# Amicus Curiae Brief — Borough of Duryea v. Guarnieri > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA43085015_0595%3A13 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2011 - **Citation:** 564 U.S. 379 ## Text ce V2 a No O8.1476 LOrscroe Jn the Supreme Court of the Anited States -_———s - - _—--+-— — BOROUGH OF DURYERA, PENNSYLVANIA, et al , Pefidioners, CHARLES | GUARNIERL JR, On Writ of Certioran to the Umited States Court of Appeals tor the Third Cireunt Brief of Florida, Alabama, Colorado, Delaware, Hawaii, Illinois, Indiana, Louisiana, Maine, Michigan, Mississippi, New Jersey, Ohio, Oklahoma, Pennsvivania, South Dakota, Tennessee, Texas, Utah, West Virginia and Wrvyoming In Support of Petitioners ~- —————— ee « BILL MECCOLLUM Attorney General of Flomda SCOTT D MAKAR’ Sohertor General RONALD A LATHAN Deputy Sohoutor General PL-O1, Phe Capitol Tallahassee, FL 2499 1050 BHO-4 14-3800 ShH0-410-2072 tan Counsel tor Amie: Curiae , , 7 . ( OUNSEE O Re are: Ww Trov King Attorney General State of Alabama S00 Dexter Avenue Montgomery, AL. 36130 John Suthers Attorney General State of Colorado 1o25 Sherman Street Denver, CO 80208 Joseph Ro Biden, 111 Attorney Genera! State of Delaware S20 NN) French Street Wilmington, DE Pos) Russell A Suzuki Acting Attorney General State of Hawan 425 Queen Street Honelulu, HT 986803 Lasa Madigan Attorney General State of Hiinors LOO W Randolph st. Ivth Floor Chiceage, TL 60601 Gregorv FL Zoeller Attorney General State of Indiana 202 WW Washington Street IGC- South. Fitth Floor Indianapohs IN teva eames D “Buddy” Caldwell Attorney General State of Louisiana Lomstana Department of dustice PO) Box 84005 Raton Rouge, LA *OSO4 sanet To Mills \ttorneyv General State of Maine Six State House Station Augusta, ME O4303 Machaclh A Cox Attorney General State of Michigan POO Box deel. Lansing, MI 48909 dim tood ttornev General State ot Mississippi Post Office Bon 220 Jackson, MS 38205 Paula TO Dow Attornes General State of New Jersey Richard J Hughes Justice Complex Yo Market Street PO Box O98 Trenton, Neb OS625 Richard Cordray Attorney General State of Ohio 30 East Broad Street 17> Floor Columbus, OH 438215 WA) Drew Edmondson Attorney General State of Oklahoma S313 NE 21M Street Oklahoma City, OK P3VOD Thomas W. Corbett. Jr Attorney General State of Pennsvisania loth Floor, Straw berrs Square Harrisburg, PA 1/1 to Marty | dackles Attorney Genera! State of South Dakota 1302 FE Highway 14, Sure 1 Pierre, SD S7507-8501 Robert Eo Cooper, dr Attorney General State of Tennessee Office of the Attornes General 425 Fifth Avenue North Nashvalle, TN O/243 Greg Abbott \ttorney General State of Texas PO Box 12548 Austin, TN 78711-2548 Mark L. Shurtlet? Attorney General State of Utah Utah State Capitol Suite #230 PO Bow 142a20 Salt Lake Citv, UT S4ti4 Darrell Vo MeGraw, dr Attorney General State of West Virginia Office of the Attorney General State Capitol, Room Je k Charleston, WW 28305 Bruce A Salvbure Attorney General State of Wvoming \ttorneyv Generals Office 1G State Capitol Chevenne, WY S2oor ‘ QUESTION PRESENTED Can pubhe emplovees sue their emplovers under the Petition Clause for adverse employment actions Allegedly resulting from the emplovees’ petitionmy on matters of purely private concern” u TABLE OF CONTENTS QUESTION PRESENTED TABLE OF AUTHORITIES STATEMENT OF AMICL INTEREST SUMMARY OF ARGUMENT ARGUMENT lL = =Retahation Claums Under the Petition Clause on Matters that Amount to Personal Grievances Contravene this Court’s Precedents and Ll ndermine State and Local Laws Addressing These Common Workplace Disputes A. Restraints on or discipline for publhe emplovees workplace speech or petitwoning are permissible where emplovees do not speak or petition as a “oizen” and their speech or petitioning mnpheoeates no matters of “puble concern”. Bo The Third Circuit's approach imores the Important protections of state and local “whistleblower” laws and collective bargaining agreements The effieacy of state whistleblower laws and anti retahation provisions mav be undermined by Petition Clause retahation clarms related to personal matters ~- 1\ 0 16 ih 2 The etfheacy of collective bargaming agreements, labor laws, and related common law dectrines mav be undermined by Petition Clause retahation claims related to personal matters red eat 2a 4 te EL lh aE ae eo ene ree oa 25 lV TABLE OF AUTHORITIES Cases Adair v. Charter Cnty. of Wayne, 452 F.3e 462 (th Cir. 2006) ooo... ccccccicceecccccccscece. 4 Brennan v. Norion, oe ee ee ae oe, BONS. Oe eg Connick v. Myers, 1G1 U.S. 138 (1963)... cies ccccccccecccecceeee MESSE Fla. Dept of Transp. v. Fla. Comm'n on Human Relations, S842 So. 2d 253 (Fla. Dist. Ct. App. 2003).........17, 19 Foraker v. Chaffinch, Soe eae ee Ge Ge, Bee... ee ee 4 Garcett: v. Ceballos, 547 U.S. 410 (2006)... mse chia aed saulaiecleec mn Griglev v. Atlanta, 136 F.3d 752 (ith Cir. 1998) rer Hoffmann vo Mayor, Councilmen, & Citizens of Liberty, 905 F.2d 229 (8th Cir, 1990) ed 1D Kirby vo. Elreabeth City, N-C., O88 F.8d 440 (4th Cir, 2004) sian tin aca cence causa dees a Martin Cnty. v. Edenftela, GOY So. 2d 27 (Fla. 1992). 00. adibobcvem ae Martin v. Del City, 179 F.3d 882 (l0th Cir. 1999) woos 4 MeDonald v. Smith, re ee ee i ixicencccesecensccnrectassansnnnsdustauueersescune 14 Pickering v. Ba. of Educ., SE a I a Seeeens ciebawanaseusadammmens 7 Rathyen v. Litchfreld, Be Oe ee ee ee, BEIIOD veeveccccncccosccensscssnctesseseces 4 Rendish v. Tacoma, RZD F.DG LDIS CHC Cit. ROBT) o.cccnccccccsccccccessocescecseses A Rosa v. Dept of Children & Families, 915 So. 2d 210 (Fla. Dist. Ct. App. 2005)............... 