Opposition Brief — Borough of Duryea v. Guarnieri

Supreme Court of the Anited States

BOROUGH OF DURYEA, PENNSYLVANTA, ef al ,

CHARLES J GUARNTERIT, JR,

Respondent

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

BRIEF IN OPPOSITION

-¢@

CYNTHIA L. POLLICK

363 Laurel Street

Pittston, PA LS640

STON BSA-9BTS

Bkic SCHNAPPER®

School of Law

University of Washington

PO. Box 853020

Seattle, WAQS195

206) 616 3167

schnappeu washington edu

’ > ’ ,

Comnsei for Respondent

. ¥ , » .* = ,

Counsesd of Rex ory

QUESTION PRESENTED

Does the right of access of the courts embodied in

the Petition Clause protect

(ay an individual who while not a publi

emplovee prevailed ino an arbitration pro-

ceeding against a city, who later becomes a

city emplovee and is retahated a, unst, or

ib) a public emplovee who is) retahated

against by a city for having filed an action in

federal court under section 1983,

without regard to whether the subject matter of that

arbitration and lawsuit was a matter of pubhe con.

cern?

i

TABLE OF CONTENTS

Paige

Question Presented 1

SMatement ............. l

The Retahatory Directives. 3

The Retahatory Denial of Overtime. . 6

The Appeal...... 7

Reasons tor Denying the Writ Ss

1 The Question Presented Does Not War-

rant Review by This Court .......0................ 8

Il. This Case Is Not An Appropriate Vehicle

For Resolving The Question Presented...

lll. The Deeitsion Below Is Not Inconsistent

With This Court's Decisions in McDonald

A Ae A, Rg, ASN 4H.

Conclustion.....

Appendix

District Court Decisions in the Third Circuit

Since San Filippo Applying the Connick Pub-

he Concern Standard ..........

Third Circuit Decisions Since San Filtppe

Applying the Connick Pablic Concern Stand-

I sitescas asec tacos

23

"6

32

i

TABLE OF AUTHORITIES

Page

CASES

Baranowski v. Waters, 2008 WL 728366

kt MARR Rpiaieaier en oak Ae NSN Bitte REN rR EET)

Barnes Foundation vo Township) of Lower

Merion, 982 F.Supp. 970 (E.D.Pa.1997)...0000........21

Bill Johnson's Restaurants Inc. vo NLRB, 461

a ee ee 9,28

Bradshaw v. Township of Middletown, 296

F.Supp.2d 526 (D.N.d.2003) «2000.0... ee. FW aie 12

California Motor Transport Co. v. Trucking

Unlimited, 404 U.S. 508 (1972)....................:00000 9, 28

Connick v. Myers, 461 U.S. 188 (1983) 0000... passim

Cooper v. Cape May County Bad. of Social

Services, 175 F.Supp.2d 732 (D.N.J.2001) ....0........ 12

Dewees ov. Haste, 620 F.Supp.2d- 625

os RG ARR epee rap aiid iii aehranadediuiiaien 21

Edwards v. South Carolina, 372 U.S. 229

TIT a LS LOE Been ee ROR ee Le ART AD De AR 10

Foraker v. Chaffinch, 501 F.3d 231 (3d

GD Pisiscosiccesess PASS ae = SN PES, ARON re see passim

Hill v. Borough of Kutztown, 455 F.3d 225 (3d

Cir. 2006).......:;.. Probe dae nesigutnncsidabuls Pe TERN he roe are 10

Howard v. Bureau of Prisons, 2008 WL 318387

8G RR ae ath PREC PE ORE ep Mes ERC De OT eee 21

Karchnak vo Swatara Township, 2009 WIL

2139280 (M.D.Pa.) .................. riled sdialtice A eencscnsin 12

iv

TABLE OF AUTHORITIES ~— Continued

Page

Livingston v. Borough of Edgewood, 2008 WL

NIE I Os. cnincdearccsuaienatnaneuacnehdcitcsane aout 12

Marrero v. Camden County Ba. of Soc. Ser

vices, 164 F.Supp.2d 455 (DLN. 2001).......20, 21, 22

McDonald v. Smith, 472 U.S. 479 (1985)... 27, 28, 29

Miller vc. Wernstein, 2008 WL 4279817

(W.D.Pa.)........ SSDP OL AER oP. Ell eh st antic Sn bn AD AL ects Bia eS BRE 12

Moore v. Darlington Township, 690 F.Supp.2d

BF Oe A ID vias cccccccccaccdccsicecceces 2 ae a

N.A.A.C.P. ov. Claiborne Hardware Co... 458

EG IEE PUNO a ere eRe ANT 10, 28

Olsen v. Ammons, 2009 WL 2426060 (M.D.Pa.)........21

Perna v. Township of Montclair, 2006 WL

8 I NEE WES Re ee eR NY SP eee 11

’ollock v. City of Ocean Citv, 968 F.Supp. 187

Gy REE RR atic ene AST ee 20

Price v. MacLeish, 2006 WL, 2346430 (D.Del.) 20.0... 12

San Filippo v. Bongtovannt, 30 F.3d 424 (3d

I Siaeinsthiiicitediasstssaniusniuicnsisenaneuaneumucmmmiat avin passim

Shick v. Shirey, 552 Pa. 590, 716 A.2d 1231

anc ER Es ERAT ee APRON Soe RS ect SALTO IR OE 22

Snavelv v. Arnold, 2009 WL 1743737 (M.D.Pa.)....... 21

Thomas v. Collins, 323 U.S. 516 (1945)...000 00. 28

TABLE OF AUTHORITIES — Continued

Page

United Mine Workers v. Illinois State Bar

EE, Se EE, SEE CNS D vcsicaniccs cocnccatnduadidntivicdasneds 28

Walsifoer v. Borough of Belmar, 2006 WL

I 21

CONSTITUTIONAL PROVISIONS

IIIA ee eee ake he Dok ae eee 26

ee er. uovied dobeenedeunaiuauaacsanciae 30

First Amendment, Free Speech

art ceputausmmbesaennia 27, 28, 29, 30

First Amendment, Petition Clause.................... passim

STATUTES

I a i, 25

Pair Labor StamdarGe Act ..............ccccccccccsccssccsscseee 6, 23

National Labor Relations Act .......................ccccec cee eeee es 9

I i hh a 22

OTHER AUTHORITIES

Appellants’ Petition for Rehearing En Banc or

By The Panel, No. 06-4086 (3d Cir.) .......00....00....... ll

STATEMENT

This litigation concerns respondent Guarnieri’s

service as Police Chief of the Borough of Duryea,

Pennsylvania. Duryea is a small town with only two

full time police officers; the Police Chief spends a

substantial portion of his time doing regular police

work, rather than administration. Under the applica-

ble borough ordinance the seven member Borough

Council has the authority to hire and fire the Police

Chief; supervision of the Chief, on the other hand, is

the responsibility of the Borough’s Mayor. The rela-

tionship between the Borough and the Police Chief is

governed in part by a collective bargaining agreement

between the Borough and Duryea Police Association,

which is represented by the Fraternal Order of Police.

That agreement provides, in certain circumstances,

for a grievance process that can lead to binding

arbitration.

Guarnieri was initially hired in September 2000.

In February 2003 the Borough Council voted to

dismiss Guarnieri, an action precipitated in part

when Guarnieri rejected a request from the Council

Chair that he lobby the mayor to sign a proposed

ordinance that was unrelated to the Police Depart-

ment.’ Two weeks after his dismissal Guarnieri filed

' D.Ex. 29 (Arbitration Decision of Dec. 28, 2004), at 11:

{CJouncil’s attempt to reorganize the Sewer Authority

may have been a critical turning point. Ms. Dommes

{the Council Chair] and Mr. Guarnieri concurred that

she had asked him to intervene with the Mayor in an

(Continued on following page)

2

a grievance challenging his termination. The Mayor,

who had no power to overturn that dismissal, none-

theless indicated his support for Guarnieri.’ The

dispute ultimately was referred for binding arbitra-

tion under the terms of the applicable collective

bargaining agreement.

The arbitral process, conducted under the auspi-

ces of the American Arbitration Association, had

many of the facets of a trial. The dispute was heard

by the arbitrator over several days of hearings in

August and September 2004, with a number of wit-

nesses being examined and cross-examined, and a

range of documents being presented. Both sides were

represented by counsel; Guarnieri was represented by

counsel for the union. Each side submitted post-

hearing briefs. In December 2004 the arbitrator

issued a detailed 23 page opinion which concluded

that the dismissal was improper. The arbitrator

ordered that Guarnieri be reinstated with back pay.

Guarnieri returned to work on January 21, 2005.

effort to prevent a veto of Council’s bill. Mr. Guarnieri

refused the request, and the Mayor vetoed the bill.

Although Mr. Guarnieri had wanted to keep himself

and the Police Department out of politics, it did prove

impossible. Mr. Guarnieri and the Mayor were now

seen as allies, and Mr. Guarnieri made no effort to

dispel that view. As relations between the Mayor and

Council deteriorated, so, too, did relations between

Mr. Guarnieri and Council.

* Id. at 17 (“Mayor Moss replied ... ‘I wish to advise you that

I agree with you in this matter. At this time I am advising you to

proceed to the next step of the grievance procedure’.”).

