Sue Fritz v. Charter Township of Comstock

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0013p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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SUE FRITZ,

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Plaintiff-Appellant,

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No. 08-2578

v.

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CHARTER TOWNSHIP OF COMSTOCK, a public

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body; TIM HUDSON, individually and in his

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official capacity as the supervisor for the

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Charter Township of Comstock,

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Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 07-01254—Robert Holmes Bell, District Judge.

Argued: October 9, 2009

Decided and Filed: January 28, 2010

Before: RYAN, COLE, and CLAY, Circuit Judges.

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COUNSEL

ARGUED: William Frank Piper, II, WILLIAM F. PIPER, PLC, Portage, Michigan, for

Appellant. James R. Nelson, SCHOLTEN FANT, P.C., Grand Haven, Michigan, for

Appellees. ON BRIEF: William Frank Piper, II, WILLIAM F. PIPER, PLC, Portage,

Michigan, for Appellant. James R. Nelson, SCHOLTEN FANT, P.C., Grand Haven,

Michigan, for Appellees.

CLAY, J., delivered the opinion of the court, in which COLE, J., joined. RYAN, J.

(p. 17), delivered a separate dissenting opinion.

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OPINION

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CLAY, Circuit Judge. In this appeal from the district court order granting in part

Defendant’s Motion for Summary Judgment as to Plaintiff’s claims of retaliation for the

1

No. 08-2578 Fritz v. Charter Township of Comstock, et al. Page 2

exercise of her First Amendment rights and denying in part Defendant’s Motion as to

Plaintiff’s related state tort law claims but dismissing those claims without prejudice,

Plaintiff, Sue Fritz, argues that the allegations in her complaint were sufficient to state a

claim for retaliation under 42 U.S.C. § 1983. For the reasons that follow, we REVERSE

the district court’s order and REMAND for further proceedings consistent with this opinion.

BACKGROUND

Because this appeal is from what was treated as a motion to dismiss on the pleadings,

the facts as set forth in the complaint are taken as true for the purposes of this appeal.

Plaintiff was an independent agent for the Farm Bureau Insurance Company (“Farm

Bureau”) doing business as the Fritz Agency out of an office in her home in Comstock,

Michigan. The home had been purchased contingent upon approval for a home office, so

Plaintiff applied for and received a Special Use Permit in October 2005.

While Plaintiff’s Special Use Permit application was pending, she attended several

Comstock Planning Commission and Board of Trustees meetings related to the approval of

her home office and some other meetings, during which she noticed procedural irregularities.

At one meeting, Defendant Township Supervisor Tim Hudson became irritated with

Plaintiff’s presence when she was not on the agenda and in another meeting he expressed

frustration with Plaintiff’s monitoring of the meetings, allegedly in an attempt to intimidate

her from attending in the future.

Plaintiff then learned that Comstock zoning restrictions and ordinances restricted the

way she could conduct her business with regards to a sign describing the business,

employees working in the home office, and the proportion of the home used as an office.

She applied for a zoning variance, which was denied, and subsequently Plaintiff was issued

a signage violation. Plaintiff applied for a signage variance, which also was denied. During

the application process, Plaintiff continued displaying her sign, but then removed it when her

variance was denied.

In late 2005 and early 2006, citizens and Township officials allegedly made false

statements about Plaintiff and her home office. In July 2006, Plaintiff complained to

No. 08-2578 Fritz v. Charter Township of Comstock, et al. Page 3

Defendant Hudson about Township officials falsely accusing her of zoning and other

violations and about a neighbor’s harassment.

On three occasions – July 28, 2006, November 15, 2006, and March 1, 2007 –

Defendant Hudson spoke via telephone with Plaintiff’s supervisors at Farm Bureau

(“Plaintiff’s employer” or “employer”) about her activities in Comstock, including her

attendance of public meetings, public comments and advocacy of her business, her

petitioning of Comstock for a redress of grievances related to her business, and her overall

1

public relations with the community of Comstock. In the first phone conversation,

Defendant Hudson discussed Plaintiff’s comments in planning commission meetings, a

petition in the neighborhood against Plaintiff, and a letter to the editor written by

Plaintiff in which Defendant Hudson alleged she “bashed” Comstock. (Dist. Ct. Doc.

