Summary
granting summary judgment dismissing disparate impact claim when "plaintiff present[ed] no statistical evidence that a protected class is adversely affected" by an alleged policy of not considering requests to reschedule drug tests
Summary of this case from Evans v. the Port Authority of New York New JerseyOpinion
99 Civ. 4304 (NRB)
April 20, 2001
OPINION AND ORDER
Plaintiff Janie Maria Cortez, (hereinafter "Cortez" or "plaintiff"), brings this action against the City of New York ("the City"), Mayor Rudolph Giuliani, and former Corrections Commissioner Bernard B. Kerik, both in their official capacities. A former New York City corrections officer, plaintiff alleges that the termination of her employment by the Department of Corrections ("DOC") violated 42 U.S.C. § 1983, the Americans with Disabilities Act ("ADA"), Title VII of the Civil Rights Act of 1964, and New York State and City civil rights laws. Now pending is defendants' motion for summary judgment pursuant to Federal Rule of Civil procedure 56. For the following reasons, defendants' motion is granted.
FACTUAL BACKGROUND
In conjunction with their motion for summary judgment", defendants submitted a statement of undisputed facts ("SOUF") pursuant to Local Civil Rule 56.1. Defendant, who is counseled in this matter, did not respond with a separate statement admitting or denying those facts, and thus we deem defendant's fact statement admitted. See Gubitosi v. Kapica, 154 F.3d 30, 31 n. 1 (2d Cir. 1998); Local Civil Rule 56.1(c)
In 1990, the New York City Department of Corrections instituted a policy by which the DOC periodically and randomly selects employees for urine testing for the use of illicit drugs. See Oliveira Decl, Exh. 1 ("Directive"), at 1. A computer program identifies an individual to be tested by randomly selecting an employee's Social Security number. See id. at 2-3. The individuals are selected without reference to name, rank, facility, or any other identifying information. See id. at 3. A designated Integrity Control Officer at each facility and the DOC legal division work together to ensure the complete confidentiality of the process.
On January 23, 1998, plaintiff was selected for testing pursuant to this policy. See Amended Complaint ("Compl."), at ¶ 14. At that time, plaintiff had been employed as a corrections officer for 14 years.See id., at ¶ 10. That morning, at 8:00 a.m., her supervisor at the George Washington Detention Center at Riker's Island, Captain Fullard, informed her that her number had been randomly selected for testing that day. See Oliveira Decl., Exh. 3, Deposition of Janie Cortez ("Cortez Dep."), at 45.
Cortez reported to the Health Management Division's toxicology unit, where she was given a specimen cup and asked to produce a urine sample.See id. at 49. The DOC drug testing policy contains detailed procedures so as to prevent any possibility that an employee might fraudulently manipulate the test results. See Oliveira Decl., Exh. 1, at 4-6. Pursuant to this policy, a civilian DOC employee, Robin Gabriel, was stationed on the other side of a curtain from plaintiff, and was charged with monitoring her test. See Cortez Dep., at 49-50.
When Ms. Cortez went behind the curtain to produce a urine specimen, she instead produced a watery stool mixed with urine. See id. at 49. In so doing, plaintiff soiled herself, her clothing, and the lavatory area.See id. at 49-51. Ms. Gabriel provided her with paper towels and cleanser, and Cortez cleaned the bathroom area. See id. As a result of this, no sample was produced. See id. at 50-51. At no point prior to this moment did plaintiff feel ill, nor did she inform a supervisor that she felt ill. See id. at 51-52.
After this turn of events, plaintiff asked Captain Fullard if she could return home to change and shower. See id. at 52. Although she offered to be accompanied by DCC staff, she was informed that this was not possible, and pursuant to the stringent anti-fraud provisions of the DOC drug-testing policy she would need to submit to a urine test forthwith.See id. at 54. Because plaintiff had soiled her clothes, a staff member brought her a change of clothing, but because plaintiff viewed the clothes to be "inmate clothing," she refused to wear them. Id.
