Linda Atiyeh v. Borough of Gettysburg

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 24-1761
____________
LINDA ATIYEH; GETTYSBURG INVESTORS LLC; THE GETTYSBURG
MOOSE LLC; LINCOLN SQUARE LLC; GALLERY 30 LLC; THE UPPER
CRUST LLC; JAMILIE ABRAHAM LLC,
Appellants
v.
BOROUGH OF GETTYSBURG; THEODORE H. STREETER; SUSAN NAUGLE;
WESLEY K. HEYSER; PATRICIA A. LAWSON; JACOB SCHINDEL; CHRIS
BERGER; CHARLES STRAUSS; JOHN LAWVER; CHARLES R. GABLE;
RICHARD L. MILLER, II
____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1:19-cv-01412)
District Judge: Honorable Karoline Mehalchick
____________
Argued: January 17, 2025
____________
Before: PHIPPS, FREEMAN, and CHUNG, Circuit Judges
(Filed: March 17, 2025)
___________

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Gerald E. Arth [ARGUED]
FOX ROTHSCHILD
Two Commerce Square
2001 Market Street, Suite 1700
Philadelphia, PA 19103
Jocelyn Mendez
Danielle E. Ryan
FOX ROTHSCHILD
747 Constitution Drive, Suite 100
Exton, PA 19341
Counsel for Appellants
Rolf E. Kroll [ARGUED]
MARGOLIS EDELSTEIN
214 Senate Avenue
Suite 402
Camp Hill, PA 17011
Counsel for Appellee
___________
OPINION*
___________
PHIPPS, Circuit Judge.
In this case, a local businessowner sued a borough under 42 U.S.C. § 1983 on the
belief that the borough manager held a vendetta against her and induced the borough to
revise its parking ordinance to her detriment. When discovery uncovered no evidence that
the governing council had any retaliatory intent, the borough moved for summary
judgment, and the District Court granted that motion. In this appeal, the businessowner
disputes that ruling. On de novo review, we will affirm the judgment of the District Court
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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because there is no factual or legal support for attributing the borough manager’s intent to
the borough council.
BACKGROUND
Between 2016 and 2019, Linda Atiyeh owned and operated several small businesses
in the Historic District of the Borough of Gettysburg, Pennsylvania. One of those
businesses was Gallery 30, an art gallery and retail store. She also opened a restaurant,
The Upper Crust, in 2018, and worked during that time to open another restaurant, Jamilie.
A. The Signage Dispute and the Alleged Formation of Retaliatory Animus
Through its sign ordinances, the Borough of Gettysburg, Pennsylvania requires a
permit for every sign in the Borough and a certificate of appropriateness for every sign in
the Borough’s Historic District.1 In November 2016, there were several objects hung along
the western wall of Gallery 30, which abuts a pedestrian walkway, for which the Borough
had not issued either a permit or a certificate of appropriateness. And on November 7,
2016, the Borough’s Code Enforcement Officer sent Atiyeh a letter informing her that nine
of those objects violated the sign ordinances. That letter provided a penalty-free ten-day
period for Atiyeh to either remove the signs or obtain the proper approval.
Atiyeh did not remove those items within that time. Instead, one day before the
grace period expired, she emailed the Code Enforcement Officer’s supervisor – the
1 See Gettysburg Borough Ordinance § 19-111(3) (explaining that a sign cannot be placed
without a permit or without complying with any other requirements under the municipal
code); id. § 19-121 (indicating that a sign in the Borough’s Historic District must receive
a certificate of appropriateness); id. (describing how, to receive a certificate of
appropriateness, one must request approval from the Historic Architectural Review Board,
which then makes a recommendation to the Borough Council, which makes the final
decision); see also id. § 19-103 (defining ‘sign’ as “[a]ny structure, device or object that
incorporates lettering, logos, colors, lights, or illuminated inert gas tubes visible to the
public from a building or structure, which either conveys a message to the public, or intends
to advertise, direct, invite, announce, or draw attention to goods, products, services,
activities, or facilities, excluding window displays of merchandise or noncommercial
items”).

