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Nathaniel Myers v. Commissioner Martha K. Hirst and New York City

January 13, 2011


The opinion of the court was delivered by: Denise Cote, District Judge:


Plaintiff Nathaniel Myers, who was formerly employed as a Chauffeur-Attendant by the New York City Department of Citywide Administrative Services ("DCAS"), brings this lawsuit under 42 U.S.C. § 1983 and New York City Human Rights Law ("CHRL"), § 8-107 of Chapter 1 of Title 8 of the Administrative Code of the City of New York, alleging deprivation of due process, discrimination in violation of the Equal Protection Clause, and discrimination based upon a perceived disability or history of a disability.*fn1 On July 15, 2010, the defendants moved for summary judgment on all claims. For the following reasons, the motion is granted.


The following facts are undisputed or are presented in the light most favorable to the plaintiff. Myers is an African-American male who began employment with the City of New York at the Mayor's Office in the early 1990s, and was reassigned to the Department of General Services ("DGS"), the predecessor agency to DCAS, to work as a Chauffeur-Attendant in 1993. As a Chauffeur-Attendant, he was "responsible for chauffeuring high-level and elected City Hall officials to and from various work locations." The DGS job description states that a Chauffeur-Attendant's "[d]uties require complete trustworthiness." Myers was not a union member and the position of Chauffeur-Attendant is an "exempt class" within the civil service.

A. 2005 and 2008 DCAS Controlled Substance and Alcohol Use Testing Policy and Procedure

On June 1, 2005, DCAS issued a Controlled Substance and Alcohol Use Testing Policy and Procedure ("2005 Policy"), which stated a "zero-tolerance" for the illegal use of controlled substances and the misuse of alcohol. On June 3, 2005, Myers signed a "Receipt/Acknowledgment Form" indicating that he received the 2005 Policy. The 2005 Policy warns that chauffeurs "shall be terminated" if they are "found to have engaged in prohibited conduct." Rule 2.2.2 of the policy prohibits the "unauthorized use or possession of controlled substances," which includes "[c]ocaine metabolites; that is, cocaine and its derivatives."

Pursuant to the 2005 Policy employees were required to submit to drug testing as part of: (1) "[p]re-employment testing,"; (2) "Reasonable Suspicion testing"; "Post-Accident testing"; and, (4) "Random testing for controlled substance and/or alcohol use: conducted on a random unannounced basis." Finally, Rule 4.0.0 establishes procedures for urine testing. It provides, in relevant part:

Upon collection, each urine sample will be subdivided into two bottles: one labeled "A" and one labeled "B." The collector will seal and label both samples and complete a chain of custody form.

The sample labeled "A" and all accompanying documentation will be shipped by the testing facility to a controlled substance laboratory ("laboratory"). The analysis will be performed by a laboratory that is certified and monitored by the federal Department of Health and Human Services ("DHHS").

The sample labeled "B" will remain sealed and stored at the testing facility. (In the event the sample labeled "A" is confirmed as positive for the presence of illegal controlled substances, the Chauffeur has 72 hours to request that the sample labeled "B" be sent to another laboratory for analysis at his or her own expense . . . .)

[A] Chauffeur has 72 hours from the confirmation of a positive result to request that his or her sample labeled "B" be delivered to a second DHHS-certified laboratory. The cost of any delivery charges and analysis is at the Chauffeur's own expense. (Emphasis supplied).

Approximately three years later, on June 6, 2008, DCAS issued an updated Controlled Substance and Alcohol Testing Policy and Procedure ("2008 Policy") to "reflect enhanced testing methods." The same day, Myers signed a form indicating that he had received the 2008 Policy. The 2008 Policy differed from the 2005 Policy in one respect that is material to this litigation: the 2008 Policy provided for the testing of hair follicles in addition to urine. Specifically, the 2008 Policy provides that If a hair sample is to be taken, the hair sample will be removed by a staff member at the collection site and sent to the laboratory that is certified and monitored by NYSDOH in order to conduct the proper testing for said hair sample. The proper chain of custody will be maintained by the laboratory while the sample is sent to the laboratory. The same stages for testing urine samples will be applied to hair samples. (Emphasis supplied). Since the institution of the 2005 Policy, Myers had never been randomly tested for the use of alcohol or a controlled substance.

B. Myers's Admission of Use of Cocaine and Entrance into Treatment

From approximately February 2007 through March of 2008, while Myers's mother was ill and following her death, the plaintiff used cocaine "as needed." Soon after he received the 2008 Policy, Myers spoke with his supervisor "to find out why or how an individual who wants to come forward that may have a problem, how does -- how do they address that." After the discussion with his supervisor, Myers met with the Deputy Commissioner of DCAS and told him he was having a problem with cocaine. Plaintiff then took medical leave and began an outpatient drug treatment program with Inter-Care. Although Myers testified in his deposition that the last time ...

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