Opposition Brief — Taylor v. City of Falmouth, Kentucky (No. 06-1036)

@ | FILED

No. 06-1036 | MAR 2 9 2007

| OFFICE OF THE CLERK

| SUPREME COURT, U.S.

In The

Supreme Court of the Anited States

°

RALPH TAYLOR,

Petitioner,

v.

CITY OF FALMOUTH, KENTUCKY,

and DONALD ENGLAND,

Respondents.

>

4

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

¢

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

¢

MARY ANN STEWART

Counsel of Record

JENNIFER L. LANGEN

ADAMS, STEPNER, WOLTERMANN

& DUSING PLLC

40 West Pike Street

Covington, Kentucky 41011

(859) 394-6200

Attorney for Respondents,

City of Falmouth, Kentucky,

and Donald England

oe

-

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

COUNTERSTATEMENT OF

QUESTIONS PRESENTED

(1) Whether the Sixth Circuit correctly interpreted and

applied the “person of ordinary firmness” standard in

upholding a district court’s decision granting summary

judgment to the City of Falmouth and Councilmember

Donald England on Petitioner’s First Amendment retalia-

tion claim?

(2) In holding that speech cannot form the basis for an

Equal Protection Clause claim in the absence of “harass-

ment or other conduct,” did the Sixth Circuit correctly

apply the law as set forth in Village of Arlington Heights v.

Met. Hous. Dev. Corp., 429 U.S. 252 (1977)?

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF QUESTIONS PRE-

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COUNTERSTATEMENT OF THE CASE................0006+ 1

EE AEPTEEE? EEIEAI YY vscesecsccccessveserccsveneveseeeonsescosevees 5

REASONS FOR DENYING THE PETITION ............... 7

I. THE PETITION CONTAINS MISLEADING

STATEMENTS ABOUT THE FACTS OF THE

INCIDENT ON WHICH PETITIONER'S

CLAIMS WERE PREMISED .............cccseseseeseeees 7

II. THERE IS NO JUSTIFICATION FOR THE

EXERCISE OF CERTIORARI ON PETI-

TIONER’S FIRST AMENDMENT CLAIM........ 12

A. THE HISTORY AND STANDARD AN-

NOUNCED BY THIS COURT IN BUR-

LINGTON NORTHERN .........:c0ccccsssessesseees 12

B. THERE IS NO “SPLIT” AMONG THE

CIRCUITS WITH RESPECT TO WHETHER

VERBAL CONDUCT ALONE CAN SAT-

ISFY THE “ADVERSE ACTION” ELEMENT

OF FIRST AMENDMENT RETALIATION

ST idichnagdiioscevcenvvosevrshnantetewnrcoeveeeseense 15

Ill. THE “HARASSMENT OR OTHER CON-

DUCT” REQUIREMENT IN EQUAL PRO-

TECTION CASES PREMISED ON A RACIAL

SLUR IS CONSISTENT WITH ARLINGTON

Se iidihadaenbenesesssuwvencsevvvvesevverweseneteoveseeers 21

iil

TABLE OF CONTENTS - Continued

Page

IV. PETITIONER HAS PRESENTED NO JUSTIFT-

CATION FOR THE GRANT OF CERTIORARI AS

AGAINST THE CITY OF FALMOUTH. ..........-.00+ 24

COCA I IN voscoccosrensceesesescnnsenennreositunmmenseinensasnasseretrate 24

1V

TABLE OF AUTHORITIES

Page

CASES

Abuhouran v. Acker, 2005 U.S. Dist. LEXIS 12864

ae ey GN Se III soci cs ctadeseh cecutcbinnceniemebinns 24

Allen v. Scribner, 812 F.2d 426 (9th Cir. 1987).............008. 20

Anderson v. Kierstead, 2006 U.S. Dist. LEXIS 4728

Sat drs Oly SEINE csided-cdbiniddp-dacisnaiaddesbeaimdanauiiisnuiiatrebeieees 23

Balt. Sun Co. v. Ehrlich, 437 F.3d 410 (4th Cir.

IIT sicabsicshchsticsitencchisa.hcpichicaciabitiatibanpcahigceicles akinenilidcadadiieissilasmsoadiiii 17

Bart v. Telford, 677 F.2d 622 (7th Cir. 1982) ............eeceeeee 17

Bender v. Brumley, 1 F.3d 271 (5th Cir. 1993)...............00 20

Bennett v. Hendrix, 423 F.3d 1247 (11th Cir. 2005).....16, 17

Blankenship v. Manchin, 471 F.3d 523 (4th Cir.

STEN ciscniedivtihatedsheiaicidindeshbsiinducisecntsoisediamasioatainenedsecadibas 16, 17

Brown v. Runnels, 2006 U.S. Dist. LEXIS 28658

Cee: Soe BN Ek BINED wticssinvehiscendentanlidsdbnnioieretiviiciares 17

Buckley v. Gomez, 1999 U.S. App. LEXIS 129 (9th

te a, Hate weenie chstaeinidenieaitsinihssoctn Measateilstiniiibens 23

Burkybile v. Bd. of Educ., 411 F.3d 306 (2nd Cir.

_, SRR AE SA Se OS TEE RICE A 5ST Hae PUR, SENN A EON 16

Burlington Northern & Santa Fe Ry. Co. v. White,

Ss Ie CE tittitnctincckieeaaticeniinatesbebionsninees passim

Cannon v. Burkybile, 2000 U.S. Dist. LEXIS 14139

Cae eile Ms Big PD ceiictisecsenscasensaboacntedsanneiens icedadias 24

Carrasca v. Pomeroy, 313 F.3d 828 (3rd Cir. 2002) .......... 22

Chicago Reader v. Sheahan, 141 F. Supp. 2d 1142

Re Ae Bs Ae Paiasiccicenncsissciauieidiciniminlisstieibicimbasieninadiasaniapaddhdiies 18

v

TABLE OF AUTHORITIES -— Continued

Page

City of Cuyahoga Falls v. Buckeye Cmty. Hope

Peete, BO UB. LEB CIS vscivinecsocenvcincsscnsavosovnesenss 22, 23

Constantine v. Rectors & Visitors of George Mason

Univ., 411 F.3d 474 (460i: Cir, 2008) scccssccseiccssesessesccccesoee 16

Coyle v. Hughs, 436 F. Supp. 591 (W.D. Ok. 1977)........... 20

Crocker v. City of Kingsville, 2006 U.S. Dist. LEXIS

61410 B.D. Te: Faby 2S, ZOO) cccsssisvsecesesserscnsvacecseasens 16

Ctr. for Bio-Ethical Reform, Inc. v. City of Spring-

boro, 2007 U.S. App. LEXIS 3689 (6th Cir. Feb.

