Gill-Richards v. Campanelli

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

INGRID GILL-RICHARDS, )

)

Plaintiff, )

)

v. ) No. 20 C 00822

)

AMY P. CAMPANELLI, in her Judge John J. Tharp, Jr.

)

individual and official capacity as

)

COOK COUNTY PUBLIC

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DEFENDER; LESTER FINKLE, in his

)

individual and official capacities; AMY

)

THOMPSON, in her individual and

)

official capacities; and KAREN

)

DIMOND, in her individual and official

)

Capacities; and COUNTY OF COOK,

)

)

Defendants.

ORDER

For the reasons set forth in the Statement below, the defendants’ motion to dismiss [26] is

granted in part and denied in part. All discovery scheduling and supervision are referred to the

assigned Magistrate Judge, who shall also have authority to conduct any settlement conference the

parties may seek.

STATEMENT

From May 1991 until February 2019, Ingrid Gill-Richards worked as an Assistant Public

Defender in the Cook County Public Defender’s Office (“the Office”).1 In 2005, she was assigned

to the Legal Resources Division; her work there consisted of post-conviction matters. While

working for that Division, she alleged that the Division Chief, Marcos Reyes, sexually harassed

her. She complained to the Cook County Equal Employment Opportunity Office and filed charges

of sexual harassment, hostile work environment, and retaliation against the Office and Reyes with

the Illinois Department of Human Rights (“IDHR”) and Equal Employment Opportunity

Commission (“EEOC”).2 She also filed grievances with her union.

1 The Public Defender’s Office is an agency of Cook County; it is not itself a suable entity.

Gallagher v. Dursun, No. 14 C 3803, 2015 WL 1051445, at *2 (N.D. Ill. Mar. 6, 2015).

2 The defendant attached Gill-Richards’ discrimination charges and the relevant portions

of the Law Office of the Cook County Public Defender Employee Manual as exhibits to its motion

to dismiss and reply. These exhibits do not turn this motion to dismiss into a motion for summary

According to Gill-Richards, after she filed her complaints and during the adjudication

process, the defendants began searching for reasons to terminate her employment. She alleges that

the Public Defender, Amy Campanelli, scoured Gill-Richards’ documents and emails to find a

reason to fire her and required additional review of Gill-Richards’ work. While working on a post-

conviction matter (the Cecille matter), Gill-Richards notified her supervisors of a conflict and that

she planned to file a motion with the court to withdraw as counsel. She believed that she had a

conflict because her client wanted to bring claims of ineffective assistance of counsel based on the

conduct of his trial attorneys, who were also Assistant Public Defenders in the Office. On May 10,

2018, she sent a draft of her motion to her supervisor, Deputy Amy Thompson, and Chief of Staff

Lester Finkle. She sent the draft to Campanelli separately. Finkle told Gill-Richards to ask the

judge to continue the case for status so that the Office’s management could review her motion. On

May 11, 2018, however, Gill-Richards informed the judge that she would be filing a motion to

withdraw due to the conflict. She also showed her client the draft motion. Her supervisor informed

her that management had directed her to omit arguments, and Gill-Richards informed her

supervisor that she disagreed with management’s position.

About a month later, the Office removed Gill-Richards from the case and sent her a Notice

of Investigatory Meeting. Thompson and Deputy of Labor Litigation Karen Dimond

“interrogated” Gill-Richards about her work in July 2018. First Am. Compl. ¶ 54, ECF No. 23.

The Office held a pre-disciplinary meeting on December 17, 2018, and Gill-Richards was alleged

to have “assaulted, threatened, intimidated or abused either physically or verbally” Campanelli.

Id. at ¶ 60 (quoting Cook County Human Resources Rule 8.03(b)(9)). Thompson recommended

terminating Gill-Richards in a memorandum on January 3, 2019. The Office terminated Gill-

Richards on February 4, 2019. Gill-Richards also alleges that Campanelli reported her to the

Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois (“ARDC”).

She filed another charge of discrimination on October 22, 2019, based on her allegations of

retaliation. She brought this federal lawsuit against Cook County and against Campanelli, Finkle,

Thompson, and Dimond in both their individual and official capacities. The defendants filed the

instant motion to dismiss in response to Gill-Richards’ first amended complaint.

When reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court assumes that all

well-pleaded facts are true and draws any reasonable inferences in the light most favorable to the

plaintiff. Cheli v. Taylorville Cmty. Sch. Dist., 986 F.3d 1035, 1038 (7th Cir. 2021). Under Rule

12(b)(6), the Court asks whether the plaintiff has plead a plausible claim for relief. “[A] claim is

‘the aggregate of operative facts which give rise to a right enforceable in the courts.’” Florek v.

Vill. of Mundelein, 649 F.3d 594, 599 (7th Cir. 2011) (quoting Original Ballet Russe v. Ballet

Theatre, 133 F.2d 187, 189 (2d Cir. 1943)). A “count” is not a claim per se, but rather the

articulation of a legal theory on which a claim may be premised. There may be more than one legal

theory advanced in support of a single claim: “One claim supported by multiple theories does not

somehow become multiple claims.” Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394, 399 (7th Cir.

2012). So long as there is an identifiable legal theory that plausibly provides a legal remedy for a

claim, a motion to dismiss that claim, or other theories advanced in support of the claim, must be

denied. Rule 12(b)(6) permits this Court to dismiss claims, not legal theories or counts. BBL, Inc.

judgment; all of the exhibits are “referred to in the plaintiff’s complaint and are central to her

claim.” Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993).

v. City of Angola, 809 F.3d 317, 325 (7th Cir. 2015) (“A motion to dismiss under Rule 12(b)(6)

doesn’t permit piecemeal dismissals of parts of claims; the question at this stage is simply whether

the complaint includes factual allegations that state a plausible claim for relief.”) (emphasis in

original).

These principles streamline the Court’s task in addressing the defendants’ motion to

dismiss. Although the complaint includes ten “counts,” the Court reads the complaint to assert

seven claims against the defendants: (1) a race and age discrimination claim against all

defendants;3 (2) a claim of retaliation for her sexual-harassment claims against Campanelli; (3) a

claim of retaliation for following the Illinois Rules of Professional Conduct against Campanelli;

(4) a claim of retaliation for filing complaints regarding violations of consent decrees entered in

Shakman v. Democratic Organization of Cook County, No. 69 C 2145 (N.D. Ill.), against Cook

County;4 (5) a breach of contract claim against Cook County; (6) an indemnification claim against

Cook County, and (7) an intentional infliction of emotional distress claim against Campanelli,

Finkle, Thompson, and Dimond. The defendants’ challenge to the complaint will be assessed in

the context of these claims, rather than on a count-by-count basis.

A. Discrimination Claim

Gill-Richards offers a variety of legal theories to support her discrimination claim, but it

will suffice to deny the motion to dismiss that claim to address only her section 1983 theory. It is

enough to plead a plausible claim of discrimination under section 1983 for the plaintiff “to assert

that she was treated worse because of protected characteristics.” Graham v. Bd. of Ed., 8 F.4th

625, 627 (7th Cir. 2021) (claim of discrimination on account of race and sex). Section 1983 shares

this minimal pleading standard in common with other antidiscrimination statutes. Id.; Tamayo v.

Blagojevich, 526 F.3d 1074, 1084-86 (7th Cir. 2008) (applying “the minimal pleading standard”

for employment discrimination claims to a claim under section 1983).5 A complaint in which the

plaintiff “identifies the type of discrimination that she thinks occurs [ ], by whom . . ., and when”

contains all that is needed to allow a discrimination claim to go forward. Swanson v. Citibank,

N.A., 614 F.3d 400, 405 (7th Cir. 2010) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-

12 (2002)).

Gill-Richards alleges the who, what, and when necessary to state a discrimination claim

against the defendants in their individual capacities under section 1983. She alleges that

3 This could be characterized as two distinct discrimination claims, but since the same

conduct serves as the basis for the alleged discrimination on account of race and age, the Court

can further simplify by treating discrimination as a single claim.

4 See Am. Compl. ¶¶ 126, 142. The defendants’ motion to dismiss did not address this

fourth claim. As a result, this Court does not address whether that claim would or would not survive

a motion to dismiss.

5 Although public defenders are not “state actors” within the meaning of section 1983 when

representing criminal defendants, they are deemed to act under color of law when making hiring

and firing decisions. Polk Cnty. v. Dodson, 454 U.S. 312, 324-25 (1981). Presumably for this

reason, the defendants do not argue that they cannot be held liable under section 1983 because they

are not state actors within section 1983’s ambit.