The Retaliatory Directives

Guarnieri alleged, and a jury ultimately found,

that when Guarnieri returned to work the Borough

Council immediately retaliated against him for

having filed the grievance and pursued the successful

arbitration. The Council retahated by adopting an

unprecedented set) of “directives” controlling the

actions of the Police Chief. Some of the directives had

the effect of limiting how much the Chief could earn:

for example, it forbade Guarnien to work or earn

overtime. Others constrained the Chief's ability to do

his job; the Chief was ordered, for example, to leave

work and “go home” at 3 p.m. each day. an order that

apphed regardless of whether at that point in time

the Chief might be dealing with an emergency, con-

ducting an investigation, or making an arrest.

Guarnieri initiated two separate challenges to

these directives. On January 29, 2005, Guarnieri filed

a new grievance under the collective bargaining

agreement, this one challenging the disputed direc-

tives. That grievance ultimately led to binding arbi-

tration at the request of the Police Umion. In July

2005, Guarniert commenced the instant action in

federal court, alleging inter alia that the directives

were the result of an unconstitutional purpose to

* In a number of instances a directive was disputed because

it provided that the Police Chief would be personally responsible

for any violation of a rule by one of his subordinates, a form of

strict halihty which Guarmer claimed was not mmposed on

>?

other department heads D-Ex 18 \PEx. F), at 19,23

retaliate against him for pursuing the earher gnev-

ance and arbitration, retahation which Guarmeri

asserted violated the Petition Clause of the First

Amendment.

In a decision in February 2006 regarding this

second gmevance, the arbitrator sustained many of

the challenges raised by Guarnieri and the Union to

the disputed directives. The arbitrator concluded that

a number of the directives were invalid to the extent

that the Borough Council had usurped the role of the

Mayor in attempting to supervise the work of the

Police Chief" A> subsequent arbitration decision

*“ DEx. 18 (PEx. F) (Arbitration Decision of Feb) 15, 2006),

at 18-24

([Thhe Mayor may determine that the Chet is needed

to perform duties (for more than e:nght hours in a dav,

or 40 hours in a week) when an additional offieer is

required and cannot be procured — [I)t is clearly be-

yond the authonty of Borough Council. as its attorney

acknowledged, and the Borough President agrees, to

require that any emplovee must “go home” at the end

of his or her shift

{Tjo the extent that the Chief of Polhce might be re-

quired to attend a Council meetings), he must be

compensated

The absolute requirement [that a particular officer be

present at a specified school at certain hours] may in

terfere with ether duties required of the officer or

the Mayor's direction of the manner in which the per.

sons assigned to the vamous | ranks .. shall perform

their duties

(Continued on following page?

regarding this gmevance, in duly 2006, resolved a

number of issues that were not fully addressed in the

February 2006 decision. The combined effect of these

arbitration decisions was to resolve the dispute

between the Borough Counce and Guarmert regard,

ing the conditions governing the work of the Pohce

Chief, and thus mooted any request in the section

1983 action for injunctive relief regarding the diree-

tives. The section 1983 action challenging the orignal

directives proceeded to discovery and tmal with

regard to Guarnieri’s claims for monetary rehet

arising out of the retahatory directives. A jury found

that the Borough Council had imposed the disputed

directives for the purpose of retahating against

Guarnien tor having pursued the earher grievance

and arbitration regarding his 2008 dismissal. The

jury awarded Guarmer $45,000 in compensatory

damages and $24,000 in punitive damages.

. . .

(Tlo require the Chief to be out of his office 4-5 hours

per day, on patrol, may not allow him time to perform

other critical police duties without incurnng evertime

(lif the Mayor determines there is an operational ne

cessity to work a different stiff [than the day shitt

mandated by a Directive) the Chief may be so as

surned

ob

Retaliatory Denial of Overtime

In December 2006 the Borough Couneil refused

to pay Guarmen overtime for fourteen and one-half

hours he had worked. Guarmeri alleged, and a jury

later found, that the Borough did so to retahate

against him for having filed the instant section 1983

action.

Guarmien challenged this denial of overtime pay

in two ways. First, Guarmern amended his pending

section 1983 complaint, adding a new claim which

alleged that the retahatory denial of overtime pay

violated his mghts under the Petition Clause of the

First Amendment. Second, Guarmeri complained

about the denial to the Wage and Hour Division of the

United States Department of Labor, asserting that

the denial of overtime violated the federal Fair Labor

Standards Act. The Department of Labor investigated

Guarnieri’s complaint, and concluded that the denial

of overtime pay violated the FLSA. The Borough

entered into a written agreement with the Depart-

ment of Labor in which it promised to pay Guarnieri

$338.53 for the overtime he had worked

The Borough, however, failed to pay Guarmieri

that $338.53. The section 1983 claim therefore pro

ceeded to tnal on this claim. The jury found that the

Council’s orignal demal of overtime was the result of

a retaliatory purpose. The jurv awarded Guarmieri on

this claim $358 in damages; the jurv also awarded

punitive damages on this claim

The Appeal

On appeal the Borough argued that none of the

proven retahatory conduct violated the Petition

Clause. The Borough contended that the Petition

Clause does not forbid reprisals against public em-

plovees for petitioning activity unless that activity

invelves a matter of pubhie concern. The Borough

argued specifically that the protections accorded to

public emplovees by the Petition Clause are the same

as the protections accorded by the Free Speech

Clause of the First Amendment, and are thus sulyect

to the limitation in Connick vo Myers, 461 U.S. 138

(1983), which requires a plainuT to show that the

assertedly protected activity involved a matter of

pubhe concern.

The Third Cireuit reyected this contention. The

court of appeals apphed that cireuit’s earher decision

in San Filippo cv. Bongiovanni, 30 FSd 424 (3d

Cir. 1994). San Filippo had concluded that when a

pubhe emplovee files a lawsuit, or invokes some

analogous formal remedial mechanism, the emplovee

is protected by the right of access to courts embodied

in the Petition Clause. 30 F.3d at 433-43. This Court's

decisions regarding the mght of access to courts has

never been limited to lawsuits (or other similar

proceedings) regarding matters of publhe concern

Under San Filippo the Connick pubhe concern re-

quirement remains appheable in the Third Circuit

to all pubhe emplovee” Petition Clause claims

that do not involve access to courts or other similar

tormal remedial mechanisms

REASONS FOR DENYING THE WRIT

l. THE QUESTION PRESENTED DOES NOT

WARRANT REVIEW BY THIS COURT

The narrow issue raised by the decision in San

Filippo does not warrant review by this Court. Be-

cause of the limited scope of that decision, the over-

whelming miayority of First Amendment claims by

pubhe emplovees in the Third Cireurt continue to be

governed by the public concern) requirement of

Connick, Even where San Filippo apples, that rule

regarding the ryght of pubhe emplovees to access to

courts often is not outcome determinative, frequently

cases to which this standard has been apphed would

in anv event have satisfied the pubhe concern re-

quirement, or involved retahatory acts that) were

already illegal under some other provision of law. The

question presented is thus of insufficient practical

importance to warrant expenditure of this Court's

searee Tesourees,

(a) Under San Filippo First Amendment claims

of pubhe emplovees remain sulyect to the Connick

public concern standard except where the emplovee's

protected activity was filing a lawsuit or invoking

some sunmilar “formal mechanism of redress.” Foraker

ve. Chaffinch, 501 F.3d 231, 236 (8d Cir.2007)

Q

This narrow rule ais expressly rooted um this

Court's repeated decisions that the Petition Clause

guarantees access to the courts. In California Motor

Transport Co. vo Trucking Unlimited, 404 US. 508,

510-11 (1972), the Third Circuit noted, this Court

held that “ithe mght of access to the courts is .. one

aspect of the right to petition.” San Filippo, 30 F.3d at

436. The Third Cireuit relied as well on Bill Johnson's

Restaurants Inco vo. NLRB, A461 U.S) 731, 741 (1983),

Which also held that “the mght of access to the courts

is AN aspect of the First Amendment right to petition

the Government for redress of grievances.” See San

Filippo, 30 F.3d at 437 (quoting Bill Johnson's)