Be Pe iicintiatitikeininikisslael pbsiestdnmmebiiiciatiomeimicwene 16, 17

Dawes v. Walker, 239 F.3d 489 (2nd Cir. 2001)............ 16, 18

DeWalt v. Carter, 224 F.3d 607 (7th Cir. 1999)................. 23

Elston v. Talladega Co. Bd. Of Educ., 997 F.2d 1394

CE ry ee inseicsscievssnnsiadbsanecenccixininicidiavniiaesabaunianiial 22

Framsted v. Mun. Ambulance Serv., 347 F. Supp. 2d

6 as FOIE I i ecasokesistdssinsisvvisvtdadarseuinpeeranelevteeiin 16

Garcia v. City of Trenton, 348 F.3d 726 (8th Cir.

IE sissidas ibicbiecsesindiicttadtioeddacvdasiesidneitadeacabiathiinskageadeiideas 17

Giannini » Calif. State Bar Assn., 2006 U.S. App.

LEXIS 27975 (9th Cir. Nov. 8, 2006).................sssseeeeeees 16

Gilbrook v. City of Westminster, 177 F.3d 839 (9th

ES. IIT ickcadanddcpdeieicapddinsubadaddaphadiatekedeipoeaendngienmadmerii 20

How v. City of Baxter Springs, 2007 U.S. App.

LEXIS 4083 (10th Cir. Feb. 22, 2007).................00008 16,17 ©

Izen v. Catalina, 398 F.3d 363 (5th Cir. 2005).................. 16

Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004)............ 24

Keyes v. Albany, 594 F. Supp. 1147 (N.D.N.Y. 1984)........ 22

TABLE OF AUTHORITIES — Continued

Page

Martin v. City of San Antonio, 2006 U.S. Dist.

LEXIS 54392 (W.D. Tex. July 25, 2006)............cccceeeeeeee 24

Massey v. Johnson, 457 F.3d 711 (7th Cir. 2006).............. 16

McBride v. Village of Michiana, 100 F.3d 457 (6th

a IIIS ichiovisinssindotsoubdeusionsanteeiiiebadeaseiaiiiataiensindiaioniicmnesateties 20

McKee v. Hart, 436 F.3d 165 (8rd Cir. 2006)................ 17,18

McKee v. Rockwall, 877 F.2d 409 (5th Cir. 1989) ............. 22

Mendocino Envil. Cir. v. Mendocino County, 192

SA CUE Ge Be Pecrcccntenaneictbviiccouneceuncininievvcbiains 16

Mezibov v. Allen, 411 F.3d 712 (6th Cir. 20085) ............ 16, 18

Mimics, Inc. v. Vill. of Angel Fire, 394 F.3d 836

anne UNIT <sssiccscnsscedusd lapis hcieieetaeaelininiediimaabacadineiaiueniivaien 16

Mitchell v. Chandler, 2006 U.S. Dist. LEXIS 71843

ees SG ENE. Sey SP brsentesteccovesessserceninhensghasedinetinnts 17

Morris v. Powell, 449 F.3d 682 (5th Cir. 2006)................. 17

Naucke v. City of Park Hills, 284 F.3d 923 (8th Cir.

PIII Cinidiebieeedenaiesianighinitiddelsdceaiiiianinmisieiniemmnsdeemaecteaidies 18

Nunez v. City of Los Angeles, 147 F.3d 867 (9th Cir.

STD cecieicintehe-aginkintiiiiedaiminsieaeebvdtdionabaskiiabeanabicuiaeanemialianiniondte 18, 20

O’Connor v. City of Newark, 440 F.3d 125 (3rd Cir.

DN cia cusabldasgl. pabackancensgkacaradian sameaue 16

Osborne v. Grussing, 2007 U.S. App. LEXIS 4134

SEE Se I, SL, SEE T DP cioccuternecsecuesestbibieducbsacmniniauabumensie 16

Phillips v. Bowen, 278 F.3d 103 (2d Cir. 2002)................. 20

Pittman v. Tucker, 2007 U.S. App. LEXIS 381 (11th

Sy EG ie SEIIEE AF ccnticensiesnacensdgeanebidintonnensbeereuspensioheks 16, 20

Revels v. Vincenz, 382 F.3d 870 (8th Cir. 2004) ................ 16

TABLE OF AUTHORITIES — Continued

Page

Richardson v. Sherrer, 2007 U.S. Dist. LEXIS 4994

Cals MN, Sais PTT P scicisceninenicncccendcanhadaniiiinaibiidiaevniibaien 18

Salley v. PA Dept. of Corr., 181 Fed. Appx. 258 (8rd

Se: SUD sicsitncichnccinsitcetcisiciastib ahd acceeccabailculehditiuaasteibiedeasiouhae 23

Suarez Corp. Ind. v. McGraw, 202 F.3d 676 (4th Cir.

PES Cdiderdcehicttiniunhinia tupiisiiavediabiediiadidmcaacigitaahiiel 18, 20

Sylvia Dev. Corp. v. Calvery Corp., 48 F.3d 810 (4th

Ce, RD siiieesnenisiia sihibisiianieiiciiainieasiaiheaaiainiatertataiapanteaiihdihaiiibie 22

Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999)......... 17

Thomas v. Independence Twnp., 463 F.3d 285 (3rd

TIE Sere cipinaniceihienieesseilidiee canainindcioabansasdsanccaaaaginincaenaesinniats 16, 20

Trudeau v. FTC, 372 U.S. App. D.C. 335 (2006)............... 16

Village of Arlington Hts. v. Met. Hous. Dev. Corp.,

I Ses RE NE Fd cisneencndtdteineanitntbinieiinttbands 21, 22, 23

Williams v. Bramer, 180 F.3d 699 (5th Cir. 1999)............. 22

XMen Sec. Inc. v. Pataki, 196 F.3d 56 (2nd Cir.

TT acsusseaniipcreceesscinsitestieslatea sabieeidedalentaiadiiaddipn deniamabitceuidasishammadebiinngun 18

Zelnik v. Fashion Inst. of Tech., 464 F.3d 217 (2nd

CAS BIT verctisiscsnceustnncicuilcsduiistaihicinidadeiavgiatintiaumadeiaiid 16,17

STATUTORY PROVISIONS

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COUNTERSTATEMENT OF THE CASE

On August 22, 1998, pursuant to the City of Fal-

mouth’s nuisance ordinance, two City police officers towed

what they believed was an abandoned vehicle from Peti-

tioner’s property. The vehicle in question was owned by

Petitioner’s adult son, Shawn Taylor.

Over the next five years, Petitioner appeared sporadi-

cally at City Council meetings to complain about the

towing of his son’s vehicle.’ Specifically, Petitioner ap-

peared at Council meetings on December 29, 1998 and

June 8, 1999, demanding on both occasions that the

vehicle be returned to him. (R. 19 Defendants’ MSJ at Ex.

