NSBA has filed an amicus brief in Borough of Duryea, Pennsylvania v. Guarnieri, 364 Fed.Appx. 749 (3rd Cir. 2010), cert. granted, 78 USLW 3731, 131 S.Ct. 456 (October 12, 2010), a case that could decide whether an official employee grievance should be afforded special treatment under the First Amendment because it is a “petition” filed with the government for a redress of grievances. In its brief, NSBA urges the Supreme Court to overturn the decision of the United States Court of Appeals for the Third Circuit (DE, NJ, PA, VI) holding that a public employee may sue his employer under the Petitions Clause of the First Amendment for adverse employment actions allegedly resulting from the filing of a “petition” on a matter of purely private concern. The Third Circuit is the only Court of Appeals to so hold.
The case was brought by a police chief who was fired by the Duryea (Pa.) Borough Council. The chief filed an official grievance regarding his termination, and was reinstated with backpay. After his reinstatement, the Council imposed a series of directives instructing him how to perform specific aspects of his job. The police chief filed a lawsuit claiming that these directives and other acts of the Council were in retaliation for his successful appeal of his dismissal through the borough’s grievance process. The district court denied the Council’s motion for judgment as a matter of law, finding that under Third Circuit precedent, the First Amendment’s Petition Clause protects a public employee from retaliation for filing non-sham lawsuits, grievances, and other petitions directed at the government or its officials, regardless of whether the petition addresses a matter of public concern. After trial, the jury concluded that the Council’s directives and withholding of overtime were in retaliation for Guarnieri’s exercise of his right to petition, therefore violating the Petition Clause.
On appeal, the Third Circuit upheld the verdict under its own “clearly-established” precedent and its determination that the evidence was sufficient to support the jury’s verdict with respect to retaliation. (It vacated the punitive damages award and remanded to the district court for a recalculation of attorney’s fees.) Under its precedent, explained the court, a public employee who has officially ”petitioned” the government through a lawsuit or grievance is protected under the Petition Clause for retaliation for that activity, even if the petition relates to a matter of solely private concern. The court recognized that other federal courts of appeal have decided differently [holding that matters of private - not public - concern amount to personal employment disputes, and are not protected under the First Amendment].
The U.S. Supreme Court granted certiorari in the case to resolve the split among the courts of appeal. NSBA filed an amicus brief in support of the public employer. The case is particularly relevant to school districts, collectively the largest employers in the country, where the internal grievance process is a common way of resolving employment disputes. A ruling for the employee could undermine existing protections created through state law, collective bargaining agreements, and school district policies by making many claims potentially “constitutional.”
School employees could file more lawsuits and grievances against school district officials if the Supreme Court does not overturn the Third Circuit’s ruling, notes the brief. “School employees have ample protections against retaliation,” said NSBA’s Executive Director Anne L. Bryant. “More lawsuits against schools districts are unnecessary and potentially disruptive, draining resources, and funds that should be spent in the classroom.”
NSBA also argues that the high court has properly drawn the line in prior rulings in which it concluded that public employees are only protected under the First Amendment for speech that is a matter of public concern, noting that “this distinction is critical to the ability of public schools to make employment decisions that further their educational mission to provide students with a safe learning environment conducive to acquiring the knowledge and skills they need to become productive, responsible citizens.”
“We hope the Court will adhere to its own precedent and again refuse to constitutionalize the employment grievance,” said NSBA’s General Counsel Francisco M. Negrón, Jr.
[NSBA's amicus brief is available at the first link below. Read the Third Circuit's decision at the second link. Follow the third link for NSBA's coverage of the amicus brief , and the fourth link for the NSBA press release.]