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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 ...

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