UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JANINE JAMES, M.D.,

Plaintiff, 

v. 

TCA HEALTH, INC, and 

VERONICA E. CLARKE, in her 

individual capacity,

Defendants.

No. 20-cv-4010

Judge Franklin U. Valderrama

MEMORANDUM OPINION AND ORDER

Plaintiff Dr. Janine James (Dr. James) was the Chief Medical Officer at TCA 

Health, Inc. (TCA). Dr. James reported to Veronica E. Clarke (Ms. Clarke), TCA’s 

Chief Executive Officer. Dr. James alleges that while employed at TCA, she was 

subjected to race and age discrimination. Dr. James has filed a five-count Complaint 

against TCA and Ms. Clarke (collectively, Defendants), alleging 42 U.S.C. § 2000e 

(Title VII) race discrimination against TCA (Count I); 42 U.S.C. § 1981 race 

discrimination against all Defendants (Count II); 29 U.S.C. § 621 (ADEA) age 

discrimination against TCA (Count III); retaliation under 42 U.S.C. § 1981, Title VII, 

and the ADEA against TCA (Count IV); and retaliation under the Illinois 

Whistleblower Act (IWA) against TCA (Count V). R. 1, Compl.1

1Citations to the docket are indicated by “R.” followed by the docket number or filing name, 

and where necessary, a page or paragraph citation.
2

Defendants’ Partial Motion to Dismiss Counts I, II, IV and V of Dr. James’s

Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) is before the Court. 

R. 12, Mot. Dismiss. For the reasons that follow, Defendants’ motion is granted as to 

Count IV as it relates to retaliation based on race discrimination under Title VII and 

Section 1981 and as to Count V, and denied as to Counts I and II and Count IV as it 

relates to retaliation based on age discrimination under the ADEA.

Background

Dr. James is a 66-year-old African American female. Compl. ¶ 1.2 In September 

2018, she was hired as TCA’s Chief Medical Officer. Id. ¶ 13. As Chief Medical Officer, 

Dr. James was responsible for clinical decisions, nursing staff, and patient care. Id.

¶¶ 14, 68. Dr. James reported to Ms. Clarke, TCA’s CEO. Id. ¶¶ 15–16. Dr. James 

alleges that Ms. Clarke made decisions that put patients in danger and placed the 

facility itself in danger of closing. Id. ¶ 16. Dr. James raised concerns regarding 

inadequate staffing, misuse of donated funds, and patient safety issues to Ms. Clarke 

on multiple occasions. Id. ¶¶ 17, 69. Ms. Clarke constantly demeaned and 

disrespected Dr. James for her opinions regarding staffing and safety. Id. ¶ 18. After 

raising her concerns, Dr. James was threatened with adverse employment actions. 

Id. ¶ 70.

Ms. Clarke also made discriminatory comments about Dr. James, including 

comments suggesting that Dr. James was ineffective at her job because of her age.

2The Court accepts as true all the well-pleaded facts in the Complaint and draws all 

reasonable inferences in favor of Dr. James. Platt v. Brown, 872 F.3d 848, 851 (7th Cir. 2017).
3

Id. ¶ 19. Ms. Clarke made comments about Dr. James’s age in the presence of TCA 

Human Resources (HR) representatives, but was not disciplined for her comments. 

Id. ¶¶ 20–21. Dr. James alleges that she complained to HR about a March 2019 

statement Ms. Clarke made to her about being “too old to perform her job.” Id. ¶ 60. 

Dr. James also alleges that Defendants discriminated against her, “on the basis of 

her race by, among other things, treating others outside her protected class far more 

favorably than Dr. James, being unsupportive of her work, ignoring her complaints 

regarding patient safety issues, and terminating her employment without good 

cause.” Id. ¶¶ 31, 40. 

In June 2019,3 Dr. James was informed that she would be terminated effective

September 10, 2019. R. 1-4, 8/6/2019 Letter at 5. After July 2019, Dr. James’s hours 

were reduced but her responsibilities remained the same. Compl. ¶ 23. On August 6, 

2019, Dr. James emailed her alderman in which she lays out her “serious concerns” 

about TCA’s operation. 8/6/2019 Email. Dr. James’s listed concerns include proper 

patient care, firing of qualified staff, and Ms. Clarke’s comment that Dr. James was 

too old to perform her duties. Id. On August 7, 2019, Dr. James also emailed her state 

representative raising similar concerns about patient care, TCA’s operation, and 

harassment of TCA’s staff. R. 1-5, 8/7/2019 Email. Additionally, on September 1, 

3In the Complaint, Dr. James alleges that she was informed of her termination in July 2019. 

