IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DEFENDANTS’ REPLY IN FURTHER SUPPORT OF THEIR

PARTIAL MOTION TO DISMISS

Defendants JOHN JAY SHANNON, MD, and LINDA FOLLENWEIDER in their official

capacities, COOK COUNTY, ILLINOIS (collectively “Cook County Defendants”), and LINDA

FOLLENWEIDER, in her individual capacity, by their attorney, Kimberly M. Foxx, Cook County

State’s Attorney, by Emily Stewart, Assistant State’s Attorney, reply in further support of their

Motion to Partially Dismiss Plaintiff’s First Amended Complaint, as follows:

INTRODUCTION

Plaintiff’s First Amended Complaint (“Complaint”) includes the following counts against 

Defendants Cook County and Defendants Shannon and Follenweider, in their official capacities:

(1) Title VII of the Civil Rights Act of 1964 (“Title VII”) race and national origin discrimination; 

(2) Age Discrimination in Employment Act (“ADEA”) discrimination; (3) Americans with 

Disabilities Act of 1990 (“ADA”) discrimination; (4) Rehabilitation Act of 1973 (“Rehabilitation 

Act”) discrimination; (5) Title VII retaliation; (6) ADEA retaliation; (7) Family and Medical 

Leave Act (FMLA) retaliation; and (8) 42 U.S.C. § 1983 (“Section 1983”) violation. In addition, 

DR. MARILYN METHAVICHIT )

)

Plaintiff, ) 20-cv-02841

v. )

) Honorable Edmond E. Chang

JOHN JAY SHANNON, MD, AND 

LINDA FOLLENWEIDER, in their 

individual capacities; COOK COUNTY, 

IL; and LINDA FOLLENWEIDER, in 

her individual capacity,

)

)

)

)

)

)

Defendants. )

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it includes a count against all Defendants for (9) intentional infliction of emotional distress 

(“IIED”). It also includes the following counts against Defendant Follenweider, in her individual 

capacity, for: (10) tortious interference with prospective economic advantage; and (11) tortious 

interference with contract. 

In their motion to dismiss, Defendants requested that counts 1-6 and 8-11 be dismissed. 

Plaintiff in her response, challenged some, but not all of the arguments in Defendant’s motion to 

dismiss. (See generally Response.) More specifically, Plaintiff failed to challenge Defendants’ 

claim that 1) Defendant Cook County is immune from tort liability under the Illinois Tort 

Immunity Act (“TIA”); and 2) Defendants’ claim that she failed to state a viable IIED claim.

(Id.) 

“A plaintiff's failure to respond to arguments in a motion to dismiss operates as a waiver 

or forfeiture of the claim and an abandonment of any argument against dismissing the claim.” 

Daugherty v. University of Chicago, 2017 U.S. Dist. LEXIS 155948, at *25 (N.D. Ill. Sep. 22, 

2017). Thus, the Court should grant Defendants’ motion to dismiss Plaintiff’s IIED claim (count 

9) against all Defendants. Plaintiff’s remaining counts should be dismissed for the reasons 

discussed below.

ARGUMENT

I. THE REQUIRED LEVEL OF FACTUAL SPECIFICITY IS GREATER HERE 

BECAUSE OF THE COMPLEXITY OF PLAINTIFF’S CLAIMS. 

Plaintiff in her response provides that the appropriate standard of review in this case is 

the lowest possible standard of review for a 12(b)(6) motion. She alleges that Defendants need 

only provide fair notice of Plaintiff’s claims, the grounds upon which those claims rest, and 

a story that holds together. (See Response, p. 4.) But “[t]he required level of factual specificity 

rises with the complexity of the claim.” McCauley v. City of Chi., 671 F.3d 611, 617-18 (7th 

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Cir. 2011) (quoting Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010) ( “A more 

complex case . . . will require more detail, both to give the opposing party notice of what the case 

is all about and to show how, in the plaintiff's mind at least, the dots should be connected.”)). 