Neither California Motor Transport nor Bill John

son's Restaurants suggested that the lawsuits at issue

in those cases did (or needed to) involve matters of

pubhe concern. This Court’s decisions in those cases

held in light of the Petition Clause that all lawsuits -

not merely lawsuits regarding issues of public con-

cern — could not sive rise to a claim under the federal

anti-trust law or under the National Labor Relations

Act, at least absent a showing that that lawsuit was a

mere sham. The Third Cireuit correctly concluded

that the right of access to the courts is not limited to

plaintiffs who want to use litigation to express their

views on some public debate. 30 F.3d at 441

Because the Third Cireuit rule derives from the

right of access to the courts, it is expressly limited to

invocation of some “formal mechanism for redress of

gnevances,” San Filippo, 30 F3d at 440 n 18, such as

a lawsuit or ai formal gmevance and arbitration

10

process under a collective bargaining agreement. This

Court’s decisions make clear that the Petition Clause

apphes to a far wider range of activities, such as

demonstrations or other public protests, that would

fall outside the narrow rule in San Filippo. San

Filippo made clear, for example, that a simple letter

from a worker invoking no such mechanism would

continue to be governed by Connick

\l}f the “petition” at issue wlere] simply a let-

ter imposing on the government no obhga-

tion to respond, mt wlould] properly [be]

analyzable under the conventional Connick

rubric applicable to speech

30 F.3d at 439.

Most complaints and statements by government

workers simply do not fall within this narrow rule

regarding access to the courts and similar formal

remedial processes. Of the four Third Cireuit cases

cited by petitioners, half actually reyected a plaintiff's

claim precisely because it did not involve such a

formal mechanism. Foraker, 501 F.3d at 237 (“the

plaintiffs’ complaints up the chain of command did

not constitute petitioning activity. [The plaintiffs]

complained internally; they did not petition a state

ageney qua agency. They appealed to their emplover,

which also happened to be a state agency, through

informal channels.”); Hill vo Borough of Kutztown,

’ Eg. NAACP v Claiborne Hardware Co. 458 US) 886

(1982); Kadwands v. South Carolina, 872 US. 229 (1963)

ll

455 F.3d 225, 242 n.24 (3d Cir.2006) “Hill appears to

allege that his report to the Borough Council could be

protected ... as ‘petitioning activity” ... We have never

held, however, that a report of a supervisor's miscon-

duct to a legislative body when the legislative body is

also the reporter’s employer constitutes ‘petitioning

activity” 7) The Petition points to the denial of rehear-

ing en banc in Foraker as an indication that the Third

Circuit is implacably committed to an overboard

interpretation of the Petition Clause. (Pet. 28). In

fact, however, rehearing was sought in Foraker, not

by the defendants, but by the unsuccessful plaintiffs,

who objected that the panel had apphed the Petition

Clause in an unduly narrow manner.

District courts in the Third Cireuit have repeat-

edly rejected Petition Clause claims by public em-

plovees because their actions did not involve

invocation of some formal remedial mechanism.

(Tihe Petition Clause does not protect infor-

mal gmevances such as memoranda, letters,

and verbal complaints.... Plaintiff's]

grievances consisted of verbal complaints

and internal memoranda, which are not pro-

tected by the Petition Clause.

Perna v. Township of Montclatr, 2006 WL 2806276 at

*6 (DNL).

* Appellants’ Petition for Rehearing En Bane or By The

Panel, No 06-4086 (3d Cir), at 11-14

12

Plaintiff's speech at issue does not implicate

the Right to Petition ... because his meeting

with union representatives and [an agency

official] is not in the nature of a formal

grievance procedure.... Plaintiff expressed

his speech in many informal settings, includ-

ing letters, phone calls, and meetings...

Cooper v. Cape May County Ba. of Social Services,

175 FSupp.2d 732, 746 (D.N.J.2001); see Price v.

MacLeish, 2006 WL 2346430 at *9 (D.Del.) (“Plain-

tiffs’ ‘petitions’ up the chain of command were not

through a formally-adopted mechanism.... Clearly, the

plaintiffs’ petitioning activities do not fall under the

safe harbor provided by San Filippo”); Bradshaw v.

Township of Middletown, 296 F.Supp.2d 526, 546

(D.N.J.2003) (*lijnformal conduct such as letters,

phone calls, memoranda and meetings” are not pro-

tected); Aarchnak v. Swatara Township, 2009 WIL

2139280 at *9 n.11 (M.D.Pa.) (actions not protected

because plaintiff did not personally file or participate

in lawsuit); Baranowski v. Waters, 2008 WL 728366

at *25 (W.D.Pa.) (“Baranowski’s statement ... did not

constitute petitioning activity. Baranowski com-

plained internally, speaking only with his superiors...

A public employee’s informal complaints are not

transformed into petitioning activity merely because

he or she happens to be employed by the govern-

ment”); Livingston v. Borough of Edgewood, 2008 WL

5101478 at *3 (W.D.Pa.) (soliciting union to file a

grievance insufficient); Miller v. Weinstein, 2008 WL

4279817 at *21 (W.D.Pa.) (email appeal to employer

insufficient).

13

(b) The petition repeatedly describes the Third

Circuit rule in a manner that omits that rule’s narrow

limitation to petitions invoking some formal remedial

mechanism. The Question Presented, for example,

describes the Third Circuit as

holding that state and local government em-

ployees may sue their employers for retalia-

tion under the First Amendment's Petition

Clause when they petitioned the government

on matters of purely private concern....

(Pet. 1). “[T]he Third Circuit refused to extend the

public concern requirement that this Court applied to

free speech retaliation claims in Connick to similar

petition claims.” (Pet. 4). In fact, as noted above, San

Filippo expressly does apply the Connick public

concern requirement to petitions that do not involve a

formal remedial mechanism. Petitioners object that

anomalous results would ensue if the Petition Clause

interpreted “to protect a/l public employee petitions

from retaliation regardless of their purely private

nature” (Pet. 11) (emphasis added). But San Filippo

clearly does not exempt all such cases from the public

concern requirement.

The petition at times edits quotations from Third

Circuit decisions in ways that obscure their meaning.

For example, the petition describes one passage in

San Filtppo in the following manner:

’ But not invariably See Pet. 7

14

To disallow a retaliation claim because it ad-

dressed purely private concerns, the majority

asserted, would make “the petition clause ...

a trap for the unwary — and a dead letter.”

(Pet. 4-5). This suggests that the Third Circuit com-

ment was about all petitions, and that that Circuit

thought (oddly) that failing to protect petitions on

non-public concerns would somehow be uniquely

unfair. In fact, however, the quoted twelve words from

San Filippo are in a discussion about the “formal

governmental adoption of a mechanism for redress of

grievances.” 30 F.3d at 442.

If the government could ... freely discharge

an employee for the reason that the employ-

ee ... invoked such a mechanism, the petition

clause of the first amendment would, for

public employees seeking to vindicate their

employee interests, be a trap for the unwary

a —and a dead letter.

Id. The “trap” described in the opinion consists of

inviting workers to invoke some formal government-

created mechanism, and then firing them for having

done so.

Another passage in the petition asserts that

the San Filippo majority distinguished peti-

tion claims from free speech claims. “When

one files a ‘petition,” the majority argued,

“one is not appealing over the government's

head to the general citizenry: when one files

a ‘petition’ one is addressing government and

asking government to fix what, allegedly,

15

government has broken or has failed in its

duty to repair.”

(Pet. 4) (quoting San Filippo, 30 F.3d at 442). This

suggests that the Third Circuit held that all Petition

Clause claims should be exempt from the Connick

public concern rule. In fact, however, the term “peti-

tion” appears in quotation marks in this passage

because the Third Circuit was referring only to peti-

tions that invoke formal remedial mechanisms. The

quoted passage is preceded by a sentence that draws

precisely that distinction, using quotation marks

around the word “petition” for that very purpose.

([Wjhen government ... formally adopts a

mechanism for redress of those grievances

for which government is allegedly accounta-

ble, it would seem to undermine the Consti-

tution’s vital purposes to hold that one who

in good faith files an arguably meritorious

“petition” invoking that mechanism may be

disciplined for such invocation by the very

government that in compliance with the peti-

tion clause has given the particular mecha-

nism its constitutional imprimatur.

30 F.3d at 442.

The petition describes the Third Circuit decision

in Foraker in the following manner:

The Third Circuit contends that providing

those who petition broader protection from

retaliation than those who speak “is legiti-

mate because the Petition Clause is not

16

merely duplicative of the Free Speech

clause.” Foraker, 501 F.3d at 236.

(Pet. 12). But Foraker does not call for or defend

providing broader protection to all “those who peti-

tion”; the fifteen words quoted from Foraker were

offered only as a justification for broader treatment

for public employees who file lawsuits or invoke other

formal remedial mechanism.

Formal petitions are defined by their invoca-

tion of a formal mechanism of redress....

{W]hen a formal petition is made, the em-

ployee need not show that the subject matter

of the petition involved a matter of public

concern. [San Filippo, 30 F.3d] at 442. This

distinction is legitimate because the Petition

Clause is not merely duplicative of the Free

Speech Clause.

Foraker, 501 F.3d at 236.

(c) The petition repeatedly predicts that by

according protection under the Petition Clause to

lawsuits and other formal mechanisms not involving

matters of public concern the Third Circuit will

eviscerate the rule in Connick. “(T]he Third Circuit

rule creates an easy end run around Connick’s public

concern requirement.” (Pet. 24).° Under San Filippo,

* “(The Third Circuit] rule would permit public employees

to make an end run around the public concern requirement for

free speech retaliation claims simply by couching their expres-

sion in the form of a petition.” (Pet. 11).

17

petitioners contend, public emplovees can evade that

requirement “simply by couching their expression 1n

the form of a petition” (Pet. 11), or “through the

commonplace step of filing a gnevance” (Pet. 15).

As other courts of appeals have recognized,

permitting [retaliation claims that lack a

matter of public concern) would open the

federal floodgates to all manner of petty per-

sonal disputes.” Altman (/v. Hurst, 734 F.2¢

.

1240.) 1244 |( 7th Cir. 1984)).

(Pet. 21) (bracketed material in petition).

