Opinion
Case No. 5:01-cv-54
January 30, 2003
OPINION
This case involves allegations of violations of federal constitutional rights and the Michigan Elliot-Larsen Civil Rights Act (ELCRA), M.C.L. 37.2101 et seq., by plaintiffs The L.A. Globe d/b/a L.A. Globe ("L.A. Globe"), Scott V. Garrett ("Garrett"), and Charles J. Gordon ("Gordon") against defendant City of Lansing ("Lansing"). Now before the Court is defendant's motion for summary judgment (dkt. #72) and defendant's renewed motion for summary judgment against plaintiffs Garrett and Gordon for lack of standing (dkt. #64). The Court conducted a hearing on these motions on December 2, 2002, taking them under advisement and ordering supplemental briefing on the issue of standing. The Court has reviewed this briefing, along with the remainder of the record, and finds that defendant's motion for summary judgment (dkt. #72) will be granted in part and denied in part and that defendant's renewed motion for summary judgment for lack of standing (dkt. #64) will be granted.
Plaintiffs' Second Amended Complaint asserts claims under 42 U.S.C. § 1981 (Count I), 42 U.S.C. § 1982 (Count II), 42 U.S.C. § 1983 (Count III), 42 U.S.C. § 1985 (Count IV), M.C.L. 37.2302 (Count V), M.C.L. 37.2701 (Count VI), and common law conspiracy (Count VII). Following oral argument on defendant's motions, the parties stipulated to the dismissal of Counts I, II, IV, and VII. Therefore, the only claims remaining for resolution are those under § 1983 and the ELCRA.
I. Background
Scott Garrett and Charles Gordon are the founders, managers, and principal owners of plaintiff L.A. Globe, a nightclub formerly located at 6810 South Cedar in Lansing, Michigan. Garrett and Gordon, both African-American, leased this property in July 1998 and began efforts to obtain a liquor license with an eye towards serving food and alcoholic beverages and hosting dancing and African-American entertainment events.
In January 1998, Garrett and Gordon submitted the necessary paperwork and paid the fee for a Class C liquor license transfer to plaintiff L.A. Globe. A subcommittee of the City Council then held a hearing on plaintiff's application, requesting more information, including a business plan. At a subsequent hearing, members of the subcommittee expressed concerns regarding the business plan, Garrett and Gordon's lack of experience, and the proposed location of the nightclub. Ultimately, however, the subcommittee voted 2-1 to recommend approval of the license transfer. The City Council unanimously approved the transfer on February 1, 1999.
L.A. Globe opened its doors for business in July 1999, serving food and drinks and hosting African-American entertainment events. Plaintiff contends that from then forward it was singled out by police and the City Council for excessive inspections, scrutiny, and racial profiling. On November 9, 2000, Garrett expressed plaintiff's objections to these practices in separate letters sent to Councilmembers Allen and Wood, Lansing Police Department (LPD) Captain Edward Forrest, and LPD Chief Mark Alley.
Then, in December 2000, Gordon filed a race discrimination complaint with the Michigan Department of Civil Rights ("MDCR"), alleging plaintiff L.A. Globe had been denied a cabaret license and subjected to racial profiling. Defendant received notice of the complaint on January 24, 2001, and a formal copy of it from the Michigan Department of Civil Rights (MDCR) on February 16, 2001.
On March 2, 2001, the City Council sent plaintiff notice of a March 15 hearing to recommend to the Michigan Liquor Control Commission (LCC) nonrenewal of plaintiff's liquor license. Nonrenewal is not revocation, as it simply places the license in escrow until its owner has remedied problems identified by the Council. At the hearing, Garrett and Gordon were allowed to voice their objections and call witnesses on L.A. Globe's behalf. Ultimately, however, the Council voted to recommend nonrenewal, later publishing written findings of fact. Subsequently, the LCC did not renew plaintiff's liquor license.
Shortly after losing its liquor license L.A. Globe ceased operations and filed this suit, alleging federal and state civil rights violations.
