The opinion of the court was delivered by: John T. Curtin, United States District Attorney
On March 3, 1998, plaintiff Robert E. Ware ("Ware"), a Buffalo
firefighter, brought this action, pursuant to 42 U.S.C. § 1983, the
Fourteenth Amendment to the U.S. Constitution, Fed.R.Civ.P. 57,
28 U.S.C. § 2201, 1331, and 1343, and state law. Ware sought
declaratory, monetary, and preliminary and permanent injunctive relief
against defendants City of Buffalo; City of Buffalo Department of Fire
("Fire Department"); Cornelius J. Keane, individually and as Commissioner
of the Buffalo Fire Department; and John D. Sixt, individually and as
Deputy Commissioner, Buffalo Fire Department. Item 1. Ware alleges he
suffered economic and personal damage as a result of being required to
comply with the Drug Testing Policy (the "Policy") implemented by the
City of Buffalo and the Fire Department. He further alleges that the
Policy is arbitrary and capricious on its face, and as applied to him.
Defendants answered on March 24, 1998. Item 2. On September 18, 2000,
defendants moved pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)(6), and
12(b)(7) for an order dismissing the complaint. Items 20, 21. Plaintiff
responded with a Memorandum of Law in Opposition, Item 23, and defendants
filed an Affidavit in Response. Item 25.
The court heard oral argument on January 5, 2001. In an order dated
January 10, 2001, the court asked counsel to submit additional briefs on
whether the union waived plaintiff's challenge to the Drug Testing
Policy. Item 26. Plaintiff responded with a letter, Item 29, and
defendants responded with a brief that contained as an exhibit a copy of
the Collective Bargaining Agreement between the City and plaintiff's
union. Item 28. For the reasons that follow, the court grants defendants'
motion to dismiss.
As alleged in the complaint, the facts are as follows. On December 29,
1997, plaintiff Robert Ware, a Buffalo firefighter, was directed to the
Union Occupational Health Center ("UOHC"), where he was ordered to
provide a urine sample for testing under
the Drug Testing Policy of the Buffalo Fire Department. Item 1, ¶ 24.
With the consent of the union, this Policy had been implemented by the
City of Buffalo and the Fire Department in June 1995. Item 1, ¶ 10;
Item 1, Ex A. The Policy requires collection of at least 60 ml. of urine
in order that the sample can be divided into two equal parts. The Policy
also provides for a certain procedure to be followed if the employee is
not able to pass that amount of urine. Item 1, ¶¶ 11, 12. Despite the
Policy provisions, less than 60 ml. of urine was collected from Ware.
The sample was reported positive for the presence of marijuana metabolite.
Id., ¶ 26. On January 5, 1998, plaintiff was informed by a UOHC
physician that he had tested positive for drug use, and was advised to
report to Deputy Fire Commissioner Sixt ("Sixt").
Later that day, Ware met with Sixt, in the presence of a union
representative. During the meeting, Ware denied ever using drugs and
argued that the test result was a mistake. He also informed Sixt that the
urine sample had been too small to divide into two parts, a fact which
Sixt acknowledged. Id., ¶¶ 29, 30, 31. Despite the small sample size,
which would not allow for a retest pursuant to the Policy (Article
V(C)), Sixt told plaintiff that he would be treated as having been tested
positive for illegal substances. Sixt placed Ware on suspension and told
him to use his sick time and vacation time while on suspension. Sixt also
told Ware that unless he entered and successfully completed the chemical
dependency program at Beacon Center, he would be terminated as a
firefighter. Id., ¶¶ 32-34.
At approximately 5 p.m. on January 5, 1998, Ware went to the Beacon
Center and provided a urine sample. The next day he went to a laboratory
and gave a blood sample. Both samples reported negative for illegal
substances. Although Ware advised Sixt that the additional drug tests
were negative, Sixt refused to excuse him from attending the Beacon
Center, and told him that if he did not complete the program, he would be
terminated from his job. Id., ¶¶ 36-38. As a result of his
suspension, Ware missed one full tour of duty. Sixt then informed him
that he could return to work. Id., ¶ 39.
The Beacon Center program requires three weekly group counseling
sessions, biweekly individual counseling sessions, urine testing each day
the person is on site, and joint counseling with the attendee's spouse.
The person must submit to a thorough physical examination, provide
complete autobiographical materials, and attend Narcotics Anonymous and
Alcoholics Anonymous meetings. Id. ¶ 45. Ware was told by the Beacon
Center staff that if he refused any recommendation made by the Center, he
would be reported to the Fire Department as non-compliant and would be
terminated from the program. Id. ¶ 46.
On January 21, 1998, Ware was unable to attend an appointment at the
Beacon Center because his wife's car was stolen and he had no
transportation. His absence was reported to the Fire Department, and Sixt
suspended him without pay, effective January 22, 1998. Later that day,
the suspension was rescinded. Id., ¶¶ 47, 48, 49. Ware, who also was a
non-commissioned officer in the National Guard (id., ¶ 41), informed
the Beacon Center that he could not attend the program on January 30 and
February 6, 1998, since it conflicted with National Guard drill
weekends. By letter dated February 9, 1998, the Beacon Center informed
Ware that his absences on those two days were unexcused, and threatened
to discharge him from the program. On February 12, 1998, Sixt suspended
Ware without pay for noncompliance with the Policy. The
suspension was subsequently revoked. Id., ¶¶ 50, 52-55.
