Burka v. New York City Transit Authority

• Decision Date: 01 February 1988
• Docket Number: 86 Civ. 6535 (GLG) and 86 Civ. 7427 (GLG).,No. 85 Civ. 5751 (GLG),85 Civ. 5751 (GLG)
• Citation: Burka v. New York City Transit Authority, 680 F.Supp. 590 (S.D. N.Y. 1988)
• Parties: Thomas BURKA, Eugene Avent, Frank Doe, Tracey Devlin and Fitzgerald Cumberbatch, Plaintiffs, James Salazar, Plaintiff-Intervenor, v. NEW YORK CITY TRANSIT AUTHORITY, et al., Defendants. John FA, Plaintiff, v. NEW YORK CITY TRANSIT AUTHORITY and David L. Gunn, individually and in his official capacity as President of the New York City Transit Authority, Defendants. TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO, LOCAL 100, and Sonny Hall, as President of Transport Workers Union of America, AFL-CIO, Local 100, Plaintiffs, v. NEW YORK CITY TRANSIT AUTHORITY, Manhattan and Bronx Surface Transit Operating Authority and David Gunn, as President, New York City Transit Authority, Defendants.
• Court: U.S. District Court — Southern District of New York

680 F. Supp. 590

Thomas BURKA, Eugene Avent, Frank Doe, Tracey Devlin and Fitzgerald Cumberbatch, Plaintiffs, James Salazar, Plaintiff-Intervenor, v. NEW YORK CITY TRANSIT AUTHORITY, et al., Defendants.

John FA, Plaintiff, v. NEW YORK CITY TRANSIT AUTHORITY and David L. Gunn, individually and in his official capacity as President of the New York City Transit Authority, Defendants.

TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO, LOCAL 100, and Sonny Hall, as President of Transport Workers Union of America, AFL-CIO, Local 100, Plaintiffs, v. NEW YORK CITY TRANSIT AUTHORITY, Manhattan and Bronx Surface Transit Operating Authority and David Gunn, as President, New York City Transit Authority, Defendants.

Nos. 85 Civ. 5751 (GLG), 86 Civ. 6535 (GLG) and 86 Civ. 7427 (GLG).

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

February 1, 1988.

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Legal Action Center of the City of New York, Inc., New York City, for plaintiffs Thomas Burka, Eugene Avent, Frank Doe, Tracey Devlin, and Fitzgerald Cumberbatch; Margaret K. Brooks, Noran J. Camp, Catherine H. O'Neill and Ellen M. Weber, of counsel.

Gladstein, Reif & Meginniss, Brooklyn, N.Y., for plaintiff-intervenor James Salazar; James Reif, of counsel.

Albert C. Cosenza, Vice President and Gen. Counsel New York City Transit Authority, Brooklyn, N.Y., for defendants, New York City Transit Authority, et al.; Eugene Freidus and Gloria E. Colon, of counsel.

South Brooklyn Legal Services, Brooklyn, N.Y. (Jane Greengold Stevens, of counsel), Kramer, Levin, Nessen, Kamin & Frankel, New York City (Stephen N. Young, of counsel), for plaintiff John Fa.

O'Donnell & Schwartz, New York City, for plaintiffs Transport Workers Union of America, AFL-CIO, Local 100, and Sonny Hall, as President of Transport Workers Union of America, AFL-CIO, Local 100; David B. Rosen, of counsel.

OPINION

GOETTEL, District Judge:

The problem of drug abuse in the United States has long ceased to be a matter of individual concern. It has become a serious problem in the workplace. It has been estimated that the total economic loss attributable to drug and alcohol abuse may be as much as one hundred billion dollars a year, and that figure does not account for social costs.¹ Not surprisingly, approximately one-third of all United States businesses and governmental entities have resorted to employee drug-testing programs.² The percentages vary according to industry, but ninety-one percent of the public utilities and eighty-one percent of the transportation industries employ testing.³

The need for such tests with respect to transportation workers is supported by a number of sources. The chairman of the National Transportation Safety Board suggested last year that one-half of all rapid transit accidents investigated in recent years have been due to drugs, although no actual statistics were cited.⁴ Federal Railroad Administrator John Riley has said that traces of drugs or alcohol were found in 5% of United States railroad employees tested following train accidents during 1986.⁵ Public interest in this problem was heightened by the January 4, 1987 collision near Baltimore involving a Conrail freight locomotive and an Amtrak passenger train which killed sixteen people. Tests indicated traces of marijuana in the blood and urine of the engineer and a crewman on the Conrail train.⁶

The testing of transportation workers for drugs has produced vigorous opposition from some of the employees and their unions, oftentimes resulting in constitutional and other challenges. We have before us three such actions brought by and on behalf of present, former, and prospective employees of the defendant New York City Transit Authority (the "TA") challenging that agency's drug-testing policy.⁷ We are now asked to rule on various motions and crossmotions for dismissal or summary judgment in these related cases.