No. 1, Compl. ¶¶ 25-26). Defendant Hudson said that if Plaintiff would “tone down her

speech and remove her sign, her problems might go away.” (Dist. Ct. Doc. No. 1,

Compl. ¶ 27). In the second phone call, Defendant Hudson emphasized that Plaintiff’s

public comments and her petitioning for redress of grievances would create adverse

consequences for her and Farm Bureau from a “public relations perspective.” (Dist. Ct.

Doc. No. 1, Compl. ¶ 32). Finally, in the third phone conversation, Defendant Hudson

again commented on the same issues and warned that Farm Bureau’s presence in

Comstock was in jeopardy because of Plaintiff’s conduct inasmuch as the community

was “allegedly in an uproar about it.” (Dist. Ct. Doc. No. 1, Compl. ¶¶ 34-35).

Between the first and second phone conversations in September 2006, another

Comstock Planning Commission member, Steve Gazdeg, spoke with Plaintiff’s

employer to express displeasure that Plaintiff had brought her attorney to a Planning

Commission meeting.

After the first phone call, Plaintiff’s employer spoke with her about changing her

behavior in the community, and three weeks after the third conversation Plaintiff’s

employer terminated her relationship with Farm Bureau because of her “controversial

1

According to the parties’ briefs on appeal, each of these conversations was initiated by Plaintiff’s

employer, although this is not a matter alleged in the pleadings in the district court.

No. 08-2578 Fritz v. Charter Township of Comstock, et al. Page 4

community relations with [her] neighbors and with the local governmental unit.” (Dist.

Ct. Doc. No. 1, Compl. ¶¶ 30, 39).

Plaintiff’s attendance at public meetings and her comments in public forums and

in the press began prior to, but continued after the phone conversations and after her

termination by Farm Bureau. Before the first phone conversation, she contacted

Defendant Hudson on several occasions to complain about Comstock officials accusing

her of zoning and other violations and to complain about harassment from a neighbor.

After the second conversation, in January 2007, Plaintiff criticized Comstock

administrators in a public meeting, which was reported in a local newspaper. Following

her termination, Plaintiff attended a Comstock public meeting in April 2007 and engaged

in a heated discussion with a Comstock resident, during which time the video camera

Plaintiff brought to record the meeting was broken.

Plaintiff filed this lawsuit seeking damages, injunctive relief, and attorney’s fees

on December 14, 2007 in the United States District Court for the Western District of

Michigan alleging that the Charter Township of Comstock (“Comstock”) and its

Supervisor, Tim Hudson, engaged in unlawful retaliation, under 42 U.S.C. § 1983,

against her for exercising her First Amendment rights by speaking critically of Comstock

in public forums and in the press and that this retaliatory conduct also resulted in several

state tort law violations raised under supplemental jurisdiction.

On May 1, 2008, Defendants Comstock and Hudson filed a motion that was

styled as a Motion for Summary Judgment, but which the court treated as a motion for

judgment on the pleadings under Fed. R. Civ. P. 12(c) since Defendants relied upon that

rule and did not offer any matters for consideration beyond the pleadings. On November

26, 2008, the district court granted Defendant’s motion as to the retaliation claims, but

denied it as to the state tort law claims, electing instead to dismiss those claims without

prejudice under its discretionary power to decline jurisdiction over supplemental state

law claims when the federal claim has been dismissed. Fritz v. Charter Tp. of Comstock,

2008 WL 5083503 at *5 (citing Novak v. MetroHealth Med. Ctr., 503 F.3d 572, 583 (6th

No. 08-2578 Fritz v. Charter Township of Comstock, et al. Page 5

Cir. 2007)); see also Musson Theatrical v. Fed. Express Corp., 89 F.3d 1244, 1254-55

(6th Cir. 1996).

Plaintiff filed notice of appeal on December 10, 2008, appealing only the district

court’s ruling as to the retaliation claim.2

DISCUSSION

Defendant’s Motion to Dismiss Regarding the First Amendment Retaliation Claim

A. Standard of Review

Appeals from motions to dismiss on the pleadings under Fed. R. Civ. P. 12(c) are

reviewed de novo, pursuant to the same standards that should have been applied in the

district court. Tucker v. Middleburg-Legacy Place, 539 F.3d 545, 549 (6th Cir. 2008).