At this point, plaintiff asked to telephone her union representative, because she believed that DOC personnel were acting in a "far-fetched" manner. See id. at 55. Officer Linda Harrison, plaintiff's union representative, arrived on the scene shortly thereafter. See id. at 56. At around this same time, plaintiff complained that she was feeling nauseous and was suffering from lower back pain. Officer Harrison asked Ms. Cortez's supervisors if Ms. Cortez might receive medical attention.See id. at 56-58. Although plaintiff's supervisors initially denied the request, after some telephone calls, the details of which are unspecified, they acceded to it so long as plaintiff was escorted to a hospital by DCC personnel. See id. at 58-59.
Plaintiff was admitted to the emergency room at Western Queens Community Hospital at approximately 1:00 p.m. See Oliveira Decl., Exh. 5. A captain, three officers, including Officer Harrison, and a deputy warden accompanied plaintiff to the hospital. See Cortez Dep., at 60. Hospital records indicate that she was examined, that her bladder was in fact full, and that the doctor recommended that she be catheterized. See Oliveira Decl., Exh. 5. At 1:35 p.m., plaintiff refused this treatment because she wanted her mother to be present; corrections officials both called and paged plaintiff's mother but were unable to reach her. At 2:25 p.m. plaintiff stated that she was ready to be catheterized, but while hospital personnel were preparing the catheterization procedure, plaintiff urinated in her bed. See id. Medical records notwithstanding, plaintiff states that the urination in the bed occurred after being catheterized. See Cortez Dep., at 74.
At approximately 3:00 p.m., plaintiff was given an adult diaper to wear, and was discharged by the hospital. See Cortez Dep., at 79. Hospital records indicate that she was alert and oriented, made no complaints of pain, and had a steady gait. See Oliveira Dep., Exh. 5. These same records diagnosed plaintiff with "Acute Urinary Retention."Id. Plaintiff then asked to be released to see a private physician, but DOC officials stated that she would be sent back to Riker's Island to give a urine sample. See Cortez Dep., at 79.
Plaintiff was returned to the toxicology trailer at Riker's, where she was given more water to drink and requested to comply with the testing procedure. See id. at 80. Prison officials were uncertain whether plaintiff had relieved herself in the diaper or not, so two officers purchased new underwear for plaintiff from a local store, and requested that she wear them in lieu of the diaper. plaintiff refused to do so.See SOUF, ¶ 30. Plaintiff was also asked if she would consent to a blood test in lieu of a urine analysis, but she refused. See id., ¶ 31.
After being asked a final time if she would submit to a drug test, and refusing, plaintiff was suspended that evening in accordance with the DOC Drug Testing Policy Directive. See Directive, at 7. The Directive states that individuals who do not "cooperate fully in all aspects of the testing procedure . . . shall be subject to suspension without pay." Id. That same Directive provides that a tenured member, like plaintiff, may be terminated after a hearing if found not to be compliant with the testing policy. See id.
On June 9 and 11, 1998, a hearing was held before Administrative Law Judge ("ALJ") Suzanne P. Christen, in the New York City Office of Administrative Trials and Hearings ("OATH"). See Oliveira Decl., Exh. 6 ("RR"), at 2. Judge Christen issued a 24-page Report and Recommendation to the DCC. The ALJ's conclusion was that plaintiff's "conduct amounted to a refusal to submit to a random drug test," and thus Judge Christen recommended that plaintiff's "employment as a member of the Department of Corrections be terminated." RR, at 2. Based upon these findings, the DOC terminated plaintiff's employment on July 30, 1998. See Compl., at § 11.
DISCUSSION
A. Summary Judgment Standard
Now pending is defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56. Summary judgment is properly granted "`if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law.'" R.B. Ventures. Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997) (quoting Fed.R.Civ.P. 56(c)). The Federal Rules of Civil procedure mandate the entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In reviewing the record, we must assess the evidence "in the light most favorable to the non-movant and . . . draw all reasonable inferences in [its] favor." Delaware Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990). The mere existence, however, of an alleged factual dispute between the parties will not defeat a motion for summary judgment. In order to defeat such a motion, the non-moving party must affirmatively set forth facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). An issue is "genuine . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248 (internal quotation omitted).