Compl. ¶ 22. However, given that Dr. James attached a letter that she wrote as an exhibit to 

the Complaint, in which she stated that she was notified of her termination in June 2019, 

8/6/2019 Letter at 5, the Court relies on the date in the letter. See N. Indiana Gun &

Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449, 454 (7th Cir. 1998) (“It is a well-settled 

rule that when a written instrument contradicts allegations in the complaint to which it is 

attached, the exhibit trumps the allegations.”); see also Thompson v. Illinois Dep’t of Pro. 

Regul., 300 F.3d 750, 754 (7th Cir. 2002).
4

2019, Dr. James sent a similar letter to the Illinois Bureau of Primary Care, outlining 

her concerns with TCA’s patient care and improper use of donated funds. R. 1-3, 

9/1/2019 Email; Compl. ¶ 24. Dr. James was terminated September 10, 2019. Compl. 

¶ 25.

Dr. James subsequently filed a five-count Complaint against Defendants

alleging race discrimination against TCA (Count I); race discrimination against all 

Defendants (Count II); age discrimination against TCA (Count III); retaliation based 

on reports of race and age discrimination against TCA (Count IV), and retaliation 

under the Illinois Whistleblower Act against TCA (Count V). Compl. Defendants’ 

Partial Motion to Dismiss Counts I, II, IV and V of Dr. James’s Complaint pursuant 

to Federal Rule of Civil Procedure 12(b)(6) is before the Court.

Standard of Review

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the 

complaint. Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 

820 (7th Cir. 2009). Under Rule 8(a)(2), a complaint must include only “a short and 

plain statement of the claim showing that the pleader is entitled to relief.” FED. R.

CIV. P. 8(a)(2). To survive a motion to dismiss, a complaint need only contain factual 

allegations, accepted as true, sufficient to “state a claim to relief that is plausible on 

its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads 

factual content that allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged.” Id. The allegations “must be enough 
5

to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. The 

allegations that are entitled to the assumption of truth are those that are factual, 

rather than mere legal conclusions. Iqbal, 556 U.S. at 678–79.

Analysis

I. Race discrimination under Title VII and 1981 (Counts I and II)

In Counts I and II, Dr. James alleges race discrimination under Title VII and 

42 U.S.C. § 1981. Title VII prohibits an employer from discriminating against an 

employee based on her race. 42 U.S.C. § 2000e-2(a). Section 1981 “guarantees equal 

rights to all citizens regardless of race and in the context of employment provides that 

all people have the ‘same right . . . to make and enforce contracts . . . as is enjoyed by 

white citizens.” Morris v. BNSF Ry. Co., 969 F.3d 753, 758 (7th Cir. 2020) (quoting 

42 U.S.C. § 1981(a)). Title VII and Section 1981 have the same liability standards. 

Id.; see also Humphries v. CBOCS West, Inc., 474 F.3d 387, 403–04 (7th Cir. 2007), 

aff’d, 553 U.S. 442 (2008). Accordingly, the Court considers Dr. James’s Title VII and 

Section 1981 claims together.

To state a claim for discrimination based on race under both Title VII and 

Section 1981, a plaintiff must allege: (1) that he or she is member of a protected class, 

(2) performed his or her job satisfactorily, (3) suffered an adverse employment action, 

and (4) was treated less favorably than a similarly situated employee outside of that 

protected class. Nichols v. Michigan City Plant Planning Dep’t., 755 F.3d 594, 604–

05 (7th Cir. 2014). “Adverse employment actions . . . generally fall into three 

categories: (1) termination or reduction in compensation, fringe benefits, or other 
6

financial terms of employment; (2) transfers or changes in job duties that cause an 

employee’s skills to atrophy and reduce future career prospects; and (3) unbearable 

changes in job conditions, such as a hostile work environment or conditions 

amounting to constructive discharge.” Barton v. Zimmer, Inc., 662 F.3d 448, 453–54 

(7th Cir. 2011). The Court addresses Dr. James’s race discrimination claims against 

TCA and Ms. Clarke separately.

A. Title VII and Section 1981 Claims against TCA (Counts I and II)

TCA argues that Dr. James fails to state claims against TCA in Counts I and 

II because Dr. James fails to (1) sufficiently plead an adverse employment action 

apart from her termination, and (2) connect her termination and alleged 

mistreatment to any race-based animus. R. 14, Memo. Dismiss at 5–6. TCA contends

that Dr. James’s allegations of race discrimination are merely conclusory. Id. at 5. 

