Pennsylvania Retaliation Case

While it cannot compare to Wal-Mart, the Borough of Duyea, Pennsylvania v. Guarnieri ( No. 09–1476 , 6/20/2011) was another closely-watched case for its implications for public employees. Police Chief Guarnieri had a running battle with the borough council in which he was fired, filed a union grievance, and was then reinstated (after suspension) by an arbitrator. After further unpleasantries and another partial win through arbitration, he sued under 42 U.S.C. §1983 (Civil Rights Act of 1871, deprivation of rights under color of law); later, having been denied payment for overtime, he added retaliation for what he alleged was violation of his rights covered by the First Amendment of the U.S. Constitution, specifically the ―right “to petition the Government for a redress of grievance” in bringing his original charge.

The trial judge instructed the jury that Guarnieri’s grievances and suit were constitutionally protected activity.

This was the interpretation of the law in the Third Circuit, but not elsewhere. The jury awarded punitive and compensatory damages as well as attorney’s fees. On appeal, the Third Circuit threw out the punitive damages but left standing the rest of the award. The council appealed again on a central issue: Was the chief’s action as an employee constitutionally protected activity?

The Court said no, more-or-less unanimously on the outcome, but with some disagreement on the legal theory. Justice Kennedy wrote the opinion of the Court. Justice Thomas wrote a separate opinion concurring in the judgment. Justice Scalia wrote an opinion partially concurring and partially dissenting. The majority held that, as with the First Amendment’s Speech Clause, activity is protected only when it involves a matter of public concern. Even when it does, there is a balance between the employee’s rights and the rights of the government as the employer. This does not mean that the Speech and Petition Clauses should be considered as equivalent, or that every petition situation comes down to a speech situation. But allegations of retaliation should not entail a need to consider exceptions to the public concern standard. Public employees can petition for redress via lawsuits. Public employees have protections established by law. “The Petition Clause is not an instrument for public employees to circumvent these legislative enactments when pursuing claims based on ordinary workplace grievance” (slip op. at 11). In contrast, “Outside the public employment context, constitutional protection for petitions does not necessarily turn on whether those petitions relate to a matter of public concern” (slip op. at 13). The distinction rests on whether the government is in the role of sovereign power, or in the role of employer trying to conduct orderly business.

Justice Scalia thought that the matter could be resolved more simply on the principle that constitutional protection does not apply to petitions addressed to the government as the petitioner’s employer. He did not favor conflating petitions with speech, or petitions with lawsuits. He also noted that historically petitions involved private issues, and so took issue with the majority’s emphasis on petitions being used to effect change in government. Justice Thomas agreed with Justice Scalia’s principle. In addition, he noted that the initial suit under § 1983 was not a “petition” to the borough government as employer, but to the federal government as sovereign, for which the borough council allegedly retaliated. If the suit were frivolous and intended to be disruptive to the employer, there were ways to deal with it in the courts, not by retaliation. He would have preferred to have the case remanded to the Third Circuit to sort out this aspect.

Reprinted with permission from the Personnel Testing Council of Metropolitan Washington.

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About Richard Tonowski

Rich joined EEOC in 2001 as a Psychologist, worked as the assistant HR director for strategic policy and planning from 2003 to 2006, and then became Chief Psychologist. In that role he reviews test validation documentation, conducts statistical analyses regarding employment practices, and consults with EEOC attorneys and investigators. Prior to his time with EEOC, he had over 20 years of experience involving public sector test development and validation, performance appraisal, employee surveys, diversity management, and labor relations. He also had experience in providing written and oral testimony as an expert witness in court cases, and in federal sector hearings conducted by EEOC and the Merit Systems Protection Board. Rich was awarded his Ph.D. in psychology by Rutgers University, and is certified as a Senior Professional in Human Resources by the credentialing affiliate of the Society for Human Resource Management. He is also an Adjunct Associate Professor of Human Resources Management and Development at University of Maryland University College where he teaches a graduate course.

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