II. Standard of Review
Under Fed.R.Civ.P. 56, the Court must look beyond the pleadings and evaluate the facts to determine whether there is a genuine issue of material fact that warrants a trial. Barnhart v. Pickrel, Schaeffer Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir. 1993). An issue of fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court must draw all reasonable inferences in the light most favorable to the nonmovant. Timmer v. Michigan Dep't of Commerce, 104 F.3d 833, 842 (6th Cir. 1997). Production of a "mere scintilla of evidence" in support of an essential element will not forestall summary judgment. Anderson, 477 U.S. at 251. A party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Ind. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
III. Analysis
A. Standing
Defendant first contends that Garrett and Gordon, as shareholders and officers of plaintiff L.A. Globe, lack standing to bring individual claims. The shareholder standing rule is a "general precept of corporate law that a shareholder of a corporation does not have a personal or individual right of action for damages based solely on an injury to the corporation." Gaff v. FDIC, 814 F.2d 311, 315 (6th Cir. 1987), on reh'g, vacated, in part, on other grounds, 828 F.2d 1145 (6th Cir. 1987). The shareholder standing rule also applies to civil rights claims, see Smith v. Martin, 542 F.2d 688 (6th Cir. 1976) (claims under §§ 1981-1988), cert. denied, 431 U.S. 905 (1977), and to claims under Michigan law. Michigan Nat'l Bank v. Mudgett, 444 N.W.2d 534 (Mich.App. 1989). Thus, if the injury to the shareholder is merely derivative of the harm suffered by the corporation, then the shareholder lacks standing. See Gaff, 814 F.2d at 317-37.
A corporate shareholder, however, does have individual standing if he can demonstrate an injury that is "separate and distinct" from that suffered by the corporate entity. Gaff, 814 F.2d at 315 (citation omitted). plaintiffs Garret and Gordon have alleged four categories of individual injury: 1) diminution in value of investment; 2) economic damages from loss of employment; 3) loss of lease and resulting economic loss; and 4) humiliation and extreme mental and emotional distress.
The first three of these alleged injuries are clearly derivative of the harm suffered by L.A. Globe. Although wage, investment, and other economic losses may flow to an individual from discriminatory harm suffered by a corporation, these injuries are not "separate and distinct" from those suffered by that corporation. See Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 603 (6th Cir. 1988).
Garrett and Gordon's alleged mental and emotional injuries are similarly derivative of those suffered by L.A. Globe. While plaintiffs may indeed have sustained such injuries, they did so on the basis of discriminatory conduct aimed at their corporate entity. This conduct consisted of a recommendation of nonrenewal of L.A. Globe's liquor license and a claim of retaliation in response to a civil rights complaint filed on behalf of wrongs against L.A. Globe. Even after being directed to provide supplemental briefing on this issue, plaintiffs still have not demonstrated that their damage claims are not based solely on the harm suffered by L.A. Globe. See Gaff, 814 F.2d at 315.
In sum, plaintiffs in this case availed themselves of the corporate structure, which carries with it certain benefits and consequences. While shareholders benefit from limited liability for corporate obligations, they also cannot maintain an individual action for damages based solely on wrong directed at that corporation. Since plaintiffs have failed to demonstrate that their alleged injuries are "separate and distinct" from those of L.A. Globe, they lack individual standing. Accordingly, defendant's motion for summary judgment (dt. #64) will be granted and plaintiffs Garrett and Gordon will be dismissed from this action.
B. Section 1983
1. Municipal Liability
As a threshold issue before addressing plaintiff's substantive claims under 42 U.S.C. § 1983, the Court must first determine whether a viable cause of action exists against this municipal defendant. To state a cause of action against a municipality, a plaintiff must allege that a municipal policy or custom existed which caused the violation of their constitutional rights. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978).
Under Monell, a single decision of a properly constituted legislative body "unquestionably constitutes an act of official government policy," and can therefore serve as the basis of municipal liability under § 1983. Pembaur v. City of Cincinnati, 475 U.S. 469, 479-80 (1986). Plaintiff in this case has satisfied its burden under Monell, claiming that the City Council's recommendation of nonrenewal of its liquor license was an act of official government policy that violated their constitutional rights. Given this, defendant may be liable for damages under 42 U.S.C § 1983.