The standard of review for a Rule 12(c) motion is the same as for a motion under Rule

12(b)(6) for failure to state a claim upon which relief can be granted. Ziegler v. IBP Hog

Market, Inc., 249 F.3d 509, 511-12 (6th Cir. 2001) (citing Mixon v. Ohio, 193 F.3d 389,

399-400 (6th Cir. 1999)). “For purposes of a motion for judgment on the pleadings, all

well-pleaded material allegations of the pleadings of the opposing party must be taken

as true, and the motion may be granted only if the moving party is nevertheless clearly

entitled to judgment.” JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th

Cir. 2007) (internal citations and quotation marks omitted).

The factual allegations in the complaint need to be sufficient to give notice to the

defendant as to what claims are alleged, and the plaintiff must plead “sufficient factual

matter” to render the legal claim plausible, i.e., more than merely possible. Ashcroft v.

Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1949-50 (2009). However, “a legal conclusion

couched as a factual allegation” need not be accepted as true on a motion to dismiss, nor

are recitations of the elements of a cause of action sufficient. Hensley Mfg. v. ProPride,

Inc., 579 F.3d 603, 609 (6th Cir. 2009) (quoting Bell Atlantic Corp. vs. Twombly, 550

2

Defendants attempt to raise two additional issues in this appeal: 1) whether Plaintiff stated a

claim for municipal liability on the part of the Township; and 2) whether any of the Defendants are entitled

to qualified immunity. The district court did not reach these issues due to its ruling on the retaliation claim.

We decline to reach them on appeal.

No. 08-2578 Fritz v. Charter Township of Comstock, et al. Page 6

U.S. 544, 555 (2007)); see also Delay v. Rosenthal Collins Group, LLC., 585 F.3d 1003,

1005-06 (6th Cir. 2009).

B. Plaintiff’s Complaint Was Sufficient to State a Claim for First Amendment

Retaliation

To survive a motion to dismiss a claim under 42 U.S.C. § 1983, the plaintiff must

allege two elements: 1) the defendant acted under color of state law; and 2) the

defendant’s conduct deprived the plaintiff of rights secured under federal law. Bloch v.

Ribar, 156 F.3d 673, 677 (6th Cir. 1998).

1. Defendants Acted Under Color of State Law

Plaintiff alleged in her complaint that Defendant Hudson was employed as the

Township Supervisor, but she made no clear allegations that he was acting under color

of state law when he had three phone conversations with her employer. However, the

district court assumed that Plaintiff had adequately alleged state action for purposes of

this motion and the Defendants did not dispute that characterization in their brief on

appeal. Therefore, it does not appear from the pleadings to be in dispute whether

Defendant Hudson acted under color of state law, and so it will be assumed that Plaintiff

sufficiently pled state action for purposes of evaluating the motion to dismiss. See Black

v. Barberton Citizens Hosp., 134 F.3d 1265, 1267-68 (6th Cir. 1998) (discussing the

contours of “acting under color of state law” for purposes of § 1983 litigation and its

similarity to state action for purposes of the Fourteenth Amendment).

2. Plaintiff’s Allegations of Retaliatory Conduct by Defendants

The second prong of the analysis – whether Defendant’s conduct amounts to a

deprivation of a right protected by federal law – is analyzed in the context of retaliation

claims under 42 U.S.C. § 1983 as a three factor analysis. The plaintiff must plead

factual allegations to establish that

(1) the plaintiff engaged in constitutionally protected conduct; (2) an

adverse action was taken against the plaintiff that would deter a person

of ordinary firmness from continuing to engage in that conduct; and

No. 08-2578 Fritz v. Charter Township of Comstock, et al. Page 7

(3) the adverse action was motivated at least in part by the plaintiff's

protected conduct.

