Mаrtha PAIGE, Plaintiff-Appellant, v. Kimberly COYNER, In her individual and official capacities; Board of Commissioners, Warren County; Warren County Port Authority, Defendants-Appellees.
No. 09-3287.
United States Court of Appeals, Sixth Circuit.
Argued: Jan. 15, 2010. Decided and Filed: July 26, 2010.
614 F.3d 273
Before: BOGGS and GILMAN, Circuit Judges; McCALLA, Chief District Judge.*
GILMAN, J., delivered the opinion of the court. BOGGS, J. (pp. 284-85), delivered a separate concurring opinion. McCALLA, Chief D.J. (pp. 285-87), delivered a separate opinion concurring in the judgment.
OPINION
RONALD LEE GILMAN, Circuit Judge.
Martha Paige sued a county official and two county entities pursuant tо
One оf the county entities filed a motion to dismiss pursuant to Rule 12(b)(6) of the
A. Factual background
Paige is a long-time resident of Warren County, Ohio, where she owns a large farm with her husband. In March 2002, she began working as an accountant for Bunnell Hill Development Company, which privately develops commercial properties in the area, including Warren Cоunty.
When Paige learned of a proposed road-construction project in 2005 that would interfere with her property, she and her neighbors attended several public meetings to oppose the project and to voice their opinions regarding Warren County‘s development plan. Paige was subsequently elected president of the Residents’ Association of West Central Warren County (Residents’ Association). Bunnell Hill was allegedly aware of Paige‘s “civic activities” and never objected to them.
On August 6, 2007, Paige attended a public meeting held by the Warren County Port Authority, which was established to encourage economic development in Warren County. She had concerns about a proposed interstate-highway project in nearby Monroe, Ohio for which the Port Authority would be a source of funds. Before the meeting started, Kimberly Coyner approached Paige. Coyner is Director of the Warren County Office of Economic Development and Executive Director of the Warren County Port Authority. When Coyner spoke to Paige, Coyner incorrectly identified Paige‘s employer as Henkle Schueler and Associates (a company affiliated with Bunnell Hill) and asked how long Paige had been employed there. Paige corrected Coyner and informed her that Paige had been working for Bunnell Hill for more than five years. No one else overheard this exchange between Paige and Coyner.
Once the meeting began, several residents spoke up abоut the proposed interstate project, including Paige. When Paige spoke, she identified herself as a resident of Warren County and as president of the Residents’ Association. She alleges that at no time during her public comments did she identify herself as an employee of Bunnell Hill or “give any indication whatsoever that her remarks should be associated with anyone other than herself in her capacity as private citizen and president of the Residents’ Association.”
During her remarks, Paige briefly explained the concerns that some members of the Residents’ Association had about the impact of the interstate project. At the close of her comments, Paige asked the Board “whether in analyzing a potential develoрment project they should consider if the project benefits the residents of Warren County.”
While Paige was speaking, she noticed Coyner‘s allegedly negative reaction to Paige‘s inquiry. The interstate project discussed at the meeting was the first project that Coyner had brought to the Port Authority for its consideration and was one of the first major projects that she had initiated as Director of the Warren County Office of Economic Development.
According to Paige, as part of “a plan to retaliate against Ms. Paige for the public comments she made at the hearing,” Coyner called Bunnell Hill on August 13, 2007—one week after the hearing—and spoke with Greg Bartley, the Executive Vice President of Bunnell Hill. Coyner falsely told Bartley that Pаige had publicly introduced herself at the Port Authority hearing as an employee of Bunnell Hill and had spoken negatively about the establishment of the Port Authority. Coyner then “sought clarification of Bunnell Hill‘s commitment to development in the region.”
B. Procedural history
In August 2008, Paige filed her
The Port Authority filed a motion to dismiss in September 2008, arguing that it was immune from liability for the state-law claims under Ohio law and that Paige‘s
In February 2009, the district court granted the Port Authority‘s motion to dismiss. It dismissed the state-law claims against the Port Authority under Ohio immunity law and the
II. ANALYSIS
A. Standard of review
When deciding a motion to dismiss under
B. Application of Blum v. Yaretsky
The crux of Paige‘s
- that the plaintiff was engaged in a constitutionally protected activity;
- that the defendant‘s adverse action caused the plaintiff to suffer an injury that would likely chill a person of ordinary firmness from continuing to engage in that activity; and
- that the adverse action was motivated at least in part as a response to the exercise of the plaintiff‘s constitutional rights.
Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998); see also id. at 682, 687 (holding
There is, however, an additional requirement common to all
Coyner, the Port Authority, and the Board do not dispute that they are state actors with regard to their own actions. If, for example, the Port Authority had fired one of its own employees as a result of the employee speaking at a public hearing, the state-actor requirement would surely be met. Instead, they argue that they cannot be held legally responsible for the actions of Bunnell Hill, a private employer, which ultimately inflicted the harm on Paige. They contend, therefore, that the district court was correct in holding that Paige needed to meet either the nexus test or the state-compulsion test laid out by the Supreme Court in Blum v. Yaretsky, 457 U.S. 991, 1004-05 (1982), in order to adequately plead state action.
In Blum, a class of nursing home residents sued the Commissioners of the New York Department of Social Services and the Department of Health. They alleged that the practiсe by various private nursing homes of transferring residents to facilities with lower levels of care without giving the residents an opportunity to challenge the decision violated the residents’ constitutional right to the due process of law. The plaintiffs sought to hold the state defendants liable because the nursing homes were state-regulated. Even though Blum was a Fourteenth Amendment case, as opposed to an action brought under
The Supreme Court in Blum described the residents’ suit as one that “seeks to hold state officials liable for the actions of private parties” and ultimately concluded that the state-action requirement was not satisfied. Blum, 457 U.S. at 1003. It used three tests to determine whether the actions of the nursing homes should be attributed to the state. First, where “there is a sufficiently close nexus between the State and the challenged action of the regulated entity[,] ... the action of the latter may be fairly treated as that of the State itself.” Id. at 1004 (citation omitted). The nexus test assures that “constitutional standards are invoked only when it can be said that the State is responsible for the specific conduсt of which the plaintiff com-
None of these tests were satisfied in Blum because the decisions to transfer residents were solely “medical judgments made by private parties according to professional standards that are not established by the State.” Id. at 1008. For the purрoses of the instant case, we note that the Court undertook this state-action analysis in Blum even though the suit was against state officials who would typically be considered state actors if they had taken the challenged actions themselves. The Court was clear, however, that the residents were “challenging decisions by the nursing homes in which they reside to discharge or transfer patients without notice or an opportunity for a hearing” and not “particular state regulations or procedures.” Id. at 1003. Furthermore, the residents’ “arguments concede[d] that the decision to discharge or transfer a patient originates not with state officials, but with nursing homes that are privately owned and operated.” Id. at 1003 (emphasis added).
The district court in the case before us applied the nexus and state-compulsion tests from Blum to conclude that Paige had not alleged any state action by Bunnell Hill, her employer. Paige contends, however, that Blum does not apply to retaliation cases such as hers where the suit is solely against state officials and where the officials themselves took the action that allegedly violated constitutionally protected rights. That is, Paige does not argue that Bunnell Hill was a state actor or that its action in firing her should be attributed to the state, but that Coyner, as a state actor, violated Paige‘s rights when Coyner called Bunnell Hill and gave false information in retaliation for Paige‘s comments at the Port Authority hearing.
Blum turned not on who was sued—i.e., whether the named defendant was a public official or a private entity—but on who took the constitutionally impermissible action. In Blum, the action that allegedly deprived the residents of their constitutional rights was the private nursing homes’ transferring residents without due process—an action taken by private parties. The Court in Blum therefore had to determine whether that action could be attributed to the state. Here, Paige alleges that Coyner‘s phone call giving the false statements to her employer was the state action taken in retaliation for Paige‘s exercise of her First Amendment rights. Blum is therefore distinguishable from the instant case.