2. Equal Protection
Turning now to the substance of plaintiff's claims, § 1983 protects against the deprivation "of any rights, privileges, or immunities secured by the Constitution and laws," as a result "of any statute, ordinance, regulation, custom, or usage, of any State." 42 U.S.C. § 1983. One right enforceable through § 1983 is found in the Equal Protection Clause of the Fourteenth Amendment, which is aimed at "the prevention of official misconduct discriminating on the basis of race." Washington v. Davis, 426 U.S. 229, 239 (1976).
Claims brought under the Equal Protection Clause are subject to the burden-shifting proof scheme adopted in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Lautermilch v. Findlay City Schools, 314 F.3d 271, 275 (6th Cir. 2003); Reese v. City of Southfield, 1998 WL 552841 (6th Cir., Aug. 13, 1998) (unpublished). Under the McDonnell Douglas framework, once a plaintiff establishes a prima facie case of discrimination, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the discriminatory act. McDonnell Douglas, 411 U.S. at 802-04. If the defendant articulates such a reason, the plaintiff then bears the burden of showing that the articulated reason is merely a pretext. See id. at 804-06.
To state a prima facie case of race discrimination, plaintiff must demonstrate that defendant's actions were motivated by racially discriminatory intent or purpose. Village of Arlington Heights v. Metro Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977). Plaintiff need not, however, show that defendant's actions rested solely on racially discriminatory purposes, as "[r]arely can it be said that a legislative . . . body operating under a broad mandate made a decision motivated solely by a single concern." Id. at 265. Rather, plaintiff must produce evidence indicating that "invidious discriminatory purpose was a motivating factor," which will necessarily demand "a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Id. at 266-67. The key to every equal protection inquiry is whether plaintiff was treated differently from others who were similarly situated. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Similarly situated does not require a showing of exact correlation, however, but rather that L.A. Globe and other bars were similar in all relevant aspects. See Perry v. McGinnis, 209 F.3d 597, 601 (6th Cir. 2000).
Plaintiff also asserts an equal protection claim under a "class of one" theory, approved by the Supreme Court in Village of Willowbrook v. Olech, 528 U.S. 562 (2000). This theory is applicable in cases where a plaintiff has not alleged membership in a suspect group or the violation of a fundamental right. Since plaintiff in this case has alleged discrimination on the basis of race, a suspect classification, the "class of one" theory is inapplicable.
Plaintiff's evidence of discriminatory intent is found largely in the affidavits of Freddie Thomas, Genice Rhodes-Reed, and Joseph Graves, all of whom were employees of defendant during the time period at issue. These affidavits establish that extreme hostility, by Councilmember Carol Wood in particular, was shown toward plaintiff at the hearing to consider plaintiff's application for transfer of the liquor license. The same level of hostility was not exhibited toward the owners of the Texas Roadhouse, a bar whose owners were white and were also applying for a liquor license transfer. At the conclusion of this hearing Wood told Garrett and Gordon that she would be "watching" them, and did not express similar sentiments to the owners of the Texas Roadhouse.
These affidavits further reveal that minority owned businesses in general, and L.A. Globe in particular, received more scrutiny and observation from Wood and other city officials than did non-minority owned businesses. Wood even stated that she would "stop at nothing" to see that plaintiff was shut down.
Furthermore, shortly after the filing of plaintiff's civil rights complaint with the MDCR, defendant scheduled a hearing to recommend nonrenewal of plaintiff's liquor license. Three days prior to that hearing, however, a majority of city council members had already determined that they would vote for nonrenewal of L.A. Globe's liquor license. Then, at the hearing, L.A. Globe received substantially more scrutiny than did Coscarelli's, a white owned bar. Coscarelli's, like L.A. Globe, was a bar located in the south precinct of the city and had a similar history of alcohol violations. At the end of the hearing, however, the council voted to recommend nonrenewal only of plaintiff's license, not that of Coscarelli's.
This evidence, when considered as a whole and drawing all inferences in favor of plaintiff, establishes a prima facie case of race discrimination under the Equal Protection Clause. In response, defendant contends that it took this adverse action not on the basis of any discriminatory motive, but rather because of safety concerns at L.A. Globe and the unwillingness of Garrett and Gordon to implement proposed changes. Even accepting these as legitimate, non-discriminatory reasons for the recommendation of nonrenewal, however, plaintiff has offered sufficient evidence of pretext. Given the history of alleged discrimination outlined above and the history of safety concerns at Coscarelli's, plaintiff has presented material questions of fact on its equal protection claim. Accordingly, summary judgment on this claim is inappropriate.
