The opinion of the court was delivered by: John T. Curtin United States District Judge
In Third Amended Complaint "A" in this case (Item 247), plaintiffs M.O.C.H.A. Society Inc. ("MOCHA") and seventeen employees and/or former employees of the City of Buffalo Fire Department claim that the Fire Department's drug testing policy, in effect between approximately 1995 and 2005, was implemented, applied and enforced in a manner designed to intentionally discriminate against African American firefighters, in violation of 42 U.S.C. §§ 1981, 1983 and 2000e-2 ("Title VII"), and the New York Human Rights Law ("NYHRL"), N.Y. Exec. Law § 296. Following an extended period of discovery, the City and the Union moved for summary judgment dismissing Third Amended Complaint "A." For the reasons that follow, these motions are granted.
The following factual background is derived from the pleadings, affidavits, discovery materials, and other submissions on file, including the parties' respective statements of fact submitted pursuant to Rule 56(a) of the Local Rules of Civil Procedure for the Western District of New York.
The Drug Testing Policy of the Buffalo Fire Department was drafted by the Professional Firefighters Association, Local 282 (the "Union") as the result of negotiations between the Union and the City "to complete obligations contained in an interest arbitration decision." Item 469, Ex. 5*fn1 (Copy of Drug Testing Policy), p. 12. It was enacted in June 1995 upon signature by representatives of the Union, The Fire Department, and the City of Buffalo Division of Labor Relations. The stated general purpose of the Drug Testing Policy was to address concerns about the effects of "on-the-job impairment due to drug abuse .," including "lost productivity, increased health care costs, increased absenteeism, and . danger to the safety of fellow workers and to the public." Id. at 1.
Under the Drug Testing Policy, Fire Department personnel were divided into testing groups as determined by employment status, and were subjected to random urinalysis using a "bingo machine" selection procedure. The drug testing methodology, mutually agreed upon by the parties, involved obtaining a urine sample from the subject employee and dividing the sample into two equal parts, one of which would be retained at the collection center while the other would be sent to a testing laboratory under chain of custody procedures. Confirmed positive test results would be referred to a Medical Review Officer ("MRO"), who would review the results and chain of custody documents and give the employee who tested positive an opportunity to discuss them. If the MRO concluded that there was no medical reason for the positive result, the test would be verified as positive and reported to the Deputy Commissioner and the Employee Assistance Program ("EAP") Coordinator. The second sample would then be submitted for testing, and the employee would be sent to a treatment center for rehabilitation. While undergoing treatment, the employee was required "to utilize all paid leave credits (vacation, personal) before utilizing paid sick leave." Ex. 5, p. 10.
If the second test result was positive, the employee would be deemed to have waived any right to challenge the testing protocol for either sample. The employee would be subject to discipline, including discharge, for the following reasons: two positive test results; failure to complete a rehabilitation program following entry after a first confirmed positive test result; failure to materially comply with the terms of the rehabilitation program; or, testing positive, as confirmed by an MRO, after entering or completing a rehabilitation program. Prior to any discipline being imposed, the employee would be entitled to a hearing before the Commissioner, and afforded an opportunity to offer an explanation in mitigation of the proposed discipline. Id. at 2-12; see also Item 471 (City Defts. Local Rule 56 Statement), ¶¶ 1-16.
On February 10, 1998, MOCHA filed the original complaint in this lawsuit seeking certification of a class action against the City; the Fire Department; Fire Commissioner Cornelius Keane; and Deputy Commissioner John Sixt (the "City defendants"), alleging racial discrimination based on the Fire Department's (1) implementation and application of the Drug Testing Policy, and (2) administration of the 1998 promotional examination for fire lieutenant. See Item 1. Shortly thereafter, the Union moved to intervene as a party defendant to protect its rights as the Buffalo firefighters' bargaining representative. The court subsequently granted plaintiffs leave to amend the complaint to assert additional claims, including a claim that the Union and Local 282 President Ronald Cassell (the "Union defendants") took action against the plaintiffs in retaliation for bringing this lawsuit against the City. See Item 10, ¶¶ 65-68.
