Burka v. New York City Transit Authority, 85 Civ. 5751(RPP)

• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
• Citation: 739 F. Supp. 814
• Docket Number: 86 Civ. 6536(RPP).,No. 85 Civ. 5751(RPP),85 Civ. 5751(RPP)
• Parties: Thomas BURKA, Eugene Avent, Frank Doe, Tracey Devlin, Fitzgerald Cumberbatch, and Felix Arce, on behalf of themselves and all others similarly situated, Plaintiffs, James Salazar, Plaintiff-Intervenor, v. NEW YORK CITY TRANSIT AUTHORITY, David L. Gunn, individually and in his official capacity as President of the New York City Transit Authority, and his successors in office; Robert F. Kiley, individually and in his official capacity as Chairman of the New York City Transit Authority, and his successors in office; William I. Buchanan, III, individually and in his official capacity as Assistant Manager of Labor Relations for the New York City Transit Authority, and his successors in office; Richard Mandel, individually and in his official capacity as the Acting Medical Director of the New York City Transit Authority, and his successors in office, Defendants. John FA, Plaintiff, v. NEW YORK CITY TRANSIT AUTHORITY and David L. Gunn, individually and as President of the New York City Transit Authority, Defendants.
• Decision Date: 06 June 1990

739 F. Supp. 814

Thomas BURKA, Eugene Avent, Frank Doe, Tracey Devlin, Fitzgerald Cumberbatch, and Felix Arce, on behalf of themselves and all others similarly situated, Plaintiffs,
James Salazar, Plaintiff-Intervenor,
v.
NEW YORK CITY TRANSIT AUTHORITY, David L. Gunn, individually and in his official capacity as President of the New York City Transit Authority, and his successors in office; Robert F. Kiley, individually and in his official capacity as Chairman of the New York City Transit Authority, and his successors in office; William I. Buchanan, III, individually and in his official capacity as Assistant Manager of Labor Relations for the New York City Transit

[739 F. Supp. 815]

Authority, and his successors in office; Richard Mandel, individually and in his official capacity as the Acting Medical Director of the New York City Transit Authority, and his successors in office, Defendants.
John FA, Plaintiff,
v.
NEW YORK CITY TRANSIT AUTHORITY and David L. Gunn, individually and as President of the New York City Transit Authority, Defendants

Nos. 85 Civ. 5751(RPP), 86 Civ. 6536(RPP).

United States District Court, S.D. New York.

June 6, 1990.

739 F. Supp. 816

The Legal Action Center of the City of New York, Inc., New York City, Margaret K. Brooks, Ellen M. Weber, Edward J. Davis, for Burka plaintiff class.

Gladstein, Reif & Meginniss, New York City, James Reif, for plaintiff-intervenor James Salazar.

Brooklyn Legal Services Corp. B, Brooklyn, N.Y., Jane Greengold Stevens, for plaintiff John Fa.

New York City Transit Authority Office of Mr. Albert C. Cosenza, Gen. Counsel, Brooklyn, N.Y., Eugene Freidus, Deborah E. Collins, for defendants.

739 F. Supp. 817

OPINION AND ORDER

ROBERT P. PATTERSON, Jr., District Judge.

This is a consolidation of challenges to the urine testing procedures utilized by the New York City Transit Authority (the TA) since January 1, 1984 to test for use of marijuana.¹ The plaintiffs seek both monetary and equitable relief. During the trial of this case, the Court approved the parties' agreement to bifurcate the issues of liability and remedy. This Opinion represents only the Court's findings of fact and conclusions of law on liability.

Background

Defendant TA is a public benefit corporation created by New York Public Authorities Law to operate New York City's public transit facilities, including subway and bus systems. The individual defendants are the TA President, the TA Chairperson, the TA Medical Director and the TA's Assistant Vice President for Labor Relations. The evidence does not show, and the plaintiffs have not contended in their trial briefs, proposed findings of fact and proposed conclusions of law, that the individual defendants ever violated the Constitution without reasonable grounds for believing their actions were constitutional. Accordingly, the individual defendants have qualified immunity and cannot be held liable in their personal capacity. See Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) (qualified immunity when officials do not act maliciously and without reasonable grounds for believing their actions were constitutional); Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975).

The plaintiffs consist of representatives of three subclasses certified pursuant to Federal Rule of Civil Procedure 23, as well as the individual plaintiff John Fa, and plaintiff-intervenor James Salazar. All of the plaintiffs were either permanent or probationary employees or were applicants, who

have been or will be denied employment or a promotion, suspended, required to undergo drug counseling, terminated or otherwise penalized solely because of a marijuana positive urinalysis test.

Burka v. New York City Transit Authority, 110 F.R.D. 595, 600 (S.D.N.Y.1986) (Goettel, J.).

