Marsden v. Kishwaukee Cmty. Coll., 3:19-cv-50334

CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
Writing for the CourtHONORABLE IAIN D. JOHNSTON UNITED STATES DISTRICT JUDGE
Docket Number3:19-cv-50334
PartiesSarah Marsden, Plaintiff, v. Kishwaukee Community College, Laurie Borowicz, Cindy McCluskey, and Dave Dammon, Defendants.
Decision Date17 November 2021

Sarah Marsden, Plaintiff,
v.

Kishwaukee Community College, Laurie Borowicz, Cindy McCluskey, and Dave Dammon, Defendants.

No. 3:19-cv-50334

United States District Court, N.D. Illinois, Western Division

November 17, 2021


MEMORANDUM OPINION AND ORDER

HONORABLE IAIN D. JOHNSTON UNITED STATES DISTRICT JUDGE

Plaintiff Sarah Marsden (“Marsden”) was a faculty counselor at Kishwaukee Community College (“the College” or “College”) for six years. Because she believed that the College's administration was wasting taxpayer dollars, she allegedly spoke out at Union meetings, spoke privately with union leadership, and filed at least one Freedom of Information Act (“FOIA”) request, in which she attempted to gain information from the College related to its financial expenditures. After allegedly being forced to resign and accept a lesser role, Marsden filed this action alleging First Amendment retaliation, defamation, false light invasion of privacy, infliction of emotional distress, and negligent infliction of emotional distress against the College, College President Laurie Borowicz, College Executive Director of Human Resources Cindy McCluskey, and College President Borowicz's Assistant Dave Dammon (collectively “the Defendants”). Dkt. 49, ¶¶ 5-8.

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On February 3, 2021, this Court dismissed Marsden's amended complaint because she failed to properly allege the protected speech that she engaged in. Dkt. 48. After Marsden filed her Second Amended Complaint, the Defendants filed this motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). For the reasons explained below, the Court grants the motion in part and denies the motion in part.

I. FACTUAL ALLEGATIONS

Marsden worked at the College as a faculty counselor from June 2013 until June 25, 2019.[1] Dkt. 49, ¶ 9. Starting in January 2018, she began speaking out about what she saw as wasteful spending on the part of the College's administration. Id. ¶ 10. In February 2018, she met with the Union's President and Negotiator inside his campus office and expressed her concerns regarding potential corruption by the College administration staff, including President Borowicz. Marsden told the Union President that he should stand up to Borowicz and protect taxpayer dollars and the reputation of the College. Id. ¶ 11(a).

That same day, Marsden filed a FOIA request in which she asked for copies of all employee survey comments in 2011, 2013, and 2017. The request was later denied.[2] Id. ¶ 11(b). Later that month, Marsden expressed her concerns at an on-campus Union meeting. Defendant Dave Dammon, President Borowicz's assistant, attended that meeting, as did other faculty. Id. ¶ 11(c). At the meeting, Marsden expressed her concerns about misuse of public funding in relation to “unnecessary and expensive renovation and landscaping at the College.” Id.

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On July 18, 2018, Marsden met with the Union President and two other Union members and expressed her belief that the College had improperly withheld financial and survey records despite her requests for that information. Id. ¶ 11(d). Six days later, Marsden again met with the Union President and other Union members to express her concerns about the College's use of taxpayer funds “to remodel the President's Office Suite and Gaming Room and [for] an additional $232, 459.00 in painting expenditures.” Id. ¶ 11(e).

On August 21, 2018, Marsden again raised her concerns at a Union meeting attended by Dammon and other faculty members. This time, her concerns focused on a $40, 000 emergency landscaping expenditure that was approved by the Board, a College Wine Walk event, and a horticultural flowerbed fundraising event.[3] Id. ¶ 11(f). Around that time, there was also an anonymous FOIA request to the College. Marsden alleges that the College believed she had submitted the request, that the FOIA request upset the College administration, and that the Defendants believed Marsden might disclose any information to the College's Board of Directors, state officials, or the public. Id. ¶ 14. As a result, Marsden alleges that the Defendants then subjected her to “a pattern of retaliation and harassment” that included placing her on a “target list.” Id. ¶ 17.

