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LAVERPOOL v. NEW YORK CITY TRANSIT AUTH.

March 30, 1991

FREDERICK B. LAVERPOOL, SR., GINA MARSH, ELLA HILL, ANDREW WILDER, PERCY JACKSON, JANE BEST-SIMPSON, JOHN DOE, AND JANE DOE, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
NEW YORK CITY TRANSIT AUTHORITY, ET AL., DEFENDANTS.



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

  OPINION AND ORDER

The plaintiffs, all former employees of the New York City Transit Authority ("TA"), challenge the TA's drug testing requirements, methodology and policy, and also its disciplinary procedures as discriminatorily directed against minorities. The Amended Complaint alleges six causes of action throughout this sixty-nine page pleading with 323 numbered paragraphs, and the plaintiffs refer to alleged violations of the Civil Rights Act, 42 U.S.C. § 1981, 1983 and 1985; Title VII, 42 U.S.C. § 2000e-5; the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961-1968; section 504 of the Rehabilitation Act, 29 U.S.C. § 794; and New York's Public Authorities Law § 1210 and Civil Service Law § 75.

The defendants move to dismiss the Amended Complaint on the grounds that the complaint fails to state a claim for which relief may be granted, and that certain claims are barred by the applicable statutes of limitation. The defendants also move to strike all redundant, scandalous, impertinent and immaterial matter from the Amended Complaint.

Although the plaintiffs have not filed any opposition to this motion, certain of the plaintiffs cross-move to withdraw as named plaintiffs in this action.

I. FACTUAL BACKGROUND

The facts set forth below have been gleaned from the Amended Complaint, which are deemed true for purposes of this motion to dismiss (see Branum v. Clark, 927 F.2d 698, 704 [2d Cir. 1991]; Procter & Gamble Co. v. Big Apple Indus. Bldgs., Inc., 879 F.2d 10, 14 [2d Cir. 1989], cert. denied, ___ U.S. ___, 110 S.Ct. 723, 107 L.Ed.2d 743 [1990]). Additionally, the Court draws all reasonable inferences favorably toward the plaintiff (see Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 [1974]).

The Court notes that the Amended Complaint purports that this is a class action, although no motion has been made, nor has the Court ordered the required certification (see Fed.R.Civ.P. 23).

Although the Amended Complaint is replete with redundant and prolix allegations, the basic material allegations are summarized as follows:

General Allegations:

The plaintiffs, all former employees of the TA,*fn1 were either suspended, disciplined and/or discharged from employment with the TA allegedly due to testing positive for use of controlled substances from the period of September 1984 through November 1989.

The plaintiffs allege that the defendants' Policy Instruction 6.0.2, which allegedly requires employees to submit to drug screening at a "back-to-work" physical after an extended illness, does not define any level of suspicion necessary to serve as a predicate for ordering such a test. According to the plaintiffs, this merely "acts as a subterfuge to counteract an unreasonable search and seizure" (Amended Complaint ¶ 14).

According to the plaintiffs, the defendants knowingly, intentionally and maliciously disciplined and discharged the plaintiffs and other minorities similarly situated by utilizing "a known unreliable and inaccurate controlled substance testing procedure" (Amended Complaint ¶ 16). The defendants were also allegedly notified and aware of inconsistencies and defective procedures used by Compu-chem laboratory, the testing facility utilized by the defendants. Despite such notice, the defendants allegedly continue to utilize the laboratory, and continue to deny the plaintiffs equal terms and conditions of employment in violation of 42 U.S.C. § 1981.

The plaintiffs also allege that the defendants are an "enterprise" within the meaning of RICO, "whose contractual business relationship between its contract laboratory Compu-chem, resulted in their activities being directed toward attaining a single goal of establishing a related and continuing activity of knowingly using inaccurate and unreliable urinalysis testing" (Amended Complaint ¶ 19). In furtherance of this scheme, the defendants are alleged to have attempted to bribe public officials in order to obtain the necessary certificate of license for Compu-chem to operate.

Specific or Particularized Allegations:

The plaintiffs allege that the TA maintains a policy of screening all applicants for TA jobs for drug use, including marijuana use, while failing to recognize the shortfalls or inaccuracies of such testing. Since approximately 1984, all applicants for TA employment have been and presently are allegedly required to submit urine samples for drug analysis as part of a pre-employment screening process.

