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LAVERPOOL v. NEW YORK CITY TRANSIT AUTH.

October 31, 1993

FREDERICK B. LAVERPOOL, SR., ANDREW WILDER, JR., PERCY JACKSON, LAMONT GILL, KELDRIC C. BROWNE, JR., and ALTON JONES, Plaintiffs,
v.
NEW YORK CITY TRANSIT AUTHORITY and ROBERT F. KILEY, individually as in his official capacity as Chairman of the METROPOLITAN TRANSIT AUTHORITY, Defendants


SPATT


The opinion of the court was delivered by: ARTHUR D. SPATT

SPATT, District Judge.

 The plaintiffs rested their case on October 18, 1993, with the exception of certain exhibits, namely a Department of Transportation Report and a summary of the information contained in the Transit Authority drug test computer printout (Plaintiff's Exhibit 10). The defendants New York City Transit Authority ("Transit Authority") and Robert F. Kiley move, pursuant to Fed. R. Civ. P. 50(a), for a judgment as a matter of law dismissing the case.

 On October 19-20, 1993, the Court rendered its decision on the motion for judgment as a matter of law from the bench. The following constitutes a written memorialization of that decision. The full decision of the Court consists of the transcript of the oral recitation, together with this written memorialization.

 BACKGROUND

 The original complaint in this action was filed on or about July 6, 1990. The plaintiffs were originally represented by C. Vernon Mason, Esq. who was relieved as plaintiffs' counsel on or about June 13, 1991. A second amended complaint was filed on or about July 13, 1991 by the plaintiffs, who were, at that time, appearing pro se. The second amended complaint alleges that the defendants implemented a drug testing policy that caused the Transit Authority to deprive them of their civil rights by discharging them for testing positively on drug tests (Second Amended Complaint, at PP 2-7). On October 9, 1992 the Court denied the plaintiffs motion for class action certification.

 Presently four of the plaintiffs, Wilder, Jackson, Jones, and Gill, are represented by counsel, Anthony Mazza, Esq. The plaintiffs Laverpool and Browne are proceeding pro se.

 Since the plaintiff Browne had neither appeared at this trial, nor presented any evidence as of October 18, 1993, the Court granted the motion by the defendants to dismiss the action of the plaintiff Keldric Browne for the failure to prosecute (See Minnette v. Time Warner, 997 F.2d 1023, 1027 [2d Cir. 1993] [addressing dismissal for failure to prosecute]) and for failure to prove a prima facie case as to any cause of action.

 On October 19, 1993, the plaintiff Browne appeared at the trial and requested that the Court vacate the default and permit him to present evidence at the trial. At this point, the Court suspended its oral recitation of the decision on the motion for judgment as a matter of law. Thereafter, Court granted the application of the plaintiff Browne to vacate his default and on October 20, 1993 Browne testified before the jury. After Browne's testimony, the Court took a recess and then rendered its oral decision on the motion for judgment as a matter of law.

 Section 1983 and 1985 Claims

 The plaintiffs Laverpool, Wilder, Jackson, Gill, Browne, and Jones originally asserted three claims for Section 1983 violations: (1) Deprivation of their jobs without procedural due process of law; (2) Unreasonable search and seizure due to the drug testing procedures; (3) Equal protection violations. Additionally, these plaintiffs originally asserted claims under 42 U.S.C. § 1985, the civil rights conspiracy statute.

 On April 30, 1993, the Court granted the defendants' motion for summary judgment dismissing all the Section 1983 and Section 1985 claims of the plaintiffs Gill and Jones based upon the defense of the statute of limitations. Additionally, on October 19, 1993, counsel for the plaintiffs Wilder, Jackson, Gill, and Jones stated on the record that their Section 1985 cause of action was withdrawn.

 Accordingly, only the plaintiffs Laverpool, Wilder, Jackson, and Browne have a Section 1983 cause of action, and only the plaintiffs Laverpool and Browne have a Section 1985 cause of action.

 Civil RICO

 The plaintiffs Laverpool, Wilder, Jackson, Gill, Browne, and Jones originally asserted a claim under the Civil RICO statute. On October 18, 1993, counsel for the plaintiffs Wilder, Jackson, Jones, and Gill informed the Court that the claims asserted by these plaintiffs under the Civil RICO statute are withdrawn. Accordingly, the only plaintiffs who are still asserting a cause of action under Civil RICO are Laverpool and Browne.