18 San Diego v. Roe, a an Se ITI asi sicerenetcashasntcrciineansunens veatieenseneiioausowsle 6 San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir. 1994)......................... 4.5, 10, 11 Stone v. Everglades City, Fla., 2007 WL 1247979 (M.D. Fla. April 30, 2007)........ 18 Tang v. RL, Dep't of Fiderly Affairs, fe wei ft SR reen en proE 4,12 United States v. Natl Treasury Emps. Union, Se atts GE A araicciepniaetrcerpeemnassassiscssuesamiatonand 6.15 Walker v. Dept of Veterans Affairs, 925 So. 2d 1149 (Fla. Dist Ct. App. 2006).....0000..... 19 vi White Plains Towing Corp. v. Patterson, 991 F.2d 1049 (2d Cir. 1993)...................0.:.s0ccsseeseeee 4 Yatvin v. Madison Metro. Sch. Dist., 840 F.2d 412 (7th Cir. 1988) ......... Sl aaeaeae hanearnay 4,12 Statutes 5 Ill. Comp. Stat. 315/10(a)(3).......0.. eee 22-23 43 Pa. Cons. Stat. § 1101.1201(a)(4)....0 ee 23 Alaska Stat. § 23.40.110(a)(4)..0000 oe. 22 Cal. Gov't Code § 36.19(a).....................cccccccsscccsecseseeee 22 Conn. Gen. Stat § 4-Gldd ........................ccecccceeccssecoees 20 Conn. Gen. Stat. § 5-272(a)(5) «0.0.0... eee ceceeeeseeeeeeenee DZ Conn. Gen. Stat. § 31-51 ou... eet ce ecececceseeeees 20 D.C. Code Ann. § 1-617.04(a)(A) oo... ccc cece cee eee ee 22 Del. Code Ann. tit. 19, § 1307(a)(4) ........00000..eeeeee. 22 Del. Code Ann. tit. 29, § 5115 (20038).........000.0... ee. 20 ae, Se, SH DRO Ce ov ccicsccsnsccnsccsccnscosssccccscascuss 20 Fla. Stat. § 112.3187(2) .ccccccccocccoccscccssseseseseseseseseeveve 17 eh, SO, BE er Piessccccticecenasonsscsesiessunndaucsen 17 Bs BE Oe Be I wis ccictsdeecasectncsstncoensccastesdecss 17 Vill a GE, SD iiscstsiennscasevcissccsrcssetesessniscce 17 Ps ls Se IR iiiicscncnsssnsrvsecesieieseniinncesioess 18 i, es Oe Be ilicccccrccdsnssinestevacnsccocessctesesses 18 Pia. Stat. § 11BS.DISSECUNMG)........ccccccosccsccccocscccscscecceees 19 Eh, BOGS. BF Ra Soin sscccnccsccnccnesseccsonsssnssoneses 19 SP, Se te IED visiiiicsdcmcsccenesnvesinndecsccneocssnniies 22 Fla. Stat. §§ 448.101-448.105 .o...ccccccccececececececsesceeeeees 17 OE EER peal ant nee Dae ae 20 FS, TEs Te MII i icrenissincicccsinssantncdatesenanevubessieident 22 Haw. Rev. Stat. § 378-61 (1993) .......00. eee eee 20 Towa Code § 20.10(2)(d)...............cccccccsscscceccsscesccsecceees 23 Kan. Stat. Ann. § 75-4333(b)(4) ..0....0 cece cece cence eee eee 23 Ky. Rev. Stat. Ann. § 61.101 (West 2005) ................. 20 Mass. Gen. Laws ch. 149, § 185 (West 2004) ............ 20 Mass. Gen. Laws ch. 150E, § 10(a)(4)............00.00...005. 23 Md. Code Ann. State Pers. & Pens. § 3-306(a)(5) ..... 23 Me. Rev. Stat. tit. 26, § 979-C(1)(D) ......0. eee 23 Me. Rev. Stat. tit. 5, § 4572-A....................c.ccccceccsssees 20 Mich. Comp. Laws § 423.209 ................eceeeeceeeeeeeeeeeees 23 vin Minn. Stat. § 179AL13¢2)(4).0000000.... ae et) | Rae Mont. Code Ann. § 89-81-401¢4) .... N.D. Cent. Code § 34-01-20... N.H. Rev NH. Rev. N.H. Rev. N.J. Stat. N.J. Stat. N.. Stat. Stat. Ann. § 273-A:S(1)\(d) Stat. Ann. § 275-E:1 (Supp. 2008) .. ean Amit S 34: TSA-5. 46RD) 5 ooeccecisscecscecccenss. FN WE vss sven eas se Chatfinck, 50) F 8a 232 (8d Cir YOO) The ten other circuit courts that have considered this question have held that a pubhe emplovee’s claim under the Petition Clause must invelwe a matter of pubhe comeern See Adair 4 Charter Cnty of Wayae, 452 Fld as82) 482 (6th Cir 2O0G), Aird Blicaheth City. NC. 388 F 3d 440. 446 (4th Cir 2004), Martin t Del City, 179 F 3d S82. SS7-89 (lOth Cir 1999). Tanga A? Dep tof Riderly Affairs, 1638 F 8d 7. 11-12 (ist Cir 19988), Grigley Atlanta, 1386 Fad 7a2. TSS (lth Cir, 1998), Renadish 3: Tacoma, 123 BF &d lie L220 eskth Cir 1997) Waite Plains ownage Corp oo Paterson, 991 F 2d 1049) 1059 (2d Cir 1993), Hoffmanne Maver, Council, & Citizens of Liberty, 95 F 2d 229, 234 (Sth Cir 199O), Rathjpen oo LitcAneld, 878 F 2d Sae, 841 (ath Cir 198%) Yatoan oc Vadison Meira Sch Mst. S40 F Od 412 (7th Cir, 198s) + discrpline involves determining whether the emplovee Was speaking as a “ertiven” about a matter of “publie concern” See Garcetin oo Cebailos, 547 US. 410, 417 (2006), The First Amendment does not imsulate emplovee speech from disciplinary sanctions when speaking on subjects that relate exclusively to offteral wb responsiiuhties See rd at 424 The Third Cireuit distinguishes the Petition Clause from the Free Speech Clause on the grounds that the former has, histomeally, been understood to afford broader protections. See San Filippo, 30 F 3d at 442-4428 (desenmbing the common law oryins of the Petition Clause and observing that at) was) more expansive in appheation and protections than. the Free Speech Clause) The Third Crreuit’s approach. however, ws flawed for two reasons: (1) this Court's First Amendment precedents do not recogmizve a broader scope of protection under the Petition Clause Where the balance of emplover-emplovee rights is at stake and private disputes are at issue, and (2) it disregards the wide swath of existing state and local protections for emplovees such as whistleblower statutes and collective bargaiming agreements, which protect publa sector emplovees trom unjust discrimination based oon the tihng of | private grievanees. Given these flaws, no reason exists te uphold the addition of another laver of protection for private disputes under the Petition Clause ty A. Restraints on or discipline for public emplovees’ workplace speech or petitioning are permissible where employees do not speak or petition as a “citizen” and their speech or petitioning implicates no matters of “public concern.” Pubhe emplovees do not relinquish their First Amendment mghts by accepting an offer to work tn the public sector, See United States vo. Natl Treasury Rmps Union, '13 US. 454. 