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BURKA v. NEW YORK CITY TRANSIT AUTH.

June 6, 1990

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.



The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.

  OPINION AND ORDER

This is a consolidation of challenges to the urine testing procedures utilized by the New York City Transit Authority (the TA) since January 1, 1984 to test for use of marijuana.*fn1 The plaintiffs seek both monetary and equitable relief. During the trial of this case, the Court approved the parties' agreement to bifurcate the issues of liability and remedy. This Opinion represents only the Court's findings of fact and conclusions of law on liability.

Background

Defendant TA is a public benefit corporation created by New York Public Authorities Law to operate New York City's public transit facilities, including subway and bus systems. The individual defendants are the TA President, the TA Chairperson, the TA Medical Director and the TA's Assistant Vice President for Labor Relations. The evidence does not show, and the plaintiffs have not contended in their trial briefs, proposed findings of fact and proposed conclusions of law, that the individual defendants ever violated the Constitution without reasonable grounds for believing their actions were constitutional. Accordingly, the individual defendants have qualified immunity and cannot be held liable in their personal capacity. See Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) (qualified immunity when officials do not act maliciously and without reasonable grounds for believing their actions were constitutional); Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975).

The plaintiffs consist of representatives of three subclasses certified pursuant to Federal Rule of Civil Procedure 23, as well as the individual plaintiff John Fa, and plaintiff-intervenor James Salazar. All of the plaintiffs were either permanent or probationary employees or were applicants, who

  have been or will be denied employment or a
  promotion, suspended, required to undergo drug
  counseling, terminated or otherwise penalized
  solely because of a marijuana positive urinalysis
  test.

Burka v. New York City Transit Authority, 110 F.R.D. 595, 600 (S.D.N.Y. 1986) (Goettel, J.).

The three certified subclasses, as described by Judge Goettel, are:

  (A) those TA employees who deny drug use but who
  have been or in the future will be subjected to
  adverse employment action based on drug-positive
  test results obtained pursuant to a periodic
  physical examination, a promotion application or
  an on-duty incident ("Subclass A");
  (B) those TA employees who admit to off-duty drug
  use and who have been or in the future will be
  subjected to adverse employment action due to
  testing connected with the above activities
  ("Subclass B");
  (C) those applicants for positions with the TA who
  deny drug use and who have been or in the future
  will be denied employment based on drug-positive
  test results ("Subclass C").

Burka v. New York City Transit Authority, 121 F.R.D. 215, 216 (S.D.N.Y. 1988). These subclasses may assume a greater significance in the determination of remedies, but at this point it is important to note that the subclasses, including plaintiff-intervenor Salazar and plaintiff Fa, neither include nor represent either (1) applicants who admit to drug use, (2) employees tested solely due to supervisor's suspicion, or (3) employees tested because a prior test revealed evidence of drug use. Id. at 216 n. 2.

Plaintiffs represent employees from whom urine has been taken in four circumstances since January 1, 1984: (1) following an extended absence or suspension, (2) as part of certain periodic physical examinations, (3) as part of a physical examination for promotion, (4) when directed by a supervisor or manager following an "incident" that occurs while on-duty.*fn2 In addition, the plaintiffs represent applicants who deny drug use and tested positive for marijuana since October 1984.*fn3

All plaintiffs present parallel challenges and the claims were consolidated for purposes of trial. On February 1, 1988, Judge Goettel granted summary judgment for defendants on all issues except for the due process claims of employees, and the privacy and unreasonable search and seizure claims. Burka v. New York City Transit Authority, 680 F. Supp. 590, 612 (S.D.N Y 1988). Those surviving claims are based upon clauses in both the federal and New York State Constitutions. The federal constitutional challenges are brought pursuant to 42 U.S.C. § 1983.*fn4

A non-jury trial took place from April 14, 1989 through May 24, 1989. The parties submitted proposed findings of fact and conclusions of law on September 15, 1989. Evidence was only presented at trial of the TA's testing procedures through April 1987. The parties have each subsequently submitted generalized descriptions of the post-April 1987 testing procedures; however, these descriptions do not constitute an adequate evidentiary basis for a determination of constitutionality. Accordingly, this Opinion only determines the lawfulness of TA drug testing from January 1, 1984 to April 1987.

In October 1989, the lawyers for the certified subclasses submitted for the Court's approval a consent order to settle the due process "accuracy of testing" claims of those tested from January 1984 through September 1984 by the Laboratory for Chromatography. After a public hearing and several submissions from the parties, the Court issued an opinion approving the agreement subject to certain modifications. See Opinion and Order of January 22, 1990. The parties agreed to the modifications and the consent order was finally approved on February 1, 1990.