The plaintiffs allege that the screening is not done uniformly, rather it is done with "invidious motivation and intent of depleting its minority work force" (Amended Complaint ¶ 109). Furthermore, the accuracy and reliability of the testing is not ensured, which effectively denies minorities (blacks) equal terms and conditions of employment, such as by failing to conduct blind quality assurance tests. As a result, many job applicants and employees are "falsely labelled drug users and inappropriately disciplined and/or denied job promotions and other terms and conditions and benefits of employment" (Amended Complaint ¶ 112).

The plaintiffs also allege that testing employees with "non-safety sensitive" jobs for such positions violates the Fourth and Fourteenth Amendments to the United States Constitution, as well as Articles One and Twelve of the New York Constitution.

The plaintiffs further allege that the defendants instituted a "counter intelligence" program through the use of friends, associates, relatives, contractors and vendors for the purpose of preventing the hiring, promotion and conferral of employment benefits upon the TA's minority work force, and that the defendants have also established a "minority hit list". The "minority hit list" allegedly consists of employees, including the plaintiffs, who oppose the defendants' allegedly discriminatory policies, including the drug testing policy.

According to the plaintiffs, "similarly situated white employees of Defendants were hired, given promotions, retained and treated differently in all employment matters" (Amended Complaint ¶ 129). The plaintiffs also aver that the defendants have and continue to act in an arbitrary and capricious manner toward minorities, but do not act similarly toward the TA's white employees.

The following allegations pertain to each of the named plaintiffs.

Plaintiff Laverpool:

The plaintiff Frederick B. Laverpool ("Laverpool") served as Union President for approximately eight years, during which time "there existed an extreme history of hostilities and malicious union animus by Defendant TA against Plaintiff" (Amended Complaint ¶ 142). In May 1987, Laverpool began investigating and questioning the alleged irregularities and inconsistencies of the defendants' drug testing policy and related discriminatory practices.

On November 15, 1988, an arbitration hearing was held, at which time Arbitrator Simmelkjaer rendered a decision adverse to Laverpool, recommending Laverpool's dismissal. Laverpool alleges that Arbitrator Simmelkjaer was part of the defendants' "counter intelligence" policy, insofar as the defendants allegedly offered Arbitrator Simmelkjaer a bribe in the form of a part-time position with the TA for $80,000 per annum. Accordingly, Laverpool alleges that his due process rights were violated on the ground that he did not receive a fair and impartial arbitration hearing. Laverpool further alleges that he was "targeted due to his race and opposition to improper practices by the defendants" (Amended Complaint ¶ 152).

Plaintiff Best-Simpson:

The plaintiff Jane Best-Simpson alleges violation of Title VII insofar as the terms and conditions of her employment contract are "unequal" with others similarly situated, reflecting discrimination on the basis of her race and sex, and also in retaliation for her reporting the alleged improper employment practices of the defendants.

Plaintiff Marsh:

Plaintiff Gina Marsh ("Marsh") began employment with the TA as an undercover TA Police Officer in January 1983 which, the plaintiffs admit, is a "safety sensitive job" (Amended Complaint ¶ 155-56). After being hospitalized for multiple injuries sustained in a motor vehicle accident in January 1988, on February 18, 1988, Marsh was directed to submit to a mandatory drug urinalysis test during the course of a "back-to-work" physical.

Marsh's urinalysis tested positive for drug use, which resulted in her suspension by the TA. Marsh was later advised by the TA that she was no longer suspended since her urine specimen was allegedly improperly received and not in its original container. She was reinstated, but the charges were allegedly never discontinued by the TA.

Marsh alleges that she was then forced to submit to a second urinalysis to test for drug use, which sampling was tested by an independent laboratory. The test was reported to be positive for illegal drug use. On November 9, 1988, an administrative hearing was held, allegedly without Marsh or her attorney present, which resulted in a recommendation to terminate Marsh's employment. On April 12, 1989, Marsh was discharged by the TA based on the administrative recommendation.

Marsh alleges that she was targeted due to her race, sex and opposition to improper employment practices, and was made a victim to the defendants' "counter intelligence" policy.