Campanelli and the named Assistant Public Defenders discriminated against her. She alleges that

Campanelli, Finkle, Johnson, and Dimond discriminated against her based on her race and age.

The defendants maintain that “Plaintiff provides no specific facts as to what actions Defendants

took individually to deprive Plaintiff of her constitutional rights,” Defs.’ Mot. to Dismiss First Am.

Compl. 8, ECF No. 26, but that is not so. Gill-Richards alleges that each of the attorney defendants

personally participated in the discriminatory conduct that culminated in her termination:

scrutinizing her work on the post-conviction matter, conducting unwarranted internal

investigations and disciplinary proceedings, removing her from the case, filing the ARDC

complaint against her, and firing her in February 2019. She alleges that Campanelli “comb[ed]

through documents and emails for anything on which to basis [sic] Plaintiff’s termination.” Am.

Compl. ¶ 129. Gill-Richards alleges that Finkle told Gill-Richards to seek a continuance because

management wanted to review her motion and that Finkle and Campanelli fired her. She alleges

that Thompson issued the Notice of Disciplinary meeting and wrote a memorandum

recommending Gill-Richards’ termination. At the disciplinary meeting, according to Gill-

Richards’ allegations, Thompson and Dimond “interrogated” her about her work on the Cecille

matter. Id. at ¶ 54. For each defendant in their individual capacity, then, Gill-Richards adequately

pleads a plausible claim for relief.

As for Gill-Richards’ claims against the county employees in their official capacities and

Cook County, section 1983 also provides a theory under which she states a plausible claim. The

rules for municipal liability under section 1983 derive from Monell v. Department of Social

Services of the City of New York, 436 U.S. 658 (1978). The same rules govern suits against county

and municipal employees in their official capacities; a suit against an individual in their official

capacity “is essentially another way of suing the county.” Snyder v. King, 745 F.3d 242, 246 (7th

Cir. 2014) (citing Monell, 436 U.S. at 690 n. 55). There is, then, no need to distinguish among the

individual defendants and the County on this score; the official capacity claims are entirely

redundant of the claim against Cook County. And as for the County, it cannot be held liable under

section 1983 for the conduct of its agents. Glisson v. Ind. Dep’t of Corr., 849 F.3d 372, 379 (7th

Cir. 2017) (en banc). Instead, claims against the County require the showing of “(1) an express

policy that causes a constitutional deprivation when enforced; (2) a widespread practice that is so

permanent and well-settled that it constitutes a custom or practice; or (3) an allegation that the

constitutional injury was caused by a person with final policymaking authority.” Spiegel v.

McClintic, 916 F.3d 611, 617 (7th Cir. 2019) (quoting Est. of Sims v. Cnty. of Bureau, 506 F.3d

509, 515 (7th Cir. 2007)).

Although the complaint makes conclusory allegations that the Public Defender’s Office

had an express and/or widespread practice of discriminating on the basis of age and race, it falls

short of adequately stating a plausible claim against the County on those bases. Gill-Richards does,

however, allege that Campanelli, as the Public Defender, had authority to set final policy as to the

business of the Office. While the plaintiff does state that Campanelli acted “individually, or by and

through her agents,” Am. Compl. ¶ 126, she mitigates that ambiguity by also alleging that

Campanelli personally acted, alleging that she “comb[ed] through documents and emails for

anything on which to basis [sic] Plaintiff’s termination.” Id. at ¶ 129. Reading the complaint in the

light most favorable to Gill-Richards, that allegation also suffices to allege Campanelli’s personal

participation in Gill-Richards’ termination and the discrimination against her. As Campanelli was

the final policymaking authority at the time, Gill-Richards’ complaint adequately states a Monell

claim against the County. Kozlowski v. Fry, 238 F. Supp. 2d 996, 1017-18 (N.D. Ill. 2002) (jury

could reasonably find that the Cook County Public Defender is an official with final policymaking

authority and her employment decisions therefore subjected the County to liability under section

1983). The defendants do not address this point in their reply.

The defendants assert myriad arguments against other theories of liability that the

complaint asserts expressly but the evaluation of those arguments properly awaits summary

judgment or pretrial motions after the plaintiff has been required, in discovery, to identify and

support her legal theories. The defendants argue, for example, that Gill-Richards did not exhaust

her administrative remedies as required under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e–2, and the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 623.