Further, a “plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement for relief’ 

requires more than labels and conclusions, and a formulaic recitation of the elements of a cause 

of action will not do.” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). Indeed, “legal 

conclusions and conclusory allegations merely reciting the elements of the claim are not entitled 

to [the] presumption of truth.” McCauley, 671 F.3d at 616. Courts should also avoid straining to 

find inferences not plainly apparent from the face of the complaint. Coates v. Illinois State Bd. 

of Educ., 559 F.2d 445 (7th Cir. 1977).

This is not a simple case, it is a complex one; it includes hostile work environment 

claims, Monell claims and tort claims. (See generally Am. Compl.) Thus, the facts and claims 

here require more factual detail to survive a 12(b)(6) motion to dismiss than a simple adverse 

action discrimination claim. McCauley, 671 F.3d 611, 617-18; see also Carmona v. City of 

Chicago, 2018 U.S. Dist. LEXIS 49117, at *9 (N.D. Ill. Mar. 26, 2018) (granting defendant’s 

motion to dismiss as plaintiff’s Monell allegations, “even if factual, speak only to his 

constitutional deprivation; they do not suggest a failure to discipline [with specificity] beyond his 

particular case.”); Monroe v. Columbia College of Chicago, No. 17-cv-5837, 2018 U.S. Dist. 

LEXIS 145333, at *13 (N.D. Ill. Aug. 27, 2018) (granting defendant’s motion to dismiss as 

plaintiff’s allegations of department chair denigrating him to other colleagues and subjecting him 

to hyper-surveillance and threatening investigations for minor infractions did not constitute 

harassment so severe or pervasive to alter the conditions of employment.); Wrenn v. Exelon 

Generation, LLC, No. 18 C 2524, 2019 U.S. Dist. LEXIS 236590, at *39 (N.D. Ill. Mar. 5, 2019)

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(granting defendants motion to dismiss as “plaintiff has not alleged facts plausibly demonstrating 

that co-worker’s conduct was extreme and outrageous[.]”). 

II. PLAINTIFF FAILED TO EXHAUST HER ADMINISTRATIVE REMEDIES.

As explained in Defendants’ Motion to Dismiss, Plaintiff failed to attach her alleged 

October 21, 2019 Equal Employment Opportunity Commission (“EEOC”) charge to the 

Complaint. (See Am. Compl. ¶ 54.) Plaintiff did, however, attach an EEOC charge to her 

Response, but it was dated July 5, 2019, not October 21, 2019. (See Response, Ex. A.) Hence, 

Plaintiff’s termination and ban from future CCHHS employment occurred well after she filed her 

July 5, 2019 EEOC charge. (See Am. Compl. ¶¶ 47-48.)

For Plaintiff to proceed with a claim under Title VII, ADEA, ADA or the Rehabilitation 

Act, she “must first file a charge of discrimination with the [EEOC] within 300 days of the 

offending conduct.” Edwards v. Ill. Dep't of Fin. & Prof'l Regulation, 210 F. Supp. 3d 931, 942 

(N.D. Ill. Sept. 22, 2016). Plaintiffs are generally prohibited from seeking redress for discrete 

acts of discrimination that are not included in her EEOC charge. See Sitar v. Ind. DOT, 344 F.3d 

720, 726-727 (7th Cir. 2003). Further, unlike acts contributing to a hostile work environment, a 

plaintiff cannot rely on the continuing violation doctrine to “save discrete acts that are related but 

not timely filed.” Lucas v. Chicago Transit Authority, 367 F.3d 714, 723-724 (7th Cir. 2004)

(quoting AMTRAK v. Morgan, 536 U.S. 101, 113 (2002)). Termination and retaliatory adverse 

employment actions are easily identifiable discrete acts where each act “starts a new clock for 

filing charges, and the clock starts on the date that the act occurred.” Id. 

