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October 9, 2002


The opinion of the court was delivered by: Dalzell, Judge.


Plaintiff Anthony McClease, an African-American, has filed an amended complaint against R. R. Donnelley & Sons Company ("Donnelley")*fn1, CTC Distribution ("CTC"), Genco Corporation, and LRI, asserting federal civil rights and state tort claims arising from his employment*fn2 at Donnelley and CTC's Levittown, Pennsylvania, facility between October 2000 and April 2001, when he was discharged. Specifically, McClease brings federal claims under 42 U.S.C. § 1981 ("Section 1981"), 42 U.S.C. § 1985(3) ("Section 1985(3)"), and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. His pendent state law claims are for intentional infliction of emotional distress and tortious interference with contract.

Before us are the defendants' motions to dismiss the eight counts of McClease's amended complaint for failure to state claims upon which relief can be granted.*fn3 As will be seen, these motions require us to consider fundamental, and to date open, questions of at-will employment under federal antidiscrimination law in this Circuit.

I. Procedural History

The four defendants filed motions to dismiss the original complaint between May 16 and June 7, 2002, and these motions remain pending. On July 22, 2002, the EEOC issued Right to Sue letters covering all four defendants, id. and on August 7, 2002, McClease amended his complaint to include Title VII claims against these defendants. The defendants then filed a new set of motions to dismiss, which differ from the original motions only in that they also seek dismissal of the Title VII claims. We will therefore dismiss the original set of motions as moot and focus our attention on the motions seeking dismissal of the amended complaint.

II. Factual History

The setting for this case is a parcel distribution facility in Levittown, Pennsylvania, that defendants Donnelley and CTC, a Donnelley subsidiary, owned. For several years, defendant Genco operated the facility under contract with Donnelley. Am. Compl. ¶¶ 8,9. Genco contracted with Source One, a temporary employment agency, to provide workers for the facility. One of those workers was plaintiff Anthony McClease, who began to work at Levittown in October, 2000. Id. at ¶ 11. Around the same time, Genco hired Mike Michniewski as a manager.

The amended complaint alleges that, within a week of his hiring, Michniewski began to subject black employees to an unceasing farrago of racial epithets*fn5, openly expressed his desire to eliminate blacks from the facility, and, in fact, engineered the dismissal of many black employees. Id. at ¶¶ 12, 16-19, 83-86. The amended complaint alleges that CTC manager Mike Smith also made racist comments and colluded with Michniewski in eliminating black employees. Id. at ¶¶ 65-71. Another black employee, Glenn Holden, approached members of Donnelley, Genco, and CTC management on various occasions in late 2000 to discuss the hostile work environment at the facility. The work conditions for black employees did not improve.

On January 1, 2001, defendant LRI replaced Genco as operator of the Levittown facility. Id. at ¶ 64. Michniewski, however, stayed on as an LRI employee and, according to the complaint, continued to dismiss black workers on the basis of race. Id. at ¶ 68-69, 83-86. On several occasions in 2001, racially-charged graffiti appeared on bathroom walls and remained for several days. Id. at 56-62. Finally, McClease was discharged around April 10, 2001.

III. Discussion

A. The Section 1981 Claims

Despite the fact that many businesses in America rely on temporary staffing agencies to supply their workers, there are surprisingly few reported decisions on whether "temps" enjoy the protection of Section 1981 when the client firms engage in invidious discrimination.*fn7 There is, however, nothing inherent in the relationship between temporary workers and the firms receiving their services that insulates those firms from Section 1981 liability.

McClease claims that each defendant committed two distinct violations of Section 1981. First, the amended complaint alleges that the defendants promised McClease that he was eligible for "permanent full-time employment" under an "oral employment contract" but then deprived him of this opportunity on the basis of race. Am. Compl. ¶¶ 101-104, 127-128, 143-144, 164-165. These claims come within the scope of Section 1981, which expressly prohibits discrimination in the "making" of contracts. As the Supreme Court has observed, Section 1981 "prohibits, when based on race, the refusal to enter into a contract with someone. . . ." Patterson v. McLean Credit Union, 491 U.S. 164, 176-77 (1989); accord Allen v. Washington Hospital, 34 F. Supp.2d 958, 960 (W.D.Pa. 1999) (hospital's failure, with discriminatory motive, to provide doctor with application for staff position was actionable under Section 1981).

Second, McClease avers that the defendants terminated him on the basis of race.*fn8 Id. at ¶ 29, as incorporated by ¶¶ 88, 108, 134 and 151. Although the amended complaint does not detail the relationship between McClease and Source One, we infer from McClease's allegations concerning the harm he has suffered that the dismissal disrupted either his contractual or employment relationship with Source One. Id. at ¶¶ 107, 132, 148, 169 (alleging pecuniary losses). If the dismissal interfered with a purely contractual relationship between McClease and Source One, then these claims are actionable under Section 1981. A third party incurs Section 1981 liability for intentionally interfering, on the basis of race, with another's right to make and enforce contracts. See, e.g., Pryor v. Nat'l Collegiate ...

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