Mot. to Dismiss 4-6. Section 1983 includes no exhaustion requirement, however, so even were it

clear on the face of the complaint that Gill-Richards did not exhaust her discrimination claims

administratively, that would not require dismissal of her discrimination claim because that claim

is nevertheless supported by a cognizable legal theory that does not require exhaustion—namely,

section 1983. Accordingly, this Court need not address the viability of Gill-Richards’

discrimination claim under the other theories she has identified (42 U.S.C. § 1981, Title VII, the

ADEA, state contract law, or the Due Process Clause of the Fourteenth Amendment), much less

assess the viability of potential affirmative defenses to liability under those theories. Even if all of

those alternative theories are infirm, as the defendants maintain, the complaint nevertheless states

a plausible claim for discrimination under section 1983 against each of the defendants.

The individual defendants also contend that they are entitled to qualified immunity from

Gill-Richards’ section 1983 claims. “Officials are sheltered from suit, under a doctrine known as

qualified immunity, when their conduct ‘does not violate clearly established … constitutional

rights’ a reasonable official, similarly situated, would have comprehended.” Wood v. Moss, 572

U.S. 744, 748 (2014) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When evaluating

a qualified immunity defense, courts ask whether “(1) [the officials] violated a federal statutory or

constitutional right, and (2) the unlawfulness of their conduct was ‘clearly established at the

time.’” Gupta v. Melloh, 19 F.4th 990, 1000 (7th Cir. 2021) (quoting Reichle v. Howards, 566 U.S.

658, 664 (2012)). “A clearly established right is one that is ‘sufficiently clear that every reasonable

official would have understood that what he is doing violates that right.’” Mullenix v. Luna, 577

U.S. 7, 11 (2015) (quoting Reichle, 566 U.S. at 664). In determining whether the law is “clearly

established,” the Court looks first at binding Supreme Court precedent and then to Seventh Circuit

precedent. Reed v. Palmer, 906 F.3d 540, 547 (7th Cir. 2018).

The defendants argue that the individual defendants could not have been aware that their

“routine actions” could violate Gill-Richards’ constitutional rights. Mot. to Dismiss 10. This

argument fails for two reasons. First, the question is not whether the individual officers were on

notice that their actions violated their employee’s constitutional rights; instead, “[t]he question is

whether the wrongfulness of the defendant’s conduct was clearly established.” Taylor v. Ways, 999

F.3d 478, 491 (7th Cir. 2021) (emphasis in original). Second, it was clearly established that an

officer’s employment actions (routine or not) could violate public employees’ constitutional rights.

Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 597 (2008) (“It is equally well settled that States do

not escape the strictures of the Equal Protection Clause in their role as employers.”) (collecting

cases). Given the notice pleading standards, especially the minimal standard for discrimination

claims, defendants’ qualified immunity defense is premature. At the motion to dismiss stage,

dismissal “is appropriate based on qualified immunity only when the plaintiffs’ well-pleaded

allegations, taken as true, do not ‘state a claim of violation of clearly established law.’” Hanson v.

LeVan, 967 F.3d 584, 590 (7th Cir. 2020) (quoting Behrens v. Pelletier, 516 U.S. 299, 306 (1996)).

The Seventh Circuit has held the motion to dismiss is rarely “(if ever) the most suitable procedural

setting to determine whether an official is qualifiedly immune, because immunity may depend on

particular facts that a plaintiff need not plead to state a claim.” Hanson, 967 F.3d at 589. Thus, the

Court finds that it would be inappropriate to dismiss this claim based on qualified immunity at this

juncture.

B. Retaliation for Sexual Harassment Complaint

“Under the Title VII framework [for retaliation], a plaintiff must plausibly allege three

elements: a statutorily protected activity, a materially adverse employment action, and a causal

connection between the two.” Gracia v. SigmaTron Int’l, Inc., 986 F.3d 1058, 1062 (7th Cir. 2021).

In her complaint, Gill-Richards alleges that she filed sexual-harassment complaints with the EEOC

and IDHR. She alleges that, in retaliation, Campanelli scrutinized her documents and emails,

required additional review of her work, filed an ARDC complaint against her, and ultimately

terminated her employment. Title VII therefore plausibly supports Gill-Richards’ claims against

her former employer, the County, though not Campanelli individually. Williams v. Banning, 72

F.3d 552, 555 (7th Cir. 1995) (“[A] supervisor does not, in his individual capacity, fall within

Title VII’s definition of employer[.]”).