Here, Plaintiff’s September 11, 2019 termination and October 18, 2019 ban from future 

employment with the Cook County Health and Hospital Systems (“CCHHS”) were easily 

identifiable acts that took place after Plaintiff filed her charge with the EEOC. (See Am. Compl.

¶¶ 47-48; see also Response, Ex. A.) Thus, both acts fall outside of the scope of Plaintiff’s 

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charge and cannot be revived. See Lucas, 367 F.3d at 723-724. Further, as more than 300 days 

have elapsed since Plaintiff was terminated and banned from CCHHS employment, such claims 

are now time barred. Edwards, 210 F. Supp. 3d at 942. Consequently, Plaintiff is now 

prohibited from seeking redress under the ADA, ADEA, Title VII and the Rehabilitation Act for

any discrete acts of discrimination that were not included in her EEOC charge. 

III. PLAINTIFF FAILS TO ALLEGE DISCRIMINATORY CONDUCT THAT IS 1) 

SUFFICIENTLY SEVERE OR PERVASIVE TO ALTER THE CONDITIONS OF 

HER EMPLOYMENT. 

Plaintiff’s allegations remain insufficient to plead a hostile work environment claim 

under Title VII, ADEA, ADA or the Rehab Act. See Lilly v. United Ground Express, Inc., 2020 

U.S. Dist. LEXIS 113593, at *8 (N.D. Ill. June 30, 2020); see also Bennington v. Caterpillar, 

Inc., 275 F.3d 654, 660 (7th Cir. 2001) (applying Title VII elements to ADEA hostile work 

environment claims); Mannie v. Potter, 394 F.3d 977, 982 (7th Cir 2005) (applying Title VII 

elements to ADA and Rehabilitation Act hostile work environment claims). Further, Plaintiff’s 

reliance on Huri v. Office of the Chief Judge of the Circuit Court of Cook County, 804 F.3d 826 

(7th Cir. 2015) in support of her hostile work environment claim is misplaced. (Response, pp. 5-

6.)

In Huri, plaintiff, an Arab and a Muslim, who wears a hijab, alleged specific instances of 

discrimination based on her religion and national origin. Huri, 804 F.3d at 829, 834 (emphasis 

added). Huri alleged that her supervisors made comments about other colleagues, including the 

chief judge, being “good Christians” and “good church-going Christians,” called plaintiff “evil” 

in comparison to the “good Christians.” Id. at 830. She further alleged that her supervisor asked 

her to join hands with other colleagues in a pray circle in the name of Jesus Christ, screamed at 

plaintiff, prohibited plaintiff from entering the office early when other employees had 24-hour 

access, prohibited plaintiff’s daughter from waiting in the lobby when other employees were 

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allowed to have their children wait in the lobby and offices, prohibited plaintiff from having 

personal belongings in the office when co-workers were allowed to do so, excluded plaintiff 

from social gatherings, and denied plaintiff time off for an Islamic religious holiday. Id. at 829-

831. 

Unlike Huri, the harassment that Plaintiff alleges here is not sufficiently severe or 

pervasive so as to alter the conditions of Plaintiff’s employment and create a hostile or abusive 

working environment. (See Motion to Dismiss, pp. 5-6.) Further, a significant portion of 

Plaintiff’s allegations are merely conclusory. (Id.) For example, Plaintiff alleges that 1) in 

September, October and December 2018, Plaintiff received harassing telephone calls and text 

messages from Plaintiff; and 2) “[l]ater in January, 2019, Defendant Follenweider told Dr. 

Methavichit that she did not deserve to be in her current position, and made hostile, derogatory 

and negative insults targeting her age, race, and disability.” (Am. Compl. ¶¶ 19-20, 23, 27; but 

cf. Response, p. 6 (“Ms. Follenweider pestered her in the hospital with unnecessary calls and 

texts.”) Under McCauley, such conclusory statements should not be entitled to the presumption 

of truth. See 671 F.3d at 616. 