Mezibov v. Allen, 411 F.3d 712, 717 (6th Cir. 2005) (citing Thaddeus-X v. Blatter, 175

F.3d 378, 394 (6th Cir. 1999) (en banc)).

a. Plaintiff’s Conduct is Protected by the First Amendment

Plaintiff’s allegations that she engaged in public comment at public meetings for

Comstock and that she made comments in the press via letters to the editor certainly

suffice as protected conduct under the First Amendment. See Leonard v. Robinson, 477

F.3d 347, 357-58 (6th Cir. 2007); see also Pickering v. Board of Ed. of Tp. High School

Dist. 205, Will County, Illinois, 391 U.S. 563, 568-573 (1968). Defendants do not

contest that Plaintiff’s conduct is protected by the First Amendment. Fritz, 2008 WL

5083503 at *2.

b. Defendants’ Alleged Conduct Was Sufficient to State a Claim

for an Adverse Action

The parties primarily disagree on whether there was an adverse action by the

Defendants against Plaintiff that would “deter a person of ordinary firmness from

continuing to engage” in the kinds of protected conduct in which Plaintiff was engaging.

Mezibov, 411 F.3d at 717. The three phone conversations between Defendant Hudson

and Plaintiff’s employer are the crux of the alleged adverse actions, which Plaintiff

characterizes as follows:

Tim Hudson’s acts of informing Farm Bureau of his dislike and

opposition to Ms. [Plaintiff]’s speech that she made in Comstock

Township forums, that she should refrain from doing so in the future, and

warning Farm Bureau that its presence in the community would be

jeopardized if she did not refrain from doing so in the future.

(Record No. 29, Pl.’s Br. in Opp. 4). Plaintiff also alleged that she was denied zoning

and signage variances in retaliation for her protected conduct. Defendant’s contend in

their motion to dismiss that the adverse action is actually the termination of Plaintiff by

Farm Bureau because only that kind of conduct amounts to an adverse action under

established law, (Record No.25, Defs.’ Br. in Supp. 7), but in order to give effect to the

No. 08-2578 Fritz v. Charter Township of Comstock, et al. Page 8

factual allegations in plaintiff’s complaint, this Court must instead decide, as the district

court did, whether the phone conversations and the denial of variances are legally

sufficient to give rise to a claim of an adverse action.

The term “adverse action” arose in the employment context and has traditionally

referred to actions such as “discharge, demotions, refusal to fire, nonrenewal of

contracts, and failure to promote.” Thaddeus-X, 175 F.3d at 396. However, this Circuit

has held that any action that would deter a person of ordinary firmness from exercising

protected conduct will suffice, which may include harassment or publicizing facts

damaging to a person’s reputation. Id. at 397. The analysis of this factor must be

tailored to the circumstances such that prisoners might have to endure more than public

employees, who in turn might have to endure more than the average citizen. Mezibov,

411 F.3d at 721 (citing Thaddeus-X, 175 F.3d at 398). Plaintiff is not a public employee,

official, or prisoner, and so the level of injury she must allege would be the lower limit

of a cognizable injury for a First Amendment retaliation claim. The appropriate

formulation for these circumstances is whether the actions of Defendant Hudson and

other Comstock officials would be sufficient to deter an average citizen from

participating in public meetings and criticizing local officials about matters directly

relevant to the citizen’s business interests in the community.

There are very few cases in this Circuit addressing First Amendment retaliation

against private individuals. Since our en banc decision in Thaddeus-X setting forth the

applicable standard of law, this case is one of the first concerning private individuals and

is the first in which this Court must address whether it constitutes retaliation for a public

official to speak with a private employer about an employee’s protected conduct in such

a way as to either defame the employee or to threaten her economic livelihood directly

or indirectly. Most of the case law in the Circuit involving retaliation claims involves

public employees who publicly criticize the government, i.e., their employer, or involves

prisoners who are harassed or threatened by prison officials for engaging in protected

conduct. See, e.g., Hughes v. Region VII Area Agency on Aging, 542 F.3d 169, 185-86

(6th Cir. 2008) (public employee terminated after conversations with co-workers and

No. 08-2578 Fritz v. Charter Township of Comstock, et al. Page 9

publishing letter to editor regarding budget); See v. City of Elyria, 502 F.3d 484, 493-94

(6th Cir. 2007) (police officer fired after speaking with FBI regarding corruption in the

police department); Lockett v. Suardini, 526 F.3d 866, 874 (6th Cir. 2008) (prisoner

alleging retaliation by prison guards for comments made in an administrative hearing);

Thomas v. Eby, 481 F.3d 434, 440-41 (6th Cir. 2007) (prisoner claiming retaliation in

the form of misconduct ticket for filing a grievance). Our caselaw therefore provides

insufficient guidance on whether Plaintiff’s complaint is sufficient to state a claim of

retaliation, especially with regards to the alleged adverse action.

