United States District Court, Western District of New York
June 26, 2001
ROBERT E. WARE, PLAINTIFF, VS CITY OF BUFFALO; CITY OF BUFFALO, DEPARTMENT OF FIRE; CORNELIUS J. KEANE, INDIVIDUALLY AND AS COMMISSIONER, DEPARTMENT OF FIRE; AND JOHN D. SIXT, INDIVIDUALLY AND AS DEPUTY COMMISSIONER, DEPARTMENT OF FIRE, DEFENDANTS.
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.
The defendants have moved to dismiss plaintiff's complaint pursuant to
Fed.R.Civ.P. 12(b)(1), (6), and (7) on the grounds that (1) plaintiff has
no standing to challenge the provisions of the Policy; (2) plaintiff
fails to state a facial constitutional challenge to the Policy; (3)
defendants City of Buffalo, City of Buffalo Fire Department, Fire
Commissioner Keane, and Deputy Fire Commissioner Sixt, in their official
capacities, are immune from punitive damages liability; (4) the court
should decline to exercise jurisdiction over
the pendent state law claims since the federal claims should be dismissed;
(5) defendant City of Buffalo Department of Fire has no capacity to be
sued; and (6) plaintiff has failed to join a party necessary to just
adjudication under Fed.R.Civ.P. 19. Items 20, 21.
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
because of the union's interest in the operation of
See Adams v. Delta Air Lines Inc., 1997 WL 12803 at * 1 (S.D.N.Y. 1997)
(if the union has an interest in the validity and construction of the
collective bargaining agreement which it negotiated and to which it is a
signatory, its presence may be necessary to protect the rights of members
not party to the action).
Upon finding that a person is necessary to an action and can and should
be joined, federal courts have generally been reluctant to grant motions
to dismiss pursuant to Rule 12(b)(7) on the grounds of nonjoinder.
Instead, the court will order the absent party to be joined. In this
case, the court finds that it would be futile and a waste of judicial
resources to dismiss the action and permit filing of an amended complaint
joining the union because the court dismisses the complaint on the merits
on the grounds cited below.
A. Dismissal Pursuant to Fed.R.Civ.P. 12(b)(1), Lack of Subject Matter
Jurisdiction, and 12(b)(6), Failure to State A Cause of Action When a
defendant moves for dismissal on the grounds that the court both lacks
subject matter jurisdiction and failure to state a cause of action, "the
court typically should address the jurisdictional question first." Greene
v. Hawes, 913 F. Supp. 136, 140 (N.D.N.Y. 1996). However, in a
42 U.S.C. § 1983 action, the two issues are often intertwined and
"[i]t may be impossible . . . to determine the jurisdictional issue
without essentially determining whether a plaintiff has stated a cause of
When a court is presented with a motion to dismiss under Rule
12(b)(6), the facts alleged by the plaintiff are assumed to be true and
must be liberally construed in a light most favorable to the plaintiff.
Id. at 141, citing Easton v. Sundram, 947 F.2d 1011, 1014 (2d Cir.
1991). A complaint should not be dismissed for failure to state a claim
unless "`it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief.'"
Gagliardi v. Village of Pawling, 18 F.3d 188, 191 (2d Cir. 1994).
B. 42 U.S.C. § 1983 and Due Process Claims
Title 42 U.S.C. § 1983 serves as the basic vehicle for federal
court review of alleged state and local violations of federal law. In
order to state a claim upon which relief may be granted under section
1983, "a complaint must allege that the defendants deprived the
plaintiffs of a right secured by the Constitution or laws of the United
States and that such deprivation was committed by persons acting under
color of state law." Danese v. Knox, 827 F. Supp. 185, 190 (S.D.N Y
1993). A city is a state actor for purposes of section 1983. Comm'rs of
Bryan Cty. v. Brown, 520 U.S. 397, 405 (1997).
