UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

HEATHER KILL, )

)

Plaintiff, )

)

v. ) No. 2:16 CV 240

)

COMMUNITY HEALTHNET, INC., et al., )

)

Defendants. )

OPINION and ORDER

This matter is before the court on defendants’ motion to dismiss (DE # 21) count

IV of plaintiff’s amended complaint (DE # 19) pursuant to Federal Rule of Civil

Procedure 12(b)(6). The well-known legal standard applicable is that, with the

complaint’s factual allegations accepted as true, dismissal for failure to state a claim

pursuant to Rule 12(b)(6) is appropriate when those facts are not enough to make a

right to relief plausible, meaning more than speculative. Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007); Vinson v. Vermilion

Cty., Illinois, 776 F.3d 924, 928 (7th Cir. 2015). To avoid dismissal, the well-pleaded

factual content must allow the court to draw the reasonable inference that the defendant

is liable for the misconduct alleged. Iqbal, 556 U.S. at 678.

In count IV of her amended complaint plaintiff Heather Kill (“Kill”) pleads

termination of her employment services contract with defendant Community

HealthNet, Inc. (“CHNI”) on the basis of her race, and retaliation, in violation of 42

U.S.C. § 1981. Specifically, Kill’s allegations include the following pertinent paragraphs,

numbered as in her complaint:
4. . . . Defendant, Dr. Janet Seabrook . . . owns and/or operates CHNI,

[and] was a primary decision-maker concerning Kill . . ..

. . . . 

7. Kill is a White/Caucasian female.

8. CHNI’s Chief Executive Officer/Director Dr. Janet Seabrook is a

black/African-American female.

. . . . 

74. Upon information and belief, at times relevant to Plaintiff’s Amended

Complaint, around seventy-five percent (75%) of the providers (mid-level

and physician-level) employed at CHNI, including Dr. Seabrook, are not

White/Caucasian.

75. Around April 30, 2015, Kill complained to CHNI about less favorable

treatment, harassment and hostile work environment that Kill suffered at

CHNI.

. . . .

79. Defendants retaliated against Kill by terminating Kill’s employment

[contract].

. . . .

83. Defendants purposely interfered with performance of Kill’s

employment contract and terminated Kill’s contract thereby denying Kill

the benefits, privileges, terms, and conditions of her Provider

Employment Agreement, all of which was racially motivated in violation

of Section 1981.

(DE # 19.)

Defendants’ argument that those allegations do not state a claim for racial

discrimination are best summarized by liberally quoting their reply brief:

Plaintiff argues that she has pleaded a cause of action for racial

discrimination under §1981 simply by alleging that she is white, Dr.

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Seabrook is black, she had a contract, she was terminated, and her

termination was racially motivated. (DOC 24, p. 7). These allegations are

not enough. The Seventh Circuit has warned that a plaintiff has to do

more than parrot the elements of a statute. A plaintiff has to provide

specific facts to show how the elements are met. Brooks v. Ross, 578 F.3d

574, 581 (7th Cir. 2009).

To the extent Plaintiff has alleged facts, they fail to show that the

actions of Defendants were “purposefully discriminatory with respect to

her right to make and enforce contracts and that the discrimination was

racially motivated.” Stahly v. Amalgamated Transit Union, 2012 WL 266975,

*5 (S.D. Ind. 2012).

(DE # 26 at 2.) As to the assertion in the first paragraph, two years after Brooks the

Seventh Circuit observed that courts were still “struggling” with the issue of how many

facts must be pleaded, disavowing the notion that facts matching every element must

be pleaded: “As we understand it, the Court is saying instead that the plaintiff must

give enough details about the subject-matter of the case to present a story that holds

together.” Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010). In Swanson the

court found plaintiff’s complaint sufficient because it:

identifies the type of discrimination that she thinks occurs (racial), by

whom (Citibank, through Skertich, the manager, and the outside

appraisers it used), and when (in connection with her effort in early 2009

to obtain a home-equity loan). This is all that she needed to put in the

complaint. 

Id. at 405. As in Swanson, Kill’s complaint pleads the same who, what type, and when,

so she has pleaded enough.

Making this absolutely clear is the case cited in the second paragraph above from

defendants’ reply brief, Stahly v. Amalgamated Transit Union, which defendants quote to

assert that Kill’s complaint must be dismissed because the facts she has alleged don’t

show that their actions were “purposefully discriminatory with respect to her right to

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make and enforce contracts and that the discrimination was racially motivated.” The

court found that plaintiff Stahly’s pleading was enough to withstand a motion to

dismiss, however, because:

[A]ll that Stahly is required to plead at this point is that the defendant was

purposefully discriminatory with respect to her right to make and enforce

contracts, and that the discrimination was racially motivated. [Citation

omitted.] 

