The opinion of the court was delivered by: Spatt, District Judge.
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.
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 ). 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 ).
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.
Although the Amended Complaint is replete with redundant and
prolix allegations, the basic material allegations are
summarized as follows:
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
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
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
The following allegations pertain to each of the named
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).
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 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
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 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 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
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
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
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 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.
Although not specifically set forth as separate causes of
action in the Amended Complaint, all of the plaintiffs ...