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United States District Court, S.D. New York

January 19, 2005.

PETER GIACCIO, JR., Plaintiff,
THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, and IRIS WEINSHALL in her individual and official capacity, Defendants.

The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge


Defendants the City of New York (the "City"), the New York City Department of Transportation (the "DOT"), and Iris Weinshall, Commissioner of the DOT ("Weinshall") (collectively, the "Defendants") have moved pursuant to Rule 12(b)(6), Fed.R. Civ. P., to dismiss the complaint of plaintiff Peter Giaccio, Jr. ("Giaccio").*fn1 For the reasons set forth below, the motion is granted in part and denied in part.

Prior Proceedings

  On May 13, 2004, Giaccio, a boiler-maker employed by the DOT, filed his complaint pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the "ADA"), the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (the "NYSHRL"), the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. (the "NYCHRL"), and 42 U.S.C. § 1983, alleging that his rights to confidentiality, due process and equal protection were violated when Defendants failed to maintain the confidentiality of Giaccio's random drug and alcohol test results, resulting in the dissemination of those results in a newspaper article.*fn2

  Defendants have moved to dismiss the complaint on the ground that tests for illegal drugs are not considered "medical examinations" under the ADA and, therefore, are not protected by the ADA's confidentiality provisions, the basis for Giaccio's ADA claim. Defendants further argue that the factual allegations of the complaint are conclusory and insufficient to state claims under 42 U.S.C. § 1983, and that the Court should decline to exercise supplemental jurisdiction over Giaccio's claims arising under the NYSHLR and the NYCHRL in the event that Giaccio's federal claims are dismissed.

  The motion of Defendants was heard and marked fully submitted on September 15, 2004.

  The Facts

  The following factual background is drawn from the allegations of the complaint. These allegations are accepted as true for the purposes of this motion, see Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002), and do not constitute findings of fact by the Court. Giaccio is a resident of the State of New York who was at all relevant times employed by the City by and through the DOT, a municipal division of the City which employs more than fifteen people. Weinshall is the Commissioner of the DOT and is being sued here in both her individual and official capacities.

  As part of his job, Giaccio underwent random drug and alcohol testing. It is alleged that the results of the random drug and alcohol testing constitute confidential medical information maintained by Defendants as Giaccio's employers.

  Despite the allegedly confidential nature of the medical information in question, "defendant and/or its agents and/or employees took no steps whatsoever to protect and/or safeguard the drug and alcohol test results from unauthorized disclosure and/or dissemination." (Compl. at ¶ XV.) Defendants, or any of them, are further alleged to have failed to maintain the drug and alcohol test results on separate forms and/or in separate medical files as mandated by 42 U.S.C. § 12112.

  As a result of the failure of Defendants, their employees and/or their agents to maintain the drug and alcohol test results as confidential medical information, the results of Giaccio's drug and alcohol tests were disseminated to the media. In particular, on November 21, 2003, a newspaper disseminated by Newsday referred to the results of a drug and alcohol test administered to Giaccio. The information contained in the Newsday article regarding Giaccio's confidential medical information was provided by Defendants, their employees and/or their agents.

  Giaccio has alleged that he suffered humiliation, emotional harm, embarrassment, and harm to his reputation, among other injuries, as a result of Defendants' acts.

  The Rule 12(b)(6) Standard

  In considering a motion to dismiss pursuant to Rule 12(b)(6), Fed.R.Civ.P., the Court construes the complaint liberally, "accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor," Chambers, 282 F.3d at 152 (citing Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001)), although "mere conclusions of law or unwarranted deductions" need not be accepted. First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir. 1994). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). In other words, "`the office of a motion to dismiss is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of New York, 375 F.3d 168, 176 (2d Cir. 2004) (quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980)). Dismissal is only appropriate when "it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him or her to relief." Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000); accord Eternity Global Master Fund, 375 F.3d at 176-77.


