                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 13-1334
                                     ____________

            MICHAEL S. COOPER; CHRISTINE L. COOPER, individually
                 and also t/d/b/a South Hanover Automotive LLC,

                                                 Appellants

                                           v.

              JOHN MENGES; JEFFREY GARVIK; PENN TOWNSHIP
                              ____________

                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                (D.C. No. 1-11-cv-00862)
                    District Judge: Honorable William W. Caldwell
                                     ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 September 24, 2013

             Before: AMBRO, FISHER and HARDIMAN, Circuit Judges.

                            (Opinion Filed: October 2, 2013)
                                     ____________

                              OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.

      Appellants, Michael S. Cooper (“Mr. Cooper”), and his wife Christine L. Cooper

(collectively the “Coopers”), brought suit against appellees John Menges, Jeffrey Garvik,

and Penn Township (collectively “Appellees”), alleging multiple constitutional violations
arising from a land use dispute and seeking relief pursuant to 42 U.S.C. § 1983. The U.S.

District Court for the Middle District of Pennsylvania granted summary judgment in

favor of Appellees, from which the Coopers now appeal. We will affirm.

                                             I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       The Coopers own and operate South Hanover Automotive (“SHA”), an

automotive repair shop in Hanover, Pennsylvania. Mr. Cooper purchased the property

that would become SHA in approximately November 2007, at which time there were

three buildings on the premises. After purchasing the property, Mr. Cooper took down

one of the buildings (a six-by-six foot shed) and made other improvements.

       Mr. Cooper sought to make further improvements to the premises and consulted

with Menges, the Township’s zoning officer. The two had a heated discussion in

December 2007 about the requirement that commercial property owners submit a Land

Development Plan (“LDP”) prior to making improvements. The LDP was important,

according to Garvik, because it gave the Township a record of what was on each piece of

property. Mr. Cooper subsequently learned that the Township Board of Commissioners

could grant a waiver of the LDP requirement, so he submitted a pro se written request for

such a waiver. During his presentation to the Township Planning Commission, Mr.


                                              2
Cooper represented that he had already removed “some buildings” and “made

improvements” to alleviate water problems on the property. Supp. App. 40-41. The

Township Planning Commission and the Township Board of Commissioners rejected the

waiver request on October 20, 2008. Garvik testified in his deposition that “[s]ometimes

[the Commissioners] approve the waivers, a lot of times they don’t.” App. 364.

       On May 5, 2009, Mr. Cooper called the Township to complain about dust blowing

onto the SHA property from a nearby construction site. Menges drove to SHA in

response and “went off on a tirade” about cars being parked on the grass in violation of a

Township ordinance. App. 233. Menges informed Mr. Cooper that the existing violation

would have to be cured before an LDP would be approved. Mr. Cooper contacted Garvik

to complain about Menges’s behavior, and Garvik “just laughed at [him].” Id. at 234.

       Mr. Cooper then hired Hanover Land Services and one of its surveyors, Reginald

Baugher, to prepare and submit an LDP on his behalf. To improve Mr. Cooper’s chances

of approval, Baugher applied for two zoning variances, one related to the rear setback on

the property, and the other for a 35% expansion of the impervious area on the property.

Baugher discussed his proposed strategy with Menges, who expressed a different

interpretation of the relevant ordinances. Baugher disagreed with Menges’s suggested

interpretation, but went along with it because he felt that he did not have the appropriate

background to challenge the zoning officer. The Planning Commission reviewed the

application for variances and recommended that the Zoning Hearing Board grant the


                                             3
variances, but on December 8, 2009, the Zoning Hearing Board denied the application.

The Coopers alleged that Menges’s interpretation intentionally misled Baugher, but

Menges expressly denied that allegation. Baugher further indicated that he would not

characterize Menges’s statements as misleading, but as a disagreement. Baugher had

disagreed with zoning officers in the past. Menges could not recall having any

involvement in the approval process for the Coopers’ LDP.

       The Coopers retained counsel, who sought a special exemption from the existing

zoning ordinance, rather than a variance. This approach (which differed from that taken

by Baugher) was rejected by the Planning Commission, but was ultimately granted by the

Zoning Hearing Board on July 13, 2010. The Coopers were, at that time, able to make

the desired improvements to SHA’s premises. Baugher testified that the process faced by

the Coopers was “typical.” Id. at 266.

