Burka v. New York City Transit Authority

• Decision Date: 31 August 1990
• Docket Number: No. 85 Civ. 5751 (RPP),86 Civ. 6536 (RPP).,85 Civ. 5751 (RPP)
• Citation: 744 F. Supp. 63
• 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.
• Court: U.S. District Court — Southern District of New York

744 F. Supp. 63

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.

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

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

August 31, 1990.

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

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

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

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

OPINION AND ORDER

ROBERT P. PATTERSON, Jr., District Judge.

Defendants move, pursuant to Federal Rule of Civil Procedure 52(b), for an amendment to the findings of fact and conclusions of law contained in the Opinion and Order of June 5, 1990 ("the Opinion") in the above captioned cases. 739 F.Supp. 814. This motion pertains to the portion of the Opinion which found that defendants had violated the due process rights of permanent employees of the Transit Authority (TA) who were disciplined because their urine sample, taken between January 1, 1984 and October 1, 1986, tested positive for marijuana use. Familiarity with the Opinion is presumed throughout this decision.

Background

New York Civil Service Law Section 75 provides for a hearing in which permanent employees of the TA can contest charges of misconduct. Pursuant to New York Civil Service Law Section 76, various unions during the 1980's agreed, by collective bargaining, to either the substitution of an arbitration process for or a choice of an arbitration process instead of the disciplinary hearings provided for by Section 75.¹ The agreements to substitution of arbitration processes for Section 75 hearings stated:

The disciplinary procedure set forth in this Section shall be in lieu of any other disciplinary procedure that may have previously applied to the language covered by this Agreement including but not limited to the procedure specified in Sections 75 and 76 of the Civil Service Law and shall apply to all persons who but for this procedure would be subject to Sections 75 and 76 of the Civil Service Law. This procedure shall not apply to probationary, part-time or temporary employees.

Ex. 2-8 to Mayo Aff. The agreement, which defendants describe as providing that Transit Workers Union (TWU) members, between 1980 and 1985, "would have a choice in disciplinary proceedings between arbitration or a Civil Service Law Section 75 hearing," Mayo Aff. at 1, ¶ 3, stated:

It is the purpose of this agreement to establish in the Transit Authority a substitute disciplinary procedure to that presently based on Sections 75 and 76 of the Civil Service Law. This new procedure, which shall apply to employees who would otherwise be entitled to a hearing under Section 75, shall be effective for any charges arising from actions of the employee subsequent to the date this agreement is signed. It is understood that the right to discharge or discipline employees for cause and to maintain discipline and efficiency of employees is the responsibility of the Transit Authority. It is further understood that this procedure will be applicable to all disciplinary actions initiated by management and supervision against employees covered by this contract.

* * * * * *

After the decision of the Manager of Labor Relations is received by the Union and the employee, if the Union decides not to request Impartial Arbitration, or if the employee does not sign a waiver of his rights under Sections 75 and 76 of the Civil Service Law, the employee may elect to have a hearing under Section 75, except where the penalty is a Caution.

Ex. 1 to Mayo Aff.

Defendants argue that the Opinion should be amended to reflect that those unionized permanent employees whose marijuana use charges were resolved by an arbitration process rather than by a Section 75 hearing are not covered by the due process findings. The theory of defendants' argument is that those unionized plaintiffs waived their due process rights when their unions entered into collective bargaining agreements with the TA.

Discussion

Due process rights can be waived when there is clear and compelling evidence of a voluntary, knowing and intelligent waiver. See D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972); Erie Telecommunications, Inc. v. City of Erie, Pa., 853 F.2d 1084, 1094-95 (3d Cir.1988) (quoting Curtis Publishing Co. v. Butts, 388 U.S. 130, 145, 87 S.Ct. 1975, 1986, 18 L.Ed.2d 1094 (1967)). The Supreme Court instructs lower courts to "`indulge in every reasonable presumption against waiver' of fundamental constitutional rights and .. `not to presume acquiescence in the loss' of such rights." Erie Telecommunications, Inc., 853 F.2d at 1095 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)).

Permanent employees had due process rights at stake in the determination that they had used marijuana and it is those rights that defendants claim were waived. Due process requires that adequate procedures accompany a decision to discipline permanent employees for misconduct because there is a constitutional liberty interest in reputation at stake in a challenge to a misconduct charge and because Section 75 creates a constitutional property interest — i.e., the right to continued employment absent sufficient reason for discharge. Section 75 creates a property interest entitled to constitutional protection by virtue of the provision in Section 75(1) that permanent employees:

shall not be removed or otherwise subjected to any disciplinary penalty provided in this section except for incompetency or misconduct shown after a hearing upon stated charges pursuant to this section.

N.Y.Civ.Serv.Law § 75(1).

Under Cleveland Board of Education v. Loudermill, 470 U.S. 532, 540-42, 105 S.Ct. 1487, 1492-93, 84 L.Ed.2d 494 (1985), the procedures which the Constitution requires before deprivation of the property interest created by the statute are not limited to the confines of the hearing provided for by a statute. In its Opinion and Order of June 5, 1990, the Court found the hearing provided for by Section 75(2) to be inadequate to protect the permanent employees' property and liberty interests, as required by Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), because the confines of the hearing did not offer a meaningful opportunity to challenge a positive test result. The basis for the Court's conclusion was not the lack of any specific safeguards at the hearing, but the failure of the TA to provide, prior to the Section 75 hearing, either timely notice of results to facilitate an opportunity for independent testing or a formal re-testing program. Only if such pre-hearing safeguards were available could there be a meaningful challenge to the test results at the hearing.

The unions' agreements waived the right of their members to participate in Section 75 hearings, or, in the case of TWU members between 1980 and 1985, the permanent employees who chose the impartial arbitration...