Sixt told Ware that Ware was required to sign waivers authorizing the
Fire Department to obtain all records regarding his treatment at the
Beacon Center or he would be terminated. Ware signed the releases. Id.,
Ware contends that when he denied using drugs, he was told by the
Beacon Center personnel that he was not complying with treatment and that
he must admit his addictions in order to successfully complete the
program. He asserted that he could not comply with the Beacon Center
program unless he falsely affirmed that he had a drug problem. Ware also
questioned why he had to undergo alcohol and marital counseling, which
are not within the ambit of the Policy, but which the Beacon Center
insisted he must undergo in order to be in compliance. Id., ¶¶ 62,
As a result of being required to attend the Beacon Center, Ware claims
he has suffered acute emotional distress, damage to his reputation, and
severe depression and humiliation. Id., ¶ 66. He has had to forego
opportunities to see and care for his daughter, of whom he has joint
custody. Id., ¶¶ 43, 66. He was denied the opportunity to reenlist for
another tour of duty in the National Guard because of its "zero
tolerance" drug policy. He has also been denied security jobs at a
security firm for which he works on a part-time basis; he has missed work
as a teacher's aide, another part-time job; he lost a full tour of
vacation while on suspension from his firefighting job; and he claims he
has otherwise suffered severe economic and personal damages. Id., ¶
The Policy does not provide any guidance concerning what specific
recourse an employee may have if those responsible for taking samples do
not follow the protocol. However, it does provide for a hearing prior to
any imposition of discipline on the employee pursuant to section V(G).
The Collective Bargaining Agreement, however, contains an elaborate
series of procedures for a disciplined or discharged employee to follow,
which includes written service and answer to charges, informal hearing,
formal hearing, and appeal to either the Buffalo Municipal Civil Service
Commission or the New York State Supreme Court via an Article 78
proceeding. Item 28, Ex. A, pp. 42-46.
Ware has alleged five causes of action in his complaint. The first
three causes of action allege violations of federal law and the Due
Process Clause of the Fourteenth Amendment: (1) the Policy is arbitrary,
capricious, and impermissibly vague; (2) the defendants have applied the
Policy to him in an arbitrary and capricious manner; and (3) the Policy's
confidentiality provisions fail to protect plaintiff's rights to privacy
regarding treatment at the Beacon Center. The fourth cause of action
alleges violation of privacy under the state laws and Constitution, and
the fifth cause of action alleges intentional infliction of emotional
distress caused by the defendants who required Ware to attend the Beacon
Center, despite their knowledge that it was causing him such distress,
and who refused to expunge his records regarding the December 29, 1997
drug test and related matters.
Because plaintiff concedes that dismissal is warranted against the
Buffalo Fire Department as a separate entity (Item 23, pp. 5-6), the Fire
Department is dismissed as a defendant.
Plaintiff explicitly agrees that punitive damages are not recoverable
against municipalities in section 1983 actions, and impliedly agrees that
punitive damages against Sixt and Keane, in their official capacities,
cannot be recovered. Therefore, the court dismisses the punitive damages
claims against the City of Buffalo, the Fire Department, and Sixt and
Keane, in their official capacities.
Also, because the court has been unable to determine how defendant
Keane, in his official or individual capacity, may have impinged
plaintiff's federal rights since Keane is not mentioned in any cause of
action in the complaint, the court dismisses him as a defendant.
I. Dismissal Pursuant to Fed.R.Civ.P. 12(b)(7) and 19, Failure to Join
The analysis required by Rule 19 is well settled:
First, the Court must determine whether the absent
party should be joined as a "necessary party" under
Fed.R.Civ.P. 19(a). Second, if the court decides that
the party is required but cannot be joined for
practical or jurisdictional reasons, it must determine
under Fed.R.Civ.P. 19(b) whether in `equity and good
conscience' the action should be dismissed because the
party is `indispensable'.
Legal Aid Society v. City of New York, 114 F. Supp.2d 204, 219 (S.D.N Y
2000) (quotation and citations omitted). According to Fed.R.Civ.P.
19(a), a party is a necessary party if:
(1) in the person's absence complete relief cannot be
accorded among those already parties, or (2) the
person claims an interest relating to the subject of
the action and is so situated that the disposition of
the action in the person's absence may (i) as a
practical matter impair or impede the person's ability
to protect that interest or (ii) leave any of the
persons already parties subject to a substantial risk
of incurring double, multiple, or otherwise
inconsistent obligations by reason of the claimed
Id. at 219-20 (quotation and citations omitted).
The court finds that Local 282 is a necessary party to this litigation
under Rule 19(a). The union is subject to service of process, and its
joinder will not deprive the court of jurisdiction. Further, in the
union's absence, complete relief cannot be accorded plaintiff. The union
and the defendant City were signatories to the Policy and the Collective
Bargaining Agreement. As one of his claims for relief, plaintiff seeks a
judgment declaring the Policy null and void. Obviously the union, as the
bargaining representative of its members, has a great interest in the
court's determination. The general rule is set forth in 7
Wright-Miller-Kane, Federal Practice & Procedure § 1620 (3d ed. 2001)
[T]he union may be found to be a party to be joined if
feasible under Rule 19(a) in actions brought by
employees against their employers requiring an
adjudication that might have a significant impact on
the collective-bargaining agreement