Case 2:21-cv-11001-MAG-KGA ECF No. 1, PageID.

1 Filed 05/03/21 Page 1 of 13

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ELENA DINVERNO, an individual,

Plaintiff,

vs. Case No. 21-cv

Hon.
ROCHESTER COMMUNITY Mag.
SCHOOLS DISTRICT, a government entity,
KRISTIN BULL, in her individual and official
capacity, DR. ROBERT SHANER, in his
individual and official capacity,

Defendants.

DEBORAH GORDON LAW

Deborah L. Gordon (P27058)
Elizabeth Marzotto Taylor (P82061)
Sarah Gordon Thomas (P83935)
Molly Savage (P84472)
Attorneys for Plaintiff
33 Bloomfield Hills Parkway, Suite 220
Bloomfield Hills, Michigan 48304
(248) 258-2500
[email protected]
[email protected]
[email protected]
[email protected]

COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiff Elena Dinverno, by and through her attorneys Deborah Gordon Law,

complains against Defendants as follows:

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JURISDICTION AND VENUE

1. This is a civil rights action brought under the First Amendment to the

United States Constitution and 42 U.S.C. § 1983, challenging Defendants’ restriction

on Plaintiff’s right to freedom of speech.

2. This action arises under the Constitution and laws of the United States.

Jurisdiction is conferred on the Court pursuant to 28 U.S.C. § 1331 and 28 U.S.C. §

1343.

3. Venue is proper under 28 U.S.C. § 1391 because all Defendants reside in

this district and because a substantial part of the events or omissions giving rise to

Plaintiff’s claims occurred in this district.

PARTIES

4. Plaintiff Elena Dinverno is a resident of Rochester Hills, Michigan.

5. Defendant Rochester Community Schools District is a government entity

administered by the Board of Education and the Superintendent.

6. Kristin Bull is President of the Board of Education. She is also an editor

and director of program content for Crain’s Detroit Business.

7. Dr. Robert Shaner is Superintendent of Rochester Community Schools

District. In June 2020, he was appointed to Governor Gretchen Whitmer’s COVID-19

Return to Learn Advisory Council which provides recommendations to the Governor’s

office pertaining to statewide school closings during the pandemic.

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STATEMENT OF FACTS

8. Ms. Dinverno and her family live in Rochester Hills, Michigan. Her two

children began attending schools within Rochester Community Schools District

(“RCS”) in 2013.

9. Beginning in 2019, Ms. Dinverno worked as the marketing director for

Blake’s Hard Cider Co. in Armada, Michigan. Blake’s Hard Cider Co. is a family-owned

craft cidery. Andrew Blake is the company’s president and Marty Blake is the company’s

Chief Financial Officer.

10. In April 2020, pursuant to Governor Whitmer’s executive orders, public

schools were closed for the remainder of the school year due to the COVID-19

pandemic.

11. Over the course of the summer, a thoughtful and reasonable debate

ensued among parents of RCS students regarding the reopening of schools. Members

of the community used Facebook groups to voice their opinions and advocate for their

preferred course of action for the 2020/2021 school year.

12. Concerned about adverse mental health effects of remote learning on

students, Ms. Dinverno began advocating for the reopening of schools, largely in two

Facebook groups: “RCS Parents for In-Person Education” and “Conservative Parents

for Rochester.”

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13. Ms. Dinverno became a vocal and effective advocate for her position. She

frequently questioned and criticized the decisions of the RCS Board of Education

(“BOE”) through posts and comments in the Facebook groups.

14. In late July or early August of 2020, following the BOE’s decision to begin

the school year remotely, Ms. Dinverno posted in “RCS Parents for In-Person

Education” seeking video testimonials from RCS parents and students expressing the

hardships they’ve endured without the availability of in-person school.

15. In the fall of 2020, a member of the BOE contacted Ms. Dinverno’s

employer falsely claiming that Ms. Dinverno was participating in a group engaged in

launching threats against the school district.

