Fired Elkhart city attorney fails to overcome appointee determination

A former Elkhart city attorney who was told she was being fired because the new mayor wanted “to hire my own guy” could not overcome the precedent the Northern Indiana District Court used to determine she was an appointed policymaker and therefore not covered by federal protections.

Margaret Marnocha joined the Elkhart administration as the utility attorney in September 2010 under then-Democratic Mayor Richard “Dick” Moore. She moved to the city’s legal department in May 2015 and was deputy city attorney when Republican Mayor Tim Neese fired her shortly after he was elected in November 2015.

According to Marnocha, Neese told her she was being fired “because I want to hire my own guy.” She responded he could not terminate her employment because she was not appointed. However, Neese, who told the court he felt retaining Marnocha would be detrimental to his administration because of her work on Moore’s controversial annexation, said she was identified by the city’s human resources department as being appointed.

The city subsequently hired two male attorneys, Lawrence Meteiver and Randall Arndt, to perform the combined tasks formerly assigned to Marnocha.

She filed a lawsuit in the U.S. District Court for the Northern District of Indiana, claiming the city violated the First Amendment along with Title VII, the Age Discrimination in Employment Act, and the Equal Pay Act. She asked for actual damages, consequential damages, punitive damages, and reasonable attorney fees and court costs.

In a ruling issued in late August, Judge Philip Simon agreed with the Neese administration. He concluded Marnocha’s job description fit that of a policymaker as defined in Elrod v. Burns, 427 U.S. 347 (1976). In addition, he cited several 7th Circuit Court of Appeals cases that also supported the finding that Marnocha was a policymaker.

Among the cases was Americanos v. Carter, 74 F.3d 138, 144 (7th Cir. 1996), where former Indiana Deputy Attorney General Peter Americanos filed a lawsuit after he was fired from his job following the election of Democrat Attorney General Pamela Carter. He asserted he was discharged from the position he held for 20 years because he was Republican, a white male of Greek heritage, and age 52.

The 7th Circuit panel granted summary judgment against Americanos, finding an attorney general has no power to appoint a deputy for any longer than his or her own term in office.

Marnocha tried to counter precedent. She argued she was not directly appointed by Moore and, therefore, did not fit within the Indiana statutes’ language of an “appointee on the policymaking level.”

Simon questioned whether Marnocha was “hired” or “appointed” was relevant in determining whether she was a policymaker. Yet, he acknowledged, the 7th Circuit cases cited all concerned attorneys who were directly appointed.

Two cases from Indiana — O’Neill v. Indiana Comm’n of Pub. Records, 149 F.Supp.2d 582, 589-90 (S.D. Ind. 2001) and Braaksma v. Wells Cmty. Hosp., 98 F.Supp.2d 1028-29 (N.D. Ind. 2000) — are among a handful of rulings from federal courts that developed a formula for determining if the employee was appointed by an elected official and if the employee was a policymaker.

Again, Simon queried if the distinction between a person being appointed by an office holder or by someone who was appointed by the office holder was important.

“To require the employee to be directly appointed by an elected official seems to add an artificial label that does not add anything to the already essential analysis of whether the employee has inherent powers of the office with the ability to put forth meaningful input into governmental decision making,” Simon wrote in Margaret Marnocha v. City of Elkhart, et al., 3:16-cv-592.  “Whether Marnocha was technically appointed by Mayor Moore, or just hired by the City of Elkhart or the Corporation Counsel, does not alter the fact that she was in a position of trust, and possessed a broad scope of duties that gave her the ability to provide meaningful input into government decisions upon which people could have differing opinions.”

Also, Simon noted Marnocha’s complaint would not have been successful even if the court had found she was not a policymaker. The judge held that she failed to support her assertion that she was fired because of her age and gender while the city put forth a “legitimate, non-discriminatory reason” for terminating her.

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