Laverpool v. New York City Transit Authority

• Decision Date: 30 March 1991
• Docket Number: No. CV-90-2327 (ADS).,CV-90-2327 (ADS).
• Parties: Frederick B. LAVERPOOL, Sr., Gina Marsh, Ella Hill, Andrew Wilder, Percy Jackson, Jane Best-Simpson, John Doe, and Jane Doe, On Behalf of themselves and all others similarly situated, Plaintiffs, v. NEW YORK CITY TRANSIT AUTHORITY, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

760 F. Supp. 1046

Frederick B. LAVERPOOL, Sr., Gina Marsh, Ella Hill, Andrew Wilder, Percy Jackson, Jane Best-Simpson, John Doe, and Jane Doe, On Behalf of themselves and all others similarly situated, Plaintiffs, v. NEW YORK CITY TRANSIT AUTHORITY, et al., Defendants.

No. CV-90-2327 (ADS).

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

March 30, 1991.

COPYRIGHT MATERIAL OMITTED

C. Vernon Mason, New York City, for plaintiffs.

Albert C. Cosenza, Gen. Counsel, by Evelyn Jonas, Asst. Gen. Counsel, Brooklyn, N.Y., for defendant New York City Transit Authority.

OPINION AND ORDER

SPATT, District Judge.

The plaintiffs, all former employees of the New York City Transit Authority ("TA"), challenge the TA's drug testing requirements, methodology and policy, and also its disciplinary procedures as discriminatorily directed against minorities. The Amended Complaint alleges six causes of action throughout this sixty-nine page pleading with 323 numbered paragraphs, and the plaintiffs refer to alleged violations of the Civil Rights Act, 42 U.S.C. §§ 1981, 1983 and 1985; Title VII, 42 U.S.C. § 2000e-5; the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-1968; section 504 of the Rehabilitation Act, 29 U.S.C. § 794; and New York's Public Authorities Law § 1210 and Civil Service Law § 75.

The defendants move to dismiss the Amended Complaint on the grounds that the complaint fails to state a claim for which relief may be granted, and that certain claims are barred by the applicable statutes of limitation. The defendants also move to strike all redundant, scandalous, impertinent and immaterial matter from the Amended Complaint.

Although the plaintiffs have not filed any opposition to this motion, certain of the plaintiffs cross-move to withdraw as named plaintiffs in this action.

I. FACTUAL BACKGROUND

The facts set forth below have been gleaned from the Amended Complaint, which are deemed true for purposes of this motion to dismiss (see Branum v. Clark, 927 F.2d 698, 704 2d Cir.1991; Procter & Gamble Co. v. Big Apple Indus. Bldgs., Inc., 879 F.2d 10, 14 2d Cir.1989, cert. denied, ___ U.S. ___, 110 S.Ct. 723, 107 L.Ed.2d 743 1990). Additionally, the Court draws all reasonable inferences favorably toward the plaintiff (see Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 1974).

The Court notes that the Amended Complaint purports that this is a class action, although no motion has been made, nor has the Court ordered the required certification (see Fed.R.Civ.P. 23).

Although the Amended Complaint is replete with redundant and prolix allegations, the basic material allegations are summarized as follows:

General Allegations:

The plaintiffs, all former employees of the TA¹, were either suspended, disciplined and/or discharged from employment with the TA allegedly due to testing positive for use of controlled substances from the period of September 1984 through November 1989.

The plaintiffs allege that the defendants' Policy Instruction 6.0.2, which allegedly requires employees to submit to drug screening at a "back-to-work" physical after an extended illness, does not define any level of suspicion necessary to serve as a predicate for ordering such a test. According to the plaintiffs, this merely "acts as a subterfuge to counteract an unreasonable search and seizure" (Amended Complaint ¶ 14).

According to the plaintiffs, the defendants knowingly, intentionally and maliciously disciplined and discharged the plaintiffs and other minorities similarly situated by utilizing "a known unreliable and inaccurate controlled substance testing procedure" (Amended Complaint ¶ 16). The defendants were also allegedly notified and aware of inconsistencies and defective procedures used by Compu-chem laboratory, the testing facility utilized by the defendants. Despite such notice, the defendants allegedly continue to utilize the laboratory, and continue to deny the plaintiffs equal terms and conditions of employment in violation of 42 U.S.C. § 1981.

The plaintiffs also allege that the defendants are an "enterprise" within the meaning of RICO, "whose contractual business relationship between its contract laboratory Compu-chem, resulted in their activities being directed toward attaining a single goal of establishing a related and continuing activity of knowingly using inaccurate and unreliable urinalysis testing" (Amended Complaint ¶ 19). In furtherance of this scheme, the defendants are alleged to have attempted to bribe public officials in order to obtain the necessary certificate of license for Compu-chem to operate.