This court has previously applied the Blum tests only where a
Indeed, this court has described Blum as “defin[ing] the contours of the state action doctrine with respect to nominally private partiеs.” Brentwood Acad., 180 F.3d at 762 (explaining that Blum “reviewed a challenge to a private nursing home‘s transfer and discharge policy” and concluded that “the nursing home was not a state actor” because “being subject to state regulation does not by itself convert the actions of a private organization into state action“); see also Bier v. Fleming, 717 F.2d 308, 310-11 (6th Cir. 1983) (stating that the party charged in a
Because the state actors in Blum took no action themselves, the Supreme Court necessarily had to determine whether the state should be obligated to shoulder the blame for solely private action. Here, the state actor (Coyner) initiated the entire chain of events. And, as discussed in more detail below, Coyner will be potentially liable for the result of that chain of events—Paige‘s firing—only if that result was a reasonably foreseeable consequence of Coyner‘s phone call. See Powers v. Hamilton County Pub. Defender Comm‘n, 501 F.3d 592, 609 (6th Cir. 2007) (holding that a state action in a
The district court thus erred in applying Blum to the instant case and by framing the issue as whether Bunnell Hill‘s actions in firing Paige could be fairly attributed to the state. Blum‘s tests are limited to suits where the private party is the one allegedly responsible for taking the constitutionally impermissible action. Here, Coyner is clearly a state actor because she works on behalf of local government entities, and Paige contends that Coyner violated
C. Elements of a First Amendment retaliation claim
Moving now to the heart of Paige‘s
1. Constitutionally protected activity
In order to succeed on a retaliation claim, a plaintiff must first allege that she “was engaged in a constitutionally protected activity.” Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998). Paige contends that she engaged in protected activity by attending the Port Authority hearing and voicing her opinion concerning a proposed interstate project. The First Amendment clearly protects the right to speak publicly about such matters. See Glasson v. City of Louisville, 518 F.2d 899, 904 (6th Cir. 1975) (noting that “freedom of expression upon public questions is secured by the
2. Adverse action
Next, a plaintiff must allege that “the defendant‘s adverse action caused the plaintiff to suffer an injury that would likely chill a person of ordinary firmness from continuing to engage in that activity.” Bloch, 156 F.3d at 678. As discussed above, Paige contends that, by calling her employer and making false statements regarding Paige‘s public speech, Coyner took an adverse action against her. The injury that Paige alleges was caused by this adverse action was her termination from Bunnell Hill. Losing one‘s job and accompanying benefits is certainly severe enough to deter a person of ordinary firmness from speaking at public meetings. See Harris v. Bornhorst, 513 F.3d 503, 519 (6th Cir. 2008) (holding that the adverse action element was met because the state official “actually prevented [the
The second part of this element—causation—is the closest issue in the case. To survive a motion to dismiss, Paige‘s allegations must plausibly establish that Coyner is legally responsible for Paige losing her job. This requires Paige to establish both cause in fact and proximate cause. See Powers, 501 F.3d at 608 (“Traditional tort concepts of causation inform the causation inquiry on a
“Cause in fact is typically assessed using the ‘but for’ test, which requires us to imagine whether the harm would have occurred if the defendant had behaved other than it did.” Id. Bunnell Hill had been aware of Paige‘s various civic activities, including attending meetings and expressing opinions about development projects in Warren County, but had never previously objected. Paige had been employed by Bunnell Hill for over five years. Most importantly, Bunnell Hill specifically cited the information relayed in Coyner‘s call as a reason for terminating Paige. The temporal proximity between Coyner‘s allegedly retaliatory call and Paige‘s termination also suggests that, but for the call, Paige would have remained employed by Bunnell Hill. Paige has therefore alleged sufficient facts to establish as plausible that, but for Coyner‘s call, she would not have been terminated by Bunnell Hill.
Turning now to proximate cause, we have explained that the concept deals with determining the proper scope of responsibility:
[C]ourts have framed the
§ 1983 proximate-cause question as a matter of foreseeability, asking whether it was reasonably foreseeable that the complained of harm would befall the§ 1983 plaintiff as a result of the defendant‘s conduct. Even if an intervening third party is the immediate trigger for plaintiff‘s injury, the defendant may still be proximately liable, provided that the third party‘s actions were foreseeable.
Id. at 609. Under Powers, Bunnell Hill‘s intervening act of terminating Paige‘s employment does not relieve Coyner of liability if Coyner reasonably should have foreseen that the company would fire Paige as a result of the call. See id. (holding that the chain of causation in a
The case most directly on point in this circuit is Harris v. Bornhorst, 513 F.3d 503 (6th Cir. 2008). Harris had been convicted of murder, but the conviction was ultimately reversed on appeal. He then brought suit against the prosecutor and the county for malicious prosecution and other claims. After the suit was filed, Harris sought enlistment in the Marine Corps. When the Marine Corps contacted the рrosecutor to inquire about Harris‘s murder conviction, the prosecutor said that the conviction was reversed only because of a technicality and specifically mentioned Harris‘s malicious prosecution suit. The Marine Corps subsequently declined to enlist Harris. Harris then added a
This court reversed the district court‘s grant of summary judgment in favor of the defendants on the First Amendment retaliation claim and remanded the case for further proceedings. id. at 520, 523. Even though the Marine Corps was the intervening actor taking the action that harmed Harris, the court accepted for summary judgment purposes the allegation that the prosecutor‘s comments to the recruiter had caused Harris‘s injury. id. at 519. The facts in the instant case are strikingly similar. Although Bunnell Hill took the action that ultimately injured Paige, this will not absolve Coyner of liability if such a result was a reasonably foreseeable consequence of Coyner‘s call to Bunnell Hill. See Powers, 501 F.3d at 609.