Courts engage in a two-step analysis when resolving procedural due
The threshold issue is always whether the plaintiff
has a property or liberty interest protected by the
Constitution. See Board of Regents v. Roth, 408 U.S. 564,
92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). If a protected
interest is identified, a court must then consider
whether the government deprived the plaintiff of that
interest without due process. The second step of the
analysis thus asks what process was due to the
plaintiff, and inquires whether that constitutional
minimum was provided in the case under review. See
Mathews v. Eldridge,
424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
Narumanchi v. Board of Trustees of Ct. State Univ., 850 F.2d 70
, 72 (2d
Four of plaintiff's five causes of action relate to the Drug Testing
Policy. The first and third causes of action challenge the Policy as
arbitrary and capricious on its face, in violation of the Due Process
Clause; the second and fourth challenge the Policy as applied, in
violation of the Due Process Clause and New York State laws and
Constitution, respectively. The court will address the "as applied"
A. The Second Cause of Action: An "As Applied" Challenge to the Policy
Plaintiff's second cause of action charges that "The defendants have
failed and refused to adhere to the Policy in applying it to the
plaintiff," and have applied the Policy to him in an arbitrary and
capricious manner in violation of the Due Process Clause. Item 1, ¶¶
1. Was there a Cognizable Property Interest?
In a section 1983 action, as indicated in section II(B) above, the
threshold inquiry is whether there has been a constitutionally cognizable
injury. Any claim predicated on a violation of due process must involve
the invasion and deprivation of a recognized life, liberty, or property
interest. See Board of Regents v. Roth, 408 U.S. 564, 570-72 (1972);
Narumanchi, 850 F.2d at 72. Property interests subject to procedural due
process protection are not created by the Constitution; rather, they are
created and defined by "existing rules or understandings that stem from
an independent source such as state law." Roth, 408 U.S. at 577.
The Supreme Court has held that "public employees who can be discharged
only for cause have a constitutionally protected property interest in
their tenure and cannot be fired without due process. . . ." Gilbert v.
Homar, 520 U.S. 924, 928-929 (1997) (citing Roth, 408 U.S. at 578). Such
an employee is "entitled to a very limited hearing prior to his
termination, to be followed by a more comprehensive post-termination
hearing." Homar, 520 U.S. at 928 (citing Cleveland Board of Education v.
Loudermill, 470 U .S. 532, 545-46 (1985)). While discharge from public
employment qualifies as loss of a property interest and supports a
section 1983 claim, courts analyze suspensions and the loss of
job-related benefits more rigorously, and the results are not as
In this case, Ware was not terminated. The employment-related injuries
he alleges are loss of a full tour of vacation time (Item 1, ¶ 67);
loss of opportunities to see and care for his daughter, id. ¶ 66;
denial of an opportunity to reenlist for another tour in the national
guard, id.; denial of security jobs, id.; and missed work as a teacher's
aide. Id. He also alleges that he was suspended on three occasions: (1)
the first suspension caused him to miss one full tour of duty (Item 1,
¶ 39); (2) the second suspension lasted one day, January 22, 1998
(id., ¶¶ 48, 49); (3) the third, which began Feb. 12, 1998, was
subsequently revoked (id., ¶¶ 54, 55). Plaintiff does not specify the
length of the third suspension.
The property interest Ware has in his job as a firefighter does not
implicate any constitutional right to work at his additional teacher's
aide, national guard, or security guard jobs. Also, his right to see his
daughter is not a constitutionally protected
interest under section 1983. To have a property interest requires a
legitimate claim of entitlement that arises from an applicable statute,
contract, or regulation that establishes the benefit. Martz v.
Incorporated Village of Valley Stream, 22 F.3d 26, 29 (2d Cir. 1994). No
such showing was made here concerning Ware's additional employment. See
Cybulski v. Cooper, 891 F. Supp. 68 (D. Ct. 1995). His primary
employment as a firefighter continued, and the supplemental income he may
have received from his other jobs does not constitute a protected property
Courts in this circuit have differed in answering the question whether
a suspension without pay comprises a cognizable property interest
pursuant to the Fourteenth Amendment. The analyses are fact-specific, and
no rule can be culled from the cases that have addressed, or made
reference to, the issue. For example, although the Second Circuit in
Narumanchi approved, in passing, the district court's finding that a
two-week suspension without pay constituted a property interest, that
determination was incidental to the case's holding that under the
Collective Bargaining Agreement, the plaintiff received all the process
that he was due. In Kennedy v. City of New York, 1995 WL 326563
(S.D.N.Y. 1995), the plaintiff's indefinite suspension without pay was
found to constitute a property interest.
