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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 Zoloft, contacted Robert Straub, the Bronx Trustee of the UFA, requesting that he file a grievance on plaintiff's behalf. Plaintiff alleges that no grievance was filed.

On December 24, 2002, plaintiff advised Deputy Commissioner Clinton that he wanted the urine specimens from B & S and Quest to be re-tested to confirm the existence of morphine and to determine their DNA. On December 31, 2002, plaintiff executed an authorization for the transfer of specimens from Quest to LabCorp, also on the FDNY list of approved laboratories. On January 2, 2003, plaintiff paid $1500 to LabCorp for the tests. However, on the same date, plaintiff was advised by Susan Mills of Quest that the specimen could not be transferred without FDNY authorization. On January 6, 2003, Quest obtained a mouth swab from plaintiff in Queens for the purpose of determining his DNA characteristics to be transported to LabCorp. (Compl. ¶142). On January 27, 2003, LabCorp reported that it had not received the urine specimen from Quest, apparently because the specimen was shipped from Quest without being appropriately addressed. The specimen was later found on January 31, 2003.*fn6 Plaintiff alleges that Ms. Mills of Quest, acting under instructions from the FDNY, only authorized a test for a morphine confirmation. On February 6, 2003, Dr. Kelly transmitted a letter to LabCorp authorizing the DNA testing. Plaintiff was required to pay an additional $90 fee to LabCorp. LabCorp did not report its findings with respect to the morphine test, but by letter dated March 10, 2003, LabCorp reported to plaintiff that there were insufficient quantities of DNA in the sample to develop a profile.*fn7

Prior to the testing by LabCorp, plaintiff requested a so-called "Litigation Package" from B & S.*fn8 Plaintiff made the request in writing through his attorney on both December 24, 2002 and January 30, 2003. Receiving no response, plaintiff requested the assistance of Deputy Commissioner David Clinton in a letter dated February 26, 2003, and submitted another letter request to B & S on that same date. By letter dated March 6, 2003, plaintiff, through his attorney, again requested the Deputy Commissioner's assistance in obtaining a Litigation Package from B & S. Eventually, in late March, plaintiff received a letter from William Closson, Director of Forensic Toxicology at B & S, stating that he was prohibited by law from releasing the Litigation Package to anyone other than the "ordering client/physician."*fn9 (Compl., Exh. M). Plaintiff allegedly never received a Litigation Package from B & S, but received one from Quest on April 1, 2003 after two previous requests in December 2002 and January 2003 were not responded to. On April 14, 2003, plaintiff filed his original complaint.


Plaintiff's remaining claims against the City of New York arise under Title VII (race discrimination and retaliation), Section 1981*fn10 , Section 1983 (due process and equal protection)*fn11 , the Americans with Disabilities Act and Section 504 of the Rehabilitation Act*fn12 , and Article 15 of the New York State Human Rights Law, New York Executive Law § 290 ("NYSHRL").*fn13

Plaintiff's remaining claim against defendant Dr. Kelly arises under 42 U.S.C. § 1981.

Plaintiff seeks reinstatement of his position, a permanent injunction ordering the City of New York to restore all benefits lost as a result of termination and to refrain from further retaliatory acts, and $25 million in compensatory damages from defendant City of New York. Plaintiff seeks $25 million in compensatory damages and punitive damages from Dr. Kelly. Plaintiff also seeks court costs and attorney's fees.

Summary Judgment Standard

A court must grant a motion for summary judgment if the movant shows that "there is no genuine issue as to any material fact" and that "the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. Pro. 56(c). Summary judgment is appropriate "[w]hen the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A fact is material when it "might affect the outcome of the suit under the governing law." Id.

The party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists. Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir. 1987). In order to defeat such a motion, the non-moving party must raise a genuine issue of material fact. The non-moving party may not rely on conclusory allegations or unsubstantiated speculation. Twin Labs., Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir. 1990). In deciding such a motion the trial court must determine whether "after resolving all ambiguities and drawing all inferences in favor of the non-moving party, a rational juror could find in favor of that party." Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000).