Paige alleges that Coyner intended for Paige to lose her job when Coyner made the phone call. Similarly, Paige alleges that Coyner knew that Bunnell Hill, as a developer active in Warren County, would not want to jeopardize its working relationship with Warren County officials. If Coyner‘s goal was to have Paige fired from Bunnell Hill, a jury could find that such a result was reasоnably foreseeable. See Kerman, 374 F.3d at 127 (“[F]oreseeability is normally an issue of fact....“). Paige has thus alleged sufficient facts on proximate cause at this early stage of the proceedings to satisfy the second element of Bloch and to avoid the dismissal of her complaint as a matter of law.
3. Retaliatory motive
The final element of a First Amendment retaliation claim requires the plaintiff to show that “the adverse action was motivated at least in part as a response to the exercise of the plaintiff‘s constitutional rights.” Bloch, 156 F.3d at 678. A defendant‘s motivation for taking action against the plaintiff is usually a matter best suited for the jury. Harris, 513 F.3d at 519-20. And Paige alleges several facts that would allow a jury to find that Coyner was motivated at least in part by Paige‘s comments criticizing the proрosed interstate project. For example, Coyner had a personal interest in the project because it was one of the first major projects that she was in charge of as the Director of the Warren County Office of Economic Development. Coyner also had a visibly negative reaction to Paige‘s criti-
Proof of Coyner‘s retaliatory motive may also arise from the fact that she called Paige‘s employer only one week after Paige spoke at the hearing. Temporal proximity between the protected conduct and the adverse action by the state actor “alone may be significant enough to constitute indirect evidence ... to create an inference of retaliatory motive.” Muhammad v. Close, 379 F.3d 413, 417-18 (6th Cir. 2004) (citation and internal quotation marks omitted) (holding that on remand the district court should consider whether the temporal proximity between an inmate‘s grievances against a prison officer and that officer‘s charges against the inmate alone could create a genuine issue of material fact that the officer was acting with a retaliatory motive when he brought the charges against the inmate).
Coyner is of course free to rebut these allegations on summary judgment or at trial by еstablishing that she was motivated by any number of nonretaliatory goals. In Worrell v. Henry, 219 F.3d 1197 (10th Cir. 2000), for example, the court suggested that public officials who were being sued in a First Amendment retaliation case after they pressured the district attorney to not hire a person who had previously testified for the defense in an important criminal case could be motivated by a desire to “provide[] effective law enforcement” rather than retaliating against the plaintiff for his testimony. Id. at 1213.
Similarly, Coyner could have been motivated purely by business concerns rather than a desire to punish Paige for speaking out negatively against one of Coyner‘s proposed projects. She might have simply wanted to ensure that Bunnell Hill would adequately perform if it were awardеd any development contracts or, more generally, that Bunnell Hill was fully behind the Port Authority and the Board‘s goals of developing the area. In this way, Paige might have just been doing her job—i.e., directing development in the area. But because Paige‘s complaint alleges facts that, if taken as true, could establish that Coyner was acting with a retaliatory motive, Paige has satisfied the third and final element of Bloch. She has therefore alleged sufficient facts to have her complaint survive a
This is not to say that public officials lack the right to inquire into the motivations and goals of their colleagues or constituents. What they cannot do, however, is take action in order to punish a citizen for exercising his or her constitutional rights. That is, “an act taken in retaliation for the exercise of a constitutionally protected right is actionable under
D. Liability of the Port Authority and the Board of Commissioners
The final issue on appeal concerns the potential liability of the Port Authority and the Board of Commissioners. They argue that Paige‘s retaliation claim against them should be dismissed as a matter of law because Paige did not allege that Coyner acted according to an unconstitutional policy or custom when she сalled Bunnell Hill. “[A] local government may not be sued under
A
Paige‘s complaint alleges that Coyner “acted pursuant to the official policies of Defendants Warren County Board of Commissioners and Warren County Port Authority in that Defendant Coyner has final policy making authority” for those entities. Under Monell and Pembaur, Coyner‘s authority to create policy for the Board and the Port Authority means that her actions can represent official policy. Although this factual issue will need to be resolved at summary judgment or at trial, Paige‘s allegation is sufficient to meet the requirements of Monell at the pleading stage of this case.
