(Doc. No. 70 at 19). As she correctly points out, “[t]he term ‘adverse action’ has traditionally referred to actions such as ‘discharge, demotions, refusal to [h]ire, nonrenewal of contracts, and failure to promote.’” Handy-Clay v. City of Memphis, 695 F.3d 531, 545 (6th Cir. 2012) (citations omitted). However, the Sixth Circuit has also recognized that a court is “required to tailor[] [its] analysis under the adverse action prong to the circumstances of the specific retaliation claim” at issue. Dye v. Off. of the Racing Comm’n, 702 F.3d 286, 303 (6th Cir. 2012) (citation omitted).
“The term ‘adverse action’ arose in the employment context” and generally envisions a material change in employment status or benefits like those just mentioned. Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 724 (6th Cir. 2010). Under the First Amendment, in contrast, an adverse action is one that would ‘likely chill a person of ordinary firmness from continuing to engage in that activity,’” Ryan v. Blackwell, 979 F.3d 519, 525 (6th Cir. 2020) (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 398 (6th Cir. 1999)). This may include such things as “‘harassment or publicizing facts damaging to a person’s reputation.” Id. (quoting, Fritz, 592 F.3d at 724).
Notably, the harassment necessary to rise to a level sufficient to deter an individual is ‘not extreme.’” Perkins v. Twp. of Clayton, 411 F.App’x 810, 814 (6th Cir. 2011) (citing Siggers-El v. Barlow, 412 F.3d 693, 701 (6th Cir. 2005)); see also Bloch v. Ribar, 156 F.3d 673, 679 (6th Cir. 1998) (citation omitted) (“The effect on freedom of speech may be small, but since there is no justification for harassing people for exercising their constitutional rights it need not be great in order to be actionable.”). For purposes of a First Amendment retaliation claim, therefore, unless the adverse action is “de minimus” or “inconsequential,” the issue of “whether an alleged adverse action is sufficient to deter a person of ordinary firmness is generally a question of fact.” Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 583–84 (6th Cir. 2012).
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Case 2:21-cv-00039 Document 90 Filed 12/01/22 Page 13 of 27 PageID #: 8925