After meeting with counsel, the court determined that the drug testing and promotion issues should be addressed in separate pleadings. See Item 23. Accordingly, in October 1998, plaintiffs filed "Amended Complaint A" dealing with the Drug Testing Policy (Item 24) and "Amended Complaint B" dealing with the promotion policy (Item 25).
On October 19, 2000, following substitution of plaintiffs' counsel (and upon consent of the City defendants), plaintiffs filed Second Amended Complaints "A" (Item 55) and "B" (Item 54), and the City moved to dismiss both complaints. Second Amended Complaint "A" contained the following nine causes of action:
1. The Drug Testing Policy is arbitrary and capricious on its face and violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
2. The Drug Testing Policy is arbitrary and capricious as applied to plaintiffs and violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
3. The Drug Testing Policy on its face violates plaintiffs' right to privacy guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
4. As applied, the Drug Testing Policy violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
5. By the conduct alleged, defendants violated 42 U.S.C. §§1981and 1983. 6. By the conduct alleged, defendants violated Title VII of the Civil Rights Act of 1964 (hereinafter "Title VII") et seq. as amended 42 U.S.C. 2000e, et seq.
7. By the conduct alleged, defendants violated 42 U.S.C. §1985.
8. By the conduct alleged, defendants violated New York's Human Rights Law, Executive Law 296, et. seq.
9. By the conduct alleged, the defendants were aiders and abettors in violation of New York's Human Rights Law, Executive Law 296(6).
In a decision and order dated March 16, 2002, the court granted the City's motion to the extent it sought dismissal of plaintiffs' conspiracy claims brought under 42 U.S.C. § 1985(3); claims for punitive damages against the City and the individual City defendants sued in their official capacities; Title VII claims against individual City defendants Cornelius Keane and John Sixt; and claims against the Fire Department as a separate entity. M.O.C.H.A. Soc'y, Inc. v. City of Buffalo, 199 F. Supp. 2d 40, 52-53 (W.D.N.Y. 2002). On March 26, 2003, the City filed an answer to Second Amended Complaint A, denying all material allegations and asserting numerous affirmative defenses. See Item 146. By order entered on November 25, 2003, this court granted as unopposed the City's cross-motion to deem the class allegations in Complaint "A" abandoned and waived. See Items 184, 186.
On July 26, 2006, the court granted as unopposed plaintiff's request for leave to file a Third Amended Complaint "A" (Item 247), adding Robert Jones as a plaintiff and bringing to seventeen the number of individual plaintiffs claiming that they were intentionally discriminated against by the City and the Union as a result of the implementation, administration, and enforcement of the Drug Testing Policy. The parties then engaged in further discovery, including taking the depositions of all seventeen individual plaintiffs. What follows is a summary of this deposition testimony along with a brief discussion of the evidence pertaining to each individual plaintiff's claims.
Mr. Birdsong was deposed on January 24, 2007. He testified that he joined the Buffalo Fire Department as a firefighter in 1991. He was randomly drug tested by the Fire Department once in 1996. At the time, he was generally aware of the Department's Drug Testing Policy, but he did not know he would be tested until the day of the test. Ex. 7 (Birdsong Dep.), pp. 8-12.
Mr. Birdsong testified that the test was administered at ECMC. He went there with three other members of his crew, all African Americans. He filled out paperwork, and provided a urine sample. Two or three days later, he was informed by his captain that his test had come back positive. He was referred to an EAP drug counselor, who told him that he had to attend inpatient drug treatment at Hope House in Rhode Island. Mr. Birdsong immediately reported to Hope House, and completed a twenty-eight day program of group therapy and individual counseling. Id. at 13-21. He described Hope House as a "nice treatment center," but explained that he had "nothing to compare it to" since he had never been to a drug treatment center before. Id. at 21.