  A. Defendants' Motion To Dismiss The ADA Claim Is Denied

  Giaccio's ADA claim relates to the results obtained from certain drug and alcohol tests to which he was subjected as a part of his job. While Giaccio has not challenged the propriety or legality of the underlying drug and alcohol testing requirement or the administration of the tests themselves, he has alleged that Defendants failed to maintain the confidentiality of the results of his random drug and alcohol tests in violation of the ADA. In particular, Giaccio claims a violation of 42 U.S.C. § 12112(d), which subsection pertains to "[m]edical examinations and inquiries" and sets forth three circumstances in which a covered entity may make certain inquiries or require medical examinations. See generally 42 U.S.C. §§ 12112(d)(2), 12112(d)(3) & 12112(d)(4); Equal Employment Opportunity Commission, EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA) (July 27, 2000), at (describing three relevant stages: (i) prior to an offer of employment; (ii) following extension of a conditional offer of employment and prior to the commencement of employment; and (iii) during employment). The parties agree that, of these three circumstances or stages, the third category pertaining to current employees, codified at 42 U.S.C. § 12112(d)(4), governs Giaccio's claim.

  Subsection 12112(d)(4), entitled "Examination and inquiry," contains three subparagraphs, as follows:

(A) Prohibited examinations and inquiries
A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.
(B) Acceptable examinations and inquiries
A covered entity may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site. A covered entity may make inquiries into the ability of an employee to perform job-related functions.
(C) Requirement
Information obtained under subparagraph (B) regarding the medical condition or history of any employee are subject to the requirements of subparagraphs (B) and (C) of paragraph (3).
42 U.S.C. § 12112(d)(4). The confidentiality requirements identified in subparagraph (C) provide, in relevant part, that information obtained concerning the medical condition or history of an employee "is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record," except that the information may be provided to supervisors, managers, safety personnel and government officials, among others, under specified circumstances. 42 U.S.C. § 12112(d)(3)(B).

  A plaintiff alleging that information protected by subsection 12112(d) was improperly disclosed in violation of the ADA need not be disabled to raise the claim. See Shaver v. Independent Stave Co., 350 F.3d 716, 722 (8th Cir. 2003) (citing Cossette v. Minnesota Power & Lighting, 188 F.3d 964, 969-70 (8th Cir. 1999) ("The plain language of subsections (d)(3) and (d)(4) speaks of `employees' and `applicants' — suggesting that [the plaintiff] need not be disabled in order to recover [for a claim of illegal disclosure of confidential medical information]. This language stands in stark contrast to the ADA's general prohibition of disability discrimination, which provides that employers shall not `discriminate against a qualified individual with a disability.'") (citation omitted)); cf. Conroy v. New York State Dep't of Corr. Servs., 333 F.3d 88, 94 (2d Cir. 2003) (holding that a plaintiff need not establish that "he or she has a disability unknown to his or her employer in order to challenge a medical inquiry or examination under 42 U.S.C. § 12112(d)(4) ([A])"). Defendants argue that the confidentiality provisions of subsection 12112(d) are not implicated by the alleged improper disclosure of Giaccio's test results because drug and alcohol tests do not qualify as "medical examinations" under the ADA and the non-disclosure obligations of the ADA are thus not triggered under the circumstances alleged in Giaccio's complaint. As Defendants correctly note, the ADA specifically provides that, "[f]or purposes of this subchapter, a test to determine the illegal use of drugs shall not be considered a medical examination." 42 U.S.C. § 12114(d)(1); cf. Buckley v. Consol. Edison Co. of New York, 155 F.3d 150, 155-56 (2d Cir. 1998) (en banc) (explaining that, due to the ADA's exception of tests for illegal drug use from the definition of "medical examination," "an employer who undertakes to test employees identified as former substance abusers for the illegal use of drugs is not required to administer such tests also to employees not so identified" as the employer might otherwise be required to do under 42 U.S.C. § 12112(d)(3)(A).

  The conclusion that tests for the illegal use of drugs do not qualify as "medical examinations" under the ADA does not end the analysis, however. Giaccio has argued that the drug and alcohol tests at issue here need not qualify as "medical examinations" at all in order to trigger the protections afforded by 42 U.S.C. § 12112(d). Rather, according to Giaccio, the drug and alcohol tests represent "inquiries into the ability of an employee to perform job-related functions," 42 U.S.C. § 12112(d)(4)(B), and such inquiries are accorded the confidentiality protections of 42 U.S.C. § 12112(d) pursuant to subsection 12112(d)(4)(C).

