The opinion of the court was delivered by: Wayne R. Andersen District Judge
MEMORANDUM OPINION AND ORDER
This case is before the court on the motion of defendants Patrick O'Neil, the Will County Coroner's Office, and Will County to dismiss Janet Alexander's complaint for failure to state a claim pursuant to FED.R.CIV.P. 12(b)(6). For the following reasons, the motion to dismiss is granted.
Janet Alexander was appointed by Patrick O'Neil, the elected coroner for Will County, as a deputy coroner of Will County in 2000. In February, 2002, Alexander informed O'Neil about a job offer from the Cook County Medical Examiner's Office (at the time, she was one of only seven board certified death investigators in Illinois); O'Neil promoted her to chief deputy coroner in April, 2002, and allegedly told her she would be Chief Deputy Coroner for as long as he was the elected coroner and she performed her job satisfactorily.
Alexander's job was to supervise the official duties of the coroner's office, including supervision of the deputy coroners. Will County deputy coroners were instructed to call Alexander, and not O'Neil, with any questions about assigned death investigations. Alexander received public and private praise for her job performance. On May 11, 2005, O'Neil designated Alexander to be his successor coroner pursuant to Illinois law, 55 ILCS § 5/3-3009.
On June 6, 2004, three-year-old Riley Fox was found murdered in Will County. Alexander normally would have handled the death investigation, but was on vacation at the time; O'Neil ordered an autopsy to be performed. Additionally, without the knowledge of Alexander, O'Neil ordered the completion of two separate sexual assault kits. According to Alexander's complaint, completing two separate sexual assault kits is a violation of protocol. In a bizarre series of events, Riley Fox's father was arrested for the murder of his daughter, but was released when DNA testing excluded him as the source of the DNA collected from the autopsy; his civil rights lawsuit against Will County alleging false arrest had already been filed.
In June, 2005, Alexander discovered that the two separate sexual assault kits had been ordered, and questioned O'Neill about this. She then spoke with other state coroners and state investigators, as, she claims, a private citizen, intending to "expose the misconduct in the Riley Fox autopsy." Compl., ¶44. In late 2005, O'Neil allegedly publically berated her and ordered her to stop speaking with or meeting "coroners from other counties and coroners and deputy coroners aligned with other political parties." Compl., ¶46. Alexander continued to investigate the alleged procedural violations and answer questions from investigators. O'Neil fired Alexander on December 27, 2005, citing excessive use of her coroner-supplied cellular telephone.
After being discharged, Alexander found in her Coroner's Office personnel file eight unsigned memoranda dated between July 8, 2005 and December 14, 2005, which she claims were falsely critical of her and had been falsely planted as justification for her firing. None of the memoranda were in her file previously, nor were they in her Will County personnel file. Compl., ¶55.
Alexander filed a seven count complaint, alleging: (I) first amendment retaliation, (II) violation of her right to freedom of association on matters of public concern, (III) deprivation of her property interest, (IV) deprivation of her liberty interest, (V) detrimental reliance, (VI) intentional infliction of emotional distress, and (VII) indemnification. Defendants claim that Alexander's first amendment claims in counts I and II are not actionable because Alexander was a policymaking employee fired on political grounds. They claim that count III should fail because Alexander had no property interest in her job and that count IV should fail because the allegedly stigmatizing information was not publicly disclosed. Defendants also argue that if the motion to dismiss with respect to counts I through IV is granted, the remaining claims should be dismissed without prejudice so that the plaintiff may pursue them in state court. Finally, defendants claim in the alternative that O'Neil has qualified immunity with respect to counts I through IV.
The purpose of a motion to dismiss is to test the sufficiency of a complaint and not to decide the merits of the challenged claims. Weiler v. Household Financial Corp., 101 F.3d 519, 524 (7th Cir. 1996). When considering a motion to dismiss, the court must treat all facts alleged in the complaint as true and should draw all inferences in favor of the plaintiff. McDonald v. Household International, Inc., 425 F.3d 425 (7th Cir. 2005). Dismissal is appropriate when it appears beyond doubt that plaintiff can prove no facts consistent with her claim which would entitle her to relief.
While the First Amendment right to freedom of speech is fundamental, it is not absolute. Even the right to criticize public officials, itself at the heart of First Amendment protection, is subject to restrictions and exceptions. Wilbur v. Mahan, 3 F.3d 214 (7th Cir. 1993) (citing New York Times Co. v. Sullivan, 376 U.S. 254 (1964)). Some of those restrictions concern public employees.
Two major lines of cases control the outcome of cases in which a public employee is fired as a result of her speech. The first, the Elrod-Branti exception, under which public employees who hold policymaking positions can be fired for political affiliation, see Elrod v. Burns, 427 U.S. 347, 368 (1976); Branti v. Finkel, 445 U.S. 507, 518 (1980), has been extended by the Seventh Circuit to include political expression that compromises a policymaker's loyalty or reflects a breakdown of the sense of shared political mission between superior and subordinate. Sakelaris v. Danikolas, Slip Copy, 2007 WL 917375 (N.D. Ind., Mar. 23, 2007); see also Warzon v. Drew, 60 F.3d 1234, 1238 (7th Cir.1995); Wilbur v. Mahan, 3 F.3d 214, 218 (7th Cir.1993). The second line of cases, under Pickering and Connick, establish that a governmental employer cannot punish a public employee for engaging in protected expression on matters of public concern under the First Amendment. Pickering v. Board of Education, 391 U.S. 563, 568 (1968); Connick v. Myers, 461 U.S. 138, 142 (1983). The First Amendment protection of the employee in commenting upon matters of public concern is balanced against the interest of the government as employer in promoting the efficiency of the public services it performs through its employees. Lickiss v. Drexler, 141 F.3d 1220 (7th Cir. 1998).
Defendants argue that this case falls under the Elrod-Branti exception because Alexander was a policymaker. Alexander denies that she was a policymaker, and argues that the ElrodBranti line of cases are patronage cases, in which employees lost jobs because they were not members of the employer's political party. Wilbur, 3 F.3d at 217. Alexander further claims that nothing in her complaint indicates that she was fired for political reasons or any other type of political speech. Alexander is correct in that the patronage cases do not hold that an employee surrenders her freedom of speech by becoming a policymaking employee of government. Wilbur, 3 F.3d at 217. They do hold, however, that if Alexander were a ...