3. Retaliation
Plaintiff further contends that defendant voted to recommend nonrenewal of its liquor license in retaliation against its civil rights complaint alleging racial profiling and unlawful denial of a cabaret license. Three elements must be proven to successfully assert a retaliation claim under the First Amendment:
1) that the plaintiff was engaged in a constitutionally protected activity;
2) that the defendant's adverse action caused the plaintiff to suffer an injury that would likely chill a person of ordinary firmness from continuing to engage in that activity; and
3) that the adverse action was motivated at least in part as a response to the exercise of the plaintiff's constitutional rights.Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998). Plaintiff has clearly satisfied the first element of this analysis, as the First Amendment protects speech on matters of public concern, which are characterized as those "relating to any matter of political social, or other concern to the community." Lucas v, Monroe County, 203 F.3d 964, 973 (6th Cir. 2000). Alleged racial discrimination by city officials certainly falls within this category, even if the complaint also involved matters of personal interest. See Bonnell v. Lorenzo, 241 F.3d 800, 812 (6th Cir. 2001).
Plaintiff has also presented sufficient evidence to indicate that it was subject to an adverse action that would deter a person of ordinary firmness from filing further complaints with the MDCR. While the phrase "adverse action" is drawn from employment cases and generally involves words such as "termination," "suspension," or "transfer," a retaliation claim must be considered in the context in which the alleged retaliation occurred. See Thaddeus-X v. Blatter, 175 F.3d 378, 395 (6th Cir. 1999). In this case, the nonrenewal of a liquor license has financial consequences for its holder that rival the seriousness of the employment actions mentioned above. Given this, the Court finds that the gravity of this adverse action would chill a person of ordinary firmness from filing further complaints.
Finally, plaintiff must demonstrate that defendant's decision to recommend nonrenewal of its liquor license was motivated, at least in part, by the filing of the civil rights complaint. Plaintiff may not merely allege that an unwanted action followed a protected activity, but must instead show a sequence of events from which retaliation may plausibly be inferred. Spruytte v. Govorchin, 961 F. Supp. 1094, 1102-03 (W.D. Mich. 1997) (Hillman, J.). In this case, plaintiff has presented evidence that within days after the complaint was filed, the City Council scheduled a nonrenewal hearing. Then, three days before that hearing, a majority of the council expressed their intent to vote to recommend nonrenewal. Since retaliation may plausibly be inferred from this sequence of events, plaintiff satisfies the third element of a retaliation claim and has presented a material issue of fact regarding its retaliation claim. Accordingly, summary judgment is not appropriate on this claim.
4. Procedural Due Process
Plaintiff next argues that defendant's actions violated its right to procedural due process under the Fourteenth Amendment. To successfully assert a procedural due process claim in a § 1983 action, plaintiff must demonstrate three elements:
1) that they have a life, liberty, or property interest protected by the Due Process Clause of the Fourteenth Amendment;
2) that they were deprived of this protected interest within the meaning of the Due Process Clause; and
3) that the state did not afford them adequate procedural rights prior to depriving them of their protected interest.Med Corp., Inc. v. City of Lima, 296 F.3d 404, 409 (6th Cir. 2002).
Turning to the first element, protected property interests do not arise from the Constitution, but rather from an independent source such as state law. See Leis v. Flynt, 439 U.S. 438, 441 (1979). It is firmly established under Michigan law that the holder of a liquor license has a protected due process interest in its renewal. See Bundo v. City of Walled Lake, 395 Mich. 679, 693-696 (1976). Plaintiff has also presented sufficient evidence of a deprivation of this property interest, as defendant's actions led directly to the nonrenewal decision of the Liquor Control Commission on April 30, 2001. See M.C.L. § 426.1501.