       The Coopers filed suit in the District Court. The amended complaint alleged four

grounds for their § 1983 claim: (1) First Amendment retaliation; (2) denial of substantive

due process; (3) denial of procedural due process; and (4) a class of one denial of equal

protection. The District Court granted Appellees’ motion for summary judgment on

January 7, 2013, and the Coopers timely appealed on February 4, 2013.

                                            II.

       The District Court had jurisdiction over this action pursuant to 28 U.S.C. § 1331

and § 1983. We have appellate jurisdiction under 28 U.S.C. § 1291.


                                             4
       We exercise plenary review over a grant of summary judgment, and apply the

same standard that the District Court should have applied. Howley v. Mellon Fin. Corp.,

625 F.3d 788, 792 (3d Cir. 2010) (citing Smathers v. Multi-Tool, Inc./Multi-Plastics, Inc.

Emp. Health & Welfare Plan, 298 F.3d 191, 194 (3d Cir. 2002)). Summary judgment is

proper when, viewing the facts in a light most favorable to the nonmoving party, there is

no genuine issue as to any material fact, and the moving party is entitled to judgment as a

matter of law. FED. R. CIV. P. 56(a); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986).

                                            III.

                                             A.

       The District Court applied the proper standard in concluding that there was no

genuine issue of material fact and granting Appellees’ motion for summary judgment.

When ruling on a motion for summary judgment, the district court must draw all

reasonable inferences in favor of the nonmoving party and refrain from making

credibility determinations. Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2 (1986). The

nonmoving party may not, however, “rest upon mere allegation or denials of his pleading,

but must set forth specific facts showing that there is a genuine issue for trial.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

       Here, the District Court accounted for and gave proper weight to facts the Coopers

emphasize in their brief—specifically, that Menges became angry during a conversation


                                             5
with Mr. Cooper, App. 14; that Menges went “off on a tirade” about cars being parked on

the grass, id. at 19; and that T.L. Wetzel and Sons, Inc., A2Z Motor Sports LLC, and

“other individuals and business entities” received what the Coopers characterize as

“favorable treatment” with respect to waivers from the Planning Commission. Id. at 13-

14, 18-19. As discussed below, these facts were not material to the District Court’s

resolution of the summary judgment motion with respect to the Coopers’ First

Amendment retaliation and Fourteenth Amendment Equal Protection claims, 1 thus the

District Court applied the proper standard when granting summary judgment.

                                             B.

       To make out a First Amendment retaliation claim pursuant to § 1983, a plaintiff

must establish three elements: “(1) constitutionally protected conduct, (2) retaliatory

action sufficient to deter a person of ordinary firmness from exercising his constitutional

rights, and (3) a causal connection between the constitutionally protected conduct and the

retaliatory action.” Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006)

(citing Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)). To establish the requisite

causal connection, the plaintiff must prove either: “(1) an unusually suggestive temporal

proximity between the protected activity and the allegedly retaliatory action, or (2) a


       1
         The District Court also granted summary judgment with respect to the Coopers’
Fourteenth Amendment substantive and procedural due process claims. The Coopers do
not raise these issues or argue that the District Court erred in this respect, and they are
therefore waived on appeal. Skretvedt v. I.E. DuPont De Nemours, 372 F.3d 193, 202-03
(3d Cir. 2004).

                                             6
pattern of antagonism coupled with timing to establish a causal link.” Lauren W. ex rel.

Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (citing Krouse v. Am. Sterilizer

Co., 126 F.3d 494, 503-04 (3d Cir. 1997)). “In the absence of that proof the plaintiff

must show that from the ‘evidence gleaned from the record as a whole’ the trier of the

fact [sic] should infer causation.” Id. (quoting Farrell v. Planters Lifesavers Co., 206

F.3d 271, 281 (3d Cir. 2000)). The defendant must be aware of the protected conduct in

order to establish the requisite causal connection. Gorum v. Sessoms, 561 F.3d 179, 188

(3d Cir. 2009) (citing Ambrose v. Twp. of Robinson, 303 F.3d 488, 493 (3d Cir. 2002)).

       The Coopers’ claim fails with respect to both the second and third elements

because the District Court could not have reasonably inferred that the various denials

were in retaliation for Mr. Cooper’s complaints about Menges to Garvik. 2 First, the

denial of Mr. Cooper’s pro se request for a waiver of the LDP occurred in October 2008,

prior to his complaint about Menges, which took place on May 5, 2009. The Planning

Commission and Board of Commissioners could not have had knowledge of Mr.

Cooper’s alleged protected conduct, because it had yet to occur. Gorum, 561 F.3d at 188.

