UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

Margaret Marnocha )

)

Plaintiff, )

)

v. ) Case No. 3:16-cv-592

)

City of Elkhart, Indiana, Tim Neese, as )

Mayor of Elkhart, Indiana and in his )

Personal Capacity. )

)

Defendants. )

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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