The opinion of the court was delivered by: David G. Bernthal U.S. Magistrate Judge
REPORT AND RECOMMENDATION
In February 2010, Plaintiff Katie Mae Welch filed a Pro Se Complaint (#1) against Defendant Illini Heritage Rehab and Health Care*fn1 (hereinafter "Heritage"), alleging discrimination in employment in violation of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-5) (hereinafter "Title VII"). Federal jurisdiction is based on federal question under 28 U.S.C. § 1331 because Plaintiff alleges that Defendant violated a federal statute.
In March 2010, Defendant filed a Motion To Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) (#11). Instead of responding to the motion to dismiss, Plaintiff filed a Motion To Amend Complaint (#15). Defendant filed a Response to Plaintiff's Motion To Amend (#16). After Plaintiff filed her proposed amended complaint (#18-1), Defendant filed a Supplemental Response to Plaintiff's Motion To Amend Complaint (#19). After reviewing the administrative record and the parties' memoranda, this Court recommends, pursuant to its authority under 28 U.S.C. § 636(b)(1)(B), that Plaintiff's Motion To Amend Complaint (#15) be DENIED and that Defendant's Motion To Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) (#11) be GRANTED.
The following background is taken from Plaintiff's complaint: Plaintiff worked for Defendant as a household supervisor for about 28 years. In November 2007, she met with Michelle Scott, the director of Defendant Heritage, in Michelle's office. Michelle told Plaintiff that an applicant named Carmen said that Plaintiff was rude to her on the phone. Plaintiff explained that she had never spoken to Carmen. Plaintiff also told Michelle that ever since Michelle had been working at Heritage, she had Plaintiff in the office every week for something. Michelle told her that she planned to hire Carmen to work on the weekend. Plaintiff explained that Carmen already worked full-time as a restaurant manager and it would mess up the work schedule if Plaintiff had to squeeze Carmen into the schedule. Plaintiff alleged as follows:
I got very frustrated and proceeded to walk out the office door, then out the back door to the Laundry Department [and] Michelle followed me. Michelle then begin to ask me was I swearing at her. I told Michelle I was not swearing at her, then I asked Michelle was she firing me. Then Michelle said no just go home and I will call you tomorrow. The next day I waited to here from Michelle, but I never did so I decided to call her. (Sic) (#1, p. 6.) Plaintiff called Michelle to ask when she could return to work. Michelle told her that she was terminating Plaintiff's employment. Plaintiff also alleged that "[i]t seemed she was determined to get Carmen hired come to find out she is white and now since my termination from my job she was hired in my position." (#1, p. 6.)
Based on these allegations, Plaintiff alleges that Defendant discriminated against her.
Plaintiff's proposed amended complaint alleges that she worked for Heritage as supervisor of housekeeping and laundry for almost 28 years and never had any problems with her boss. Michelle Scott is a white employee who became Plaintiff's supervisor about four months before Plaintiff's termination. In November 2007, Michelle fired Plaintiff and she then hired Carmen, a white woman, to replace Plaintiff. Carmen had no experience in housekeeping and had to be trained by existing employees to do the job. Derrick, a black employee in Plaintiff's department, was qualified to replace Plaintiff but Michelle did not hire him to replace Plaintiff until after Carmen did not work out. Michelle fired many black employees and replaced them with white employees while she was administrator. At least four times, Michelle brought Plaintiff applications from white people and told Plaintiff to hire them. Michelle did not personally bring Plaintiff applications from black people or tell Plaintiff to hire them.
The purpose of a motion to dismiss for failure to state a claim is to test the sufficiency of the complaint, not to decide the merits of the case. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). To state a claim under federal notice pleading standards, a complaint must set forth a "short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). The complaint must give fair notice of what the claim is and the grounds upon which it rests. EEOC v. Concentra Health Serv., Inc., 496 F.3d 773, 776-77 (7th Cir. 2007). However, fair notice is not enough by itself; in addition, the allegations must show that it is plausible, rather than merely speculative, that the plaintiff is entitled to relief. Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008).
The Seventh Circuit recently summarized the notice pleading analysis in Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). First, a plaintiff must provide notice to defendants of her claims. Second, courts must accept a plaintiff's factual allegations as true, but some factual allegations will be so sketchy or implausible that they fail to provide sufficient notice to defendants of the plaintiff's claim. Third, in considering a plaintiff's factual allegations, courts should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements. Id. "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 . . . . Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949-50 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
When considering a motion to dismiss for failure to state a claim, the Court is limited to the allegations contained in the pleadings. Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993). The Court must treat all well-pleaded factual allegations in the complaint as true, and draw all reasonable inferences in the plaintiff's favor. McMillan v. Collection Prof'ls, Inc., 455 F.3d 754, 758 (7th Cir. 2006); see Bell Atl., 550 U.S. at 556 (requiring plausible grounds for inferences if those inferences are to sustain a complaint). A claim is sufficient only to the extent that it contains either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory. Bell Atl., 550 U.S. at 562 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)). Legal conclusions, unsupported by alleged underlying facts, are not entitled to "the assumption of truth." Id. at 1950. Finally, a plaintiff can allege himself out of a claim by including allegations that establish his inability to state a claim. Head v. Chi. Sch. Reform Bd. of Trs., 225 F.3d 794, 801-02 (7th Cir. 2000); Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir. 1999) (stating that a plaintiff can plead himself out of court by alleging facts that undermine the validity of his claim).
Application of the notice pleading standard is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir. 2009). "In other words, the height of the pleading requirement is relative to circumstances." Id.; Concentra, 496 F.3d at 782 ("the type of facts that must be alleged depend upon the legal contours of the claim").
Like any complaint, a pro se complaint may be dismissed for failure to state a claim. In determining the sufficiency of a pro se complaint, the Court will construe it liberally in favor of the plaintiff. Id. at 520-21. The Court need not, however, credit a pro se plaintiff's "bald assertions" or "legal conclusions." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997); see also Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir. 1981) (noting that a pro se ...