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WATSON v. SEXTON

January 15, 1991

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.



The opinion of the court was delivered by: Mukasey, District Judge.

[EDITOR'S NOTE: THIS PAGE CONTAINED  AND  ARE
NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT
DISPLAYED.]

OPINION AND ORDER

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: "[d]ocumentation 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:

  [S]he 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. ...

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