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BURKA v. NEW YORK CITY TRANSIT AUTHORITY

August 31, 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

Defendants move, pursuant to Federal Rule of Civil Procedure 52(b), for an amendment to the findings of fact and conclusions of law contained in the Opinion and Order of June 5, 1990 ("the Opinion") in the above captioned cases. 739 F. Supp. 814. This motion pertains to the portion of the Opinion which found that defendants had violated the due process rights of permanent employees of the Transit Authority (TA) who were disciplined because their urine sample, taken between January 1, 1984 and October 1, 1986, tested positive for marijuana use. Familiarity with the Opinion is presumed throughout this decision.

Background

New York Civil Service Law Section 75 provides for a hearing in which permanent employees of the TA can contest charges of misconduct. Pursuant to New York Civil Service Law Section 76, various unions during the 1980's agreed, by collective bargaining, to either the substitution of an arbitration process for or a choice of an arbitration process instead of the disciplinary hearings provided for by Section 75.*fn1 The agreements to substitution of arbitration processes for Section 75 hearings stated:

  The disciplinary procedure set forth in this
  Section shall be in lieu of any other disciplinary
  procedure that may have previously applied to the
  language covered by this Agreement including but
  not limited to the procedure specified in Sections
  75 and 76 of the Civil Service Law and shall apply
  to all persons who but for this procedure would be
  subject to Sections 75 and 76 of the Civil Service
  Law. This procedure shall not apply to
  probationary, part-time or temporary employees.
    It is the purpose of this agreement to establish
  in the Transit Authority a substitute disciplinary
  procedure to that presently based on Sections 75
  and 76 of the Civil Service Law. This new
  procedure, which shall apply to employees who
  would otherwise be entitled to a hearing under
  Section 75, shall be effective for any charges
  arising from actions of the employee subsequent to
  the date this agreement is signed. It is
  understood that the right to discharge or
  discipline employees for cause and to maintain
  discipline and efficiency of employees is the
  responsibility of the Transit Authority. It is
  further understood that this procedure will be
  applicable to all disciplinary actions initiated
  by management and supervision against employees
  covered by this contract.
    After the decision of the Manager of Labor
  Relations is received by the Union and the
  employee, if the Union decides not to request
  Impartial Arbitration, or if the employee does not
  sign a waiver of his rights under Sections 75 and
  76 of the Civil Service Law, the employee may
  elect to have a hearing under Section 75, except
  where the penalty is a Caution.

Ex. 1 to Mayo Aff.

Defendants argue that the Opinion should be amended to reflect that those unionized permanent employees whose marijuana use charges were resolved by an arbitration process rather than by a Section 75 hearing are not covered by the due process findings. The theory of defendants' argument is that those unionized plaintiffs waived their due process rights when their unions entered into collective bargaining agreements with the TA.

Discussion

Due process rights can be waived when there is clear and compelling evidence of a voluntary, knowing and intelligent waiver. See D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972); Erie Telecommunications, Inc. v. City of Erie, Pa., 853 F.2d 1084, 1094-95 (3d Cir. 1988) (quoting Curtis Publishing Co. v. Butts, 388 U.S. 130, 145, 87 S.Ct. 1975, 1986, 18 L.Ed.2d 1094 (1967)). The Supreme Court instructs lower courts to "`indulge in every reasonable presumption against waiver' of fundamental constitutional rights and . . `[not to] presume acquiescence in the loss' of such rights." Erie Telecommunications, Inc., 853 F.2d at 1095 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)).

Permanent employees had due process rights at stake in the determination that they had used marijuana and it is those rights that defendants claim were waived. Due process requires that adequate procedures accompany a decision to discipline permanent employees for misconduct because there is a constitutional liberty interest in reputation at stake in a challenge to a misconduct charge and because Section 75 creates a constitutional property interest — i.e., the right to continued employment absent sufficient reason for discharge. Section 75 creates a property interest entitled to constitutional protection by virtue of the provision in Section 75(1) that permanent employees:

  shall not be removed or otherwise subjected to any
  disciplinary penalty provided in this section
  except for incompetency or misconduct shown after
  a hearing upon ...

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