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November 7, 1984


The opinion of the court was delivered by: SWEET


Defendants New York Public Library System, Otillia Pearson, Priscilla Southern, Samuel Memberg, Irene Percoli, Antonio Medina, Edwin Holgrem, David Bauer, and Robert Goldstein (collectively, "the Library") have moved for an order pursuant to Rule 12(b)(6) dismissing plaintiff Prince Gilliard's ("Gilliard") claims under Title VII and 42 U.S.C. §§ 1981, 1983 and 1985 and his pendent state claims of negligence and intentional infliction of emotional distress, and for an order pursuant to Rule 56(b) granting summary judgment in favor of the Library as to Gilliard's contractual claims. For the reasons stated below, the Library's motion for dismissal will be granted in part and denied in part, and the motion for summary judgment will be granted.


 The allegations raised by Gilliard in this case stem from the Library's dissolution of its Computer Input Division ("C.I.D.") and the subsequent demotion or dismissal of C.I.D. employees. Gilliard, a black male employed by the division, was informed on June 23, 1980 that C.I.D. would be dissolved effective June 30, 1981 and that all C.I.D. employees would be terminated that that time unless they found other library jobs. C.I.D. employees were also informed that neither the Library nor Local 1930, the union representing the C.I.D. division ("the Union"), would be responsible for finding them employment and that they would be given no preferential treatment when applying for other library jobs. The Union subsequently filed a grievance against the Library on November 26, 1980, alleging that the dissolution of the unit breached the Union's collective bargaining agreement ("the agreement") with the Library. In accordance with the agreement, a binding arbitration hearing was held in June, 1981 during which the grievance was withdrawn and a settlement reached in which the C.I.D. employees were promised preferential treatment in obtaining new Library jobs. The arbitrator maintained jurisdiction over any settlement issues until October 1, 1981.

 On May 26, 1981, Gilliard and other C.I.D. employees were informed that they would be terminated on June 30, 1981 unless they accepted lower paying positions. On June 30, 1981 the C.I.D. division of the Library was dissolved. Having been refused employment with the Library's newly created computer unit, Gilliard assumed a lower position in another division of the Library with a consequent reduction in salary. Shortly before April 20, 1981, the only white employee of C.I.D. was offered and accepted a lateral transfer. On March 24, 1982 Gilliard filed a complaint with the EEOC alleging that his demotion was a result of racially based discrimination. Gilliard subsequently commenced this action on behalf of himself and all other similarly situated minority employees of C.I.D. on Fe February 14, 1984. He charges the Library with the intentional infliction of emotional distress, negligence, interference with economic relations, breach of contract, and interferences with Gilliard's contractual relationship. In additon, it is assumed by Gilliard's references to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1981, 1983 and 1985 in the "jurisdiction" section of his complaint that he also asserts causes of action pursuant to those statutes based on both the dissolution of C.I.D. and his subsequent demotion and on the Library's alleged pattern and practice of discrimination against Gilliard and other minority employees. Such federal claims, however, are not properly stated and numbered.

 Asserting that all Gilliard's federal claims are time-barred, the Library has now moved for an order pursuant to Rule 12(b)(6) dismissing Gilliard's claims under Title VII and 42 U.S.C. §§ 1981, 1983 and 1985 and the state law claims of negligence and intentional infliction of emotional distress and for an order pursuant to Rule 56(b) granting summary judgment in favor of the Library as to Gilliard's contractual claims.

 The primary issue presented by the motions is whether Gilliard's federal causes of action are barred by the applicable statutes of limitations, a decision which may also determine the status of the pendent state claims. United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966). The resolution of this issue rests first on a determination of the applicable statutes, and more importantly, on a determination of the date on which the specific causes of action accrued.

 The Federal Statutory Claims

 Preliminarily, we note that Gilliard's § 1983 claims must be dismissed because the Library's employment decisions do not satisfy the "state action" requirements of section 1983. A prerequisite for any relief under § 1983 is a showing that the defendant has acted under color of state law. Graseck v. Mauceri, 582 F.2d 203, (2d Cir.), cert. denied, 439 U.S. 1129, 99 S. Ct. 1048, 59 L. Ed. 2d 91 (1978).The test of whether or not a private group's actions constitute state action is whether there is "a sufficiently close nexus between the state and the challenged action of the entity so that the action of the latter may be fairly treated as that of the state itself." Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974). In order to claim that a private employers decision should be treated as state action a plaintiff must prove that the state "has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must be in law deemed that of the State." Blum v. Yaretsky, 457 U.S. 991, 1004, 73 L. Ed. 2d 534, 102 S. Ct. 2777 (1982).The two major factors that courts rely upon in making this decision are the extent to which the private group performs a function that "has been traditionally the exclusive prerogative of the state." Rendell-Baker v. Kohn, 457 U.S. 830, 842, 73 L. Ed. 2d 418, 102 S. Ct. 2764, and the degree to which it receives state funding. Id.

