2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-13-2013

Angela Zimmerlink v. Vincent Zapotosky

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-4426

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Recommended Citation

"Angela Zimmerlink v. Vincent Zapotosky" (2013). 2013 Decisions. Paper 225.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 12-4426

______

 ANGELA ZIMMERLINK

Appellant

v.

VINCENT ZAPOTSKY; VINCENT VICITES; FAYETTE COUNTY

______

On Appeal from the United States District Court for the 

Western District of Pennsylvania

(District Court No. 2-10-cv-00237)

Magistrate Judge: Honorable Cynthia Reed Eddy

Submitted Pursuant to Third Circuit LAR 34.1(a)

September 10, 2013

Before: SMITH, GARTH, and SLOVITER, Circuit Judges

(Filed: September 13, 2013)

______

OPINION

______

GARTH, Circuit Judge.

Appellant, Angela Zimmerlink, appeals from an order of the Magistrate 

Judge (Eddy, J.) granting summary judgment to defendants-appellees Vincent 

Zapotsky, Vincent Vicites, and Fayette County (“the County”).
2

We have jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons that 

follow, we will affirm the judgment of the Magistrate Judge.

I

Because we write principally for the benefit of the parties, we recite only 

those facts necessary to our disposition. Zimmerlink is one of three elected 

County Commissioners of the Board of Commissioners (“the Board”) for Fayette 

County, Pennsylvania. At all times relevant to this case, Zimmerlink served on the 

Board alongside Zapotosky and Vicites, both of whom are Democrats. As the sole 

Republican Commissioner, Zimmerlink frequently clashed with her Democratic 

colleagues and served as a dissenting vote and voice. 

Between January 2008 and December 2010, hostilities escalated among the 

Commissioners. Zapotosky and Vicites allegedly arranged numerous secret 

meetings to discuss County business without providing notice to Zimmerlink or 

seeking her input. Additionally, the two Democratic Commissioners allegedly 

engaged in contractual negotiations with developers and other third parties. When 

debates over the 2010 budget grew polarized, Zapotosky and Vicites skipped 

meetings with Zimmerlink but continued planning a budget together and meeting 

with other County officials regarding County finances. Because of her exclusion 

from clandestine meetings and resulting lack of knowledge about County affairs, 

Zimmerlink “was forced to abstain” from five Board votes regarding County 

staffing and contracting issues. Appendix at 18. 
3

The alleged conspiracy against Zimmerlink also resulted in a lawsuit by a 

local family against the County. On January 16, 2009, the Cellurale family sued

the County and Zimmerlink for selectively enforcing the County zoning code 

against the family’s land. Zimmerlink alleges that Zapotosky was a friend of the 

Cellurale family and encouraged them to sue Zimmerlink in retaliation for her 

political opposition to Zapotosky and Vicites. The case settled prior to discovery. 

While the Cellurale case was still pending, however, Zimmerlink alleges 

that Zapotosky and Vicites refused to cooperate with her in the County’s defense. 

She alleges that they “instructed a county employee to manipulate the minutes of 

the November 19, 2009 Board meetings [sic] to mischaracterize public comments” 

related to the Cellulare lawsuit to “vilify” her. Id. at 39. Additionally, despite 

instructions from the County’s counsel to refrain from commenting publicly on the 

lawsuit, both Zapotosky and Vicites made public statements and wrote editorials 

blaming Zimmerlink for zoning enforcement issues. Zimmerlink alleges that 

because of the other Commisioners’ conduct, she was forced to hire her own 

attorney at her own expense. 1 

On December 20, 2010, Zimmerlink filed an amended complaint brought 

pursuant to 42 U.S.C. § 19832alleging violations of her First and Fourteenth 

 

1

The County subsequently retained separate counsel for Zimmerlink. 