3 and 4, Apx. pp. 113-119) Each time, City Council referred

Petitioner to then-Police Chief Greg Reis for resolution of

the matter. (R. 19 Defendants’ MSJ at Ex. 3 and 4, Apx.

pp. 113-119) Chief Reis, who happened to be present at the

June 8, 1999, meeting, offered to meet with Petitioner the

next morning to lool: into the matter. However, Petitioner

did not follow up with Chief Reis on either occasion be-

cause he had spoken to Chief Reis once in Augusi 1998

and apparently doubted Reis’ ability to locate the vehicle.

(R. 44 R. Taylor at TR 76-77, 79, Apx. pp. 212-213, 215)

For 18 months, Petitioner made no further inquiries

about the vehicle. Then, on January 2, 2002, he again

appeared before City Council and requested the return

of the vehicle. (R. 19 Defendants’ MSJ at Ex. 5, Apx. pp.

* Shawn Taylor himself never responded to the towing and never

made any inquiries on his own behalf about the vehicle until the

instant action was filed with the district court. Shawn Taylor’s Four-

teenth Amendment procedural due process claim against the City and

the police officers who ordered the towing — the only claim asserted by

either of the plaintiffs that survived summary judgment — settled.

2

120-125) By this time, Petitioner already knew that the

vehicle had been crushed, information that he did not

share with the City when making his demand for the

return of the vehicle.’ (R. 44 R. Taylor at TR 81) In addi-

tion, most of the persons who comprised City Council on

January 2, 2002 were not Councilmembers on June 8,

1999, the last time Petitioner addressed Council about the

towing. (R. 46 T. England at TR 24, Apx. p. 261) Thus,

Council was not prepared to address Petitioner’s inquiries,

but requested that then-Mayor Flaugher investigate and

report on the matter at the next regularly scheduled

Council meeting on February 5, 2002. (R. 19 Defendants’

MSJ at Ex. 5, Apx. pp. 120-125)

Although Petitioner did not appear at the February 5,

2002 Council meeting, City Clerk Terry England reported

that the vehicle had been towed in 1998 under the City’s

nuisance ordinance; that it had been taken to Top Shop

Garage; that the garage was no longer in business; and

that the vehicle could not be located. (R. 19 Defendants’

MSJ at Ex. 6, Apx. pp. 126-130)

Six months later, on August 6, 2002, Petitioner again

appeared at a Council meeting, demanding the return of

“his” vehicle. (R. 19 Defendants’ MSJ at Ex. 7, Apx. pp.

131-134) From the start, Petitioner was extremely con-

frontational with City Clerk Terry England, whom he

accused of hiding the vehicle. (R. 19 Defendants’ MSJ at

Ex. 7, Apx. pp. 131-134; R. 46 C. Clifford at TR 16, Apx. p.

* Petitioner testified that he talked with the owner of Top Shop

Garage in 1999 and was told at that time that the vehicle had been

crushed. (R. 44 R. Taylor at TR 72, Apx. p. 210)

* Again, the vehicle belonged to his adult son, another fact

Petitioner withheld from Falmouth City Council.

3

257; R. 46 T. England at TR 25, Apx. p. 261) The discus-

sion between Petitioner and Terry England became heated

and was loud enough that it interfered with the progres-

sion of Council’s agenda. (R. 46 M. Shields at TR 25-26,

Apx. pp. 254-255; R. 46 T. England at TR 27-28, Apx. p.

262; R. 46 D. Cross at TR 15-16, Apx. p. 258)

Councilmember Donald England (Terry England’s

father) told Petitioner and Terry England to be quiet so

City Council could focus on its business. (R. 19 Defendants’

MSJ at Ex. 7, Apx. pp. 131-134; R. 46 M. Shields at TR 26,

Apx. p. 255; R. 46 T. England at TR 28, Apx. p. 262; R. 46

D. England at TR 38-39, Apx. p. 243) In response, Peti-

tioner approached Councilmember England and said, “I’m

not afraid of you.” (R. 19 Defendants’ MSJ at Ex. 7, Apx.

pp. 131-134; R. 46 D. England at TR 38-39, Apx. p. 243; R.

46 T. England at TR 28, Apx. p. 262) Councilmember

England then called Petitioner a “black bastard” and

invited him to “step outside.” (R. 19 Defendants’ MSJ at

Ex. 7, Apx. pp. 131-134; R. 44 R. Taylor at TR 92, Apx. p.

224; R. 46 C. Clifford at TR 16, Apx. p. 257; R. 46 M.

Shields at TR 27, Apx. p. 255; R. 46 T. England at TR 28,

Apx. p. 262; R. 46 D. England at TR 36, Apx. p. 242) The

rest of Council audibly gasped in disbelief when England

made the remark.‘ (R. 44 R. Taylor at TR 95, Apx. p. 227)

After making the remark, Donald England went

outside. A police officer who regularly attended City Council

meetings and a councilmember followed and detained

England, a measure Petitioner acknowledges was intended

‘In his deposition, Petitioner characterized the reaction to

England’s comment as nervous laughter, “like, you know, like one little

kid does something, all the kids does, oh, that’s all I heard.” (R. 44 R.

Taylor at TR 95, Apx. p. 227)

4

to make sure there would be no physical confrontation

outside. (R. 44 R. Taylor at TR 93-94, 98, Apx. pp. 225-226,

230) Petitioner stayed to finish addressing the remaining

members of Council. He told Council he would come back

the following month to discuss his vehicle again. (R. 44 R.

Taylor at TR 93-94, Apx. pp. 225-226)

Having finished addressing City Council, Petitioner

left the meeting. Donald England, who was then outside,

was being detained by a police officer and one of his fellow

Councilmembers to calm him down and to ensure that no

physical confrontation ensued between England and

Petitioner. (R. 44 R. Taylor at TR 93-94, 98, Apx. pp. 225-

226, 230) Petitioner attempted to walk in England’s

direction, purportedly because that was the way to his

home. However, to prevent any interaction between

England and Petitioner, a police officer told Petitioner he

could not walk in that direction. Rather than taking

another route home, Petitioner remained at the scene for

approximately 30-45 minutes, during which time he now

claims he was being “detained.”

Notwithstanding England’s remark, the City Attorney

who was present at the August 6, 2002 Council meeting

encouraged Petitioner to submit a claim for compensation

for the vehicle that had been towed. (R. 44 R. Taylor at TR

78-79, Apx. pp. 214-215) City Council also directed its -y

Clerk and City Attorney to investigate Petitioner’s allega-

tion about the towing of the vehicle. (R. 19 Defendants’

MSJ at Ex. 8, Apx. pp. 135-139) Indeed, City Council

placed Petitioner on the agenda for its September 3, 2002,

meeting, and the City Attorney reported the results of his

investigation at that time. (R. 19 Defendants’ MSJ at Ex.

1, Apx. pp. 107-111).

5

Having investigated the matter, the City Attorney

reported that Shawn Taylor, not Petitioner, owned the

vehicle and that the claim had to be resolved with the

vehicle’s owner. (R. 19 Defendants’ MSJ, Apx. pp. 76-106).