Specific or Particularized Allegations:

The plaintiffs allege that the TA maintains a policy of screening all applicants for TA jobs for drug use, including marijuana use, while failing to recognize the shortfalls or inaccuracies of such testing. Since approximately 1984, all applicants for TA employment have been and presently are allegedly required to submit urine samples for drug analysis as part of a pre-employment screening process.

The plaintiffs allege that the screening is not done uniformly, rather it is done with "invidious motivation and intent of depleting its minority work force" (Amended Complaint ¶ 109). Furthermore, the accuracy and reliability of the testing is not ensured, which effectively denies minorities (blacks) equal terms and conditions of employment, such as by failing to conduct blind quality assurance tests. As a result, many job applicants and employees are "falsely labelled drug users and inappropriately disciplined and/or denied job promotions and other terms and conditions and benefits of employment" (Amended Complaint ¶ 112).

The plaintiffs also allege that testing employees with "non-safety sensitive" jobs for such positions violates the Fourth and Fourteenth Amendments to the United States Constitution, as well as Articles One and Twelve of the New York Constitution.

The plaintiffs further allege that the defendants instituted a "counter intelligence" program through the use of friends, associates, relatives, contractors and vendors for the purpose of preventing the hiring, promotion and conferral of employment benefits upon the TA's minority work force, and that the defendants have also established a "minority hit list". The "minority hit list" allegedly consists of employees, including the plaintiffs, who oppose the defendants' allegedly discriminatory policies, including the drug testing policy.

According to the plaintiffs, "similarly situated white employees of Defendants were hired, given promotions, retained and treated differently in all employment matters" (Amended Complaint ¶ 129). The plaintiffs also aver that the defendants have and continue to act in an arbitrary and capricious manner toward minorities, but do not act similarly toward the TA's white employees.

The following allegations pertain to each of the named plaintiffs.

Plaintiff Laverpool:

The plaintiff Frederick B. Laverpool ("Laverpool") served as Union President for approximately eight years, during which time "there existed an extreme history of hostilities and malicious union animus by Defendant TA against Plaintiff" (Amended Complaint ¶ 142). In May 1987, Laverpool began investigating and questioning the alleged irregularities and inconsistencies of the defendants' drug testing policy and related discriminatory practices.

Laverpool was later absent from work for an extended period of time for treatment relating to heart disease. Upon his return to work in May 1988, Laverpool was required to undergo a physical examination which included a mandatory urinalysis, without any reasonable suspicion of illegal drug use. On May 11, 1988, Laverpool was suspended pending dismissal as a result of testing positive for illegal drug use.

On November 15, 1988, an arbitration hearing was held, at which time Arbitrator Simmelkjaer rendered a decision adverse to Laverpool, recommending Laverpool's dismissal. Laverpool alleges that Arbitrator Simmelkjaer was part of the defendants' "counter intelligence" policy, insofar as the defendants allegedly offered Arbitrator Simmelkjaer a bribe in the form of a part-time position with the TA for $80,000 per annum. Accordingly, Laverpool alleges that his due process rights were violated on the ground that he did not receive a fair and impartial arbitration hearing. Laverpool further alleges that he was "targeted due to his race and opposition to improper practices by the defendants" (Amended Complaint ¶ 152).

Plaintiff Best-Simpson:

The plaintiff Jane Best-Simpson alleges violation of Title VII insofar as the terms and conditions of her employment contract are "unequal" with others similarly situated, reflecting discrimination on the basis of her race and sex, and also in retaliation for her reporting the alleged improper employment practices of the defendants.

Plaintiff Marsh:

Plaintiff Gina Marsh ("Marsh") began employment with the TA as an undercover TA Police Officer in January 1983 which, the plaintiffs admit, is a "safety sensitive job" (Amended Complaint ¶ 155-56). After being hospitalized for multiple injuries sustained in a motor vehicle accident in January 1988, on February 18, 1988, Marsh was directed to submit to a mandatory drug urinalysis test during the course of a "back-to-work" physical.

Marsh's urinalysis tested positive for drug use, which resulted in her suspension by the TA. Marsh was later advised by the TA that she was no longer suspended since her urine specimen was allegedly improperly received and not in its original container. She was reinstated, but the charges were allegedly never discontinued by the TA.

Marsh alleges that she was then forced to submit to a second urinalysis to test for drug use, which sampling was tested by an independent laboratory. The test was reported to be positive for illegal drug use. On November 9, 1988, an administrative hearing was held, allegedly without Marsh...