The fatal problem with these dire predictions is

that San Filippo was decided sixteen vears ago.

Petitioners do not contend that any of these predicted

consequences have in fact occurred. Petitioners do not

assert that there has been an avalanche of sham

lawsuits or grievances used to concoct Petition Clause

protections tor otherwise unprotected statements.

Indeed, the Third Circuit standard expressly does not

apply to sham proceedings. and petitioners do not

contend that the courts in that circuit have identified

any such problems. Petitioners do not. of course.

contend that Guarnieri's 2008 grievance was merely a

contrivance to obtain protection for statements criti-

cizing the Borough Council; to the contrary, there is

no dispute that the grievance and subsequent arbi-

tration were a bona fide (and ultimately successful)

effort to win back Guarnieri’s job as Pohce Chief.

San Fiiippo, 30 F.3d at 436-37

1s

The petition identifies three appellate decisions

in the sixteen years since San Filippo that have

applied the standard in that case Gineluding Foraker,

which held the plaintiffs’ actions in there were not

protected by the Petition Clause). (Pet. 2). During the

same period, however. appellate decisions 1 the

Third Circuit applied the Connick public concern

standard in 32 cases " The petation identifies tour

district court decisions in the Third Cireutt which

have applied the standard in San Filippo during the

vears since that case was decided in 1994. (Pet. 26).

During the same sixteen year period, however, dis-

trict court decisions the Third Circuit applied the

Connick publhe concern standard in 158 cases.

Despite petitioners: predictions that San Filippo

would largely supplant Connick as the controlling

criterion in public employee First Amendment cases,

nothing of the sort has occurred. To the contrary,

Connick’s pubhe concern standard continues to sev

ern the overwhelming majority of public employee

First Amendment cases in the Third Cireunt. The

comparative handful of cases to which San Filtppe

has been applied are not important enough to war-

rant investment of this Court’s scarce time and

resources.

———

= -

We set forth a list of those cases 11 A appendix to this

bnef

“ We set forth a list of those cases 1M an appendix to this

brnet

19

That San Filippo has had only a marginal impact

is not difficult to understand. Most of the gripes of

public (or private) employees do not result in htiga-

tion because the underlying complaints simply do not

invelve any arguable violation of federal or state law,

Petitioners hypothesize that state and local employ

ees might file lawsuits solely for the purpose of voie-

ing in an assertedly protected civil complaint some

disagreement that they might have with their em-

ployers. But pubhie employees generally lack the tens

of thousand of dollars that would be needed to hire an

attorney to litigate such a lawsuit, and no sensible

lawyer would take such a case on a contingent fee

basis. Similarly, most dissatisfactions on the part of

employees would not) support) 3 colorable formal

grievance and request for arbitration under a collec-

tive bargaining agreement af any such agreement

even existed), and ordinarily only a union — not an

individual member — can press a gmevance to the

point of arbitration.

Petitioners assert that “the plainti? in Connick

could simply have filed her questionnaire in a griev-

ance in order to have received First amendment

protection.” (Pet. 24). This comment tlustrates pre

cisely why San Filippo has had so little impact.

Including that questionnaire in a grievance would

have been utterly pointless. What the plaintiff in

Connick wanted was for her fellow employees actual-

ly to read and fill out the questionnaire; there is no

possibility that the plaintiff's co-workers would have

gone to the arbitrator, obtained a copy of that ques:

tionnaire. and filled it out. And there ts nothing in

20

Connick suggesting that the emplover in that case

even had some sort of formal gnevance and arbitra-

tion mechanism that the plaintiff could have invoked.

(d) Fven when it is apphed, San Filippo otten is

not outcome determinative. In some instances courts

holding that a plaintu?’s statements were protected

by the Petition Clause have noted that the state-

ments, in any event, involved matters of public con-

cern and would have been protected under Connick. ~

For example, petitioners point to Marrero oo Camden

County Ba. of Soc. Services, 164 FSupp.2d 455

DLN.2001), as an example of a “run-of-the-mill

employment dispute! ]” that did not belong in federal

court. (Pet. 26). Marrero concerned the dismissal of a

county werker because she had filed an administra-

tive complaint and lawsuit alleging sexual harass-

ment and other gender based discrimination.” The

district court noted that a complaint of sexual har-

assment constituted “speech on a ‘matter of public

Eg... Pollack vc City of Oovwan Citv, 968 F Supp. 187, 192

DN A987) CSan Filippo remains the law of this Cireuit.. In

ANY Case, plaintiff's allegations — regarding personal favorit

ism, nepotism, and ultra vires acts on the part of City officials

probably suffice to impheate publ concerns”)

164 FSupp 2d at 460-61. The petition refers to this case

as merely involving “a tort claim notice involving alleged dress

code violations 7 (Pet. 26) The dress code at issue was relevant

only because if was part of the context in which the alleged

gender based discmmunation and harassment occurred. The

plaintatl alleged she was retaliated against for filing suit in

tederal court (which the Petition does not mention) and filing

the tort claums notice; that notice was “a required precursor to

her lawsuit " 164 F Supp 2d at 468

21

concern that was protected by the First Amendment

regardless of whether a formal petition was ever

filed.” 164 FSupp 2d at 468 n10.

Even where a plaintiff establishes that his or her

conduct was indeed protected tonly) by the Petition

Clause, that often has no impact on the outcome of

the litigation. Decisiens recognizing that a plant?

engaged in such protected activity routinely grant

summary judgement to the defendant, either on the

ground that there is insufficient evidence of an un-

constitutional motive." or because the defendants

have immunity,” or because the asserted retaliation

Was too insignificant to be actionable

The core justification asserted by petitioners for

denying constitutional protection to lawsuits and

other formal proceedings regarding matters not of

public concern is to accord state and local govern

ments the latitude to punish or prohibit such actions

if they are deemed inconsistent with the efficient

Operation of government. “The decision below

eriucally undermines the ability of state and local

* Olsen vo Ammons, 2009 WL, 2426060 at *4 (MD Pa),

Snarwlv v Arnold, 2009 WL. 17487387 at *4. MD Pal), Howard :

Bureau of Prisons, 2008 WL SISSS7 at *16 (MD Pa ). Walsifoer

vt Borough of Belmar, 2006 WL 2990364 at *9-*11 (DN J):

Barnes Foundation » Township of Lower Merion, 982 F Supp

970, 1002-038 (ED Pa 1997)

* Dewees ¢ Haste, 620 F Supp 2d 625, 636 (MD Pa 2009)

a3 Snavels i Arnold, 2008 WL. L477 at *4 iM lL) Pa ) .

Howard? t Bureau of Prisons, 2008 WL 318387 at *15(M D Pa)

governments to manage their work forces” (Pet. 3),

and impairs “the ability of state and local govern.

ments to manage their emplovees efhiciently.” (Pet.

14; see rd at 10 (according protection under the

Petuttion Clause would obstruct “necessary flexibility

as emplovers”), 27 (according protection under the

Petition Clause would impair “the efficient function-

ing of state and local governments”).

But precisely because San Filippo is limited to

invocation of formal remedial mechanisms, the retal-

latory practices at issue in these cases — far from

being an ordinary tool of efficient management — are

often forbidden by state or federal law in order to

safeguard those very mechanisms, and thus are

already unavailable to the state and local emplovers

at issue. Marrero v. Camden County Ba. of Soc

Services, on which petitioners rely, involved retaha-

tion against a county worker for filang an administra

live complaint and lawsuit under the New Jersey

Law Against Discrimination. 164 F Supp 2d at 468-

69. The terms of that very statute forbade the use of

such reprisals. N.S A. 10:5-12\d); see Marrero, 164

F.Supp.2d at 472-73. In Moore vo Dariington Town-

ship, 690 F.Supp. 2d 378 (WLD.Pa.2010), also rehed on

by petitioners, the plaintiff had been fired because he

sought and obtained an award under the state work-

ers compensation statute. Under Pennsylvama law

such retahatory dismissals, far from being an accept-

ed method of reducing employer costs, were ilegal.

Shick v. Shireyv, 552 Pa. 590, 716 A.2d 1231 (Pa.1998).