Larsen v. Lynch, 1998 WL 229919 (D.Conn. March 31, 1998), best
articulated the inconsistent treatment courts in this circuit have given
the question of whether suspension without pay constituted a property
interest under the Fourteenth Amendment:
Neither the Supreme Court nor the Court of Appeals for
the Second Circuit has directly addressed whether a
five-day suspension without pay amounts to the
requisite loss of a tangible property interest, see
Gilbert v. Homar, 520 U.S. 924, ___, 117 S.Ct. 1807,
1811, 138 L.Ed.2d 120 (1997), and the issue has
received inconsistent treatment in the federal
courts, Berardinelli v. Town of Newburgh, 895 F. Supp. 56,
57 n. 3 (S.D.N.Y. 1995) (citing cases).
However, the Second Circuit has been hesitant to
expand the definition of `property' within the context
of the Fourteenth Amendment. See S & D Maintenance
Co., Inc. v. Goldin, 844 F.2d 962, 967 (2d Cir. 1988)
("the course of the law in this Circuit has not moved
beyond according procedural due process protection to
interests other than those well within the contexts
illustrated by Goldberg [v. Kelley, 397 U.S. 254, 90
S.Ct. 1011, 25 L.Ed.2d 287 (1970)] and Roth").
Moreover, in that case the court stated, in dicta,
that a property interest arises in the employment
context "only where the state is barred, whether by
statute or contract, from terminating (or not
renewing) the employment relationship without cause."
S & D Maintenance Co. Inc., 844 F.2d at 967. This view
has been adopted by district courts in this circuit,
which have refused to find that government employees
subject to lesser disciplinary actions have been
deprived of a constitutionally-protected entitlement.
Larsen, 1998 WL 229919 at *6.
Courts have found that both suspension with pay (Weg v. Macchiarola,
729 F. Supp. 328, 337-38 (S.D.N.Y. 1990)), and suspension without pay
(Larsen) do not implicate constitutionally cognizable property
In addition, in Perez v. City of New York, 1997 WL 742536 (S.D.N Y
Dec. 2, 1997), the court found "plaintiff has no protected interest in
not being subject to disciplinary action." A civil servant does not have
"a right to be free from transfer,
suspension, or other changes in work environment or status of the kind
implicated by the pending disciplinary action against plaintiff." Id. at
*2. In Caniello v. City of New York, 2001 WL 11061 (S.D.N.Y. Jan. 4,
2001), the court observed that "where an employee has retained his rank
and base pay after an administrative action, courts have not found an
unconstitutional deprivation of property." Id. at *1 (citations omitted).
It is also important to remember that Ware's complaint alleged loss of
vacation time as an injury. The loss of vacation time is not a
constitutionally cognizable injury, because the Policy at VI(E) provides
that while an employee undergoes treatment, the employee "shall be
required to utilize all paid leave credits (vacation, personal) before
utilizing paid sick leave." Item 1, Ex. A, p. 10. This is a contractual,
not a constitutional, issue, and "[c]ontract disputes, however, do not
give rise to a cognizable claim under 42 U.S.C. § 1983." Fitzgerald
v. Feinberg, 1999 WL 619584 at * 5 (S.D.N.Y. Aug. 16, 1999).
The court finds the Larsen analysis persuasive. Given that the
plaintiff does not contend he lost remuneration because of the suspension
(other than vacation time benefits), even if his suspension constituted a
property interest, it would be "significantly less compelling than that of
an individual who has been denied the very means by which to live."
Costello v. Town of Fairfield, 811 F.2d 782, 786 (2d Cir. 1987). His
status was not significantly altered. He was suspended briefly, and his
full-time employment was not terminated. Not every "grievous loss visited
upon a person by the state is sufficient to invoke the procedural
protections of the due process clause," Gendalia v. Gioffre,
606 F. Supp. 363, 366 (S.D.N.Y. 1985) (citation omitted). Consequently,
the court holds that plaintiff has failed to state a claim under the Due
Process Clause and section 1983; and therefore, the second cause of
action must be dismissed.
