Borough of Duryea v. Guarnieri

Decision Date20 June 2011
Docket NumberNo. 09–1476.,09–1476.
Citation180 L.Ed.2d 408,564 U.S. 379,131 S.Ct. 2488
CourtU.S. Supreme Court

Daniel R. Ortiz, Charlottesville, VA, for petitioner.

Joseph R. Palmore, for United States as amicus curiae, by special leave of the Court, supporting the petitioners.

Eric Schnapper, Seattle, WA, for respondent.

Joseph A. O'Brien, Karoline Mehalchick, Oliver, Price & Rhodes, Clarks Summit, PA, Daniel R. Ortiz, Counsel of Record, Toby J. Heytens, University of Virginia School of Law, Supreme Court Litigation Clinic, Charlottesville, VA, Mark T. Stancil, Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, Washington, DC, David T. Goldberg, Donahue & Goldberg, LLP, New York, NY, John P. Elwood, Vinson & Elkins LLP, Washington, DC, for Petitioners.

Cynthia L. Pollick, Pittston, PA, Eric Schnapper, Counsel of Record, School of Law, University of Washington, Seattle, WA, for Respondent.

Justice KENNEDY delivered the opinion of the court.

Among other rights essential to freedom, the First Amendment protects "the right of the people ... to petition the Government for a redress of grievances." U.S. Const., Amdt. 1. This case concerns the extent of the protection, if any, that the Petition Clause grants public employees in routine disputes with government employers. Petitions are a form of expression, and employees who invoke the Petition Clause in most cases could invoke as well the Speech Clause of the First Amendment. To show that an employer interfered with rights under the Speech Clause, the employee, as a general rule, must show that his speech was on a matter of public concern, as that term is defined in the precedents of this and other courts. Here the issue is whether that test applies when the employee invokes the Petition Clause.

Alone among the Courts of Appeals to have addressed the issue, the Court of Appeals for the Third Circuit has held that the public concern test does not limit Petition Clause claims by public employees. For the reasons stated below, this conclusion is incorrect.


Charles Guarnieri filed a union grievance challenging his termination as chief of police for the borough of Duryea, a town of about 4,600 persons in northeastern Pennsylvania. His grievance proceeded to arbitration pursuant to the police union collective-bargaining agreement. The arbitrator found that the borough council, Duryea's legislative body and the entity responsible for Guarnieri's termination, committed procedural errors in connection with the termination; and the arbitrator also found that Guarnieri engaged in misconduct, including "attempting to intimidate Council members." App. 37, 38. The arbitrator ordered Guarnieri reinstated after a disciplinary suspension. Id., at 38.

Upon Guarnieri's return to the job, the council issued 11 directives instructing Guarnieri in the performance of his duties. The council's attorney explained that the council "wanted to be sure that the chief understood what was going to be expected of him upon his return." Tr. 19:12–14 (Apr. 16, 2008). One directive prohibited Guarnieri from working overtime without the council's "express permission." App. 59, ¶ 1. Another indicated that "[t]he police car is to be used for official business only." Id., at 60, ¶ 9. A third stated that the "Duryea municipal building is a smoke free building" and that the "police department is not exempt." Id., at 61, ¶ 10. Guarnieri testified that, because of these and other directives, his "coming back wasn't a warm welcome feeling." Tr. 65:7–8 (Apr. 15, 2008). Guarnieri filed a second union grievance challenging the directives. The arbitrator instructed the council to modify or withdraw some of the directives on the grounds that they were vague, interfered with the authority of the mayor, or were contrary to the collective-bargaining agreement.

Guarnieri filed this lawsuit against the borough, the borough council, and individual members of the council under 42 U.S.C. § 1983. Guarnieri claimed that his first union grievance was a petition protected by the Petition Clause of the First Amendment, and he alleged that the directives issued upon his reinstatement were retaliation for that protected activity.

After this suit was filed, the council denied a request by Guarnieri for $338 in overtime. The United States Department of Labor investigated and concluded that Guarnieri was entitled to be paid. The council offered Guarnieri a check for the amount, but Guarnieri refused to accept it. Instead, Guarnieri amended his complaint to encompass the denial of overtime. Guarnieri alleged that his § 1983 lawsuit was a petition and that the denial of overtime constituted retaliation for his having filed the lawsuit.

Under the law of the Circuit, the defendants could not obtain judgment as a matter of law on the basis that the lawsuit and grievances were not on a matter of public concern. The case proceeded to a jury. Guarnieri's attorney argued that the council was "sending a message to" Guarnieri through the directives and the denial of overtime: "You might have won your arbitration, but we control you." Tr. 53:24–25 (Apr. 17, 2008). The District Court instructed the jury that the lawsuit and union grievances were "protected activity ... under the constitution," and that the jury could find defendants liable if it found an adequate connection between the protected activity and the alleged retaliation. Id., at 61:17–20; 62. The jury found in favor of Guarnieri. The jury awarded $45,000 in compensatory damages and $24,000 in punitive damages for the directives, as well as $358 in compensatory damages and $28,000 in punitive damages for the denial of overtime. The District Court awarded $45,000 in attorney's fees and denied defendants' renewed motion for judgment as a matter of law.

Defendants appealed on the ground that Guarnieri's grievances and lawsuit did not address matters of public concern. Courts outside the Third Circuit have held that allegedly retaliatory actions by government employers against government employees may not give rise to liability under the Petition Clause unless the employee's petition related to a matter of public concern. See, e.g., Kirby v. Elizabeth City, 388 F.3d 440, 448–449 (C.A.4 2004) ; Tang v. Rhode Island, Dept. of Elderly Affairs, 163 F.3d 7, 11–12 (C.A.1 1998) ; White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1059 (C.A.2 1993). These courts rely on a substantial overlap between the rights of speech and petition to justify the application of Speech Clause precedents to Petition Clause claims. They reason that, whether the grievance is considered under the Speech Clause or the Petition Clause, the government employer is entitled to take adverse action against the employee unless the dispute involves a matter of public concern.

Rejecting that view, the Court of Appeals here affirmed the award of compensatory damages, although it found insufficient evidence to sustain the award of punitive damages. The Court of Appeals concluded that " ‘a public employee who has petitioned the government through a formal mechanism such as the filing of a lawsuit or grievance is protected under the Petition Clause from retaliation for that activity, even if the petition concerns a matter of solely private concern.’ " 364 Fed.Appx. 749, 753 (C.A.3 2010) (quoting Foraker v. Chaffinch, 501 F.3d 231, 236 (C.A.3 2007) ). The decision of the Court of Appeals was consistent with the rule adopted and explained by that court in San Filippo v. Bongiovanni, 30 F.3d 424, 442 (1994). This Court granted certiorari to resolve the conflict in the Courts of Appeals. 562 U.S. ––––, 131 S.Ct. 456, 178 L.Ed.2d 285 (2010).


When a public employee sues a government employer under the First Amendment's Speech Clause, the employee must show that he or she spoke as a citizen on a matter of public concern. Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). 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." Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).

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." San Diego v. Roe, 543 U.S. 77, 82, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004)(per curiam) . 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." Connick, supra, at 147, 103 S.Ct. 1684; see also Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U.S. 589, 605–606, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967). Nevertheless, a citizen who accepts public employment "must accept certain limitations on his or her freedom." Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). 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...

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