Friday, July 29, 2011

Supreme Court Rejects Police Chief's Retaliation Claims

The U. S. Supreme Court reversed the Third Circuit Court of Appeals in holding that retaliation claims brought under the petition clause of the First Amendment must relate to a matter of public concern to liability. Borough of Duryea, Pa. v. Guarnieri (June 20, 2011) 2011 WL 2437008.

Chief Guarnieri successfully grieved his termination through the applicable collective bargaining agreement.  After being awarded reinstatement, the governing body issued eleven directives controlling the manner in which he performed his duties.  The Chief filed the second grievance challenging the directives and obtained another favorable arbitration award instructing the agency to withdraw or modify certain directives on grounds, including that they interfered with the delegation of authority, they violated the collective bargaining agreement, and were vague.

Chief Guarnieri then proceeded to bring a Federal action against the governing body and certain of its members under section 1983 based upon his allegation that the directives constituted retaliation for the filing of his initial grievance.  Perhaps, in light of the recent Supreme Court ruling limiting the First Amendment speech protections of public employees (Garcetti v. Ceballos), Guarnieri brought his claims under the Petition Clause, rather than the speech clause, of the First Amendment.  The Petition Clause protects the right “to petition the government for a redress of grievances.”  He also added claims for retaliation based upon denial of overtime payments.  Guarnieri prevailed in the District Court, as the jury awarded approximately $142,000.00 in damages and fees.  The defendants unsuccessfully appealed to the Third Circuit, arguing that Guarnieri’s grievances did not involve matters of public concern and, therefore, should be afforded no First Amendment protection. In upholding the jury verdict, the Third Circuit stated, “A public employee who has petitioned the government for 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 defendant appealed and Supreme Court granted review.

The Supreme Court, in an opinion authored by Justice Anthony Kennedy, held that a public employee must show that his speech related to a matter of public concern in order for the protections of the petition clause to apply.  In so doing, the Court, essentially applied the standards set forth in Garcetti v. Ceballos to Petition Clause claims.  Garcetti had held that, in order to prevail on a First Amendment retaliation claim, a public employee must show that the speech involved matter of public concern, in that the speech was not part of the employee’s official duties. Guarnieri had unsuccessfully argued that the public concern requirement did not apply to the petition clause-based claims.  Justice Kennedy explained the rationale for his decision by asserting that public employees must accept certain limitations on their freedom, and that the public concern requirement is intended to protect the government’s interest.  The Court noted that applying a different standard to petition clause claims would allow public employees to circumvent the protections the Court had afforded to governmental interests in Garcetti.  The Court’s opinion did elaborate on the definition of “public concern” in suggesting that it related matters such as communication to the public or advancing a political or social point of view beyond the employment context.  The Court held that “a complaint about a change in the employee’s own duties does not constitute a petition involving the a matter of public concern.”

The Supreme Court’s decision further limits the scope of constitutional protection afforded to public employees under the first amendment.  However, this case involved claims under the United States Constitution, not state or federal labor law.  In California, it remains unlawful under the Meyers-Milias-Brown Act for a local government agency to interfere with or retaliate against represented public employees for pursuing a grievance process or other concerted activity such as arbitration. Further, under Government Code section 3304(a) of the Public Safety Officers Procedural Bill of Rights Act, “no public safety officer shall be subject to punitive action, or denied the motion, or be threatened by any such treatment because of ... the exercise of any rights under any existing administrative grievance procedure.”