In addition, Plaintiff’s claim that Defendant Follenweider blocked Plaintiff’s “first 

opportunity for priority placement for [a] kidney transplant” is unreasonable based on her 

allegations. (See Response, p.6.) Denying an employee’s request to use holiday time is not 

improper; and it is not the same as denying a request for FMLA or sick leave. (See Response, p. 

2 (“Later that December, knowing Dr. Methavichit needed testing for kidney transplant, Ms. 

Follenweider arbitrarily refused her request to use her holiday time for that procedure. This 

deterred her placement on the priority list for kidney transplant. Dr. Methavichit thus took 

FMLA leave.”) (internal citations omitted).) Hence, it is unreasonable for Plaintiff to suggest 

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that Defendant Follenweider is responsible for Plaintiff’s failure to get priority placement on a 

transplant list. 

After excluding Plaintiff’s conclusory allegations and unreasonable inferences, Plaintiff 

only alleges that Defendant Follenweider harassed her by making a handful of rude comments to 

or about her and “unsuccessfully tr[ying] to write her up for taking sick leave.” (Am. Compl. ¶¶ 

18, 24, 26-27, 30 (emphasis added).) Thus, Plaintiff fails to allege facts sufficient to show that 

her alleged harassment was “so severe or pervasive so as to alter the conditions of [her] 

employment and create a hostile or abusive working environment[.]” See Lilly, 2020 U.S. Dist. 

LEXIS 113593 at *8. Consequently, she has failed to meet her pleading burden with respect to 

her hostile work environment claim and those claims should be dismissed with prejudice. See

McCauley, 671 F.3d at 617-19.

IV. PLAINTIFF’S ADDITIONAL FACTUAL ALLEGATIONS SHOULD BE 

DISREGARDED BY THE COURT.

Plaintiff improperly added new facts regarding her disability in her Response to 

Defendants’ motion to dismiss. If Plaintiff would like to add facts to her Complaint, she should 

seek leave to amend her Complaint, not add them to her responsive brief. See Guaranty 

Residential Lending, Inc. v. International Mortgage Center, Inc., 305 F. Supp. 2d 846, 852 (N.D. 

Ill. 2004). Therefore, the Court should disregard Plaintiff’s additional factual allegations related 

to the operation of her major bodily functions. 

V. PLAINTIFF’S MIXED-MOTIVE REHABILITATION ACT CLAIM FAILS AS A 

MATTER OF LAW. 

Plaintiff does not allege that she suffered an adverse action under the Rehabilitation Act

solely because of her disability. “The Rehabilitation Act protects [ ] employees from 

discrimination ‘solely by reason of’ disability, [ ] if an employer fires an employee for any 

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reason other than she is disabled [. . .] there has been no violation[.]” Brumfield v. City of 

Chicago, 735 F.3d 619, 631 (7th Cir. 2013). 

Here, Plaintiff includes a separate count beginning on page 23 of her Complaint claiming 

that she is entitled to relief under Section 504 of the Rehabilitation Act. (Am. Compl. ¶¶ 131-

157.) Within that Count, she specifically lists facts that support her claim for relief, including 

that Defendant Follenweider made hostile, derogatory and negative comments about her age, 

race/national origin, and disability. (Am. Compl. ¶ 141.) Also within that Count, Plaintiff

restates and realleges paragraphs 1-131 of her Complaint, where she alleges that she was 

discriminated against for a number of reasons, including her race, age and national origin. (See 

generally Am. Compl. ¶¶ 1-131.) 

Plaintiff argues in her Response that the specific facts that she relies on in support of her 

Rehabilitation Act claim do not “establish mixed motives contravening the Rehab Act.” 