 Title VII of the Civil Rights Act

 The plaintiffs Laverpool, Wilder, Jackson, Gill, Browne, and Jones originally asserted a claim under Title VII of the Civil Rights Act of 1964. On October 18, 1993, counsel for the plaintiffs Wilder, Jackson, Jones, and Gill informed the Court that the claims asserted by these plaintiffs under Title VII of the Civil Rights Act of 1964 are withdrawn. Accordingly, the only plaintiffs who are still asserting a cause of action under Title VII of the Civil Rights Act of 1964 are the plaintiffs Laverpool and Browne.

 Rehabilitation Act

 The plaintiffs Laverpool, Wilder, Jackson, Gill, Browne, and Jones originally asserted a claim under the Rehabilitation Act of 1973. On October 18, 1993, counsel for the plaintiffs Wilder, Jackson, Jones, and Gill informed the Court that the claims asserted by these plaintiffs under the Rehabilitation Act of 1973 are withdrawn.

 In addition, the Court notes that the claims of the plaintiffs Jones and Gill under this statute are barred by the statute of limitations. The Rehabilitation Act of 1973 is governed by the state statute of limitations for personal injury actions (see Morse v. University of Vermont, 973 F.2d 122, 127 [2d Cir. 1992]) which is three years in New York (See N.Y. C.P.L.R. 214[5]). The claim of plaintiff Jones accrued on September 9, 1985, the date his employment application was rejected, and the claim of plaintiff Gill accrued on May 15, 1986, the date he was dismissed as a result of the positive drug test. Since both of these dates are more than three years prior to June 6, 1990, the date this action was commenced, the claims of Jones and Gill are barred by the statute of limitations.

 Additionally, the plaintiff Laverpool stated, in open Court, that he is not seeking relief pursuant to this statute. Therefore, the only plaintiff with this cause of action is the plaintiff Browne.

 The Court will now address the claims asserted by the remaining plaintiffs, as to the remaining causes of action.

 1. Frederick B. Laverpool, Sr.:

 The plaintiff Frederick Laverpool ("Laverpool"), was a Special Inspector with the Transit Authority and a former president of the Special Inspector's Benevolent Association. During his time as union president he "began an investigation, questioning irregularities and inconsistencies" in the Transit Authority's drug testing policies (Second Amended Complaint, at P 204). Laverpool was tested for drugs on May 4, 1988 and was informed that his test was positive on May 8, 1988. Laverpool was dismissed on June 9, 1988. The second amended complaint alleges a scheme in which the Transit Authority drug tested Laverpool in an attempt to get rid of him. This "scheme" was furthered by the allegation that the Transit Authority "bribed" the arbitrator of the employment disputes by offering him an "$ 80,000 per annum job" (Second Amended Complaint, at P 211).

 2. Andrew Wilder, Jr.:

 The second amended complaint alleges that the plaintiff Andrew Wilder, Jr. ("Wilder") was involved in a passenger-train incident on June 25, 1987 and based upon this incident was required to submit to a drug test (Second Amended Complaint, at PP 218-19). There is the further allegation that the Train Operator, who was a white male, was not given a drug test, but Wilder, who is black was tested and the test was positive (Second Amended Complaint, at P 220). Wilder was then assigned to another job, as a Mail Clerk, and was directed on or about January 5, 1988 to submit to another drug test in which Wilder tested positive (Second Amended Complaint, at PP 223-24). Wilder was discharged on January 18, 1988 (Second Amended Complaint, at PP 225).

 3. Percy Jackson:

 The second amended complaint alleges that the plaintiff Percy Jackson ("Jackson") began his employment with the Manhattan and Bronx Surface Transit Operating Authority ("MaBSTOA") in 1978 as a bus driver (Second Amended Complaint, at P 230). On or about March 25, 1988, he was required to submit to a drug test during his annual physical examination (Second Amended Complaint, at P 231). He tested positive and because he feared losing his job participated in the Employee Assistance Program ("EAP") (Second Amended Complaint, at PP 235-36). There is the allegation that he submitted to thirty (30) tests, while in the EAP program, and all were negative. He returned to work and pursuant to the requirement for testing employees returning to the job, submitted to a drug test on October 14, 1988, and tested positive (Second Amended Complaint, at P 237). When he challenged his dismissal because of the positive result he determined that his specimen did not bear his "affixed signature or initials" which he alleges were placed on his original specimen (Second Amended Complaint, at P 238), but this did not prevent his dismissal.

 4. Lamont Gill:

 In the second amended complaint, the plaintiff Lamont Gill ("Gill") alleges that he was absent from work due to an extended hospitalization and that he was required to submit to a "return to work" physical examination on March 17, 1986. This examination included a drug test. On April 1, 1986, Gill was suspended, pending dismissal, as a result of testing positive for a controlled substance. On May 15, 1986 a "tripartite arbitration hearing" was held, over Gill's objection that he had inadequate representation (Second Amended Complaint, at P 251). Although the June 2, 1986 decision of the arbitration panel recommended reinstatement, the Transit Authority dismissed the plaintiff Gill on June 9, 1986 (Second Amended Complaint, at P 253).