On March 29, 1990, the Court held a conference at which it requested additional submissions addressing the costs and effectiveness of alternative, on-site drug testing procedures. On May 10, 1990, the parties submitted a joint stipulation of facts, expert affidavits and legal memoranda discussing the availability of on-site drug testing procedures and whether the implementation of on-site testing was constitutionally mandated.

Discussion

This Court is not asked to rule on whether there is a substantive due process right to ingest marijuana. Plaintiffs do not directly challenge the current unlawful status of marijuana use under state and federal law. Nor do plaintiffs call into question the rights of the TA either to discipline an employee who ingests marijuana during his spare time or to refuse to hire an applicant who does the same. See National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 1398, 103 L.Ed.2d 685 (1989) (Scalia, J., dissenting) (government "employees can constitutionally be denied promotion, or even be dismissed, for a single instance of unlawful drug use, at home or at work").

Instead, these actions are directed at the procedures utilized by the TA to determine whether plaintiffs were contemporaneously using marijuana. In particular, plaintiffs argue that the TA conducted drug testing in a manner which (1) constituted unlawful searches and seizures and (2) resulted in deprivations of interests in property and liberty without due process of law. The search and seizure claims focus on the reasonableness of the decision to take urine, while the due process claims focus on whether adequate procedural safeguards accompanied the determination that, based on the urine sample, one is a user of marijuana.

For purposes of determining plaintiffs' rights to sue under Section 1983, as well as the due process clauses and the search and seizure clauses of the state and federal constitutions, the acts of the TA are attributable to a local government entity. See West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) ("under color of state law" requirement is conterminous with state action doctrine of Fourteenth Amendment). New York statute authorizes the TA to perform "an essential governmental function." New York Public Authorities Law §§ 1201, 1207-g. Accordingly, the TA acts as a local arm of government and "under color of" state law. See, e.g., New York City Transit Authority v. Beazer, 440 U.S. 568, 587, 99 S.Ct. 1355, 1366, 59 L.Ed.2d 587 (1979) (TA is "a governmental unit" for purposes of Fourteenth Amendment analysis); Kissinger v. New York City Transit Authority, 274 F. Supp. 438, 441 (S.D.N.Y. 1967) (TA decisions are "state action"); see also Subway-Surface Supervisors Association v. New York City Transit Authority, 44 N Y2d 101, 404 N.Y.S.2d 323, 329, 375 N.E.2d 384 (1978). The findings of constitutional infringements are limited to those acts constituting a component of patterns of practice, customs or policies of the TA. Monell v. New York City Department of Social Services, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978).

I. Search & Seizure

Plaintiffs argue that the TA took urine from employees and applicants in an unconstitutional manner. The Fourth Amendment's prohibition against unreasonable searches and seizures applies to searches and seizures authorized by the TA, an arm of the state and municipal governments. Skinner v. Railway Labor Executives Association, 489 U.S. 602, 109 S.Ct. 1402, 1411, 103 L.Ed.2d 639 (1989). Under Supreme Court precedent, the TA's taking of urine from a public employee or an applicant constitutes a search*fn5 and must meet the reasonableness requirement of the Fourth Amendment." Von Raab, 109 S.Ct. at 1390; Skinner, 109 S.Ct. at 1412-13; see also O'Connor v. Ortega, 480 U.S. 709, 717, 107 S.Ct. 1492, 1497, 94 L.Ed.2d 714 (1987) (plurality opinion) (Fourth Amendment protects government employees from unreasonable searches). The reasonableness of a search depends upon a balance of individual privacy interests and legitimate government interests. Von Raab, 109 S.Ct. at 1390; Skinner, 109 S.Ct. at 1414.

A. Warrant Requirement

Whether the TA may dispense with the Fourth Amendment's warrant requirement depends on a balance of the individual interests and the government interests at stake in having a warrant requirement.

1. Individual Interests

The Fourth Amendment provides:

  [N]o Warrants shall issue, but upon probable
  cause, supported by Oath or affirmation, and
  particularly describing the place to be searched,
  and the persons or things to be seized.

A warrant provides the individual with the protection of "the detached scrutiny of a neutral magistrate" to ensure that "such intrusions are not the random or arbitrary acts of government agents." Skinner, 109 S.Ct. at 1415. A warrant not only restrains the government from engaging in unreasonable practices, but also functions as a manifestation which provides individuals with assurance that "the intrusion is authorized by law, and that it is narrowly limited in its objectives and scope." Von Raab, 109 S.Ct. at 1391; Skinner 109 S.Ct. at 1415.

