The opinion of the court was delivered by: J. CURTIS JOYNER
The facts of the case, as recited in the complaint, are as follows. The plaintiff is Charles Sterling, an African-American man and a former employee of the defendant, the Southeastern Pennsylvania Transportation Authority ("SEPTA"). Hired in 1972, Mr. Sterling worked as a bus operator during the time period pertinent to this lawsuit. Pursuant to the relevant collective bargaining agreement between SEPTA and Transport Workers Union, Local 234, SEPTA is bound by the Integrated Program of Education, Assistance, and Testing for Intoxicants and Control of Substances (the "Integrated Program"), as modified by Order of this Court. See Transport Workers' Union, Local 234 v. SEPTA, 678 F. Supp. 543, 552-53 (E.D. Pa.), aff'd, 863 F.2d 1110 (3d Cir. 1988); vacated and remanded, 492 U.S. 902, 109 S. Ct. 3208, 106 L. Ed. 2d 560 (1989); aff'd in part, vacated and remanded in part on other grounds, 884 F.2d 709 (3d Cir. 1989). The Integrated Program sets forth the procedures governing the random drug testing of SEPTA employees. Thus, an employee who tests positive for an illegal drug as a result of a random drug test may request that an independent laboratory retest the urine sample. The Integrated Program further provides that the second test of the urine specimen must be quantified.
In October of 1993, Mr. Sterling was selected for a random drug test, and tested positive for an illegal drug. Accordingly, he was placed in the Integrated Program. Nine months later, Mr. Sterling was administered an unannounced test and again tested positive. He requested a retest of the same urine specimen soon after he was informed of the result of the second test, and the result of the retest was also positive. In violation of the terms of the Integrated Program, however, SEPTA failed to obtain quantitative values for the retest. At SEPTA's request, Mr. Sterling subsequently submitted his resignation, thus terminating his employment.
Mr. Sterling has now filed the instant complaint, in which he alleges that "SEPTA's failure to obtain a second test of the same urine sample with quantitative values substantially violated plaintiff's rights under the Integrated Program." Compl. P 19. The complaint contains five counts, three of which are at issue here.
In the first, Mr. Sterling alleges that SEPTA's actions constitute intentional racial discrimination in violation of 42 U.S.C. § 1981. In Counts II and III, both brought under 42 U.S.C. § 1983, Mr. Sterling claims that SEPTA discharged him on account of his race and gender in violation of his rights to equal protection and due process under the Federal Constitution. We turn now to the merits of the parties' arguments.
A. Standard for a Rule 12(b)(6) Motion
A motion to dismiss filed pursuant to Fed. R. Civ. P. 12(b)(6) is the proper means by which a defendant challenges the legal sufficiency of a complaint. Jones v. Hinton, 847 F. Supp. 41, 42 (E.D. Pa. 1994). To survive a motion to dismiss, the plaintiff must set forth facts, and not mere conclusions, which state a claim as a matter of law. Taha v. INS, 828 F. Supp. 362, 364 (E.D. Pa. 1993). The Court must accept as true all of the factual averments in the complaint and extend to 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). Thus, a complaint is properly dismissed only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim which would entitle him to relief. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988).
B. Counts I and II: Employment Discrimination