16. Ms. Dinverno later came to learn that the BOE member was Kristin Bull,

President of the Board of Education.

17. During the call, Ms. Bull spoke with Marty Blake. After falsely claiming

that Ms. Dinverno was part of a group that was making threats against the school

district, Ms. Bull, an employee of Crain’s, noted that Andrew Blake had recently been

named one of Crain’s Detroit Business’s “40 under 40.” Ms. Bull threatened to revoke

the accolade, which was to be announced publicly in November, due to Ms. Dinverno’s

alleged conduct.

18. As a result of Ms. Bull’s call to Marty Blake, Ms. Dinverno was called into

a meeting with Blake’s human resources manager and asked to explain her involvement.

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Ms. Dinverno explained that she had never threatened anyone at the school district.

She was told by the HR manager to watch what she was saying in the online forums.

19. Shortly thereafter, on November 6, 2020, Ms. Dinverno wrote a letter to

Blake’s leadership clarifying the extent of her participation in the Facebook groups. She

reiterated that she had never made any threats and that her participation did not go

beyond passionate, and appropriate advocacy.

20. In December 2020, Ms. Dinverno submitted a comment to the BOE

through the District’s online feedback portal:

It has come to my attention that certain board members are contacting

parents places of work to notify them that their behavior on the social
channels they participate in is undesirable. May I remind you that we pay
for your salaries with our tax dollars? And that what you are doing is
against the by laws of the BOE? Every parents has the right to express
their sadness, frustration, anger, as a right to freedom of speech. They
have no one to speak with because the nothing is changing! If you have a
problem with a particular parent please do what you tell our kids to do—
go to the course. Let them tell you how they feel. By reporting parents you
are risking their livelihood. Their employment. That is all they have right
now. I know you all understand that kids are sad, hurting, giving up, and
as parents we will go whatever is necessary for our children. Parents are
hurting too. The fact that certain members of the board are trying to shut
parents up because they are vocal about their pain and suffering is
unacceptable. Now let me be clear—threats are unacceptable. But using
our voices. Our right to free speech. Is our GOD GIVEN RIGHT. If you
don’t like it—then have a conversation with that parent. And maybe. Just
maybe. Make a change that will impact these kids in a positive way. Dr.
Shaner—I would be happy to fill you in on what I have learned about
certain members of your board reporting parents to their work. Please
reach out to me.

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21. Shortly thereafter, RCS Superintendent Dr. Robert Shaner called Ms.

Dinverno to discuss her comment. Ms. Dinverno told Dr. Shaner that her employer

had been contacted by a BOE member.

22. Ms. Dinverno asked that Dr. Shaner address the BOE. Dr. Shaner told

Plaintiff that there was nothing he could do. Instead, he complained to Ms. Dinverno

about the advocacy Facebook groups and told her that the behavior of the parents

participating in the group was wrong.

23. On December 18, 2020, Ms. Dinverno was terminated from Blake’s by

Andrew Blake. He told Ms. Dinverno that her position was no longer necessary.

Andrew Blake praised Ms. Dinverno’s performance and offered to write her a letter of

recommendation. A few weeks later, Blake’s posted a job opening for the same position

on Linkedin.

24. Ms. Dinverno’s December 2020 comment to the BOE was included in

the packet of agenda items to be discussed at RCS’s January BOE meeting.

25. Members of the “RCS Parents for In-Person Education” group discussed

the comment’s contents in the Facebook group, where Ms. Dinverno confirmed that

she was terminated after her employer was contacted by a BOE member.

26. Ms. Dinverno came to learn that other parent’s employers had been

contacted by members of the BOE. Another parent shared with the group his belief

that a BOE member had contacted his wife’s employer, a neighboring public school

district. She also came to learn that another parent’s employer, a local police
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department, was contacted about the parent’s comments in the same Facebook groups

and believed the call came from a BOE member.