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Borough Manager, Charles Gable. In that communication, Atiyeh asserted that the sign-
permit ordinances did not apply to the nine items on the western wall of Gallery 30 because
those objects were art, not signs.
After the grace period expired, the Borough made a site visit and discovered not
only that the nine items remained on the western wall of Gallery 30 but also that Gallery 30
was in violation of other borough ordinances. Shortly afterward, the Borough’s Chief Code
Official, who was supervised by Gable, issued a Notice of Violation, which was served on
Atiyeh at her home. That Notice explained that the nine signs violated the Borough’s sign
ordinances because they lacked the requisite permits and certificates of appropriateness.
The Notice further informed Atiyeh of the potential fines – up to $600 per violation. It
also provided warnings with respect to the other discoveries from the site visit: two
additional violations of the sign ordinances, and a violation of another ordinance for
merchandise blocking the sidewalk. The Notice informed Atiyeh that the sidewalk
violation was punishable by a fine of up to $1,000 and imprisonment for up to ninety
days for each day of noncompliance.
After receiving that Notice, Atiyeh began calling members of the Borough Council,
the Borough’s seven-person legislative body.2 Some of their staff called Gable to express
their support for Atiyeh.
Gable was not receptive to those concerns. Through an email sent to all
Councilmembers, as well as to other employees of the Borough, he opined that it was
inappropriate for people supporting Atiyeh to call him on Atiyeh’s behalf. He also made
2 At the time, the Council consisted of President Robert Kummerich, Vice President Scot
Pitzer, AmyBeth Hodges, Wesley Heyser, Susan Naugle, Jacob Schindel, and Graham
Weaver.

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clear that he was not sympathetic to Atiyeh’s position because she was in violation of
multiple Borough ordinances and was unwilling to come into compliance.3
Not all recipients of Gable’s email agreed with his approach. Councilmember Susan
Naugle later wrote to Gable that Atiyeh “perceive[d the Notice of Violation letter] as
‘insulting’” and that “many on Council felt that the Notice of Violation letter was not
acceptable.” E-mail from Naugle to Gable and Rebecca LaBarre (Nov. 30, 2016,
11:24 a.m.) (App. 95).
In addition to pursuing a legislative solution, Atiyeh filed an administrative appeal
of the sign violations with the Borough’s Zoning Hearing Board. She no longer relied on
the art-not-signs argument; instead, she asserted that a permit was not required for the signs
because the western wall of Gallery 30 abutted an ‘alley,’ not a ‘street.’ That approach
succeeded, and the Zoning Hearing Board resolved the appeal in her favor on February 13,
2017. Afterward, Atiyeh applied for the certificates of appropriateness needed to hang
those signs in the Borough’s Historic District, and the Borough Council issued those
certificates.
Gable appeared displeased with this resolution. According to Councilmember
AmyBeth Hodges, he told the Council that the Borough “has to stop [Atiyeh]” and that he
was “going to get her back.” Hodges Aff. (App. 303–04).
3 Over time, Gable’s sentiment became more widely known: in covering the signage
dispute, a local op-ed writer described Gable as “harass[ing] and intimidat[ing]” Atiyeh.
Harry Hartman, Signs of Government Being Anti-Business, Gettysburg Times, Jan. 25,
2017, at 4 (App. 302).

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B. The Dispute over Meter Bagging and the Claimed Effectuation of
Gable’s Alleged Retaliatory Animus Through an Amended Parking
Ordinance
About one year later, in early 2018, Atiyeh opened The Upper Crust in downtown
Gettysburg. Her business model for that restaurant centered around convenience –
customers could order takeout or eat a quick meal on the premises.
Although the streets near that restaurant had metered parking, the Borough had long
permitted meter bagging. Under that practice, qualified approved applicants could reserve
metered parking spaces by placing a bag over the meter for the cost of $1 per hour or $100
a month. See Gettysburg Borough Ordinance § 15-712 (2018). The Borough allowed
meter bagging as a means of reserving parking for parties of tourists; visiting business,
civil, and governmental groups; funeral and church-event attendees; construction crews;
and special loading and unloading purposes. See id. § 15-711 (2018). In practice, at the
time when The Upper Crust opened, bagging generally occurred on an event-by-event
basis, and the only businesses using meter bagging to reserve parking spaces on a long-
term basis were hotels and bed and breakfasts – for guest loading and unloading.
That changed on April 22, 2018, when Atiyeh applied to permanently reserve six
parking spots: three in front of the restaurant and three in front of Gallery 30. The Borough
Parking Manager, Richard Miller – who reported directly to Gable – granted that
application in full.
It did not take long before the Borough began receiving complaints. On May 4, the
owners of the nearby Brafferton Inn emailed Borough Manager Gable to question why a
retail store was allowed to reserve parking spaces. They expressed concern that Atiyeh’s
conduct would “set[] a dangerous precedent in which any business can buy parking spots,”
which would make it harder for residents and tourists to find spots where they could park
to walk around town or visit multiple businesses. E-mail from Brafferton Inn to Gable