465 (1995) Nor are such rights untettered) Rather, the limiting principle on the exercise of First Amendment myghts is that pubhe emplovees are not entitled to protections when the exercise of their mghts invelves a minor personal grievance between emplover and emplovee The threshold ainquirv regarding whether a pubhe emplovees speech is insulated from disciphne involves determining whether the speech at) issue unpheates a matter of “pubhe concern.” See, eg, San Diego v. Roe, 5438 ULS. 77, 82-88 (2004) (citing Corrnick v Myers, 461 US) 1388, 1438 (1983))) As this Court has recognized, competing principles come into play when public emplovees speech is balanced against the important interests of the government as an emplover. This Court has sought to bridge these principles in a series of cases addressing the scope of First Amendment rights of public emplovees. These cases do not provide any principled basis to jettison the limiting principle that in determining the First Amendment rights of public emplovees, courts must scrutinize whether a matter of pubhe concern was involved. The degree of protection atforded by the kirst Amendment should not turn on the manner in Which the speech is) denominated, petitioning activities should Hot be = entitled to greater - constitutional protections than speech activities In Connick o Myers, a public emplovee (Mvers) opposed being transterred to a different division by her supervisor 461 US. at 140. In response, Myers circulated a questionnaire in her office, asking fellow employees, among other things, how thev would characterize office morale and whether the emplovees had any confidence in their supervisors Myers was subsequently terminated, ostensibly because she had refused to accept her transfer. In analyzing Mvers’ First Amendment claim, this Court invoked the balancing test apphed ino Pickering cv. Board of Education’ to determine whether Mvers’ speech was protected from discipline. This Court noted that Myers’ dispute with her emplover did not impheate a matter of pubhe concern simply because the "Peckerine > Board of Education, 391 US. 563 (1968), involved a school teacher (Pickering) who sent a letter to the local newspaper challenging expenditures made by the local Board of Education Pickering was emtical of measures that had been enacted to increase revenue for the school district. These ericisms, as at turned out, were erroneous. He was dismissed trom hus teaching position on the basis that his letter threatened the effective functioning of the Board's admimstration of ots schools Jad at 964-66 Recogmizing the competing interests of the Board, which was required to effectively manage tts schools, and Pickermng'’s mht to speak out as a citizen on matters of puble importance, this Court observed that a balance needed to be struck “between the interests of the teacher, as a citizen, in commenting upon matters of pubhe concern and the interest of the State, as an emplover, in promoting the effimency of the public services it performs through its emplovees”” Jd at S68. The court held. absent a showing that Pickering’s false statements were “knowingly and recklessly made by him, his right to speak to issues of pubhe importance jcould| not furnish the basis for his dismissal from pubhe employment.” Jd. at 574 Ss questionnaire related to the internal dynamnies of the Listmet Attorney's Office. ld. at 143. The Court held that “when a publhe emplovee speaks not as a citizen upon matters of public concern, but imstead as an emplovee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personne! decision taken by a public agenev allegedly in reaction to the employee's behavior.” Connick, 461 US. at 147. The determination whether a matter was one of “public concern” is gauged from the “content, form, and context of a given statement. as revealed by the whole reeord.” Jd. The Court) found that the questionnaire at issue related to a matter of personal concern. Myers’ unwillingness to accept a transfer The questionnaire was not of public concern because the questions did not amply that the Distnet Attorney's Office had engaged in malfeasance. /d. at 148. In ruling against Myers, the Court noted that it must ensure “that citizens are not deprived of fundamental mghts by virtue of working for the government; this does not require a grant of immunity for employee gmevances not afforded by the First Amendment to those who do net work for the state” ld. at 147. Two hmiting principles from Connick apply here as well. First, it can equally be said that when a pubhe employee administratively files a gmevance “not as a citizen upon a matter of public concern, but instead as an emplovee upon matters only of personal interest” the federal courts are not available “to review the wisdom of the personnel decision taken by a public agency allegedly in reaction to the emplovee’s behavior.” 461 U.S. at 147. Second, while this Court 9 must ensure that Petition Clause rights are not lost simply because an employee works for the government, no “grant of immunity for employee grievances becomes available under the First Amendment simply because the employee works for the government. Ja. These principles were further discussed in Garcetti v. Cebellos, a case exploring the contours of a public emplovee’s mght to speak out against alleged improprieties by a public employer. 