(Response, p. 8.) And in support of her argument she cites Xechem v. Bristol-Meyers Squibb 

Co., 372 F.3d 899, 90 (7th Cir. 2004). However, Xechem is easily distinguishable from the case 

at hand. The Court in Xechem was focused on affirmative defenses, not a defect in plaintiff’s 

claim. Xechem, 372 F.3d at 901 (explaining that the lower court’s decision that was reversed 

“found, not a defect in the claim, but the presence of affirmative defenses.”). Here Defendants 

allege a defect in Plaintiff’s claim— the facts specifically used to support her Rehabilitation Act 

claim could not support a finding that she was solely discriminated against based on her 

disability. (See Am. Compl. ¶ 141.) As mixed-motive claims are not permitted under the

Rehabilitation Act, her Rehabilitation Act claim fails as a matter of law. See Reed v. Columbia 

St. Mary’s Hosp., 915 F.3d 473, 484 (7th Cir. 2019). 

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VI. PLAINTIFF FAILS TO PLEAD A MONELL CLAIM.

Under Monell, Plaintiff is required to put forth sufficient factual content that allows a

court to plausibly infer that Defendants Shannon and Follenweider, in their official capacities, or 

Cook County had a widespread, unofficial policy, practice or custom that deprived Plaintiff of 

her constitutional rights and that policy or custom was “the moving force” behind the 

constitutional violation. Porter v. Bd. of Educ. of Chi., 2018 U.S. Dist. LEXIS 69359 at *23-24 

(N.D. Ill. April 25, 2018). A single past act is not sufficient to state a plausible claim of a

widespread practice. See Alcorn v. City of Chicago, 2018 U.S. Dist. LEXIS 126034, *53 (N.D.

Ill. July 27, 2018). Indeed, a plaintiff “must allege multiple such incidents so that the Court can

draw the reasonable inference that the alleged practice was so ‘permanent and well settled’ as to

constitute custom with the force of law.” Id

Here, Plaintiff alleges that “Defendants’ disciplined, dismissed and barred employees 

from future employment knowing of the discriminatory and retaliatory motives of its 

administrators.” (Response, p. 10.) And she argues Defendants followed or acquiesced to that 

policy when they “fail[ed]to investigate her repeated complaints of discrimination, [held]

unlawful hearings violating due process, [allowed her] pretextual suspension and termination, 

and ban[ned] from future employment.” (Response, p. 9.) 

However, the timeline presented by Plaintiff shows that she did not allege any specific 

discriminatory conduct until June 26, 2019 – which is after her suspension date was set and after 

the alleged unlawful hearing. (Am. Compl. ¶¶ 33, 35, 38.) Thus, Plaintiff’s June 27, 2019 

suspension which was scheduled on June 20, 2019 and her alleged unlawful June 13, 2019

hearing are not incidents that can be relied upon to establish Monell liability. 

And even if Plaintiff was permitted to rely on her June 13, 2019 hearing and June 27, 

2019 suspension, Plaintiff’s claim still fails under Porter. (Response, p. 9.) The court in Porter, 

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stated that “[t]he gravamen of a Monell claim is not individual misconduct by certain employees, 

but a widespread practice that permeates a critical mass of an institutional body.” Porter, 2018 

U.S. Dist. LEXIS 69359 at *26 (quoting Rossi v. City of Chicago, 790 F.3d 729, 737 (7th Cir. 

2015)) (internal quotations omitted). Here, Plaintiff is one person who waited until after she had 

been disciplined to send a memorandum to Defendants “detailing her allegations of 

discriminatory and retaliatory mistreatment.” (See Am. Compl. ¶ 38.) Further, Plaintiff alleges 

that one person, Defendant Follenweider, discriminated against her based on her race, age, 

national origin and disability. It is unreasonable to conclude, based on these facts, that a critical 

mass of the institutional body, the County, had a widespread practice of ignoring allegations of 

discrimination or failing to properly supervise management employees. See Porter, 2018 U.S. 

Dist. LEXIS 69359 at *26. 

Furthermore, in contrast to Fields v. City of Chicago, where exculpatory evidence was 

being withheld in criminal cases, here Plaintiff is an employee who after being disciplined 

accused her boss of discriminatory conduct. See 981 F.3d 534, 563 (7th Cir. 2020). A plaintiff 

alleging discrimination after being disciplined does not rise to the level of a circumstance where 

“the need for governmental action is so obvious and the inadequacy so likely to result in 

constitutional violations” that an employer’s failure to act constitutes deliberate indifference. 

