Allen v. Schiff

• Decision Date: 14 January 2013
• Docket Number: No. 10 CV 4756 (VB).,10 CV 4756 (VB).
• Citation: 908 F.Supp.2d 451
• Parties: Lillian ALLEN, Plaintiff, v. Michael SCHIFF, individually and in his official capacity as Sullivan County Sheriff, and Sullivan County, Defendants.
• Court: U.S. District Court — Southern District of New York

908 F.Supp.2d 451

Lillian ALLEN, Plaintiff,

v.Michael SCHIFF, individually and in his official capacity as Sullivan County Sheriff, and Sullivan County, Defendants.

No. 10 CV 4756 (VB).

United States District Court,

S.D. New York.

Dec. 7, 2012.

Memorandum Denying Reconsideration Jan. 14, 2013.

Colleen Margaret Meenan, Meenan and Associates LLC, New York, NY, for Plaintiff.

Samuel S. Yasgur, County of Sullivan, Monticello, NY, for Defendants.

MEMORANDUM DECISION

BRICCETTI, District Judge:

Plaintiff Lillian Allen brings this Section 1983 civil rights action, alleging violations of the Fourth and Fourteenth Amendments against Sullivan County (“County”) and Michael Schiff, the Sullivan County Sheriff, in both his individual and official capacities. Plaintiff also brings claims under New York State Human Rights Law and the Labor Management Relations Act of 1947 (“LMRA”).

Defendants move for summary judgment on all claims in the amended complaint. (Doc. # 37.)

For the following reasons, the motion is GRANTED in part and DENIED in part.

The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367(a).

BACKGROUND

The parties have submitted briefs, statements of facts, and declarations with supporting exhibits, which reflect the following factual background.¹

The Sullivan County Sheriff's Department (“Department”), led by elected SheriffMichael Schiff, is comprised of three divisions of employees: road patrol deputies, corrections officers, and civilians. Plaintiff, an African–American female, began working as a corrections officer for the Department on October 21, 1996. As a corrections officer, she supervised inmates, maintained order and security within the facility, and transported inmates within the jail and outside it. Her duties involved preventing contraband, such as illicit drugs, from entering the jail, and she was qualified to carry a firearm.

The Civil Service Employees Association Local 853 (“CSEA”) represents the Department's corrections officers. The CSEA entered into a collective bargaining agreement with the Department (the “CSEA CBA”), which governed the Department's relationship with those officers from January 1, 2004, to December 31, 2007.

Attachment D to the CSEA CBA, entitled “Substance Abuse Testing Procedure” (“SATP”), directed the Department to implement a drug-testing program whereby corrections officers were required to produce urine to be tested for the presence of illicit drugs. Under the SATP, the Department could conduct up to twelve random tests per year. For each test, the Department was required to select the employees to be tested by using “a scientifically valid method such as a random number table or a computer-based random number generator,” so each employee had “an equal chance of being tested each time selections [were] made.” No more than twenty percent of the officers could be tested during each of the tests.

The SATP also described procedures, for, among other things, administering each drug test, establishing a specimen's chain-of-custody, and challenging a test's results. Specifically, the SATP provided that “[t]esting personnel of the same sex as the employee shall be present and observe production of the urine sample,” and “[w]henever there is a reason to believe that the employee may have altered or substituted the specimen to be provided, a second specimen shall be obtained immediately, under direct observation of the testing personnel.” (SATP ¶¶ 3.5.4, 3.5.6.) If an employee's urine tested positive for the presence of drugs, the employee was to be “automatically terminated ... without recourse to Section 75 of the Civil Service Law,” which governs removal of civil service employees and limits suspension without pay. (SATP ¶ 3.7.) A terminated employee could file a grievance with an arbitrator, at which point the Department would convert the termination to a suspension without pay. (SATP ¶ 3.7.) The parties confirmed this understanding via Side Letter of Agreement dated June 7, 2006.

The Patrolmen's Benevolent Association (“PBA”), which represents the road patrol deputies, entered into its own collective bargaining agreement with the Department (the “PBA CBA”), which governed the Department's relationship with those deputies. By a 2003 Memorandum of Agreement modifying the PBA CBA, the parties added a provision for “Random and Reasonable Suspicion Drug and Alcohol Testing” following the Department of Transportation's (“DOT”) standards. In practice, the Department conducted the testing of road patrol deputies following the procedures described in the SATP.

