Law360, New York (June 23, 2011) -- The United States Supreme Court just added another important chapter to its continuing interpretation of the First Amendment rights of public employees.In Borough of Duryea v. Guarnieri (June 20, 2011, No. 09-1476), decided Monday, June 20, 2011, the court held that public employees cannot assert retaliation claims based on the First Amendment right to petition unless their "petitioning" in question involves a matter of public concern. What qualifies as "petitioning" can be a grievance, or even a lawsuit against the employer, but a constitutional retaliation claim will arise only if the claim involves something sufficiently important to the general public.Petitioning under the First Amendment is distinct from free speech. Free speech law in the workplace has had substantial attention from the Supreme Court, and with good reason given the fact that creative employees can argue that almost anything they say at work — from criticizing management to personal banter — should be protected as "free speech." In a handful of decisions over the last several decades, however, the U.S. Supreme Court has clarified that the First Amendment free speech rights of employees are far from absolute.These decisions, which include Pickering v. Board of Education, Connick v. Myers, and Garcetti v. Ceballos, hold that a public employee can only assert a First Amendment retaliation claim (1) if he or she spoke on a matter of public concern, (2) if he or she spoke effectively as a private citizen rather than as a public employee, i.e., if the speech was not a result of what were already the employee's "official duties," and (3) if on balance the government had no adequate justification for treating the employee as it did.Given these requirements, the plaintiff in Guarnieri, a chief of police, likely could not assert any free speech claim. His lawyers, however, believed they could circumvent the requirements by utilizing a more obscure provision of the First Amendment — the right to petition.The First Amendment provides that "Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." This last right, they argued, encompassed the right of a public employee to assert lawsuits or grievances on any topic against the employer. They argued it was not subject to any "public concern" requirement.The facts of Guarnieri show how versatile an instrument the right to petition could be as a substitute for the free speech right, and how easy it was under plaintiff's counsel's view to state a claim against an employer. The plaintiff Charles Guarnieri was terminated by his borough from his chief of police position, but then filed a grievance, prevailed in arbitration, and was reinstated.After his reinstatement, the borough council issued 11 directives to him in the performance of his duties, which included that he not work overtime without express permission, that he use his police car only for official business, and that he respect the smoke-free policy of the municipal building. Guarnieri filed a second grievance, objecting to these directives. He also filed a federal lawsuit arguing that his first grievance constituted a "petition" to the government protected under the First Amendment, and that the directives constituted the borough's retaliation against him for exercising his right to file the grievance.The borough later denied Guarnieri $338 in claimed overtime, and Guarnieri added a charge to his federal lawsuit that his second grievance and also the federal lawsuit itself constituted protected "petitions" under the First Amendment. He argued that the denial of the $338 in overtime constituted another act of improper retaliation for exercise of his constitutional rights. Guarnieri obtained a jury verdict awarding him compensatory and punitive damages.The Supreme Court, in an opinion by Justice Anthony Kennedy, held that the same "public concern" requirement that applied to free speech claims under the First Amendment applied to right to petition claims. It vacated the underlying judgment and remanded for further proceedings.Justice Kennedy's opinion describes that, in general, "a citizen who accepts public employment" has to "accept certain limitations on his or her freedom." "The public concern test was developed to protect ... substantial government interests. Adoption of a different rule for Petition Clause claims would provide a ready means for public employees to circumvent the test's protections."Justice Kennedy's opinion provides some explanation of what "public concern" entails. It appears unlikely the plaintiff can prove, on remand, that the test is satisfied. "A petition filed with an employer using an internal grievance procedure in many cases will not seek to communicate to the public or to advance a political or social point of view beyond the employment context." The opinion explains that a petition which involves "nothing more than a complaint about a change in the employee's own duties" does not relate to a matter of public concern.The Guarnieri opinion provides several pages acknowledging the importance of the common law right to petition throughout history, beginning with the Magna Carta and including a reference to official petitions in the Declaration of Independence. The emphasis of the historical discussion is, however, on how important the petition right is to participation by citizens in the process of government. The opinion implies that it should not serve as an instrument by which public employees simply obtain special leverage over their employers.Although Guarnieri will save public employers from having to defend against many types of potential right to petition claims, the fact remains that public employers still clearly may not penalize employees simply because they file grievances or lawsuits. Most federal and state laws that authorize employee private rights of action contain anti-retaliation provisions that can impose severe penalties on employers. Among other things, Guarnieri acted to limit the extent to which such cases will be considered substantial constitutional lawsuits as well.David Urban is an of counsel in the Los Angeles office of Liebert Cassidy Whitmore.The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or Portfolio Media, publisher of Law360. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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