Not having heard from Shawn Taylor, the actual owner of

the vehicle, City Council took no further action.

¢

PROCEEDINGS BELOW

On July 1, 2003, Petitioner filed a Complaint against

the City of Falmouth, Mayor Gene Flaugher, the two police

officers who had directed the towing of the vehicle,’ and

Councilmembers, Donald England, Janet Field, Mary Ann

Shields, Clay Clifford, Don Cross and Virgil Moore, all in

their individual and official capacities (collectively “Fal-

mouth Defendants”), alleging, pursuant to 42 U.S.C.

§ 1983, that Falmouth Defendants had violated his and

Shawn Taylor’s constitutional rights.

Shawn Taylor asserted multiple causes of action

under the Fourth and Fourteenth Amendments in connec-

tion with the towing of his vehicle. (R. 1 Complaint,

Apx. pp. 20-30) The District Court granted summary

judgment in Shawn Taylor’s favor on his Fourteenth

Amendment procedural due process claim, but granted

summary judgment to Falmouth Defendants on all of

* Petitioner’s reference to having sued “several police officials” in

paragraph 6 of his “Statement of the Case,” followed in quick succession

by his reference to a “police detention” in the next paragraph improp-

erly suggests that he asserted a Fourth Amendment claim against the

officers who allegedly detained him. He did not. The only police officers

named as defendants in Petitioner's Complaint were the two who towed

Shawn Taylor's vehicle. Petitioner asserted no claim against them.

6

Shawn Taylor’s other claims. (R. 52 Opinion at 1-23, Apx.

pp. 31-53) The parties settled Shawn Taylor’s procedural

due process claim and Shawn Taylor never appealed the

remainder of the District Court’s decision.

Petitioner asserted claims premised on both the

towing and the incident in which Donald England called

him a “black bastard.” (R. 1 Complaint, Apx. pp. 20-30)

When Falmouth Defendants challenged his standing to

raise claims based on the towing and asserted a statute of

limitations defense to those claims, Petitioner abandoned

all claims premised on the towing and sought to recover

solely for England’s “black bastard” remark. (R. 19 Defen-

dants’ Memorandum in Support of MSJ at 6-8, Apx. pp. 81-

83; R. 27 Plaintiffs’ Response to Defendants’ MSJ at 6,

Apx. p. 147) Thus, Petitioner alleged that England vio-

lated his right to equal protection and retaliated against

him for exercising his First Amendment rights by calling

him a “black bastard.” In addition, Petitioner alleged that

Flaugher, Field, Shields, Clifford, Cross and Moore

(“Council Defendants”) were liable in their individual

capacities for failing to rebuke England after that com-

ment. Finally, Petitioner sought to impose liability on the

City of Falmouth in connection with England’s remark and

the elected officials’ alleged lack of response to that re-

mark.

In a thorough and well-reasoned opinion, the District

Court granted summary judgment to the City, Council-

member England and the Council Defendants on all of

Petitioner’s claims. Petitioner appealed that decision to

the Sixth Circuit Court of Appeals, and the Sixth Circuit,

in an equally sound and well-reasoned opinion, affirmed

the District Court’s decision.

By way of the instant Petition, Petitioner seeks review

of the Sixth Circuit’s decision with respect to his First

Amendment retaliation and equal protection claims

against Councilmember England. In addition, having

identified the City of Falmouth as a party to this proceed-

ing, Petitioner apparently seeks review in this forum of

the Sixth Circuit’s decision with respect to his municipal

liability claim.

+

REASONS FOR DENYING THE PETITION

I. THE PETITION CONTAINS MISLEADING STATE-

MENTS ABOUT THE FACTS OF THE INCIDENT

ON WHICH PETITIONER’S CLAIMS WERE PREM-

ISED

Before getting to the heart of this Response, it is

necessary to clarify several misleading statements and/or

inaccurate implications contained in the Petition.

First, Petitioner contends that “the City’s legislative

body itself engagel[d] in the racially intimidating conduct”

and repeatedly imputes England’s comments to the City

Council as a whole. (Petition, pp. 7, 19, 25-30, FN 6 and 7)

That is wholly unsupported by any evidence in the record.

The only person who uttered a racially insensitive or

intimidating comment is Donald England. It is elementary

that a legislative body speaks not through the voice of a

single legislator, but only by majority vote. Any other

arrangement would require a vote on every sentiment ever

expressed by a councilmember, lest one councilmember’s

diatribe be subsequently construed as the opinion of “the

legislative body itself.” As such, the legislative body itself

did not engage in racially intimidating conduct.

8

Second, Petitioner states: “Mr. England then walked

outside, accompanied by an armed officer, for the purpose

of making good on his threat.” (Petition, pp. 6-7) As writ-

ten, this statement could be read to unfairly infer that the

“armed guard” was brought along to reinforce England’s

threat. However, as Petitioner plainly acknowledges, a

police officer and another councilmember each on their

own initiative, followed England outside in order to ensure

that England did not fight with Petitioner. (R. 44 R. Taylor

at TR 93-98, Apx. pp. 225-230)

Third, Petitioner asserts that Falmouth City Council

“rejected” his complaints about the towing of his son’s

vehicle and that the rejection was “racist.” (Petition, p. 7)

This assertion is completely unfounded. For one thing,

Council did not “reject” Petitioner’s complaints. To the

contrary, the City Attorney suggested that Petitioner

submit a claim to the City’s insurance carrier, a suggestion

Petitioner concedes he simply ignored. (R. 44 R. Taylor at

TR 78-79, Apx. pp. 214-215) In addition, Council directed

then-Mayor Flaugher and the City Clerk to investigate the

circumstances of the towing and the whereabouts of the

vehicle and to report back at the next regularly scheduled

meeting of Falmouth City Council. The City Attorney, in

addressing his client, the City, rendered legal opinions

concerning Petitioner’s standing to contest the towing and

the expiration of the statute of limitations. There was no

evidence that these legal conclusions, which were unchal-

lenged, were racist or that Council’s reliance thereon was

motivated by racial prejudice.

* The Sergeant-At-Arms of Ci , Council, who was also a police

officer for the City of Falmouth, is the “armed guard” to whom Taylor

refers. (R. 44 R. Taylor at TR 95, Apx. p. 227)

9

Petitioner has never produced any evidence that

Falmouth City Council as a whole treated him any differ-

ently than it treated others, or that any difference in

treatment was the result of Petitioner’s race. To the

contrary, just as it had done for other citizens in the past,

Falmouth City Council gave Petitioner permission to

address Council on a matter that was not on the agenda.

