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JONES v. ARBOR

March 8, 1993

RAYMOND S. JONES
v.
ARBOR, INC.



The opinion of the court was delivered by: BY THE COURT; JAY C. WALDMAN

 WALDMAN, J.

 INTRODUCTION

 LEGAL STANDARD

 The purpose of a Rule 12(b)(6) motion is to test the legal sufficiency of a complaint. Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987). In deciding a motion to dismiss for failure to state a claim, the court must "accept as true all the allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the nonmoving party." Rocks v. Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). Dismissal is not appropriate unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); Robb v. Philadelphia, 733 F.2d 286, 290 (3d Cir. 1984). A complaint may be dismissed when the facts pled and the reasonable inferences therefrom are legally insufficient to support the relief sought. Pennsylvania ex. rel. Zimmerman v. Pepsico, Inc., 836 F.2d 173, 179 (3d Cir. 1988).

 FACTS

 The court accepts as true the sparse factual allegations in plaintiff's terse complaint. Plaintiff is a black male who was employed by defendant "in 1990 and for a time prior thereto." On December 30, 1990, defendant terminated plaintiff's employment "based on his race and color." In so doing, "defendant acted with oppression, fraud and malice."

 DISCUSSION

 Plaintiff concedes in his brief that he has failed to satisfy the administrative prerequisites to maintain a Title VII claim and acknowledges defendant's right to judgment on that claim. See 42 U.S.C. § 2000e-5(f)(1). *fn1"

 In Patterson v. McLean Credit Union, 491 U.S. 164, 105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989), the Supreme Court held that § 1981 applies only to discriminatory conduct "at the initial formation of the contract" or "which impairs the right to enforce contract obligations through legal process." Id. at 179-80. The Court held that

 § 1981 did not apply to "conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions." Id. at 177. Thus, under Patterson, termination of employment for reasons of racial discrimination would not state a cognizable § 1981 claim. See Hayes v. Community General Osteopathic Hosp., 940 F.2d 54, 56 (3d Cir. 1991), cert. denied, 117 L. Ed. 2d 110, 112 S. Ct. 940 (1992).

 In the Civil Rights Act of 1991, however, Congress amended § 1981 to encompass post-formation conduct. Defendant's alleged conduct in this case took place in 1990, after Patterson and prior to November 21, 1991 when the new Act took effect. Plaintiff argues that the Act is retroactive and thus that he has stated a cognizable § 1981 claim.

 Plaintiff relies on Davis v. City and County of San Francisco, 976 F.2d 1536 (9th Cir. 1992) and Thakkar v. Provident National Bank, 1991 WL 274827 (E.D. Pa. Dec. 17, 1991). In Thakkar, this court stated that it would "assume" that the new Act applied retroactively in assessing and granting the defendant's motion for summary judgment. The court did not hold that any portion of the ...


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