Ware v. City of Buffalo

• Decision Date: 26 June 2001
• Docket Number: No. 98-CV-0147C(M).,98-CV-0147C(M).
• Citation: 186 F.Supp.2d 324
• Parties: Robert E. WARE, Plaintiff, v. CITY OF BUFFALO; City of Buffalo, Department of Fire; Cornelius J. Keane, Individually and as Commissioner, Department of Fire; and John D. Sixt, Individually and as Deputy Commissioner, Department of Fire, Defendants.
• Court: U.S. District Court — Western District of New York

186 F.Supp.2d 324

Robert E. WARE, Plaintiff, v. CITY OF BUFFALO; City of Buffalo, Department of Fire; Cornelius J. Keane, Individually and as Commissioner, Department of Fire; and John D. Sixt, Individually and as Deputy Commissioner, Department of Fire, Defendants.

No. 98-CV-0147C(M).

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

June 26, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Leigh E. Anderson, Esq., Buffalo, NY, for Plaintiff.

Michael B. Risman, Esq., Corporation Counsel of the City of Buffalo (Jeffrey E. Reed, Esq., Assistant Corporation Counsel, of Counsel), Buffalo, NY, for Defendants.

INTRODUCTION

CURTIN, District Judge.

On March 3, 1998, plaintiff Robert E. Ware ("Ware"), a Buffalo firefighter, brought this action, pursuant to 42 U.S.C. § 1983, the Fourteenth Amendment to the U.S. Constitution, Fed.R.Civ.P. 57, 28 U.S.C. §§ 2201, 1331, and 1343, and state law. Ware sought declaratory, monetary, and preliminary and permanent injunctive relief against defendants City of Buffalo; City of Buffalo Department of Fire ("Fire Department"); Cornelius J. Keane, individually and as Commissioner of the Buffalo Fire Department; and John D. Sixt, individually and as Deputy Commissioner, Buffalo Fire Department. Item 1. Ware alleges he suffered economic and personal damage as a result of being required to comply with the Drug Testing Policy (the "Policy") implemented by the City of Buffalo and the Fire Department. He further alleges that the Policy is arbitrary and capricious on its face, and as applied to him. Defendants answered on March 24, 1998. Item 2. On September 18, 2000, defendants moved pursuant to Fed. R.Civ.P. 12(b)(1), 12(b)(6), and 12(b)(7) for an order dismissing the complaint. Items 20, 21. Plaintiff responded with a Memorandum of Law in Opposition, Item 23, and defendants filed an Affidavit in Response. Item 25.

The court heard oral argument on January 5, 2001. In an order dated January 10, 2001, the court asked counsel to submit additional briefs on whether the union waived plaintiff's challenge to the Drug Testing Policy. Item 26. Plaintiff responded with a letter, Item 29, and defendants responded with a brief that contained as an exhibit a copy of the Collective Bargaining Agreement between the City and plaintiff's union. Item 28. For the reasons that follow, the court grants defendants' motion to dismiss.

BACKGROUND

As alleged in the complaint, the facts are as follows. On December 29, 1997, plaintiff Robert Ware, a Buffalo firefighter, was directed to the Union Occupational Health Center ("UOHC"), where he was ordered to provide a urine sample for testing under the Drug Testing Policy of the Buffalo Fire Department. Item 1, ¶ 24. With the consent of the union, this Policy had been implemented by the City of Buffalo and the Fire Department in June 1995. Item 1, ¶ 10; Item 1, Ex A. The Policy requires collection of at least 60 ml. of urine in order that the sample can be divided into two equal parts. The Policy also provides for a certain procedure to be followed if the employee is not able to pass that amount of urine. Item 1, ¶¶ 11, 12. Despite the Policy provisions, less than 60 ml. of urine was collected from Ware. The sample was reported positive for the presence of marijuana metabolite. Id., ¶ 26. On January 5, 1998, plaintiff was informed by a UOHC physician that he had tested positive for drug use, and was advised to report to Deputy Fire Commissioner Sixt ("Sixt").

Later that day, Ware met with Sixt, in the presence of a union representative. During the meeting, Ware denied ever using drugs and argued that the test result was a mistake. He also informed Sixt that the urine sample had been too small to divide into two parts, a fact which Sixt acknowledged. Id., ¶¶ 29, 30, 31. Despite the small sample size, which would not allow for a retest pursuant to the Policy (Article V(C)), Sixt told plaintiff that he would be treated as having been tested positive for illegal substances. Sixt placed Ware on suspension and told him to use his sick time and vacation time while on suspension. Sixt also told Ware that unless he entered and successfully completed the chemical dependency program at Beacon Center, he would be terminated as a firefighter. Id., ¶¶ 32-34.