27. On January 11, 2021, Ms. Dinverno addressed the BOE at the January

Board meeting during a period reserved for public comment. Ms. Dinverno raised the

issue of BOE members contacting parents’ employers. Despite the BOE including Ms.

Dinverno’s comment in the agenda packet for the meeting, BOE Vice President Kevin

Beers told Ms. Dinverno to “save it for Facebook.”

28. On January 14, 2021, RCS and RCS BOE, through their attorneys Collins

& Blaha, P.C., sent Ms. Dinverno a cease and desist letter.

29. The letter alleges that Ms. Dinverno’s December comment submitted to

the BOE and related Facebook group comments discussing the same are “false and are

injurious to the Board, and threaten further injury if left uncorrected.” The letter states

the “[t]he District is prepared to preserve its legal rights using the tools available to it

to the fullest extent of the law.”

30. Since receiving the letter, Ms. Dinverno came to learn that other parents

who have been critical of the BOE’s decision to discontinue in-person education have

received similar cease and desist letters from RCS’ attorneys.

COUNT I
First Amendment Retaliation

31. Plaintiff restates and realleges the foregoing paragraphs of the complaint

as though fully set forth herein.

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32. Plaintiff exercised her First Amendment rights to free speech and to

redress grievances to the fully elected public body charged with the legal duty to manage

and oversee the Defendant Rochester Community Schools District.

33. Plaintiff engaged in constitutionally protected speech through her various

Facebook posts and comments made throughout the fall and summer of 2020 and

through her submission of comments to the BOE.

34. Defendants sought to unlawfully interfere with Ms. Dinverno’s clearly

established free speech rights through a series of adverse actions, including contacting

her employer, threatening her employer with adverse professional ramifications if it

continued to associate with Ms. Dinverno, sending Ms. Dinverno a cease and desist

letter, and threatening Ms. Dinverno with a lawsuit for continued engagement in

protected activity.

35. Defendants’ adverse actions injured Ms. Dinverno by restraining,

preventing, and impairing her right to free speech in a way likely to chill a person of

ordinary firmness from propounding further lawful speech. Defendants’ adverse

actions further injured Ms. Dinverno by causing her to lose her employment.

36. Defendants were motivated to take these adverse actions in whole or in

part because of Ms. Dinverno’s constitutionally protected speech.

37. Defendants’ adverse actions violated Ms. Dinverno’s clearly established

First and Fourteenth Amendment rights, and were unlawful in light of clearly

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established law. No reasonable person would have believed otherwise, given the state

of the law and Defendants’ motivations. Defendants are liable under 42 U.S.C. § 1983

38. As a direct and proximate result of Defendants’ unlawful actions, Plaintiff

has suffered irreparable harm, injury, and damages, including but not limited to denial

of employment opportunities; loss of career opportunities and earning capacity; mental

and emotional distress; humiliation and embarrassment; and loss of personal and

professional reputation.

COUNT II
Monell Liability for First Amendment Retaliation

39. Plaintiff repeats and realleges the foregoing paragraphs as if they were fully

set forth herein.

40. The violation of Ms. Dinverno’s first amendment rights resulted from the

execution of the Rochester Community Schools District’s policies and customs.

41. Rochester Community Schools District maintains a widespread custom or

practice of contacting employers of RCSD parents who vocally oppose the decisions of

the Board of Education in an attempt to coerce, threaten, or manipulate said employers

to dissociate themselves with the parents and encouraging employers to take adverse

employment actions against the parents. This practice or custom is so permanent and

well-established that it constitutes a policy of Rochester Community Schools District.

42. Rochester Community Schools District maintains a widespread custom or

practice of threatening frivolous and meritless legal action against parents who vocally

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oppose the decisions of the Board of Education through the use of cease and desist

letters. This practice or custom is so permanent and well-established that it constitutes

a policy of Rochester Community Schools District.

43. Rochester Community Schools District’s custom or practice of contacting

parents’ employers is maintained with intentional, deliberate indifference to the

widespread custom or usage of constitutional violations.