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In mid-June of 2019, an anonymous, threatening, harassing letter was sent to the home of College President Borowicz. Id. ¶ 18. College Campus Police determined that the letter was not a “criminal matter” and did not “constitute harassment” and they closed the case, notifying College administrators, including President Borowicz. Id. ¶ 20. On about June 20, 2019, President Borowicz reported to the campus police and the college at large that Marsden had sent a threatening and harassing anonymous letter to her home address. Id. ¶ 20. Further, President Borowicz asked her assistant Dammon, who is also a Belvidere Police Officer, to begin an investigation of Marsden. Id. ¶ 21.

As part of this independent investigation, Dammon searched and took photos of Marsden's personal belongings, including confidential records, student and patient files, and patient mental health information. Id. ¶ 22. Additionally, Dammon asked the DeKalb County Sheriff's Department to have Marsden investigated on behalf of President Borowicz. Id. He provided them with the photos and notes from Marsden's office and “requested that they procure a confession” from Marsden. Id. ¶ 23. The following day, Detective Holiday and Deputy Johnson from the DeKalb County Sheriff's Office appeared on campus and interrogated Marsden, escorting her publicly in front of College students and staff. Id. ¶¶ 24-25. Detective Holiday explained that Borowicz had accused Marsden of committing criminal activity by mailing the anonymous letter. Id. ¶ 26. Marsden alleges she was “restrained” by Detective Holiday from leaving the office and that she was not permitted to contact an attorney or a Union representative. Id. ¶ 27. After

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additional questioning, Detective Holiday informed her that the College's Human Resources would make a decision about the status of her employment, and that the case was being referred to the State's Attorney's Office for criminal prosecution. Id. ¶ 32.

When Marsden returned to her office, she was followed by Deputy Johnson, who explained that he was escorting her off campus and allowing her to get her things first. Id. ¶¶ 35-36. Deputy Johnson then escorted her from her office during school hours while students and staff were present. Id. ¶ 37. In the presence of Dammon and the Union President Ellis, McCluskey gave Marsden a letter stating she was placed on administrative leave immediately because of the pending investigation. Id. ¶ 39. Again, Marsden denied sending the anonymous letter. Id. ¶ 40. President Borowicz maintained that Marsden had committed a crime by sending the anonymous, threatening letter and also alleged that Marsden used a fake name and email to fill out numerous FOIA requests that the College recently received. Id. ¶ 42.

After the investigation was closed and Marsden was cleared of the criminal allegations, McCluskey sent a letter to Marsden, which McCluskey then published to College faculty and staff, stating that the complaint against Marsden was “not substantiated, ” that “there [was] not sufficient evidence” to sustain the alleged conduct, and reminding her of various College policies. Id. ¶¶ 46-47. Marsden alleges that she was forced to resign her teaching position at the College as part of the faculty and assume a new “counseling role” at the College. Id. ¶ 48.

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II. ANALYSIS

Under Rule 8, a plaintiff must allege facts sufficient to “state a claim to relief that is plausible on its face.”[4] Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This means that a plaintiff's well-pleaded factual allegations must allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court accepts as true all of the plaintiff's well-pleaded allegations and views them in the light most favorable to the plaintiff. Landmark Am. Ins. Co. v. Deerfield Constr., Inc., 933 F.3d 806, 809 (7th Cir. 2019). Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The statement must give to the defendant fair notice of what the claim is and the grounds upon which it rests. Twombly, 550 U.S. at 555. It must also plausibly suggest that the plaintiff is entitled to relief, which “is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.

Further, the federal pleading standard does not require the plaintiff to satisfy every element; plaintiff need only plead enough facts to elevate his claim from speculative to plausible. Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998) (“Complaints need not plead law or match facts to every element of a legal theory.”).

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The burden of persuasion on a motion to dismiss rests with the defendant, not the plaintiff. Reyes v. City of Chicago, 585 F.Supp.2d 1010, 1017 (N.D. Ill. 2008) (“On a motion to dismiss, defendants have the burden of demonstrating the legal insufficiency of the complaint - not the plaintiffs or the court.”). Thus, a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint's allegations, and when evaluating a 12(b)(6) motion, the court must accept all well-pleaded facts as true and draw all reasonable inferences in favor of the plaintiff. See Calderone v. City of Chicago, 979 F.3d 1156, 1161 (7th Cir. 2020).

As a preliminary matter, Plaintiff asserts the jurisdiction of this court under 28 U.S.C. § 1331 and § 1332, but continues to allege that she and all defendants are citizens of Illinois. Dkt. 49, ¶¶ 2, 4-8. Jurisdiction under § 1332 is only proper when...

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