At approximately 5 p.m. on January 5, 1998, Ware went to the Beacon Center and provided a urine sample. The next day he went to a laboratory and gave a blood sample. Both samples reported negative for illegal substances. Although Ware advised Sixt that the additional drug tests were negative, Sixt refused to excuse him from attending the Beacon Center, and told him that if he did not complete the program, he would be terminated from his job. Id., ¶¶ 36-38. As a result of his suspension, Ware missed one full tour of duty. Sixt then informed him that he could return to work. Id., ¶ 39.

The Beacon Center program requires three weekly group counseling sessions, biweekly individual counseling sessions, urine testing each day the person is on site, and joint counseling with the attendee's spouse. The person must submit to a thorough physical examination, provide complete autobiographical materials, and attend Narcotics Anonymous and Alcoholics Anonymous meetings. Id. ¶ 45. Ware was told by the Beacon Center staff that if he refused any recommendation made by the Center, he would be reported to the Fire Department as non-compliant and would be terminated from the program. Id. ¶ 46.

On January 21, 1998, Ware was unable to attend an appointment at the Beacon Center because his wife's car was stolen and he had no transportation. His absence was reported to the Fire Department, and Sixt suspended him without pay, effective January 22, 1998. Later that day, the suspension was rescinded. Id., ¶¶ 47, 48, 49. Ware, who also was a non-commissioned officer in the National Guard (id., ¶ 41), informed the Beacon Center that he could not attend the program on January 30 and February 6, 1998, since it conflicted with National Guard drill weekends. By letter dated February 9, 1998, the Beacon Center informed Ware that his absences on those two days were unexcused, and threatened to discharge him from the program. On February 12, 1998, Sixt suspended Ware without pay for noncompliance with the Policy. The suspension was subsequently revoked. Id., ¶¶ 50, 52-55.

Sixt told Ware that Ware was required to sign waivers authorizing the Fire Department to obtain all records regarding his treatment at the Beacon Center or he would be terminated. Ware signed the releases. Id., ¶ 60.

Ware contends that when he denied using drugs, he was told by the Beacon Center personnel that he was not complying with treatment and that he must admit his addictions in order to successfully complete the program. He asserted that he could not comply with the Beacon Center program unless he falsely affirmed that he had a drug problem. Ware also questioned why he had to undergo alcohol and marital counseling, which are not within the ambit of the Policy, but which the Beacon Center insisted he must undergo in order to be in compliance. Id., ¶¶ 62, 63, 65.

As a result of being required to attend the Beacon Center, Ware claims he has suffered acute emotional distress, damage to his reputation, and severe depression and humiliation. Id., ¶ 66. He has had to forego opportunities to see and care for his daughter, of whom he has joint custody. Id., ¶¶ 43, 66. He was denied the opportunity to reenlist for another tour of duty in the National Guard because of its "zero tolerance" drug policy. He has also been denied security jobs at a security firm for which he works on a part-time basis; he has missed work as a teacher's aide, another part-time job; he lost a full tour of vacation while on suspension from his fire-fighting job; and he claims he has otherwise suffered severe economic and personal damages. Id., ¶ 67.

The Policy does not provide any guidance concerning what specific recourse an employee may have if those responsible for taking samples do not follow the protocol. However, it does provide for a hearing prior to any imposition of discipline on the employee pursuant to section V(G). The Collective Bargaining Agreement, however, contains an elaborate series of procedures for a disciplined or discharged employee to follow, which includes written service and answer to charges, informal hearing, formal hearing, and appeal to either the Buffalo Municipal Civil Service Commission or the New York State Supreme Court via an Article 78 proceeding. Item 28, Ex. A, pp. 42-46.

Ware has alleged five causes of action in his complaint. The first three causes of action allege violations of federal law and the Due Process Clause of the Fourteenth Amendment: (1) the Policy is arbitrary, capricious, and impermissibly vague; (2) the defendants have applied the Policy to him in an arbitrary and capricious manner; and (3) the Policy's confidentiality provisions fail to protect plaintiff's rights to privacy regarding treatment at the Beacon Center. The fourth cause of action alleges violation of privacy under the state laws and Constitution, and the fifth cause of action alleges intentional infliction of emotional distress caused by the defendants who required Ware to attend the Beacon Center, despite their knowledge that it was causing him such distress, and who refused to expunge his records regarding the December 29, 1997 drug test and related matters.

The defendants have moved to dismiss plaintiff's complaint pursuant to Fed. R.Civ.P. 12(b)(1), (6), and (7) on the grounds that (1) plaintiff has no standing to challenge the provisions of the Policy; (2) plaintiff fails to state a facial constitutional challenge to the Policy; (3) defendants City of Buffalo, City of Buffalo Fire Department, Fire Commissioner Keane, and Deputy Fire Commissioner Sixt, in their official capacities, are immune from punitive damages liability; (4) the court should decline to exercise...