The instant case illustrates with particular

clanty why San Fi/ippo often has little if any impact

on the ability of state and local officials to oversee

their employees. Although petitioners insist that the

Borough Council should have been permitted, with-

out federal intervention, to implement the disputed

directives (Pet. 26), those very directives had been

largely invalidated by an arbitrator long betore this

case went to tmal, the decision below did not limit

“the Borough's right” to issue such directives, because

the arbitrator had already effectively resolved the

disputes about those directives. Petitioners do not

refer to or detend the retahatory demal of overtime

that occurred in 2006. Again, however, the Borough

cleariy had no “right” to deny that overtime pay; the

Department of Labor concluded that the Borough’s

actions had violated the Fair Labor Standards Act, a

determination which the Borough does not contest

Il. THIS CASE IS NOT AN APPROPRIATE

VEHICLE FOR RESOLVING THE QUES-

TION PRESENTED

The particular circumstances of this case make it

a poor vehicle for resolving the question presented

First and foremost, Guarmer was not a public

emplovee at the point in time when he engaged in the

assertedly protected activity. Guarnieri was fired on

February 7, 2003, filed the grievance on February 20,

2003, participated in the arbitration hearings in

August and September 2004, and was not rehired

24

until January 21, 2005. Petitioner asserts that the

decision below “conflicts with dectsions of this Court,

which have held that when ‘a public emplovee speaks

as an employee upon matters only of personal

interest,” that speech is not protected by the free

speech clause. (Pet. 2) But when Guarnieri filed the

grievance and pursued the arbitration that are at the

heart of this case, he simply was not “a public em-

plovee speakling] ... as an emplovee.” The decision in

Connick deals with statements made by individuals

while in the employ of a government entity. 461 U.S.

at 146 (employee expression”), 147 (‘an emplovee's

speech”; “[wihen a public employee speaks”), 149

(“eriticism by [public] employees”), 152 “the employ-

ees speech”)

Nothing in) Connick purports to establish a

standard for cases such as this in which an individual

acted or spoke only as a private individual, and later

suffered retahation when he or she became a public

employee. Connick makes clear that even) speech

about matters not of public concern ordinarily enjoys

constitutional protection. 461 U.S. at 147. An individ-

ual may to some degree prospectively waive the mht

to exercise some of those rights as a condition of

public employment, but assuredly individuals do not

by taking a government job tacitly agree to being

punished for speech or other actions that) were

1

See Pet. 4 when a public emplovee speaks”), 1% (“pubhe

emplovee expression”)

25

completely protected at the time it occurred. None of

the opinions which petitioners claim conflict with the

decision below involved the highly atypical cireum-

stances of the instant case.

If certiorari were granted in this case, there is a

substantial likelihood that Guarmeri would prevail

on this ground alone. Were this Court to conclude

that the public concern requirement of Connick does

not apply to statements made by individuals at a

point in time when they were not public emplovees,

the decision below would be affirmed without ever

reaching the question presented.

Second, in the particular circumstances of this

case the asserted rationale for denving protection to

petitions involving formal remedial mechanisms ~— the

asserted importance of not interfering with retalia-

tory action as a method of assuring efficient govern-

ance — simply does not apply. The actions challenged

in thts case had already been invalidated on other

grounds well before this case ever came to trial.

Providing a remedy for the asserted Petition Clause

violation in no way limited to the ability of the Bor-

ough to engage in the underlying practices, which it

had long before been compelled to abandon by the

actions of the arbitrator (in the second arbitration)

and by the United States Department of Labor.

Finally, the second proven retaliatory act (the

denial of overtime compensation) was taken as a

reprisal for Guarnieri’s filing of a section 1983 civil

rights action in a federal district court. Petitioner

26

argues that according protection under the Petition

Clause to actions not involving matters of public

concern would be “inconsistent with sound principles

of federalism and the separation of powers.” (Pet. 22)

(quoting Garcettr v. Ceballos, 547 U.S. 410, 423

(2006)). Whatever force that argument might have in

ordinary contexts, it makes absolutely no sense when

state or local officials seek to punish employees who

have sought redress in a federal court for a violation

of federal rights. To the contrary, sound principles of

federalism weigh heavily against an interpretation of

the Constitution which would permit — indeed, im-

munize — actions by state or local officials to obstruct

or punish access to the federal courts. Similarly, the

principles of separation of powers are assuredly

trampled, not vindicated, when executive or legisla-

tive officials interfere with or retaliate against em-

plovees who in good faith seek redress from Article I]

courts.

lil. THE DECISION BELOW IS NOT INCON-

SISTENT WITH THIS COURT'S DECI-

SIONS IN McDONALD AND CONNICK

Petitioners correctly acknowledge that the ques-

tion presented is an issue which this Court has not

resolved.

As the Third Circuit observed, this Court

“has not discussed the scope of the constitu-

tional right to petition in the context of an

allegedly retahatory discharge of a public

employee.” San Filippo, 30 F.3d at 435.

27

(Pet. 13). The petition never discusses, or even men-

tions, either the reasoning in San Filippo that the

Petition Clause protects access to the courts, or the

decisions of this Court — relied on in San Filippo —

regarding that right of access.

The petition nonetheless asserts that the decision

below (and in San Filippo) “flouts” the decisions of

this Court. (Pet. 11). While there may be a colorable

argument that the Petition Clause should be inter-

preted in the narrow fashion proposed by petitioners,

that assuredly is not a question which this Court has

already definitively determined.

(a) The petition asserts that “the Third Circuit's

rule violates this Court’s holding in McDonald v.

Smith |, 472 U.S. 479 (1985)] that the Petition Clause

protects expression no more than does the Free

Speech Clause.” (Pet. 14) (capitalization omitted); see

Pet. 16 (McDonald “held ... that speech and petition

should be treated alike”). This contention substantial-

ly overstates the holding in McDonald. The actual

issue in McDonald was far narrower — whether the

protections accorded to statements about matters of

public concern by the Petition Clause, like the protec-

tions of the Free Speech Clause, are unavailable

where a defendant sued for libel acted with

knowledge that his statements were false or with

reckless disregard of their veracity. 472 U.S. at 485.

In holding that the Petition Clause and the Free

Speech Clause are in this particular respect the

same, McDonald relied on the specific history of libel

claims. 472 U.S. at 483-84. That historical analysis is

28

obviously irrelevant in the instant case, which chal-

lenges, not the constitutionality of a libel action, but

the constitutionality of a retaliatory dismissal.

Petitioner relies primarily on this Court’s obser-

vation in McDonald that the purposes and historical

origins of the Petition Clause and Free Speech Clause

overlap. (Pet. 3, 14). But the Court’s observation is far

from a holding that the two clauses are identical.

Clearly they are not. The Free Speech Clause protects

many things — such as music, dance, speech unrelat-

ed to any possible action by the government — that

would fall outside of the Petition Clause; there is no

logical reason which the Petition Clause could not

also apply to some actions not protected (or not

protected to the same degree) by the Free Speech

Clause. This Court has repeatedly held that the

Petition Clause and Free Speech Clause are “not

identical.” NAACP v. Claiborne Hardware Co., 458

U.S. 886, 912 (1982); United Mine Workers v. Illinots

State Bar Ass'n, 389 U.S. 217, 222 (1967); Thomas v.

Collins, 323 U.S. 516, 530 (1945). Most importantly,

McDonald reiterated the very premise of the Third

Circuit decision in San Filippo, holding that the

“filing of a complaint in court is a form of petitioning

activity,” citing the same cases — California Motor

Transport and Bill Johnson's Restaurant — relied on

by San Filippo itself. Nothing in McDonald suggested

that the right of access to the courts recognized in

California Motor Transport and Bill Johnson's Res-

taurant is limited to lawsuits regarding matters of

public concern.

29

The petition describes McDonald as holding that

“there is no sound basis for granting greater constitu-

tional protection to statements made in a petition

*** than other First Amendment expressions.” (Pet.

4-5, quoting Mcdonald 472 U.S. at 485). Edited in

this way that passage from McDonald appears to

announce a general rule that the protections accorded

to petitions can be no broader than the protections

accorded to speech. But the missing words in the

ellipsis — “to the President” — gives the quoted pas-

sage a significantly narrower meaning. That passage

states only that there was no reason to accord to that

particular petition in McDonald itself greater protec-

tion under the Petition Clause than would be accord-

ed to the same statement by the Free Speech Clause.

Read without this key deletion, the passage in

Mcdonald clearly does not reach all other situations

to which the Petition Clause might apply, or hold (as

petitioners contend) that the Petition Clause would

never accord more protection to an individual filing a

lawsuit than the Free Speech Clause would accord to

that individual if, while a public employee, he made

statements on the same subject to his supervisor or

colleagues.

(b) Petitioners also argue that the issue in the

instant case is controlled by this Court’s decision in

Connick. Connick, however, did not concern or even

mention the Petition Clause.

30

The petition argues that

The First Amendment Free Speech and Peti-

tion clauses ... share a singular purpose: “to

assure unfettered interchange of ideas for

the bringing about of political and social

changes desired by the people.” Connick, 461

U.S. at 145 (quoting Roth v. United States,

354 U.S. 476, 484 (1957) ... ).

(Pet. 17). But the actual quotation in Connick does

not mention the Petition Clause; it refers, rather, that

“the First Amendment.” 461 U.S. at 145. In this

context “the First Amendment” clearly referred to the

Free Speech Clause. Obviously the listed purposes

were not the reason for the adoption of every provi-

sion in the First Amendment; they were not, for

example, the purposes for the adoption of Establish-

ment Clause. The full quote from Roth (quoted in

turn in Connick) states that the identified purpose

is the reason for “the protection given speech and

press,” not the rationale for everyone of the provisions

in the First Amendment. The sentence in Connick

following the quoted passage refers specifically (and

only) to “speech.” 461 U.S. at 145.