2. Did Plaintiff Receive All the Process He was Due?
Acknowledging that the law is not settled that suspension without pay
constitutes a property claim under the due process analysis, the court
finds that even assuming that plaintiff's suspension amounted to
deprivation of a constitutionally cognizable property right, the
plaintiff would not be able to establish that he did not receive all the
process he was due, and his claim would fail on that account.
Because plaintiff was not terminated but only suspended, courts have
factored that salient point into the due process analysis. "Due process
is flexible and calls for such procedural protections as the particular
situation demands." Danese, 827 F. Supp. at 193 (citation and quotation
omitted). "Procedural due process requirements are generally satisfied by
appropriate notice and an opportunity to be heard." Adler v. County of
Nassau, 113 F. Supp.2d 423, 428 (E.D.N.Y. 2000). A survey of cases from
the Second Circuit, found in Szoke v. Carter, 165 F.R.D. 34 (S.D.N Y
1996), reveals that
The Supreme Court has never held that a public
employee, even one with tenure or its equivalent, has
a right to a hearing prior to a suspension. In fact,
the Court found that where termination is a
possibility, employees are not entitled to a full
evidentiary hearing but rather only a minimal
Id. at 37. See Cybulski v. Cooper, 891 F. Supp. 68 (D. Ct. 1995).
In Komlosi v. New York State Office of Mental Retardation &
Developmental Disabilities, 64 F.3d 810 (2d Cir. 1999), a state employee
was suspended without pay. The Second Circuit affirmed the district
court's finding that the employee "did not
have a claim for the deprivation of procedural due process because he was
accorded a presuspension interview at which he was enabled to state his
position regarding the suspension and the underlying charge. . . ." Id.
at 816. Even a pre-termination hearing," though necessary, need not be
elaborate." Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 545
Other courts have launched into the analysis set forth in Mathews v.
Eldridge, 424 U.S. 319 (1976), to determine whether the plaintiff was
afforded all the process due.*fn1 Here, the employment interest involves
temporary suspensions, not loss of a job; the risk of erroneous
suspension is not great, considering the safeguards and possibilities to
challenge the results written into the Drug Testing Policy; additional
procedural safeguards do not appear to be necessary to comport with due
process. Balancing Ware's interests in not being suspended against those
of the government, the court concludes that the process followed was
adequate to protect his procedural rights.
At the January 5, 1998 meeting, where Sixt met with Ware following the
positive drug test, Ware had an opportunity to be heard. He denied ever
using drugs, argued that the test result was a mistake, and pointed out
that the urine sample had been too small to divide into two samples. Item
1, ¶ 30. A union representative was present at the meeting. Id.,
¶ 29. Although not a full-fledged hearing, this meeting comports with
procedural due process guarantees, as confirmed by cases in this circuit.
See Narumanchi, 850 F.2d at 72; Szoke v. Carter, 165 F.R.D. at 37.
Further, plaintiff has made no allegation in the complaint that there
was any due process violation resulting from the Policy's inadequate or
ineffective post-deprivation remedy.*fn2 And lastly, as Narumanchi
holds, the grievance procedures set forth in the Policy and the
Collective Bargaining Agreement provided, as a matter of law, all the
process plaintiff was due. 850 F.2d at 72.
Therefore, even if the court assumed that plaintiff suffered a
constitutionally cognizable property injury, it nevertheless finds that
sufficient pre-disciplinary procedural safeguards existed and were used.
Therefore, plaintiff's second cause of action does not state a claim upon
which relief can be granted.
