Watson v. Sexton

• Decision Date: 15 January 1991
• Docket Number: No. 89 Civ. 0225 (MBM).,89 Civ. 0225 (MBM).
• Citation: 755 F. Supp. 583
• Parties: Deborah WATSON, Plaintiff, v. Brendan SEXTON, individually and as City Commissioner of Sanitation; Robert C. Ross, individually and as Director of Personnel, New York City Department of Sanitation; Robert Bolstad, individually and as supervisor, New York City Department of Sanitation; and The City of New York, Department of Sanitation, Defendants.
• Court: U.S. District Court — Southern District of New York

755 F. Supp. 583

Deborah WATSON, Plaintiff, v. Brendan SEXTON, individually and as City Commissioner of Sanitation; Robert C. Ross, individually and as Director of Personnel, New York City Department of Sanitation; Robert Bolstad, individually and as supervisor, New York City Department of Sanitation; and The City of New York, Department of Sanitation, Defendants.

No. 89 Civ. 0225 (MBM).

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

January 15, 1991.

COPYRIGHT MATERIAL OMITTED

Glennia R. Campbell, Bronx Legal Services, Bronx, N.Y., for plaintiff.

Victor Kovner, Marilyn Richter, Michael Kaufman, Corp. Counsel, New York City, for defendants.

OPINION AND ORDER

MUKASEY, District Judge.

Plaintiff Deborah Watson was dismissed from her job as a probationary New York City Department of Sanitation ("DOS") Enforcement Agent, allegedly in part for refusing to take a drug test, and sues under 42 U.S.C. § 1983 claiming deprivation of her right to be free of unreasonable searches and seizures, and deprivation of her job and reputation without due process. The alleged unreasonable search and seizure implicates a liberty interest protected by the Fourth Amendment; the deprivation of job and reputation allegedly without due process implicates a liberty interest protected by the Fourteenth Amendment. Now before the court are cross-motions for partial summary judgment and/or to dismiss on the pleadings brought by defendants DOS and three of its employees sued individually, and by plaintiff. The individual defendants are Brendan Sexton, the Commissioner of DOS, Robert C. Ross, DOS's personnel director, and Robert Bolstad, plaintiff's supervisor.

For the reasons set forth below, the individual defendants' motion to dismiss plaintiff's Fourth Amendment claims and her deprivation of property claim is granted, and their motion to dismiss plaintiff's claim for deprivation of liberty without due process is denied. DOS's motion to dismiss plaintiff's claims based on (1) failure adequately to train employees, and (2) deprivation of property without due process, is granted. DOS's motions to dismiss her Fourth Amendment and deprivation of liberty claims is denied. Plaintiff's motion for summary judgment is denied in all respects.

I.

Watson's duties as a Sanitation Enforcement Agent included:

Under supervision, is responsible for the enforcement of certain laws, rules, regulations of the New York City Health and Administrative Codes, New York State Public Health Law (Canine Waste), New York State Vehicle and Traffic Laws, and New York City Traffic Regulations; prepares and issues summonses for certain violations thereof.

Visually inspects commercial and residential establishments, streets, sidewalks, and crosswalks in assigned field territory for violations of applicable Health, Sanitation and Administrative laws; writes summonses for violations; ... Provides security at Department facilities; checks vehicles entering and leaving Department facilities, and keeps records and writes reports relating thereto.... Operates a motor vehicle in the performance of duties....

(Def.Exh. C)

At the time of the events underlying this lawsuit, plaintiff worked under the supervision of defendant Bolstad. According to plaintiff, on July 29, 1987, she felt sick and asked another supervisor, Angel Santana, if she could go home. Santana asked a clerk to check with headquarters, and upon hearing that plaintiff had one sick day and one vacation day left, signed an authorization allowing plaintiff to leave. Plaintiff was absent for the next two workdays. After plaintiff returned to work, Bolstad asked her for medical documentation of her days out. Defendants contend that this request was made pursuant to DOS regulations, which state in part: "documentation for sick leave will be required when: ... reporting sick the day before or the day after chart day scheduled day off, Sundays or Holidays." (Def.Exh. F) According to plaintiff, she told Bolstad that she did not go to a doctor and was not required to submit documentation under DOS policy because the supervisor had confirmed that she had sick time coming to her. According to plaintiff, Bolstad threatened to mark her AWOL if she did not provide a note and began screaming at her, accusing her of being irresponsible and not caring about her job. Plaintiff claims that she responded to his abuse by becoming visibly shaken and raising her voice to him. She ended the confrontation by slamming her summons book on his desk and threatening to quit. Defendants contend that plaintiff simply refused to comply with Bolstad's request, although they agree that she became upset and slammed her radio and summons book down on a desk.