(R. 46 V. Moore at TR 13-14, Apx. pp. 263-264; R. 46 Gene

Flaugher at TR 60, Apx. p. 251; R. 46 T. England at TR 19-

21, Apx. p. 260) In addition, Falmouth City Council re-

sponded to Petitioner’s complaint the same way it re-

sponded to complaints from other citizens, i.e., by directing

the Mayor to investigate and report back to Council. (R. 46

D. Cross at TR 23-24, Apx. p. 259; R. 46 D. England at TR

26-27, Apx. p. 241)

Finally, since the fact that England threatened him

did not convince the District Court that he had a viable

equal protection claim, Petitioner shifted the focus of his

argument on appeal and in this Petition. Specifically,

Petitioner now insinuates that he was “detained” by

officers outside of the City building following his verbal

exchange with England and that the detention constitutes

“harassment,” such that he has a viable Equal Protection

claim.’ There are two problems with this insinuation.

First, while case law suggests that “harassment or other

conduct” might be sufficieaé te state a viable equal protec-

tion claim, it certainly does not stand for the proposition

that any inconvenience or perceived harassment — no

” Petitioner’s Complaint did not assert a Fourth Amendment

violation based on this detention, nor did he argue in any of his briefs at

the trial court level that the detention constituted “harassment”

sufficient to support his equal protection claim.

10

matter how de minimis - supports an equal protection

claim. Second, there is no support for Petitioner’s conten-

tion that he was “unlawfully” detained. Everyone agrees

that Petitioner initiated a discussion that led to “a hot and

heated night” in Falmouth City Council chambers’, that

England asked Petitioner to “step outside,” and that

Petitioner construed that as a threat to his personal safety.

(R. 44 R. Taylor at TR 78, Apx. p. 214) Everyone also

agrees that police officers and a councilmember followed

the two outside, separated them to prevent any physical

confrontation and to protect Petitioner, and told them

“there wasn’t going to be no fighting on this sidewalk.” (R.

44 R. Taylor at TR 93-96, 98, Apx. pp. 225-228, 230)

According to Petitioner, both he and England were de-

tained, though separately. (R. 44 R. Taylor at TR 94, Apx.

p. 226) While Petitioner apparently disagrees with the

way the situation was handled, he has offered no legal

authority to suggest that it was unreasonable as a matter

of law to handle the situation as the police officers did. As

such, Petitioner’s assertion that he was “unlawfully”

detained is without merit. More importantly, however, that

assertion simply does not support his Equal Protection

claim.”

As the courts below both correctly noted, the conduct

that Petitioner relies upon to establish his claims consists

* While Petitioner denies it was his fault things got heated, by his

own testimony he acknowledges that it “was a hot and heated night” at

Falmouth City Council chambers. (R. 44 R. Taylor at TR 78, 89, Apx.

pp. 214, 221)

* Plaintiff never asserted a claim for unlawful detention under the

Fourth or Fourteenth Amendment in his Complaint. Plaintiff never

named the alleged armed guards as Defendants; nor did he assert an

unlawful detention claim against the councilmember who went outside.

solely of speech. Specifically, Petitioner relies upon a single

verbal exchange between himself and Donald England. No

physical confrontation between Donald England and

Petitioner ever occurred; Councilmember Shields and a

police officer who was present when Defendant England

made his remark, each on their own initiative, went

outside to make sure that no such confrontation ensued.

Beyond this one verbal exchange that was initiated by

Petitioner, he cannot point to anything else in support of

his claims. The fact remains that Petitioner relies solely

on speech to establish both a First Amendment retaliation

claim and an equal protection violation. Under the legal

authority he himself cites, such evidence was insufficient

to overcome summary judgment. Having been unsuccess-

ful in two attempts to convince the courts that he could

sustain a claim, Petitioner now contends that the Sixth

Circuit misconstrued the law and failed to apply applica-

ble precedent. For the reasons explained herein, that

contention cannot succeed.

In sum, the courts below were correct to grant sum-

mary judgment to the City and Council Defendants on

Petitioner’s claims. Though cleverly couched in terms of

“conflicts” among the circuits and the failure to apply new

precedent from this Court, all that the Petition really

seeks is a review of the manner in which the Sixth Circuit

applied existing applicable precedent. There is no conflict

among the circuits, and the Sixth Circuit’s application of

the law to these facts is wholly consistent with the law as

applied by its sister circuits.

12

U. THERE IS NO JUSTIFICATION FOR THE EX-

ERCISE OF CERTIORARI ON PETITIONER’S

FIRST AMENDMENT CLAIM

Petitioner’s chief contention in support of certiorari is

that Burlington Northern & Santa Fe Ry. Co. v. White, 126

S.Ct. 2405 (2006), has been insufficient to eliminate the

so-called “division” among the circuit courts in applying

the second element of First Amendment retaliation claims.

(Petition, pp. 14-17) Petitioner’s contention lacks merit

and does not support a grant of certiorari.

A. THE HISTORY AND STANDARD AN-

NOUNCED BY THIS COURT IN BURLING-

TON NORTHERN

This Court’s decision in Burlington Northern resolved

a split among the circuits as to whether Title VII’s anti-

retaliation provision should be interpreted coterminous

with Title VII’s anti-discrimination provision, such that

the type of adverse employment action necessary to

support a retaliation case was limited to the type of

adverse employment action necessary to support a dis-

crimination case." Specifically, prior to Burlington North-

ern, some circuits applied an “ultimate employment

decision” standard in which retaliation was not actionable

unless it affected one of a narrow list of categories “such

as hiring, granting leave, discharging, promoting, and

* Title VII's anti-discrimination provision appears at 42 U.S.C.

§ 2000e-2 and forbids discrimination against any members of certain

protected groups “with respect to the terms and conditions of [their]

employment.” Title VII's anti-retaliation provision appears at 42 U.S.C.

§ 2000e-3 and forbids retaliation against an employee who has “op-

posed” a practice that is unlawful under Title VII’s anti-discrimination

provision.

13

compensating.” Other circuits held that retaliation was

actionable if it affected a “term or condition” of employ-

ment, “term or condition” being defined tie same in both

anti-discrimination and anti-retaliation cases. A few

circuits held that the scope of actionable retaliatory

conduct was broader than the scope of actionable discrimi-

natory conduct. See id. at 2410-2411. Of course, the re-

strictive standards applied by some circuits left open many

avenues for an employer to retaliate against an employee

for having participated in Title VII enforcement proceed-

ings without fear of liability.

In deciding Burlington Northern, this Court defined

the scope of actionable retaliatory conduct in a Title VII

context. The Court made clear that retaliatory conduct

does not necessarily have to affect an ultimate employ-

ment decision or a ierm or condition of employment to be

actionable, and that retaliatory conduct could, under the

right circumstances, be actionable even if it occurred

outside of the workplace. See id. at 2412-2414. In light of

this Court’s decision in Burlington Northern, an employee

can recover under 42 U.S.C. § 2000e-3 for retaliation

against her by her employer if the conduct would deter a

reasonable employee from making or supporting a charge

of discrimination. Jd. at 2415. This is a broader standard

than previously applied by many circuits in Title VII anti-

retaliation cases.