B. The First and Third Causes of Action: Facial Challenges to the
Plaintiff's first cause of action charges that the Policy allows
exercise discretion without any guidance in disciplining plaintiff,
provides for no effective appeal, and is "arbitrary and capricious and
impermissibly vague on its face and violates the Due Process Clause of
the Fourteenth Amendment. . . ." Item 1, ¶ 72. The third cause of
action alleges "[i]nternal conflicts*fn3 in the Policy's
confidentiality provisions cannot be reconciled and fail to sufficiently
protect plaintiff's rights to privacy with respect to information about
treatment he receives at the Beacon Center" in violation of the due
process clause. Id., ¶ 77. Both of these causes of action constitute
facial challenges to the Policy as written, rather than as applied to
Ware in his particular circumstances. The Policy was negotiated between
the City of Buffalo and Local 282, Buffalo Professional Firefighters
Association, and is considered part of the Collective Bargaining
Agreement between the two entities. Item 1, Exh. A, VII, p. 11.
1. Standing and Waiver
The court has already held that the action should be dismissed because
the union is a necessary party; but in addition, defendants argue that
plaintiff lacks standing to sue because the Policy was negotiated and
agreed to by the City of Buffalo and Local 282, the union which
represents the firefighters. Item 21, pp. 2-3. As a result, the City
argues that Ware did not have standing to sue since only the Union, as
the sole bargaining representative of plaintiff and the other
firefighters, may agree to the terms and conditions of the Policy which
are contractually binding on all employees. In a later document, the City
characterized the issue as one of waiver, where "New York law makes clear
that the Plaintiff has waived his due process claims as a result of the
Union's agreement to the terms of the Drug Testing Policy." Item 25,
¶ 6. It contends that the waiver applies to both facial and as-applied
challenges to the Policy. Id. Although the cases cited by defendants
concern unions' waivers of their members' constitutional rights in their
negotiations of collective bargaining agreements with the employers, the
court will treat the issue as essentially one of standing. If the union
acted as its employees' exclusive bargaining agent and, in so doing,
waived certain of its members' rights, the members would have no standing
to challenge the policy agreed to by the union as their representative.
Plaintiff, however, characterizes the issue as one of waiver: whether a
union can waive certain constitutional rights of its members in
negotiating a drug testing policy with a municipal employer. In support
of its position, plaintiff cites Wright v. Universal Maritime Service
Corp., 525 U.S. 70 (1998), and other cases in its letter-argument. Item
29. Wright concerned whether the arbitration clause in a collective
bargaining agreement required an employee to use the arbitration
procedure for an alleged violation of the Americans with Disabilities
Act, rather than adjudicating the claim in federal court. The Supreme
Court held that a union could waive certain of its employee-members'
statutory rights to a federal judicial forum, but that the waiver
contained in the collective bargaining agreement must be "clear and
unmistakable." 525 U.S. at 80. Plaintiff analogizes Buffalo's Drug
Testing Policy to the Collective Bargaining Agreement in Wright, and
argues that if the Policy does not explicitly waive statutory and
constitutional protections, then there has been no waiver.
Defendants have the stronger argument. The Supreme Court has not spoken
directly on the issue of whether a union may
waive its members' constitutional rights. Wright did not address that
issue, but rather discussed whether access to a federal forum had been
waived by the terms of a collective bargaining agreement. In the case
at bar, there was no serious objection by defendants as to whether Ware
had waived his right to argue his case in federal court.*fn4
Defendants cite Bolden v. SEPTA, 953 F.2d 807 (3d Cir. 1991); Dykes v.
SEPTA, 68 F.3d 1564 (3d Cir. 1995); and New York federal and state case
law for the proposition that a union, by virtue of its position as the
exclusive collective bargaining representative for its employee-members,
may, in its agreement with the employer, restrict constitutional rights
that individual employees would otherwise enjoy. Bolden, 953 F.2d at
826. Both Dykes and Bolden concern Fourth Amendment search and seizure
challenges to a negotiated drug testing policy. In Bolden, which
addressed an employee's facial challenge to a drug testing policy, the
A union such as Bolden's may validly consent to terms
and conditions of employment, such as submission to
drug testing, that implicate employees' Fourth
Amendment rights . . . .
[Under Pennsylvania law], a union is the exclusive
collective bargaining representative for all of the
employees in the unit, and therefore the union, in
entering into a collective bargaining agreement, may
agree to terms and conditions that are contractually
binding on all of the employees . . . .
. . . [A] union's authority as exclusive bargaining
agent necessarily entails some restrictions on
constitutional rights that individual employees would
Id. at 826, 827.