The third proceeding, on the other hand, resulted in a favorable outcome for the Coopers,




       2
         The Coopers’ brief purports to identify two protected activities: (1) Mr.
Cooper’s complaint to Garvik; and (2) “the local officials as an outgrowth of the
antagonism carried by Menges and Garvik used every mechanism possible to delay,
harass, and treat [the Coopers] in a negative, disparate, fashion.” Appellants’ Br. at 15-
16. Only the first constitutes conduct by Mr. Cooper, so we consider only that ground.

                                             7
so it cannot be considered retaliatory. Because neither the first nor the third proceeding

could form the basis of a retaliation claim, we turn to the second proceeding.

       The Coopers argue on appeal that the District Court “downplayed” the facts as

characterized by them and should have inferred that the variance denial was in retaliation

for Mr. Cooper’s protected conduct. Upon review of the record, we agree with the

District Court that the Coopers do not establish that members of either the Planning

Commission (which recommended approval) or the Zoning Hearing Board (which denied

the variance) knew of any animosity between Mr. Cooper and Menges or Garvik. The

absence of such knowledge defeats the Coopers’ retaliation claim. Id.

       To the extent that the District Court could have inferred that the Coopers were

retaliated against by being treated differently than other similarly situated businesses, that

argument also fails. Mr. Cooper conceded that Wetzel and A2Z were likely treated more

favorably because they were “large businesses, probably producing jobs,” and because

“some of [them] were friends.” Supp. App. 89. Any favorable treatment, therefore, was

not the result of retaliation. With respect to the other entities and individuals listed by the

Coopers, there is no evidence indicating that members of the Zoning Hearing Board knew

about Mr. Cooper’s complaint such that any unfavorable treatment could be inferred as

retaliatory.

       Finally, the District Court could not have reasonably inferred that Menges

retaliated against Mr. Cooper by pressuring Baugher to accept Menges’s interpretation of


                                              8
the zoning ordinance. Baugher testified that he accepted Menges’s position as a matter of

strategy, and there is no evidence that he felt pressured to do so. Supp. App. 78-79. The

Coopers rest upon the legal conclusion that “Menges intentionally misled [Baugher]”

without adducing any evidence from which the District Court could have reasonably

inferred such intent. App. 41; Appellants’ Br. at 9. Although the record leaves little

doubt that Mr. Cooper and Menges did not like each other, Baugher indicated that he

would not characterize Menges’s statements as “misleading,” but rather as a difference of

opinion. Baugher had experienced similar disagreements in the past. Menges likewise

testified that he did not intentionally try to mislead Baugher. In light of these facts, the

Coopers’ argument is based upon nothing more than a “mere allegation,” and we cannot

conclude that it is sufficient to survive summary judgment. Anderson, 477 U.S. at 256.

                                              C.

       To state a “class-of-one” claim under the Equal Protection Clause, “a plaintiff

must allege that (1) the defendant treated him differently from others similarly situated,

(2) the defendant did so intentionally, and (3) there was no rational basis for the

difference in treatment.” Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006);

see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 243 (3d Cir. 2008) (combining the

first two elements quoted above to form a two-part test).

       No reasonable juror could conclude that the Coopers’ treatment in this case was

intentional, even if it differed from other entities. The Coopers adduced no evidence


                                              9
showing that the various Township entities that denied their requests intended to cause

delay or harassment. To the contrary, Baugher testified that the Coopers’ experience in

the approval process was, in fact, “typical.”

       The Coopers also fail the rational basis prong of the class-of-one test. To survive

rational basis review, a classification must be “‘rationally related to a legitimate

governmental objective.’” Parker v. Conway, 581 F.3d 198, 202 (3d Cir. 2009) (quoting

Tenafly Eruv Ass’n v. Borough of Tenafly, 309 F.3d 144, 165 n.24 (3d Cir. 2002)). As

noted by the District Court, Garvik’s testimony indicated that an LDP was necessary

because it provides a record of what is on the property, particularly where Mr. Cooper

indicated that he had made changes to the property before receiving approval. The

Township thus had a legitimate interest in regulating land use. See Pace Res., Inc. v.

Shrewsbury Twp., 808 F.2d 1023, 1035 (3d Cir. 1987) (acknowledging the courts’

deference to legislative judgment on zoning regulation in the substantive due process

context). The Zoning Hearing Board, therefore, had a rational basis for rejecting the

application for the variances and the District Court properly granted summary judgment

on this issue.

                                             IV.

       For the above stated reasons, we will affirm the District Court’s judgment in favor

of Appellees.




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