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
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.
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. . . .
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
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. ...