 Gilliard's only attempt to meet this required showing of "state action" is his bare allegation in the complaint that "[u]pon information and belief defendant New York Public Library ("NYPL") is a quasi-governmental entity supported by funds from the City and State of New York" (Complaint, P3). His papers on this motion provide no further support for this allegation. In New York Public Library v. PERB, 45 A.D.2d 271, 274, 357 N.Y.S.2d 522, 525 (1st Dep't 1974), aff'd, 37 N.Y.2d 752, 374 N.Y.S.2d 625, 337 N.E.2d 136 (1975), the court held that the Library was not a government or public employer within the meaning of the Taylor act, Civil Service law § 201.After carefully reviewing both the historical background and the manner of operation of the Library, the court noted:

 [N]ot only is the Library a separate and distinct body from the City, but by contract it (the Library) retains general Control over the direction and management of its own affairs. And more specificaly, by contract and in practice, the hire, discharge and promotion of the employees, as well as the supervision of their daily and overall duties are vested in the Library. . . . There is no proof in the record that the City interferes in these matters or has the power to do so.

 Id. at 528. Cf. LaMarca v. Brooklyn Public Library, 256 A.D. 954, 10 N.Y.S.2d 129 (2d Dep't 1939); Brooklyn Public Library v. Craig, 201 A.D. 722, 194 N.Y.S. 715 (1932). Gilliard's bare assertion that the Library is a "quasi-governmental entity" is not enough to overcome a judicial determination of the Library's independence from the State. Gilliard's assertion that the Library is supported by government funds also fails to meet the requirement of a showing of state action. As the Supreme Court has noted, the mere receipt of public funds by an entity "does not make [that entities"] discharge decisions acts of the State." Rendell-Baker v. Kohn, supra, 457 U.S. at 840. While state funding may be a factor in determining if a private group's action were taken under color of state law, state funding alone does not transform employment decisions into "state action" for purposes of § 1983. Id.

 In addition, Gilliard's § 1985 claims of conspiracy must be dismissed for failure to state a cause of action. Section 1985 requires a conspiracy between "two or more persons," a requirement that is not met where a conspiracy alleged "is essentially a single act by a single corporation acting exclusively through its own directors, officers and employees, each acting within the scope of his employment." Herrmann v. Moore, 576 F.2d 453, 457 (2d Cir.), cert. denied, 439 U.S. 1003, 58 L. Ed. 2d 679, 99 S. Ct. 613 (1978); see Girard v. 94th St. & 5th Ave. Corp., 530 F.2d 66, 70 (2d Cir.), cert. denied, 425 U.S. 974, 96 S. Ct. 2173, 48 L. Ed. 2d 798 (1976).In this case, Gilliard has charged that "two or more of the defendants" (Complaint at 2), all of whom are employees of the Library (Complaint, P54), conspired to deprive him of his rights. Because he has failed to allege that these employees acted other than in the normal course of their duties or were "motivated by an independent personal stake in achieving the corporation's objective," Girard v. 94th St. & Fifth Ave. Corp., supra, 530 F.2d at 72, Gilliard's claim of conspiracy among the defendants fails to meet the requirements of § 1985.

 Gilliard's complaint also alleges the existence of a conspiracy within § 1985 between the Library and the Union (Complaint, PP68, 79). As this Circuit has repeatedly held, however, when conspiracy is alleged "complaints containing only vague or conclusory allegations will not survive a motion to dismiss." Legal Aid Society v. Association of Legal Aid Attorneys, 554 F. Supp. 758, 766 (S.D.N.Y. 1982); see Angola v. Civiletti, 666 F.2d 1, 4 92d Cir. 1971); Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir. 1977). Gilliard has failed to plead with particularity the conspiracy alleged between the Library and the Union. His conclusory allegations are insufficient to meet "the somewhat stringent pleading requirements of this Circuit" when conspiracy is alleged. 423 South Salina St. v. City of Syracuse, 566 F. Supp. 484, 493 (N.D.N.Y. 1983); see also Legal Aid Society v. Association of Legal Aid Attorneys, supra, 554 F. Supp. at 766.

 Because Gilliard's complaint offers little guidance, we must also delineate the precise federal causes of action brought pursuant to Title VII and § 1981. Gilliard plainly claims that the Library's decision to dissolve C.I.D. and to terminate his employment with the unit was discriminatory. The complaint also appears to allege another cause of action arising out of the Library's treatment of Gilliard relative to non-minority employees after it notified him of its decision as to C.I.D. Finally, Gilliard alleges that the Library has engaged in a general pattern and practice of discrimination in areas ...

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