M.O.C.H.A. Soc'y, Inc. v. City of Buffalo

• Decision Date: 30 May 2012
• Docket Number: No. 98–CV–99–JTC.,98–CV–99–JTC.
• Citation: 872 F.Supp.2d 264
• Parties: M.O.C.H.A. SOCIETY, INC., et al., Plaintiffs, v. CITY OF BUFFALO, et al., Defendants.
• Court: U.S. District Court — Western District of New York

872 F.Supp.2d 264

M.O.C.H.A. SOCIETY, INC., et al., Plaintiffs,

v.CITY OF BUFFALO, et al., Defendants.

No. 98–CV–99–JTC.

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

May 30, 2012.

Harvey P. Sanders, Sanders & Sanders, Cheektowaga, NY, for Plaintiffs.

Thomas S. Gill, Frederick, MD, for Plaintiffs/Defendants.

E. Joseph Giroux, Jonathan G. Johnsen, Creighton, Pearce, Johnsen & Giroux, Adam W. Perry, James Lawrence Jarvis, Jr., Joseph S. Brown, Kathleen M. Sellers, Joshua Isaac Feinstein, Buffalo, NY, for Defendants.

JOHN T. CURTIN, District Judge.

In Third Amended Complaint “A” in this case (Item 247), plaintiffs M.O.C.H.A. Society Inc. (“MOCHA”) and seventeen employees and/or former employees of the City of Buffalo Fire Department claim that the Fire Department's drug testing policy, in effect between approximately 1995 and 2005, was implemented, applied and enforced in a manner designed to intentionally discriminate against African American firefighters, in violation of 42 U.S.C. §§ 1981, 1983 and 2000e–2 (“Title VII”), and the New York Human Rights Law (“NYHRL”), N.Y. Exec. Law § 296. Following an extended period of discovery, the City and the Union moved for summary judgment dismissing Third Amended Complaint “A.” For the reasons that follow, these motions are granted.

BACKGROUND

The following factual background is derived from the pleadings, affidavits, discovery materials, and other submissions on file, including the parties' respective statements of fact submitted pursuant to Rule 56(a) of the Local Rules of Civil Procedure for the Western District of New York.

The Drug Testing Policy of the Buffalo Fire Department was drafted by the Professional Firefighters Association, Local 282 (the “Union”) as the result of negotiations between the Union and the City “to complete obligations contained in an interest arbitration decision.” Item 469, Ex. 5 ¹ (Copy of Drug Testing Policy), p. 12. It was enacted in June 1995 upon signature by representatives of the Union, The Fire Department, and the City of Buffalo Division of Labor Relations. The stated general purpose of the Drug Testing Policy was to address concerns about the effects of “on-the-job impairment due to drug abuse ...,” including “lost productivity, increased health care costs, increased absenteeism, and ... danger to the safety of fellow workers and to the public.” Id. at 1.

Under the Drug Testing Policy, Fire Department personnel were divided into testing groups as determined by employment status, and were subjected to random urinalysis using a “bingo machine” selection procedure. The drug testing methodology, mutually agreed upon by the parties, involved obtaining a urine sample from the subject employee and dividing the sample into two equal parts, one of which would be retained at the collection center while the other would be sent to a testing laboratory under chain of custody procedures. Confirmed positive test results would be referred to a Medical Review Officer (“MRO”), who would review the results and chain of custody documents and give the employee who tested positive an opportunity to discuss them. If the MRO concluded that there was no medical reason for the positive result, the test would be verified as positive and reported to the Deputy Commissioner and the Employee Assistance Program (“EAP”) Coordinator. The second sample would then be submitted for testing, and the employee would be sent to a treatment center for rehabilitation. While undergoing treatment, the employee was required “to utilize all paid leave credits (vacation, personal) before utilizing paid sick leave.” Ex. 5, p. 10.

If the second test result was positive, the employee would be deemed to have waived any right to challenge the testing protocol for either sample. The employee would be subject to discipline, including discharge, for the following reasons: two positive test results; failure to complete a rehabilitation program following entry after a first confirmed positive test result; failure to materially comply with the terms of the rehabilitation program; or, testing positive, as confirmed by an MRO, after entering or completing a rehabilitation program. Prior to any discipline being imposed, the employee would be entitled to a hearing before the Commissioner, and afforded an opportunity to offer an explanation in mitigation of the proposed discipline. Id. at 2–12; see also Item 471 (City Defts. Local Rule 56 Statement), ¶¶ 1–16.

