Local Government Liability for Adverse Employment Actions Could Be Affected by U.S. Supreme Court Case

The U.S. Supreme Court granted a petition for certiorari to hear a case that could have far-reaching consequences for state and local governments.  The question presented is whether the Third Circuit Court of Appeals erred in holding that state and local government employees may sue their employers for retaliation under the First Amendment’s Petition Clause when they petitioned the government on matters of purely private concern, contrary to decisions by all ten other federal circuits and four state supreme courts that have ruled on the issue. The facts of the case involve the Borough of Duryea, Pennsylvania’s dismissal of Police Chief Guarnieri.  After filing a union grievance he was reinstated to his position but upon his return to work, the Borough Council issued eleven directives to Guarnieri regarding things he could and could not do on the job.  Again, Guarnieri filed a union grievance whereby an arbitrator directed Duryea to modify or abandon some of the directives.  Eventually, Guarnieri filed suit against his employer alleging unconstitutional retaliation under the First Amendment for filing grievances against the City.   His grievances included the issuance of the directives, delay in issuing health insurance benefits and withholding of overtime pay.

The Third Circuit found 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 of the First Amendment from retaliation for that activity even if the petition concerns a matter of solely private concern.   Every other federal circuit court has held the opposite – that the matters must be of public concern to be protected.  For example, the Ninth Circuit has held that where an employee grievance related only to refuting false charges of an employee’s ineptitude, those were matters only of a personal interest and as such the employee could not invoke First Amendment protection.  See Gearhart v. Thorn 768 F2d 1072 (9th Cir. 1985).

The ruling will impact local governments if in fact employees are allowed to invoke First Amendment protections for matters of private concern.  While it will negate the need to distinguish between matters of public and private concern where grievances are concerned, it could also result in increased liability for public entities when subjecting employees to adverse employment actions.  Local government employers will need to be much more cautious when disciplining employees who have filed grievances.

Briefing is scheduled to be completed in early 2011, after which time an oral argument date will be set.  Stay tuned for updates on this important case.