Stahly has done so here. She has properly alleged that Local Union

996 engaged in racial discrimination that interfered with her right to

enforce the CBA by refusing to assist her with her grievances against her

employer, both before and after her termination in August 2009; favoring

African Americans over her in connection with her discrimination claims

against TRANSPO; creating a racially hostile work environment through

the actions of union representatives; retaliating against her for her

complaints of discrimination; acquiescing in and facilitating TRANSPO's

racial discrimination; and causing TRANSPO’s racial discrimination

against her. [Citation omitted.] She has alleged that these actions were

intentional. [Citation omitted.] Stahly need not lay out a comprehensive

overview of detailed facts as to how the Local discriminated against her,

[citations omitted], and at this stage of litigation, Stahly has properly

notified the Local as to the basis of her claim against them. Stahly has

properly articulated a claim under Section 1981 . . .. 

Stahly, 2012 WL 266975, at *6–7. (N.D. Ind. Jan. 27, 2012). Kill has pleaded just as much.

In the paragraphs of her complaint quoted above, she alleges that she complained to the

defendants that she was subject to less favorable treatment, harassment and a hostile

work environment, that defendants terminated her employment in retaliation, and that

their actions “purposely interfered with performance of Kill’s employment contract and

terminated Kill’s contract . . . all of which was racially motivated.” (DE # 19 at ¶¶ 75, 79,

83.) There is no requirement that plaintiff include as a “magic phrase” that defendants

“purposefully discriminated,” here Kill alleges that defendants’ interference was

purposeful and racially motivated, which amounts to the same thing. Just as in Stahly,

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this is enough for Kill to give defendants notice of the basis of her claim and to

articulate a claim under Section 1981. Defendants’ motion to dismiss her racial

discrimination claim under § 1981 will be denied.

As to whether Kill has successfully pleaded a retaliation claim under § 1981, she

essentially argues in her response to defendants’ motion that they failed to address this

claim in their opening brief by using the terms discrimination and retaliation

“interchangeably,” (DE # 24 at 6), conflating the issue. While it is true that arguments

omitted from an opening brief are typically viewed as waived or forfeited, see Finnegan

v. Myers, No. 3:08-CV-503, 2013 WL 359696, at *7 (N.D. Ind. Jan. 30, 2013), the court

thinks that defendants’ opening brief, fairly read, does address the claim, by stating:

“An employer cannot be motivated to retaliate on the basis of protected activity if the

employer does not know of the protected activity.” (DE # 22 at 4.) Defendants argue

that Kill has “has pleaded herself out of court” because:

by her own allegations, it is clear that her complaints were about general

workplace issues. Nowhere in Count IV does Plaintiff allege that she ever

complained of any racially discriminatory actions on the part of CHNI,

whether directed at her or others. In fact, her lengthy email from May 1,

2015, to Dr. Seabrook, attached to her First Amended Complaint as Exhibit

E, contains no reference to any acts that are based upon her race or the

race of any other employee. 

(Id.) In their reply brief defendants reiterate that Kill “has simply failed to allege

anything that would allow this court to infer that her termination was in retaliation for

expression or conduct that was based in any way on race.” (DE # 26 at 4.) 

Yet in paragraph 74 of her amended complaint, Kill pleads that about 75% of the

providers employed at defendant Healthnet are not “White/Caucasian,” and then

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immediately after in paragraph 75, she pleads that she complained about less favorable

treatment, harassment and a hostile work environment. The implication in the second

paragraph following from the first is that the less favorable treatment, harassment and

hostile environment she complained of had something to do with her race. Then, in

paragraph 79, Kill pleads that defendants retaliated by terminating her contract. While

this is not a model for pleading a retaliation claim—it would have been better for

paragraph 75 to explicitly state that Kill complained of harassment and less favorable

treatment that was racially-motivated—it is sufficient to give defendants notice of the

basis of the claim and is enough to survive dismissal.*

For the foregoing reasons, defendants’ motion to dismiss Count IV of plaintiff’s

amended complaint (DE # 21) is DENIED. 

SO ORDERED.

Date: October 26, 2016

s/James T. Moody 

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT

*

 It is true that the “lengthy email” defendants refer to (Exhibit E to Kill’s

amended complaint) focuses almost exclusively on non-race-related problems at work,

but in it Kill also states that there are “other concerning practices that I would label as

creating a hostile workplace (DE # 19-5 at 3). Kill is not an attorney nor is there any

indication that she wrote the email as a preface to bringing suit, and the court does not

believe that by attaching the email to her complaint Kill has thereby limited her claim

and “pleaded herself out of court” as defendants argue.