547 U.S. 410 (2006). Ceballos, who was emploved with the Los Angeles District’ = Attorney’s) = Office, received information about a pending criminal case suggesting that information underlying an affidavit used to secure a search warrant was inaccurate. /d. at 413-14. Ceballos investigated the matter for himself and agreed that some of the information it contained was unreliable and relayed his concerns to his superiors. Id. at 414. He also drafted two separate memos for the benefit of his emplover. The first described the flawed contents of the affidavit: the second described the conversation Ceballos had with the warrant affiant. Id. The office nevertheless proceeded with the case, and Ceballos was called by the defense to testify about his concerns with the affidavit’s factual veracity. Jd. at 414-15. Ceballos alleged that as a result he was subjected to a series of retahatory measures by his emplover. Jd. at 415. He ultimately sued in federal court alleging that, among other claims, his First Amendment rights had been violated. In finding no violation, this Court noted that Ceballos was simply speaking out about matters that related to his official job responsibilities, i.e... the proper disposition of a case. The Court observed that “{rlestricting speech that owes its existence to a public 10 employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen.” Garcetti, 547 at 421-22. As such Ceballos’ employers could permissibly discipline him if they believed his memo was needlessly inflammatory. /d. at 423. He was not speaking as a citizen on an issue of public concern; instead, he was simply speaking out about an issue that arose in the course of doing his_ job. Consequently. “the First Amendment does not prohibit managerial discipline based on an employee's expressions made pursuant to official responsibilities.” Jd. at 424. The Third Circuit’s approach gives insufficient weight to the competing interests of public employers and employees by permitting an employee to bring a First Amendment retaliation claim even though the speech does not involve issues of public concern. Its interpretation turns on a_ perceived distinction between the First Amendment’s Free Speech and Petition Clauses. San Filippo, 30 F.3d at 441-442. The Petition Clause, it is argued, provides broader First Amendment protections than the Free Speech Clause because the Petition Clause embraces claims that do not require that a matter of public concern be implicated. Id. at 142. So long as the public employee has availed him or herself of a formal grievance mechanism, that employee is insulated from employer retaliation and may bring a claim under the Petition Clause despite the grievance involving no matter of public concern. Jd. This result is ill-considered and invites a host of problems. From a public employer's perspective, the Third Circuit’s view of the breadth of the Petition Clause raises serious management concerns. A real and 11 substantial risk exists that public employees will simply use formal grievance mechanisms as a pretext for a First Amendment claim against employers. Consider a simple, yet common, situation that occurs in the context of public employment. A_ public employee is aware that his employer is seeking to reduce staff for the upcoming fiscal year due to budget cuts. The employer has concomitantly announced plans to institute a comprehensive review and the review process will dictate staff reductions. Cognizant of his tenuous employment status, the employee preemptively files a non-frivolous (yet trivial) complaint to his superiors about an entirely personal matter of relevance only to the employee. Under San Filippo and its progeny, the employee has likely inoculated himself from any type of discipline, even when desperately necessitated, simply by making prospective use of internal grievance procedures. 30 F.3d at 441-42 (“(I]t would seem to undermine the Constitution’s vital purposes to hold that one who in good faith files an arguably meritorious ‘petition’ . . . may be disciplined for such invocation by the very government that in compliance with the petition clause has given the particular mechanism its constitutional imprimatur.”). Moreover, if the public employee suffered any adverse consequences subsequent to the review process, under the Third Circuit’s reasoning the employee would have a cognizable retaliation claim under the Petition Clause. Id. (observing that a “non-sham” grievance or lawsuit was entitled to constitutional protection irrespective of the fact that the underlying matter did not involve an issue implicating public concern). The Third Circuit's approach would lead to unacceptable results under a wide range of applications, including those underlying Garcetti v. 12 Ceballos. This Court held that because Ceballos’ memorandum was drafted in the course of his job duties, he did not have a cogmzable claim under the Free Speech clause for anv discipline that occurred as a consequence of drafting it. However. under the Third Cireuit’s view, a different outcome could result if Ceballos had filed a claim under the Petition Clause. If Ceballos drafted the identical memorandum in the form of an internal or administrative grievance. and later suffered discipline as a result. he would have a cognizable constitutional claim. Ao similar claim brought under the Free Speech clause weuld result ina dissimilar outcome. Indeed, the Third Circuit’s approach, if apphed to the fact patterns of the cases considered by the crreunt courts who have ruled differently. would open a Pandora’s Box of htigation over commonplace workplace gnevances that have no place in federal court. See, e.g., Tang v. RL, Dep't of Elderiv Affairs. 