The opinion of the court was delivered by: John F. Grady, United States District Judge
Before the court are two motions: (1) defendants' motion to dismiss; and (2) defendants' motion for sanctions. For the reasons explained below, we deny both motions.
This case arises from the defendants' decision to terminate plaintiff Susan Fredrickson as village clerk of the Village of Willow Springs ("Willow Springs," or the "Village") on July 13, 2007. (Compl. ¶ 14.) She was replaced four days later on July 17, 2007. (Id.) According to Fredrickson, the stage was set for her dismissal two years earlier when defendant Alan Nowaczyk, currently Willow Springs's village president, and other members of the "United Peoples Party" were elected and assumed control of the Village's government. (Id. at ¶ 10.) Fredrickson was "friendly" with members of the ousted "Neighborhood Organization Party" and had worked with members of that party for at least some portion of her decade-long tenure as village clerk. (Id. at ¶¶ 7, 11.) She alleges that after the election Nowaczyk and defendant Annette Kaptur, a Willow Springs trustee affiliated with the United Peoples Party, harassed her for her affiliation with the Neighborhood Organization Party and undermined her performance as village clerk. (Id. at ¶¶ 12-13.) On several occasions between April 2005 and July 2007, the defendants "cast aspersions and made misrepresentations about what had occurred with the prior administration." (Id. at 16A.) When Fredrickson publicly objected, she alleges that the defendants "became motivated to terminate" her. (Id.) She also provoked the defendants' ire by speaking out on "financial matters" concerning the Village, and by publicly objecting when Nowaczyk and Kaptur demanded that she make "false and inaccurate" changes to the Village board's meeting minutes. (Id. at ¶¶ 16B-C.) In addition, she details a petty "campaign of harassment [and] intimidation" intended to make her toe the party line. (Id. at ¶ 17; see, e.g.,id. at ¶ 17F (Alleging that Fredrickson was "[r]eprimanded and denigrated by Nowaczyk for political reasons for assisting a family whose home was destroyed by fire.").)
Fredrickson has filed a six-count complaint. She seeks damages under 42 U.S.C. § 1983 for alleged violations of her First Amendment rights of political association and free speech (Count I) and her Fourteenth Amendment right to due process of law (Count II). In addition, she alleges state law claims for tortious interference with prospective economic advantage (Count III), retaliatory discharge (Count IV) and civil conspiracy (Count V). Finally, she requests an order of mandamus compelling the defendants to reinstate her as village clerk (Count VI). Defendants have moved to dismiss the entire complaint, but at our suggestion the parties agreed to brief Fredrickson's constitutional claims (Counts I and II) first. The portion of defendants' motion addressing the remaining counts is denied without prejudice to raise these arguments again at the appropriate time.
The purpose of a 12(b)(6) motion to dismiss is to test the sufficiency of the complaint, not to resolve the case on the merits. 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356, at 354 (3d ed. 2004). When evaluating such a motion, the court must accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. Hentosh v. Herman M. Finch Univ. of Health Sciences, 167 F.3d 1170, 1173 (7th Cir. 1999); Jang v. A.M. Miller & Assocs., 122 F.3d 480, 483 (7th Cir. 1997). However, the "allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level.'"
EEOC v. Concentra Health Serv., Inc., 496 F.3d 773, 776-77 (7th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007)). Our Court of Appeals has cautioned courts and litigants against "overread[ing]" Bell Atlantic, see Limestone Dev. Corp. v. Village of Lemont, Ill., 520 F.3d 797, 803 (7th Cir. 2008), and the Supreme Court has since dispelled the notion that it had abandoned notice pleading. See Erikson v. Pardus, 127 S.Ct. 2197 (2007). So, "heightened fact pleading of specifics" is still not required. Killingsworth v. HSBC Bank Nevada, 507 F.3d 614, 618 (7th Cir. 2007) (citation and internal quotation marks omitted). Nevertheless, the complaint must "contain enough facts to state a claim to relief that is plausible on its face." Id.
To state a claim under 42 U.S.C. § 1983, Fredrickson "must allege that a government official, acting under color of state law, deprived [her] of a right secured by the Constitution or laws of the United States." Estate of Sims ex rel. Sims v. County of Bureau, 506 F.3d 509, 514 (7th Cir. 2007). Defendants do not dispute that they were acting under color of state law when they terminated (or declined to reappoint) Fredrickson. They do contest Fredrickson's allegations that they deprived her of her First and Fourteenth Amendment rights.
B. First Amendment Claims
Fredrickson alleges that the defendants improperly replaced her as village clerk because she is affiliated with their political rival. She also alleges that the defendants were motivated to terminate her because she publicly defended the previous administration and objected when she was pressured to make improper changes to board minutes. Defendants contend that the village clerk position is exempt from First Amendment protection under Elrod v. Burns, 427 U.S. 347 (1976) and its progeny.
1. Political Patronage Claim
"A public agency that fires an employee because of his political beliefs or political affiliations infringes his freedom of speech . . . but there are exceptions to this principle, carved out to minimize its adverse impact on the effective functioning of government." Soderbeck v. Burnett County, 752 F.2d 285, 288 (7th Cir. 1985) (internal citations omitted). The Supreme Court's decision in Branti v. Finkel, 445 U.S. 507 (1980) "allows an employee to be fired if 'the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.'" Id. (quoting Branti, 445 U.S. at 518). Branti's functional analysis refined and expanded the Court's plurality decision in Elrod v. Burns, which articulated categories of employment ("policymaking" and "confidential") for which political affiliation is a permissible consideration. See Branti, 445 U.S. at 518. Although these labels are not determinative, they still provide a useful handle on a notoriously slippery subject. See Matlock v. Barnes, 932 F.2d 658, 662 (7th Cir. 1991) ("[T]hough a functional approach is now preferred to a definitional one, the descriptions 'policymaking' and 'confidential' accurately describe the vast majority of offices that fall within the realm of legitimate patronage."); Riley v. Blagojevich, 425 F.3d 357, 359 (7th Cir. 2005) (table of Seventh Circuit decisions applying Elrod/Branti and reaching different conclusions regarding ostensibly similar jobs). Whether a particular position is exempt is ordinarily a question of fact, but the job's parameters - defined by statute, ordinance, etc. - may be clear enough to permit the court to make that determination as a matter of law. Pleva v. Norquist, 195 F.3d 905, 912 (7th Cir. 1999). In making that determination, we rely on the office's inherent powers: whether the plaintiff actually exercised those powers is irrelevant. Id. at 913. "[D]efendants bear the burden of establishing that political affiliation is an appropriate qualification for the job from which plaintiff is ousted." Matlock, 932 F.2d at 663.
Defendants point out that the village clerk has access to "closed session" board meetings at which the board discusses sensitive confidential information. See Illinois Open Meetings Act, 5 ILCS 120/2.06(a) ("All public bodies shall keep written minutes of all their meetings, whether open or closed, and a verbatim record of all their closed meetings in the form of an audio or video recording.").*fn1 They argue that this fact brings the village clerk within the "confidential employee" exemption:
The basis for exempting this type of employee is that political antipathy can serve as a decent proxy for a lack of trust and loyalty where the employee's responsibilities include a duty to shield the decisionmaking process from the outside world. The possibility of "leaks" from employees with ...