Posted by: Patricia Salkin | August 19, 2010

Sixth Circuit Holds that County Official and Government May Be Liable for Actions Leading to Termination of Private Employment of a Member of the Public Who Spoke at a Public Hearing

Martha Paige sued Coyner, a County official in Warren County, and two County entities pursuant to 42 U.S.C. § 1983, alleging a violation of her constitutional rights by persons acting under color of state law.  Paige attended a public hearing on a proposed interstate highway project in the county, one that would interfere with her property.  Before the hearing began, Coyner, the Director of the County Office of Economic Development and the Executive Director of the County Port Authority, spoke with Paige about Paige’s job and asked her how long she had been working with her employer.  Paige responded, and later spoke at the hearing along with other concerned residents. At no time did she identify herself by reference to her employer or “give any indication whatsoever that her remarks should be associated with anyone other than herself.” While Paige was speaking, she noticed Coyner’s allegedly negative reaction – Coyner had initiated the interstate as one of her first projects.  Coyner allegedly retaliated against Paige by calling Paige’s employer a week after the hearing and saying false things about her speech— that Paige had publicly introduced herself at the hearing as an employee, and had spoken negatively about the establishment of the Port Authority.  Coyner then “sought clarification” of the employer’s “commitment to development in the region.”  Because Paige’s employer was involved in the development of commercial properties in the county, the employer fired Paige three days after the call, and, as justification, specifically referenced Coyner’s false allegations that Paige had used her employer’s name to oppose development at the public meeting.  Paige sued, claiming a violation of her First Amendment right of free speech.  One of the County entities filed a motion to dismiss, arguing that Paige had failed to state a claim for which relief could be granted because she did not allege any “state action” by her employer, as required for a suit relying on § 1983. The court below granted the motion and dismissed the case against the remaining two defendants. The Sixth Circuit reversed and remanded.

The circuit court agreed that in a Section 1983 lawsuit, the plaintiff was required to allege that she was deprived of a right secured by the federal Constitution or laws of the United States by a person “acting under color of state law.” Coyner and the County defendants did not dispute that they were state actors with regard to their own actions, but argued that they could not be held legally responsible for the actions of a private employer, which ultimately inflicted the harm on Paige.  The court, however, distinguished retaliation cases such as the one here, where the suit was solely against state officials and where the officials themselves took the action that allegedly violated constitutionally protected rights (calling the employer with false information), from prior precedents where the state actors took no action themselves. Coyner could be liable not because the firing itself was a state action, but because a jury might find that the firing was a reasonably foreseeable consequence of the action taken by Coyner—once there had been state action (the phone call), the proper test for the scope of responsibility for events flowing from that action was reasonable foreseeability. Thus, Paige had properly alleged state action; further, her complaint alleged sufficient facts that, taken as true for the purposes of the motion to dismiss, would satisfy the three elements required to establish a First Amendment retaliation claim. She had engaged in protected activity by attending the public hearing and voicing her opinion; Coyner took an adverse action against and the employer specifically cited the information from that call in terminating Paige’s employment; and the adverse action was motivated, at least in part, in response to the exercise of her constitutional rights.

On the last issue, the potential liability of the Port Authority and the Board of Commissioners, the court also found sufficient allegations to support the claim against them. They had argued that Paige’s retaliation claim against them should be dismissed as a matter of law because Paige did not allege that Coyner had acted according to an unconstitutional policy or custom when she made the call. The court, however, found that Paige had properly pled that Coyner “acted pursuant to the official policies” of the defendants, the County Board of Commissioners and the Port Authority, in that Coyner had “final policy making authority for those entities.” Although this factual issue would need to be resolved at summary judgment or at trial, Paige’s allegation was sufficient to survive the motion to dismiss.                                                                                                                            

Paige v Coyner, 2010 WL 2976052 (6th Cir. 7/26/2010)  

 The opinion can be accessed at: http://www.ca6.uscourts.gov/opinions.pdf/10a0220p-06.pdf  

This abstract appears in the August 4, 2010 IMLA E-News.  For information about the International Municipal Lawyers Association visit www.imla.org


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