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(May 4, 2018, 2:08 p.m.) (App. 559). On May 9, a Borough resident emailed Parking
Manager Miller to point out that “[m]uch discussion has ensued among friends and fellow
Gettysburgians” about why Atiyeh was allowed to reserve parking spaces in front of
Gallery 30. E-mail from Lisa Shower to Richard Miller (May 9, 2018, 7:53 p.m.) (D.C.
ECF No. 58-2 at 151). That resident further shared the concern that if Atiyeh continued to
buy up property and reserve parking spaces downtown, there might not be enough spaces
left for customers of other businesses. Other residents presented similar concerns to
Miller – they were worried that Atiyeh was “taking up vital spaces on main streets.” Miller
Dep. 35:6–14 (App. 600). The Borough Council – whose composition changed such that
only three of the seven members had served when Atiyeh challenged the sign ordinance4 –
also received similar complaints.
In responding on May 5 to the email from the owners of the Brafferton Inn, Gable
shared several pieces of information. After assuring the owners that he and the Council
were “aware of this issue,” Gable confirmed that the Parking Ordinance was intended to
allow only hotels and bed and breakfasts to reserve spaces so that their guests could quickly
park while checking in, checking out, and loading and unloading luggage – not to allow
restaurants and retail establishments to reserve parking spaces for customers. E-mail from
Charles Gable to Brafferton Inn (May 5, 2018, 1:20 p.m.) (App. 558). But, he explained,
the “definition of ‘loading and unloading’ in [the Parking Ordinance did] not narrowly
define it this way,” and Atiyeh was litigious: she had been able to convince the Zoning
Hearing Board to “interpret[] the private walkway between [Gallery 30] and the [building
next door] to be an alley,” contrary to the text of the Motor Vehicle Code, in part through
4 At that time, the Councilmembers were President Susan Naugle, Vice President Jacob
Schindel, Christopher Berger, Wesley Heyser, Patricia Lawson, John Lawver, and Charles
Strauss.

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“VERY strong political pressure from her friends and supporters.” Id. (App. 558–59).
Thus, according to Gable, “the Borough and its staff [did] not have the capacity (financially
or politically) to enforce [the Parking Ordinance] in the manner in which [it] . . . was
intended when it was adopted years ago,” and “[s]o, for now, to avoid another public outcry
and costly legal battle,” it had granted Atiyeh’s request and would grant any other meter-
bagging requests it received. Id. (App. 559). But, Gable explained, the Borough’s ultimate
plan – to be effectuated by the Council, which had the final authority to decide how to
proceed in the matter – was to amend the Parking Ordinance to clarify the narrow definition
of ‘loading and unloading.’
Consistent with Gable’s email, on June 21, Parking Manager Miller provided the
Council with a policy briefing that encouraged it to revise the Ordinance. That briefing
explained that the meter-bagging provision in the Parking Ordinance was “not designed to
allow businesses or residents to have a permanent, reserved parking space on a public street
to utilize at their behest.” Miller, Policy Briefing Summary: Chapter 15 Parking Revisions
1 (2018) (App. 561). But Atiyeh’s meter bagging did just that, so the policy briefing
recommended that the Council “close the loophole” by clarifying that the Parking
Ordinance did not allow businesses to reserve spaces for long-term customer parking – that
‘special unloading and loading purposes’ should take no more than fifteen minutes. Id. at
1–3 (App. 561–63).
In the meantime, the Borough received additional applications to permanently
reserve metered parking spaces. It granted applications for at least three other business.
And in August 2018, it granted Atiyeh’s application to permanently reserve three metered
parking spaces for Jamilie, a new restaurant she was trying to open.