At the outset, it bears noting that the Seventh Circuit has repeatedly 

emphasized that the pleading requirement for employment discrimination claims is 

minimal. Tomayo v. Blagojevich, 526 F.3d 1074, 1085 (7th Cir. 2008) (“In these types 

of cases, the complaint merely needs to give the defendant sufficient notice to enable 

him to begin to investigate and prepare a defense.”); Clark v. Law Office of Terrence 

Kennedy, Jr., 709 F. App’x 826, 828 (7th Cir. 2017) (“The pleading requirement for 

employment-discrimination claims is minimal. A plaintiff need only identify the type 

of discrimination, when it occurred, and by whom.”); Tate v. SCR Med. Transp., 809 

F.3d 343, 346 (7th Cir. 2015) (confirming that the pleading standard in employment 

discrimination cases is “undemanding”); Carlson v. CSX Transportation, Inc., 758 
7

F.3d 819, 827 (7th Cir. 2014) (“Employers are familiar with discrimination claims and 

know how to investigate them, so little information is required to put the employer 

on notice of these claims.”).

It is undisputed that Dr. James has adequately alleged that she is a member 

of a protected class (African American) and that she performed her job satisfactorily.

See Compl. ¶¶ 1, 31, 40; Memo. Dismiss at 5–6. TCA also does not dispute that Dr. 

James’s termination constitutes an adverse employment sufficient to support a Title 

VII or Section 1981 claim. Memo. Dismiss at 6. However, TCA argues that, to the 

extent that Dr. James attempts to rely on allegations of discrimination other than

her termination, specifically, “treating others outside her protected class far more 

favorably than Dr. James, being unsupportive of her work, [and] ignoring her 

complaints regarding patient safety issues,” she fails to plead an adverse employment 

action. Id. (citing Smart v. Ball State University, 89 F.3d 437, 441 (7th Cir. 1996) 

(“[N]ot everything that makes an employee unhappy is an actionable adverse 

action.”)). The Court agrees. Moreover, Dr. James did not respond to TCA’s argument 

that any allegations apart from her termination do not constitute an actionable

adverse employment action. See generally R. 14, Resp. Memo. She therefore has 

waived the argument. See Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) 

(“Failure to respond to an argument . . . results in waiver.”).

But as noted above, Dr. James alleges that she was terminated because of her 

race. Compl. ¶¶ 31, 40 (“Defendants discriminated against Dr. James on the basis of 

her race by . . . terminating her employment without good cause.”). Seventh Circuit 
8

case law teaches that such an allegation suffices to overcome a motion to dismiss. In 

short, the Court finds, in viewing the allegations of the Complaint in the light most 

favorable to Dr. James, and drawing all reasonable inferences in her favor, that Dr. 

James adequately alleges a Title VII and Section 1981 race discrimination claim

against TCA based on her termination. Therefore, Defendants’ motion to dismiss 

Counts I and II as to TCA is denied.

B. Section 1981 Claim against Ms. Clarke individually (Count II)

In Count II, Dr. James seeks to hold Ms. Clarke individually liable for race 

discrimination under 42 U.S.C. § 1981. Ms. Clarke argues that Dr. James does not 

plead a sufficient nexus between the adverse employment action of termination and 

Ms. Clarke’s actions. Memo. Dismiss at 6–7. 

Section 1981, unlike Title VII, permits individual liability if the individual 

participated in the statutory violation. Musikiwamba v. ESSI, Inc., 760 F.2d 740, 

753–54 (7th Cir. 1985). “The individual defendant must be personally involved, which 

can mean acquiesce[ing] in some demonstrable way to the alleged constitutional 

deprivation; or if the conduct causing the constitutional deprivation occurred at his 

direction or with [his] knowledge and consent.” Guster-Hines v. McDonald’s USA, 

LLC, 2021 WL 2633303, at *8 (internal citations and quotations omitted).

Here, Dr. James alleges that Ms. Clarke, TCA’s CEO, has authority to hire and 

fire. Compl. ¶ 39; Mot. Dismiss Memo at 7. Dr. James further alleges that she 

reported to Ms. Clarke. Id. ¶ 15. She also claims that Ms. Clarke told her at least once 

that she was “too old to perform her job duties.” Id. ¶¶ 19, 60. Admittedly, while Dr. 
9

James does not specifically allege that Ms. Clarke was involved in her termination, a 

reasonable inference from the facts alleged is Ms. Clarke was “personally involved” 

in the termination of Dr. James, as TCA’s Chief Medical Officer. At this juncture, that 

is sufficient. See, e.g., Guster-Hines, 2021 WL 2633303, at *8 (denying motion to 

dismiss individual race discrimination claim against CEO where plaintiffs alleged 

that he “openly targeted [plaintiff] for elimination before her termination” despite 

defendant’s argument that “he did not personally cause, participate, or acquiesce in 

any adverse employment action against the Plaintiffs”); c.f. Rainey v. Lipari Foods, 

Inc., 2014 WL 4182662, at *2 (N.D. Ill. Aug. 20, 2014) (dismissing individual age and 

race discrimination claims against CEO where it was “not plausible” that he 

personally would have taken part in hiring employees other than plaintiff). 