  Giaccio's interpretation of "inquiry" in subparagraph (B) appears to be supported by certain regulations promulgated by the Equal Employment Opportunity Commission which pertain to the examination of employees and mirror the relevant portions of 42 U.S.C. § 12112(d)(4). See 29 C.F.R. § 1630.14(c) ("A covered entity may require a medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity. A covered entity may make inquiries into the ability of an employee to perform job-related functions."). The relevant interpretive guidance states that information obtained in accordance with 29 C.F.R. § 1630.14(c) through periodic physicals and "other medical monitoring" required by federal safety regulations "is to be treated as a confidential medical record."*fn3 29 C.F.R. Pt. 1630, App. § 1630.14(c) (providing interpretive guidance for § 1630.14(c)); see generally Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986) (observing that administrative interpretation represents "a body of experience and informed judgment to which courts and litigants may properly resort for guidance") (citations and internal quotation marks omitted). Giaccio has represented that the drug testing at issue here was conducted pursuant to such federal regulations.*fn4

  Defendants have raised two objections to Giaccio's argument. First, Defendants contend that a medical examination is necessary to trigger the confidentiality provisions of 42 U.S.C. § 12112(d). The language of subparagraph (B) belies this argument, and the only case cited by Defendants fails to bolster their assertion. Indeed, Medlin v. Rome Strip Steel Co., 294 F. Supp. 2d 279 (N.D.N.Y. 2003), stands for the proposition that the protections of 42 U.S.C. § 12112(d) may be triggered by either "a `medical examination' or `inquiry.'" See Medlin, 294 F. Supp. 2d at 293-94 ("Even if the FCE [functional capacity evaluation] cannot be considered a medical examination, it most certainly is an `inquiry' into the severity of plaintiff's alleged disability. . . . Thus, no matter how it is classified, the FCE triggered the protections of Section 12112(d). . . ."); see also Pouliot v. Town of Fairfield, 184 F. Supp. 2d 38, 54 (D. Me. 2002) (Section 12112(d) "provides that information obtained from current employees in conjunction with a voluntary medical examination or inquiry `into the ability of an employee to perform job-related functions' must be treated as a `confidential medical record' and may only be disclosed to certain specified individuals.") (emphasis supplied and citations omitted). In the absence of any indication that a medical examination is the statutorily mandated sine qua non for confidential protection under subsection 12112(d), Defendants' argument in this regard fails.

  Defendants also contend that questions concerning an employee's current illegal use of drugs are not disability-related inquiries*fn5 and, therefore, neither within the scope of 42 U.S.C. § 12112(d)(4) nor subject to the non-disclosure requirements of the ADA. Although the statutory construction of subsection 12112(d)(4) and, in particular, the inter-play between subparagraphs (A) and (B) appears critical to the circumstances presented here, the authority cited by Defendants, Conroy v. New York State Department of Correctional Services, 333 F.3d 88 (2d Cir. 2003), offers little support for Defendants' proposition.*fn6 Consequently, Defendants' motion to dismiss Giaccio's ADA claim is denied at this stage, as it does not appear beyond doubt that Giaccio "can prove no set of facts which would entitle him or her to relief." Sweet, 235 F.3d at 83.

  B. Defendants' Motion To Dismiss The § 1983 Claims Is Granted

  "To state a claim for relief in an action brought under § 1983, [plaintiff] must establish that [he was] deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law." Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). The Federal Rules of Civil Procedure require that a plaintiff's complaint provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "Such a statement must simply `give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Notwithstanding the lenient requirements of Rule 8(a)(2) articulated in Swierkiewicz, conclusory allegations are insufficient to withstand a motion to dismiss. See Straker v. Metro. Transit Auth., 333 F. Supp. 2d 91, 102 (E.D.N.Y. 2004) (collecting post-Swierkiewicz cases and concluding that, even when a heightened pleading standard is not required, "a claim that does not contain any supporting factual allegations cannot withstand a Rule 12(b)(6) motion"); cf. Wynder v. McMahon, 360 F.3d 73, 80 (2d Cir. 2004) (observing that, regardless of the complaint's satisfaction of the generous requirements of Rule 8(a)(2), a Rule 12(b)(6) motion will "lie to permit each particular defendant to eliminate those causes of action as to which no set of facts has been identified that support a claim against him") (emphasis omitted).