Petitioners object that the filing of a lawsuit or a

formal grievance by a government employee can be

disruptive because it will “engag[e] the government in

a time-consuming formal dispute.” (Pet. 19). Petition-

ers also object that lawsuits can be expensive to

defend. (Pet. 23). Certainly a city could save itself

time and money if it forbade all its employees to sue

the city (even in federal court), and if it could dismiss

any worker who did so. But this is a very different

governmental interest than was relied on by the

Court in Connick. Nothing in Connick suggested that

government emplovers are entitled to use threats of

reprisal to immunize themselves from lawsuits in

federal court by plaintiffs seeking to enforce the

Constitution and laws of the Umited States. And

where, as here, a municipal government has made

the considered judgment that its interests as an

employer would best be served by adopting a collec-

tive bargaining agreement that includes a right to

arbitration, nothing in Connick suggests it would be

important to construe the First Amendment in a

manner that would permit individual city officials to

punish or obstruct emplovees who seek to résort to

the very remedial mechanisms established bv the

ciiy’s OWN agreement.

v)

te

CONCLUSION

For the above reasons certioram should be de-

med.

Respectfully submitted,

CYNTHIA L. POLLICK

363 Laurel Street

Pittston, PA 18640

570) 654-9675

ERIC SCHNAPPER*

School ef Law

University of Washington

P.O. Box 353020

Seattle. WA 9S195

(206) 616-3167

schnappeéu.washingion edu

% e ° » ) . ? .

Counsel for Re sponaent

x 2» . a? 3 + . 7

Counsel of Recora

la

District Court Decisions

In the Third Circuit Since San Filippo

Applying the Connick Public Concern Standard

Burdge v. Arnold, 2010 US. Dist. LEXIS 82693 (M.D.

Pa. 2010) (not matter of public concern)

Cicchiello v. Beard, 2010 U.S. Dist. LEXIS 73289

(MLD. Pa. 2010) (not matter of public concern)

Clayton v. Citv of Atl. City, 2010 U.S. Mist. LEXIS

65111 (D. NJ. 2010) (matter of public concern)

Beckinger v. Thep. of Elizabeth, 697 F. Supp. 2d 610,

630 (WD. Pa. 2010) (matter of public concern)

Armbruster vo Cavanaugh, 2010 U.S. Dist. LEXIS

22288 (E.D. Pa. 2010) (not matter of public concern)

Ferraioli v. City of Hackensack Police Dep't, 2010 US.

Dist. LEXIS 8527 (D. N.d. 2010) cmatter of public con.

cern)

Aiellos v. Zisa, 2010 U.S. Dist. LEXIS 8640 (D. NV.

2010) (matter of public concern)

Hara v. Pa. Dept of Educ., 2010 U.S. Dist. LEXIS

9259 (M.D. Pa. 2010) (matter of public concern)

Burne v. Siderowic:, 2009 US. Dist. LEXIS 104820

(M.D. Pa. 2009) (not matter of public concern)

Malone v. Econ. Borough Mun. Auth., 669 F. Supp. 2d

982 (WD. Pa. 2009) (matter of public concern)

Baker v. City of Phila., 2009 U.S. Dist. LEXIS 100030

(E.D. Pa. 2009) (not matter of public concern)

Eddy v. Cordett, 2009 U.S. Dist. LEXIS 83590 (WD

Pa. 2009) (matter of public concern)

»

Wa

Keslosky v. Borough of Old Forge. 2009 Us. Dist

LEXIS 78212 (M.D. Pa. 2009) (matter of public con-

cern)

Dol ser v. Clearfield County, +09 US. Dist. LENIS

TT121 WD. Pa. 2009) (matter of public concern)

Karchnak v. Swatara Twp.. 2009 US. Dist. LENIS

58834 (M.D. Pa. 2009) Gmatter of public concern)

Ravitch v. City of Philadelphia, 2009 U.S. Dist

LEXIS 44352 (E.D. Pa. 2009) matter of pubhe con-

cern)

Aubrecht vo Pa. State Pouce, 2009 U.S. Dist. LENIS

39558 (WD. Pa. 2009) (not matter of public concern)

Conard v. Pa. State Police, 2009 US. Dist. LENIS

14830 (M.D. Pa. 2009) (not matter of pubhe concern)

Veggian v. Camden Ba. of Educ, 600 F. Supp 2d 615

CD. N.J. 2009) (not matter of public concern)

Bobeck v. Brownsville Area Sch Dist., 2009 US. Dist.

LEXIS 10015 (WD. Pa. 2009) (not matter of puble

concern)

Cook v. New Castle Area Sch. Dist. 2008 U.S. Dist.

LEXIS 101403 (WD. Pa. 2008) (matter of pubhe

concern)

Snyder vo Millersville Univ, 2008 U.S. Dist. LEXIS

97943 (E_D. Pa. 2008) (not matter of public concern)

Wong v. Thomas, 2008 US. Dist. LEXIS 83152 (D.

NJ. 2008) (not matter of public concern)

Lyons v. Mentzer, 2008 US. Dist. LEXIS 76914 (ED.

Pa. 2008) (not matter of public concern)

oa

Wiliams vo Alem, 2008 U.S. Dist. LEXIS 76814 (M.D

2008) (not matter of public concern)

Majewski vo Luzerne County, 2008 US. Dist. LEXIS

76813 (MLD. 2008) (not matter of pubhe concern)

Baldant v. Rep. of Millburn, 2008 U.S. Dist. LEXIS

74969 (DN. 2008) (matter of public concern)

Young v. Del. County Cmty. College, 2008 ULS. Dist

LENIS 72573 (E.D. Pa. 2008) (matter of public con-

cern )

Davis v. City of EL Orange, 2008 U.S. Dist. LEXIS

71198 (D. Nid. 2008) (matter of public concern)

Lapinski vo Ba. of Educ., 2008 US. Dist. LEXIS

GS8821 (D. Del. 2008) (matter of public concern)

Baranowski vo Waters, 2008 ULS. Dist. LEXIS 64802

(W.D. Pa. 2008) (not matter of public concern)

Fischer vo Transue, 2008 U.S. Dist. LEXIS 64818

(M.D. Pa. 2008) (not matter of public concern)

-ollock v. City of Phila., 2008 U.S. Dist. LEXIS 60764

(E.D. Pa. 2008) (matter of public concern)

Viola v. Borough of Throop, 2008 U.S.) Dist. LEXIS

88176 (M.D. Pa. 2008) (matter of public concern)

Balas v. Taylor, 567 F. Supp. 2d 654 (D. Del. 2008)

(matter of public concern)

Justice v. Danberg, 571 F. Supp. 2d 602 (D. Del. 2009)

(matter of public concern)

Gallen Ruiz vo. City of Phila., 2008 U.S. Mist. LEXIS

97357 (ED. Pa. 2008) (matter of public concern)

da

Johnson Cmtv. College of Allegheny County, 566

F.Supp. 2d 405 (WD. Pal 2008) (matter of public

concern }

Herman vy County of Carbon, 2008 0 S. Dist. LEXIS

46551 (MLD. Pa. 2008) (matter of public concern)

Nance vp City of Newark, 2008 US. Mist LEXIS

40503 (DN 2oa8) (matter of public concern)

DeCarmine-Bender b. Achievement House Sch., 2008

U.S. Dist. LEXIS 638 (ED. Pa 2008) (not matter of

Public concern)

Hoffman ¢ Dougher. 2008 US Dist. LENIS 2610

(M.D. Pa. 2008) ‘matter of public concern)

Zeglen v. Miller, 2007 US Dist. LEXIS 96735 (M.D.

Pa. 2007) (matter of public concern)

Savokinas v Pittston Nep.. 2007 US Dist. LEXIS

66979 (M_D. Pa. 2007) ‘Not matter of public concern)

Sata v Haddonfield Area Sch. Dist. 2007 US. Dist

LEXIS 67018 (D N.J. 2007) (not matter of public

concern )

Porter p Intermediate Unit 1, 2007 US. Dist LEXIS

65427 (WD. Pa 2007) (matter of public concern)

Gallagher » Borough Of Dickson City, 2007 US Dist.

LEXIS 63781 (M D. Pa. 2007) (matter of public con

cern)

ren vo NJ Transit Corp., 2007 US Dist. LEXIS

63333 (DN 2007) (not matter of public concern)

Johnson v. Borough of Palmyra, 2007 U S. Dist.

LEXIS 56628 (Dp N.J. 2007) inot matter of public

concern)

oa

Lombardi v. Morris County Sheriff's Dept, 2007 US

Dist. LEXIS 37176 (D. N.J. 2007) (not matter of

public concern)

Nittoli vo Morris County Ba. of Chosen Freeholders,

2007 US. Dist. LEXIS 37536 (D. NJ. 2007) (not

matter of public concern)

Garzella v. Borough of Dunmore, 184 L.R.R.M. 2500

(M.D. 2007) (not matter of pubhe concern)

Cali v. Borough of Dunmore, 2007 U.S. Dist. LEXIS

27939 (M_D. Pa. 2007) (not matter of public concern)

Morrison v. City of Reading, 2007 U.S. Dist. LEXIS

16942 (E.D. Pa. 2007) (matter of public concern)

Barron v. Wash. County Children & Youth Soc. Serv.

Agency, 2007 U.S. Dist. LEXIS 10146 (W. Pa. 2007)

(matter of public concern)

Butezwnski v. Luzerne County, 2007 U.S. Dist. LEXIS

6172 (M.D. Pa. 2007) (matter of pubhe concern)

Shingara v. Skiles, 2007 U.S. Dist. LEXIS 5052 (M.D.