In sum, the Court finds that in viewing the allegations of the Complaint in the 

light most favorable to Dr. James, and drawing all reasonable inferences in her favor,

that Dr. James adequately pleads a Section 1981 race discrimination claim against 

Ms. Clarke individually. Therefore, the motion to dismiss Count II as to Ms. Clarke 

is denied.

II. Retaliation Claim against TCA under Title VII, Section 1981, and

the ADEA (Count IV)

In Count IV, Dr. James alleges that TCA retaliated against her after she made 

“allegations about race and age discrimination” and complained to HR about Ms. 

Clarke’s statement that Dr. James was too old to perform her job. Compl. ¶¶ 60–61. 

To state a retaliation claim, a plaintiff must allege that he or she is (1) an employee 

that has (2) suffered a materially adverse action (3) because he or she engaged in 
10

protected activity. Shott v. Katz, 829 F.3d 494, 497 (7th Cir. 2016). An employee 

engages in a “protected activity” when he or she “oppos[es] impermissible 

discrimination.” Smith v. Bray, 681 F.3d 888, 896 (7th Cir. 2012).

TCA argues that Dr. James’s retaliation claim as to race fails because Dr. 

James does not allege that she engaged in any protected activity related to race 

discrimination. Memo. Dismiss at 7–8. To adequately plead a retaliation claim, a

plaintiff must plead “some specific speech or conduct by the plaintiff [that] led to the

termination.” E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 781 (7th Cir. 

2007) (quoting Kyle v. Morton High Sch., 144 F.3d 448, 454 (7th Cir. 1998)). The Court 

agrees with TCA that Dr. James fails to allege that she was engaged in any protected 

activity related to race discrimination. The extent of Dr. James’s allegations related 

to reporting race discrimination are that she was “terminated after Defendants were 

aware of . . . the allegations of race . . . discrimination.” Compl. ¶ 61. However, the 

Complaint includes no information about the “allegations of race discrimination”—

including whether they were made to HR or another officer or employee at TCA. 

Although a plaintiff pleading a claim for retaliation need not plead much detail, the 

bare allegations in the Complaint are insufficient to put TCA on notice of what 

protected activity Dr. James engaged in. See Concentra Health Services, 496 F.3d at 

781–82. 

As to retaliation based on age discrimination, TCA argues that Dr. James’s 

claim also fails because it is too vague and it is unclear whether she complained to 

HR before learning of her impending termination in June 2019. Memo. Dismiss at 8.
11

Unlike her retaliation claim based on race, here Dr. James alleged “some specific 

description” of her protected conduct as to age discrimination, Concentra Health 

Services, 496 F.3d at 788: Dr. James alleged that she complained of Ms. Clarke’s 

March 2019 statement that she was too old to perform her job to HR, Compl. ¶ 61. 

This is enough specificity to sustain a retaliation claim. The Court also disagrees with 

TCA that Dr. James must identify exactly when she notified HR about Ms. Clarke’s 

ageist statement. Dr. James alleges that the discriminatory statement was made in 

March 2019, that she notified HR before the decision to terminate her, and that she 

was notified of her impending termination in June 2019. Id. ¶¶ 60–61; 8/6/2019 

Email. She has adequately pled that her report of age discrimination caused her 

termination. 

The Court finds, in viewing the allegations of the complaint in the light most 

favorable to Dr. James, that Dr. James sufficiently pleads a retaliation claim based 

on age discrimination under the ADEA. However, she fails to sufficiently plead a 

retaliation claim based on race discrimination under Title VII and Section 1981.

III. Retaliation under the Illinois Whistleblower’s Act (Count V)

In Count V, Dr. James alleges that TCA retaliated against her for the 

disclosures she made to Ms. Clarke, as well as to government officials and regulatory 

officials, including but not limited to her alderperson, her state representative, her 

state senator, and the Illinois Bureau of Primary Care. Compl. ¶¶ 70–71; 8/6/19 

Email; 8/7/19 Email; 9/19/19 Email.

