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October 5, 1999


The opinion of the court was delivered by: McMAHON, District Judge.


This case, in which a probationary police officer with the City of New Rochelle alleges that her constitutional rights were violated in various respects in connection with her dismissal from the force, is before me on defendants' motion for summary judgment. Applying the well-settled rules governing such motions, see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Gibson v. Amer. Broadcasting Companies, Inc., 892 F.2d 1128, 1132 (2d Cir. 1989), the motion must be granted and the case dismissed.


The material facts are undisputed.

In this action brought under 42 U.S.C. § 1983 and Article 78 of the New York Civil Practice Law and Rules, Susan Ryan, who was formerly a probationary police officer in New Rochelle, has sued Patrick J. Carroll and John Carboni, who are, respectively, the Commissioner and Deputy Commissioner of the New Rochelle Police Department, as well as the City of New Rochelle. During her term as a probationary officer, Ms. Ryan failed a random drug test administered by the Police Department as part of its routine screening for drug use. She tested positive for THC, the active ingredient in marijuana, based on a urine sample she gave on July 30, 1998. A retest of the same sample, by a different lab, also came back positive, although at a slightly lower level. By letter dated August 18, 1998, Commissioner Carroll terminated plaintiff's employment effective August 25, 1998. A letter of termination was placed in her file. The letter does not state the reason for termination.

Ms. Ryan adamantly insists that she did not use marijuana — indeed, she insists that she has never used marijuana at all, although she contends that it was administered to her without her consent during her youth. Furthermore, she found the results of the Department's test inconsistent with her then-current toxicological condition; she was taking barbiturates by prescription because she had suffered an injury in a recent fall, yet she tested negative for barbiturates. So when she learned of the results of the drug test, she went to great lengths to prove it false, both by having Quest conduct a subsequent urinalysis, and by submitting a sample of her hair to yet a third laboratory, Inter-City, for testing. Plaintiff deemed the hair test particularly significant, as it could show drug use going back many, many months, even years. Both tests conducted by plaintiff's chosen labs came back negative for THC, although Quest legended its results with the statement that the test could not be used for workplace drug testing purposes.

Ms. Ryan wrote a letter to Commissioner Carroll on September 17, 1999, asking him to reconsider her case. She attached to that letter the results of her hair analysis. The results did not include any documentation concerning the test procedures, controls or chain of custody of the sample. Nonetheless, Commissioner Carroll ordered Sgt. Fortunato, the head of Internal Affairs, to investigate the possibility that the Department's test was flawed. Sgt. Fortunato contacted various laboratories and police departments regarding their use of hair testing and its validity and reported his results to the Commissioner, who declined to reverse his earlier decision and reinstate plaintiff.

Plaintiff instituted an Article 78 proceeding in the New York State Supreme Court, Westchester County, on October 30, 1999, just over two months following her termination. The petition did not challenge her discharge as arbitrary and capricious and contrary to law or seek to overturn it. Instead, plaintiff deliberately limited herself to trying to overturn Deputy Commissioner Carboni's decision to deny her worker's compensation benefits as a result of the aforementioned fall, which had occurred at the station house prior to commencement of her duty hours.

As part of its response to that petition, the City submitted an affidavit from Carboni, which chronicled the reason for plaintiff's dismissal from the force. The City contends that submission of this information was necessary so it could limit plaintiff's right to disability benefits to the period ending with her termination in the event Carboni's decision were overturned. Neither party sought to seal that portion of the record in the Article 78 proceeding, though either could have done so. The Court ultimately sustained Carboni's original decision and never reached New Rochelle's back-up argument that plaintiff lost her right to benefits as of August 25, 1998 because she was discharged for cause on that date.

On the last day of the four month period for commencing an Article 78 proceeding challenging her termination, plaintiff filed this action, in which she alleged the following causes of action: a first claim that defendants' public dissemination of her positive test results in connection with the termination of her employment violated plaintiff's substantive due process right to liberty in violation of 42 U.S.C. § 1983; a second claim that defendants' decision to terminate her employment based on the allegedly erroneous test result violated her right to liberty and will result in compelled self-disclosure of the reason for her termination by plaintiff, again in violation of Section 1983; a third claim that Carboni's filing of the affidavit in the Article 78 proceeding was intended to retaliate against plaintiff for her having challenged their decision in her September 17 letter*fn1; and a fourth claim for a declaration, pursuant to CPLR Article 78, that her dismissal was arbitrary and capricious and contrary to law. Following discovery, this motion for summary judgment followed.


The motion is granted for the following reasons:

1. Plaintiff's first claim for relief alleges that she was defamed by virtue of defendants' disclosure of her positive test results. Plaintiff argues that her substantive due process rights were violated by the wrongful dissemination of her test results, a stigmatizing disclosure made in connection with her dismissal.

When a municipality makes stigmatizing accusations that impose a substantial disability on a probationary employee, that person's liberty interest may be affected. To establish that a liberty interest is affected, the plaintiff must show that the allegation was stigmatizing "plus" she must show that the statements at issue were at least arguably false. See O'Neill v. City of Auburn, 23 F.3d 685, 691 (2d Cir. 1994). If she can make such a showing, then she will have a right to a name-clearing hearing, notwithstanding the fact ...

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