CLARENCE C. NEWCOMER, UNITED STATES DISTRICT JUDGE
This is a civil rights case involving the alleged wrongful firing of the plaintiff, a black female, by defendants, Bramalea Limited, as a result of race discrimination. Before me now is defendants' Motion to Dismiss Count I, alleged violation of 42 U.S.C. § 1981, and Count II, wrongful discharge tort based upon alleged violation of public policy against race discrimination. For the rationale which follows I will grant both motions.
Plaintiff is a black female who began working for defendant, Bramalea Limited, on or about February 11, 1985. While employed by Bramalea, plaintiff claims she performed her duties in a manner of competency and professionalism in excess of other similarly situated managers. She alleges that during her employment with Bramalea certain employees of defendant, including management level employees, made racially derogatory and slurring comments concerning her. On or about July 14, 1987, plaintiff was fired. She claims that she was wrongfully discharged as a result of racial discrimination.
II. Rule 12(b)(6) Standard.
Fed.R.Civ.P. 12(b)(6) instructs a court to dismiss an action for failure to state a cause of action only if it appears a certainty that no relief could be granted under any set of facts which could be proved. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984). Because granting such a motion results in a determination of the merits at such an early stage of the plaintiff's case, the trial court "must take all well pleaded allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether under any reasonable reading of the pleadings, the plaintiff may be entitled to relief." Colburn v. Upper Darby Township, 838 F.2d 663, 665-66 (3d Cir. 1988) (quoting Estate of Bailey by Oare v. County of York, 768 F.2d 503, 506 (3d Cir. 1985)).
Defendants seek to have this court dismiss Counts I and II of the plaintiff's Complaint, alleging that two recent opinions, Patterson v. McLean Credit Union, 491 U.S. 164, 105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989) and Clay v. Advanced Computer Applications, Inc., 522 Pa. 86, 559 A.2d 917 (1989), require dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. I shall address these claims and the corresponding arguments for dismissal in sequence.
A. Count I: Alleged Violation of 42 U.S.C. § 1981
Count I of the Complaint alleges that plaintiff was wrongfully fired by defendants as a result of race discrimination and that certain employees of defendant Bramalea Limited, including defendant Muxworthy, made racially derogatory and slurring comments regarding plaintiff. Plaintiff alleges that by these acts the defendants violated 42 U.S.C. § 1981, the Civil Rights Act of 1866. Defendants argue that under the United States Supreme Court's recent decision in Patterson, such allegations do not state a cause of action under 42 U.S.C. § 1981.
The parameters of § 1981 with respect to employment discrimination were recently delineated by the Supreme Court in Patterson. The Court limited the substantive protections of of § 1981 to those redressing discrimination in the "'(making) and (enforcement)' of contracts alone", finding that claims outside the scope of these two specific rights, such as "breach of the terms of the contract or imposition of discriminatory working conditions", are not actionable. 105 L. Ed. 2d at 151. The first protection extends only to the formation of contracts and does not include problems that may arise later from the conditions of employment. The second guarantee protects an employee only from employer conduct which impairs the employee's ability to enforce his established contractual rights through the legal process. Id.
The Patterson Court's interpretation of the scope of § 1981 makes clear that the plaintiff's allegations of the defendants' racially derogatory and slurring comments regarding her are not actionable under § 1981. Although such conduct is reprehensible if true, it does not involve discrimination in the making or enforcement of her employment contract as those terms were defined in Patterson.
Similarly, plaintiff's allegation of discrimination in her discharge is not actionable under § 1981. Discriminatory employment termination is post contract formation conduct, not protected against by § 1981, as it does not involve the right to make or enforce a contract as those terms were defined in Patterson.
Plaintiff further argues that defendants impaired her right to make a contract because they refused to consider her for the very position she vacated when she was fired due to alleged racial discrimination. Plaintiff bases her belief that the Patterson Court would permit such a claim under § 1981 on the following language of the opinion:
Of course some overlap will remain between the two statutes [Section 1981 and Title VII]: specifically a refusal to enter into an employment contract on the basis of race. Such a claim would be actionable under Title VII as a "refus[al] to hire" based on race . . . and under § 1981 as an impairment of "the same right . . . to make . . . contracts . . . as . . . white citizens."