44. Rochester Community Schools District’s custom or practice of

threatening legal action against parents is maintained with intentional, deliberate

indifference to the widespread custom or usage of constitutional violations.

45. Dr. Robert Shaner, by way of his position as superintendent of Rochester

Community Schools District, is a person vested with final decision-making authority on

behalf of Rochester Community Schools District.

46. The Board of Education is vested with final decision-making authority on

behalf of Rochester Community Schools District.

47. Dr. Robert Shaner, in his final decision-making authoritative capacity,

took action on behalf of Rochester Community Schools District to retaliate against Ms.

Dinverno for exercising her first amendment rights. Specifically, Dr. Shaner directed,

approved, and ratified the contacting and threatening of Ms. Dinverno’s employer, and

directed, approved, and ratified the execution of a cease and desist letter threatening

improper legal action against Ms. Dinverno. Dr. Shaner acted with an illegal, improper

retaliatory motivation.
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48. The Board of Education, in its final decision-making authoritative

capacity, took action on behalf of Rochester Community Schools District to retaliate

against Ms. Dinverno for exercising her first amendment rights. Specifically, the Board

of Education directed or approved the contacting and threatening of Ms. Dinverno’s

employer and directed and approved the execution of a cease and desist letter

threatening improper legal action against Ms. Dinverno. The Board of Education,

through the majority of its members, acted with an illegal, improper retaliatory

motivation.

49. Defendants’ adverse actions violated Ms. Dinverno’s clearly established

First and Fourteenth Amendment rights and were unlawful in light of clearly established

law. No reasonable person would have believed otherwise, given the state of the law

and Defendants’ motivations. Defendants are liable under 42 U.S.C. § 1983.

50. As a direct and proximate result of Defendants’ unlawful activity, Ms.

Dinverno has suffered and continues to suffer economic and non-economic damages

for which Defendants are liable.

RELIEF REQUESTED

Plaintiff demands judgment against Defendants as follows:

A. LEGAL RELIEF

a. Compensatory damages for Plaintiff’s past and future economic and

non-economic damages in whatever amount Plaintiff is found to be

entitled;
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b. Exemplary damages in whatever amount Plaintiff is found to be entitled;

c. Liquidated damages in whatever amount Plaintiff is found to be entitled;

d. An award of interest, costs, reasonable attorney fees, and expert witness

fees;

e. Any other legal relief this Court deems fair and just.

B. EQUITABLE RELIEF

a. An injunction from this Court prohibiting any further acts of

wrongdoing or retaliation against Plaintiff;

b. A declaratory judgment that Defendants have violated Plaintiff’s First

Amendment rights; and

c. Whatever equitable relief appears appropriate at the time of final

judgment.

Respectfully submitted,

Dated: May 3, 2021 DEBORAH GORDON LAW

/s/Deborah L. Gordon (P27058)
Elizabeth Marzotto Taylor (P82061)
Sarah Gordon Thomas (P83935)
Molly Savage (P84472)
Attorneys for Plaintiff
33 Bloomfield Hills Parkway, Suite 220
Bloomfield Hills Michigan 48304
(248) 258-2500
[email protected]
[email protected]
[email protected]
[email protected]

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JURY DEMAND

Plaintiff Elena Dinverno, by and through her attorneys Deborah Gordon Law,

demands a trial by jury of all the issues in this cause that are so triable.

Respectfully submitted,

Dated: May 3, 2021 DEBORAH GORDON LAW

/s/Deborah L. Gordon (P27058)
Elizabeth Marzotto Taylor (P82061)
Sarah Gordon Thomas (P83935)
Molly Savage (P84472)
Attorneys for Plaintiff
33 Bloomfield Hills Parkway, Suite 220
Bloomfield Hills Michigan 48304
(248) 258-2500
[email protected]
[email protected]
[email protected]
[email protected]

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