Waiver of Claims in the Stipulation

Defendant City argues that it is entitled to summary judgment as a matter of law despite the numerous disputed factual issues relating to plaintiff's drug testing because plaintiff waived most of his claims when he entered into the Stipulation and Agreement to settle disciplinary charges on July 21, 1999. Paragraph 10 of the Stipulation and Agreement states that "the finding of the presence of alcohol, marijuana or any other controlled substance in [plaintiff's] blood or urine will be deemed to be a violation of this agreement." Stipulation and Agreement ¶ 10. Paragraph 14 provides in relevant part:

[t]hat Firefighter Thomas understands that, for the entire duration of his employment with the Department, in the event of any violation of this agreement or any future misconduct relating to any conviction in a court of law, from the date of this stipulation, he will be terminated without a hearing of any kind, and Firefighter Thomas hereby waives any and all rights, including any right to a disciplinary hearing pursuant to Sections 75 and 76 of the Civil Service Law, Article 78 of the Civil Practice Law and Rules and any applicable collective bargaining agreement;

Stipulation and Agreement ¶ 14. Under Paragraph 19, this Stipulation constitutes a waiver by Firefighter Thomas whereby he is estopped from commencing or continuing any judicial or administrative proceedings or appeal, before any court of competent jurisdiction, administrative tribunal or Civil Service Commission, including but not limited to, actions pursuant to the Civil Rights Act of 1964 or any other Federal Civil Rights Statute, the Age Discrimination Employment Act of 1967, the Rehabilitation Act of 1973, or the Americans with Disabilities Act of 1990 and any applicable contractual grievance procedures, to contest the authority and jurisdiction of the Fire Department to impose the terms and conditions which are embodied in the Stipulation; Stipulation and Agreement ¶ 19. The Stipulation and Agreement further provides

[t]hat this Stipulation and Agreement has been entered into knowingly, intentionally, without coercion, duress or undue influence having been exerted upon Firefighter Thomas and has been accepted by Firefighter Thomas after having had discussions with, and having been advised thereon by, his counsel.

Stipulation and Agreement ¶ 22.

In my November 18, 2004 decision dismissing the Third Amended Complaint, I affirmed my April 1, 2004 dismissal with prejudice of plaintiff's procedural due process claim "[b]ecause plaintiff explicitly waived his right to a pre- and/or post-termination hearing" in paragraph 14 of the Stipulation and Agreement and "made no allegations that he signed the Stipulation under duress, coercion or without knowledge of the consequences." Memorandum and Opinion, November 18, 2004, No. 03-CV-1797 (CPS), p. 26.*fn14

Defendant City of New York now moves for dismissal of plaintiff's Title VII, Rehabilitation Act, Americans with Disabilities Act, Sections 1981 and 1983, and New York State Human Rights Law claims based on the waiver contained in the Stipulation and Agreement. Just as "[i]t is well settled that a public employee may waive his procedural due process protections," Memorandum and Opinion, No. 03-CV-1797 (CPS), April 1, 2004, p. 29 ("April 2004 Memorandum") (citing inter alia Miller v. Coughlin, 59 N.Y.2d 490, 494 (1983)), "[j]udicial acceptance of compromises in which the most fundamental of rights are waived is not uncommon." David Abramovich v. Bd. of Educ. Of Central School District, 46 N.Y.2d 450, 456 (Ct. App. 1979) (also stating that "the comprehensive range of matters on which agreements between litigants or potential litigants is enforceable long ago came to include 'stipulating away statutory, and even constitutional rights.'") (citations omitted). "A party may by contract waive his right to resort to the courts, but he will only be held to have done so if the waiver is explicit." Security and Law Enforcement Employees, District Council 82, AFSCME, AFL-CIO v. Hartnett, 500 N.Y.S.2d 571, 572 (Sup. Ct. 1986). The waiver must be "freely, knowingly and openly arrived at, without taint of coercion or duress." Montiel v. Kiley, 538 N.Y.S.2d 2, 4-5 (1989), quoted in April 2004 Memorandum, p. 29.

Plaintiff seeks to avoid the effect of the Stipulation by arguing that "plaintiff would be fired if he did not sign the [Stipulation]," Plaintiff's Opposition Memorandum, p. 3; see also Plaintiff's Reply Memorandum, p. 3, and that he was not represented by counsel at the time he signed the document. Id. These arguments do not present a case of coercion or duress sufficient to overcome the bargain struck in the Stipulation. As stated in my April 1, 2004 decision, "the waiver is valid where it 'serves as the quid pro quo for countervailing benefits.'" Memorandum and Opinion, April 1, 2004, No. 03-CV-1797 (CPS), p. 30 (quoting Abramovich, 46 N.Y.2d at 455). "[I]n return for signing the Stipulation, plaintiff was able to retain his position as an employee of the FDNY." Memorandum and Opinion, April 1, 2004, No. 03-CV-1797 (CPS), p. 30. Moreover, contrary to his current assertion that he did not have legal representation at the time he signed the document, plaintiff averred that he had been advised by counsel in Paragraph 22 of the Stipulation. See Morrisroe v. Safir, 1998 WL 709822, at *1 (S.D.N.Y. 1998)("The plea document shows that plaintiff was represented by counsel during the disciplinary proceedings. Plaintiff signed the document and acknowledged that he had discussed the plea and its 'ramifications' with his attorney.").

