The opinion of the court was delivered by: Pollak, J.
Plaintiff Fatima Mulholland alleges that her former employer, Classic Management Inc. ("CMI"), and three CMI managers (collectively, "defendants") fired her after she "was observed practicing her Muslim religion," Compl. ¶ 3, thereby violating (1) 42 U.S.C. § 1981, (2) Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., (3) the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. § 951 et seq., and (4) Pennsylvania wrongful termination law. The case is now before this court on defendants' motion to dismiss the complaint (docket no. 10), which plaintiff has opposed (docket no. 12).*fn1
Defendants assert that (1) plaintiff's 42 U.S.C. § 1981 claim is not cognizable because it is based on national origin, not race; (2) plaintiff failed to exhaust her administrative remedies as to the Title VII and PHRA claims; and (3) the wrongful termination count is both time-barred and preempted. Plaintiff concedes that her wrongful termination claim (listed as "Count VI" in the complaint*fn2 ) is subject to dismissal, see Resp. in Opp'n at 8, and that count will accordingly be dismissed. I consider defendants' remaining arguments in turn.*fn3
In order to survive a motion to dismiss for failure to state a claim, a complaint need only include "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint "requires more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action," "detailed factual allegations" are unnecessary. Twombly, 540 U.S. at 555.
Rather, plaintiffs must simply include enough facts to "state a claim to relief that is plausible on its face." Id. at 570.
In reviewing a 12(b)(6) motion, "the facts alleged [in the complaint] must be taken as true and a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). "[R]easonable inferences" are also drawn in favor of the plaintiff, id., but this court need not "'accept as true a legal conclusion couched as a factual allegation,'" Twombly, 550 U.S. at 555.
Plaintiff's section 1981 claim alleges that the defendants "treat . . . employees [unequally] because of their gender, religion, and first amendment activities," and "deprived Plaintiff of employment and employment opportunity and equal protection of law by firing her for her religion and national origin." Compl. ¶ 22. The complaint further alleges that CMI "has a policy[,] practice[,] or custom . . . [to] deny and/or chill . . . [the] constitutional rights of its employees or persons of the Muslim faith or from Morocco." Id. ¶ 23. Defendants argue that this count "is deficient as a matter of law because Section 1981 claims cannot be based on national origin or religion," but only "on race." Mem. in Supp., at 8.
42 U.S.C. § 1981 provides in pertinent part as follows:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
This language does not only protect plaintiffs who are discriminated against based on their race, as that term is understood today; rather, the Supreme Court has held that "Congress intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics." St. Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987). Thus, if a plaintiff "can prove that [she] was subjected to intentional discrimination based on the fact that [she] was born [into a particular ethnic group], rather than solely on the place or nation of [her] origin, or [her] religion, [she] will have made out a case under § 1981." Id. Justice Brennan's Al-Khazraji concurrence stressed that "the line between discrimination based on ancestry or ethnic characteristics . . . and discrimination based on place or nation of . . . origin . . . is not a bright one." Id. at 614 (Brennan, J., concurring) (internal quotation marks and citations omitted). "I therefore," Justice Brennan concluded, "read the Court's opinion to state only that discrimination based on birthplace alone is insufficient to state a claim under § 1981." Id. (emphasis in original).
The Third Circuit has suggested -- but not squarely ruled -- that a claim that "rest[s] solely on [the plaintiff's] national origin . . . would not be sufficient for a § 1981 claim under Al-Khazraji." Bennun v. Rutgers State Univ., 941 F.2d 154, 172 (3d Cir. 1991).
District courts in this circuit have, meanwhile, hewed closely to the distinction suggested by Justice Brennan's concurrence, dismissing § 1981 claims based (1) solely on national origin, or (2) on national origin and other non-protected characteristics, while permitting claims based on national origin and race, ethnicity, or ancestry to proceed. See, e.g., Youssef v. Anvil Int'l, 595 F. Supp. 2d 547, 558-59 (E.D. Pa. 2009); Beaubrun v. Inter Cultural Family, No. 05-cv-6688, 2006 WL 1997371, at *4-*5 (E.D. Pa. July 13, 2006) (dismissing a national origin claim and citing other cases); Wallace v. Graphic Mgmt. Assocs., Inc., No. 04-cv-819, 2005 WL 527112, at *3 ...