Marnocha v. City of Elkhart

Filing 29

OPINION AND ORDER: DENYING 19 MOTION to Dismiss by Defendants City of Elkhart, Tim Neese as to Count I and GRANTING in part and as follows: (1) All claims against Mayor Neese in his official capacity are DISMISSED; (2) Counts II, III, IV as alleged against Neese in his individual capacity are DISMISSED; and (3) Count V as alleged against Elkhart and Mayor Neese in his individual capacity are DISMISSED. All dismissals are with prejudice. Signed by Judge Philip P Simon on 6/19/2017. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
Margaret Marnocha

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Plaintiff,
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v.
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City of Elkhart, Indiana, Tim Neese, as )
Mayor of Elkhart, Indiana and in his
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Personal Capacity.
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Defendants.
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Case No. 3:16-cv-592

OPINION AND ORDER
According to the Amended Complaint, Margaret Marnocha, a former city
attorney with the City of Elkhart, was fired from her job when the city’s newly elected
mayor, Tim Neese, decided to clean house. (DE 4 at 2–4.) Marnocha says she was fired
for several illicit reasons, including in retaliation for exercising her First Amendment
rights, age discrimination, and sex discrimination. (Id. at 2.) She also alleges that Elkhart
and Mayor Neese violated the Equal Pay Act along the way and intentionally inflicted
emotional distress upon her to boot. (Id. at 4–5, 8–9.) The defendants now seek partial
dismissal of the Amended Complaint. (DE 19.)
The Supreme Court interpreted the Rule 12(b)(6) pleading standard in Bell Atl.
Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). To
survive a motion to dismiss under that standard, a complaint must state “enough facts
to state a claim to relief that is plausible on its face[,]” which in turn requires factual
allegations sufficient to permit a reasonable inference that the defendant is liable for the

misconduct alleged. Twombly, 550 U.S. at 556. Where even the well-pleaded facts do not
plausibly support an entitlement to relief on the legal theory identified, a claim is
subject to dismissal. Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010). “Where a
complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops
short of the line between possibility and plausibility of entitlement to relief.’” Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 557).
Claims Against Mayor Neese in his Official Capacity
Four counts of the Amended Complaint are brought against both Elkhart and
Mayor Neese in his official capacity. This is redundant pleading. The mayor, as an
official of Elkhart, and the city are one and the same. As the chief executive officer of
Elkhart, the Mayor is a policymaker such that actions taken in his official capacity are
the actions of the city. So says the Supreme Court: suing a public official in his official
capacity “is only another way of pleading an action against an entity of which an officer
is an agent[.]” Monell v. N.Y.C. Dep’t of Social Servs., 436 U.S. 658, 690, n. 55 (1978). This is
because a suit against an office holder in their official capacity is not really a suit against
the officer holder at all. It is a suit against the office itself. Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 (1989); see also Jungles v. Pierce, 825 F.2d 1127, 1129 (7th Cir. 1987)
(“[N]othing was added by suing the mayor in his official capacity.”) All claims against
Mayor Neese in his official capacity must be dismissed.

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Count I: Section 1983 First Amendment Claim
Marnocha was employed as a city attorney for Elkhart for approximately five
years. (DE 4 ¶ 20.) She was active in Democratic Party politics. (Id. ¶¶ 23–26.) She is a
registered Democrat and attended fund raisers for former Democratic Mayor Dick
Moore. (Id.) Neese defeated Moore in the general election in November 2015 and a week
later Mayor-Elect Neese paid Marnocha a visit at work. (Id. ¶¶29–30.) Although he had
not yet taken office, he started throwing his weight around. He told Marnocha she was
fired but that she could stay on the job until December 31st; Neese was to assume office
on January 1st. (Id. ¶¶31–32, 34.) Elkhart argues that Neese was not acting under color
law when he sacked Marnocha—regardless of whether she was fired on November 12th
or December 31st—because Neese did not become the mayor until January 1st.(DE 20 at
8.) There must, of course, be state action before a Section 1983 claim can move forward.
Fries v. Helsper, 146 F.3d 452, 457 (7th Cir. 1998). To prove a political firing in violation of
the First Amendment Marnocha will have to show that she engaged in constitutionallyprotected speech and that this speech was a “substantial” or “motivating” factor in her
termination. Graber v. Clarke, 763 F.3d 888, 894–95 (7th Cir. 2014).
Elkhart argues that Neese wasn’t acting under color of law because, when he
delivered the news to Marnocha that she was a goner, he was only the Mayor- Elect and
thus did not have the power of the office that he would assume some seven weeks later.
(DE 25-1 at 3.) Elkhart points to Burrell v. Mattoon 378 F.3d 642, 647 (7th Cir. 2004), for the
proposition that an elected official who has not yet assumed office does not act under