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That same month, Atiyeh requested a restaurant liquor license for The Upper Crust,
and the Council approved it. See Council Resolution No. 040918 (Aug. 13, 2018);5
Vanderklok v. United States, 868 F.3d 189, 205 n.16 (explaining that the Court may take
judicial notice of “information [that] is publicly available on government websites”).
On April 8, 2019, after considering amending the Parking Ordinance for ten months,
the Council amended the Parking Ordinance to allow only two types of businesses to
reserve parking spaces on a non-temporary basis: hotels and bed and breakfasts. See
Gettysburg Borough Ordinance § 15-711(2)–(3) (2019). According to affidavits later filed
by the Councilmembers, the signage dispute “played no role whatsoever” in their decision
to amend the Ordinance. Councilmembers’ Affs. (D.C. ECF No. 52-7). Rather, in
reaching the unanimous decision to amend the Parking Ordinance, the Council explained
that the issue of meter bagging had not been “the subject of . . . review and update” since
the 1980s, Statement of Purpose & Legislative Intent (App. 567), and it acknowledged that
“the safe and convenient accommodation of overnight guests in the Borough by hotels and
bed and breakfast use establishments provides a potential economic opportunity and benefit
for other commercial uses in the Borough,” id. (App. 568). Ultimately, it was the
comparison between the interests of lodging establishments and those of other commercial
business that motivated the Council to allow only lodging establishments to permanently
meter bag:
[L]imiting the reservation of public parking spaces by hotels and bed and
breakfast use establishments, as opposed to authorizing such reservation and
use of public parking to much more prolific commercial uses in the
downtown area of the Borough and along its primary public streets such as
retail stores and shops, restaurants and professional and business offices, will
not unreasonably or severely limit or eliminate safe and convenient on-street
parking.
5 Available at https://www.gettysburgpa.gov/sites/g/files/vyhlif3156/f/pages/040918_
liquor_license_transfer_to_upper_crust.pdf [https://perma.cc/MD87-LBDR].

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Id. (App. 568). Under the revised Parking Ordinance, none of the non-lodging
establishments that had been granted meter bags, including Atiyeh’s three businesses, were
allowed to continue bagging parking meters.
After the Council amended the Parking Ordinance, Gable made statements
indicating that he did not forget about the prior signage dispute with Atiyeh. He told
Councilmembers to “take to task” the Zoning Hearing Board members who voted in favor
of her appeal. See Text Message from Gable to Chris Berger, Charles Strauss, Jake
Schindel, and John Lawver (Aug. 16, 2019, 6:31 p.m.) (App. 317). And when he later
learned that one of Atiyeh’s businesses would be protested, he texted four separate people
that “karma is a bitch.” Text Message from Gable to Alex Hayes (July 1, 2019, 12:20 p.m.)
(App. 318–22); Text Message from Gable to Chad Clabaugh (July 1, 2019) (App. 332);
see Text Message from Gable to Deb Adamik (11:05 am) (App. 328–30); Text Message
from Gable to Rebecca LaBarre (July 1, 2019, 2:48 p.m.) (App. 326). In addition, he
reached out to the protest’s organizer to offer his support. See Facebook Message from
Gable to Olivia (11:48 p.m.) (App. 331).
PROCEDURAL HISTORY
On August 14, 2019, Atiyeh along with six of her businesses invoked the subject
matter jurisdiction of the District Court, see 28 U.S.C. § 1331, to initiate this civil rights
suit under 42 U.S.C. § 1983 against the Borough, all Councilmembers at the time of the
parking dispute, and several Borough officials, including Gable, in their individual
capacities. See generally Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978) (“Local
governing bodies . . . can be sued directly under § 1983 for monetary, declaratory, or
injunctive relief where . . . the action that is alleged to be unconstitutional implements or
executes a policy statement, ordinance, regulation, or decision officially adopted and