 5. Alton Jones:

 The plaintiff Alton Jones ("Jones") is not an employee of the Transit Authority and is suing because certain allegedly discriminatory practices deprived him of the opportunity of obtaining a job with the Transit Authority. Jones alleges that on or about September 9, 1985 his employment application was rejected due to an allegedly positive test of his urine sample (Second Amended Complaint, at P 289). Jones filed numerous appeals of his rejected application, however the determination to reject his application was sustained. This plaintiff attempted to challenge his medical disqualification, but he was denied such an appeal (Second Amended Complaint, at P 291).

 6. Keldric C. Browne, Jr.:

 The plaintiff Keldric Browne, Jr. ("Browne") was employed by the transit authority as a bus operator. The second amended complaint alleges that during November 1988, Browne voluntarily entered the transit authority's EAP program. When Browne returned to work on or about March 3, 1989, he was required to submit to a drug test and the result was negative (Second Amended Complaint, at P 262).

 Thereafter, Browne resumed his duties as a bus operator and was tested for drugs on or about April 6, 1989. On April 12, 1989 he was informed that he had tested positive for a controlled substance and was suspended, pending dismissal (Second Amended Complaint, at PP 263-64). Browne then re-entered the EAP program and after not testing positive during the program he was allegedly informed that he was ineligible for reinstatement (Second Amended Complaint, at PP 271-72). It is alleged that Browne was discharged in violation of the Rehabilitation Act of 1973 (Second Amended Complaint, at P 272).

 DISCUSSION

 Motion for a Judgment as a Matter of Law:

 A motion for a judgment as a matter of law, formerly known as a judgment notwithstanding the verdict, is governed by Rule 50(a) of the Federal Rules of Civil Procedure which states, in relevant part, that:

 
"if during a trial by jury a party has been fully heard with respect to an issue and there is no legally sufficient evidentiary basis for a reasonable jury to have found for that party with respect to that issue, the court may grant a motion for judgment as a matter of law against that party on any claim . . . that cannot under the controlling law be maintained without a favorable finding on that issue" (Fed. R. Civ. P. 50[a][1]).

 In explaining this standard, the Second Circuit has recently reiterated that:

 
"the district court may grant the motion 'only when, viewing the evidence most favorably to the party other than the movant, "there can be but one conclusion as to the verdict that reasonable men could have reached."' Diebold v. Moore McCormack Bulk Transp. Lines, Inc., 805 F.2d 55, 57 (2d Cir. 1986) (quoting Mattivi v. South African MarineCorp., "Huguenot", 618 F.2d 163, 167 (2d Cir. 1980)). The nonmovant must be given the benefit of all reasonable inferences, because the trial court 'cannot assess the weight of the conflicting evidence, pass on the credibility of witnesses, or substitute its judgment for that of the jury.' Mattivi, 618 F.2d at 167. ( Weldy v. Piedmont Airlines, Inc., 985 F.2d 57, 59-60 [2d Cir. 1993]; see also Kreppein v. Celotex Corp., 969 F.2d 1424, 1426 [2d Cir. 1992]; Michelman v. Clark-Schwebel Fiber Glass Corp., 534 F.2d 1036, 1042 [2d Cir.], cert. denied, 429 U.S. 885, 50 L. Ed. 2d 166, 97 S. Ct. 236 [1976]).

 A federal district court should grant a motion for a judgment as a matter of law, after a jury returns with a verdict, only when

 
"the movant's evidence is so overwhelming that a reasonable jury could only have reached the opposite result, Baskin v. Hawley, 807 F.2d 1120, 1129 (2d Cir. 1986) or '"such a complete absence of evidence support[s] the verdict that the jury's findings could only have been the result of sheer surmise and conjecture,"' Newmont Mines Ltd. v. Hanover Ins. Co., 784 F.2d 127, 132 (2d Cir. 1986) (quoting Mallis v. Bankers Trust Co., 717 F.2d 683, 688-89 (2d Cir. 1983)). A less stringent standard would risk impermissibly substituting our view of the evidence for that of the jury" ( County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1311 [2d Cir. 1990]).

 It is based upon these legal principles that the Court examines the defendants' motion for a judgment as a matter of law at the conclusion of the plaintiffs' case. In doing so, the Court will address each of the claims asserted by the plaintiffs.