Several years prior to Thaddeus-X, this Circuit found conduct that was factually

quite similar to this case sufficient to state a claim for First Amendment retaliation.

McBride v. Village of Michiana, 100 F.3d 457, 459-61 (6th Cir. 1996) (qualified

immunity appeal in which journalist claimed retaliation based on her reporting of public

meetings when village officials called her employer to urge the newspaper to remove

plaintiff from political beat).3 McBride is instructive in showing that this Circuit has

previously held that the very kinds of actions alleged by Plaintiff can amount of First

Amendment retaliation, even if there have been few cases since Thaddeus-X to address

the particular context of public official retaliating against a private individual.4

Plaintiff alleges essentially two forms of adverse action in her complaint: 1) the

three conversations between Defendant Hudson and her employer; and 2) the denial of

her zoning and signage variances.

3

McBride may have implied that in First Amendment retaliation cases allegedly adverse actions

can be divided into essentially two categories – actions “solely to punish [Plaintiff] for her choosing to

exercise one of the basic freedoms upon which our society is founded” and actions that constitute

Defendant’s protected speech under the First Amendment, McBride, 100 F.3d at 462. To the extent it ever

existed, that implied heightened standard for First Amendment retaliation was abrogated by Thaddeus-X

and its progeny which have consistently applied the causality standard that the “adverse action was

motivated at least in part by the plaintiff’s protected conduct.” Thaddeus-X, 394 F.3d at 394 (emphasis

added); Mezibov, 411 F.3d at 717 (applying Thaddeus-X standard in First Amendment retaliation case).

4

There is one case of First Amendment retaliation after Thaddeus-X which deals with a private

individual and cites McBride, but its facts are not very similar to those in this case. See Davidian v.

O'Mara, 210 F.3d 371 (table) (6th Cir. 2000). Davidian concerns a journalist who was claiming public

officials were denying him access to sources in retaliation for his articles.

No. 08-2578 Fritz v. Charter Township of Comstock, et al. Page 10

i. Defendant Hudson’s Conversations with Farm Bureau

The primary allegation in Plaintiff’s complaint is that Defendant Hudson’s

conversations with Plaintiff’s employer amounted to threats to her economic livelihood,

an injury that she alleges to be an adverse action that would deter a person of ordinary

firmness from exercising his or her First Amendment rights. Plaintiff’s complaint

alleges that Defendant Hudson’s statements were “designed to both pressure Ms. Fritz

to discontinue attending Comstock meetings and express opinions on Comstock issues

publicly and privately and discontinue petitioning Comstock for a redress of grievances,

as well as pressure Farm Bureau to move out of Comstock or terminate its relationship

with Ms. Fritz or both.” (Dist. Ct. Doc. No. 1, Compl. ¶ 29). This “factual allegation”

may be better understood as an inference from what Defendant Hudson is alleged to

have communicated to Plaintiff’s employer rather than a fact that must be accepted as

true for purposes of evaluating the motion to dismiss. Still, Plaintiff’s factual

allegations, construed in the most favorable light for her position, show that Defendant

Hudson communicated his dislike and opposition to her speech and commented on his

opinion of its effect on her reputation and on the reputation of Farm Bureau in

Comstock.

While Plaintiff may not have pled specific facts to support her claim that

Defendant Hudson specifically threatened her business, nor that he attempted to

persuade Farm Bureau to terminate its contract with Plaintiff, there is certainly a “set of

facts” which, if accepted by the trier of fact, “would entitle [Plaintiff] to relief.” Conley

v. Gibson, 355 U.S. 41, 45-46 (1957); see Twombly, 550 U.S. at 561-63 (abrogating the

“no set of facts” minimal standard often cited from Conley by requiring more than a

mere possibility of such a “set of facts”). It remains a question of material fact,

discoverable through depositions of the parties involved, as to what the exact contents

of the conversations were. If Defendant Hudson in fact made statements that were

designed to communicate to Farm Bureau that it would be in the business’ interest in

terms of its dealings in Comstock to reign in Plaintiff’s exercise of her First Amendment

rights, or that it would be better for Farm Bureau to cancel its contract with Plaintiff, that

No. 08-2578 Fritz v. Charter Township of Comstock, et al. Page 11

would be an adverse action sufficient to support a claim of retaliation. The complaint

alleged that such threats were made, even if generally alleged, which is sufficient at this

stage of the litigation both to put Defendants on notice of the claim and to raise a

plausible claim of an adverse action.