Despite its breadth, the standard annreunced’ in

Burlington Northern does not render ail retaliatory

conduct actionable in Title VII cases, a point that Peti-

tioner neglects to acknowledge. This Court was quite clear

on that point: |

14

The anti-retaliation provision protects an indi-

vidual not from all retaliation, but from retalia-

tion that produces an injury or harm.... In our

view, a plaintiff must show that a reasonable

employee would have found the challenged action

materially adverse, “which in this context means

it well might have dissuaded a reasonable

worker from making or supporting a charge of

discrimination.” ...

We speak of material adversity because we be-

lieve it is important to separate significant from

trivial harms. Title VII, we have said, does not

set forth a general civility code for the American

workplace.... An employee’s decision to report

discriminatory behavior cannot immunize that

employee from those petty slights that all employ-

ees experience.... The anti-retaliation provision

seeks to prevent employer interference with “un-

fettered access” to Title VII’s remedial mecha-

nisms.... It does so by prohibiting employer

actions that are likely “to deter victims of dis-

crimination from complaining to the EEOC, the

courts and their employers. And normally petty

slights, minor annoyances and simple lack of

good manners will not create such deterrence... .

We phrase the standard in general terms because

the significance of any given act of retaliation

will often depend upon the particular circum-

stances. Context matters ... Hence a legal stan-

dard that speaks in general terms rather than

specific prohibited acts is preferable, for an “act

that would be immaterial in some situations is

material in others.”

By focusing on the materiality of the challenged

action and the perspective of a reasonable person

15

in the plaintiff’s position, we believe this stan-

dard will screen out trivial conduct while effec-

tively capturing those acts that are likely to

dissuade employees from complaining or assist-

ing in complaints about discrimination.

Id. at 2414-2416 (citations omitted). Thus, actionable

retaliatory conduct in Title VII cases is now limited by one

consideration and one consideration only: whether, under

the circumstances, the retaliation was sufficient to deter a

reasonable employee from asserting or supporting a

charge of Title VII discrimination. This, of course, is

precisely the standard the Sixth Circuit applied in the

present case.

B. THERE IS NO “SPLIT” AMONG THE CIR-

CUITS WITH RESPECT TO WHETHER

VERBAL CONDUCT ALONE CAN SATISFY

THE “ADVERSE ACTION” ELEMENT OF

FIRST AMENDMENT RETALIATION CLAIMS

The broad standard adopted by this Court in Title VII

cases is essentially the same broad standard federal courts

have applied, even prior to Burlington Northern, in First

Amendment retaliation cases.

Specifically, federal courts universally hold that any

conduct. sufficient to deter a person of ordinary firmness

from continuing to speak out on a matter of public concern

satisfies the “adverse action” element of a First Amendment

retaliation claim. Petitioner’s intimation that the Second

Circuit is the only circuit to apply this standard is simply

inaccurate." Every federal circuit to have confronted a

" See Petition, pp. 12-13.

16

First Amendment retaliation case has applied this flexible

standard, both before and since this Court’s June 22, 2006

decision in Burlington Northern. See e.g., Zelnik v. Fashion

Inst. of Tech., 464 F.3d 217 (2nd Cir. 2006); Burkybile v.

Bd. of Educ., 411 F.3d 306 (2nd Cir. 2005); Thomas uv.

Independence Twnp., 463 F.3d 285 (3rd Cir. 2006);

O’Connor v. City of Newark, 440 F.3d 125 (3rd Cir. 2006);

Blankenship v. Manchin, 471 F.3d 523 (4th Cir. 2006);

Constantine v. Rectors & Visitors of George Mason Univ.,

411 F.3d 474 (4th Cir. 2005); Crocker v. City of Kingsville,

2006 U.S. Dist. LEXIS 51410 (S.D. Tex. July 26, 2006);

Izen v. Catalina, 398 F.3d 363 (5th Cir. 2005); Ctr. for Bio-

Ethical Reform, Inc. v. City of Springboro, 2007 U.S. App.

LEXIS 3689 (6th Cir. Feb. 20, 2007); Mezibou v. Allen, 411

F.3d 712 (6th Cir. 2005); Massey v. Johnson, 457 F.3d 711

(7th Cir. 2006); Framsted v. Mun. Ambulance Serv., 347

F. Supp. 2d 638 (W.D. Wisc. 2004); Osborne v. Grussing,

2007 U.S. App. LEXIS 4134 (8th Cir. Feb. 26, 2007); Revels

v. Vincenz, 382 F.3d 870 (8th Cir. 2004); Giannini v. Calif.

State Bar Assn., 2006 U.S. App. LEXIS 27975 (9th Cir.

Nov. 8, 2006); Mendocino Envtl. Ctr. v. Mendocino County,

192 F.3d 1283 (9th Cir. 1999); How v. City of Baxter

Springs, 2007 U.S. App. LEXIS 4083 (10th Cir. Feb. 22,

2007); Mimics, Inc. v. Vill. of Angel Fire, 394 F.3d 836

(10th Cir. 2005); Pittman v. Tucker, 2007 U.S. App. LEXIS

381 (11th Cir. Jan. 9, 2007); Bennett v. Hendrix, 423 F.3d

1247 (11th Cir. 2005); Trudeau v. FTC, 372 U.S. App. D.C.

335 (2006).

Of course, and consistent with Burlington Northern,

some conduct undertaken to retaliate against a person for

his First Amendment expression will not be actionable

under this standard. Just as Title VII retaliation cannot be

premised on “trivial harms,” Burlington Northern, supra,

17

First Amendment retaliation “is not born of de minimis

threats or inconsequential actions.” Ctr. For Bio-Ethical

Reform, supra, citing Thaddeus-X v. Blatter, 175 F.3d 378

(6th Cir. 1999); see also Dawes v. Walker, 239 F.3d 489

(2nd Cir. 2001); McKee v. Hart, 436 F.3d 165 (3rd Cir.

2006); Balt. Sun Co. v. Ehrlich, 437 F.3d 410 (4th Cir.

2006); Morris v. Powell, 449 F.3d 682 (5th Cir. 2006); Bart

v. Telford, 677 F.2d 622 (7th Cir. 1982); Garcia v. City of

Trenton, 348 F.3d 726 (8th Cir. 2003); Brown v. Runnels,

2006 U.S. Dist. LEXIS 28658 (E.D. Cal. May 11, 2006);

How, supra; Bennett, supra. The “person of ordinary

firmness” standard “is an objective inquiry which is

flexible enough to accommodate the various circumstances

in which retaliation claims arise and which is capable of

screening the most trivial of actions.” Mitchell v. Chandler,

2006 U.S. Dist. LEXIS 71843 (W.D. Ky. Sept. 26, 2006),

citing Thaddeus-X, supra. See also Blankenship, supra;

Bennett, supra; Zelnik, supra.