Before being deprived of a protected property interest procedural due process requires "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Memphis Light, Gas Water Div. v. Craft, 436 U.S. 1, 13 (1978). Indeed, Michigan law specifies that a legislative body considering recommending nonrenewal of a liquor license "provide notice of the proposed action and the reasons given for such, a hearing in which the licensee may present evidence and testimony and confront adverse witnesses, and a written statement of findings." Roseland Inn, Inc. v. McClain, 118 Mich. App. 724, 729 (1982); see also M.C.L. § 436.1501 et seq.; Bundo, 395 Mich. at 696. City of Lansing ordinances track these requirements and further specify that such notice shall be provided at least ten days in advance of the hearing, where a court reporter shall transcribe the proceedings. See Lansing Code § 830.07. While compliance with state and local requirements is not dispositive of a procedural due process claim, in this case it indicates that plaintiff received adequate notice of the hearing and was allowed to be present and voice its objections.
A further fundamental tenet of procedural due process, however, is that the hearing be conducted before an impartial tribunal. Ward v. Village of Monroeville, 409 U.S. 57, 59-60 (1972). This requirement of neutrality and fairness ensures "that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance the arbiter is not predisposed to find against him." Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980). Plaintiff here contends that a majority of the City Council had determined to vote in favor of objecting to the renewal of its liquor license on March 12, 2001, three days before the March 15 hearing on the matter. The evidence in support of this assertion comes from the affidavit of Freddie Thomas, a former city employee who heard various Council members stating their alleged predisposition against L.A. Globe. While scant, this evidence is uncontroverted and is sufficient to raise a factual question regarding defendant's predisposition or bias. Accordingly, summary judgment is not appropriate on this claim.
5. Substantive Due Process
Substantive due process is "the doctrine that governmental deprivations of life, liberty or property are subject to limitations regardless of the adequacy of the procedures employed." Buckeye Comm. Hope Found. v. City of Cuyahoga Falls, 263 F.3d 627, 641 (6th Cir. 2001) (internal quotes and citations omitted). In other words, substantive due process involves "the right not to be subject to arbitrary or capricious action." Id.
To establish a substantive due process violation, a plaintiff must first identify a constitutionally protected property or liberty interest. Silver v. Franklin Twp. Bd. of Zoning Appeals, 966 F.2d 1031, 1036 (6th Cir. 1992). As discussed above, plaintiff here has demonstrated a protected property interest in the renewal of a liquor license. Beyond this, however, plaintiff must demonstrate that the defendant's actions were arbitrary and capricious "in the strict sense, meaning that there is no rational basis" for the decision. Pearson v. City of Grand Blanc, 961 F.2d 1211, 1221 (6th Cir. 1992) (citations and internal quotes omitted) (emphasis in original).
Certainly in this case defendant's decision to recommend nonrenewal of plaintiff's liquor license on the basis or race would constitute an arbitrary and capricious deprivation of plaintiff's property right in that license. Therefore, since plaintiff has demonstrated material issues of fact that defendant discriminated against it on the basis of race, it has similarly demonstrated material issues of fact regarding its substantive due process claim. See Shaw v. Danley, 202 F.3d 270 (6th Cir., Jan. 10, 2000) (unpublished).
6. Takings Clause
Plaintiff further contends that defendant violated the Fifth Amendment by temporarily and permanently confiscating its property rights in the liquor license. The Takings Clause of the Fifth Amendment provides that private property shall not "be taken for public use, without just compensation." U.S. Const. amend. V. This restraint on the power of the government to take private property is "designed to bar the government from forcing some alone to bear burdens which, in all fairness and justice, should be borne by the public as a whole." Prater v. City of Burnside, 289 F.3d 417, 424 (6th Cir. 2002), quoting Philips v. Washington Legal Found., 524 U.S. 156, 163 (1998).
The Supreme Court has recognized two categories of takings — physical takings and regulatory takings. See Waste Mgmt., Inc v. Metropolitan Gov't of Nashville Davidson County, 130 F.3d 731, 737 (6th Cir. 1997). A physical taking occurs when the government physically intrudes upon a plaintiff's property or allows others to do so, while a regulatory taking occurs when a land-use regulation denies an owner economically viable use of his land. Id.
Plaintiff has not plead, argued, or even acknowledged either of these categories of takings in support of their claim. Instead, plaintiff characterizes its claim as one for "procedural due process takings." Plaintiffs' Brief in Opposition to Summary Judgment at 19. Plaintiff offers nothing to support the existence of such a claim, nor can the Court discern any basis for such a claim. If, as the Court suspects, plaintiff is really alleging that defendant's due process violation deprived it of or diminished the value of its liquor license, then its claim would properly lie under the Due Process Clause, not the Takings Clause. Given this, plaintiff's takings claim cannot stand.