  Defendants contend that Giaccio's due process and equal protection allegations are conclusory and insufficient to state claims under 42 U.S.C. § 1983.*fn7 Defendants further contend that Giaccio has failed to connect the alleged wrongdoing to any of Defendants and that Giaccio has failed to allege any facts to underpin his claim that the City and the DOT are liable as a result of an official policy or custom. In opposition, Giaccio has argued that his § 1983 claims are for violations of his constitutional right to privacy and that the allegations of the complaint state a viable cause of action under this theory.

  The Supreme Court has recognized the existence in the U.S. Constitution of a right to privacy protecting "the individual interest in avoiding disclosure of personal matters. . . ." Whalen v. Roe, 429 U.S. 589, 599 (1977) (footnote omitted). This right to privacy, "variously said to be derived from the First, Fourth, Fifth and Fourteenth Amendments," McVane v. FDIC, 44 F.3d 1127, 1136 (2d Cir. 1995), has been characterized as a right to "confidentiality" and includes the right to keep private the status of one's health. See, e.g., Doe v. City of New York, 15 F.3d 264, 267 (2d Cir. 1994) ("There is, therefore, a recognized constitutional right to privacy in personal information. More precisely, this right to privacy can be characterized as a right to `confidentiality,'. . . . We agree that the right to confidentiality includes the right to protection regarding information about the state of one's health."); United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3d Cir. 1980) ("There can be no question that an employee's medical records, which may contain intimate facts of a personal nature, are well within the ambit of materials entitled to privacy protection.") (footnote omitted); Vergara v. Vogliano, No. 95 Civ. 4513 (JFK), 1997 WL 86388, at *2 (S.D.N.Y. Feb. 28, 1997) ("The constitutionally recognized right of privacy protects against the unauthorized disclosure of personal matters, including personal medical records.") (citations omitted); Clarkson v. Coughlin, 898 F. Supp. 1019, 1041 (S.D.N.Y. 1995) (recognizing "a constitutional right to privacy concerning medical information") (citations omitted).

  Whether Giaccio's test results qualify as medical information or information concerning Giaccio's health to which the right to privacy attaches and whether Defendants possess a substantial interest served by either their manner of maintenance of his test results or the disclosure of those results such as would outweigh Giaccio's privacy interest, see generally Doe, 15 F.3d at 269-70, remains to be seen. It may not be concluded, however, that the allegations of his complaint are so conclusory as to the nature of Giaccio's privacy claim as to fall shy of the forgiving standard of Rule 8(a), Fed.R.Civ.P. Indeed, the second paragraph of Giaccio's complaint announces that he is claiming a violation of "his constitutional right to confidentiality," (Compl. at ¶ II), and the factual allegations make plain that the results of the random drug and alcohol testing to which Giaccio submitted as part of his job are alleged to "constitute confidential information" (Compl. at ¶ XIV), information which was "disseminated to the media" as a result of Defendants' "failure" to maintain the test results "as confidential medical information." (Compl. at ¶ XVII).

  While Giaccio's allegations suffice to identify the nature of the constitutional right allegedly violated, they are otherwise inadequate to state a claim under 42 U.S.C. § 1983 against Defendants.

  In order to state a § 1983 claim against a municipality or a municipal division a plaintiff must allege that a deprivation of the plaintiff's constitutional rights resulted from a custom or policy of the municipality. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978). Allegations concerning a single incident of unconstitutional activity are insufficient to demonstrate the existence of a custom or policy, see City of Oklahoma v. Tuttle, 471 U.S. 808, 821 (1985), at least in the absence of factual allegations "tending to support, at least circumstantially, such an inference." Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995). Wholly conclusory allegations of the existence of a municipal custom or policy are insufficient under general pleading requirements. See Dean v. New York City Transit Auth., 297 F. Supp. 2d 549, 555 (E.D.N.Y. 2004).