After he completed the inpatient treatment program, Mr. Birdsong returned to active duty as a firefighter and enrolled in outpatient treatment at the Ellicott Square location of the Beacon Center. As a component of this treatment, Mr. Birdsong was administered drug tests on a regular basis. He testified that one of the tests came back positive about three weeks into his outpatient treatment. He subsequently met with Deputy Sixt and two others at Fire Department headquarters, where he was informed that his employment was terminated. Id. at 22-24.
In a written Commissioner's Determination dated July 6, 1996, Commissioner Keane reported that Mr. Birdsong was charged with violating the Drug Testing Policy by testing positive for drugs while participating in the rehabilitation program, after first testing positive pursuant to the Department's random drug testing program. See Ex. 8, p. 29. He received written notice of the charges and requested a hearing, which was held at Department headquarters on June 26, 1996. According to the Commissioner's Determination, evidence was presented at the hearing showing that Mr. Birdsong had tested positive for cocaine on five occasions while attending outpatient treatment at the Beacon Center. He stopped attending treatment in May 1996. He admitted during the hearing that he had used drugs during treatment. Based on this evidence, the Commissioner found that Mr. Birdsong's "repeated and serious violations of the Drug Testing Policy and the terms and conditions of the counseling/rehabilitation program, his failure to complete the counseling/rehabilitation program, and his positive test results . , warrant the most serious penalty." Id. at 30. Accordingly, Mr. Birdsong was discharged from employment effective June 26, 1996. Id. He did not file a grievance to challenge his termination. Ex. 7, p. 26.
Mr. Brewer was deposed on March 7, 2007. He became a firefighter with the Buffalo Fire Department in 1988. He testified that he was subjected to random drug testing on several occasions, and was informed on two separate occasions that his drug tests came back positive. The first positive test occurred in December 1995. He was at home and off duty when he received a phone call from Deputy Sixt, who ordered him to go to ECMC to take a drug test. He was immediately picked up by two other firefighters in a Department vehicle and taken to ECMC. He provided a urine sample to an ECMC staff member, who labeled the sample and placed it in a plastic bag. He was subsequently informed by Sixt that the test results were positive, and he met with Sixt and Union President David Donnelly to discuss the results and treatment options. He was given the option of attending inpatient or outpatient treatment, and he chose to enroll in outpatient treatment at the Beacon Center beginning in January 1996. Ex. 9 (Brewer Dep.), pp. 16-23.
Mr. Brewer's outpatient treatment at the Beacon Center consisted of support group meetings three times a week, and periodic drug testing. On May 10, 1996, Beacon Center Counselor Matthew Guarino wrote a letter to Deputy Sixt informing him that Mr. Brewer left the Beacon Center without supplying a urine sample on April 16, 1996. Then, on April 23, 1996, Mr. Brewer provided a urine sample which tested positive. See Ex. 11. He testified that he received a forty-five day suspension, and entered "Phase 2" of treatment at the Beacon Center. He returned to active duty upon successful completion of his treatment. Ex. 9, p. 37.
Mr. Brewer was tested again on May 26, 1997, and once again the test was positive for drugs. On June 3, 1997, Deputy Sixt sent a letter to Brewer notifying him that he was suspended without pay as of June 4, 1997, and was "subject to discipline up to and including termination of employment .." Ex. 12. He requested a hearing, which was held on July 25, 1997. As a result of the hearing, Mr. Brewer was terminated from employment for testing positive for drugs after entering rehabilitation; failing to comply with treatment at the Beacon Center; and subsequently testing positive on a random drug test. See Item 469, ¶ 75.
Mr. Brewer filed a charge with the Equal Employment Opportunity Commission ("EEOC") challenging his termination, claiming the Fire Department discriminated against him because of his race. On September 22, 1997, the EEOC issued a "Dismissal and Notice of Rights" informing Mr. Brewer that, based on its investigation, the EEOC was unable to conclude that a violation of any federal employment discrimination statute had occurred. Ex. 15.