2

42 U.S.C. § 1983 provides: “Every person who, under color of any statute, 

ordinance, regulation, custom, or usage, of any State or Territory or the District of 

Columbia, subjects, or causes to be subjected, any citizen of the United States or 

other person within the jurisdiction thereof to the deprivation of any rights, 
4

Amendment rights. She generally asserted that: (1) she had been retaliated against 

because of her political views and political speech in violation of her rights under 

the First Amendment; and (2) this retaliation had violated her right to equal 

protection of the law under a “class of one” theory. 

Defendants moved to dismiss the amended complaint. The District Court 

(Cercone, J.), on recommendation of Magistrate Judge Cathy Bissoon, denied the 

motion. Following discovery, defendants moved for summary judgment. As to 

the First Amendment claim, defendants argued that: (1) Zimmerlink failed to 

adduce evidence to establish that she was retaliated against because of her political 

affiliation or any other protected speech; and (2) they were shielded by qualified 

immunity. As to the Equal Protection claim, defendants argued that: (1) there was 

insufficient evidence to establish that they had violated Zimmerlink’s rights under 

the Equal Protection Clause; and (2) the Equal Protection claim was duplicative of 

the First Amendment claim. Finally, defendants argued that because the First 

Amendment retaliation and Equal Protection claims were deficient, any claims 

against the County must also be dismissed.

 

privileges, or immunities secured by the Constitution and laws, shall be liable to 

the party injured in an action at law, suit in equity, or other proper proceeding for 

redress, except that in any action brought against a judicial officer for an act or 

omission taken in such officer’s judicial capacity, injunctive relief shall not be 

granted unless a declaratory decree was violated or declaratory relief was 

unavailable. For the purposes of this section, any Act of Congress applicable 

exclusively to the District of Columbia shall be considered to be a statute of the 

District of Columbia.”
5

On November 29, 2012, the Magistrate Judge granted defendants’ motion 

for summary judgment.3 The Magistrate Judge held that the alleged acts of 

retaliation were insufficient “to deter a person of ordinary firmness from 

exercising her First Amendment rights.” Id. at 11; McKee v. Hart, 436 F.3d 165, 

170 (3d Cir. 2006) (quoting Suppan v. Dadonna, 203 F.3d 228, 234-35 (3d Cir. 

2000)). On this ground, the Magistrate Judge granted summary judgment on the 

First Amendment claim and did not reach issue of causation defendants’ had 

raised. 

As to the Equal Protection claim, the Magistrate Judge held that a “‘class of 

one’ equal protection claim is not cognizable in the public employment context.” 

App’x at 18 (citing Engquist v. Oregon Dep’t of Agr., 553 U.S. 591 (2008)). 

Further, the Magistrate Judge held that even if the claim were legally cognizable, 

Zimmerlink had “failed to adduce evidence that Defendants had no rational basis 

for treating her differently. To the contrary, it is axiomatic and expected in the 

political arena that elected officials treat political allies differently than political 

foes.” Id. 

Finally, as to the question of the County’s municipal liability, the 

Magistrate Judge also granted summary judgment because: (1) Zimmerlink’s 

underlying claims against Zapotosky and Vicites had failed; and (2) even if 

Zimmerlink had successfully alleged any constitutional violations, the record 

 

3

The case was reassigned to Magistrate Judge Eddy on October 27, 2011, and the 

parties subsequently consented to her jurisdiction.
6

failed to show how any municipal law, policy, custom, rule, or regulation 

contributed to the violation of her rights under the standard for municipal liability 

articulated in Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 694

(1978) (“[I]t is when execution of a government’s policy or custom, whether made 

by its lawmakers or by those whose edicts or acts may fairly be said to represent 

official policy, inflicts the injury that the government as an entity is responsible 

under § 1983.”).

This timely appeal followed.

II

We review a district court’s grant of summary judgment de novo. Viera v. 

Life Ins. Co. of N. Am., 642 F.3d 407, 413 (3d Cir. 2011). We must determine, 

therefore, whether the record, when viewed in the light most favorable to the nonmovant, shows that there is no genuine issue of material fact and that the movant 

is entitled to summary judgment as a matter of law. Celotex Corp. v. Catrett, 477 

U.S. 317, 322-23 (1986). 

