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.
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.
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.
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 ...