The Sixth Circuit U.S. Court of Appeals issued a decision this week that local government officials can be held liable for accusations they make against citizens when it is “reasonably foreseeable” that their statements will cause the citizen to be fired from their job. Martha Paige worked as an accountant for Bunnell Hill Development Company in Warren County, Ohio. She and her husband owned a large farm in that county. When Paige learned about a proposed road project that would interfere with their farming, she organized the Residents’ Association of West Central Warren County. On August 6, 2007, Paige attended a public meeting of the Warren County Port Authority. Kimberly Coyner is executive director of the Port Authority. Before the meeting started, Coyner asked Paige about where she worked, and Paige disclosed that she worked for Bunnell Hill. During the meeting, Paige identified herself as president of the Residents’ Association, and expressed concerns about an interstate project. Paige alleges that on August 13, 2007, Coyner called Bunnell Hill and told a manager that Paige identified herself as speaking for Bunnell Hill. On August 16, 2007, Bunnell Hill fired paige for using the company name to oppose the interstate project, and disclosed Coyner’s call as a basis for the termination.
Paige sued Coyner, Warren County and the Port Authority. The district court dismissed in part on grounds that the county was not responsible for the decision of Bunnell Hill to fire Paige. The Sixth Circuit focused on Conyer’s actions as alleged in Paige’s complaint. Unlike other cases in which citizens sought to make private entities liable for acting in concert with government officers, in this case Paige sought to hold the local governments and their official responsible for their own actions. Interfering with Paige’s employment was certainly “severe enough to deter a person of ordinary firmness from speaking at public meetings,” the Court said. That Bunnell Hill cited Conyer’s statement, combined with the close timing, is enough to find that Paige’s First Amendment activities caused her discharge. The Court also held that whether Paige’s discharge was “reasonable foreseeable” is a fact question the jury can determine. The Court repeatedly noted that Paige alleged Conyer’s statement about her using Bunnell Hill’s name in her public comments was false. I think that Paige should have a good case of retaliation even if Conyer’s statement was true. Either way, a government official’s call to a manager to get a person fired for exercising First Amendment rights is wrong. As the Sixth Circuit concluded, “What they [public officials] cannot do, however, is take action in order to punish a citizen for exercising his or her constitutional rights.” Judge Boggs, concurring, noted that the Sixth Circuit had analyzed a similar claim in which the actionable speech did not have to be false or defamatory if it would “threaten [the palintiff’s] economic livelihood directly or indirect.” Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 724 (6th Cir. 2010). District Judge McCalla also concurred and added that Bunnell Hill’s situation in response to Conyer’s statement could be considered “state compulsion” such that it would be a “state actor.” The case is Paige v. Coyner, 09-3287 (6th Cir. 7-26-2010). Congratulations to attorney Stephen A. Simon of Tobias, Kraus & Torchia in Cincinnati, Ohio, for the victory.