III

This appeal presents two primary issues: (1) whether the Magistrate Judge

improperly granted summary judgment sua sponte on the basis of the “person of 

ordinary firmness” element of the First Amendment claim; and (2) whether the 

Magistrate Judge erred in deciding that Zimmerlink’s claims were deficient as a 

matter of law.
7

We first address Zimmerlink’s contention that the Magistrate Judge

improperly granted summary judgment sua sponte on the “person of ordinary 

firmness” element. 

In order to state a § 1983 claim for retaliation in violation of the First 

Amendment, a plaintiff must show “(1) constitutionally protected conduct, (2) 

retaliatory action sufficient to deter a person of ordinary firmness from exercising 

his constitutional rights, and (3) a causal link between the constitutionally 

protected conduct and the retaliatory action.” Thomas v. Independence Twp., 463 

F.3d 285, 296 (3d Cir. 2006). “[T]he key question in determining whether a 

cognizable First Amendment claim has been stated is whether ‘the alleged 

retaliatory conduct was sufficient to deter a person of ordinary firmness from 

exercising his First Amendment rights.’” McKee v. Hart, 436 F.3d 165, 170 (3d 

Cir. 2006) (quoting Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000)); see 

also Crawford-El v. Britton, 523 U.S. 574, 589 n. 10 (1998) (“The reason why 

such retaliation offends the Constitution is that it threatens to inhibit exercise of 

the protected right.”).

Fed. R. Civ. P. 56(f) provides that “[a]fter giving notice and a reasonable 

time to respond, the court may . . . (2) grant the motion on grounds not raised by a 

party . . . .” Notice is sufficient when “the targeted party ‘had reason to believe 

the court might reach the issue and received a fair opportunity to put its best foot 

forward.’” Gibson v. Mayor & Council of City of Wilmington, 355 F.3d 215, 

223-24 (3d Cir. 2004) (quoting Leyva v. On the Beach, Inc., 171 F.3d 717, 720 
8

(1st Cir.1999)). Further, no additional notice is required if there is: (1) a fully 

developed record; (2) a lack of prejudice to the parties; and (3) a decision on a 

purely legal issue. Id. at 224. Even if a court fails to comply with the 

requirements of Rule 56(f), however, any such error “may be excused if the failure 

was a ‘harmless error.’” Rose v. Bartle, 871 F.2d 331, 342 (3d Cir. 1989).

In their motion for summary judgment, defendants focused their First 

Amendment argument primarily on the causation prong of the retaliation inquiry. 

Nevertheless, their briefing and Zimmerlink’s response clearly revolved around

the ability of one elected official to bring a First Amendment retaliation claim 

against other elected officials. While the “person of ordinary firmness” element 

was not the explicit thrust of either side’s arguments, the parties recited the correct 

legal standard that included this element and raised arguments that were applicable 

to all three elements. In ruling on the motion, the Magistrate Judge did not

address the causation prong because the allegedly retaliatory action did not reach 

the requisite deterrent threshold. 

We hold that the Magistrate Judge did not improperly grant summary 

judgment sua sponte on a new issue; rather, the Magistrate Judge focused on an 

element that was essential to, but did not comprise the brunt of, defendants’ 

argument. Cf. Armour v. County of Beaver, Pa., 271 F.3d 417, 433 (3d Cir. 2001) 

(reversing a district court’s decision when summary judgment was granted sua 

sponte on an issue that the movant had argued should be reserved for a jury).
9

To the extent that the Magistrate Judge did not provide the specific notice 

outlined in Rule 56(f), however, this case satisfies the requirements outlined in 

Gibson, supra, making additional notice unnecessary. First, the extensive record 

fails to demonstrate – and Zimmerlink fails to argue – that inadequate discovery 

occurred or that the parties did not examine the facts relevant to the “person of 

ordinary firmness” inquiry. Second, the record and Zimmerlink’s arguments do 

not establish prejudice.4 And third, the Magistrate Judge’s decision rests on a 

purely legal issue. 