I. FACTS

The TA policy compels employees and job applicants to submit to urinalysis tests for detection of narcotics, including marijuana, at various times and under a number of circumstances during their employment with the TA. The TA originally tested a single urine sample, employing a procedure known as enzyme multiplied immunoassay technique ("EMIT"). For the last three years, it has been taking two samples and using a second test known as bonded phase absorption with thin layer chromatography.⁸

TA employees perform a wide variety of jobs, and include bus and train operators, mechanics, conductors, subway tower operators, maintenance and cleaning people, and numerous clerical employees. All employees are required to submit to drug testing: (1) as part of routine, periodic physical examinations; (2) following extended absence or suspension; (3) during physical examinations consequent to promotion; (4) following on-duty incidents; (5) at any time if a controlled substance had been identified in a prior test; or (6) upon suspicion of a supervisor that an employee is impaired as a result of drug use. Penalties vary with the employee's length of service and service record, but employees, such as plaintiffs, whose tests revealed marijuana use could be dismissed, suspended, or required to undergo drug counselling. A refusal to submit to testing could result in immediate dismissal, or, in the case of job applicants, ineligibility for hire.

As public employees, it might be thought that the plaintiffs have reduced expectations concerning their rights to privacy as compared to the concern for the public safety. Ironically, however, because they are public employees, the parties performing the tests are governmental entities and the fourth amendment, made applicable to the states through the fourteenth amendment, protects citizens from unreasonable governmental intrusions. Consequently, it can be argued that procedures that might be allowable by a private employer may not be constitutionally permissible if done by a public employer.⁹

The several actions before us center around many of the same essential considerations, principally the issue of whether drug testing constitutes an unreasonable search or seizure under either the United States or the New York Constitution. Nonetheless, there are certain distinctions which, along with the disposition of the various motions, should be noted at the outset. Generally, the defendants have moved to dismiss virtually all claims pursuant to Fed.R.Civ.P. 12(b). All plaintiffs have moved for partial summary judgment on the primary search-and-seizure claim, as well as for summary judgment on certain of their individual claims.

The Burka Action¹⁰

The Burka plaintiffs seek to represent five proposed subclasses of employees who have been or could be subjected to adverse employment action based on drug-test results. The plaintiffs seek to challenge all instances of drug testing except those when a supervisor has reason to believe the employee is impaired because of drug use or when an employee previously has tested positive for drug use.

The Burka plaintiffs raise claims under section 504 of the Federal Rehabilitation Act of 1973, along with claims of violations of due process, equal protection, and unreasonable search and seizure under both the Federal and State constitutions. In addition, they claim a violation of their Federal constitutional right to privacy, and assert pendent state claims under N.Y.Exec.Law § 296(1)(a) & (d) (McKinney 1982) and N.Y. Civ.Serv.Law § 50(4) (McKinney 1983). These plaintiffs move for summary judgment on two of their claims: (1) unreasonable search and seizure; and (2) a portion of their due process claim. The plaintiffs allege a violation of their right to be free from unreasonable search and seizure in that the TA's urinalysis testing is not based on probable cause or even reasonable suspicion of drug abuse, does not establish whether an employee is impaired by the alleged marijuana use, and bears no rational relationship to the TA's interest in public safety.

The defendants move to dismiss the entire Burka action on various grounds. They argue that the plaintiffs' claim under the Rehabilitation Act should be dismissed because the plaintiffs are not "handicapped" persons and, thus, are not protected within the meaning of that Act. Defendants also contend that the plaintiffs fail to make out a Federal or State claim for unreasonable search or seizure because drug testing is rationally related to the TA's legitimate interest in safety. They argue further that drug use does not fall within the parameters of the right to privacy, whatever those parameters may be. Defendants maintain that the due process claim must fail since drug testing is scientifically sound and positive results provide a valid basis for termination, and that whatever hearings may be required are provided to those so entitled. The equal protection claim fails, defendants contend, since drug testing survives scrutiny under the rational relationship test, which they argue must apply in this case. Finally, defendants urge that the pendent state claims be dismissed.¹¹

The Transport Workers Action

In a related action, the Transport Workers Union (the "TWU") challenges defendants' drug-testing policies on behalf of its members. The TWU seeks declaratory and injunctive relief ordering that the defendants: (1) only be permitted to subject TA employees to drug testing based on reasonable suspicion of drug use that is causing impairment; (2) be required to establish guidelines for determining reasonable suspicion; and (3) be required to establish safeguards against supervisory abuse in ordering employees to submit to drug tests. These claims are asserted under the fourth and fifth amendments to the United States Constitution. The TWU also contends that, because the TA treats an employee's refusal to submit to urinalysis testing as an admission of drug use, the TA policy violates the fifth amendment. The defendants move to dismiss the TWU action in its entirety, while the...