# Opposition Brief — Borough of Duryea v. Guarnieri

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2011
- **Citation:** 564 U.S. 379

## Text

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)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA43085015_0595%3A03. Public record. Not legal advice.