147 F.3d 169 (2nd Cir. 1998), 97-9039, Drake v. Delta Air Lines, Inc.

Docket Nº:Docket No. 97-9039.
Citation:147 F.3d 169
Party Name:Richard W. DRAKE, Plaintiff-Appellant, v. DELTA AIR LINES, INC., Defendant-Appellee.
Case Date:June 17, 1998
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 169

147 F.3d 169 (2nd Cir. 1998)

Richard W. DRAKE, Plaintiff-Appellant,


DELTA AIR LINES, INC., Defendant-Appellee.

Docket No. 97-9039.

United States Court of Appeals, Second Circuit

June 17, 1998

Argued May 14, 1998.

Page 170

Richard W. Drake, pro se, Manassas, Vermont.

Ira G. Rosenstein, Orrick, Herrington & Sutcliffe, New York City (Michael Delikat, Robert S. Whitman, Orrick, Herrington & Sutcliffe; Thomas J. Munger, Andrew J. Fisher, Delta Air Lines, Inc., on the brief), for Defendant-Appellee.

Before: FEINBERG, CARDAMONE, and CABRANES, Circuit Judges.


Plaintiff-appellant Richard W. Drake appeals from the judgment of the United States District Court for the Eastern District of New York (Frederic Block, Judge ) of April 26, 1996 dismissing for failure to state a claim those portions of his complaint alleging violations by defendant-appellee Delta Air Lines, Inc. ("Delta") of Federal Aviation Administration ("FAA") regulations and of Drake's Fourth Amendment rights, see Drake v. Delta Airlines, Inc., 923 F.Supp. 387 (E.D.N.Y.1996) ("Drake I "), and from the July 28, 1997 final judgment of that same court dismissing for failure to state a claim his amended complaint alleging wrongful termination and procedural due process violations in connection with his termination, see Drake v. Delta Air Lines, Inc., 1997 WL 397498 (E.D.N.Y. July 10, 1997) ("Drake II "). Substantially for the reasons stated in the opinions below, we affirm the judgments of the district court in all respects but one; we vacate the judgment of the district court with respect to Drake's Fourth Amendment claims (which, construed liberally, contain allegations overlooked by the district court) and remand for further proceedings.


Taking the facts alleged in plaintiff's pleadings 1 as true, as we must in reviewing a dismissal for failure to state a claim under Fed.R.Civ.P. 12(b)(6), see Murray v. Miner, 74 F.3d 402, 403-04 (2d Cir.1996), Drake claims the following: He was employed by Delta as a flight attendant beginning in 1991. He was tested for drugs four times between April 1993 and October 28, 1993. On October 28, 1993, Drake was required to provide a urine sample for a drug test. On November 10, 1993, he was told that there was "something wrong with his [October 28] sample," but was never supplied with written results of the drug test. He was removed from flight status and suspended on November 28, 1993, and one month later he was asked to resign; when he refused to do so, his employment was terminated. Drake was informed in February 1994 that a Delta administrative hearing (in which he had not been permitted to personally participate) had confirmed his termination.

With respect to the October 28, 1993 drug test, the first laboratory to which Drake's urine sample was sent found the sample to be...

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