A person of ordinary firmness would be deterred from engaging in protected

conduct, if as a result, a public official encouraged her employer to terminate the

person’s contract or to have her change her behavior. The fact that the public official

did not have the power to actually terminate the employment, see Cohen v. Smith, 58 F.

App’x 139 (6th Cir. 2003) (police officers reporting threats by doctor to residency

program not an adverse action because they lacked the power to terminate the doctor),

makes this case close, but since Defendant Hudson and the other Comstock Defendants

did have the power to substantially affect Farm Bureau’s ability to do business in

Comstock through their role in enacting township ordinances and making zoning

decisions, the alleged threats are more tangible.

Plaintiff further alleges that many of the statements made by Comstock officials

to her employer were false, misleading or both. Defamatory statements motivated in part

by a person’s exercise of their First Amendment rights can be, but are not always, legally

sufficient standing alone for a claim of adverse action under the framework of this

Circuit. See Mezibov, 411 F.3d at 722-723 (defamatory comments made by prosecutor

did not rise to the level of adverse action for 42 U.S.C. § 1983 retaliation claim).

Examples of such statements from Defendant Hudson include statements that Plaintiff

was in “violation of an ordinance prohibiting solicitation of business clients,” that

Plaintiff had written a letter to the editor in which she “bashed Comstock,” and that

“[Plaintiff] had said things in planning commission meetings that she should not say, that

there was a petition in her neighborhood against her, and that she was very antagonistic

against Comstock.” (Dist. Ct. Doc. No. 1, Compl. ¶¶ 25-26, 28).

Defendants allege that these statements may not suffice as defamation under

Michigan tort law because they are either not defamatory or are protected speech:

No. 08-2578 Fritz v. Charter Township of Comstock, et al. Page 12

A communication is defamatory if it tends to lower an individual’s

reputation in the community or deters third persons from associating or

dealing with that individual. However, not all defamatory statements are

actionable. If a statement cannot be reasonably interpreted as stating

actual facts about the plaintiff, it is protected by the First Amendment.

Ireland v. Edwards, 584 N.W.2d 632, 636 (Mich.App.1998) (citing New Franklin

Enterprises v. Sabo, 480 N.W.2d 326, 328 (Mich. App. 1991); Milkovich v. Lorain

Journal Co., 497 U.S. 1, 20 (1990)). But the inquiry on a motion to dismiss is not

whether Plaintiff will be successful on the merits, but simply whether her pleadings are

sufficient to state a claim upon which relief can be granted.

Many of the statements could not reasonably be interpreted as expressing facts

about Plaintiff, and instead are opinions about Plaintiff’s feelings towards Comstock or

about the propriety of her speech at public meetings, which, especially if they are

considered to be about a matter of public concern, would constitute protected speech

under the First Amendment unless they could be objectively proven to be false.

Milkovich, 497 U.S. at 19-20 (“a statement on matters of public concern must be

provable as false before there can be liability under state defamation law” and the First

Amendment “provides protection for statements that cannot reasonably [be] interpreted

as stating actual facts about an individual”) (internal quotation marks and citations

omitted). The other statements – the petition against her and her violations of an

ordinance – are potentially defamatory if they are not true since a third party, her

employer, might be deterred from associating with her as a result of the statements from

Defendant Hudson. Therefore, had the district court reached the state law claims, it most

likely should have allowed Plaintiff’s defamation claim to survive the motion to dismiss.

However, the Court must inquire whether such potentially defamatory statements

are sufficient as a matter of law to state a claim that the conduct amounts to an adverse

action for purposes of the § 1983 claim. The kinds of statements – both defamatory and

not – that have been interpreted as adverse actions for the purposes of a retaliation claim

are of a fundamentally different character than Plaintiff’s allegations that Defendant

Hudson falsely stated that she was violating ordinances and that there was a petition

No. 08-2578 Fritz v. Charter Township of Comstock, et al. Page 13

against in her in the neighborhood. For example, in Bloch v. Ribar, 156 F.3d 673, 679-

681 (6th Cir. 1998), this Circuit found that a sheriff who used a press conference to

publicize confidential and embarrassing details of the plaintiff’s rape by an unknown

assailant in retaliation for the victim’s public criticism of the sheriff for failing to

diligently investigate the crime did constitute adverse action against the plaintiff.