163 F.3d 7, 12 (ist Cir. 1998) (observing that Petition Clause claims simply invelved “individual personal complaints about working conditions”); Griglev v. Atlanta, 136 F.3d 752. 755 (1th Cir. 1998) (rejecting pubhe emplovee's claim that his testumony constituted protected speech under the Petition Clause, given the testimony concerned a private domestic altercation the emplovee had with a co-worker at his home): Hoffmann v. Mavor, Councitimen, & Citizens of Liberty, 905 F.2d 229, 233 (Sth Cir. 1990) (recognizing that emplovee's claim was “wholly personal” because it involved “a gmevance complaint pursuant to the City’s personnel rules complaining of his dismissal’): Yatoin v. Madison Metro. Sch. Dist., $40 F.2d 412. 419 (7th Cir. 1988) (public emplovee's lawsuit specifically related to the denial of a job promotion — the lawsutt Was not attempting to vindicate greater mghts). La The Third Circutt’s approach elevates the form of the emplovee’s gmevance over the substance of whether it involves a matter of pubhe concern. It creates simply too fine ai line im. distinguushing between the scope of the Petition Clause versus the Free Speech Clause in the employment context. The “public coneern” test. albert) not perfect ino its admimstration, provides a clearer line for both puble emplovers and public emplovees. Public emplovers should be afforded the necessarv leeway te make managerial decisions (and 1n necessary cases Impose discipline) without fear of becoming embroiled in a federal constitutional dispute The Third Cireuit’s reasoning is problematic because it does not fully weigh the interests of public emplovers, who are distinct from. private sector emplovers. This Court has been willing to allew speech restrmetions instituted by pubhe emplovers im the name of institutional efficrency. See Garcetti, 547 US. at 422 (Our helding hkewise 1s supported by the emphasis of our precedents on affording government emplovers sufficient discretion to manage their operations.”). Requiring that pubhe emplovees’ First Amendment claims be based on matters of pubhe concern is a reasonable hmiting principle on these types of legal claims From a public emplover’s perspective, the Third Circuit's approach creates the potential for routine managenal decisions having ne public import to assume constitutional status. Cf id at 420 CUnderlying our cases has been the premise that While the First Amendment invests public emplovees with certain rmyghts. it does not empower them to ‘constitutionalize the emplovee gnevance.”) (quoting 14 Conmrick, 461 U.S. at 154). The Third Circuit's approach places federal courts in the position of weighing the propriety of managemal decisions Whenever an emplovment gmevance arises and a claim is filed The simple act of fling a lawsunt or grevance should not, m itself. confer a greater quantum of constitutional protection than other forms of speech No reasoned basis exists to suggest that the Petition Clause was intended to assume a superior status vis- a-vis the Free Speech Clause in Bia employment context. See McDonald vo Smith, > US. 479, 482 (1985) CThe mght to petition is cut from the same cloth as the other guarantees of [the First] Amendment, and is an assurance of a particular freedom oof expression”) Why should pubhe emplovees who file an administrative “grievance” not have to establish hke others who exercise First Amendment rights — that their grievances satistv the test for “matters of public concern”? Under the Third Circuit's approach, a court will not inquire into the context of the grievance, such as whether it invelves an allegation of corruption, bribery. wide-spread ractal discrimination, personal improprieties, biased hiring so practices, fiscal nusmanagement. 9 or malfeasance. Instead, as long as the dispute ts denominated as a “gmevance” or the hke. no inquiries need be made about the content or context of the dispute. This reasoning is pecuhar because it seems Ncongruous to hold that the manner in which the speech was stvled predominates over the analvsis of us substance. Consider that under the Third Cireuit’s paradigm. Ceballos’) “memorandum” involving the proper disposition of a ocase and Myers’ 7 ie) “questionnaire” about office morale would be entitled to lesser constituhional protection than Mr Guarmert's “grievance” challenging a series of new yob directives without, if seems, anv actual inquiry as to the substance of the underlving claims In summary, the Third Cirewt’s view contravenes this Court's pmor precedents which have held that a matter of publre concern must be at issue See Natl Treasury Emps. Union, 513 US. at 466 observing that a pubhe emplovee was entitled to First Amendment protections “only when the emplovee spoke ‘as a ciiizen upon matters of publie eoncern rather than as an emplovee upon matters only of personal interest.”) (quoting Conmck, 461 US. at 147) The Petition Clause should provide qualitatively no broader constituhional protection for publi emplovees compared with other First Amendment protections. The First Amendment's Petition Clause