Supreme Court: No 1st Amendment Protection For Government Employee’s ‘Petition’

Supreme Court: No 1st Amendment Protection For Government Employee’s ‘Petition’

[UPDATED: 6/21 9:03 p.m.: Case number corrected]

WASHINGTON, D.C. - (Mealey's) A government employer's actions alleged to be retaliatory are not limited by the First Amendment's petition clause unless the employee's petition is related to a matter of public concern, the U.S. Supreme Court ruled on June 20th, vacating a ruling by the Third Circuit U.S. Court of Appeals (Borough of Duryea, Pennsylvania, et al. v. Charles J. Guarnieri, ( subscribers may access Supreme Court briefs for this case)

"If the Petition Clause were to apply even where matters of public concern are not involved, that would be unnecessary, or even disruptive, when there is already protection for the rights of public employees to file grievances and to litigate.  The government can and often does adopt statutory and regulatory mechanisms to protect the rights of employees against improper retaliation or discipline, while preserving important government interests.  . . .  Employees who sue under federal and state employment laws often benefit from generous and quite detailed antiretaliation provisions.  . . .  These statutory protections are subject to legislative revision and can be designed for the unique needs of State, local, or Federal Governments, as well as the special circumstances of particular governmental offices and agencies.  The Petition Clause is not an instrument for public employees to circumvent these legislative enactments when pursuing claims based on ordinary workplace grievances," Justice Anthony M. Kennedy wrote for the majority. 

Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Samuel Anthony Alito Jr., Sonia Sotomayor and Elena Kagan joined in the opinion.

Justice Clarence Thomas filed an opinion concurring in the judgment but noting that he has serious doubts about whether lawsuits qualify as "petitions" within the original meaning of the petition clause of the First Amendment. 

Justice Antonin Scalia filed an opinion concurring in the judgment in part and dissenting in part.  He, too, opined that it was doubtful that a lawsuit was a constitutionally protected "petition."  However, he also disagreed with the majority's decision to treat the petition clause and the speech clause identically in cases of public employment. 

Charles J. Guarnieri sued Duryea Borough, the Borough Council, Council President Ann Dommes, Borough Secretary Lois Morreale and six Borough Council members in connection with his dismissal from his position as police chief in February 2003.  Guarnieri filed a grievance, which led to arbitration, and he was reinstated.  When he returned to work in January 2005, however, the Borough Council issued 11 "directives" stating what he must do and could not do on the job.   Guarnieri filed another grievance, which led to another arbitration, and an arbitrator directed the borough to modify or abandon some of the directives.  Further disputes between the parties arose, and Guarnieri sued, alleging that the directives and the withholding of his overtime constituted retaliation for his having filed - and won - the 2003 grievance.

A jury in the U.S. District Court for the Middle District of Pennsylvania found for Guarnieri on two of his three retaliation claims, for withholding the overtime and issuing the directives, and awarded him $45,358 in compensatory damages.  The jury also awarded a total of $52,000 in punitive damages - $3,000 against each individual defendant for issuing the directives and $3,500 against each individual for the overtime.  The trial court judge denied the defendants' motion for judgment as a matter of law and for a new trial, and they appealed on several issues, including that the evidence did not support a finding of punitive damages. 

The Third Circuit vacated the punitive damages award but otherwise upheld the jury's verdict on the merits and remanded the case to the District Court for a recalculation of attorney fees.  The defendants petitioned the U.S. high court.

[Editor's Note:  Full coverage will be in the July 2011 issue.  In the meantime, the order is available at or by calling the Customer Support Department at 1-800-833-9844.  Document #73-110708-001Z.  For all of your legal news needs, please visit]

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