On the other hand, in Mezibov, a prosecutor’s statements to the press that a

defense attorney was ineffective, looking for a show trial and that the client should ask

for his money back were not found to amount to an adverse action despite the court

assuming for the purposes of its analysis that the statements were defamatory. 411 F.3d

at 722-723. Defendant Hudson’s statements were more similar in kind to, and are

probably less objectionable than, those in Mezibov rather than those in Bloch because

they were not highly embarrassing nor did they impugn Plaintiff’s character. While

Defendant Hudson’s allegedly false claim that there was a petition in the neighborhood

against Plaintiff might be sufficient to state a claim of defamation under Michigan law,

as might the allegedly false claim that she was violating township ordinances, these

potentially defamatory statements were not of such a character that they amounted to an

adverse action taken on their own.

Some of the alleged content of Defendant Hudson’s conversations with

Plaintiff’s employer expressed Hudson’s opinion of her speech and his opinion of its

effect on her reputation in Comstock. That kind of speech is probably most akin to

protected speech under the First Amendment, falling under Defendant Hudson’s right

to respond to Plaintiff’s criticisms that were made in the public sphere. Samad v.

Jenkins, 845 F.2d 660, 663 (6th Cir. 1988) (“Ironically, plaintiff is accusing defendants

of chilling his first amendment freedoms by reserving their own first amendment right

to speak out.”).

Plaintiff argues that because Defendant Hudson’s speech was not of a similar

type – part of a public meeting or in the press – that it should not qualify as responding

to her exercise of her First Amendment rights. (Appellant’s Br. at 18-19). This

argument has some merit since a right to respond is usually in a similar forum and often

No. 08-2578 Fritz v. Charter Township of Comstock, et al. Page 14

is in direct response to the other party, but the fact that Defendant Hudson’s speech was

not in a public forum does not divorce it from First Amendment protection, especially

if it remains focused on an issue of public concern. See Belk v. City of Eldon, 228 F.3d

872, 879-880 (8th Cir. 2000) (a private conversation with a public official may be

afforded First Amendment protection, especially concerning a matter of public concern).

However, regardless of whether Defendant Hudson’s alleged defamatory speech

is properly understood as falling within the constitutionally protected right to respond,

Plaintiff has alleged more than a mere conclusory allegation that Defendant Hudson

attempted to threaten her business relationship with Farm Bureau rather than simply

express his opinion of her reputation in the community or to exercise his right of reply.

Negative comments made by Defendant Hudson, especially about the possible damage

to Farm Bureau’s business, are sufficient to rise to the level of “a threat to take action

tangibly affecting employment status.” Samad, 845 F.2d at 663. After the conversations,

Plaintiff’s employer requested that she change her behavior in the community, and

ultimately Farm Bureau terminated its contract with Plaintiff. While these factual

allegations are not directly relevant to whether Comstock officials took actions that are

cognizable as an adverse action, these facts do support Plaintiff’s theory that Defendant

Hudson’s statements were designed to threaten her economic livelihood. Since few

aspects of one’s life are more important than gainful employment, it is likely that a

person of ordinary firmness would be deterred by this conduct.

ii. Defendants’ Denial of Plaintiff’s Requests for Zoning

and Signage Variances

Plaintiff alleges that not only Defendant Hudson’s statements, but also the

actions of the other Comstock Defendants, constituted an adverse action because they

collectively threatened her economic livelihood. A final allegation in Plaintiff’s

complaint, which the district court ignored, bolsters her retaliation claim – Plaintiff

alleges that the Zoning Board of Appeals denied her request for zoning and signage

variances in retaliation for “her speech and conduct at [C]omstock meetings and her

petitioning Comstock for a redress of grievances.” (Dist. Ct. Doc. No. 1, Compl. ¶ 21).