Under the IWA, an employer may not retaliate against an employee:
12

who discloses information in a court, an administrative 

hearing, or before a legislative commission or committee, or 

in any other proceeding, where the employee has reasonable 

cause to believe that the information discloses a violation of 

a State or federal law, rule, or regulation. 740 ILCS 

174/15(a);

for disclosing information to a government or law 

enforcement agency, where the employee has reasonable 

cause to believe that the information discloses a violation a 

State or federal law, rule, or regulation. 740 ILCS 174/15 

(b); 

for refusing to participate in an activity that would result in 

a violation of a State or federal law, rule, or regulation. 740 

ILCS 174/20;

[through an] act or omission . . . materially adverse to a 

reasonable employee . . . because of the employee disclosing 

or attempting to disclose public corruption or wrongdoing. 

740 ILCS 174/20.1; or

[by] threatening any employee with any act or omission if 

that act or omission would constitute retaliation against the 

employee under this Act. 740 ILCS 174/20.2.

“The purpose of the IWA is ‘to protect employees from adverse employment 

actions in retaliation for reporting or refusing to engage in unlawful conduct by their 

employers.’” Huang v. Fluidmesh Networks, LLC, 2017 WL 3034672, at *6–7 (N.D. 

Ill. July 18, 2017) (quoting Young v. Alden Gardens of Waterford, LLC, 30 N.E.3d 631, 

654 (Ill. App. Ct. 2015)). 

As a preliminary matter, there is no cause of action under the IWA where an 

employee reveals information only to his or her employer. Zelman v. Hinsdale Twp. 

High Sch. Dist. 86, 2010 WL 4684039, at *2 (N.D. Ill. Nov. 12, 2010); see also Rufus 

v. City of Chi., 2018 WL 1911799, at *4 (N.D. Ill. Apr. 23, 2018) (“The IWA normally 
13

does not protect employees who merely make internal disclosures to their own 

employers.”). As such, Dr. James cannot state an IWA claim based on her disclosure 

to Ms. Clarke, her employer. 

TCA argues that, based on her own Complaint and exhibits thereto, Dr. 

James’s whistleblowing claim is implausible. Memo. Dismiss at 8–9. TCA reasons

that since Dr. James alleges that was told in June that she would be fired in 

September, there can be no causal connection between the protected activity of 

disclosures to government authorities and the alleged retaliatory action. Id. at 9

(citing Bello v. Vill. of Skokie, 151 F. Supp. 3d 849, 865 (N.D. Ill. 2015)). The Court 

agrees. Here, Dr. James alleges that she was informed in June (or July) 2019 that 

she would be terminated in September 2019. Compl. ¶ 22; 8/6/2019 Email. It was not 

until August 2019 that Dr. James notified her alderman or state representative about 

her concerns about TCA. 8/6/2019 Email; 8/7/2019 Email. And she did not notify the 

Illinois Bureau of Primary Care about TCA’s alleged misconduct until September 1, 

2019. 9/1/2019 Email. The Court fails to see how Dr. James’s termination, of which 

she was notified in June (or July), could be retaliation for disclosures she made to 

either elected public officials or the Illinois Bureau of Primary Care in August and 

September 2019. In light of this finding, the Court need not address TCA’s alternative 

argument that Dr. James’s letters to the alderman and state representative do not 

constitute a “government or law enforcement agency” for purposes of the IWA. Memo. 

Dismiss at 9 n.6.4

4

Defendants raise this argument in a footnote. Generally, the Court will not consider 

substantive arguments raised only in a footnote. See MEMORANDUM OF LAW REQUIREMENTS,
14

The Court finds, when viewing the allegations of the Complaint in the light 

most favorable to Dr. James, that Dr. James has not properly pled a retaliation claim

under the IWA. The motion to dismiss Count V is granted and Count V is dismissed 

without prejudice.

Conclusion

For the foregoing reasons, Defendants’ Partial Motion to Dismiss is granted in 

part and denied in part. Defendants’ Motion to Dismiss Counts I, II, and IV (as Count 

IV relates to retaliation under the ADEA) is denied. Defendants’ Motion to Dismiss 

Counts IV and V (as Count IV relates to retaliation under Title VII and 42 U.S.C. 

§ 1981) is granted. Count IV as it relates to retaliation under Title VII and Section 

1981, and Count V are dismissed without prejudice. If Dr. James wishes to file an 

amended complaint consistent with this Opinion, she must do so by July 29, 2021.

Dated: July 8, 2021

United States District Judge

Franklin U. Valderrama

https://www.ilnd.uscourts.gov/judge-info.aspx?zFOuol9sgkvUjRK1U/CzEg==. However, this

case was reassigned to this Court after Defendants filed their motion to dismiss. See Mot. 

Dismiss; R. 16.