The opinion of the court was delivered by: J. CURTIS JOYNER
Presently before this court is Defendant's Motion to Dismiss Plaintiff's complaint for failure to state a claim upon which relief may be granted. plaintiff originally included five counts in his complaint, but in response to Defendant's motion objects to the dismissal of only three of those counts. These remaining claims are based on alleged violations of Plaintiff's rights under: 1) the Civil Rights Act of 1866, 42 U.S.C. § 1981 (1993), for the unlawful termination of Plaintiff's employment on the basis of his race; 2) the Civil Rights Act of 1871, 42 U.S.C. § 1983 (1993), for the unlawful termination of Plaintiff's employment on the basis of his race and gender; and 3) the Civil Rights Act of 1871, for the violation of Plaintiff's due process rights.
The facts underlying these claims arose out of a drug test to which Plaintiff was subjected by Defendant, which Plaintiff alleges violated Defendant's policies. Complaint, P 20. Although Defendant is authorized to conduct random drug tests, Defendant is bound by the limitations set forth in the Integrated Program of Education, Assistance, and Testing for Intoxicants and Control of Substances (the Program). T.W.U., Local 234 v. SEPTA, 678 F. Supp. 543, 552-53 (E.D. Pa. 1988), aff'd, 863 F.2d 1110 (3d Cir. 1988); vacated and remanded, 492 U.S. 902, 106 L. Ed. 2d 560, 109 S. Ct. 3208 (1989); aff'd in part, vacated and remanded in part on other grounds, 884 F.2d 709 (3d Cir. 1989).
Accordingly, Plaintiff was selected for a random drug test, for which he later tested positive. Complaint, PP 13-14. Soon after, "Plaintiff was notified that he was being terminated." Complaint, P 15. Under the terms of the Program, Plaintiff requested and was permitted a "second test of the same urine sample." Complaint, P 15. This test result was also positive. Complaint, P 17. In violation of the Program and Defendant's practices, however, Defendant failed to provide quantitative values for this test. Complaint, P 17-18. Nonetheless, Defendant terminated Plaintiff's employment. Complaint, P 19.
I. STANDARD FOR A RULE 12(b)(6) MOTION
In considering a Rule 12(b)(6) motion, a court must primarily consider the allegations contained in the complaint, although matters of public record, orders, items appearing in the record of the case and exhibits attached to the complaint may also be taken into account. Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990). The Court must accept as true all of the allegations in the pleadings and must give the plaintiff the benefit of every favorable inference that can be drawn from those allegations. Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). A complaint is properly dismissed only if it appears certain that the plaintiff cannot prove any set of facts in support of its claim which would entitle it to relief. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988).
II. COUNTS I AND II: EMPLOYMENT DISCRIMINATION
When attempting to sufficiently plead a prima facie case under a claim for employment discrimination, a plaintiff "must demonstrate purposeful discrimination." Weldon v. Kraft, 896 F.2d 793, 796 (3d Cir. 1990). If a plaintiff is unable to provide actual proof of purposeful discrimination, "the plaintiff may prove intent through the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), and refined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981)." Weldon, 896 F.2d at 796.
Under this method, an employee can plead a prima facie case by asserting that he: "(1) belongs to a racial minority; (2) was qualified for the job from which he was discharged; and that (3) others not in the protected class were treated more favorably." Hicks v. Arthur, 843 F. Supp. 949, 955 (E.D. Pa. 1994). These, however, are not strict elements. A prima facie case "may be established in other ways." Id. Accordingly, the Third Circuit has explained that courts should use these elements as guidelines, not as requisites. Id. (citing EEOC v. Metal Serv. Co., 892 F.2d 341, 348 (3d Cir. 1990)).
"All the plaintiff must establish at the prima facie stage is that her discharge raised an inference of discrimination." Mills v. Ford Motor Company, 800 F.2d 635, 639 (6th Cir. 1986). This low standard permits the plaintiff an opportunity to overcome a motion to dismiss without much opposition. Id. At this stage, the plaintiff must only "identify 'actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a discriminatory criterion illegal under the Act.'" Byrd v. Roadway Exp., Inc., 687 F.2d 85, 86 (5th Cir. 1982) (citing Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576, 57 L. Ed. 2d 957, 98 S. Ct. 2943 (1978)).
Plaintiffs, however, must adhere to some requirements in their complaint. "A § 1981 plaintiff cannot satisfy the 'purposeful' criterion with 'vague and conclusory allegations' in the complaint." Hicks, 843 F. Supp. at 954 (citing Armstrong v. School Dist. of Philadelphia, 597 F. Supp. 1309, 1312 (E.D. Pa. 1984)). A specific factual basis must be pled to create the inference of discrimination. Armstrong, 597 F. Supp. at 1312-13.
Similarly, there are two elements necessary to establish a prima facie § 1983 claim. First, the "conduct complained of must be committed by a person acting under color of state law." Youse v. Carlucci, 867 F. Supp. 317, 318 (E.D. Pa. 1994) (quoting Colburn v. Upper Darby Township, 838 F.2d 663, 667 (3d Cir. 1988), cert. denied, 489 U.S. 1065, 103 L. Ed. 2d 808, 109 S. Ct. 1338 (1989)). Second, the conduct complained of must have "deprived the plaintiff of a right or privilege secured by the Constitution of the laws of the United States." Youse, No. 94-4412 at 3 (quoting Colburn, 838 F.2d at 667). "The complaint must state facts specific enough to show ...