(See Response, p. 11 (citing Fields v. City of Chicago, 2020 U.S. App. LEXIS 36615, at **61-62 

(7th Cir. 2020).) 

Plaintiff also fails to allege that Defendants Follenweider and Shannon had final 

policymaking authority. As the court in Brandt v. Bd. of Educ. explained, 

The fact that a particular official – even a policymaking official – has discretion in 

the exercise of particular function does not, without more, give rise to municipal 

liability based on an exercise of that discretion. Instead, the public officer must be 

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responsible for establishing final government policy respecting such activity before 

the municipality can be held liable. 

420 F. Supp. 2d 921, 937 (N.D. Ill. 2006). In Brandt, the Court held that based on Board of 

Education’s Rules, school principals did not have final policymaking authority with regard to 

school disciplinary matters; they merely administered the rules. Id. Here, as in Brandt, neither 

Dr. Shannon, nor Ms. Follenweider have final policymaking authority; it is the Cook County 

Health and Hospitals System Board of Directors that is endowed with such final policymaking 

authority. See Cook County Code of Ordinances, § 38-80(f).

VII. THE TIA BARS PLAINTIFF’S TORTIOUS INTERFERENCE AND IIED CLAIMS

AGAINST DEFENDANT FOLLENWEIDER, IN HER INDIVIDUAL CAPACITY.

Plaintiff argues that Defendant Follenweider’s alleged actions constitute willful and 

wanton conduct and, therefore, she is not shielded from individual liability under § 2-202 of the 

TIA. (Response, p. 13.) Plaintiff also argues that the TIA does not bar Plaintiff’s § 1983 claim. 

However, Defendants, in their motion to dismiss, neither argue that § 2-202 applies, nor do they 

argue that the TIA immunizes them Plaintiff’s § 1983 claims. (See Motion to Dismiss, pp. 12-

13.) 

Plaintiff, in her response, goes on to cite two cases in support of her argument that the 

TIA does not act as a bar to Defendants’ claims; but, defendants in those cases sought immunity 

under §§ 2-204, 2-210, 2-202 and 2-209 of the TIA. (Response, p. 13.) Here, Defendants argue 

that § 2-201 shields Defendant Follenweider, in her individual capacity, from such liability. 

(Motion to Dismiss, pp. 12-13.) And it is not Plaintiff, but Defendants, who get to determine 

which sections of the TIA they may raise as a shield from tort liability. See Mitter v. County of 

DuPage, 2017 U.S. Dist. LEXIS 10114, at *23 (N.D. Ill. Jan. 24, 2017).

Plaintiff also relies on Breuder v. Board of Trustees of Community College District No. 

501, 238 F. Supp. 3d 1054 (N.D. Ill. 2017) to argue that Defendants discipline of Plaintiff was 

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outside of the scope of her employment. The court in Breuder held that under § 2-201 that the

“Individual Defendants, acting as Board members, are ‘absolutely immune from liability for 

defamation if the statements were made while acting within the scope of [their] official duties.’” 

238 F. Supp. 3d at 1066 (internal citations omitted). Whether members’ individual statements to 

the press were outside of the scope of their job duties, however, was something that the court 

decided to leave for another day. Id. at 1066.

Here, Plaintiff does not claim that Defendant complained to an outside third-party. (See

Response, pp. 14-15.) She claims that Defendant Follenweider unfairly used the County’s 

internal disciplinary system to discipline Plaintiff. (See generally Am. Compl.) Such actions, 

similar to the comments of board members during a board meeting in Breuder, fall squarely 

within the scope Defendant Follenweider’s official duties and, therefore, immunity should attach. 

Id. at 1066.

1

 

Plaintiff also cites Valentino v. Village of South Chicago Heights to argue that 

Follenweider’s discipline of Plaintiff was not a policy decision under §2-201 of the TIA. 