The Bolden court went on to say:
Through collective bargaining, a public employer and
union can reach agreement on detailed factual
questions . . . that may have important implications
under the Fourth Amendment. If individual public
employees may litigate such questions despite the
resolution reached through collective bargaining, the
utility of collective bargaining with respect to drug
testing in the public sector would be greatly
diminished. . . .
. . . Individual employees are bound by such express
Id. at 828.
Four years later, the Dykes court encountered an "as-applied" Fourth
Amendment challenge to defendant's drug policy, and embraced the Bolden
holding. The Dykes court underscored the importance accorded the terms of
a collective bargaining agreement: "[E]ven where a drug testing policy
has been held to be constitutionally infirm, a public employee may not
pursue a civil rights suit based upon that infirmity where his union and
his employer agree to operate under that policy." 68 F.3d at 1570.
For its part, the Second Circuit, in Romano v. Canuteson, 11 F.3d 1140
(2d Cir. 1993), has acknowledged that New York State law has long
supported the proposition that "due process requirements are
not of controlling relevance if the party seeking to assert them has
waived them in a voluntary agreement such as a collective bargaining
agreement." Id. at 1141. The Romano court pointed out that one district
court case*fn5 "appears to cast doubt on this accepted state rule"
but then cited other Second Circuit district court authority in support.
Id. Subsequent cases in this circuit have cited Romano for the
proposition that federal courts support such a waiver, leading this court
to conclude that the legality of waiver is accepted jurisprudence. See,
Grandi v. New York City Transit Authority, 977 F. Supp. 590, 595 (E.D.N Y
1997); Spencer v. New York City Transit Authority, 1999 WL 51814 at * 10
(E.D.N.Y. Jan. 14, 1999); Morris v. Lindau, 196 F.3d 102, 115 (2d Cir.
Given the analysis above, the court finds that plaintiff does not have
standing to facially challenge the terms of the policy. "Plaintiff should
raise any dissatisfaction with the agreement with his union, not with
defendants." Spencer v. NYC Transit Authority, 1999 WL 51814 at *10
(E.D.N.Y. Jan. 14, 1999).
2. Plaintiff Does Not State a Valid Facial Challenge
Defendants also claim that plaintiff does not state a valid facial
challenge to the Policy, and that the Policy is constitutionally valid on
its face. Given the finding above, and noting that plaintiffs do not
counter this argument, this would provide yet another ground to dismiss
the facial challenges to the Policy contained in the complaint.
3. Privacy Interests: The Third Cause of Action
The Fourteenth Amendment Due Process Clause does not protect privacy
interests, as propounded in the third cause of action. Thus, no claim is
stated under this cause of action. Even if the court found that this
claim, written somewhat ambiguously, was an "as applied" challenge, the
complaint still fails to provide sufficient factual allegations in
support, and in that context as well, it fails to state a cause of
action. See Greene v. Hawes, 913 F. Supp. 136, 143 (N.D.N.Y. 1996) ("Only
when the complaint sets forth specific allegations of facts that indicate
a deprivation of constitutional rights will it be permitted to survive a
motion to dismiss.").
IV. The Fourth and Fifth Causes of Action: Pendent State Claims
In his fourth cause of action, plaintiff alleges that the defendants
have violated his right to privacy under the New York laws and
Constitution by implementation and enforcement of the Policy. This cause
of action can be read as a facial challenge to the Policy, which was
dispensed with in section III(A) above.
The fifth cause of action alleges that defendants had actual and
constructive notice that the Policy was unconstitutional, and by not
adhering to its requirements, inflicted acute emotional trauma on Ware.
This is essentially a state cause of action for intentional infliction of
Given that all of Ware's federal claims will be dismissed, this court
will decline to exercise supplemental jurisdiction over his pendent state
law claims. 28 U.S.C. § 1376(c)(3), Tops Markets, Inc. v. Quality
Markets, Inc., 142 F.3d 90, 102-03 (2d Cir. 1998).
For the reasons set forth above, the court grants defendants' motion to
dismiss plaintiff's complaint for failure to state a cause of action.