  Although Giaccio has summarily alleged that the City and the DOT engaged in a "course of actions and behavior rising to a level of a policy, custom and condoned practice, which has deprived plaintiff of rights, privileges and immunities" (Compl. at ¶ XXVII), there are no factual allegations in the complaint from which the existence of a course of custom or policy might readily be inferred. On this basis, the claims against the City and the DOT must be dismissed. See, e.g., Johnson ex rel. Johnson v. Columbia Univ., 99 Civ. 3415 (GBD), 2003 WL 22743675, at *8 (S.D.N.Y. Nov. 19, 2003) (noting that the plaintiff merely asserts "the existence of a custom or a policy without alleging operative facts that establish the existence of some custom, policy or practice that led to the alleged constitutional violation," and concluding that the plaintiff's claim "that the City had a practice, custom or policy of releasing information in violation of his constitutional right to privacy under § 1983 is, therefore, legally insufficient"); see also Perez v. County of Westchester, 83 F. Supp. 2d 435, 438 (S.D.N.Y.) (dismissing a claim against a municipality where "[t]he complaint does not include any facts demonstrating the existence of a policy or custom" nor did it "even generally indicate the nature of the policy or custom being alleged"), aff'd, 242 F.3d 367 (2d Cir. 2000). As a claim against a government officer in his or her official capacity is equivalent to a suit against the entity of which the officer is an agent, see DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998), and requires the plaintiff to set forth allegations of an official custom or policy, see Rodriguez v. Phillips, 66 F.3d 470, 482 (2d Cir. 1995), the § 1983 claim against Weinshall in her official capacity is likewise dismissed. The remaining § 1983 claim against Weinshall in her individual capacity is dismissed sua sponte.*fn8 For liability to exist under § 1983, a defendant must be personally involved in the underlying conduct or events, in that he or she "subjects, or causes [the plaintiff] to be subjected" to an alleged constitutional violation. 42 U.S.C. § 1983. A defendant may be personally involved in a constitutional deprivation in a variety of ways, including: (1) by directly participating in the challenged conduct; (2) as a supervisory official, by failing to remedy the wrong after having learned of it; (3) as a supervisory official, by creating or perpetuating a policy or custom under which unconstitutional practices occurred; or (4) as a supervisory official, through gross negligence in managing the subordinates who caused the unlawful condition or event. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986). Although Giaccio's complaint makes clear that Weinshall held a supervisory position at the DOT during the relevant alleged events, there are no further allegations of fact from which her role or involvement in the alleged violation of Giaccio's constitutional right to privacy might be inferred beyond the open-ended and inadequate assertions that "defendant and/or its agents and/or employees" failed to adequately protect Giaccio's medical information. (Compl. at ¶ XV.) Accordingly, Giaccio's § 1983 claim against Weinshall in her individual capacity is dismissed. C. The NYSHRL And NYCHRL Claims Are Not Dismissed

  In a footnote contained in their moving papers, Defendants observe that they have been unable to locate any provision under the NYSHRL and the NYCHRL comparable to the ADA's confidentiality provisions, see 42 U.S.C. § 12112(d), nor any other provision imposing a duty of confidentiality with respect to medical records maintained by an employer. Be that as it may, Defendants have not expressly asserted that Giaccio has failed to state a claim under either the NYSHRL or the NYCHRL in their moving papers, nor have they identified the elements of a claim under the NYSHRL or the NYCHRL, articulated any purported failure by Giaccio to satisfy the relevant pleading requirements, or cited any legal authorities in support of their position.

  It is well established that the party seeking to dismiss a claim pursuant to Rule 12(b)(6), Fed.R.Civ.P., bears a substantial burden and no motion for failure to state a claim may be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him or her to relief." Sweet, 235 F.3d at 83. Insofar as Defendants' passing allusion to the NYSHRL and the NYCHRL in the margin of their moving papers was intended as an argument under Rule 12(b)(6), Defendants have not met their burden with respect to Giaccio's state law claims and those claims will not be dismissed at this time.*fn9


  For the reasons stated above, Defendants' motion to dismiss the complaint is granted insofar as Giaccio's claims pursuant to 42 U.S.C. § 1983 are dismissed without prejudice, and is otherwise denied. Giaccio is granted leave to replead and is directed to file and serve his amended pleading within twenty (20) days of entry of this opinion and order.

  It is so ordered.

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