(Response, p. 15.) But Valentino is easily distinguishable from the case at hand. Valentino’s 

firing did not involve a policy decision because it did not involve the balancing of competing 

interests. Id. at 678-80. The reason the Village proffered as its reason for firing Valentino was 

because she copied sign-in sheets and/or “because she spoke out against the Village's practice of 

ghost payrolling, or some combination thereof.” Id. at 679. As the Village offered “no evidence 

that it had a policy against copying the sign-in sheets” and because speaking out against 

1 Plaintiff’s further reliance on Bagent v. Blessing Care Corp. and Mittelman v. Witous to suggest that Plaintiff acted 

outside the scope of her duties is puzzling as neither of those cases involve the TIA. See generally Bagent, 224 Ill. 

2d 154 (2007); Mittelman, 135 Ill. 2d 220 (1989). 

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corruption was not contrary to public policy, the court was unable to identify any competing 

policy interests associated with Valentino’s termination. Id. 

Here, Plaintiff identified some of the competing policy interests involved in this case. 

See Am. Compl. ¶ 32 (providing that Plaintiff was disciplined for violating County’s 

confidentiality policy); see also Am. Compl. ¶ 40 (explaining that Plaintiff was terminated for 

violation of CCHHS’ Personnel Rules.). Hence, unlike Valentino, Defendant Follenweider’s

decision to discipline Plaintiff was a discretionary policy decision under §2-201 of the TIA. See 

Graham v. Board of Education, 2019 U.S. Dist. LEXIS 7579, at *14 (N.D. Ill. Jan. 16, 2019)

(“municipal decisions regarding the hiring, firing, discipline, and supervision of employees are 

discretionary policy decisions” under section 2-201 of the TIA.). As Plaintiff’s tortious 

interference and intentional infliction of emotional distress claims (counts 9-11) against 

Defendant Follenweider, in her individual capacity, are based on Follenweider’s discretionary 

policy decision to discipline Plaintiff, such claims should be dismissed as barred under § 2-201 

of the TIA. 

VIII. DISCRETIONARY AUTHORITY UNDER THE TIA AND FINAL POLICY 

MAKING AUTHORITY AND WIDESPREAD PRACTICE UNDER MONELL ARE 

NOT THE SAME.

Plaintiff’s final argument, which is unsupported by case law, is that “Defendants claims 

of discretionary authority [under the TIA] contradict their earlier defenses against [Monell

liability].” (Response, p. 15.) However, the test for discretionary authority under the TIA and 

the test for establishing a custom or practice or final policymaking authority under second and 

third prongs of Monell are not the same. See Brandt, 420 F. Supp. 2d at 937 (discussing final 

policymaking authority under § 1983); Porter, 2018 U.S. Dist. LEXIS 69359 at *26

(distinguishing between an individual’s policy vs. widespread practice under Monell.); see also

Allgood v. City of Chicago, 2006 U.S. Dist. LEXIS 66514, at *14 (N.D. Ill. Sep. 18, 2006)

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(contrasting discretionary acts under the TIA with ministerial acts. “Ministerial acts are those 

that a person performs on a given state of facts, in a prescribed manner, in obedience to the legal 

authority, and without reference to the official's discretion as to the propriety of the act.”). 

Therefore, Plaintiff’s argument that Defendants’ claims are contradictory fails. 

CONCLUSION

For the above reasons and those in Defendants’ motion to dismiss, Defendants respectfully 

request that this Honorable Court dismiss all counts of Plaintiff’s Complaint with prejudice, except 

for her FMLA retaliation claim. 

Date: February 23, 2021 Respectfully submitted,

KIMBERLY M. FOXX

State’s Attorney of Cook County

By: /s/ Emily Stewart

Emily Stewart

Assistant State’s Attorney – Civil Actions Bureau

500 Richard J. Daley Center 

Chicago, Illinois 60602

(312) 603-3014

Emily.Stewart2@cookcountyil.gov

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