the urine into two bottles, filled out and signed the urinalysis form, sealed the bottles, signed the labels, placed the urine sample bottles back into the box, and the boxes were shipped out. This testimony does not present any evidence of an improper testing procedure.
Lawrence Mobley testified that he tested positive for cocaine on two occasions. He further testified that on the occasion of his May 4, 1990 drug test he "didn't have to go to the bathroom" and therefore placed "tea water" into the urine sample bottles. He stated that this drug test also yielded positive results. Even when drawing all reasonable inferences in favor of the plaintiffs, the Court notes that this alleged Mobley "tea incident" occurred on or about May 4, 1990, two years after Mr. Laverpool's drug test and sixteen months after Mr. Wilder's drug test. This testimony, taken in its entirety, when viewed with all reasonable inferences in favor of the plaintiffs, still does not present any evidence of an improper testing procedure by CompuChem, or improper reliance by the Transit Authority at the time of the tests given to the plaintiffs in this case.
Andrew Wilder testified that when he was requested to provide a urine sample to the Transit Authority, he filled two bottles and they were sent to CompuChem. He knew that the second bottle was for his use at another laboratory. Mr. Wilder further testified that although he requested a confirmation test, he never heard from the CompuChem lab.
He also testified that there were records of drug tests which indicated both a positive drug test result for marijuana and a negative drug test result for marijuana on the same day. However, the documentation in support of this assertion, Defendants' Exhibit AK, in evidence, shows that although both a positive and negative test result were reported on the same date, February 15, 1988, the date that the samples were received was different and the "Accession Number" was different which indicates that a different test sample was used for each drug test. Further, the evidence consists of receipts from "Clin Path/Tox, 15 Frederick Place, Hicksville, N.Y. 11801", which has absolutely nothing to do with the drug tests at issue in this case, or with the CompuChem laboratory.
In addition, the Court considered the Department of Transportation Report, which has only been marked for identification, as plaintiff's exhibit 3. Initially, the Court notes that this report summarizes the work of a substance abuse team who was evaluating the Transit Authority drug testing procedures, from August through December 1991 and is described as a "snapshot" of the drug testing procedures (Exhibit 3, at p. 2). The period of time evaluated by the "snapshot" report is over two and one-half years after the period of time relevant to this cause of action. In fact, it is three and one-half years after the drug test for plaintiffs Laverpool, Wilder, and Jackson.
Although this voluminous document neither refers to the time period involved in this action, nor was it formally introduced into evidence, the Court reviewed the document, as if it were introduced into evidence and finds that it contains no evidence about the supposed incompetence of the drug testing laboratory CompuChem. In fact, at the time this report was compiled CompuChem did not conduct drug tests, but rather only conducted blood tests. The lab MetPath was used for urine testing (See Report, at p. 46).
Further, this report states that the Transit Authority was in compliance with the Burka, supra, decision (See Report, at p. 42). The major problem addressed by this 55 page report is that although the Transit Authority employees received a copy of the drug testing policy and procedures, many employees did not fully understand the procedures involved (See Report, at pp. 50-51, 53).
Based upon the foregoing evidence, including the Department of Transportation Report, the Court finds, as a matter of law, that there is a complete absence of any evidence from which a reasonable jury could find that the testing procedures employed by the laboratory CompuChem were flawed and/or that the test results should not have been relied upon by the Transit Authority (See Weldy, supra, 985 F.2d at pp. 59-60).
Accordingly, the motion for a judgment as a matter of law dismissing the claims of the plaintiffs Laverpool, Wilder, Browne, and Jackson based upon a Section 1983 search and seizure cause of action is granted.
(3) Equal Protection
The plaintiffs allege in the second amended complaint that the drug testing policy of the Transit Authority was being applied in a manner that discriminated against the plaintiffs, who are black and therefore violated the Equal Protection Clause (See Second Amended Complaint, at PP 47, 170, 300). According to the Supreme Court, the Equal Protection Clause "is essentially a direction that all persons similarly situated should be treated alike" ( City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 87 L. Ed. 2d 313, 105 S. Ct. 3249 ; see also Brady v. Colchester, 863 F.2d 205, 216 [2d Cir. 1988] [discussing Equal Protection Clause]).
Since the Court has already determined, as a matter of law, that the drug testing policy for the plaintiffs was facially valid, in order to establish their claim of a violation of the Equal Protection Clause, the plaintiffs must prove that:
"(1) the person, compared with others similarly situated, was selectively treated, and (2) the selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations, such as race . . . to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the person" ( FSK Drug Corp. v. Perales, 960 F.2d 6, 10 [2d Cir. 1992]).
In the present case, the plaintiffs Laverpool, Wilder, Browne, and Jackson, who are black, failed to submit any evidence that there was any selective treatment with regard to any of them. There has been no evidence adduced that white employees were treated in any manner differently than black employees of the Transit Authority.
Although Ella Hill testified that ninety-five (95) percent of the disciplinary proceedings involved black persons, she did not testify that this was disproportionate compared with the demographics of the Transit Authority employees, generally or the safety sensitive employees in particular.
In addition, even if the Court construes the testimony of Ms. Hill as sufficient to demonstrate prima facie evidence of selective treatment of black employees of the transit authority, there has been no evidence adduced by any witness, or through any document, that this disparate treatment was based upon an intent by the Transit Authority to discriminate against the plaintiffs Laverpool and/or Wilder based upon their race (See FSK Drug Corp., supra, 960 F.2d at p. 10).
Further, should the plaintiffs assert the claim that the drug testing policy of the Transit Authority, as a whole, violates the Equal Protection Clause, the plaintiffs must show that the determination to drug test the employees of the Transit Authority is not rationally related to a legitimate governmental interest (See Western & Southern Life Ins. Co. v. State Board of Equalization, 451 U.S. 648, 668, 68 L. Ed. 2d 514, 101 S. Ct. 2070 ). There has been no evidence presented by the plaintiffs that the drug testing policy of the Transit Authority is not rationally related to a legitimate governmental interest. On the contrary, the proof is clear that this policy is rationally related to an important, legitimate governmental interest.
The Court finds, as a matter of law, that there is a complete absence of any evidence from which a reasonable jury could find that the plaintiffs were selectively treated. In addition, even if there was evidence of selective treatment, there is no evidence that the selective treatment was due to discrimination on the basis of race. Accordingly, the motion for a judgment as a matter of law dismissing the claims of the plaintiffs Laverpool, Wilder, Browne, and Jackson, based upon Section 1983 Equal Protection cause of action, is granted.
(4) Section 1985 Civil Rights Conspiracy
The second amended complaint alleges in paragraph 23 that the defendants violated 42 U.S.C. § 1985. This statute provides, in relevant part, that:
"if two or more persons in any State . . . conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws . . . the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against only one or more of the conspirators" (42 U.S.C. § 1985).