Individual interests protected by the warrant requirement are reduced when the search is (1) preceded by notice, and (2) administered subject to "minimal discretion." Skinner, 109 S.Ct. at 1415-16.

The TA has made efforts to provide notice to employees of the drug testing rules. The testimony shows that those efforts did not meet the standard of "doubtless" success in notifying all employees of future drug testing, achieved by the government in Skinner and Von Raab, cases in which the Supreme Court held that a warrant was not required. Compare Tr. 34, 124, 191, 258, 336, 364-68 (notified of laboratory testing of urine, but scope of the test unspecified); Ex. 106 at 34, ¶ 8(e); Ex. 107 at 47-50, with Skinner, 109 S.Ct. at 1415 (rules on urinalysis "doubtless are well known to covered employees"); Von Raab, 109 S.Ct. at 1391.

A review of the "minimal discretion" found present in Von Raab and Skinner is useful before determining whether the TA plan satisfies this second individual interest protection factor. In Skinner, urine could only be taken after there had been a "major train accident," an "impact accident," a fatality to an on-duty railroad employee, a reasonable suspicion by a supervisor after a "reportable accident or incident," certain rule violations, or suspicion of impairment by two supervisors — one of whom had training in detecting drug use. 109 S.Ct. at 1408-09. Regulations defined the terms "major accident" and "impact accident" with a limited list of specified events. Id. In Von Raab, the Customs Service tested individuals after deeming them initially qualified and before final selection. 109 S.Ct. at 1388. This suit challenges the taking of urine under four circumstances. See supra text accompanying note 2. The only circumstance which lacks the minimal discretion present in the Supreme Court cases is testing after an "incident," because that term is not defined by a narrow list of circumstances. Nevertheless, the use of the term "incident" does not grant perilously broad authority to order a drug test at any time for an arbitrary reason and the evidence does not show that the TA has used its discretion in an arbitrary manner. See Dent v. New York City Transit Authority, N.Y.L.J., May 10, 1990, at 28 (N.Y. Sup. Ct. May 7, 1990) ("proviso that there be an `unusual incident' before the employee submits to a drug test serves to prevent unbridled discretion on the part of the TA").

      2. Government Interests in Preventing Drug Users From
               Engaging in Safety-Sensitive Tasks

The government interest prong dictates against a warrant requirement when "the intrusion serves special governmental needs, beyond the normal need for law enforcement." Von Raab, 109 S.Ct. at 1390-91. The government's interest in preventing drug users from "engag[ing] in safety-sensitive tasks" in public transportation presents one such "special need." Skinner, 109 S.Ct. at 1414-15.

Before determining whether TA jobs involve safety-sensitive tasks, it is first necessary to address plaintiffs' two threshold arguments that there could not be any safety interests related to the TA's urinalysis program. First, plaintiffs contend that marijuana does not cause impairment of performance. The expert testimony on this issue varied from one extreme to the other. Defendants' expert, Dr. Jack H. Mendelson, testified that marijuana can have an effect lasting for days during which the user may experience delusions and serious interference with motor coordination. On the other extreme, Dr. Reese Jones testified, for the plaintiffs, that marijuana only has an effect for three hours, during which "significant performance impairment" does not necessarily result. Tr. at 2635. Dr. Jones' conclusions rest upon a theory that "the nature of the way the human system works [is] that you have alternative pathways to get things done . . . if we are impaired in system A we can throw in system B and still function." Tr. at 2635. The studies supplied to the Court by defendants and upon which Dr. Jones was cross-examined, Tr. at 2671-74, show that these "alternative pathways" do not function as well for some as for others in all situations. The evidence shows that marijuana use results in impairment of one's motor functions for at least a few hours and if an employee smoked a marijuana cigarette during a break or before work then he or she would more than likely be impaired during working hours.