Many specific instances of purely verbal” retaliatory

conduct fail to support a First Amendment retaliation

claim because they are simply insufficient to deter a

person of ordinary firmness from continuing to engage in

“ Petitioner contends there is a split among the circuits as to “the

proper standard for determining whether retaliatory verbal conduct

toward an ordinary citizen is actionable” in First Amendment retalia-

tion cases. To effectively evaluate whether such a split in fact exists,

one must necessarily isolate First Amendment retaliation cases

involving purely “verbal” retaliation. Identifying such cases is an issue

unto itself which begs the question: “Verbal,” as opposed to what? It is

not entirely clear whether retaliation continues to be “verbal” when it

extends beyond simple name-cailing to, for example, an unexecuted

threat, verbal release of private information about a plaintiff to a third

person, an accusation, or having a conversation about the plaintiff with

a third party.

18

protected conduct. E.g., Naucke v. City of Park Hills, 284

F.3d 923 (8th Cir. 2002) (harassing comments were offen-

sive, unprofessional and inappropriate but were insuffi-

cient to deter a person of ordinary firmness from

expressing political views); McKee, supra (remarks insuffi-

cient to deter person of ordinary firmness from continuing

to express views about the appropriate scope of an investi-

gation); Dawes, supra (being called a “rat” and “informant”

in retaliation for filing a grievance would not deter inmate

of ordinary firmness from making further grievances);

Nunez v. City of Los Angeles, 147 F.3d 867 (9th Cir. 1998)

(being “badmouthed” and threatened insufficient under

the circumstances to deter person of ordinary firmness

from engaging in protected conduct); Richardson uv.

Sherrer, 2007 U.S. Dist. LEXIS 4994 (D.N.J. Jan. 23,

2007) (idle threats of harassment are not actionable

retaliation).

Purely “verbal” retaliation is particularly susceptible

to falling short of the “person of ordinary firmness” stan-

dard because it presents a competition of First Amend-

ment rights. Specifically, both parties to retaliation cases

have rights under the First Amendment, and imposing

liability fox simple speech would infringe on the rights of

the public official whose speech is at issue. Suarez Corp.

Ind. v. McGraw, 202 F.3d 676 (4th Cir. 2002); Nunez v.

City of Los Angeles, 147 F.3d 867 (9th Cir. 1998); Chicago

Reader v. Sheahan, 141 F. Supp. 2d 1142 (N.D. Ill. 2001);

XMen Sec. Inc. v. Pataki, 196 F.3d 56 (2nd Cir. 1999);

Mezibov, supra.

However, no circuit rigidly holds that verbal retalia-

tion is per se insufficient to support a First Amendment

retaliation claim. Indeed, under appropriate circum-

stances, verbal retaliation may be sufficient to deter a

19

person of ordinary firmness from engaging in protected

conduct. For example, when verbal retaliation is part of a

campaign of harassment, it is generally actionable. In

Barth, supra, a city employee opposed the incumbent

mayor in an election. She alleged that the mayor orches-

trated a campaign of petty harassments —- including

baseless reprimands and ridiculing her for bringing a

birthday cake to the office — in retaliation for her political

ambitions. The Seventh Circuit denied summary judgment

to the mayor, explaining:

... We cannot say as a matter of law that the ex-

ercise of First Amendment rights by public em-

ployees cannot be deterred by subjecting

employees who exercise them to harassment and

ridicule through selective enforcement of work

rules. The effect on freedom of speech may be

small, but since there is no justification for har-

assing people for exercising their constitutional

rights it need not be great in order to be action-

able. Yet even in the field of constitutional torts

de minimis non curat lex. Section 1983 is a tort

statute. A tort to be actionable requires injury. It

would trivialize the First Amendment to hold

that harassment for exercising the right of free

speech was always actionable no matter how

unlikely to deter a person of ordinary firmness

from that exercise — that if the Mayor of Spring-

field had frowned at Miss Bart for running for

public office he would be liable for damages (un-

provable, of course) under section 1983. However,

more is alleged here — an entire campaign of har-

assment which though trivial in detail may have

been substantial in gross. It is a question of fact

whether the campaign reached the threshold of

actionability under section 1983.

20

Id. See also Phillips v. Bowen, 278 F.3d 103 (2d Cir. 2002);

Thomas, supra; McBride v. Village of Michiana, 100 F.3d

457 (6th Cir. 1996) (pervasive verbal harassment and

threats sufficient to deter First Amendment activity);

Allen v. Scribner, 812 F.2d 426 (9th Cir. 1987); Pittman,

supra.

The authorities contained in the Petition do not

support the existence of a per se rule in any jurisdiction.

Of the authorities Petitioner cites as providing the position

of the Fifth and Ninth Circuits, only two — Gilbrook v. City

of Westminster, 177 F.3d 839 (9th Cir. 1999), and Nunez,

supra — are actually First Amendment retaliation cases.”

In Gilbrook, the alleged retaliation was lost job and lost

pay — not merely verbal conduct. Nunez applies the “per-

son of ordinary firmness” test and concludes that, under

the circumstances of that case, the verbal conduct alleged

was insufficient. Similarly, the authority Petitioner cites

as the Fourth Circuit’s position — Suarez, supra — does not

represent a per se rule. The Suarez Court recognized that

verbal conduct by public official could be actionable if it

contained a threat, coercion, or intimidation, or if it was

sufficiently embarrassing because of the disclosure of

private information, or if it affects another more tangible

interest. This is simply another way of saying that verbal

conduct may be sufficient to deter a person of ordinary

firmness, depending on the context and circumstances.

Thus, Suarez is entirely consistent with other jurisdictions

in applying the “person of ordinary firmness” standard.

* Petitioner also cites Bender v. Brumley, 1 F.3d 271 (5th Cir.

1993), and Coyle v. Hughs, 436 F. Supp. 591 (W.D. Ok. 1977). (Petition,

p. 12) Neither involves the First Amendment or retaliation in any

context.

21

There is no split among the circuits with regard to the

sufficiency of verbal conduct to establish a First Amend-

ment retaliation claim. The different results reached by

the federal courts — sometimes two federal courts in the

same circuit — in cases involving verbal retaliation simply

reflects the fact-specific nature of the applicable standard

and is proof that the standard is working as it should.

In the present case, the Sixth Circuit and the district

court both clearly understood and correctly applied the

“person of ordinary firmness” standard. Both reviewed the

evidence extensively and concluded that a person of

ordinary firmness would not have been deterred from

addressing the Falmouth City Council simply because

Donald England, on one occasion, called him a black

bastard and threatened to engage him in a fist fight. That

conclusion is appropriate inasmuch as retaliation cases

are not intended to enforce a general civility code, but only

to prevent conduct that would deter a person of ordinary

firmness from engaging in protected conduct. Burlington

Northern, supra. What Petitioner essentially seeks from

this Court is a third application of the established stan-

dard — but with a different outcome. Clearly, that is not

the purpose of certiorari. Supreme Ct. R. 10.