The three certified subclasses, as described by Judge Goettel, are:

(A) those TA employees who deny drug use but who have been or in the future will be subjected to adverse employment action based on drug-positive test results obtained pursuant to a periodic physical examination, a promotion application or an on-duty incident ("Subclass A");

(B) those TA employees who admit to off-duty drug use and who have been or in the future will be subjected to adverse employment action due to testing connected with the above activities ("Subclass B");

(C) those applicants for positions with the TA who deny drug use and who have been or in the future will be denied employment based on drug-positive test results ("Subclass C").

Burka v. New York City Transit Authority, 121 F.R.D. 215, 216 (S.D.N.Y.1988). These subclasses may assume a greater significance in the determination of remedies, but at this point it is important to note that the subclasses, including plaintiff-intervenor Salazar and plaintiff Fa, neither include nor represent either (1) applicants who admit to drug use, (2) employees tested solely due to supervisor's suspicion, or (3) employees tested because a prior test revealed evidence of drug use. Id. at 216 n. 2.

Plaintiffs represent employees from whom urine has been taken in four circumstances since January 1, 1984: (1) following an extended absence or suspension, (2) as part of certain periodic physical examinations, (3) as part of a physical examination for promotion, (4) when directed by a supervisor

739 F. Supp. 818

or manager following an "incident" that occurs while on-duty.² In addition, the plaintiffs represent applicants who deny drug use and tested positive for marijuana since October 1984.³

All plaintiffs present parallel challenges and the claims were consolidated for purposes of trial. On February 1, 1988, Judge Goettel granted summary judgment for defendants on all issues except for the due process claims of employees, and the privacy and unreasonable search and seizure claims. Burka v. New York City Transit Authority, 680 F.Supp. 590, 612 (S.D.N.Y. 1988). Those surviving claims are based upon clauses in both the federal and New York State Constitutions. The federal constitutional challenges are brought pursuant to 42 U.S.C. § 1983.⁴

A non-jury trial took place from April 14, 1989 through May 24, 1989. The parties submitted proposed findings of fact and conclusions of law on September 15, 1989. Evidence was only presented at trial of the TA's testing procedures through April 1987. The parties have each subsequently submitted generalized descriptions of the post-April 1987 testing procedures; however, these descriptions do not constitute an adequate evidentiary basis for a determination of constitutionality. Accordingly, this Opinion only determines the lawfulness of TA drug testing from January 1, 1984 to April 1987.

In October 1989, the lawyers for the certified subclasses submitted for the Court's approval a consent order to settle the due process "accuracy of testing" claims of those tested from January 1984 through September 1984 by the Laboratory for Chromatography. After a public hearing and several submissions from the parties, the Court issued an opinion approving the agreement subject to certain modifications. See Opinion and Order of January 22, 1990. The parties agreed to the modifications and the consent order was finally approved on February 1, 1990.

On March 29, 1990, the Court held a conference at which it requested additional submissions addressing the costs and effectiveness of alternative, on-site drug testing procedures. On May 10, 1990, the parties submitted a joint stipulation of facts, expert affidavits and legal memoranda discussing the availability of on-site drug testing procedures and whether the implementation of on-site testing was constitutionally mandated.

Discussion

This Court is not asked to rule on whether there is a substantive due process right to ingest marijuana. Plaintiffs do not directly challenge the current unlawful status of marijuana use under state and federal law. Nor do plaintiffs call into question the rights of the TA either to discipline an employee who ingests marijuana during his spare time or to refuse to hire an applicant who does the same. See National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 1398, 103 L.Ed.2d 685 (1989) (Scalia, J., dissenting) (government "employees can constitutionally be denied promotion, or even be dismissed, for a single instance of unlawful drug use, at home or at work").

Instead, these actions are directed at the procedures utilized by the TA to determine whether plaintiffs were contemporaneously using marijuana. In particular, plaintiffs argue that the TA conducted drug testing in a manner which (1) constituted unlawful searches and seizures and (2) resulted in deprivations of interests in property and liberty without due process of law. The search and seizure claims focus on the reasonableness of the decision to take urine, while the due process claims focus on

739 F. Supp. 819

whether adequate procedural safeguards accompanied the determination that, based on the urine sample, one is a user of marijuana

For purposes of determining plaintiffs' rights to sue under Section 1983, as well as the due process clauses and the search and seizure clauses of the state and federal constitutions, the acts of the TA are attributable to a local government entity. See West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) ("under color of state law" requirement is conterminous with state action doctrine of Fourteenth Amendment). New York statute authorizes the TA to perform "an essential governmental function." New York Public Authorities Law §§ 1201, 1207-g. Accordingly, the TA acts as a local arm of government and "under color of" state law. See, e.g., New York City Transit Authority v. Beazer, 440 U.S. 568, 587, 99 S.Ct. 1355, 1366, 59 L.Ed.2d 587 (1979) (TA is "a governmental unit" for purposes of Fourteenth Amendment analysis); Kissinger v. New York City Transit Authority, 274 F.Supp. 438, 441 (S.D.N.Y.1967) (TA...