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promulgated by that body’s officers.”). After Atiyeh agreed with the individual defendants
to dismiss without prejudice the claims against them,6 all that remained was a First
Amendment retaliation claim against the Borough: she alleged that the Council amended
the Parking Ordinance in retribution for her success in the Gallery 30 signage dispute.
Following the close of discovery, the Borough successfully moved for summary judgment
on that claim. See Atiyeh v. Borough of Gettysburg, 2024 WL 1286216 (M.D. Pa. Mar. 26,
2014). Through a timely notice of appeal, Atiyeh invoked this Court’s appellate
jurisdiction, see 28 U.S.C. § 1291, to challenge that final decision.
DISCUSSION
A prima facie claim for unconstitutional retaliation consists of three elements. A
plaintiff must establish “(1) constitutionally protected conduct, (2) retaliatory action
sufficient to deter a person of ordinary firmness from exercising [her] constitutional rights,
and (3) a causal link between the constitutionally protected conduct and the retaliatory
action.” Thomas v. Independence Township, 463 F.3d 285, 296 (3d Cir. 2006) (citing
Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)). Here, the parties dispute only the
third element, a causal link. While such a causal link may be established through “evidence
gleaned from the record as a whole,” Watson v. Rozum, 834 F.3d 417, 424 (3d Cir. 2016),
precedent also recognizes two indirect methods for satisfying that element of the prima
facie showing for purposes of pretrial motions: “an unusually suggestive temporal
proximity between the protected activity and the allegedly retaliatory action . . . [or] a
6 Atiyeh brought retaliation, equal protection, substantive due process, and promissory
estoppel claims against the Mayor, the Councilmembers, Gable, and Miller. The dismissal
without prejudice of these claims is not a bar to this Court’s appellate jurisdiction: such a
dismissal is considered final for purposes of § 1291 if the claim’s statute of limitations has
run, see Morton Int’l, Inc. v. A.E. Staley Mfg. Co., 460 F.3d 470, 477 (3d Cir. 2006) –
which it has, see Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017) (noting the statute
of limitations for § 1983 actions in Pennsylvania is two years).

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pattern of antagonism coupled with timing,” Lauren W. ex rel. Jean W. v. DeFlaminis,
480 F.3d 259, 267 (3d Cir. 2007). If a plaintiff has demonstrated a prima facie case of
retaliation, then to prevail in a pretrial dispositive motion, the defendant must show that it
“would have reached the same decision even in the absence of the protected conduct.”
Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000) (quoting Mt. Healthy City Sch. Dist.
Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). And to meet that standard at summary
judgment, “the defendant must present evidence of such quality that no reasonable juror
could conclude that the protected activity was the but-for cause of the [complained-of
action].” Hill v. City of Scranton, 411 F.3d 118, 126 n.11 (3d Cir. 2005).
For the reasons below, even assuming arguendo that Atiyeh has established a prima
facie case of retaliation, the Borough has produced sufficient evidence such that no
reasonable juror could conclude that her conduct during the signage dispute was the but-
for cause of the revised Parking Ordinance. See id. See generally Fed. R. Civ. P. 56(a);
SodexoMAGIC, LLC v. Drexel Univ., 24 F.4th 183, 203 (3d Cir. 2022) (explaining that
“summary judgment is appropriate ‘if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law’” (quoting
Fed. R. Civ. P. 56(a))); TD Bank N.A. v. Hill, 928 F.3d 259, 270 (3d Cir. 2019) (recognizing
that this Court “may affirm on any basis supported by the record, even if it departs from
the District Court’s rationale”).
Based on the undisputed facts in the record, several features of the Borough
Council’s decision to revise the Parking Ordinance demonstrate that it was not motivated
by an interest in retaliating against Atiyeh for the Gallery 30 signage dispute.
First, the undisputed facts in the record reveal that the immediate impetus for the
Council’s amendment to the Parking Ordinance was the bevy of complaints that the

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Borough received about Atiyeh’s permanently meter bagging six parking spots. There is
no evidence that any Councilmember – or even Gable – contemplated amending the
Parking Ordinance before the Borough began receiving complaints.
Second, after the signage dispute, the Borough took actions that benefitted Atiyeh.
Two months after the Zoning Hearing Board’s decision, the Council granted certificates of
appropriateness for the signs at Gallery 30. And in August of 2018, in the midst of the
parking meter dispute, the Council granted Atiyeh a restaurant liquor license for The Upper
Crust. See Council Resolution No. 040918 (Aug. 13, 2018).
Third, the Borough Council voted unanimously to amend the Parking Ordinance.
As far as timing, that vote occurred after ten months of the Council studying the issue and
considering alternative solutions, which is consistent with the Council making an informed,
independent decision – not reflexively acting on animus. The numbers are also telling:
only three of the seven Councilmembers had their seats during the Gallery 30 signage
dispute. So even if those three members acted with retaliatory animus, they did not by
themselves hold enough votes to amend the Parking Ordinance.
Atiyeh’s countertheory of causation consists of two parts. First, she attempts to
prove that Borough Manager Gable held a retaliatory animus toward her. Second, because
Gable was not a Councilmember, Atiyeh seeks to impute his alleged animus to the Council
through a cat’s paw approach: she claims that Gable manipulated the Council to effectuate
his desired retaliation. See generally Staub v. Proctor Hosp., 562 U.S. 411, 415 (2011)
(explaining that in a “cat’s paw case,” the plaintiff seeks “to hold his employer liable for
the animus of a supervisor who was not charged with making the ultimate employment
decision” (internal quotation marks and citations omitted)); Crosbie v. Highmark, Inc.,