On February 10, 1998, MOCHA filed the original complaint in this lawsuit seeking certification of a class action against the City; the Fire Department; Fire Commissioner Cornelius Keane; and Deputy Commissioner John Sixt (the “City defendants”), alleging racial discrimination based on the Fire Department's (1) implementation and application of the Drug Testing Policy, and (2) administration of the 1998 promotional examination for fire lieutenant. See Item 1. Shortly thereafter, the Union moved to intervene as a party defendant to protect its rights as the Buffalo firefighters' bargaining representative. The court subsequently granted plaintiffs leave to amend the complaint to assert additional claims, including a claim that the Union and Local 282 President Ronald Cassell (the “Union defendants”) took action against the plaintiffs in retaliation for bringing this lawsuit against the City. See Item 10, ¶¶ 65–68.

After meeting with counsel, the court determined that the drug testing and promotion issues should be addressed in separate pleadings. See Item 23. Accordingly, in October 1998, plaintiffs filed “Amended Complaint A” dealing with the Drug Testing Policy (Item 24) and “Amended Complaint B” dealing with the promotion policy (Item 25).

On October 19, 2000, following substitution of plaintiffs' counsel (and upon consent of the City defendants), plaintiffs filed Second Amended Complaints “A” (Item 55) and “B” (Item 54), and the City moved to dismiss both complaints. Second Amended Complaint “A” contained the following nine causes of action:

1. The Drug Testing Policy is arbitrary and capricious on its face and violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

2. The Drug Testing Policy is arbitrary and capricious as applied to plaintiffs and violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

3. The Drug Testing Policy on its face violates plaintiffs' right to privacy guaranteed by the Due Process Clause of the Fourteenth Amendmentto the United States Constitution.

4. As applied, the Drug Testing Policy violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

5. By the conduct alleged, defendants violated 42 U.S.C. §§ 1981 and 1983.

6. By the conduct alleged, defendants violated Title VII of the Civil Rights Act of 1964 (hereinafter “Title VII”) et seq. as amended 42 U.S.C.2000e, et seq.

7. By the conduct alleged, defendants violated 42 U.S.C. § 1985.

8. By the conduct alleged, defendants violated New York's Human Rights Law, Executive Law 296, et. seq.

9. By the conduct alleged, the defendants were aiders and abettors in violation of New York's Human Rights Law, Executive Law 296(6).

In a decision and order dated March 16, 2002, the court granted the City's motion to the extent it sought dismissal of plaintiffs' conspiracy claims brought under 42 U.S.C. § 1985(3); claims for punitive damages against the City and the individual City defendants sued in their official capacities; Title VII claims against individual City defendants Cornelius Keane and John Sixt; and claims against the Fire Department as a separate entity. M.O.C.H.A. Soc'y, Inc. v. City of Buffalo, 199 F.Supp.2d 40, 52–53 (W.D.N.Y.2002). On March 26, 2003, the City filed an answer to Second Amended Complaint A, denying all material allegations and asserting numerous affirmative defenses. See Item 146. By order entered on November 25, 2003, this court granted as unopposed the City's cross-motion to deem the class allegations in Complaint “A” abandoned and waived. See Items 184, 186.

On July 26, 2006, the court granted as unopposed plaintiff's request for leave to file a Third Amended Complaint “A” (Item 247), adding Robert Jones as a plaintiff and bringing to seventeen the number of individual plaintiffs claiming that they were intentionally discriminated against by the City and the Union as a result of the implementation, administration, and enforcement of the Drug Testing Policy. The parties then engaged in further discovery, including taking the depositions of all seventeen individual plaintiffs. What follows is a summary of this deposition testimony along with a brief discussion of the evidence pertaining to each individual plaintiff's claims.

1. Maurice Birdsong

Mr. Birdsong was deposed on January 24, 2007. He testified that he joined the Buffalo Fire Department as a firefighter in 1991. He was randomly drug tested by the Fire Department once in 1996. At the time, he was generally aware of the Department's Drug Testing Policy, but he did not know he would be tested until the day of the test. Ex. 7 (Birdsong Dep.), pp. 8–12.

Mr. Birdsong testified that the test was administered at ECMC. He went there with three other members of his crew, all African Americans. He filled out paperwork, and provided a urine sample. Two or three days later, he was informed by his captain that his test had come back positive. He was referred to an EAP drug counselor, who told him that he had to attend inpatient drug treatment at Hope House in Rhode Island. Mr. Birdsong immediately reported to Hope House, and completed a twenty-eight day program of group therapy and individual counseling. Id. at 13–21. He described Hope House as a “nice treatment center,” but explained that he had “nothing to compare it to” since he had never been to a drug treatment center before. Id. at 21.

After he completed the inpatient treatment program, Mr. Birdsong...