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WILLIAMS v. INTERSTATE MOTOR FREIGHT SYS.

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

MEMORANDUM ORDER

VINCENT L. BRODERICK, U.S.D.J.

 Plaintiff brings this action alleging violations of his civil rights under 42 U.S.C. ยง 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. *fn1" 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. *fn2"

 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 ...


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