In Borough of Duryea v. Guarnieri, --- U.S. ---, No. 09-1476 (June 20, 2011), the U.S. Supreme Court considered whether a public employer's alleged retaliation against an employee who succeeded in having his employer's adverse employment action overturned in a union grievance process could be redressed under the First Amendment's Petition Clause.  In the course of deciding the plaintiff employee had no cause of action because his grievance was a "petition" regarding a private matter, the Supreme Court announced a broad rule that the Petition Clause only applies if an employee's "petition" relates to a matter of public concern.

The lawsuit in Guarnieri followed a long period of conflict between a city council and its police chief.  The police chief was fired after various adverse employment actions were taken with him, but he was reinstated by an arbitrator when he grieved the dismissal.  The city council then denied him the overtime pay he was due and issued him 11 written warnings.  The police chief sued, claiming that the city council was retaliating against him for having successfully grieved his termination, in violation of the First Amendment's Petition Clause.

The police chief prevailed before a jury, and the appellate court affirmed the decision, holding that a public employee who petitions the government through a formal mechanism, such as filing 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 reversed, holding that when a public employee sues a government employer under the First Amendment's Petition Clause, the employee must demonstrate that he spoke "as a citizen on a matter of public concern."  The Court ordered that a lower court must determine whether the employee proved he pursued his grievance on a matter of public, rather than private, concern.

The decision settled the nuanced question of whether the First Amendment's Petition Clause provides to public employees broader protections than the First Amendment's Free Speech Clause.  More importantly for public employers, the decision closes off yet another potential source for retaliation claims by aggrieved employees.  Existing anti-retaliation statutes - not the First Amendment - may provide the firmest footing for federal claims over such disputes.