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color of law. But Burrell was decided on a motion for summary judgment, not on a
motion to dismiss. 378 F.3d at 644. Indeed, the case survived a motion to dismiss in the
district court. Id. at 648. And other courts have allowed similar claims to survive a
motion to dismiss even when recognizing, as I do, that the claim is a “tenuous” one. See,
e.g., Frederickson v. Willow Springs, 2008 WL 3008822, at *9 (N.D. Ill. Aug. 4, 2008). So
while Marnocha may have an uphill battle to marshal the evidence sufficient to show
state action, she will be given the opportunity to do so through discovery. For example,
perhaps she will be able to demonstrate that Neese conspired with others in Elkhart
government to terminate her or that her termination did not become effective until
Neese took office. Under those circumstances, there would be state action, and, because
Neese is a policymaker, the city could be on the hook for his actions. Valentino v. S. Chi.
Heights, 575 F.3d 664, 675–76 (7th Cir. 2009). The motion to dismiss Count I will therefore
be denied.
Claims Against Mayor Neese as the “Employer”
Counts II, III and IV of the Amended Complaint allege that Neese is individually
liable to Marnocha for violating the Equal Pay Act, Title VII, and the Age
Discrimination in Employment Act, respectively. (DE 4 at 4–8.) There is a fundamental
problem with these claims, which is that to be liable under the Equal Pay Act, Title VII
and the ADEA, the defendant must have been an “employer.” See 29 U.S.C. § 206(d);
42 U.S.C. § 2000e-2(a); 29 U.S.C. § 623(a). Neese was never Marnocha’s employer;
instead, Marnocha “was employed as an attorney for the City of Elkhart[.]” (Id. ¶ 20.)

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And a supervisor like Neese does not meet the definition of an employer under any of
the three statutes here at issue. See Sattar v. Motorola, Inc., 138 F.3d 1164, 1168 (7th Cir.
1998) (“It is by now well established in this court that a supervisor does not, in his
individual capacity, fall within Title VII’s definition of employer.”); U.S. EEOC v. AIC
Sec. Invests., Ltd., 55 F.3d 1276, 1282 (7th Cir. 1995) (holding that there is no individual
liability for supervisors under the ADEA); Harris v. Harvey, 992 F.Supp. 1012, 1013–14
(N.D. Ill. 1998) (holding that agents of an employer cannot be held individually liable
under the Equal Pay Act). The claims against Neese individually under the Equal Pay
Act, Title VII, and the ADEA will thus be dismissed.
Intentional Infliction of Emotional Distress
Marnocha’s claim in Count V of the amended complaint for intentional infliction
of emotional distress likewise must be dismissed. This species of tort requires extreme
and outrageous conduct on the part of the tortfeasor. Lachenman v. Stice, 838 N.E.2d 451,
456 (Ind. Ct. App. 2005). For this type of claim to survive, one must read the allegations
of the complaint and conclude that the conduct was truly outrageous. Ali v. Alliance
Home Health Care, LLC, 53 N.E.3d 420, 433–34 (Ind. Ct. App. 2016). Indeed, only conduct
“so outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community” can support this cause of action. Bradley v. Hall, 720 N.E.2d 747, 752–53
(Ind. Ct. App. 1999) (citation omitted). The facts alleged here do not come close to
stating a plausible claim for relief. This is a routine political firing case. There are no

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allegations in the amended complaint that even come close to meeting the high bar for
conduct that amounts to intentional infliction of emotional distress. See, e.g., McCreary v.
Libbey-Owens-Ford Co., 132 F.3d 1159, 1167 (7th Cir. 1997) (recognizing that Indiana
courts have been reluctant to award damages for intentional infliction of emotional
distress in employment cases); Hall v. Mem’l Hosp. of South Bend, 2016 WL 1043670, *3
(N.D. Ind. Mar. 16, 2016) (same). Count V of the amended complaint will therefore be
dismissed.
ACCORDINGLY:
The Defendants’ Partial Motion to Dismiss Plaintiff’s First Amended Complaint
(DE 19) is DENIED as to Count I and GRANTED in part and as follows:
(1) All claims against Mayor Neese in his official capacity are DISMISSED;
(2) Counts II, III, IV as alleged against Neese in his individual capacity are
DISMISSED; and
(3) Count V as alleged against Elkhart and Mayor Neese in his individual
capacity are DISMISSED.
All dismissals are with prejudice.
SO ORDERED.
ENTERED: June 19, 2017
s/ Philip P. Simon
JUDGE, UNITED STATES DISTRICT COURT

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