Plaintiff's deposition testimony likewise reveals that he understood the terms of the Stipulation.*fn15 See Abramovich, 46 N.Y.2d at 457-58 (dismissing claims based on petitioner's stipulation in part because "even now, from the vantage point of hindsight, petitioner does not seriously controvert his acceptance and understanding of the terms of the stipulation"). Because the waiver of rights in the Stipulation is explicit and without coercion, plaintiff is bound by its terms. Accordingly, with the exception of plaintiff's Title VII and Section 1981 claims regarding hostile work environment and retaliation*fn16 , plaintiff's claims against defendant City of New York under Title VII of the Civil Rights Act, the Rehabilitation Act, the Americans with Disabilities Act, Sections 1981 and 1983, and his New York State Human Rights Law claim must be dismissed in accordance with the Stipulation and Agreement.*fn17

Hostile Work Environment and Retaliation*fn18

The Supreme Court has interpreted Title VII to prohibit "requiring people to work in a discriminatorily hostile or abusive environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). To succeed on a hostile work environment claim, a plaintiff must show, first, that "the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment." Id. at 21. Factors to be considered in determining whether an environment is hostile or abusive include: "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23. Although "the incidents comprising a hostile work environment claim need not make reference to any trait or condition on the basis of which the discrimination has occurred," they must occur under circumstances under which "the incidents can reasonably be interpreted as having taken place on the basis of that trait or condition." Svenningsen v. College of Staten Island, No. 01-CV-7550, 2003 WL 21143076, *2 (E.D.N.Y. 2003); see Gregory v. Daly, 243 F.3d 687, 694-695 (2d Cir. 2001). Isolated incidents of offensive conduct are generally inadequate to establish a discrimination claim, and plaintiff must show "either a single incident was extraordinarily severe, or that a series of incidents was sufficiently continuous and concerted" to cause a change in the work environment. Howley v. Town of Stratford, 217 F.3d 141, 153 (2d Cir. 2000)(citing Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000)). "[A]lleged epithets and demeaning invective directed at a plaintiff by his or her superiors or co-workers can, if believed by a factfinder, subject an employer to legal liability for discrimination." Mandell v. County of Suffolk, 316 F.3d 368, 373 (2d Cir. 2003). However, the plaintiff must demonstrate that the conduct occurred because of, not incidental to, the protected trait or characteristic. See Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002). "For racist comments, slurs, and jokes to constitute a hostile work environment, there must be more than a few isolated incidents of racial enmity, meaning that instead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.1997) (internal quotation marks and citations omitted). "Thus, whether racial slurs constitute a hostile work environment typically depends upon the quantity, frequency, and severity of those slurs, considered cumulatively in order to obtain a realistic view of the work environment." Id. at 110-11 (internal quotation marks and citations omitted), cited in Kemp v. A & J Produce Corp., 164 Fed.Appx. 12, at *14, 2005 WL 3310063, at *1 (2d Cir. 2005).

After establishing that a hostile work environment resulting from discrimination existed, a plaintiff must show that there is a specific basis for imputing the discriminatory conduct to his employer. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996).

Plaintiff alleges two incidents of abusive conduct in the workplace. The first incident allegedly occurred on November 15, 1999, when Captain Blume, allegedly angry that plaintiff did not move quickly enough when ordered upstairs, placed his index finger on plaintiff's cheek and screamed, "Mother f . . . .er, who do you think you are? When I give you a f . . . ing order, you better listen boy, you f . . .ing a . . hole." Comp. ¶ 42. Captain Blume suspended plaintiff for 30 days and said to plaintiff as plaintiff changed into civilian clothes, "we got you nigger." Comp. ¶¶ 48-49. The second incident occurred when Captain Blume suspended plaintiff for 30 days immediately after his return to work from his earlier suspension for allegedly not turning the volume down on the television quickly enough when ordered to do so. Plaintiff suffered severe chest pains as a result of the confrontation and was taken to a hospital by Emergency Medical Services. Comp. ¶ 52.

Plaintiff alleges no other incidents after 1999 or with any other supervisor that fostered a hostile work environment. Taken together, no reasonable juror could infer that these incidents were severe or pervasive enough to create a hostile work environment. Accordingly, plaintiff's claims for hostile work environment and retaliation are dismissed.*fn19


For the foregoing reasons, plaintiff's motion for summary judgment is denied and defendants' motion for summary judgment is granted. Plaintiff's claims under Title VII, Sections 1981 and 1983, the ADA and the Rehabilitation Act, and the NYSHRL are dismissed.

The clerk is directed to enter judgment dismissing the complaint in its entirety and to transmit a copy of the within to the parties and to the magistrate judge.


Charles P. Sifton (electronically signed) United States District Judge

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