Ill. THE “HARASSMENT OR OTHER CONDUCT”

REQUIREMENT IN EQUAL PROTECTION

CASES PREMISED ON A RACIAL SLUR IS

CONSISTENT WITH ARLINGTON HEIGHTS

To prevail on a claim under the Equal Protection

Clause, a plaintiff must establish both discriminatory

effect and discriminatory purpose. Village of Arlington

Hts. v. Met. Hous. Dev. Corp., 429 U.S. 252 (1977) (“Offi-

cial action will not be held unconstitutional solely because

22

it results in a racially disproportionate impact.... A

racially discriminatory intent ... must [also] be shown.”);

City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538

U.S. 188 (2003).

Discriminatory purpose may be established by refer-

ence to statements attributable to the person or entity

accused of violating the plaintiff’s rights. E.g., Arlington

Hts., supra at 268; Sylvia Dev. Corp. v. Calvery Corp., 48

F.3d 810 (4th Cir. 1995); Elston v. Talladega Co. Bd. Of

Educ., 997 F.2d 1394 (11th Cir. 1993); McKee v. Rockwall,

877 F.2d 409 (5th Cir. 1989); Carrasca v. Pomeroy, 313

F.3d 828 (3rd Cir. 2002). Discriminatory purpose, however,

is only half of the equation in Equal Protection analysis. A

plaintiff is still required to demonstrate a discriminatory

effect.

For that reason, federal courts faced with the utter-

ance of racially charged statements by public officers have

refused to impose liability unless the plaintiff can show

that the officer in question treated him differently in some

other respect. Generally, harassment or some other con-

duct on the part of the officer that violates the plaintiff’s

rights is sufficient to establish discriminatory effect. Such

was the Fifth Circuit’s reasoning in Williams v. Bramer,

180 F.3d 699, 706 (5th Cir. 1999):

We hold today that an officer’s use of a racial epi-

thet, without harassment or some other conduct

that deprives the victim of established rights,

does not amount to an equal protection violation.

When leveled against a citizen by a police officer,

a racial epithet, by its nature, calls attention to

the citizen’s racial identity. The use of an epithet

is therefore strong evidence that a comment or

action is racially motivated. The question in the

23

equal protection context, however, is not just

whether the conduct is racially motivated but

also whether that action deprives a person of

“equal protection of the laws.” ... Where the

conduct at issue consists solely of speech, there is

no equal protection violation.

See also Salley v. PA Dept. of Corr., 181 Fed. Appx. 258

(3rd Cir. 2006) (no equal protection violation, despite

alleged use of slur, in the absence of evidence that plaintiff

was treated differently); Keyes v. Albany, 594 F. Supp.

1147 (N.D.N.Y. 1984) (“An equal protection violation will

be found when racial animus inspires police misconduct”);

Anderson v. Kierstead, 2006 U.S. Dist. LEXIS (D.N.J. Feb.

6, 2006); DeWalt v. Carter, 224 F.3d 607 (7th Cir. 1999);

Buckley v. Gomez, 1999 U.S. App. LEXIS 129 (9th Cir. Jan.

4, 1999).

Requiring an Equal Protection plaintiff to show

harassment or some other conduct that violates his rights

is not, as Petitioner claims, a “heightened evidentiary

harassment threshold.” Rather, that requirement simply

reflects the fact that an Equal Protection claim is com-

prised of two elements, i.e., discriminatory purpose and

discriminatory effect. By imploring this Court to premise

Equal Protection liability on a single racially charged

statement, Petitioner essentially seeks to eliminate the

discriminatory effect component of such a claim. Clearly,

Petitioner’s position is contrary to the well-established

precedent of this Court. Arlington Hts., supra; Cuyahoga

Falls, supra.

Nor is there any wisdom to further defining the type

of “harassment” sufficient to constitute discriminatory

effect, as Petitioner suggests. (Petition, pp. 27-29) The

number and variety of scenarios that could comprise

24

harassment are not subject to reasonable prediction and

therefore cannot be easily articulated as a test. Thus, any

attempt to define a set of circumstances that constitute

harassment will likely exclude worthy claims. The better

approach, in cases where any evidence of harassment

exists, is to allow a jury to determine the issue of harass-

ment, where any evidence of such harassment exists.

Federal courts already take that approach. E.g., Johnson

v. Johnson, 385 F.3d 503 (5th Cir. 2004); Abuhouran v.

Acker, 2005 U.S. Dist. LEXIS 12864 (E.D. Pa. June 29,

2005); Martin v. City of San Antonio, 2006 U.S. Dist.

LEXIS 54392 (W.D. Tex. July 25, 2006); Cannon v. Burky-

bile, 2000 U.S. Dist. LEXIS 14139 (N.D. Ill. Sept. 25,

2000). The present case simply was not one in which any

evidence of harassment existed, no matter how many

different ways Petitioner tries to manipulate the facts.

IV. PETITIONER HAS PRESENTED NO JUSTIFI-

CATION FOR THE GRANT OF CERTIORARI

AS AGAINST THE CITY OF FALMOUTH

Although Petitioner identifies the City of Falmouth in

the “Parties to the Proceeding” section of the Petition, he

has presented no argument that the Sixth Circuit erred in

granting summary judgment to the City. As such, there is

no justification for the grant of certiorari as against the

City of Falmouth.

4

_

CONCLUSION

In light of the foregoing, there is no compelling reason to

grant the Petition for Writ of Certiorari The Sixth Circuit’s

decision in this matter does not conflict with Burlington

25

Northern, supra, or with any other decision of this Court, nor

does the Sixth Circuit’s decision conflict with any decision of

any other circuit court on any important question of federal

law. To the contrary, the Sixth Circuit relied on well-

established principles of law and applied those principles to

the facts of this case, which it construed in a light most

favorable to Petitioner. Stripped of its claims of conflict

among the circuits, the Petition’s real contention is that the

Sixth Circuit misapplied legal principles, resulting in an

incorrect decision. Of course, Petitioner’s assessment in this

regard is wholly inaccurate. However, even if Petitioner’s

assessment were accurate, Supreme Court Rule 10 provides

that the misapplication of established legal principles is not

a compelling reason to grant a petition for writ of certiorari.

Therefore, Respondents, England and the City of Falmouth

respectfully request that the Court deny the Petition for Writ

of Certiorari in this case.

Respectfully submitted,

MARY ANN STEWART,

Counsel of Record

JENNIFER L. LANGEN

ADAMS, STEPNER, WOLTERMANN

& DUSING, P.L.L.C.

40 West Pike Street, P.O. Box 861

Covington, KY 41012-0861

(859) 394-6200

(859) 291-7902 Fax

Attorney for Respondents,

City of Falmouth, Kentucky,

and Donald England