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GRANDI v. NEW YORK CITY TRANSIT AUTH.

September 18, 1997

OLIVER GRANDI, Plaintiff, against NEW YORK CITY TRANSIT AUTHORITY, Defendant.


The opinion of the court was delivered by: TRAGER

 TRAGER, District Judge:

 Plaintiff Oliver Grandi, a former New York City Transit Authority ("NYCTA") employee, brought this action pro se pursuant to 42 U.S.C. § 1983, alleging a violation of his right to due process as protected by the Fourteenth Amendment. *fn1" Plaintiff claims that the NYCTA violated due process by placing him on involuntary medical leave ("IML") without written notice or a hearing, in contravention of New York Civil Service Law § 72. He seeks damages in the amount of seven million dollars. See Amend. Compl. P 34. Defendant NYCTA moved for summary judgment. Subsequent to filing his amended complaint, but prior to defendant moving for summary judgment, plaintiff retained counsel. His counsel now moves for permission to file a second amended complaint, adding claims against Alan Kiepper, Gerald Mack, Rubin Salz, Carmen Suardy and David Morales (all NYCTA employees) as well as an equal protection claim. See Proposed [Second] Amend. Compl. For the reasons stated herein, defendant's motion for summary judgment is granted and plaintiff's motion to amend the amended complaint is denied.

 Background

 Oliver Grandi commenced his career as a bus driver at the NYCTA on May 5, 1986 and attained permanent civil service status one year later. See Amend. Compl. P 4. On or about August 19, 1991, the NYCTA received a passenger complaint about a bus operator, later identified as plaintiff. The written complaint detailed what the passenger described as a "very dangerous" incident. See Def. 3(g), Exh. L According to the passenger complaint:

 
The driver started a long, loud dialog [sic]. He told some riders sitting toward the front that he knew they were talking about him! He said he had it all on tape, that everything they said was recorded so they could not lie about it. He complained about the harassment he always receives from passengers [sic]. He kept turning toward the back of the bus so he could face the people he was accusing. He was waving his arm while he talked. He had to be told the light changed from red to green at Woodlawn Blvd. and to open the back door at 89 st. He was still talking quite loudly and complaining about all the harassment he was receiving when I left the bus at 89 st. I may have dismissed this as a one time case of irritability, but - the same thing happened the Sunday before, with the same driver at the same time of day.

 Id. (emphasis omitted).

 On October 7, 1991, Superintendent Paul Mandel with General Superintendent G.W. Mack confronted plaintiff with this passenger complaint. See Amend. Compl. P 7; Def. 3(g) P 17. During this meeting, Grandi admitted to the conduct and "stated . . . that he has to confront passengers who harass him. He further stated, he held up a tape recorder and told passengers who were speaking about him in Spanish, he recorded their conversation." Def. 3(g) Exh. M. Based on the October 7 meeting, Grandi was told on October 14, 1991 to report to the Medical Services Department for a determination of his fitness to continue his employment. See Def. 3(g) P 17; Pl. 3(g) P 6(f). He continued driving a bus between October 7 and October 14. See Pl. 3(g) P 6(e).

 On October 14, Grandi met with Dr. Lowitt of the Medical Services Department, who found plaintiff unfit to operate any NYCTA vehicle, referred him to the Employee Assistance Program ("EAP"), and placed him on restricted duty. See Def. 3(g) Exh. N. Plaintiff was kept on restricted duty after meeting with David Morales of EAP on October 23. See id. Exh. O; Pl. 3(g) P 6(g).

 On October 28, Grandi met with Dr. Bowles of the Medical Services Department. According to the amended complaint, on this date, "Transit Medical . . . placed me on involuntary leave of absence . . . on 'restricted duty' ('R.D.') no work status, with the mandate that I/plaintiff had to obtain a psychiatric evaluation, in order to return to work." Amend Compl. P 10 (emphasis added). Representatives from EAP and Transit Medical met with plaintiff at least eleven times during the subsequent year to continue to gauge his psychiatric status. *fn2"

 Plaintiff contends that the NYCTA violated his due process rights by placing him on IML in this manner, in contravention of the procedure set forth in Civil Service Law § 72. Plaintiff makes two arguments in this respect. First, he claims that he should have been given written notice of the reasons he was sent to the Medical Department. See Amend. Compl. P 10; Pl. 3(g) P 6(j). Section 72 of the Civil Service Law states that "written notice of the facts providing the basis for the judgment of the appointing authority that the employee is not fit to perform the duties of his or her position shall be provided to the employee . . . prior to the conduct of the medical examination." N.Y. Civ. Serv. Law § 72 (McKinney 1983 & Supp. 1997). Second, Grandi argues that, in contravention of § 72, he was not given written notice of the reasons he was placed on IML after he saw the NYCTA doctors. See Amend. Compl. P 10; Pl. 3(g) P 6(j). According to § 72: "An employee placed on leave of absence pursuant to this section shall be given a written statement of the reasons therefor." *fn3" N.Y. Civ. Serv. Law § 72 (McKinney 1983 & Supp. 1997). Plaintiff claims that because he was deprived of written notice at these two critical junctures defendant violated his due process rights.

 The NYCTA, however, claims that it was not required to follow this procedure because § 72 of the Civil Service Law was supplanted by the collective bargaining agreement ("CBA") that plaintiff's union, the Transport Workers Union, had entered into with defendant. The CBA provides:

 
An Involuntary Medical Leave ('IML') Grievance is hereby defined to be a complaint on the part of any covered employee that would otherwise be subject to Sections 72 and/or 73 of the Civil Service Law that he or she has been improperly placed on such involuntary leave and the procedures contained herein shall be in lieu of any administrative procedure specified in Sections 72 and/or 73 of the Civil Service Law.

 Def. 3(g) Exh. U § 2.1(A)(3); see id. § 2.1(D)(1).

 Within the IML Grievance Procedure section, the CBA states: "Nothing in these procedures shall prevent the Authority from placing an employee on an involuntary leave of absence where such leave has been determined to be appropriate by the Authority's Medical Department." *fn4" Def. 3(g) Exh. U § 2.1(D)(2). Defendant argues that this provision governs placement of union members on IML and permits it to place a union member on IML ...


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