should not serve as ai vehicle to challenge all measures of emPlover-emplovee interactions. Said differentiv. every private workplace dispute that ultimately works to the disadvantage of the government emplovee does not constitute an impingement on the emplovees First Amendment rights B. The Third Circuits approach ignores the important protections of state and local “whistleblower” laws and collective bargaining agreements. The Third Cireuit’s approach raises the concern that constitutionahzing Petition Clause claims for workplace gmevances not involving matters of publie - ib concern will thwart or marginalize ca) laws enacted by state and local governments that address pubhe emplovees’ private workplace gmevances as well as (b) collective bargaining agreements that create and protect emplovees’ mghts. As this Court has noted, a “powerful network of lemslative enactments -- such as Whistle blower protection laws and labor codes lare] available to those who seek to expose wrongdoing.” Gareetti, 547 US. at 425. The Third Circuits view, that emplovers will have the ability to suppress the petitioning activities of emplovees absent broader First Amendment protections, 1s unpersuasive in light of these laws. Moreover. the recopmtion of a federal Petition Clause claim creates an imeentive to bypass these state and local protections in favor of a federal lawsuit 1. The eMfiecacy of state whistleblower laws and anti- retaliation provisions may be undermined by Petition Clause retaliation claims related to personal matters. Everv State affords its workers, whether in the private or public sector, some form of protection from retahation for exposing emplover misconduct Characterized as “whistleblower laws,” these statutes varv in their breadth and appheability © S See Flletta Sangrev Callahan & Terry Morehead, The State of Siate Whistichlower Protection. 38 Am. Bus L499) 100 (2000) CO Whistleblower protection statutes have been enacted in each of the “Rv states © Callahan & Morehead. supra note 5, at 14-175. Appa A Qdentifving the wide vanetv of whostleblower protections available throughout the United States) 7 An example as the Flomda Pubhe Sector Whistleblower Act CFlomda Whastleblower Act"), whose legislatiwe intent “iso to prevent. retaliatory action against emplovees who disclose misconduct on the part of pubhe offeials” Fla, Dept of Transp: Ea. Comm'n on Human Relations, S842 So. 2d 253, 256 (Pla. Dist. Ct) App. 20038) * The Act 1s remedial in nature and “construed hberally in taver of granting access to the remedy” Martin Cnty. vo. Fdenfield, 609 So. Ld 27, 29 (Fla. 1992). It apphes to “anv state, regional, county, local, or mumeipal government entity, whether executive, pudieial, or legislative, anv oMeal offieer, department, division, bureau, commussion, authoritv. oor political | subdivision therem, or anv pubhe school, community college, or state umiversitv.” Fla. Stat. § 112 3187(3\(a) The Flomda Whistleblower Act states that “[ajn agenev or independent contractor shall mot dismiss, discipline, or take any other adverse personne! action agamst an emplovee for disclosing information pursuant to the provisions of this section” Fla Stat SUIVSISTAyad* oko protects disclosures of Plomda has a Private Sector Whistleblower Act. which is similar te the Florida Pubhe Sector Whistieblower Act in many respects See Fla Stat §$§ $48 101-448 loo * The Flomda Pubhe Sector Whistleblower Act prohibits retahation agaist anv andiwidual “who disclases information to an appropmate agency alleging improper use of governmental oMee, gross waste of funds, or anv other abuse or gross neglect of dutv on the part of an agenev, publa oMfeer, or emplovee ~ Fia Stat $112 3187 (2) * Under section 112. 3187(5\c) an “adverse personne! action” ts charactenzed as) “[T]he discharge. suspension. transfer. or (Continued .) IS information including “Any violation or suspected violahion of federal, state, or lJoeal law. rule, or relation committed by an emplovee or agent of an agency or independent contractor Which creates and presents a substantial and speefie danger to the pubhe’s health, safety or welfare” as well as “[a]ny act or suspected act oof gross mismanagement, malfeasance, misfeasance, gross Waste of pubhe funds, suspected or actual Medieaid fraud or abuse, or gross neglect of dutv committed by an emplovee or agent of ano agenev oor independent contractor” dd S$ LIL SISTA) ad (hy) In manv respects the Flomda Whistleblower \et, and analogous state whistleblower laws, provide broader protections to pubhe emplovees than are available under the First Amendment See Sfone v Poerglades City, Fla, 2007 WL 1247979, at *3 (MLD. Bla April S30, 2007) (Flomda’s Whaistle-blower'’s Act is thus not limited to speech protected by the First Amendment”) The Flomda Whuistleblower Aet, for example, does not mandate that the public emplovee’s grievance involve a matter of public concern See Rosa v0. Dept of Children & Families, 915 Sa. 2d 210, 212 (Fla, Dist. Ct) App 2005) (conceding that emplovee's allegations could reasonably be considered a personal “rant” against an oemplover or allegation of misfeasance, but that this issue was for a jury to decide) To have a colorable cause of action under the Flonda Whistleblower Act, no requirement exists that demotion of anv emplovee or the withholding of bonuses, the reduction in salarv or benefits, or anv other adverse action taken against an employee within the terms and conditions of employment by an agency or independent