The denial of the variances directly impacts Plaintiff’s ability to conduct her business

No. 08-2578 Fritz v. Charter Township of Comstock, et al. Page 15

in the manner of her choosing, which is a threat to her economic livelihood. Therefore,

this action alone 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.

On the other hand, Plaintiff continued to publicly criticize Comstock officials and

attend public meetings after her variances were denied, after the conversations with her

employer, and after her termination from Farm Bureau, which suggests that Plaintiff

herself was neither deterred nor chilled from speaking. However, the test is whether a

person of ordinary firmness would be deterred; actual deterrence on the part of the

plaintiff is not necessary to state a claim of an adverse action, Bell v. Johnson, 308 F.3d

594, 606 (6th Cir. 2002). This Circuit has previously held that “we must be careful to

ensure that real injury is involved, lest we ‘trivialize the First Amendment’ by

sanctioning a retaliation claim even if it is unlikely that the exercise of First Amendment

rights was actually deterred. Mezibov, 411 F.3d at 721 (quoting Bart v. Telford, 677

F.2d 622, 625 (7th Cir. 1982)). But a credible threat to the nature and existence of one’s

ongoing employment is of a similar character to the other recognized forms of adverse

action – termination, refusal to hire, etc. – even if perpetrated by a third party who is not

the employer.

From some of the factual allegations in Plaintiff’s complaint, this Court notes that

it is possible that the more immediate and serious threat to Plaintiff’s economic well-

being was that she did not follow her employer’s instructions to change her behavior in

the community, rather than that Defendant Hudson or other Comstock officials spoke

with her employer about her actions in Comstock or denied her variances. However,

under the Iqbal pleading standard, 129 S.Ct. at 1949-50, Plaintiff has plausibly alleged

in her pleadings adverse actions on the part of the Defendants that would deter a person

of ordinary firmness from exercising their First Amendment rights – a threat to her

economic livelihood directly traceable to Defendants’ conduct based on her factual

allegations regarding the conversations and the denial of variances. Therefore, we

No. 08-2578 Fritz v. Charter Township of Comstock, et al. Page 16

conclude that the district court erred in ruling that she had not alleged an adverse action

on the motion to dismiss.

c. Defendants’ Alleged Adverse Actions Were Motivated by

Plaintiff’s Protected Conduct

Plaintiff has pled sufficient facts to support a claim of adverse action and so

should have prevailed on the motion to dismiss as to whether she stated a claim under

42 U.S.C. § 1983 for unlawful retaliation since she has also sufficiently alleged that

these adverse actions were motivated, at least in part, by her protected conduct. It is

difficult to imagine any analysis of Defendant Hudson’s discussions with Plaintiff’s

employer that would not find his speech to be at least motivated in part, if not entirely,

by Plaintiff’s protected conduct.5 Additionally, Plaintiff has sufficiently alleged that the

denial of her zoning and signage variances was motivated at least in part by her

protected conduct at public meetings. Therefore, Plaintiff’s complaint is sufficient to

show that she was engaging in protected conduct, that the Comstock 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.

CONCLUSION

Because Plaintiff’s factual allegations are sufficient to raise more than a mere

possibility of unlawful First Amendment retaliation on the part of the Defendants, the

district court erred in granting the motion to dismiss on the pleadings as to that part of

the complaint. Therefore, we REVERSE the district court’s order granting in part

Defendant’s Motion for Summary Judgment regarding the First Amendment retaliation

claim and REMAND for further proceedings consistent with this opinion.

5

Whether Defendant Hudson’s comments are protected by the First Amendment is an issue that

this Court cannot resolve at this stage of the litigation because further discovery to elucidate the content

of the conversations may be necessary for the analysis. To the extent that his comments to Plaintiff’s

employer were an exercise of his right of reply under the First Amendment, he could not be liable for

retaliation based on that speech. See Samad, 845 F.2d at 663.

No. 08-2578 Fritz v. Charter Township of Comstock, et al. Page 17

_________________

DISSENT

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RYAN, Circuit Judge, dissenting. I respectfully disagree with the majority

opinion, precisely for the reasons stated by District Judge Robert Holmes Bell in his

solidly reasoned and well-written opinion holding that the plaintiff has not alleged an

actionable claim of a violation of her constitutional rights.

I would affirm the district court’s judgment.