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Thomas v. City of New York

July 24, 2007


The opinion of the court was delivered by: Sifton, Senior Judge.


Plaintiff Claude Thomas ("Thomas"), a former firefighter with the New York City Fire Department ("NYFD"), commenced this action against defendants City of New York ("City") and Kerry Kelly, M.D. ("Dr. Kelly"), alleging that defendants conspired to deprive him of rights under the Department of Transportation drug testing regulations*fn1 , based on his race, violating his due process and equal protection rights, and discriminating against him on the basis of disability. Plaintiff also alleged RICO claims under 18 U.S.C. § 1962, Title VII claims of race discrimination and retaliation against the City of New York under 42 U.S.C. §§ 2000e to 2000e-17 and 42 U.S.C. §§ 1981, 1983, and 1985, and disability discrimination claims under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.*fn2 The litigation arises out of the NYFD's termination of plaintiff's employment based on a urinalysis that was positive for the presence of a controlled substance. Presently before the Court are plaintiff's and defendants' cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, summary judgment is granted in favor of all of the remaining defendants.


The facts are drawn from the Third Amended Complaint, previous decisions in this case, defendant City's Rule 56.1 Statement*fn3 , and the parties' submissions in connection with these motions. Disputes are noted.

Plaintiff, an African-American male, joined the New York City Fire Department on November 12, 1989 as a Firefighter First Grade. On July 21, 1999, plaintiff signed a Stipulation and Agreement ("Stipulation") with the FDNY in which plaintiff admitted to the use of a controlled substance on May 24, 1999, leaving the scene of an accident on June 7, 1999, and violating the FDNY's Oath of Office. The Stipulation provided that plaintiff would in the future be subject to frequent random testing for controlled substances.

After signing the Stipulation, plaintiff says he was subject to verbal abuse from commanding officers in the presence of co-workers and others. One such incident allegedly occurred on November 15, 1999. A Captain Blume is said to have yelled at plaintiff, using expletives, for not moving quickly enough when ordered upstairs. In the presence of a Bureau of Investigation and Trials ("BIT") officer, Captain Bloom allegedly "placed his index finger on plaintiff's cheek and screamed in plaintiff's face "Mother f....r, who do you think you are? When I give you a order, you better listen boy, you a..hole." (Comp. ¶ 42.) Captain Blume suspended plaintiff for 30 days without pay and according to the Complaint, said to plaintiff as plaintiff was changing into civilian clothes, "we got you nigger." (Comp. ¶¶ 48-49).

Plaintiff returned to the firehouse from his suspension on December 17, 1999 and was immediately suspended for another 30 days by Captain Blume for allegedly not turning the volume down on the television quickly enough when ordered to do so. Plaintiff, suffering severe chest pains as a result of the confrontation, was removed from the fire house by Emergency Medical Services. Plaintiff was, at the time, taking anti-depressant medication and was being treated by Dr. Richard G. Dudley, Jr., a psychiatrist, for job-related stress. Dr. Dudley subsequently submitted a letter to the FDNY, dated February 14, 2000, requesting medical leave on behalf of plaintiff, which was denied. Dr. Dudley renewed the request by letter dated March 7, 2000, which was again denied. On January 24, 2000 plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC").

Plaintiff's urine was tested for drugs approximately 29 times between July 21, 1999 and October 24, 2002, with negative results each time. Generally, the urine specimens were split into two, a "primary" specimen and a "split" specimen.*fn4 Pursuant to a contractual agreement with the FDNY, plaintiff's October 24, 2002 urine sample, like all the previous samples, was first tested by the laboratory, Bendiner and Schlesinger ("B & S"). The October 24, 2002 urine specimen tested positive for morphine at 1353 ng/mL (nanograms per milliliter). The FDNY specifies a 300 ng/mL cutoff level for opiates, including morphine.*fn5 As a result of the positive report, plaintiff was ordered to "stand down" on November 4, 2002, meaning that he was restricted from driving department vehicles and treating injuries.

On November 5, 2002, plaintiff submitted a hair follicle and urine sample to his treating physician, Dr. Dudley, for testing. According to Dr. Dudley's letter to the FDNY, a hair drug screen can determine if a person ingested opiates at any point in time over a period from weeks to years prior to the sample being taken. Both hair and urine samples were tested by Quest Diagnostics, Inc. ("Quest"), a laboratory on the FDNY's list of approved laboratories. The urine tested negative, and according to Dr. Dudley, the hair follicle test was also negative for opiates. Dr. Dudley reported the results to the FDNY on November 14, 2002.

By letter dated November 6, 2002, plaintiff was informed by the FDNY that as a result of the October 24, 2000 positive result and pursuant to the Stipulation, he had seven days to submit a re-test request and present relevant evidence on his behalf before the FDNY took final action. The letter also indicated that failure to provide "satisfactory and acceptable mitigation" would result in plaintiff's termination on November 21, 2002.

On November 11, 2002, plaintiff submitted another urine sample to a BIT Lieutenant at the Bureau of Health Services, but never received the results from its testing.

On November 14, plaintiff paid a $108 fee to have his October 24, 2002 specimen re-tested. In a letter dated November 13, 2002 to Quest, Dr. Kelly, the FDNY Chief Medical Review Officer, requested a re-test of plaintiff's specimen for a confirmation of morphine. At an unknown date, Assistant Commissioner James Drury, on behalf of BIT, sent a urine specimen, attributed to plaintiff, to Quest for a re-test. The request was copied to B & S. A third letter, also undated, was sent from B & S to Quest requesting plaintiff's urine be re-tested for morphine. Which specimen each request relates to and what became of both the primary specimen and the split specimen from B & S is not clear.

Plaintiff alleges that the primary specimen of plaintiff's urine was removed from frozen storage at B & S on November 22, 2002, but it was not sent to Quest for re-testing until three days later on November 25, 2002. Plaintiff alleges that B & S failed to properly refrigerate the specimen in this interval. (Compl. ¶ 91). The specimen was not received by Quest until December 2, 2003. Plaintiff alleges that the specimen container was broken and not intact upon arrival at Quest. (Compl. ¶93). According to plaintiff's complaint, a December 3, 2002 report from Quest indicates the re-test of the primary specimen revealed morphine levels of 200 ng/mL, below both the FDNY and DOT cutoff levels.

On November 13, 2002, plaintiff was suspended for 30 days because of the initial positive morphine test of his October 24, 2002 urine specimen. On November 15, 2002, the New York Fire Department published plaintiff's suspension for violating sections of the Regulations for the Uniformed Force governing the use of controlled substances and the oath of office. By letter dated December 4, 2002, plaintiff was notified that he was terminated, effective December 14, 2002. Immediately upon the notification of his suspension and again upon the notification of his termination, plaintiff, denying the use of any controlled substance other than ...

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