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