IV

While Zimmerlink may have satisfied the first requirement of a First 

Amendment retaliation claim, she has not satisfied the second requirement that the 

retaliatory conduct must have been “sufficient to deter a person of ordinary 

firmness from exercising his constitutional rights.” Thomas, 463 F.3d at 296. 

In Monteiro, this Court emphasized the clear right of elected public 

officials to disagree publicly with other government officials. 436 F.3d at 404. In 

Monteiro, the plaintiff council member (Monteiro) engaged in a spirited dispute 

with the council president during a public council meeting. Id. at 400. In an effort 

to silence Monteiro, the council president ordered municipal officers to arrest 

Monteiro and remove him from the meeting. Id. at 401. However, Monteiro, 

 

4 Because of the absence of prejudice, any error in not providing additional notice 

was harmless. Rose, 871 F.2d at 342.
10

relied upon by Zimmerlink, is not this case. While Zimmerlink argues that 

Zapotosky and Vicites met without her both as a pair and with third parties, the 

record fails to demonstrate that they prevented her from speaking or enacted the 

sort of formal punishment that the council president employed in Monteiro. A

retaliation claim is not the proper vehicle for the resolution of quotidian disputes 

among elected officials. Cf. Tenney v. Brandhove, 341 U.S. 367, 378 (1951) (“In 

times of political passion, dishonest or vindictive motives are readily attributed to 

legislative conduct and as readily believed. Courts are not the place for such 

controversies. Self-discipline and the voters must be the ultimate reliance for 

discouraging or correcting such abuses.” (footnote omitted)). If we were to allow 

Zimmerlink’s claim to go forward, “it would . . . subject[] to judicial review all 

sorts of politically motivated conduct committed within the confines of 

legislatures and best left within the legislative sphere.” Camacho v. Brandon, 317 

F.3d 153, 161 (2d Cir. 2003). Further, “[i]t 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.” Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000) (quoting Bart v. 

Telford, 677 F.2d 622 (7th Cir.1982)). 

The facts alleged in this case – the harassment, the stealthy negotiating with 

third parties, and the public statements – may have been unpleasant and 

unprofessional, but they hardly approach the extreme conduct that gives rise to a
11

First Amendment retaliation claim.

5

 Cf. Camacho, 317 F.3d at 166 (Walker, J., 

concurring) (“courts should intervene in only the most severe cases of legislative 

retaliation for the exercise of First Amendment rights, thereby allowing ample 

room for the hurly burly of legislative decisionmaking.” (emphasis added)). 

Finally, we hold that Zimmerlink’s remaining claims are also legally 

deficient. Zimmerlink concedes that her equal protection claim is “functionally 

identical to” her retaliation cause of action. Like the First Amendment claim, 

therefore, it must fail. The Supreme Court has “recognized successful equal 

protection claims brought by a ‘class of one,’ where the plaintiff alleges that she 

has been intentionally treated differently from others similarly situated and that 

there is no rational basis for the difference in treatment.” Vill. of Willowbrook v. 

Olech, 528 U.S. 562, 564 (2000). In this case, the dispute in question is a political 

one, and Zimmerlink has provided no basis to conclude that it is irrational that a 

politician would treat a political ally differently than a political opponent. 

Additionally, because no claims against the individual defendants survive, 

Zimmerlink’s municipal liability claims against the County were properly 

dismissed by the Magistrate Judge. See Williams v. West Chester, 891 F.2d 458, 

467 (3d Cir. 1989).

 

5 Because Zapotsky’s and Vicites’s conduct was insufficient to deter a person of 

ordinary firmness from exercising her First Amendment rights, we do not address 

the causation element of the retaliation claim.
12

The judgment of the Magistrate Judge will therefore be affirmed.