In sum, Paige has alleged all that she needs to in order to state a claim for relief under
III. CONCLUSION
For all of the reasons set forth above, we REVERSE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.
BOGGS, Circuit Judge, concurring.
I agree with the conclusion of my fellow judges that, under our circuit‘s precedent, this case must be remanded for further consideration, as Paige‘s complaint should not have been dismissed at the
I write separately primarily to indicate that I believe that it remains rather problematic whether our retaliation analysis in Bloch v. Ribar, 156 F.3d 673 (6th Cir. 1998), could survive a searching analysis undеr First Amendment doctrine. By that, I mean that the three elements of a cause of action for First Amendment retaliation, as properly set out by Judge Gilman, ante, at 280-83, are wholly congruent with the following situation being an actionable tort:
- Person A makes some silly and outrageous statement;
- Person B, who is a state actor, publicly blasts Person A, causing third parties to realize that Person A is a chowderhead and take action against that person; and
- Person B‘s speech was a response to Person A‘s speech.
When put that starkly, without qualification—which is what Bloch itself seems to do—the First Amendment implications should be somewhat obvious. See Bloch, 156 F.3d at 681-82 (“[A]n act taken [at least in part as a response to] the exercise of a constitutionally protected right is actionable under
To make it less abstract, let us takе this wholly hypothetical example: the dean of a public law school discovers one morning that one of her students has, in a private e-mail, said something that could be construed as racist. The dean issues a public statement condemning the student (perhaps characterizing the e-mail falsely, perhaps not)1 which causes the student to lose a previously promised position as a law clerk or law-firm associate. And, of course, the dean‘s attack was motivated by the student‘s speech. In such a hypothetical situation, it would appear that Bloch would make the dean potentially liable for damages under
However, since this does appear to be the state of our circuit‘s lаw at this point, I concur in Judge Gilman‘s opinion and in the judgment of the court, and leave such potential problems to be sorted out in the first instance upon remand.
McCALLA, Chief District Judge, concurring.
The majority correctly determined that Paige‘s complaint alleged sufficient facts that satisfy the three elements required to establish a
I would agree with the majority‘s cоnclusion regarding the application of Blum had Paige not sought damages for her loss of employment. “Faithful adherence to the ‘state action’ requirement ... requires careful attention to the gravamen of the plaintiff‘s complaint.” See Blum, 457 U.S. at 1003. In her complaint, Plaintiff specifically seeks damages that directly and proximately resulted from her loss of employment. It is undisputed that Plaintiff was ultimately terminated by Bunnell Hill, her private employer. Thus, Paige is seeking to hold state actors liable for the actions of a private employer. See Blum, 457 U.S. at 1003 (“The importance of [the state action requirement] is evident when, as in this case, the complaining party seeks to hold the State liable for the actions of private parties.“). Althоugh Bunnell Hill‘s intervening act of terminating Paige‘s employment does not relieve Defendants of liability for her
A finding that Blum applies to the instant case does not end the inquiry. Paige must still demonstrate that she pled facts sufficient to support a finding of state action under the Blum state compulsion test. The state compulsion test requires that a state actor has “exercised such coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed that of the State.” Blum, 457 U.S. at 1004. The district court, in granting Defendants’ motion to dismiss, relied on German v. Fox, 267 Fed.Appx. 231 (4th Cir. 2008). In German, the Fourth Circuit held that “when the state has coerced а private party to commit an act that would be unconstitutional if done by the state, it means that the state has ordered specific conduct.” Id. at 234 (citing Andrews v. Fed. Home Loan Bank, 998 F.2d 214, 217 (4th Cir. 1993)). Because Paige did not allege that Coyner directly ordered Plaintiff‘s termination or otherwise threaten the Port Authority‘s relationship with Bunnell Hill, the district court found that the allegations in Paige‘s complaint were not sufficient the meet the state compulsion test.
Neither Blum nor Sixth Circuit precedent requires that the state actor‘s conduct rise to the level of a direct order. Rather, the state compulsion test requires only that the state exercise “such coercive power or provide such significant encouragement, either over or covert, that in law the choice of the private actor is deemed to be that of the state.” Wolotsky, 960 F.2d at 1335 (citing, inter alia, Blum, 457 U.S. at 1004). In her complaint, Plaintiff alleged that Bunnell Hill had a “close working relationship with key Warren County Officials ... that it did not want to jeopardize.” Paige also alleged
JON P. McCALLA
CHIEF UNITED STATES DISTRICT JUDGE