Pa. 2007) (matter of hie a concern)

Scott v. Ba. of Fduc., 2006 U.S. Dist. LEXIS 93723 (D.

N.J. 2006) (matter of public concern)

Farber v. City of Paterson, 2006 US. Dist. LEXIS

86548 (D. NJ. 2006) (matter of public concern)

Carmichael v. Pennsauken Tkp. Bd. of Educ., 462

F Supp. 2d 601 (D. N.J. 2006) (not matter of public

concern)

DeLuzio o Monroe County, 2006 U.S. Dist. LEXIS

78900 (M.D. Pa. 2006) (matter of public concern)

6a

Doty vo Pike County Corr Facility, 2006 U.S. Dist.

LEXIS 72093 (M.D. Pa. 2006) (not matter of public

concern)

Shankle vo Bell, 2006 U.S. Dist. LEXIS 69959 (W_D.

Pa. 2006) (not matter of public concern)

Hoffman vo Dougkher, 2006 U.S. Dist. LEXIS 67286

(M.D. Pa. 2006) (matter of public concern)

Del Conte v. Borough of Ambler, 2006 U.S. Mist.

LEXIS 64941 (E.D. Pa. 2006) (not matter of public

concern)

Schlichter v. Limerick Tep., 2006 U.S. Dist. LEXIS

57399 (E.D. Pa. 2006) (matter of public concern)

Barry v. Luzerne County, 447 F. Supp. 2d 438 (M.D.

Pa. 2006) (matter of public concern)

Murphy v. Orloff, 2006 U.S. Dist. LEXIS 49941 (ED.

Pa. 2006) (matter of pubhe concern)

Day v. Borough of Carlisle, 180 LR-R.M. 2022 (M.D.

Pa. 2006) (matter of public concern)

Wilcoxon v. Red Clay Consol. Sch. Dist. Bd. of Educ.,

437 F. Supp. 2d 235 (D. Del. 2006) (matter of public

concern)

Hartley v. Pocono Mt. Regl Police Dept, 2006 U.S.

Dist. LEXIS 95838 (M.D. Pa. 2006) (matter of public

concern)

Flammer v. County of Morris, 2006 U.S. Dist. LEXIS

17804 (D. N.J. 2006) (matter of public concern)

Grooden vo Thep. of Monroe, 2006 U.S. Dist. LEXIS

9023 (D. N.J. 2006) (matter of public concern)

7a

Haynes v. Smith, 2006 U.S. Dist. LEXIS 9022 (D. NJ.

2006) (matter of public concern)

Rutz v. Morris County Sheriff's Dept, 2006 U.S. Dist.

LEXIS 497 (D. N.J. 2006) (not matter of public con-

cern)

Hock v. County of Bucks, 2005 U.S. Dist. LEXIS

34608 (ED. Pa. 2005) (not matter of public concern)

Convette v. Westmoreland County, 2005 U.S. Dist.

LEXIS 403847 (WD. Pa. 2005) (not matter of public

concern)

Jones v. Ind. Area Sch. Dist.. 397 F. Supp. 2d 628

(W.D. Pa. 2005) (matter of public concern)

Smith v. Cent. Dauphin Sch. Dist., 419 F. Supp. 2d

639 (M.D. Pa. 2005) (matter of public concern)

Smith v. Tep. of Aleppo, 2005 U.S. Dist. LEXIS 44219

(W.D. Pa. 2005) (matter of public concern)

Competello v. LaBruno, 2005 U.S. Dist. LEXIS 27878

(D. N.J. 2005) (not matter of public concern)

Cortes v. Univ. of Med. & Dentistry, 391 F. Supp. 2d

298 (D. N.J. 2005) (matter of public concern)

Williams v. LaCrosse, 2005 U.S. Dist. LEXIS 6807

(E.D. Pa. 2005) (not matter of public concern)

VanTassel v. Brooks, 355 F. Supp. 2d 788 (W.D. Pa.

2005) (matter of public concern)

Rottmann v. Pa. Interscholastic Ath. Ass'n, 349

F. Supp. 2d 922 (W.D. Pa. 2005) (not matter of public

concern)

Sa

Cataldo v. Moses, 361 F. Supp. 2d 420 (not matter of

public concern)

Springer v. Henry, 2004 U.S. Dist. LEXIS 18642 (D.

Del. 2004), aff'd, 4385 F.3d 268 (3d Cir. 2006) (matter

of public concern)

Kowalski v. Scott, 2004 U.S. Dist. LEXIS 9935 (E.D.

Pa. 2004), affirmed by 126 Fed. Appx. 558 (3d Cir.

2005) (matter of public concern)

Taylor v. City of Philadelphia, 2004 U.S. Dist. LEXIS

9422 (E.D. Pa. 2004) (not matter of public concern)

McKee v. Hart, 2004 U.S. Dist. LEXIS 11685 (M.D.

Pa. 2004), rev'd on other grounds, 2006 U.S. App.

LEXIS 345 (3d Cir. Pa., Jan. 6, 2006) (matter of

public concern)

Bradshaw v. Twp. of Middletown, 296 F. Supp. 2d 526

(D. N.J. 2004) (not matter of public concern)

Bowen v. Parking Auth. of Camden, 2003 U.S. Dist.

LEXIS 16305 (D. N.J. 2003) (matter of public con-

cern)

Nichol v. Arin Intermediate Unit 28, 268 F. Supp. 2d

536 (W.D. Pa. 2003) (matter of public concern)

Reppert v. Reading Area Sch. Dist., 2003 U.S. Dist.

LEXIS 7769 (E.D. Pa. 2003) (not matter of public

concern)

Stiner v. Univ. of Dei., 243 F. Supp. 2d 106 (D. Del.

2003) (not matter of public concern)

Rinehart v. Mt. Penn Borough Mun. Auth., 2002 U.S.

Dist. LEXIS 24724 (E.D. Pa. 2002) (matter of public

concern)

Ya

Hoffman v. Thome, 147 Lab. Cas. (CCH) P59,690

(E.D. Pa. 2002) (matter of public concern)

Llovd v. City of Bethlehem, 2002 U.S. Dist. LEXIS

19692 (E.D. Pa. 2002) (matter of public concern)

Zugarek v. S. Tioga Sch. Dist., 214 F. Supp. 2d 468

(M.D. Pa. 2002) (not matter of public concern)

Eisen v. Temple Univ., 2002 U.S. Dist. LEXIS 12839

(E.D. Pa. 2002) (matter of public concern)

Jackson v. Del. River & Bay Auth., 220 F. Supp. 2d

344 (D. N.J. 2002) (not matter of public concern)

Costenbader-Jacobson v. Pa., 227 F.Supp. 2d 304

(M.D. Pa. 2002) (matter of public concern)

Shehee v. City of Wilmington, 205 F. Supp. 2d 269, rev’

other grounds, 67 Fed. Appx. 692 (3d Cir. 2003)

(matter of public concern)

Testa v. City of Philadelphia, 2002 U.S. Dist. LEXIS

9248 (E.D. Pa. 2002) (matter of public concern)

Moleski v. Cheltenham Twp., 2002 U.S. Dist. LEXIS

12311 (E.D. Pa. 2002) (not matter of public concern)

Morrison v. Phila. Hous. Auth., 2002 U.S. Dist. LEXIS

6272 (E.D. Pa. 2002) (matter of public concern)

Grimm v. Borough of Norristown, 226 F. Supp. 2d 606

(E.D. Pa. 2002) (not matter of public concern)

Myers v. Wilkes-Barre Twp., 204 F.Supp. 2d 821

(M.D. Pa. 2002) (not matter of public concern)

Hitchens v. County of Montgomery, 2002 U.S. Dist.

LEXIS 2803 (E.D. Pa. 2002) (matter of public con-

cern)

10a

Hinshillwood v. County of Montgomery, 2002 U.S.

Dist. LEXIS 2804 (E.D. Pa. 2002) (matter of public

concern)

Sunkett v. Misct, 183 F. Supp. 2d 691 (D. N.J. 2002)

(matter of public concern)

Bianchi v. City of Phila., 183 F. Supp. 2d 726 (E.D.

Pa. 2002) (matter of public concern)

Cipriant v. Lycoming County Hous. Auth., 177

F. Supp. 2d 303 (M.D. Pa. 2002) (not matter of public

concern)

Cooper v. Cape May County Bd. of Soc. Servs., 175

F. Supp. 2d 732 (D. N.J. 2001) (not matter of public

concern)

Vassallo v. Timoney, 2001 U.S. Dist. LEXIS 16781

(.D. Pa. 2001) (matter of public concern)

Miller v. Hogeland, 2001 U.S. Dist. LEXIS 16538

(E.D. Pa. 2001) (matter of public concern)

Johnson v. Yurick, 156 F. Supp. 2d 427 (D. N.J. 2001)

(matter of public concern)

Lynch v. City of Phila., 166 F. Supp. 2d 224 (E.D. Pa.

