Posted by: Patricia Salkin | February 11, 2010

Denial of Zoning Permit and Communication with Employer about Attendance and Comments at Public Meetings May Amount to Retaliation in Violation of First Amendment

The 6th Circuit Court of Appeals has held that a community resident sufficiently alleged that she was the subject of retaliation for exercising her First Amendment rights.  The Plaintiff was an independent insurance agent who did business out of her home pursuant to a special use permit. During the pendency of her special use permit application, the Plaintiff attended a number of planning commission and board of trustee meetings in the town, and she observed a number of irregularities.  Her observations and monitoring of the conduct of the meetings and actions of municipal officials irritated the town supervisor and at least one other board member. Plaintiff later applied for a zoning variance for signage for her home business.  The variance was denied, the plaintiff was then issued a signage violation. Although she maintained the sign during the pendency of the variance application, she did remove the sign when the application was denied. The town supervisor, unhappy with the Plaintiff’s conduct at public meetings, made three telephone calls to her boss at the insurance company, and suggested that she had to “tone down her speech” and “her problems might go away,” that she had “bashed” the town, and that her continued public comments and petitioning for redress of grievances would create adverse consequences for her and for the insurance company from a “public relations” perspective. The supervisor also warned the Plaintiff’s boss that the company’s presence in the town was in jeopardy because of the Plaintiff’s conduct.  In addition, another board member called the Plaintiff’s boss to express displeasure with the fact that the Plaintiff brought an attorney to a planning commission meeting. Following these communications from town officials, the Plaintiff’s boss terminated her relationship with the company because of her “controversial community relations with [her] neighbors and with the local government units.” Plaintiff then filed a Section 1983 lawsuit alleging unlawful retaliation on the part of the town supervisor for exercising her First Amendment rights by speaking critically of the town in public forums and in the press. She also alleged that she was denied zoning and signage variances in retaliation for her protected conduct.

The 6th Circuit Court of Appeals concluded that the Plaintiff did sufficiently plead state action for purposes of evaluating the motion to dismiss.  Further, the court found that for purposes of the retaliation claims under 42 U.S.C. 1983, the Plaintiff did sufficiently plead that she engaged in constitutionally protected conduct, that an adverse action was taken against her that would deter a person of ordinary firmness from continuing to engage in that conduct, and that the adverse action was motivated at least in part by the protected conduct. The Court found that the phone conversations and denial of the variances were sufficient to give rise to a claim of adverse action, and that although such actions may not have deterred this particular Plaintiff from exercising her First Amendment rights, the standard nonetheless is whether the adverse action would deter “a person of ordinary firmness” from exercising protected conduct, and the Court was satisfied that this standard was met.

In an issue of first impression, the Court concluded that conversations between a public official and a private employer about an employee’s protected conduct in a manner that threatens the employee’s economic livelihood directly or indirectly can constitute retaliation.  The Court noted that the negative comments made by the supervisor to the Plaintiff’s employer, especially the comment suggesting that the company’s business may be damaged, were sufficient to rise to the level of  “a threat to take action tangible affecting employment status.” Further, the Plaintiff’s allegation that the variances were denied in retaliation for her speech directly impacts her ability to conduct her business in the manner of her choosing, which constitutes a threat to her livelihood. The Court said that this “is probably sufficient to state a claim of retaliation inasmuch as the possibility of a zoning variance or a signage variance necessary for operating a business as planned would deter a person of ordinary firmness from exercising First Amendment rights.”

The Court concluded that the complaint “is sufficient to show that she was engaging in protected conduct, that the…Defendants took adverse action against her that would deter a person of ordinary firmness from engaging in that conduct, and that the adverse action was motivated at least in part by her protected conduct.”

Fritz v Charter Township of Comstock, 2010 WL 307899 (C.A. 6 (Mich.) 1/28/2010).

The opinion can be accessed at:

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