One to Watch

/ 23.Mar, 2011
Yesterday, the Supreme Court heard oral argument on a case on appeal from the Third Circuit which will have a major impact on the rights of government employees. In the Borough of Duryea v. Guarnieri, the Supreme Court will decide  whether government employees may sue their employers for retaliation under the First Amendment’s Petition Clause when they petition the government on matters of purely private concern. The Third Circuit held that Guarnieri, a former police chief, could maintain a retaliation action under the Petition Clause after he arbitrated a private employment grievance. The Third Circuit’s holding is in direct conflict with ten other federal circuits and several state supreme court decisions. Guarnieri’s suit arose from his filing of a grievance which was arbitrated after he was terminated from his position as chief of police. The arbitrator reinstated Guarnieri to his former position. Upon his return to work, Guarnieri was provided with new directives from the Borough concerning his job performance, which he objected to. He also alleged that he was denied overtime pay. Guarnieri then filed a lawsuit, alleging violations of his First Amendment rights to freedom of petition and speech based on allegations that the Borough issued the new directives to him and failed to pay overtime pay in retaliation for his filing a grievance regarding his termination. After a trial, the jury awarded Guarnieri compensatory damages on his freedom of petition claims in the amount of $45,358.00 and punitive damages in the amount of $52,000.00. On appeal, the Third Circuit upheld the jury’s award in Guarnieri, and the Borough filed a writ of certiorari to the United States Supreme Court. A decision from the Supreme Court is expected by June. Given the Supreme Court’s prior holding in Connick v. Myers, 461 U.S. 138 (1983), that the First Amendment’s right to freedom of speech only applies to matters of public concern and the great weight of authority from other circuits which holds a claim under the Petition Clause must also involve a matter of public concern, it is likely that the Supreme Court will overturn the Third Circuit’s decision in Guarnieri and hold that in order to bring a claim under the Petition Clause, a government employee must petition the government as a private citizen on a matter of public concern. If the Supreme Court upholds the Third Circuit’s decision, government employees will be able to bring retaliation claims any time they  aver unfair treatment after the filing of an employment-related grievance, which will likely open the floodgates for claims. If the Supreme Court reverses the Third Circuit, this will be a substantial win for government employers.  For now, this is one case for government employers to watch. . .