City of Ontario, Calif. v. Quan, No. 08-1332 (U.S. S. Ct. Dec. 14, 2009); Thompson v. North American Stainless, No. 09-291 (U.S. S. Ct. Dec. 14, 2009)

By Paul Mollica

Though granting cert in no straight employment cases today (the last day before adjournment for the holidays), our U.S. Supreme Court issues in orders in two employment-related disputes concerning privacy and retaliation.

In the Quon case, a 2008 Ninth Circuit decision (with a dissent from denial of rehearing in 2009), the question presented was whether a police department’s interception of text-messengering by a SWAT-team officer, on a pager issued by the department, violated the Fourth Amendment.  A jury found that it did, and a panel of the Ninth Circuit affirmed the verdict, but eight judges of the Ninth Circuit issued a stinging dissent complaining about the mischievous consequences of that decision (answered, in turn, by a concurrence in denial of rehearing by the author of the original panel decision).

In the Thompson case, the Supreme Court invited the Solicitor General’s views on a pending petition, seeking reversal of the Sixth Circuit ‘s en banc decision holding (10-6) that the federal anti-retaliation statutes do not create a claim for third-parties (such as friends and family) who suffer retaliation because of the protected activities of another employee. The decision under review is posted here.