Corres To Z. Klein

GOTTESMAN & ASSOCIATES, LLC
ATTORNEYS AT LAW
404 EAST TWELFTH STREET, FIRST FLOOR
CINCINNATI, OHIO 45202-7463
EMAIL: [email protected]
TELEPHONE: 513-651-2121
FACSIMILE: 513-586-0655
22 September 2021
Via email only ([email protected])
Zach Klein, Esq.

Columbus City Attorney
77 North Front Street
Columbus, Ohio 43215
Re: Sept. 10, 2021 Report of Marc Fishel, Esq.
Dear Mr. Klein:
I represent Division of Police personnel that were the focus of the investigation recently
conducted by Marc Fishel, Esq. I specifically refer to Mr. Fishel’s Sept. 10, 2021 investigation
report and analysis regarding the complaint filed by Lt. Melissa McFadden alleging First
Amendment retaliation against her by several Division personnel for her First Amendment
protected activity, to wit: writing and publishing Walking the Thin Black Line. In the referenced
report, Mr. Fishel provides no legal analysis and identifies no legal standards by which he measures
the conduct of the personnel he is charged with investigating. Nonetheless, he concluded Sgt.
Sally Fisher, Commander Mark Gardner and Deputy Chief Jennifer Knight engaged in prohibited
retaliatory conduct directed at Lt. McFadden. This conclusion is fundamentally legally flawed and
should be disregarded in its entirety for the reasons set forth below.
A. Lt. McFadden suffered no adverse employment action.
In the governmental employment context, to establish First Amendment retaliation claim,

a complainant must show: (1) he/she engaged in protected conduct; (2) an adverse action was taken
against him/her that would deter a person of ordinary firmness from continuing to engage in that
conduct; and (3) there is a causal connection between elements one and two— that is, the adverse
action was motivated at least in part by his/her protected conduct. Sensabaugh v. Halliburton, 937
F.3d 621 (6th Cir. 2019) quoting Bell v. Johnson, 308 F.3d 594, 602 (6th Cir. 2002)
(quoting Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc)).
To establish the adverse action element for First Amendment retaliation in an employment
context, "a plaintiff must show that the action ‘would chill or silence a person of ordinary firmness
from future First Amendment activities.’ " Benison v. Ross, 765 F.3d 649, 659 (6th Cir. 2014)
(quoting Ctr. for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807, 822 (6th Cir.
2007)). But "[i]t is not necessarily true ... that every action, no matter how small, is constitutionally
Zach Klein, Esq.
September 22, 2021
Page 2 of 3