Bolstad prepared a memorandum to the DOS medical clinic describing plaintiff's behavior and asking that plaintiff be examined, and directed her to report to the clinic, in accordance with § 8.1 of DOS Policy and Administrative Procedure No. 85-05, as amended ("PAP 85-05"), which provides in part:

It is also the supervisor's responsibility to evaluate the performance of his or her employees and to ensure that they are job fit at all times. When a supervisor has reasons to question an employee's job fitness and suspects that the lack of job fitness is related to the use of prohibited substances, he or she should document the incident and escort the employee immediately to the Clinic. In order to provide the most appropriate help, employees will be given a full medical evaluation which may include a substance abuse test and a referral to EAU Employee's Assistance Unit.

(Def.Exh. I) Bolstad testified at his deposition that he did not believe when he wrote the memorandum that plaintiff was acting under the influence of drugs or alcohol (Bolstad Tr. 178-79), but rather that some other problem was making her a danger to herself and others. He gave the memorandum to another DOS supervisor and asked him to escort Watson to the clinic.

At the clinic, plaintiff met with Dr. Joan Schmuggler, a psychiatrist employed by DOS. They discussed the incident with Bolstad. Plaintiff told the psychiatrist that she had been unfairly given two AWOLs. Dr. Schmuggler asked plaintiff a series of questions, including questions about her drug and alcohol use and about any problems she might be having at home. Dr. Schmuggler's notes of the meeting are as follows:

She has a nervous stomach & diarrhea & is missing a lot of days. Pt. has not seen M.D. here. Pv't M.D. says it may be colitis or irritable bowel. Pt. taking Lomotil 1 tab a day. Denies drinking or drug use. Diarrhea started when pt. started job & she feels it is job related.... Situational anxiety with diarrhea. Plan — Regular Duty. To see M.D. here for workup.... urine for toxicology today.

(Def.Exh. K)

According to plaintiff, she was in the clinic that day, August 5, for five hours and when asked to provide a specimen for urinalysis, was unable to urinate. She was asked to return the next day to submit to the test. Plaintiff reported to the clinic the next day and, according to plaintiff, provided a specimen by urinating into a cup, and then pouring some of the urine into a smaller vial, as instructed by the nurse. She alleges that the nurse told her to discard the rest of her sample. She claims that on leaving the clinic, the nurse stopped her and told her that her sample was insufficient and that she would have to give another. Plaintiff admits that she became angry, refused to comply and left the clinic. Defendants contend that plaintiff never produced sufficient urine and that when asked to provide another specimen, plaintiff loudly abused the nurse and left the clinic. Plaintiff was immediately suspended from duty for violating § 5.6 of PAP 85-05, which states that "refusal to submit to a substance use test is a violation of this rule."

On August 6, 1987 plaintiff was sent a "Notice to Report to Trial/Suspension Notice," telling her that she was suspended without pay for a violation of Department regulations and ordering her to appear for a Departmental Trial. On August 20, 1987, plaintiff was sent a notice stating that the hearing had been cancelled. As a probationary employee, plaintiff was not entitled to a termination hearing. By letter dated August 28, 1987, plaintiff was informed that her employment was terminated. An intra-DOS memorandum recommended her termination for the following reasons: (1) abuse of Department Time and Leave Rules and Regulations, including three AWOLs during her probationary year (9/17/86, 9/27/86 and 3/4/87), and, in addition, (2) refusal to submit to a substance use test, and being loud and abusive at the clinic. The memorandum also noted that plaintiff was late six times for a total of 2 hours and 51 minutes, and contains a summary of evaluations she received over the four quarters of her probationary year. The evaluations for the most part discuss her poor attendance. Her final evaluation states: "Has 28 days out sick, and LWOP leave without pay ... Is becoming an unproductive worker on job and should be terminated.... No hope for improvement here." (Def.Exh. Q)

II.

The individual defendants assert qualified immunity as a defense against plaintiff's Fourth Amendment claim. Under the doctrine of qualified immunity, government employees, such as individual defendants Sexton, Ross and Bolstad, are immune from § 1983 liability for their actions so long as those actions could reasonably have been thought consistent with the federal statutory or constitutional rights they are alleged to have violated, "assessed in light of the legal rules that were `clearly established' at the time the actions in question were taken." Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). The Supreme Court explained in Anderson:

This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, ... but it is to say that

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