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August 12, 1993

B.C.C. ASSOCIATES, INC., Defendant.

The opinion of the court was delivered by: MICHAEL B. MUKASEY


 Plaintiff sues under 42 U.S.C. § 1983, alleging that defendant, her former employer, violated her constitutional rights when it fired her in March 1990 after she tested positive for cocaine use during a random urinalysis. Plaintiff and defendant both move for summary judgment. For the reasons stated below, plaintiff's motion is denied, defendant's motion is granted, and the case is dismissed.


 Defendant B.C.C. Associates, Inc. ("BCC") is a 60-employee private corporation headquartered in Brookfield, Connecticut. (Def. Rule 3(g) Statement P 1; S. Conant Decl., Ex. 1 & Dep. at 13-14) BCC is a family business: Barton Conant is its sole owner and manager; two of his sons, Scott and James, are vice presidents; and several other family members are employees. (B. Conant Dep. at 1-12) BCC counts money for the Triborough Bridge and Tunnel Authority ("TBTA"), a public agency, at TBTA's Randall's Island Processing Center ("RIPC"). (Def. Rule 3(g) Statement P 3)

 TBTA collects toll receipts from bridges and tunnels in the New York City area. Before 1984, TBTA contracted with local banks to count its receipts. (S. Conant Dep. at 18-19) Until late 1983, Barton and Scott Conant worked at Abbott Systems, Inc., another private company which advised TBTA about problems related to money counting. (B. Conant Dep. at 8-13) In late 1983, the Conants left Abbott, formed BCC, and, with Abbott's consent, also began advising TBTA, on a trial basis. (Id. at 14; S. Conant Dep. at 6-10, 14-15)

 In early 1984, BCC sought to replace the private banks that were counting TBTA's receipts, and submitted a proposed procedures manual to TBTA. (S. Conant Dep. at 152-156) After negotiations, on June 28, 1985, BCC and TBTA entered into a written contract (the "Contract") for BCC to count TBTA's receipts until 1992. (S. Conant Decl., Ex. 3) After a competitive bid, the Contract was renewed in 1992. (Conant Decl., Ex. 7)

 The Contract provided, among other things, that BCC would be liable for any negligent loss of TBTA funds and property. (Lazan Aff., Ex. E, P 4) In addition, the Contract provided that:

E. The Company [BCC] shall periodically check the work performed by its employees to ensure that the counting equipment is in good order and that the money is being counted and reported accurately. The records to be prepared by the Company and the procedures for counting the money and tokens are set forth in Appendix A which is made a part of this agreement.
F. The Company shall provide adequate supervision to insure a constant test of integrity for all aspects of the assigned responsibilities . . . .

 (Id.) The "procedures" referred to above were set forth in Appendix A to the Contract:

3. BCC Associates - Rights and Privileges
- BCC Associates retains the right to dismiss any employee with or without cause at its own initiative, or at the request of Triborough Bridge and Tunnel Authority. Information received from any safeguard testing or procedure may also be cause for dismissal.
- Video Surveillance, periodic pre-counting of receipts, poligraphy [sic], urinalysis, personal search, metal detection devices, long and short term statistical analysis, medical testing, and background research may all be used by BCC Associates to monitor performance and compliance, and may be used as cause for dismissal.

 (Lazan Aff., Ex. E at #226) (emphasis added)

 Plaintiff Joyce Atkinson worked for BCC at the RIPC from June 1989 until March 1990. (Pl. Dep. at 53-55) Plaintiff's job consisted of counting, with the assistance of a machine, TBTA's daily toll receipts. (Id. at 62-65) TBTA played no role in hiring plaintiff. (S. Conant Dep. at 434)

 Plaintiff testified that, at her initial job interview, BCC informed her that "there would be random drug tests." (Pl. Dep. at 73) Later, she signed an agreement consenting to such tests. (S. Conant Decl., Ex. 8) In March 1990, ten BCC employees, including plaintiff, tested positive for cocaine, and all were dismissed. (Pl. Dep. at 94; S. Conant Dep. at 446)

 Plaintiff filed her complaint on April 29, 1992. *fn1" Plaintiff claims that BCC violated her rights under Fourth and Fourteenth Amendments of the United States Constitution, and under Article I, Sections VI and XII of the New York State Constitution. (Pl. Mem. at 2) Specifically, plaintiff claims that BCC violated her Fourth Amendment rights when "acting under color of state law, [BCC] terminated Plaintiff after subjecting her to a random drug test without individualized, reasonable suspicion that she had engaged in illegal drug use." (Compl. P 44) Plaintiff claims also that BCC violated her due process rights under the Fourteenth Amendment because

acting under color of state law, [BCC] failed to provide Plaintiff with an opportunity to be heard before placing false, stigmatizing references pertaining to drug use in her employment record that have been and likely will be disseminated to potential employers and has hindered and will, in the future, hinder Plaintiff's ability to obtain employment.

 (Compl. P 45)

 Plaintiff and defendant both move for summary judgment. Defendant BCC argues that it is entitled to summary judgment, because BCC is a private entity not engaged in state action, and therefore did not act "under color of state law" when it fired plaintiff.

 Fed. R. Civ. P. 56(c) requires a summary judgment if the evidence demonstrates that "there is no genuine issue as to any material fact and [that] the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all inferences, against the moving party. See United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962) (per curiam); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987).

 However, the mere existence of disputed factual issues is insufficient to defeat a motion for summary judgment. Knight v. United States Fire Ins. Co., 804 F.2d 9, 11-12 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987). The disputed issues of fact must be "material to the outcome of the litigation," id. at 11, and must be backed by evidence that would allow "a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus, Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. With respect to materiality, "substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248.

 For the reasons stated below, there is no genuine issue of fact as to whether BCC acted "under color of state law" when it fired plaintiff; it did not. *fn2" Accordingly, defendant's motion for summary judgment is granted.


 Whether "state action" exists here depends, as a preliminary matter, on the meaning of the Contract and the extent of TBTA's involvement in the business of BCC. Plaintiff claims that TBTA required BCC to test for drug use, because the Contract "requires defendant to perform urine tests of its employees for drugs." (Pl. Mem. at 5) BCC denies that TBTA had any role in such testing, and argues that BCC was free to decide whether and how to test. As explained below, there is no genuine issue of fact as to whether BCC was obligated by TBTA to test its employees for drug use; it was not.

 Plaintiff is correct that, as a general matter, TBTA is closely tied to BCC. Plaintiff claims, and defendant admits, the following facts: BCC performs the Contract at a TBTA-owned building; TBTA owns much of the equipment BCC uses -- although much of it was developed by and purchased from BCC (S. Conant Dep. at 15-17); TBTA pays BCC's maintenance costs, and telephone and electric bills; TBTA monitors and investigates BCC's employees, and uses video cameras and metal detectors to protect against theft; and several TBTA representatives are present at BCC for a few hours every business day. (Pl. Rule 3(g) Statement & Def. Response PP 16-20, 23-26) Moreover, defendant admits that ...

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