Posted by: Patricia Salkin | March 13, 2012

6th Circuit Finds Government’s Behavior was not was Not Retaliatory, Nor Were Plaintiff’s First Amendment Rights Violated By Regulation of Home Occupation

Fritz brought this action alleging defendant Township of Comstock unlawfully engaged in retaliation against her under 42 U.S.C. § 1983, for exercising her First Amendment right to publicly criticize township residents and officials.  The United States District Court for the Western District of Michigan granted summary judgment in favor of Comstock and Fritz appealed.  The United States Court of Appeals, Sixth Circuit affirmed.

Fritz, an insurance agent, purchased property in Comstock that she intended to use a home office.  She obtained a special exemption use permit, authorizing the home occupation use, but was still subject to zoning requirements.  Soon after Fritz began operation she displayed signs on her car and in the yard, and was issued citations.  Fritz’s agency manager contacted Comstock’s supervisor, and the supervisor stated that the agency’s reputation in the area is being harmed and relayed that Fritz needed to tone down her conduct and remove the signs.  The agency manager relayed the same to Fritz, but she neglected to change her behavior.  Fritz’s employment with the agency was later terminated due to Fritz’s relationship with the agency’s employees and with the community.

Fritz then commenced this §1983 action seeking damages, injunctive relief, and attorney’s fees, alleging Comstock and its supervisor retaliated against her First Amendment right to criticize them in public meetings and the press.  This action was originally dismissed by the district court in 2008 for failure to state a claim, and was reversed and remanded by the 6th Circuit.  On remand the cause of action was again dismissed by the district court by way of summary judgment. 

The 6th Circuit stated that for Fritz’s claim to survive summary judgment, Fritz would need to make a showing that she engaged in protected conduct, an adverse action was taken against her that would deter a reasonable person from continuing the conduct, and that the action was at least in part motivated by the conduct.  The court stated that there was no question that Fritz engaged in constitutionally protected conduct in criticizing the government.  In looking to the conversations between Comstock’s supervisor and the insurance agency managers, the court found the statements made were not threatening, nor where they an “adverse action.”  In addition, the court found no causal connection between Fritz exercising her right to free speech and the adverse action taken against her, her termination.  This legal claim was against Comstock and Comstock’s supervisor, but the town supervisor had no authority to terminate her, nor could Fritz prove the supervisor was motivated by the intention to have Fritz fired.  In fact, testimony of agency officials indicated the termination was due to Fritz’s relationship with superiors in the company and the effect Fritz’s actions were having on the reputation of the company.

As the plaintiff did not sufficiently show an adverse action taken by Comstock, or that any action taken by Comstock was related to Fritz’s termination, the 6th Circuit affirmed the district court’s grant of summary judgment.

Fritz v. Charter Township of Comstock, 2012 WL 499540 (6th Cir., 2/15/2012),

The opinion can be accessed at: http://docs.justia.com/cases/federal/appellate-courts/ca6/10-1973/10-1973-2012-02-15.pdf.


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