contractor ” 19 the public emplovee speak as ai “citizen on oa newsworthy matter See eg. Walker oo Dept o/ Veterans Affairs, 925 So. 2d 1149 (Fla. Dast Ct. App 20086) (emplovee alleged that he was retahated against tor raising concerns about the safety of a van he was driving) Instead. a state emplovee has sixty davs within which to tile a tormal complaint alleging that he was discharged, disciphned or suffered an adverse personnel decision as a consequence of engaging in conduct protected under the statute See Fla Stat. § 11231895 C1 a) The statute requires that to have a colorable claim, the complainant must satisty the following criteria: ““CL) prior to [the adverse personnel decision] the emplovee made a disclosure protected by the statute; 2) the emplovee was lsubjected to an adverse personne! decision); and 3) the disclosure was not made in bad faith or tor a wrongful purpose, and did not occur after an agenev's personnel action against the emplovee ~ Walker, 925 So. 2d at 1150 (quoting Ala) Dep't of Transp., 842 So 2d at 255) Following receipt of the complaint, the Flomda Commission on Human Relations bears the responsibilty for investigating the allegation of reprisal, Fla Stat. § 112 3189842\a) The Flornda Whistleblower Act typifies efforts by other state legislatures in the hist several decades to protect opubhe emplovees from retahatory consequences for disclosures of | governmental ) wrongdoing. waste, or abuse.'!’ These States allow % See eg. Lars A) Lofgren, Whistledlower Pyotection Shoulda legisiatures and the Courts Provide a Shelter to Public and Miuate Sector Emplovwes who Msclose the Wrongdoing of Emplovers?, 38 SDL Rew. 3816. 319-327 (1993) (discussing the evolution of state and tedera. whistleblower protection Laws since the 1960s) See also Callahan & Morehead, supra note 5. at 132. (Continued cue 20 emplovees to give voice bo concerns about matters that may impact the proper functioning of the workplace, thereby improving governmental operations. States have different degrees of protection for their pubhe sector employees. For example, some provide protections for all publhe sector emplovees '! Others provide protections for both private and pubhe emplovees and/or emplovers.'!- State whistleblower laws have their own administrative requirements regarding the exhaustion of remedies. For example, an emplovee in Connecticut is required to initially file a whistleblower complaint with the Auditor of Pubhe Accounts whereas an employee in New Jersey is first required to provide notice of wrongdoing to the appropriate supervisor to address the underlying matter in oan expeditious manner. Compare Conn Gen. Stat § 4-6ldd (discussing Connecticut's administrative requirements), wih Nod. Stat. Ann. to. Appa A (enumerating state whistleblower laws), Robert G Vaughn, State Whistleblower Statutes and the Future of WhistleSlower Protection, 51 Admin Lo Rev. 581, 582 n3 (1999) (isting hundreds of state statutes protecting whistleblowers) "See Garcett:, 547 US. at 440 1 8 (Souter, J. dissenting) (citing Del Code Ann tit 29, § 4115 (2003), Fla. Stat. § 112.3187 (2003), Haw Rev Stat. § 378-61 (1993), Ky. Rev Stat Ann $ 61.101 (West 2005), Mass Gen Laws ch 149, § 185 (West 2004), New Revo Stat § 281 611 (20038). NCH) Rew Stat. Ann §$275-E 1 (Supp 2005); Ohno Rev. Code Ann. § 4113.51 (Lexis L001). Tenn Code Ann. § 50-1-304 (2005) ‘7 Nee, eg. Conn. Gen Stat §§ Al-Silm. 4-61ldd, Fla Stat $§ 1128187, 448 102. Haw. Rev. Stat. § 378-61, Me Rev Stat ut. 5. § 4572-A, Minn. Stat. § 181.931, Neb Rev. Stat §§ 48. Li02, 48-1114. NOH. Rev. Stat. Ann. § 275-Eo2, Nid. Stat. Ann §$ 3419-3, ND Cent. Code § 34-01-20. Ohio Revo Code Ann S$ 41138 52(A1), 124 341. Or Rev. Stat § 659A D200, RI Gen Laws § 28-o0-4, Tenn Code Ann. § 50-1-304. >) $34:19-1 (outlining New Jerseys administrative requirements before a complaint can be filed with a pubhe body). The Third Circuit's approach has the potential to undermine these public sector whistleblower laws, which stmke a workable balance between rights of public emplovees to expose workplace misconduct and nghts of pubhe sector employers to administer services efficiently. Consequently, federal courts should not be needlessly forced, under an overly broad view of the scope of the Petition Clause, into resolving intra-office disputes that amount to private yrievances By allowing public employees to raise First Amendment claims under the Petition Clause without regard to the content of the speech, the Third Circuit undermines the incentive for individuals to first use applicable state whistleblower statutes. The Third Circuit holds that as long as a pubhe emplovee has filed a non-trivolous gmevance or complaint, that employee may have a cogmvzable retahation claim under the Petition Clause. This) behef seems predicated on the concern that, without broad protections, public employees will not have the ability to challenge emplover misconduct. This approach, however, has unintended consequences. For example, any time a pubhe employee files an administrative grievance should an employer assume that an entirely unrelated adverse administrative or = diseciphnary acuion is never permissible? If an employee beheves he wall automatically have a federal forum to raise concerns about alleged workplace improprieties, why bother to pursue rehef under whistleblower statutes” And, if the Petition Clause provides duplicative oe protections with state whistleblower laws, what need exists for the latter? Pubhe sector whistleblower laws exist, In many respects, to provide pubhe emplovees with a mechanism to expose misconduct — whether a public concern or not — without the fear of incurring an adverse personnel decision. By eliminating the requirement that a public employee's grievance must involve a matter of public concern, the Third Circuit's approach undermines state whistleblower laws and potentially makes federal courts the first avenue for relief, versus the last, for matters that do not involve public concerns. 