The defendants again assert that Gill-Richards failed to exhaust as to her retaliation claim

under Title VII, but their assertion of that affirmative defense is premature in a motion to dismiss

under Rule 12(b)(6).6 Failure to exhaust is an affirmative defense and a complaint need not

anticipate and negate affirmative defenses in order to state a plausible claim for relief. Stuart v.

Local 727, Int’l Bhd. of Teamsters, 771 F.3d 1014, 1018 (7th Cir. 2014); Mosely v. Bd. of Educ.

of City of Chi., 434 F.3d 527, 533 (7th Cir. 2006). Dismissal of a failure-to-exhaust defense on

Rule 12(b)(6) motion is appropriate only where “there is no way that any amendment could salvage

the claim.” Mosely, 434 F.3d at 533. That is not the case here, where the defendants’ failure-to-

exhaust argument is premised on the absence of allegations in the complaint establishing that the

plaintiff received a right-to-sue letter regarding her retaliation claim. See Mot. to Dismiss 5-6.

Gill-Richards’ allegations against the other defendants in their individual capacities,

however, fail to state claims for relief based on retaliation. As a threshold matter, the complaint

does not allege that the individual defendants knew of the sexual harassment charge she filed. That

defect may be easily cured; more difficult to overcome is that claims for retaliation based on filing

charges of discrimination can be sustained under section 1983 “[o]nly when the underlying facts

support both a Title VII and a constitutional deprivation claim.” Gray v. Lacke, 885 F.2d 399, 414

(7th Cir. 1989). Gill-Richards’ right to be free from retaliation for protesting discrimination derives

6 The defendants also argue that, to the extent that the plaintiff relies on state law as her

legal theory for this claim, her claim of retaliation for the sexual harassment complaint is barred

by the one-year statute of limitations. 745 ILCS 10/8-101(a). The Court does not address this

statute of limitations argument because it does not reach that legal theory at this stage. Nothing in

this order bars the defendants from raising this argument at summary judgment.

from Title VII, not the Constitution,7 id., and therefore provides no support for retaliation claims

against the individual defendants premised on section 1983. Accordingly, the sexual harassment

retaliation claims against the individual defendants are dismissed.

C. Retaliatory Discharge8

Gill-Richards’ complaint also fails to state a claim for retaliatory discharge. The defendants

move to dismiss two retaliatory discharge claims: one based on her discrimination complaints and

one based on her advocacy and the Illinois Rules of Professional Conduct. Defendants contend

that the Illinois Human Rights Act (“IHRA”), 775 ILCS 5/1-101 et seq., preempts Gill-Richards’

claim of retaliatory discharge based on her discrimination complaints and charges. The IHRA says

that, “[e]xcept as otherwise provided by law, no court of this state shall have jurisdiction over the

subject of an alleged civil rights violation other than as set forth in this Act.” 775 ILCS 5/8-111(D).

The Supreme Court of Illinois has interpreted this language to mean that the IHRA preempts

common law torts claims seeking relief for civil rights violations. Geise v. Phoenix Co. of Chi.,

Inc., 159 Ill. 2d 507, 515-16, 639 N.E.2d 1273, 1276 (1994).

To avoid preemption, the common law claim must be independent and not inextricably

linked to a civil rights violation. Maksimovic v. Tsogalis, 177 Ill. 2d 511, 517, 687 N.E.2d 21, 23

(1997). The test is whether “if we were [to] take the civil-rights allegations out of the complaint,

no [common law tort claim] would remain.” Nischan v. Stratosphere Quality, LLC, 865 F.3d 922,

934 (7th Cir. 2017) (citing Schroeder v. RGIS, Inc., 2013 IL App (1st) 122483, 992 N.E.2d 509,

518-19). The plaintiff must allege “a basis for imposing liability on defendants independent of the

Act, i.e., without reference to the legal duties created by the Act.” Blount v. Stroud, 232 Ill. 2d 302,

315, 904 N.E.2d 1, 9 (2009). Gill-Richards’ claim of retaliatory discharge based on her

discrimination complaints is clearly preempted; it is based on retaliation for making civil rights

complaints and cannot stand without those allegations. Her claim of retaliatory discharge based on

discrimination complaints must therefore be dismissed.