C. Michigan Elliott-Larsen Civil Rights Act
In addition to the § 1983 claims discussed above, plaintiff further alleges that defendant violated the Michigan Elliot-Larsen Civil Rights Act (ELCRA), M.C.L. 37.2101, et seq. The ELCRA was enacted as a means of preventing discrimination directed against a person because of that person's membership in a certain class and to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases. Noecker v. Department of Corrections, 203 Mich. App. 43, 46 (1993).
1. Discrimination under the ELCRA
Plaintiff first contends that defendant violated section 302 of the ELCRA, which provides:
Except where permitted by law, a person shall not:
A "person" under the ELCRA includes individuals, corporations, and "the state or a political subdivision of the state or an agency of the state." M.C.L. 37.2103.
(a) Deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service because of . . . race.
M.C.L. 37.2302. Plaintiff initially claimed that the liquor license it held was a public accommodation or service and that defendant discriminated against plaintiff and its patrons by denying them full and equal enjoyment of that license. See Second Amended Complaint ¶¶ 64-65.
Conceding, however, that it does not have standing to assert a claim on behalf of its patrons and that a liquor license is not a public accommodation or service under the ELCRA, plaintiff has changed its theory under the ELCRA. Plaintiff now apparently claims that the Michigan Liquor Control Commission, City of Lansing, and City Council are "public accommodations" or "public services" that have treated plaintiff disparately on the basis of race. See Plaintiffs' Brief in Opposition to Summary Judgment at 23.
To prove disparate treatment under the ELCRA, a plaintiff must demonstrate that he is a member of a protected class and was treated differently than persons of a different class for the same or similar conduct. See Sanders v. Southwest Airlines Co., 86 F. Supp.2d 739, 744 (E.D. Mich. 2000). Given that these elements are substantially similar to those articulated in the above discussion regarding discrimination under the Equal Protection Clause, see Pitts v. Michael Miller Car Rental, 942 F.2d 1067, 1070 (6th Cir. 1991) ("Disparate treatment claims brought under the [ELCRA] have been construed in the same manner as federal civil rights claims), the Court finds that plaintiff has similarly presented a material question of fact on its ELCRA discrimination claim.
2. Retaliation under the ELCRA
Finally, plaintiff contends it was retaliated against for filing a civil rights complaint with the MDCR. This claim is founded on section 701 of the ELCRA, which states that "a person shall not . . . retaliate or discriminate against a person because the person has . . . filed a complaint . . . under this act." M.C.L. 37.2701. As in the First Amendment retaliation claim above, plaintiff contends that defendant recommended nonrenewal after Garrett filed a complaint its on behalf.
The elements of a retaliation action under this section have only been enunciated in the employment context, which comprises the vast majority of ELCRA cases. To prevail, a plaintiff must set forth facts showing that: 1) he opposed violations of the Act or participated in activities protected by the Act, and 2) the opposition or participation was a significant factor in an adverse employment decision. Booker v. Brown Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir. 1989). The significant factor standard requires more than a mere causal link, as a factor can be a cause without being significant. See id.
Given that these elements are substantially similar to those articulated above regarding retaliation under the First Amendment, the Court finds that plaintiff has similarly presented a material question of fact on its retaliation claim under the ELCRA.
IV. Conclusion
For the reasons set forth above, the Court finds that defendant's renewed motion for summary judgment against Garrett and Gordon for lack of standing (dkt. #64) will be GRANTED and they will be dismissed form this suit. In addition, the Court finds that defendant's motion for summary judgment (dkt. #72) will be GRANTED as to plaintiff's takings claim and DENIED as to plaintiff's remaining claims. The Court will enter an order consistent with this opinion.
ORDER
In accordance with the Court's opinion of even date:
IT IS ORDERED that defendant's renewed motion for summary judgment for lack of standing (dkt. #64) is GRANTED and plaintiffs Garret and Gordon are DISMISSED from this action; and
IT IS FURTHER ORDERED that defendant's motion for summary judgment (dkt. #72) is GRANTED IN PART AND DENIED IN PART.