Plaintiffs' second argument is that urinalysis does not identify on-duty impairment and therefore there can be no connection between the TA's testing and safety concerns. Even though urinalysis is not necessarily determinative of impairment from marijuana while on-duty, the Von Raab decision approved urine testing as a means of preventing those who carry fire arms from being impaired while on-duty. See Jones v. Jenkins, 878 F.2d 1476, 1477 (D.C. Cir. 1989) (per curiam). The TA's urine testing program is also a means for prevention of on-duty impairment from marijuana use. Plaintiff's argue that supervisors properly trained in detecting marijuana impairment would be a less intrusive and equally effective alternative. While supervisors could in certain instances screen employees and thus be able to prevent an impaired worker from causing an injury, the weight of the evidence that supervision would be an adequate means for identifying and deterring impairment was less than the preponderance. Tr. 1647-49. See also Fowler v. New York City Department of Sanitation, 704 F. Supp. 1264, 1275 (S.D.N.Y. 1989) (citing expert testimony and Mulholland v. Department of Army, 660 F. Supp. 1565, 1569 (E.D.Va. 1987)). There may be means more effective than urinalysis with which to supplement supervision in order to identify and to prevent on-duty impairment, but the selection of a cost-effective alternative is not a choice for the judiciary. Accordingly, urinalysis is found to be a suitable means for addressing safety concerns and the issue remaining is whether the TA possesses surpassing safety interests, as regards each of its occupational categories.

A "safety-sensitive task" is "fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences." Skinner, 109 S.Ct. at 1419; Von Raab, 109 S.Ct. at 1393. Chief Judge Wald, writing for a panel of the D.C. Circuit after the Skinner and Von Raab decisions, elaborated that a safety-sensitive position is not one in which the threat to the public is "through a chain of ensuing circumstances" or an "indirect risk." Harmon v. Thornburgh, 878 F.2d 484, 491 (D.C. Cir. 1989), cert. denied sub nom., Bell v. Thornburgh, ___ U.S. ___, 110 S.Ct. 865, 107 L.Ed.2d 949 (1990). The Harmon decision further explained:

  The public safety rationale adopted in Von Raab and
  Skinner focused on the immediacy of the threat. The
  point was that a single slip-up by a gun-carrying
  agent or a train engineer may have irremediable
  consequences; the employee himself will have no
  chance to recognize and rectify his mistake, nor
  will other government personnel have an opportunity
  to intervene before the harm occurs.

Id. (emphasis in original).

In Skinner, the plaintiffs did not dispute that the railroad employees covered by the drug testing program were engaged in safety-sensitive tasks. In this case, plaintiffs only concede that five of the positions covered by the TA's drug testing program are safety-sensitive: train operator, bus operator, tower operator, train conductor and conductor-flagman. Inattentiveness by workers with those five titles clearly can result directly in serious harm to either the public or other workmen. The Court finds, based on the evidence presented at trial, that several other positions also entail safety-sensitive tasks and that many others do not, as follows.

a. Stations and Revenue Departments

Employees in the Stations and Revenue Departments include the booth clerks, who sell tokens; the cleaners, who are responsible for cleaning and maintaining the station and track walls; the collection agents; the turnstile maintainers; and the stock-handlers. The evidence reveals that the booth clerks, cleaners and the collection agents are in safety-sensitive positions. Booth clerks are charged with the responsibility of reporting all emergency situations in the station via a special communications line to the TA command center. Tr. at 2458. In addition, when a human being or debris falls on to the trackbed, the booth clerk must immediately contact the trainmaster and then cut power on the third rail. Crime in the subways is an everyday occurrence about which booth clerks are expected to be vigilant. Furthermore in recent years, derelicts and defenseless homeless people have taken to living in the stations. New York City subway stations present bizarre and unpredictable dangers to the public and a booth clerk alert to such developments enhances directly the public's safety.

The cleaners are in safety-sensitive positions because they perform the duties of a clerk during the clerk's break, Tr. at 2466, and because they must drive the mobile wash unit trucks. Tr. at 541. Like a gun, a motor vehicle on a public motorway can instantly become a deadly instrument if misused.

The collection agents are in safety-sensitive positions for the simple reason that they carry guns and must be prepared to make life or death decisions. See Von Raab, 109 S.Ct. at 1388, 1393. Although the collection agents rarely if ever use their fire arms, the fact that they are entrusted with deadly force and authorized to use that force in the presence of others renders their position safety-sensitive. Id. at 1392 (surpassing safety interest in those required to "carry" firearms); see also Caruso v. Ward, 72 N.Y.2d 432, 534 N.Y.S.2d 142, 147, 530 N.E.2d 850 (1988); but see Hartness v. Bush, 712 F. Supp. 986, 992 (D.D.C. 1989) (testing employees who carry firearms but who rarely use them may be "found to be overkill").

Employees with other titles in the Stations and Revenue Departments are certainly not in risk free positions. Turnstile maintainers and stockhandlers must operate equipment with care. However, the evidence shows that an error on the part of these other personnel would have no direct effect on the safety of either the public or other workmen. Harmon v. Thornburgh, 878 F.2d at 491.

b. Car Equipment Department

Trains and small forklifts operated by the Car Equipment Department neither carry members of the public, operate in the midst of the public nor threaten seriously the safety of other workers. Painters and certain cleaners in the Car Equipment Department lack even an attenuated connection to safety.

