The opinion of the court was delivered by: Judge Robert W. Gettleman
MEMORANDUM OPINION AND ORDER
Plaintiff Virdia Spain filed a five-count amended complaint against her former employer Elgin Mental Health Center ("EMHC"), the Illinois Department of Human Services ("IDHS"), and Jeff Pharis and Dwayne Ward in their individual capacities ("the individual defendants"), alleging that defendants discriminated against her based on her race. In Count I, plaintiff alleges that all defendants violated Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq., by taking an adverse employment action against her based on her race. Counts II is a claim under 42 U.S.C. § 1981, alleging that the individual defendants subjected plaintiff to a hostile work environment and that EMHC and IDHS are liable under a respondeat superior theory. Count III alleges that the individual defendants violated 42 U.S.C. § 1983 by subjecting plaintiff to a hostile work environment. Counts IV and V are state law claims against all defendants for violating the Illinois Civil Rights Act of 2003, 740 Ill. Comp. Stat. 23/5 et seq., and common law malicious prosecution, respectively. Defendants have filed a motion to dismiss plaintiff's amended complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). For the following reasons, the court grants defendants' motion to dismiss in its entirety.
Plaintiff, an African American woman, was employed as a Security Therapy Aide ("aide") from October 3, 1988, until October 30, 2008, with EMHC, a facility controlled and operated by IDHS. Aides' duties include observing mentally disabled patients and assisting patients while eating. When necessary, aides must follow special precautions to accommodate each patient's needs.
On June 20, 2008, a white aide was assigned to pass trays of food to patients. Part of her assignment included distributing precautionary diet trays for the patients. Before dispensing the tray, the aide was required to double-check that the patient's food was consistent with the patient's dietary card listing his dietary restrictions (among the patient's dietary restrictions were that he was to have a "dental soft" diet, and that he was allergic to fish). The white aide failed to perform this task.
The white aide then handed the patient's tray to a Filipina aide assigned to deliver the patient's dinner and to engage in an hour long "one-to-one" observation of the patient, beginning at 5:00 p.m. She delivered the tray to the patient in the dining room. At 5:30 p.m., the Filipina aide began feeding the patient his meal, which included fish.
Plaintiff was assigned to relieve the Filipina aide and observe the patient "one-to-one" from 6:00 p.m. until 7:00 p.m. At 5:55 p.m., plaintiff approached the Filipina aide and the patient. Plaintiff noticed that the patient had eaten 75 to 80 percent of his meal, and asked the Filipina aide why the patient did not have a dental soft tray. In response, the Filipina aide began cutting what remained of the patient's fish to assist his eating. Plaintiff relieved the Filipina aide at 6:00 p.m., and the patient finished his meal 5 minutes later. Soon after, the patient went into anaphylactic shock and died.
As a result of the events leading to the patient's death, EMHC conducted a review of plaintiff's conduct. Dwayne Ward attended the review. On October 30, 2008, defendants placed plaintiff on "diverted duty," requiring her to work in an area other than her assigned unit and rendering her ineligible to work overtime. On December 15, 2008, plaintiff began receiving retirement disability benefits.
On November 7, 2008, both plaintiff and the Filipina aide were charged with abuse of a long-term health care facility resident, a Class 3 felony in Illinois.*fn2 The charges were dismissed on December 18, 2008. The white aide was not charged with any crime in connection with the patient's death, nor did defendants place her on diverted duty.
Plaintiff filed a charge of race discrimination with the Equal Employment Opportunity Commission ("EEOC") and the Illinois Department of Human Rights against EMHC on November 9, 2009. The EEOC issued a Notice of Right to Sue on plaintiff's charge on November 20, 2009.
Pursuant to Fed. R. Civ. P. 12(b)(1), a court must dismiss any action over which it lacks subject-matter jurisdiction. Further, a complaint that fails to state a claim upon which relief can be granted should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). A Rule 12(b)(6) motion tests the sufficiency of the complaint, not the merits of the case. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). The court accepts the complaint's well-pleaded factual allegations as true and draws all reasonable inferences in the plaintiff's favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citations omitted). To provide the defendant with "fair notice of what the claim is and the grounds upon which it rests," the complaint must provide "a short and plain statement of the claim showing that the pleader is ...