Sometime between February and April 2007, Sheriff Schiff modified the drug testingprocedures for both road patrol deputies and corrections officers without consent from their respective unions. Under the new procedures, Schiff directed Partners in Safety (“PS”), a county contractor, to administer a test quarterly during a shift randomly selected by a computer. Schiff directed PS to conduct a test at the Sheriff's Office and, as he stated at his deposition, to observe the collection of urine samples produced by Department employees. As Sara Napier, the PS technician, explained at her deposition, the direction to “observe” a test meant “somebody is in the room observing the urine coming from the body to the cup.” Additionally, PS was responsible for establishing the chain-of-custody procedures for the samples.

PS randomly selected the employees working “Shift B” on June 26, 2007, to be drug tested. The Department had no such shift, however. Instead, it assigned officers to work shifts from 12 AM to 8AM, 8AM to 4 PM, and 4 PM to 12 AM, which it called Platoons 1, 2, and 3, respectively.

Upon arriving to work the Platoon 2 shift on June 26, 2007, plaintiff was told to go next door to the jail for a drug test (the “Test”). There, plaintiff completed a drug questionnaire. After completing the questionnaire, plaintiff was called to see Napier. Napier wrote plaintiff's name on a zip-top bag and a plastic cup and handed the cup to plaintiff. Napier then followed plaintiff into the bathroom, where she stood in front of plaintiff as plaintiff removed her “uniform pants and undergarments and squatted and balanced herself over the toilet to urinate into the plastic cup.” Napier testified at her deposition that she observed urine passing from plaintiff's body into the cup. Afterward, Napier signed a chain-of-custody form for plaintiff's specimen and sealed the cup within the plastic bag. Plaintiff then initialed the bag, which was set aside in a cardboard box while samples were collected from other officers.

Plaintiff's urine tested positive for marijuana. As a result, on July 2, 2007, Schiff terminated her employment. At some point, after speaking with her colleagues, plaintiff learned Donald Buckner, an African–American road patrol deputy, had also failed the test and been terminated. Plaintiff's colleagues informed her that two white corrections officers had allegedly failed the Test but had not subsequently been terminated.

On July 10, 2007, pursuant to paragraph 3.7 of the SATP, the CSEA filed a grievance and demand for arbitration contesting plaintiff's termination. As a result, on August 8, 2007, Schiff converted plaintiff's termination to an indefinite suspension without pay. In a written decision dated February 12, 2009, the arbitrator found plaintiff had tested positive for marijuana, and that issues with the testing procedures did not undermine the results. He also found, however, plaintiff's mitigating circumstances i.e.,—her positive employment record and one-time use of marijuana allegedly to relieve pain from rheumatoid arthritis—called for her reinstatement.

On February 16, 2009, Schiff charged plaintiff, pursuant to Section 75, with using marijuana, testing positive for marijuana, and not reporting her illegal drug use. On May 16, 2010, after reviewing testimony given in the previous arbitration and exhibits submitted by both parties, Hearing Officer Richard A. Martinkovic recommended plaintiff's termination after finding she had possessed and used marijuana, in violation of Department rules, and had committed misconduct as a public servant. Allen was subsequently terminated.

DISCUSSION

I. Standard of Review

The Court must grant a motion for summary judgment if the pleadings, discovery materials before the court, and any affidavits show there is no genuine issue as to any material fact and it is clear the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

A dispute regarding a material fact is genuine if there is sufficient evidence that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The burden is on the moving party to demonstrate the absence of any material factual issue genuinely in dispute. Am. Int'l Grp., Inc. v. London Am. Int'l Corp., 664 F.2d 348, 351 (2d Cir.1981).

To defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. If the nonmoving party submits evidence which is “merely colorable,” legally sufficient opposition to the motion for summary judgment is not met. Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505. The mere existence of a scintilla of evidence in support of the nonmoving party's position is insufficient; there must be evidence on which the jury could reasonably find for her. See Dawson v. County of Westchester, 373 F.3d 265, 272 (2d Cir.2004).

On summary judgment, the court resolves all ambiguities and draws all permissible factual inferences in favor of the nonmoving party. See Patterson v. County of Oneida, 375 F.3d 206, 218 (2d Cir.2004). If there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party on the issue on...