Employment Law Daily Business owner can’t show fired employee unlawfully retaliated via zoning ordinance enforcement
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Tuesday, February 2, 2016

Business owner can’t show fired employee unlawfully retaliated via zoning ordinance enforcement

By Dave Strausfeld, J.D. In a twist on the usual retaliation case, a business owner alleged that an employee he fired, who also happened to serve on the city council, vindictively responded by pressuring city officials to crack down on his building’s zoning violations, causing him to be issued heavy fines. Finding that he was unable to offer a viable legal theory for his action, the First Circuit affirmed dismissal of his various constitutional and state law claims on summary judgment (Snyder v. Collura, January 27, 2016, Kayatta, W.). Upon being fired from her job working for the business owner’s company, a city councilor allegedly used her influence to ensure that the city enforced its zoning ordinances against the business owner “as if it were suddenly one of the more important topics” on the city’s agenda, as the court characterized it. The business owner ended up being assessed steep fines, including at one point a fine of $300 per day. Equal protection. This appeal marked the First Circuit’s second encounter with this case. In an interlocutory appeal decided over a year ago, the court held that the city’s superintendent of public buildings and senior building inspector were entitled to immunity from the business owner’s claim that they violated his right to equal protection. Ultimately, the business owner was unable to point to any owner of another building who was allowed to use that other building as he used his own. Eighth Amendment. After the First Circuit’s ruling on the earlier appeal, the business owner abandoned any claim for violation of his right to equal protection or substantive due process. Instead, he argued that he should be allowed to move forward with his claims alleging infringement of, among other things, his right under the Eighth Amendment to be free from excessive fines. Ultimately, the court found that this claim had not been adequately pleaded in his complaint, and even if it were, it could not survive summary judgment because the business owner had not sufficiently developed it. The court also affirmed the district court’s denial of his request for leave to amend his complaint. Civil conspiracy. This left his state law claims. His civil conspiracy claim failed as a matter of law because it required a showing of an underlying tortious act, which he could not make. While he alleged that there was a conspiracy to deny him equal protection of the laws, he could not prove any underlying equal protection violation. As to his claim under the Massachusetts Civil Rights Act, the court found that it essentially replicated his rejected constitutional claims. Land use harassment claim. His complaint did, however, fairly raise one state law theory of liability that was distinct from his constitutional claims: that city officials violated his state law right “to own land and use and enjoy it for his comfort and profit without harassment and unlawful interference.” In support of this claim, the business owner had pointed to a Massachusetts case holding that a property owner stated a claim under the state’s civil rights statute by alleging that a neighborhood group’s threatening, aggressive, and meritless opposition to the construction of a tennis court impinged upon the property owner’s constitutionally secure property rights. But apart from a “cameo role” in the business owner’s complaint, the court found this theory was never again discussed beyond passing references in his briefs, so even if his complaint could fairly be read to state such a claim, his “wholly inadequate briefing on this point precludes our review of its merits.”

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