Petition Clause cases, just as in Speech Clause cases, if a public employee petitions as an employee on a matter of purely private concern, the employee’s First Amendment interest must give way. On the other hand, if a public employee petitions as a citizen on a matter of public concern, the employee’s First Amendment interest must be balanced against the countervailing interest of the government in the effective and efficient management of its internal affairs. The determination of whether a petition relates to a matter of public concern depends on the content, form, and context of the petition. The Court noted that an internal employee grievance, in many cases, will not seek to communicate to the public or advance a political or social point of view beyond the employment context. Concluding that the Petition Clause does not create “a right to transform everyday employment issues into matters for constitutional litigation in the federal courts,” the Supreme Court reversed the Third Circuit and remanded for further proceedings.
Justice Scalia concurred in part and dissented in part, writing separately to note his view that it is doubtful that lawsuits qualify as “petitions” under the Petition Clause and that the “public concern” test should not apply to retaliation claims brought under the Petition Clause.
While this holding will foreclose many Petition Clause claims brought by public employees who allege retaliation in employment, governmental employers must still take care to comply with other applicable federal, state, and local laws prohibiting retaliation against public employees who engage in protected activity.