2001) (matter of public concern)

Costello v. City of Brigantine, 17 1.E.R. Cas. (BNA)

1225 (D. N.J. 2001) (matter of public concern)

Dooley v. City of Philadelphia, 153 F. Supp. 2d 628

(E.D. Pa. 2001) (matter of public concern)

Townes v. City of Philadelphia, 2001 U.S. Dist. LEXIS

6056 (E.D. Pa. 2001) (not matter of public concern)

lla

Miles v. City of Phila., 144 Lab. Cas. (CCH) P59,336

(E.D. Pa. 2001) (matter of public concern)

McCullough v. City of Atlantic City, 137 F. Supp. 2d

557 (D. N.J. 2001) (matter of public concern)

Richardson-Freeman v. Norristown Area Sch. Dist.,

2001 U.S. Dist. LEXIS 2467 (E.D. Pa. 2001) (matter

of public concern)

Radicke v. Fenton, 17 1.E.R. Cas. (BNA) 603 (E.D. Pa.

2001) (matter of public concern)

Watford v. Lincoln Univ., 2000 U.S. Dist. LEXIS 8820

(E.D. Pa. 2000) (matter of public concern)

Marchionni v. SEPTA, 2000 U.S. Dist. LEXIS 7808

(E.D. Pa. 2000) (not matter of public concern)

McHugh v. Board of Educ., 100 F. Supp. 2d 231 (D.

Del. 2000) (matter of public concern)

Sokol v. Reading Regional Airport Auth., 2000 U.S.

Dist. LEXIS 8735 (E.D. Pa. 2000) (matter of public

concern)

Carlino v. Gloucester City High Sch., 57 F. Supp. 2d 1

(D. N.J. 1999) (matter of public concern)

Lloyd v. Jefferson, 53 F. Supp. 2d 643 (D. Del. 1999)

(matter of public concern)

Satterfield v. Borough of Schuylkill Haven, 12

F.Supp. 2d 423 (E.D. Pa. 1998) (matter of public

concern)

Poli v. SEPTA, 1998 U.S. Dist. LEXIS 9935 (E.D. Pa.

1998) (not matter of public concern)

12a

Killian v. Muldowney, 1998 U.S. Dist. LEXIS 8289

(E.D. Pa. 1998) (not matter of public concern)

Eible v. Houston, 8 Am. Disabilities Cas. (BNA) 557

(E.D. Pa. 1998) (not matter of public concern)

Morgan v. Rossi, 1998 U.S. Dist. LEXIS 5087 (E.D.

Pa. 1998) (matter of public concern)

Shovlin v. University of Med. & Dentistry, 50 F. Supp.

2d 297 (D. N.J. 1998) (matter of public concern)

Wentling v. Honey Brook Twp., 1998 U.S. Dist. LEXIS

2429 (E.D. Pa. 1998) (matter of public concern)

Hall v. Kutztown Univ., 75 Fair Empl. Prac. Cas.

(BNA) 1440 (E.D. Pa. 1998)(matter of public concern)

James v. Valley Twp., 1998 U.S. Dist. LEXIS 41 (E.D.

Pa. 1998) (matter of public concern)

Lombardi v. Cosgrove, 7 F.Supp. 2d 481 (D. NJ.

1998) (not matter of public concern)

Smith v. Borough of Pottstown, 1997 U.S. Dist. LEXIS

9178 (E.D. Pa. 1997) (matter of public concern)

Connor v. Clinton County Prison, 963 F. Supp. 442

(M.D. Pa. 1997) (not matter of public concern)

Bowles v. City of Camden, 1997 U.S. Dist. LEXIS

5370 (D. N.J. 1997) (matter of public concern)

Hutt v. Alford, 1997 U.S. Dist. LEXIS 4130 (E.D. Pa.

1997) (matter of public concern)

Coover v. Saucon Valley Sch. Dist., 955 F. Supp. 392

(E.D. Pa. 1997) (not matter of public concern)

Sa

lee-Patterson vo New Jersey Transit Bus Operations,

957 F Supp. 1391 (D. Nod. 1997) (matter of pubhe

coneern)

Cuffeld vo Nix, 1996 ULS. Dist. LEXIS 18722 (E.D. Pa

1996) (not matter of public concern)

McCusker v. Crtv of Atlantic Citv, 959 F. Supp. 669

(DN. 1996) (not matter of pubhe concern)

Briles v. Middle Thep. Ba. of Educ., 1996 U.S. Dist.

LENIS 16660 (D. NJ. 1996) (matter of public concern)

Fogarty v. Boles, 938 F Supp. 292 (ED. Pa. 1996)

(matter of public concern)

Bloch vo Temple Univ., 9389 F Supp. 387 (ELD. Pa.

1996) (matter of public concern)

Castle v. Colonial Sch. Dist., 933 F. Supp. 458 (ED

Pa. 1996) (matter of public concern)

Sulltwan vo. Houstoun, 928 F.Supp. 521 (MLD. Pa

1996) (matter of public concern)

Smith vo Barnes, 1995 U.S. Dist. LEXIS 14150 (MD

Pa. 1995) Gnatter of whic concern)

Edmundson v. Borough of Kennett Square, S881

F.Supp. 188 (E.D. Pa. 1995) (not matter of pubhe

concern)

Bedford v. Southeastern Pa. Transp. Auth., S67

F.Supp. 288 (E.D. Pa. 1994) (not matter of public

concern)

Mraz v. County of Lehigh, 862 F. Supp. 1344 (E_D. Pa.

1994) (matter of public concern)

l4a

Third Circuit Decisions Since San Filippo

Applying the Connick Public Concern Standard

Cindrich vo Bisher, 841 Fed. Appx. 780 (3d Cir, 2009)

(not matter of public concern)

Grorum vo Sessoms, S561 F 38d 179 (8d Cir POOY) cnot

matter of public concern)

Miller vo Clinton County, 544 FSd 542 (8d Cir, 2008)

(net matter of public concern)

Skrutski vo Marut, 288 Fed. Appx. S038 (3d Cir, Pa

2008) (matter of public concern)

Rerily ov. Citv of Atl. Crtv, 5382. F38d 216 (8d Cir, 2008)

(matter of pubhe concern)

Aline v. Valentic, 283 Fed) Appx. 913 (8d Cir, 2008)

(not matter of public concern)

Stump co. Richland Nep., 278 Fed. Appx. 205 (8d Cir.

2008) Guatter of pubhe concern)

Beli v. Citv of Philadelphia, 275 Fed. Appx. 187 (3d

Cir, 2008) (not matter of pubhe concern)

Borden vo Sch. Dist., 523 F.8d 153 (8d Cir, Nudd. 2008)

(not matter of publie concern)

Meenan vo. Harrison, 264 Fed. Appx. 146 (8d Cir.

2008) Cmatter of public concern)

Roberts vo Newark Pub. Schs, 232 Fed. Appx. 124 (3d

Cir, 2007) (not matter of public concern)

Maitsev v. Westmoreland County, 185 Fed. Appx. 126

(8d Cir, 2006) (not matter of pubhe concern)

loa

Hall v SEPTA, 167 Fed. Appx. 902 (3d Cir, 2006) (not

matter of public concern)

Grigsby vo Aane, 157 Fed. Appx. 539 (8d Cir, 2005)

(not matter of pubhie concern)

McGreevy v Stroup, 418 FS8d 859 (38d Cir. 20085)

(matter of puble concern)

Zelinski vo Pao State Police, LOS Fed. Appx. 700 (3d

Cir, 2004) (not matter of public concern)

Reppert vo Reading Area Sch. Dist., YS Fed. Appx. 149

(8d Cir, 2004) (not matter of pubhe concern)

Curinga vo Citv of Clairton, 357 F38d 3805 (8d Cir

2004) (matter of public concern)

Feldman vo Cmtv. College of Allghenev, 85 Fed. Appx

S21 (8d Cir, 2004) (not matter of publie concern)

Brennan vo Norton, 350 F Sd 899 (Sd Cir 2POOS) Umat-

ter of public concern)

Ober vo Evanko, 80 Fed. Appx. 196 (3d Cir 2003) (not

matter of pubhe concern)

Walker vo City of Camden, 57 Fed Appx. 943 (Sd Cir

2003) (matter of public concern)

Bell vo Ostrow, 45 Fed. Appx. 152 (8d Cir, 2002)

(matter of public concern)

Johnson vo Yurick, 39 Fed. Appx. 742 (8d Cir, 2002)

umatter of publhe concern)

Frver vo. Noecker, 34 Fed. Appx S52 (8d Cir, 2002)

(matter of public concern)

Baldassare vo New Jersey, 250 F.3d 188 (Sd Cir, 2001)

(matter of pubhe concern)

loOa

Brown o Arments, 247 FSd 69 (8d Cir, 2OOL) (not

matter of publie concern)

Azzaro vo County of AVegheny, 110 FSd 968 (38d Cir

1997) Cmatter of public concern)

Grven vo. Philadelphia Hous. Auth., 105 F.3d S82 (3d

Cir 1997) Gnatter of publ concern)

Pro io. Donatucer, 81 PSd 1283 (8d Cir, 1996) (matter

of pubhe concern)

Watters vo Citv of Philadelphia, 55 F.3d S86 (8d Cir

1995) (matter of public concern)

Feldman v. Philadelphia Hous. Auth., 438 F.3d 823 (Sd

Cir Pa. 1994) cmatter of pubhe concern)

San Filippo v. Bongiovann:, 30 F3d 424 (Sd Cir, No

1994) (matter of public concern)