1st Amendment Petition Clause Employment Case Hits SCOTUS

On Tuesday March 22, 2011, the Supreme Court will hear oral arguments in an unusual public employee First Amendment case, Borough of Duryea v. Guarnieri. Rather than the typical free speech case, this case deals with public employees' right to petition. The First Amendment protects "the right of the people . . . to petition the Government for a redress of grievances."

Here, the public employee was a borough police chief who the Borough Council voted to dismiss in 2003. The Chief filed a grievance pursuant to a collective bargaining agreement which provided for binding arbitration. Following success at the arbitration, the Chief was reinstated. Then, the Council enacted a number of directives that prohibited the Chief from working overtime and directed him to "go home" at 3:00pm every day. The Chief claims these directives were in retaliation for filing the grievance.

The Chief filed suit in the Middle District of Pennsylvania and obtained a jury verdict in his favor. The Third Circuit upheld the jury verdict (but reversing a punitive damage award), and now the case heads to the Supreme Court. There's another issue before SCOTUS regarding retaliation for the Chief filing the lawsuit (as opposed to the grievance).

Per the employer's brief, the Question Presented is:

Can public employees sue their employers under the Petition Clause for adverse employment actions allegedly resulting from the employees' petitioning on matters of purely private concern?

It is well-established that public employees have limited First Amendment free speech rights to speak on matters of public concern, but this case may afford employees some rights in the realm of private concern. Although, it would likely be extremely limited to Petition Clause situations like that found here.

Stay tuned for future developments!

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.