The Wal-Mart decision was not the only employment decision issued by the Supreme Court yesterday. The unanimous Court also rejected a § 1983 retaliation claim brought by a disgruntled police chief who asserted that the local city council was retaliating against him for successfully grieving and arbitrating his prior employment termination. Borough of Duryea v. Guarnieri, No. 09-1476. The Court found that the First Amendment right to petition government only creates a private right of action for employees under § 1983 when the petition involves a matter of public concern. It does not protect employees who pursue purely private matters, like the terms of their own employment.
According to the decision, the Chief had been fired and then reinstated after grieving and successfully challenging the decision in arbitration. The Council responded by issuing a number of directives to the Chief to clarify the terms of his employment when he returned. Among other things, he could not work overtime without authorization; the indoor smoking ban applied equally to the police department; and the police car is only to be used for official business. The Chief asserted that the Council was retaliating and, again, was successful in convincing an arbitrator that the directives be modified or withdrawn. The Chief also filed a §1983 lawsuit. The district court instructed the jury that his pursuing a union arbitration was constitutionally protected and it awarded him almost $100K in compensatory and punitive damages for the directives and denial of $358 in overtime. I can't make this stuff up.
The Court found the Third Circuit was way out there in permitting this miscarriage of justice (albeit the Third Circuit found no basis for the punitive damages). When a government employee brings a §1983 claim under the First Amendment for retaliation concerning the Free Speech Clause, the employee is required to show that the employee was speaking as a citizen on a matter of public concern:
If an employee does not speak as a citizen, or does not address a matter of public concern, "a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior." Ibid. Even if an employee does speak as a citizen on a matter of public concern, the employee's speech is not automatically privileged. Courts balance the First Amendment interest of the employee against "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.
This framework "reconcile[s] the employee's right to engage in speech and the government employer's right to protect its own legitimate interests in performing its mission." . . . There are some rights and freedoms so fundamental to liberty that they cannot be bargained away in a contract for public employment. "Our responsibility is to ensure that citizens are not deprived of [these] fundamental rights by virtue of working for the government." . . . Nevertheless, a citizen who accepts public employment "must accept certain limitations on his or her freedom." . . . The government has a substantial interest in ensuring that all of its operations are efficient and effective. That interest may require broad authority to supervise the conduct of public employees. "When someone who is paid a salary so that she will contribute to an agency's effective operation begins to do or say things that detract from the agency's effective operation, the government employer must have some power to restrain her." . . . Restraints are justified by the consensual nature of the employment relationship and by the unique nature of the government's interest. (citations omitted)
The Court saw no reason that the Petition Clause should be treated differently with respect to public employees where the Chief's claim could just as easily have been brought under the Free Speech clause. While the Free Speech clause protects an individual's right to free speech, the Petition Clause protects a citizen's right to petition the government (including the courts) for redress. While an arbitration proceeding is a form of judicial proceeding, in this case the Chief's grievance related solely to himself and was not otherwise a matter of public concern. That being said, the Free Speech clause and the Petition Clause may not always be treated as equivalent.
The substantial government interests that justify a cautious and restrained approach to the protection of speech by public employees are just as relevant when public employees proceed under the Petition Clause. Petitions, no less than speech, can interfere with the efficient and effective operation of government. A petition may seek to achieve results that "contravene governmental policies or impair the proper performance of governmental functions." Garcetti, 547 U. S., at 419. Government must have authority, in appropriate circumstances, to restrain employees who use petitions to frustrate progress towards the ends they have been hired to achieve. A petition, like other forms of speech, can bring the "mission of the employer and the professionalism of its officers into serious disrepute." Roe, 543 U. S., at 81. A public employee might, for instance, use the courts to pursue personal vendettas or to harass members of the general public. That behavior could cause a serious breakdown in public confidence in the government and its employees. And if speech or petition were directed at or concerned other public employees, it could have a serious and detrimental effect on morale.
When a petition takes the form of a lawsuit against the government employer, it may be particularly disruptive. Unlike speech of other sorts, a lawsuit demands a response. Mounting a defense to even frivolous claims may consume the time and resources of the government employer. Outside the context of public employment, this Court has recognized that the Petition Clause does not protect "objectively baseless" litigation that seeks to "'interfere directly with the business relationships of a competitor.'" . . .
Unrestrained application of the Petition Clause in the context of government employment would subject a wide range of government operations to invasive judicial superintendence. Employees may file grievances on a variety of employment matters, including working conditions, pay, discipline, promotions, leave, vacations, and terminations. See Brief for National School Boards Association as Amicus Curiae 5. Every government action in response could present a potential federal constitutional issue. Judges and juries, asked to determine whether the government's actions were in fact retaliatory, would be required to give scrutiny to both the government's response to the grievance and the government's justification for its actions. This would occasion review of a host of collateral matters typically left to the discretion of public officials. Budget priorities, personnel decisions, and substantive policies might all be laid before the jury. This would raise serious federalism and separation-of-powers concerns. It would also consume the time and attention of public officials, burden the exercise of legitimate authority, and blur the lines of accountability between officials and the public.
This case illustrates these risks and costs. Guarnieri's attorney invited the jury to review myriad details of government decisionmaking. She questioned the council's decision to issue directives in writing, rather than orally, Tr. 66 (Apr. 14, 2008); the council's failure to consult the mayor before issuing the directives, id., at 105 (Apr. 15, 2008); the amount of money spent to employ "Philadelphia lawyers" to defend Guarnieri's legal challenges, id., at 191–193:7–10 (Apr. 14, 2008); 152–153 (Apr. 16, 2008); and the wisdom of the council's decision to spend money to install Global Positioning System devices on police cars, id., at 161–162 (same). Finally, the attorney invited the jury to evaluate the council's decisions in light of an emotional appeal on behalf of Guarnieri's "little dog Hercules, little white fluffy dog and half Shitsu." Id., at 49:13–14 (Apr. 14, 2008). It is precisely to avoid this intrusion into internal governmental affairs that this Court has held that, "while the First Amendment invests public employees with certain rights, it does not empower them to 'constitutionalize the employee grievance.'" Garcetti, supra, at 420 (quoting Connick, 461 U. S., at 154).
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. Cf. Garcetti, supra, at 425 (noting a "powerful network of legislative enactments"). Employees who sue under federal and state employment laws often benefit from generous and quite detailed antiretaliation provisions. See, e.g., Pa. Stat. Ann., Tit. 43, §1101.1201(a)(4) (Purdon 2009); §1101.1302.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.
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Articulation of a separate test for the Petition Clause would aggravate potential harm to the government's interests by compounding the costs of compliance with the Constitution. A different rule for each First Amendment claim would require employers to separate petitions from other speech in order to afford them different treatment; and that, in turn, would add to the complexity and expense of compliance with the Constitution. Identifying petitions might be easy when employees employ formal grievance procedures, but the right to petition is not limited to petitions lodged under formal procedures.
The Court then discussed at length why employees should be treated differently from citizens when petitioning government on matters of purely private concern. In particular, it examined the private petitions brought by American colonists and in the early days of the republic and why these private petitions are distinguishable from employee private petitions when it comes to constitutional protection under §1983.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