Mr. Brewer also filed a series of grievances with the Fire Department and the New York State Public Employment Relations Board ("PERB"), which were ultimately resolved by virtue of a Settlement Agreement with the City, dated February 7, 2000, providing for Mr. Brewer's reinstatement to active duty upon entry into an outpatient rehabilitation program, participation in a 12-step self-help program, and clean urine screening. Ex. 14. Mr. Brewer returned to active duty with the Fire Department on February 17, 2000. Ex. 9, p. 56.
Mr. Brown was deposed on October 22, 2003 and November 19, 2003. He began his career as a firefighter with the Buffalo Fire Department in 1982. He testified that he was tested for drugs under the Fire Department's policy three times prior to October 1999, twice in 2000, twice in 2001, and twice in 2002. Ex. 16 (Brown Dep.), pp. 20-21.
Mr. Brown testified that, on October 22, 1999, he traveled to ECMC with other members of his crew to be tested pursuant to the Department's Drug Testing Policy. He provided a urine sample to the collection agent, who separated the sample into two cups. He asked the agent whether the sample was sufficient, and was told that it was. He was subsequently informed that this sample tested positive for drugs. Id. at 21-22; see also Ex. 17. Confirmatory retesting was also positive. See Ex. 18.
Mr. Brown testified that, following receipt of the positive test results, he met at various times with Deputy Commissioner John Lydon; Mr. Donnelly; EAP Coordinator Vincent Gugliuzza; and the MRO, Dr. Steinagle, to discuss the test result and treatment options. Mr. Brown began attending an outpatient treatment program at Buffalo General Hospital on November 4, 1999. He testified that he attended treatment three to four times per week for a total of twelve to sixteen weeks. He provided urine samples on some of those occasions as part of his treatment program. He was on paid sick leave status for the entire period. See Ex. 16, pp. 51-52, 54-56, 59-64, 73.
After successfully completing his outpatient treatment, Mr. Brown returned to active duty as a firefighter. All of his subsequent tests under the Drug Testing Policy were negative for drugs. He was never suspended or terminated by the Fire Department. See id. at 80,126, 266-267.
Mr. Davis was deposed on January 31, 2007. He was employed as a firefighter by the Buffalo Fire Department from 1984 to 1997. During his employment, he was tested under the Department's Drug Testing Policy on two occasions. After the results of the second test came back positive, he met with Deputy Sixt and Mr. Donnelly to discuss the positive test results. Mr. Davis testified that he asked to be retested, but was refused. He was told that he had to attend drug treatment, and was sent to an inpatient treatment program at the Brandywine Treatment Center in Pennsylvania. See Ex. 19 (Davis Dep.), pp. 18, 24, 26-28.
After completing inpatient treatment at Brandywine, Mr. Davis returned to work as a firefighter. He was informed by the EAP coordinator that he had to attend outpatient treatment at the Beacon Center in the Ellicott Square Building. Treatment included group counseling and drug testing. Id. at 31-36.
On December 16, 1996, Deputy Sixt sent Mr. Davis a notice advising him that he was being suspended without pay for violating the Drug Testing Policy, and would be terminated from employment as of December 30, 1996. A hearing was scheduled for May 12, 1997, to address this charge. In the meantime, progress reports from the Beacon Center indicated that urine samples submitted by Mr. Davis in December 1996 and March 1997 had tested positive for drugs, and that Mr. Davis had failed to attend several treatment sessions. Ex. 20, p. 24-25.
In a Determination dated June 13, 1997, Commissioner Keane found that the evidence presented at the hearing established that Mr. Davis repeatedly tested positive for drug use, and failed to comply with the requirements of his treatment program, warranting "the most serious penalty" of discharge from employment, effective as of the date of the Determination. Ex. 24. Mr. Davis did not file a grievance or otherwise challenge this Determination prior to the filing of this action.
