Supreme Court will Consider Public Employee Retaliation

Supreme Court will Consider Public Employee Retaliation

The Supreme Court granted certiorari to a case involving retaliation against government employees.  In Borough of Duryea v. Guarnieri, a local government asks the Supreme Court to reverse a decision in favor of its employees who sued for retaliation.  Unlike many retaliation charges, which rest on the words of anti-discrimination statutes, this was brought as a constitutional claim.  A police chief claimed that he was retaliated against for filing a grievance relating first to his termination (he was reinstated), and then from a grievance following his employer’s treatment of him after he was reinstated.   Under the first amendment, citizens have the right to petition the government.

The local government raises the issue whether public employees should be protected from retaliation when they petition the government on “matters of purely private concern.”  The petition for certiorari argues that most of the other federal courts that have spoken on the subject have separated issues of public concerns, which more centrally invoke free speech rights, from private matters, such as a person’s own job.  The local government raises the specter that every employee who is disciplined will literally turn the issue into a federal case.

Parties often use the argument that the floodgates of litigation will open if a certain limit is not placed on the exercise of a right.  In reality, it is not easy to maintain a federal lawsuit, and it is unlikely to be done on a whim.  And in this case, the petition to the government was not a remark or voicemail message, but a grievance filed in accordance with procedures set up for those purposes.  Still, this Supreme Court is hard to predict, with two new justices.  Since certioari was granted so early in the term, the Court may get to the matter before June.

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