 Claims Asserted by Plaintiff Jackson:

 The plaintiff Jackson testified that he was a former employee of the MaBSTOA and was terminated from his employment in September or October, 1988. On cross examination he stated that he never worked for the New York City Transit Authority. Notwithstanding the many common areas of employment and office facilities between the New York City Transit Authority and MaBSTOA, it is clearly established law that MaBSTOA and the Transit Authority "are separate entities" ( Reis v. Manhattan and Bronx Surface Transit Operating Authority, 161 A.D.2d 288, 555 N.Y.S.2d 61, 62 [1st Dep't], appeal denied, 560 N.Y.S.2d 989 [1990]). Further, it has been held that the Transit Authority and MaBSTOA are not "united in interest" and service of a notice of claim and complaint upon one entity does not constitute service on the other entity (See Zaiman v. Metropolitan Transit Authority, 186 A.D.2d 555, 588 N.Y.S.2d 402, 404 [2d Dep't 1992] [citing Adams v. New York City Transit Authority, 140 A.D.2d 572, 573, 528 N.Y.S.2d 638 [2d Dep't 1988]; Reis, supra, 555 N.Y.S.2d at p. 62]).

 Accordingly, since the plaintiff Jackson was not an employee of the Transit Authority, was not dismissed by the Transit Authority, and has not introduced any evidence to demonstrate that he was injured as a result of the actions of the defendants Transit Authority or Kiley, the defendants' motion for a judgment as a matter of law dismissing his federal and state claims is granted.

 State Law Claims:

 According to the Public Authorities Law, "an action against the [Transit Authority] founded on tort shall not be commenced more than one year and ninety days after the happening of the event upon which the claim is based, nor unless a notice of claim shall have been served on the authority within the time limited, and in compliance with all the requirements of section fifty-e of the general municipal law" (N.Y. Pub. Auth. Law § 1212[2]). The plaintiffs cannot proceed in this lawsuit as to any defendant, on any state cause of action, unless they first served a notice of claim within ninety days of the incident and second, commenced an action within one year and ninety days. In the present case none of the plaintiffs submitted evidence that they served a notice of claim on the defendants and all of the supplemental state law claims sound in a tortious nature.

 This morning, at approximately 9:30 AM our chambers received a telephone call from Mr. Laverpool indicating that he has the notice of claim for his state court claims. For the purpose of making a ruling on this Rule 50 motion, the Court will presume that Mr. Laverpool did serve a notice of claim within ninety days from his discharge on June 9, 1988. However, this action was commenced on July 6, 1990, more than one year and ninety days from the date of his discharge and accordingly the supplemental state law claims are time barred.

 Therefore, the motion for judgment as a matter of law dismissing all New York State law claims is granted as to all plaintiffs, except the plaintiff Laverpool, for the failure to serve a notice of claim and as to all of the plaintiffs, except Browne, for the failure to commence an action within one year and ninety days.

 Since the plaintiffs Gill and Jones only had supplemental state claims remaining, the motion to dismiss the complaint with regard to all causes of action of plaintiffs Gill and Jones is granted. After the above determinations, the remaining plaintiffs for consideration are Laverpool, Wilder, and Browne. However, to complete the record, the Court will also address the merits of the remaining claims by the plaintiff Jackson for Section 1983 violations.

 Section 1983 Claims:

 Section 1983 states, in relevant part, that "every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress" (42 U.S.C. § 1983). A violation of this statute is proven when "a person or persons acting under color of state law deprived a plaintiff of rights, privileges, or immunities secured by the constitution or laws of the United States ( McDarby v. Dinkins, 907 F.2d 1334, 1336 [2d Cir. 1990] [citing Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 [1981]).

 The plaintiffs Laverpool, Wilder, Browne, and Jackson assert that the defendant Transit Authority violated Section 1983 by: (1) depriving the plaintiffs of their jobs without procedural due process of law; (2) improperly drug testing the plaintiffs in violation of their Fourth Amendment search and seizure rights; and (3) depriving the plaintiffs of equal protection under the law. The Court will address each of these claims individually.

 (1) Section 1983 Procedural Due Process:

 The Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 335, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976), set forth the criteria to be used by a Court in determining whether an administrative procedure comports with the procedural requirements of the due process clause. In Mathews the Supreme Court stated that the Court should consider:

 
"First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail" ( Mathews, supra, 424 U.S. at p. 335; see also Patchogue Nursing Center v. Bowen, 797 F.2d 1137, 1145 [2d Cir. 1986], cert. denied, 479 U.S. 1030, 93 L. Ed. 2d 828, 107 S. Ct. 873 [1987] [discussing medicare participation]).