Mr. Gray was deposed on January 22, 2007. He testified that he was employed as a firefighter with the Buffalo Fire Department from 1988 until he resigned in1997. During his employment with the Fire Department, he was tested for drugs more than once under the Drug Testing Policy. He participated in two outpatient treatment programs at the Beacon Center. The first occurred prior to the Fire Department's implementation of the Drug Testing Policy, and the second took place pursuant to the Policy following a twenty-eight day course of inpatient rehabilitation in Salt Lake City, Utah. See Ex. 25 (Gray Dep.), pp. 8-9, 15-16, 20-23.
Mr. Gray testified that, upon successful completion of inpatient treatment in Utah, he resumed active duty as a firefighter and enrolled in the outpatient treatment at Beacon Center for the second time. Sometime later, Mr. Gray was summoned to Fire Headquarters where he met with Deputy Sixt, Commissioner Keane, and Mr. Donnelly. Mr. Gray testified that one of these individuals told him that he had violated the Drug Testing Policy and could either resign or be terminated from his firefighter position. Id. at 23-28.
By letter dated June 13, 1997, Deputy Sixt notified Mr. Gray that he had been suspended without pay for violating the terms of the Drug Testing Policy regarding completion or material compliance with the requirements of the drug rehabilitation program. Ex. 28. The letter also advised of the right to request a hearing to offer an explanation in mitigation of the proposed discipline. Id. The record does not reflect whether Mr. Gray requested a hearing, filed a grievance with the Union, or did anything to challenge the Policy violation charge lodged against him prior to the filing of this action. See id. at 31-32, 36.
Mr. Harris was deposed on April 12, 2007. He testified that he joined the Buffalo Fire Department as a firefighter in 1986, and was terminated by the Department in early 1999. He was tested for drugs pursuant to the Drug Testing Policy, and was informed that two of these tests were positive for illegal drugs. See Ex. 29 (Harris Dep.), pp. 10-14.
Mr. Harris testified that the first positive test was in July 1997. He took this test at ECMC with other members of his crew. Approximately three days after the test, he received a phone call at the firehouse from Deputy Sixt, who told him to get in touch with the MRO. Mr. Harris phoned the MRO, and was informed that his sample had come back positive. He was then told by someone in the Fire Department that he was required to enroll in the outpatient drug treatment program at the Beacon Center. See id. at 14-18.
Mr. Harris testified that he attended outpatient treatment at the Beacon Center three times per week. His treatment included regular urine screenings and group meetings. He remained on active duty with the Fire Department throughout his outpatient treatment, except for a period of medical leave for sinus surgery lasting three to four weeks. Upon his return to active duty in December 1997, he was again tested for drugs at ECMC, and was informed by the MRO that this test was positive. See id. at 19-23.
By letter dated January 5, 1998, Deputy Sixt informed Mr. Harris that he was being suspended without pay for failing to comply with the Beacon Center's rules and regulations, in violation of the Drug Testing Policy. The letter also advised him of his right to a hearing.
Ex. 32. In a progress report dated January 14, 1998, the Beacon Center informed Deputy Sixt that Mr. Harris did not provide urine samples from November 1, 1997 to December 26, 1997, because he believed he was not required to give samples while on medical leave. The report also states that Mr. Harris provided a urine sample on January 9, 1998, which tested positive. Ex. 33.
Mr. Harris requested a hearing, which was held on February 3, 1998. In a Determination dated February 27, 1998, Commissioner Keane found that, based on the evidence presented at the hearing, Mr. Harris' positive drug tests and failure to comply with the terms of the rehabilitation program resulted in "serious violations of the Drug Testing Policy warrant[ing] the most serious penalty" of termination from employment, effective February 3, 1998. Ex. 34.