There is an indirect connection between public safety and the repairs done by many Car Equipment personnel. Based on the evidence, however, that connection does not rise to the level of safety-sensitivity because a mistake by a Car Equipment worker will not have the direct and immediate disastrous consequences required by Harmon v. Thornburgh, supra. Uncontroverted testimony shows that after employees have completed repairs and before the repaired train is put back into usage, a different employee or team of employees re-inspects the train. Tr. 466-67. In addition, Car Equipment laborers work under the scrutiny of supervisors, forepersons, and co-workers. After repairs on a particularly critical part like the air brake and certain electrical systems, the train is actually turned on and tested by a team of workers before the train is exposed to public use again.

The road car inspector is the one Car Equipment Department position in which a connection between a mistake and public safety is not attenuated. The road car inspector is the only repair-person who performs his duties outside the repair barns and shops. He works

  in the system where the trains are running. His
  job is he's on there on call anytime there's a
  call from the motorman or trainmaster or
  dispatcher that there's some problems with a train
  in service. . . . He probably has more
  responsibilities than any other maintainer.

Tr. 499-500. This emergency repair-person/inspector has to make on the spot decisions about the proper way to fix a train, which is in service and possibly filled with passengers. The adequacy of the road car inspector's service directly affects the safety of the public. His or her work is necessarily immediately subject to neither supervision, testing nor re-inspection. Frequently it is not until later in the day that a supervisor will evaluate the road inspector's decisions. As a result of the direct effect of a road car inspector's work on the public, the position is safety-sensitive.

c. Track Division

The Track Division of the Track and Structures Department contains track walkers, track workers, track equipment maintainers, chauffeur-specialists, crane operators, railroad track cleaners and power distribution maintainers.

The track walkers inspect all of the tracks "for defects such as broken rail, improper gauging, cracks, base wear," Tr. 2375, as well as "lose spikes, [and] rail joints." Tr. 571. The track walker performs these inspections on his own with only spot checks by a supervisor. After inspecting miles of track, the walker writes a report and the necessary repairs are made in response to the report. The track walker's ability to make an accurate report is critical to the safety of the subway tracks. The evidence shows that if a track walker leaves a defect out of his report, there is little chance that the defect will be noticed until either the occurrence of an accident or the next time the tracks are inspected. Since a track walker's report is important to the safety of the transport system and not necessarily double-checked by another employee, the track walker position is safety-sensitive.

Track workers are the ones who actually fix the track. The work is performed exclusively in groups. Tr. at 2374. In addition to the co-workers, there also usually is a foreperson overseeing a track worker's performance. Due to the degree of supervision of his or her work by co-workers and forepersons, the track worker is not a safety-sensitive title.

Track equipment maintainers are mechanics who repair the various tools used by the track maintenance crew. They work on their own and their repair work is not inspected and observed to the extent of a repair-person working in the Car Equipment Department's repair station. Often they go out alone and repair machines in the tracks and then return. The equipment they work on is often potentially dangerous equipment like chainsaws and a tamping machine — a powerful device that lifts the railroad ties. The safety of other TA workers depends upon a track equipment maintainer's care and in light of the minimal supervision over this position, it is found to be safety-sensitive.

A track cleaner cleans out debris from the track area. They work in groups and their work is checked by a foreperson. The track cleaners have a role in the safety of the subway. They help prevent fires and dispose of infectious waste. Nevertheless, track cleaners are not in a safety-sensitive position because their work is checked and there is only an indirect connection between a negligent cleaning job and disastrous consequences.

The power distribution maintainers are responsible for maintaining the electrified third rail. They always work either in a group or with a foreperson. Although the job sounds dangerous, the evidence shows no relation between the attentiveness of a power distribution maintainer and the safety of others. The only ramification of negligent power distribution is that the worker may hurt himself or not repair the third rail efficiently and the foreperson's supervision should prevent such occurrences. The evidence reveals nothing about a potential public danger for which the power distribution maintainer could be responsible. Accordingly, these well-supervised employees are not in safety-sensitive positions.*fn6

The chauffeur specialist and crane operator are responsible for driving and operating "cranes, cherry pickers, bulldozers and tractor trailers." Tr. at 2382. Testimony reveals that these large and powerful vehicles are often operated at street level and in the presence of others. Motor vehicles in public can instantly become a deadly instrument ...


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