The opinion of the court was delivered by: FREDERIC BLOCK, District Judge
Pending before the Court are two motions challenging the
amended complaint of plaintiff Carl B. Straker ("Straker"), who
principally alleges procedural improprieties arising from the
handling of a mandatory drug test to which he was subjected. First, defendant New York City Transit Authority
("NYCTA") moves "for a judgment pursuant to Rule 12(b)(1), (5),
and (6), and Rule 12(c) of the Federal Rules of Civil Procedure
dismissing the amended complaint on the ground that plaintiff has
failed to allege facts which could support any federal claim or
state a cause of action." [NYCTA]'s Notice of Motion to Dismiss
at 1. Second, defendant Transit Workers Union of Greater New
York, Local 100 ("TWU") moves to dismiss pursuant to Fed.R. Civ.
P. 12(b)(6). With respect to NYCTA's motion to dismiss, the Court
(1) grants the motion as to Counts I and II but sua sponte
grants leave to amend Count II, and (2) denies the motion as to
Counts III and IV but sua sponte directs that Straker file a
more definite statement as to Count III pursuant to Fed.R. Civ.
P. 12(e). With respect to TWU's motion to dismiss Count V, the
Court construes Straker's claim as alleging a cognizable state
law claim, retains supplemental jurisdiction over the claim, and
denies TWU's motion to dismiss.
Though named by Straker as a defendant, Metropolitan Transit
Authority has not appeared as a party. NYCTA volunteers that
"[p]laintiff's claims against Metropolitan `Transit' Authority
should be dismissed given that no such organization exists."
Memorandum of Law in Support of [NYCTA's] Motion to Dismiss at
18. Straker does not contend otherwise. Although NYCTA concedes
that an organization by the name of "Metropolitan
Transportation Authority" exists, the Court's docket does not
contain an affidavit of service on Metropolitan Transportation
Authority. The Court sua sponte dismisses Metropolitan Transit
Authority as a party. See Block v. First Blood Assoc., 691 F. Supp. 685, 697 (S.D.N.Y. 1988) ("nonexistent" parties "should be
considered sham parties . . . against whom no cause of action can
NYCTA's and TWU's motions are evaluated pursuant to
Fed.R.Civ. P. 12(b)(6).*fn1 In considering a motion to dismiss for
failure to state a claim upon which relief can be granted, the
Court accepts as true the plaintiff's factual allegations and
draws all reasonable inferences in favor of the non-moving party.
See Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz,
290 F.3d 476, 479 (2d Cir. 2002). In addition to the allegations
contained within the complaint, the Court "may consider facts set
forth in exhibits attached as part of the complaint," Chance v.
Armstrong, 143 F.3d 698, 700 n. 1 (2d Cir. 1998), as well as
"any statements or documents incorporated in it by reference."
Int'l Audiotext Network, Inc. v. Am. Tel. & Tel.Co.,
62 F.3d 69, 72 (2d Cir. 1995) (citation omitted).
"Dismissal is not appropriate `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.'" Chance, 143 F.3d at 701. "This rule applies with
particular force where the plaintiff alleges civil rights
violations[.]" Id. (citation omitted). "Because the complaint
must allege facts which confer a cognizable right of action, `the
issue is not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support the
claims.'" DeMuria v. Hawkes, 328 F.3d 704, 706 (2d Cir. 2003)
Straker's Amended Complaint ("Amend. Compl.") alleges that he
worked for NYCTA since 1987 and as a train operator since 1992.
On January 23, 2002, he appeared for an annual physical
examination; part of that examination required him to provide a
urine sample for mandatory drug testing. Straker did not provide
a sample; he alleges that he was physically unable to comply
because of a flare-up of his herpes genitalis.
NYCTA construed his non-compliance as a "refusal" and
terminated him. Before it did so, however, NYCTA referred Straker
to several physicians to determine whether he suffered from a
medical condition that rendered him unable to provide the
required sample; by and large, those physicians concluded that
there was no medical basis to excuse Straker's failure to
urinate. Broadly stated, Straker alleges that in referring his
case to the various physicians for evaluation, NYCTA failed to
follow drug testing regulations promulgated by the Department of
Transportation ("DOT Guidelines"), and that several of those
physicians conspired with NYCTA to deprive him of his civil
rights on account of his African-American race.
Straker alleges that he and his union filed a grievance, which
was arbitrated over the course of three days before the Tripartite Arbitration
Board ("TAB"). Straker testified before the TAB, as did a number
of other individuals. On January 11, 2003, the TAB issued a
twenty-three page Opinion and Award, a copy of which is appended
to Straker's Amended Complaint as Exhibit A, finalizing Straker's
termination. After observing initially that the applicable
Collective Bargaining Agreement provided that "[r]efusal to take
[mandatory drug] test(s) . . . will be deemed an admission of
improper use of Controlled Substances or Drugs and will result in
dismissal from service[,]" Amend. Compl., Ex. A (Opinion and
Award) at 3, the TAB determined that Straker "was not a credible
witness" and rejected his arguments that the urine testing and
review procedures had been violated. Amend. Compl. at ¶¶ 47-48;
Ex. A at 3-23.
Straker initiated his action on April 10, 2003. His complaint,
as amended, alleges four causes of action against NYCTA (Counts I
through IV) and one against TWU (Count V).*fn2
Count I alleges that by failing to follow the DOT Guidelines
regarding testing protocols, NYCTA "violated 42 U.S.C. § 1983 in
that it deprived plaintiff of his job without procedural due
process[.]" Amend. Compl. at 20.
Count II alleges that NYCTA, "together with physicians Harris
M. Naglar, M.D. and Avram M. Nemetz, M.D., engaged in conduct
calculated to support a finding that plaintiff `refused' to render a urine sample" because of
Straker's race, thereby "violat[ing] 42 U.S.C. § 1985(3) in that
[NYCTA] subjected plaintiff to invidious, racially discriminatory
conduct by deviating from [the DOT guidelines] and by disclosing
plaintiff's medical condition to plaintiff's colleagues,
supervisors, management and the Department of Labor Relations."
Id. at 21.
Count III alleges "[t]hat the contractual relationship between
[NYCTA] and Affiliated Physicians [the group of doctors to whom
NYCTA referred Straker's case] facilitated [NYCTA's] material
representations to the [TAB] regarding plaintiff's `refusal,'
[and] that the misrepresentations were offered to the [TAB] with
the expectation that the misrepresentations would be relied upon.
Plaintiff was injured in that he was deprived of employment and
its emoulments, for a period of ten months violating
42 U.S.C. § 1983." Id. at 22.
Count IV alleges that Straker "is a qualified person suffering
from disability as set forth in the Rehabilitation Act of
1973[;]" that he "suffered from a debilitating illness and was
handicapped within the meaning of the statute[;]" that he "was
qualified as a train operator[;]" and that "he was discharged
under the pretext that he refused to give a urine specimen but
was discharged because of his handicap." Id.
Count V alleges that a TWU representative, James Mahoney,
approached one of Straker's physicians and "instruct[ed] the
doctor not to cooperate" with Straker during the arbitration
proceedings. Id. at ¶ 87. By so doing, TWU "attempted to and
did seriously undermine plaintiff's defense as well as the
arbitration process[,]" id. at 22-23, thereby "breach[ing] its duty of fair representation before the
[TAB]" in violation of "federal labor law." Id.
A. Count I: Due Process/Violation of ...