Gill-Richards alleges that the Public Defender’s Office fired her because of her disclosures

to the judge and her client, her work on the draft of her motion to withdraw, and her commitment

to following the Rules of Professional Conduct. The defendants contend that Illinois law only

recognizes retaliatory discharge in limited circumstances. Under Illinois law, retaliatory discharge

is “a limited and narrow exception to the general rule that employees are at-will.” Roberts v. Bd.

of Trs. of Cmty. Coll. Dist. No. 508, 2019 IL 123594, ¶ 22, 135 N.E.3d 891, 896. In federal court,

an employee must plausibly allege that “(1) the employer discharged the employee, (2) the

discharge was in retaliation for the employee’s activities, and (3) the discharge violates a clearly

7 Gill-Richards does not argue that her retaliation claim based on reporting alleged sexual

harassment can survive under a First Amendment retaliation theory and alleges no facts that

plausibly suggest that in reporting the alleged harassment, she was speaking on a matter of public,

rather than private, concern. See, e.g., Gray, 885 F.2d at 411 (complaint to supervisors about sexual

harassment with objective of stopping the harassment was speech on matter of private concern and

did not give rise to liability under section 1983 for First Amendment retaliation).

8 Again, the Court does not address the claim for retaliatory discharge based on filing

Shakman complaints.

mandated public policy.” Id. at ¶ 23; see also O’Regan v. Arb. Fs., Inc., 121 F.3d 1060, 1063 (7th

Cir. 1997).

That clearly mandated public policy cannot be the Rules of Professional Conduct. The

Illinois Supreme Court has held that “[a]n attorney’s obligation to follow these Rules of

Professional Conduct should not be the foundation for a claim of retaliatory discharge.” Jacobson

v. Knepper & Moga, P.C., 185 Ill. 2d 372, 378, 706 N.E.2d 491, 493 (1998) (quoting Balla v.

Gambro, Inc., 145 Ill. 2d 492, 505, 584 N.E.2d 104, 110 (1991)). Since Gill-Richards invokes the

Rules of Professional Conduct as the sole public policy violated by her discharge (regarding

retaliation for her advocacy), she has not plausibly alleged a claim for retaliatory discharge.

D. Breach of Contract

Gill-Richards does not state a claim for breach of contract. Under Illinois law, “an

employee handbook or other policy statement creates enforceable contractual rights if the

traditional requirements for contract formation are present.” Duldulao v. Saint Mary of Nazareth

Hosp. Ctr., 115 Ill. 2d 482, 490, 505 N.E.2d 314, 318 (1987). Those requirements include an offer

to contract—something that Gill-Richards’ allegations fail to plausibly establish. Gill-Richards’

allegations that the employee handbook provided by the Office constituted an offer to contract is

plainly insufficient. Employee handbooks or policy statements that contain explicit disclaimers

stating that the document does not create a contract and may be unilaterally changed are not offers

to enter or modify an enforceable contract. Anders v. Mobil Chem. Co., 201 Ill. App. 3d 1088,

1095, 559 N.E.2d 1119, 1122-23 (4th Dist. 1990) (collecting cases); see also Bradley v. Wolf Retail

Sols. I, Inc., 443 F. Supp. 3d 959, 962 (N.D. Ill. 2019) (“It is axiomatic that a document stating

that it is not a contract and that it creates no contractual obligations of any kind is not a contract

that creates a contractual obligation to engage in arbitration.”) (citing Workman v. UPS, Inc., 234

F.3d 998, 1000 (7th Cir. 2000)). The handbook states “THIS MANUAL IS NOT A

CONTRACT. THE INFORMATION IS SUBJECT TO CHANGE AT ANY TIME. … The

Law Office reserves the right to revise policies. Any such revised policies issued by the Law Office

will be effective from the date of issue.” Mot. to Dismiss, Ex. C at 1, ECF No. 26-3 (emphasis in

original). Given the handbook’s clear disclaimers, an employee could not reasonably believe that

the handbook constituted an offer. Thus, the handbook did not give Gill-Richards enforceable

contractual rights, and her breach of contract claim must be dismissed.

E. Intentional Infliction of Emotional Distress

Under Illinois law, the tort of intentional infliction of emotional distress has three elements:

First, the conduct involved must be truly extreme and outrageous.

Second, the actor must either intend that his conduct inflict severe

emotional distress or know that there is at least a high probability

that his conduct will cause severe emotional distress. Third, the

conduct must in fact cause severe emotional distress.