2. The efficacy of collective bargaining agreements, labor laws, and related common law doctrines may be undermined by Petition Clause retaliation claims related to personal matters. Publhe emplovees, particularly those who work in state government, have a raft of contractual protections that safeguard them from retahation for engaging in protected activity. A non-exhaustive listing of state statutes evidences that a majority of States permit public emplovees to engage in collective bargaining with their employers regarding matters including filing formal grievances or complaints without fear of discharge or discrimination from the emplover.'' ' See, eg. Alaska Stat. § 23.40.110(a)(4); Cal. Govt Code § 3519%a), Conn. Gen. Stat. § 5-272(a\5); Del. Code Ann. tit. 19, § 1307(a\4); D.C. Code Ann. § 1-617.04(a\4); Fla. Stat § 447.501(1d): Haw. Rev. Stat. § 89-13; 4 Ill Comp. Stat (Continued ...) These protections derive from collective bargaining agreements, which allow employees to engage in certain protected activities without fear that their activities will lead to dismissal. Under most collective bargaining agreements, or similar statutory provisions, public employees are permitted to file grievances related to their employment conditions. Consequently, if an employer has undertaken conduct that is alleged to violate the terms of these collective agreements, employees (or their representatives) may seek redress by filing a grievance. Indeed, Mr. Guarnieri took advantage of grievance mechanisms and prevailed twice. His experience is a good example of the efficacy of these types of collective bargaining agreements. This Court has cautioned that the protections accorded by the Free Speech Clause “do[ | not require a public office to be run as a roundtable for employee complaints over internal office affairs.” Connick, 461 U.S. at 149. The Third Circuit’s approach, however, would lead to this result. Here, a simple dispute involving a series of additional job responsibilities has 315/1Ma\(3); Towa Code § 20.10(2)d): Kan. Stat. Ann. § 75- 4333(b)(4); Me. Rev. Stat. tit. 26, § 979-C(1)(D); Md. Code Ann. State Pers. & Pens. § 3-306(a)(5); Mass. Gen. Laws ch. 150K. § 10{a)(4); Mich. Comp. Laws § 423.209; Minn. Stat. § 179A.13(2)(4); Mont. Code Ann. § 39-31-401(4); Neb. Rev. Stat. § 81-1386(2\(d); N.H. Rev. Stat. Ann. § 273-A:5(1\(d); N.J. Stat. Ann. § 34:13A-5.4(a)(4); N.M. Stat. Ann. § 10-7E-19; NY. Civ. Serv. Law § 209-a(1)(c): Ohio Rev. Code Ann. § 4117.11(A)(4); Or. Rev. Stat. § 243.672(1)(d); 43 Pa. Cons. Stat. § 1101.1201(a)¢4): R.1. Gen. Laws § 28-7-13(8): S.D. Codified Laws § 3-18-3.1(4); Vt. Stat. Ann. tit. 3, § 961(4); Wash. Rev. Code § 41.56.140; Wis. Stat. § 111.06(1)(b). 24 taken on constitutional dimensions. Cf. id. at 146 (‘When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices ... .”). The Third Circuit’s approach effectively undermines public sector collective bargaining agreements, which already prohibit employers from discriminating against employees for filing a grievance or complaint. Federal courts should not be forced to referee minor workplace disputes that are better suited for disposition under state whistleblower laws or collective bargaining protections. Was overtime pay improperly denied? Was an emplovee disciplined as a consequence of refusing to accept a job transfer? Were assigned work duties beyond the purview of contractual obligations? Was the time allotted for lunch insufficient? Each of these may be a legitimate basis for filing a personal grievance or pursuing a state remedy; but each should not be a federal claim absent a showing of public concern. Collective bargaining agreements, labor laws, and whistleblower statutes — not the First Amendment’s Petition Clause — are better suited to deal with these issues, as well as allegations of employer retaliation relating to wholly personal issues. The Third Circuit’s approach minimizes the importance of these legal protections. Reversing the Third Circuit will not reduce the ability of public employees to vindicate the exercise of First Amendment rights on matters of public concern; nor will it leave public employees without redress. Rather, reversal would simply bring the Third Circuit into accord with the ten circuits that have considered this 25 issue, and give breathing space to the state and local laws that permit public sector employees to pursue grievances and remedies for personal employment matters in the workplace. CONCLUSION For all of the above reasons, this Court should reverse the decision of the United States Court of Appeals for the Third Circuit. Respectfully submitted, BILL MCCOLLUM Attorney General of Florida SCOTT D. MAKAR’ Solicitor General RONALD A. LATHAN Deputy Solicitor General PL-01, The Capitol Tallahassee, FL 32399-1050 850-414-3300 850-410-2672 fax Counsel for Amici Curiac *Counsel of Record December 13, 2010 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA43085015_0595%3A13. Public record. Not legal advice.