The opinion of the court was delivered by: Kevin Thomas Duffy, District Judge:
Plaintiff Alden T. Whitfield, hired by defendant Forest
Electric Corporation ("Forest
Electric") to be its President's chauffeur, claims that he was
discriminated against on the basis of his race. On April 5,
1990, Whitfield filed charges with the Equal Employment
Opportunity Commission ("EEOC") and the New York State Division
of Human Rights ("NYSDHR"). The EEOC issued Whitfield a right
to sue letter on July 6, 1990, whereupon he commenced this
action pro se. With the help of the court's pro se office,
he brought claims for violations of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-5 and 2000e-5(g) against
defendant Forest Electric Corporation ("Forest Electric"). At
the first status conference held before me on December 7, 1990,
counsel appeared on behalf of Whitfield and I granted him leave
to serve an amended complaint at that time. Pursuant to leave
granted by me, Whitfield served an amended complaint, dropping
the Title VII/ 2000e-5 claim. The amended complaint seeks
general and punitive damages in addition to attorney's fees
(42 U.S.C. § 1988), claiming the following: (1) discrimination,
42 U.S.C. § 1981; (2) conspiracy and neglect or refusal to prevent
conspiracy to violate 42 U.S.C. § 1981, 1985; (3) breach of
contract, fraud, and misrepresentation; (4) intentional
infliction of emotional distress; and (5) interference with
prospective contractual relations. This amended complaint
apparently dropped Whitfield's original cause of action arising
under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-5
(1982).*fn1 Forest Electric now moves pursuant to
Fed.R.Civ.P. 9(b) and 12(b)(6) to dismiss the amended complaint
for failure to plead fraud with particularity and/or to state a
viable legal claim.
Whitfield was hired as a chauffeur by Forest Electric on April
20, 1986 to drive Martin Hirsch, the company's President.
Before Whitfield commenced his job, Hirsch purportedly stated
that if his family were properly taken care of "he [Whitfield]
would have a job for life or as long as he wanted it." Amended
Complaint ¶ 46. On April 10, 1987, Whitfield requested a salary
increase, from nine to fifteen dollars per hour and time and a
half for work performed in excess of sixty hours per week.
Shortly thereafter Whitfield was told by Hirsch that "he does
not like smart asses." Complaint ¶ ¶ 11-13. From that point on,
Whitfield claims that Hirsch spoke "in a loud, sarcastic voice
whenever he addressed plaintiff." Complaint ¶ 15.
According to Whitfield, while eating his lunch in a restaurant
with another chauffeur, Hirsch walked over and stated: "he did
not know that a Black man was allowed to eat in that
restaurant." Complaint ¶ 16. Whitfield further alleges that
"[a]fter publicly degrading the plaintiff in Niles Restaurant,
Martin Hirsch began calling the plaintiff a `Smatza' [sic],
which is a Yiddish term for `nigger.'" Complaint ¶ 19.
According to Whitfield, the harassment continued unabated.
Whitfield next claims that Hirsch called him "[a] mother
fucking liar and a lying bastard and a no good nigger."
Complaint ¶ 23. On March 9, 1987, Whitfield was issued a
medical disability certificate purportedly due to the stress he
was suffering at work; he remained out of work until March 26.
Upon his return, Whitfield learned that his position as
Hirsch's chauffeur was terminated. Complaint ¶ 28.
Whitfield alleges that his cause of action for discrimination
is cognizable pursuant to 42 U.S.C. § 1981 because he was
wrongfully terminated from his position as Hirsch's chauffeur
as indicated by numerous derogatory statements attributable to
Hirsch, referencing Whitfield's color and race, which
immediately preceded termination without proper notice. Section
1981, in pertinent part, states:
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 be subject to like punishment,
pains, penalties, taxes, licenses, and exactions of every
kind, and to no other.
"The most obvious feature of the provision is the restriction
of its scope to forbidding discrimination in the `mak[ing] and
enforce[ment]' of contracts alone." Patterson v. McLean Credit
Union, 491 U.S. 164, 176, 109 S.Ct. 2363, 2372, 105 L.Ed.2d
132 (1988). Section 1981 "cannot be construed as a general
proscription of racial discrimination in all aspects of
contract relations, for it expressly prohibits discrimination
only in the making and enforcement of contracts." Id.
(emphasis supplied). With regard to the "making" of a contract,
a claim is not cognizable under § 1981 for problems occurring
after a contract is entered into and arising from the
conditions of continuing employment. Id.
Moreover, the right to enter into a contract is not inclusive,
"as a matter of either logic or semantics," of the employer's
conduct after the contract was entered. Whitfield was an
at-will employee who worked for Hirsch in excess of one year
before Hirsch allegedly commenced to behave in a fashion
discriminatory to Whitfield. Thus, these allegations of
discrimination, which arose after the contract was entered, are
inapplicable and cannot fulfill the pleading requirements for a
1981 cause of action.
Similarly, the right to enforce a contract does not "extend
beyond conduct by an employer which impairs an employee's
ability to enforce through legal process his or her established
contract rights." Patterson v. McLean Credit Union, 491 U.S.
at 177-78, 109 S.Ct. at 2373. It was never alleged that Hirsch
interfered in any way with Whitfield's right to enforce his
contract by legal means. Whitfield's allegation, "on
information and belief," that Hirsch "offered plaintiff a bribe
. . . [in order to get Whitfield to exempt] Forest Electric
from any future litigation" is illusory and cannot constitute
an impairment of Whitfield's rights to legal process. It does
not rise to the level of, and cannot on that sole basis
predicate an impairment to enforce a 1981 contract right.
"Interpreting § 1981 to cover postformation conduct . . . is
not only inconsistent with that statute's limitation to the
making and enforcement of contacts, but would also undermine
the detailed and well-crafted procedures for conciliation and
resolution of Title VII claims." Patterson v. McLean Credit
Union, 491 U.S. at 180, 109 S.Ct. at 2374. In essence,
Whitfield's allegations arise solely from conditions of his
employment, and reprehensible though it may be, is not
actionable under § 1981. See id. (claim is not actionable
under § 1981 even where plaintiff can prove that she was
subjected to a racially prejudicial work environment created
and/or condoned by defendant).
Whitfield next claims that Hirsch was part of a conspiracy and
neglect or refusal to prevent a conspiracy in violation of
42 U.S.C. § 1985. Specifically, Whitfield alleges that "the
defendant and each of its employees, servants and agents,
failed and/or refused to prevent the wrongs conspired against
him." Section 1985, in pertinent part, states:
If two or more persons in any State or Territory conspire . . .
for the purpose of depriving, whether directly or indirectly,
any person or class of persons of the equal protection of the
laws, or of equal privileges and immunities under the laws or
for the purpose of preventing or hindering the constituted
authorities of any State or Territory from giving or securing
to all persons within such State or Territory the equal