Plaintiff Hill:

Plaintiff Ella Hill ("Hill") was employed by the office of the Inspector General of the TA as a Paralegal/Legal Assistant. After several intra-office job transfers at the TA, Hill was ultimately assigned to the TA's drug testing and confirmation unit where she participated in the disciplinary process.

During the time of her employment, Hill became aware of various alleged improprieties with regard to the drug testing procedures, such as misplaced samples, abnormally high reporting and incorrect testing. Along with a TA co-worker, she reported these improprieties to a local newspaper. She also discussed this with a member of the defendant Metropolitan Transportation Authority Board, and filed a complaint with the Equal Employment Opportunity Commission and the New York State Division of Human Rights.

Hill alleges that she was generally denied promotions, salary raises, employment benefits, transfers, and was retaliated against due to her opposition to allegedly improper employment practices, including the defendants' drug testing policy. Hill also alleges that she was retaliated against and/or terminated due to her race, sex, disability and/or national origin in violation of Title VII.

Plaintiff Wilder:

Plaintiff Andrew Wilder ("Wilder") was a train conductor with the TA. The plaintiffs concede that the position of train conductor is considered a "safety sensitive" job. Wilder alleges that he was dismissed from the TA solely on the basis of the TA's drug testing policy and unreliable and inaccurate urinalysis procedure.

While performing his assigned duties as a train conductor, on June 25, 1987 Wilder allegedly became involved in a "passenger-train incident". Following this incident, Wilder was directed to undergo a drug urinalysis test pursuant to the defendants' policy of requiring urinalysis for all train employees after the occurrence of such an incident. Wilder alleges that the train-operator who was involved in this incident was a white male, but was not ordered to submit to a drug urinalysis.

Wilder tested positive for a controlled substance, but apparently received no disciplinary action from the TA for the alleged violation of the defendants' drug testing policy and procedure.

In January 1988, while assigned to "non safety-sensitive" duty as a mail clerk, plaintiff Wilder was ordered "without a scintilla of bare reasonableness or individualized suspicion of illegal substance drug use to submit to a drug urinalysis test". Wilder was notified that the urinalysis test was positive for a controlled substance. On January 18, 1988, Wilder was dismissed pending appeal during a disciplinary proceeding which is still pending.

Wilder alleges that he has been denied due process of law by being dismissed without first having been given the procedural benefits afforded under the Public Authorities Law § 1210, or the Civil Service Law § 75. He also claims that he has been denied and deprived of his property interest in his tenured civil service position, without due process of law guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983.

Plaintiff Jackson:

Plaintiff Percy Jackson ("Jackson"), began employment with the defendant in the capacity of Bus Operator in September 1978. On or about March 25, 1988, during a required annual physical examination, Jackson was ordered to submit to a drug urinalysis pursuant to the defendants' policy. Jackson was informed that his urinalysis test was positive for a controlled drug use. He was suspended for allegedly violating defendants' Policy Instruction 6.O.2.

Jackson returned to work in September 1988 and, pursuant to the defendants' policy of retesting employees who had previously tested drug positive, he was ordered to resubmit to a urinalysis in October 1988. Plaintiff Jackson again tested positive for an illegal controlled substance pursuant to the defendants' policy. As a result, Jackson was dismissed. He contends that he was dismissed from the defendant TA solely on the basis of the defendant TA's drug testing policy and unreliable and inaccurate urinalysis procedures.

After requesting a confirmation test for the October 1988 urinalysis, Jackson was informed that his confirmation specimen did not bear his affixed signature or initials, which was allegedly affixed by the plaintiff at the time of the taking of his original specimen. Jackson also alleges that a disciplinary hearing was held in his absence and, to date, a decision has not been rendered.

Jackson further alleges that the defendants willfully and intentionally conspired to fraudulently award Compu-chem the drug urinalysis contract in 1987. Jackson also alleges that the defendants willfully and intentionally failed to comply with federal law, the federal Health and Human Services guidelines, and the Department of Transportation guidelines, all of which Jackson contends require proficiency testing. Additionally, Jackson alleges that the defendants maliciously and deliberately conspired to deplete the numbers of minority workers in its work-force through the use of unreliable and inaccurate drug urinalysis testing. This was in furtherance of the defendants' "counter intelligence" policy.

Alleged Violations:

Although not specifically set forth as separate causes of action in the Amended Complaint, all of the plaintiffs ...


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