cognizable" as an "adverse action." Thaddeus-X, 175 F.3d at 396. In the employment context,
"[t]he term ‘adverse action’ has traditionally referred to actions such as discharge, demotions,
refusal to hire, nonrenewal of contracts, and failure to promote." Dye, 702 F.3d at 303 (alteration
omitted) (quoting Handy-Clay v. City of Memphis, 695 F.3d 531, 545 (6th Cir. 2012)).
Lt. McFadden does not allege and Mr. Fishel did not find any conduct on the part of the
focus respondents that could amount to “adverse action” under the standard developed by the Sixth
Circuit. Specifically, the Sixth Circuit has repeatedly determined that a suspension with pay does
not constitute an adverse action. See, e.g., Ehrlich v. Kovack, 710 Fed.Appx. 646, 650 (6th Cir.
2017) (First Amendment retaliation claim); Harris v. Detroit Pub. Schs., 245 Fed.Appx. 437, 443
(6th Cir. 2007) (same); Peltier v. United States, 388 F.3d 984, 988-89 (6th Cir. 2004) (Title VII
discrimination claim). Here, Lt. McFadden was not reprimanded, suspended, demoted, transferred,
terminated, or subjected to any employment action at all. She literally suffered no change in the
terms and conditions of her employment. She did not allege it and Mr. Fishel makes no finding
on that issue.
B. Lack of supervision or control by focus personnel.
Further, Lt. McFadden was not supervised or under the direct command of any of the focus
personnel. This lack of control or authority over Lt. McFadden renders her complaint fatally
flawed. In fact, this lack of control or authority, in and of itself, defeats any legal claim of First
Amendment retaliation she might have. See Ward v. Athens City Bd. of Educ., No. 97-5967, 1999
U.S. App. LEXIS 22766, 1999 WL 623730, at *8 (6th Cir. 1999) (unpublished); Adkins v. Bd. of
Educ. of Magoffin County, Ky., 982 F.2d 952 (6th Cir.1993). Finally, "the First Amendment . . .
does not empower [a public employee] to 'constitutionalize the employee grievance.'" Garcetti v.
Ceballos, 547 U.S. 410, 420 (2006) (quoting Connick v. Myers, 461 U.S. 138, 154 (1983)).
But even more to the point, each of the focus personnel themselves engaged in protected
First Amendment activities for complaining about Lt. McFadden, and taking any action against
any of them for this itself violates the First Amendment. Filing a lawsuit or an internal grievance
constitutes protected conduct implicating the First Amendment in this circuit. See Herron v.
Harrison, 203 F.3d 410, 415 (6th Cir. 2000). Taking adverse action against them for
their complaints is a prima facie case of First Amendment retaliation. Thaddeus-X v. Blatter, 175
F.3d 378, 394 (6th Cir. 1999).
C. Lt. McFadden’s conduct in question was not First Amendment protected activity
and violates numerous Division of Police Policies, Directives and Rules of
Conduct.
Under another line of cases dealing with retaliatory arrests and prosecutions, the Supreme
Court held in Hartman v. Moore, 547 U.S. 250, 256, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006), that
if an official takes adverse action against someone based on that forbidden motive, and "non-
retaliatory grounds are in fact insufficient to provoke the adverse consequences," the injured
person may generally seek relief by bringing a First Amendment claim. Ibid. (citing Crawford-El
Zach Klein, Esq.
September 22, 2021
Page 3 of 3

v. Britton, 523 U.S. 574, 593, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998); Mt. Healthy City Bd. of
Ed. v. Doyle, 429 U.S. 274, 283-284, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). That line of cases
gives Lt. McFadden no redress. It is beyond question that Lt. McFadden’s conduct in writing and
publishing her book, appearing in uniform and participating in anti-police protests, and disparaging
her fellow officers and the Division in multiple media appearances violated numerous Division of
Police Directives and Rules of Conduct1. In such cases, the subjective state of mind of the charged
party and their retaliatory intent2 is immaterial. See Hartman v. Moore, 547 U.S. 250, 126 S.Ct.
1695, 164 L.Ed.2d 441 (2006).
D. Conclusion
In accordance with the forgoing, I am writing to put the City of Columbus and the Division
of Police on notice that any disciplinary action taken against any of the focus personnel will itself
be unlawful First Amendment Retaliation and aggressively defended. Please contact me if you
care to discuss any of the above.
Kind regards,
Zachary Gottesman
cc: Chief Elaine Bryant (via email - [email protected])

Director George Speaks (via email - [email protected])

1
Including, without limitation, Division Directive 1-01 Rules of Conduct §§1.03, 1.07, 1.15 (A4-5), 1.22
(A), and 1.36, Division Directive 10.13 Media Relations and Public Appearances, and Division Directive
10.14 Social Media.
2
Which in this case is expressly denied.

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GOTTESMAN & ASSOCIATES, LLC

Via email only ([email protected])

Zach Klein, Esq.

Re: Sept. 10, 2021 Report of Marc Fishel, Esq.

Dear Mr. Klein:

A. Lt. McFadden suffered no adverse employment action.

In the governmental employment context, to establish First Amendment retaliation claim,

B. Lack of supervision or control by focus personnel.

cc: Chief Elaine Bryant (via email - [email protected])

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