On March 9, 1998, the Union filed a grievance on behalf of Mr. Harris claiming that the termination of his employment while he was still in the rehabilitation program violated the terms of the Drug Testing Policy and the Collective Bargaining Agreement ("CBA") between the Union and the City. This grievance was denied by letter dated March 20, 1998. See Ex. 35. The Union then filed a Demand for Arbitration (see Item 473-5, p. 41), which was conducted on November 22, 1999. Item 473-2, ¶ F(12). Mr. Harris testified that, at the time of his deposition on April 12, 2007, he was still awaiting the arbitrator's decision. Ex. 29, p. 40.
Robert Jones was deposed on January 19, 2007. He testified that he joined the Buffalo Fire Department as a firefighter in 1981, and remained with the Department until he was terminated in 1996. In or around October 1995 he was tested for drugs at ECMC, along with other members of his crew at Engine 23. Shortly thereafter, he received a call at the firehouse from Mr. Bagthe, a Union representative, requesting his presence at Union headquarters. He went to see Mr. Bagthe the next day. Mr. Batghe told him that he had tested positive, and that he would be sent to a treatment center in Rhode Island for rehabilitation. See Ex. 36 (R. Jones Dep.), pp. 9-21.
Robert Jones testified that he attended inpatient treatment in Rhode Island for thirty days. Treatment consisted mainly of group therapy sessions. Upon completion of the inpatient program he returned to active duty as a firefighter and enrolled in outpatient treatment at the Beacon Center's Ellicott Square location. He attended the Beacon Center program for about three weeks. During this time he was tested for drugs, and was informed on more than one occasion that his tests had come back positive. He admits that he relapsed while in the outpatient treatment program, due to the death of his parents and the stress of his "disease." See id. at 23, 27, 37-38.
Robert Jones testified that he was working the night shift one night when the district chief came to the firehouse and told him to go home. Jones thereafter received a letter from the Fire Department requesting his presence at a disciplinary hearing. He was terminated from his employment following the hearing. He testified that he filed a grievance with the Union to contest his termination, but no action was taken. Id. at 28-29, 48-49.
Walter Jones, Jr., was deposed on January 26, 2007. He testified that he joined the Buffalo Fire Department as a firefighter in April 1983, and was assigned to Engine 33. He was still employed by the Department--and still assigned to Engine 33--at the time of his deposition.
Mr. Jones was tested for drugs under the Department's Drug Testing Policy on several occasions. Following one of those tests, he received a call from Deputy Sixt informing him that his sample had tested positive. He subsequently met with Deputy Sixt either at Fire Headquarters or the Union office, whereupon Sixt told Mr. Jones that he had to sign papers consenting to drug treatment and attend rehabilitation, or be fired. Mr. Jones signed the papers, and thereafter entered outpatient treatment at the Beacon Center's Sheridan Drive location. See Ex. 37 (W. Jones Dep.), pp. 9, 30-35.
Walter Jones testified that he attended outpatient treatment at the Sheridan Drive location of the Beacon Center for a number of months while remaining on active duty as a firefighter. His treatment consisted of group and individual therapy, along with drug testing. During this treatment he was informed that one of his urine samples had tested positive. This result was reported to Deputy Sixt in a letter dated April 11, 1996, from Beacon Center Counselor Matthew Guarino. The letter also reported that urinalysis of a sample taken on April 1, 1996, was positive for cocaine, codeine and morphine, which Walter Jones stated "was the result of the cough syrup and medication he was taking." Ex. 40, p. 8. According to the letter, a second urine sample taken on April 2, 1996, was negative, but a third urine sample taken on April 4, 1996, was again positive for cocaine.
Counselor Guarino reported that Mr. Jones admitted using cocaine on April 1, 1996. Id.; see also Ex. 37, pp. 35-38.
On April 4, 1996, Deputy Commissioner John Sniderhan sent Walter Jones a letter advising that Jones had been suspended without pay for violating the Department's Drug Testing Policy, and further advising him of the right to a hearing. Ex. 41. He filed a grievance through the Union to challenge his suspension. The grievance was ultimately resolved by Settlement Agreement with the Department, dated August 28, 1998, reducing his term of suspension from 45 to 30 ...