Schweihs v. Chase Home Fin., LLC, 2016 IL 120041, ¶ 50, 77 N.E.3d 50, 63. The bar for proving

intentional infliction of emotional distress is particularly high. Illinois courts only find the first

requirement satisfied where “where the conduct has been 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.” Id. at ¶ 51 (quoting Restatement (Second) of

Torts § 46 cmt. d, at 73 (Am. L. Inst. 1965)).

Whether conduct is “truly extreme and outrageous” is an objective inquiry and depends on

the facts. Benton v. Little League Baseball, Inc., 2020 IL App (1st) 190549, ¶ 67 (“There is no

bright-line rule about what satisfies the extreme and outrageous conduct; it is judged by an

objective standard, based on all the facts and circumstances of an individual case.”). Illinois courts

have identified several factors that should be considered when determining whether alleged

conduct is truly extreme and outrageous, including the defendant’s abuse of authority, supervision,

or power over the plaintiff. Schweihs, 2016 IL 120041, ¶ 52.

1. Preemption by the Illinois Human Rights Act

Defendants contend that the IHRA also preempts Gill-Richards’ claim of intentional

infliction of emotional distress. As the Court previously detailed in Section C, the IHRA preempts

any common law claims that are inextricably linked with her civil rights claims. Thus, to decide

whether the IHRA preempts her intentional infliction of emotional distress claim, the Court must

determine whether that conduct is inextricably linked to her civil rights claims. The one-year

statute of limitations for civil actions against local government entities or employees applies to

this claim. 745 ILCS 10/8-101(a). Gill-Richards filed this lawsuit on February 4, 2020, and the

Office terminated her employment on February 4, 2019. Prior conduct may well inform whether

her termination was truly extreme and outrageous, but that conduct cannot be considered as

independent bases for her claim.

The defendants contend that Gill-Richards seeks relief from her alleged injuries caused by

discrimination and retaliation for filing sexual harassment complaints. Gill-Richards argues that

her complaint also alleges that she was fired in retaliation for her advocacy in the Cecille matter

and for disclosing potential malpractice by other Assistant Public Defenders. While the civil rights

claims and the intentional infliction of emotional distress claims both rely on the termination, Gill-

Richards’ intentional infliction of emotional distress claim based on firing her for her advocacy

depends on different allegations. Her discrimination and retaliation theories allege that the

disciplinary actions and termination were caused by her race, age, and sexual harassment

complaints; her complaint also alleges that the Office fired her for uncovering and disclosing

alleged misconduct by other Assistant Public Defenders. And at this stage of litigation, it would

be premature to determine which theory of the case—if any—will find support in discovery.

2. Truly Extreme and Outrageous Conduct

The defendants also contend that Gill-Richards has failed to allege facts that establish truly

extreme and outrageous conduct. In her complaint, Gill-Richards alleges that she was fired in

retaliation for uncovering potential misconduct by Assistant Public Defenders and disclosing that

discovery to the state court judge. Before her termination, Gill-Richards alleges that Finkle

directed her to seek a continuance rather than move to withdraw and disclose the potential

malpractice to the state judge. After she still disclosed the basis of her motion to the judge,

Campanelli scoured her emails and documents to find ways to fire her, Thompson and Dimond

interrogated her, and she faced disciplinary hearings and ultimate termination. She also alleges

that Campanelli filed an ARDC complaint against her, but she does not allege the timing in her

complaint.

None of those allegations, except for her termination and possibly the ARDC complaint,

fall within the statute of limitations; the other conduct does, however, support the plausibility of

her allegation that her termination was truly extreme and outrageous. It is plausible that the

defendants used their positions of power over Gill-Richards to punish her for exposing potential

misconduct and to cover up the malpractice allegations in the Ceci//le matter. This is a fact-

intensive inquiry, and, in the absence of discovery, the Court is required to view the complaint in

the light most favorable to Gill-Richards. On that basis, the Court concludes that Gill-Richards has

plausibly alleged that her termination constitutes truly extreme and outrageous conduct.

To sum up: The defendants’ motion to dismiss is granted as to the sexual harassment

retaliation claims against the individual defendants, to the retaliatory discharge claims based on

her complaints of discrimination and violations of the Rules of Professional Conduct, and to her

breach of contract claim. These dismissals are without prejudice. The motion is otherwise denied.

Dated: January 7, 2022 John J. Tharp, Jr.

United States District Judge

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