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Kelly v. New York City Department of Environmental Protection

United States District Court, N.D. New York

March 4, 2014

KEVIN M. KELLY, Plaintiff,
v.
NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION, Defendant.

LEWIS G. SPICER, ESQ., LEVINE, BLIT LAW FIRM, Syracuse, NY, Attorneys for Plaintiff.

ERIC J. EICHENHOLTZ, ESQ., NEW YORK CITY LAW DEPARTMENT, New York, NY, Attorneys for Defendant.

MEMORANDUM-DECISION and ORDER

DAVID N. HURD, District Judge.

I. INTRODUCTION

On September 9, 2013, plaintiff Kevin M. Kelly ("plaintiff" or "Kelly") filed this 42 U.S.C. § 1983 action against his former employer, defendant New York City Department of Environmental Protection ("defendant" or the "DEP"), alleging a violation of his Fourteenth Amendment right to procedural due process. Plaintiff seeks injunctive relief, lost wages, compensatory damages, and attorney's fees.

On December 4, 2013, the DEP filed a motion to dismiss Kelly's complaint in its entirety for failure to state a claim pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6). Plaintiff opposed and in the alternative requested leave to amend his complaint pursuant to Rule 15(a)(2). Defendant replied. Oral argument was heard on Tuesday, February 4, 2014, in Utica, New York. Decision was reserved.

II. FACTUAL BACKGROUND

For reasons explained in more detail below, the pertinent factual allegations are taken from Kelly's Proposed Amended Complaint ("Amended Complaint") and are assumed true for purposes of the DEP's motion to dismiss.

Kelly was employed by the DEP as a Project Manager when he was arrested for possession of a controlled substance. Am. Compl. ¶¶ 5, 9. Based on this arrest, defendant initiated disciplinary proceedings against plaintiff for "conduct prejudicial to good order and discipline." On February 16, 2012, the parties entered into a "Settlement and Waiver" (the "Last Chance Agreement").[1] Id . ¶ 11. The Last Chance Agreement advised plaintiff of his rights to a formal hearing and appeal under §§ 75 and 76 of New York's Civil Service Law and indicated, in relevant part, that the following penalty had been recommended:

A thirty (30) calendar day suspension without pay (to be credited against time already served as a pre-hearing suspension); unannounced controlled substances and/or alcohol testing by the Agency, at the total discretion of the Agency, for one (1) year from the effective date of this settlement, with automatic termination upon a positive test result.... (emphasis added).

The Last Chance Agreement further stated:

I accept said decision, and as a condition of accepting such decision, I hereby waive any and all rights granted to me under Sections 75 and 76 of the Civil Service Law and acknowledge that this acceptance is the same as a finding of guilt after a hearing. I am fully aware that this waiver of my right to a Section 75 hearing is final and irrevocable.

On April 16, 2012, approximately two months after signing the Last Chance Agreement, Kelly arrived at work and was informed by his supervisor, Tom DeJohn ("DeJohn"), that he was going to be drug tested that morning. Id . ¶¶ 15-16. DeJohn drove plaintiff to the Sunrise Laboratory Office ("Sunrise Lab") in Kingston, New York, where the drug test was administered by two Sunrise Lab employees. See id. ¶¶ 13, 17-20. Plaintiff alleges that this drug test was negligently performed in violation of 49 C.F.R. Part 40. See id. ¶¶ 17-20. The very next day, plaintiff provided a urine specimen for an independent testing laboratory pursuant to the terms of a separate drug treatment plan of which he was enrolled. Id . ¶ 22. This drug test was negative. Id . ¶ 22.

Nevertheless, the urine specimen Kelly supplied to Sunrise Lab as a condition of the Last Chance Agreement later tested positive for cocaine. Am. Compl. ¶ 21. On May 3, 2012, the DEP terminated plaintiff in reliance on this positive test result. Id . ¶ 23. Sixteen months later, plaintiff filed this lawsuit.

III. LEGAL STANDARDS

A. Leave to ...


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