UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
June 14, 1978
FERDINAND WILLIAMS, Plaintiff, against INTERSTATE MOTOR FREIGHT SYSTEMS and THE COMMISSION OF HUMAN RIGHTS OF THE CITY OF NEW YORK, Defendants.
The opinion of the court was delivered by: BRODERICK
VINCENT L. BRODERICK, U.S.D.J.
Plaintiff brings this action alleging violations of his civil rights under 42 U.S.C. § 1981 through 1988. Specifically, plaintiff charges defendant Interstate Motor Freight Systems ("Interstate") with terminating his employment on the grounds of race. He charges defendant Commission on Human Rights of the City of New York ("the Commission") with violation of his rights through its decision upholding the termination and its finding that Interstate did not terminate plaintiff's employment because of race.
Defendants Interstate and the Commission have filed motions pursuant to Rule 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief can be granted.
For the reasons hereafter stated, the complaint against the Commission is dismissed in its entirety, without prejudice to its renewal. The complaint against Interstate is dismissed as to causes of action under 42 U.S.C. Sections 1983, 1985 and 1986, without prejudice to its renewal.
The complaint against Interstate as to causes of action under 42 U.S.C. Sections 1981 and 1982 is retained, pending a hearing on the issue of qualification for employment discussed below.
Plaintiff initially worked for Interstate on a day-by-day basis. He was asked to complete an employment application form so he could thereafter be considered a permanent employee, and he did so. On November 7, 1963, plaintiff was notified of the denial of his application for permanent employment and discharged from all employment for material falsification of his employment application with respect to arrests.
The employment application form called for applicants to list any arrests or indictments and give dates and dispositions of the charges. Plaintiff listed on the form itself a 1947 arrest for robbery. The application provided only one line for such information, instructing applicants to attach an additional sheet if necessary. Plaintiff alleges that he attached an additional sheet with complete information as to five arrests and that Interstate lost the extra sheet. Interstate claims that plaintiff did not attach the additional information and so was properly discharged.
Presumably, plaintiff's allegations of racial discrimination stem from the inference that if Interstate did not have grounds to discharge him properly, it discharged him because of race.
Plaintiff challenged the dismissal on factual grounds before the New York State Department of Labor and the New Jersey State Board of Mediation. The dismissal was upheld by these bodies in decisions rendered January 28, 1974 and February 19, 1974, respectively. On April 2, 1974, plaintiff filed a charge against Interstate with the Commission, alleging that he was dismissed on account of race, in violation of the Administrative Code of the City of New York. On June 9, 1975, the Commission rendered its decision holding that there was no probable cause for plaintiff's charge against Interstate. Plaintiff filed this action on December 17, 1976, alleging violations of the Civil Rights laws, 42 U.S.C. Sections 1981 through 1988. Alleged substantive violations are charted in Sections 1981, 1982, 1983, 1985 and 1986.
Section 1983 prohibits deprivation of civil rights by any person acting under color of state law. There is no allegation that Interstate acted under color of state law and so the Section 1983 claim is dismissed as to Interstate. Plaintiff's 1983 claim against the Commission is presumably based upon the Commission's decision upholding the discharge. This conclusory argument, with no "specific allegations of fact indicating a deprivation of civil rights" does not state a claim under Section 1983. See Koch v. Yunich, 533 F.2d 80, 85 (2d Cir. 1976).
Section 1985 prohibits a conspiracy to violate one's civil rights. Plaintiff apparently argues that the Commission's decision upholding the action of Interstate equaled a conspiracy by Interstate and the Commission to violate his rights. Such baseless conclusory allegations are insufficient to state a claim under Section 1985. Id. Delay of decision by the Human Rights Commission until June 9, 1975 certainly states no claim. Powell v. Workmen's Compensation Board of State of New York, 327 F.2d 131, 137 (2d Cir. 1964).
Section 1986 provides that:
[every] person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses to do so, if such wrongful act be committed, shall be liable to the party injured... for all damages....
Plaintiff has alleged no facts indicating a violation of this section. In fact, he does not discuss this section per se, but has included it in his civil rights claim potpourri. Although I have construed the complaint in this pro se action liberally, See Haines v. Kerner, 404 U.S. 519 (1972); Birnbaum v. Trussell, 347 F.2d 86, 90 (2d Cir. 1965), I find no basis for this claim.
Section 1981 provides for equal rights under the law. Section 1982 provides for equal rights regarding property. A claim based upon either or both of these sections does not require allegations or proof of state action. Rather, these sections provide for suits against private parties. Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968); Cofield v. Goldman, Sachs & Co., 364 F.Supp. 1372 (S.D.N.Y. 1973).
Section 1981 clearly applies to discrimination in employment. Johnson v. Railway Exp. Agency, Inc., 421 U.S. 454 (1975). Section 1982 also has been held applicable to the employment field. See, e.g., Ficklin v. Sabatini, 378 F.Supp. 19 (E.D. Pa. 1974), as to federal employers.
While some courts have held that the "person" limitation of Section 1983 applies also to Section 1981 and 1982, I adhere to the view that there is no requirement that Sections 1981 and 1982 defendants must be "persons" as per Section 1983. See Skyers v. Port Authority of New York and New Jersey, 431 F.Supp. 79, 83-84 (S.D.N.Y. 1976).
The Second Circuit requirement of exhaustion of administrative remedies has been held to apply to actions based on Sections 1981 and 1982. Gonzalez v. Shanker, 533 F.2d 832 (2d Cir. 1976); Fuentes v. Roher, 519 F.2d 379 (2d Cir. 1975).Plaintiff has sufficiently exhausted administrative remedies in this case through his applications to the New York State Department of Labor, the New Jersey State Board of Mediation and the Human Rights Commission of the City of New York.Although plaintiff did not file a claim with the Equal Employment Opportunity Commission, his failure does not bar suit under Section 1981. See Percy v. Brennan, 384 F.Supp. 800, 806-07 (S.D.N.Y. 1974).
Thus, I must decide whether plaintiff has established a prima facie case under Sections 1981 and 1982 against Interstate and the Commission.
In order for plaintiff to make out a prima facie case, he must establish that 1) he belongs to a racial minority; 2) he applied and was qualified for a job for which the employer was seeking applicants; 3) despite his qualifications, he was rejected; and 4) after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications. Alvarez-Ugarte v. City of New York, 391 F.Supp. 1223, 1226 (S.D.N.Y. 1975), citing, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
It is clear that plaintiff cannot establish a prima facie case against the Commission. Plaintiff never applied for a job with the Commission. His complaint against the Commission based on Sections 1981 and 1982 is dismissed.
Plaintiff does belong to a racial minority, and he did apply for a job with Interstate. With respect to other requisite elements under Sections 1981 and 1982 there are issues of fact which foreclose a decision upon the papers before me. Interstate claims that plaintiff falsified his employment application and so was not "qualified" for the job. Plaintiff claims that he did not falsify the application but that Interstate lost the information provided. I find that a hearing is necessary on this issue.
Vincent L. Broderick, U.S.D.J.