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47 F.4th 140, 145 (3d Cir. 2022) (explaining that the cat’s paw theory applies when “some
nefarious manager . . . use[s] [HR] as an instrument of retaliation”).
The problem for Atiyeh is the second part of her countertheory – the cat’s paw
approach.
As a factual matter, she comes up short. Although Gable spoke out against Atiyeh
to Councilmembers, there is no evidence that any member agreed with or was otherwise
influenced by those statements. See Crosbie, 47 F.4th at 146 (finding that the cat’s paw
theory failed because there was no evidence the individual alleged to have retaliatory intent
influenced the plaintiff’s firing). To the contrary, they each signed an affidavit averring
that the signage dispute “played no role whatsoever” in their decision to amend the
Ordinance. Councilmembers’ Affs. (D.C. ECF No. 52-7). And they repeatedly voted to
grant other requests made by Atiyeh after she prevailed in the signage dispute – the three
certificates of appropriateness for the signs for Gallery 30 as well as the liquor license for
The Upper Crust.
Also, as a matter of law, the cat’s paw theory has been applied to employment
discrimination claims. See Staub, 562 U.S. at 415; Crosbie, 47 F.4th at 145. Atiyeh
identifies no case applying the theory to legislation. Indeed, extension of such a theory to
legislative bodies is inconsistent with several foundational legal principles. Legislatures,
unlike employers, have an independent “duty to exercise their judgment and to represent
their constituents.” Brnovich v. Democratic Nat’l Comm., 594 U.S. 647, 689 (2021). And
because there are countless possible justifications for legislation, the improper motives of
a single legislator cannot be attributed to the entire legislature. See United States v.
O’Brien, 391 U.S. 367, 383 (1968) (“It is a familiar principle of constitutional law that this
Court will not strike down an otherwise constitutional statute on the basis of an alleged

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illicit legislative motive.”); McCray v. United States, 195 U.S. 27, 56 (1904) (“The
decisions of this court from the beginning lend no support whatever to the assumption that
the judiciary may restrain the exercise of lawful power on the assumption that a wrongful
purpose or motive has caused the power to be exerted.”); cf. Nixon v. Adm’r of Gen. Servs.,
433 U.S. 425, 475–76 (1977) (explaining that in the bill of attainder context, a law is
permissible so long as it “reasonably can be said to further nonpunitive legislative
purposes”). If a single legislator’s improper motives cannot taint the entire legislative
body, then, on this record, in which all Councilmembers produced affidavits averring that
the signage dispute “played no role whatsoever” in their decision to amend the Parking
Ordinance, no reasonable juror could conclude that Gable’s motives infected the entire
Council. Councilmembers’ Affs. (D.C. ECF No. 52-7); cf. Church of Lukumi Babalu Aye,
Inc. v. City of Hialeah, 508 U.S. 520, 534–35 (1993) (concluding that facially neutral
municipal ordinances were discriminatory because, based on the record, “[t]here [could]
be no serious claim that [non-discriminatory] interests justify the ordinances”).7
CONCLUSION
For these reasons, we will affirm the judgment of the District Court.
7 Judge Freeman would permit Atiyeh’s First Amendment retaliation claim to proceed to
trial. In her view, a reasonable jury could find that Gable’s retaliatory animus tainted the
Council’s decision to amend the Parking Ordinance. See Staub, 562 U.S. at 419–20;
Suppan, 203 F.3d at 237–38 (concluding that the lack of retaliatory animus by the ultimate
decisionmaker “cannot expunge the taint” of retaliation earlier in the decision-making
process). Although Gable is not a voting member of the Council, as Borough Manager his
“job [wa]s to recommend” actions to the Councilmembers. App. 264. One such
recommendation was to amend the Parking Ordinance. He made that recommendation
because Atiyeh began “bagging” the meters in front of her businesses and because he feared
that Atiyeh would prevail in a legal challenge, as she did with the signage dispute.
Although Gable supported his recommendation with a policy briefing, that briefing was
prepared by one of his direct reports, and, in Judge Freeman’s view, a reasonable jury could
find the basis for the briefing’s recommendation was pretextual.

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