 In examining a claimed deprivation of property without due process of law, the Court must ask two questions: (1) Were the plaintiffs deprived of a property interest; and (2) What process is due? (See Kraebel v. New York City Department of Housing Preservation and Development, 959 F.2d 395, 404 [2d Cir.], cert. denied, 121 L. Ed. 2d 245, 113 S. Ct. 326 [1992]).

 The plaintiffs Laverpool, Wilder, and Browne established that they were entitled to civil service job protection as civil service employees (See N.Y. Pub. Auth. Law § 1210). The plaintiff Jackson, as an employee of MaBSTOA, is not covered by the civil service law, and thus does not have a property interest in his job (See Collins v. Manhattan & Bronx Surface Transit Operating Authority, 62 N.Y.2d 361, 465 N.E.2d 811, 477 N.Y.S.2d 91, 92-95 [1984]). However, even if the Court presumes, for the purpose of this motion, that all of these plaintiffs have a "property" interest in their jobs, the question then becomes "What process is due?" The Court will address the procedures employed in discharging each plaintiff.

 Laverpool

 In the present case, the plaintiff Laverpool testified that in 1987 he became ill for five (5) months due to a heart condition. Upon his return to his job as a Special Inspector he was told that he had to take a mandatory drug test on May 4, 1988. On May 8, 1988 Mr. Laverpool was advised that his urine specimen had tested positive for a controlled substance. Thereafter, the plaintiff Laverpool went through all three steps of the grievance procedure prior to his being terminated for the drug test.

 Thereafter, a second arbitration hearing was scheduled for April 21, 1991 before Arbitrator Martha Cooper, who was selected by the American Arbitration Association. Mr. Laverpool conceded, in his testimony, that he did not appear for this arbitration hearing. In fact, a letter from the plaintiff Laverpool to the American Arbitration Association, dated April 20, 1991 (Defendant's Exhibit B), stated that Laverpool would not participate in the arbitration.

 According to the Second Circuit, in a recent opinion, "due process requires, as a general matter, an 'opportunity to be heard "at a meaningful time and in a meaningful manner"' ( Calhoun v. New York State Div. of Parole Officers, 999 F.2d 647, 653 [2d Cir. 1993]). In the present case, with respect to the plaintiff Laverpool, the Court finds that Mr. Laverpool was provided with numerous opportunities to review the merits of his termination. First, he exhausted the three step procedure available to him by the Transit Authority and the collective bargaining agreement. Second, he appeared before Arbitrator Simmelkjaer. Third, he had Simmelkjaer's award vacated in an action commenced in New York State Court. Fourth, he was afforded the opportunity to arbitrate the matter before Arbitrator Martha Cooper on April 21, 1991 and by his written letter dated April 21, 1991 and his actions, failed to appear at this opportunity to review the merits of his discharge. He therefore abandoned his appeal and waived his right to challenge the dismissal.

 The Court finds, as a matter of law, that the plaintiff Laverpool failed to establish that he was denied the opportunity to be heard at a meaningful time and in a meaningful manner. There is no evidence submitted by Laverpool that he was deprived of any due process. On the contrary, the evidence is clear that he was afforded the most meaningful due process, under the circumstances of his employment (See Calhoun, supra, 999 F.2d at p. 653).

 Accordingly, the motion by the defendants for a judgment as a matter of law dismissing his procedural due process claims under both Section 1983 and New York state law is granted.

 Wilder

 The plaintiff Wilder asserts that on June 25, 1987 he was involved in an incident in which a passenger was injured while reaching through the window of the train car in which Wilder was located as it was leaving the station platform. Mr. Wilder testified that he was the person who pulled the emergency cord on the train which stopped the train.

 The plaintiff Wilder was subjected to a drug test as a result of this incident, although he asserts that the train operator was not tested. Wilder was informed, thereafter, that he had tested positive for marijuana. Nevertheless, he returned to work on the same train and worked three more months as a conductor. Then during September 1987, although he maintained his job title as a "conductor", by a "pick" he chose to work in a mail clerk's job. On or about January 8, 1988 he was subjected to a second drug test. He was informed on or about January 18, 1988 that he was being dismissed. Wilder testified that he went to a step one hearing together with his union representative. He was informed that since this was his second positive test, he was being terminated.

 Further, Wilder testified that he was informed about his right to appeal this determination of his termination and states that he requested a step two hearing, but never received it, despite his apparent request. The Transit Authority, during its cross-examination, established that the plaintiff Wilder was represented by a union representative at all disciplinary hearings. Further, the Transit Authority introduced evidence (Defendants' Exhibit AG) ...


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