As noted supra, because plaintiff failed to submit a Statement of Undisputed Facts, pursuant to Local Civil Rule 56.1(c), those facts contained in defendant's 56.1 statement are deemed admitted. The standard inference in favor of the nonmovant at the summary judgment stage of course applies to any factual disputes that may remain despite these admissions.
B. Defendants City of New York and Mayor Rudolph Giuliani
Plaintiff has failed to proffer evidence sufficient to state a claim against either the City of New York or Mayor Rudolph Giuliani, two of the three named defendants in this action.
In order to prevail on a § 1983 claim against a municipality, pursuant to Monell v. Department of Soc. Servs., 436 U.S. 658, 690-91 (1978), plaintiff must identify a "policy or custom" of the municipality that deprived her of her constitutional rights. However, plaintiff has not alleged that any policy or custom of the City caused her alleged harms; there is absolutely no evidence adduced that DOC had a policy of denying legitimately sick individuals the opportunity to reschedule a drug test, assuming, arguendo, that the United States Constitution implicates such a right.
All § 1983 claims against Mayor Rudolph Giuliani must also be dismissed, because plaintiff has presented no facts personally linking the Mayor to the events at issue here. "It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983."Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 254 (2d Cir. 2001) (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). Because plaintiff has failed to establish personal involvement on the part of the Mayor under any of the five factors outhned by the Court of Appeals in Colon, the Mayor is entitled to qualified immunity from liability.
In Colon, the court held that personal involvement by a public official in an alleged deprivation of constitutional rights may be shown:
by evidence that: (1) the [official] participated directly in the alleged constitutional violation, (2) the (official], after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the (official] created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the [official] was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the [official] exhibited deliberate indifference to the rights of [others] by failing to act on information indicating that unconstitutional acts were occurring.Colon, 58 F.3d at 873. Plaintiff has not stated a claim under any of these five theories of liability.
Thus, we discuss the merits of the § 1983 claims below only with regard to defendant Bernard B. Kerik, who was at all relevant times the Commissioner for the New York City Department of Corrections.
B. Equal Protection Claims
Plaintiff, through her claims brought under 42 U.S.C. § 1983, alleges that defendant violated the equal protection guarantees of the Fifth and Fourteenth Amendments. Specifically, plaintiff charges: (1) that defendant selectively enforced the penalty provisions of the random drug testing policy against Ms. Cortez because of her gender, and (2) otherwise behaved in an arbitrary and irrationally discriminatory way in administering her drug test. We address each of these claims in turn.
1. Selective Enforcement
Ms. Cortez alleges that she was treated differently than three male correctional officers with regard to the DOC drug testing procedure. Specifically, plaintiff alleges that the three male officers refused to submit to a randomly scheduled drug test, but were not terminated. See Complaint, ¶ 29.
To establish a violation of the Equal Protection Clause through selective enforcement, a plaintiff must show that:
(1) the [plaintiff], compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d. Cir. 2000) (quotingLeClair v. Saunders, 627 F.2d 606, 609-10 (2d. Cir. 1980)).
Here, plaintiff fails to make the required threshold showing of selective treatment. plaintiff identifies three male correctional officers, Paul Perpall. Eric Frazier, and Anthony Long, whom she alleges refused to submit to random drug testing but were not subsequently terminated. However, the City offers unrebutted evidence in support of its motion that demonstrates how the circumstances of each of the three officers differ from that of plaintiff1 and thus fail to support an inference of selective enforcement.
For example, Officer Long did not refuse a randomly scheduled drug test. Rather, he was asked to take a drug test based on probable cause, a procedure that is governed by a policy directive different from that governing random testing. Both Officers Perpall and Frazier in factsubmitted to their randomly-scheduled drug tests and tested positive. Both were ultimately not terminated, but in each case the officer presented extenuating circumstances justifying deviation from the DOC's "zero-tolerance" drug policy. Plaintiff has therefore failed to establish that there were individuals at the DOC who were similarly situated to her, but were treated differently.
For example, Officer Perpall offered the affirmative defense that he involuntarily ingested an illegal substance through a cigar laced with marijuana. See Oliveira Dec., Exh. 9, at 1. After an OATH hearing procedurally identical to plaintiff's, an ALJ found that the officer had proved by a preponderance of the evidence that his ingestion of the substance was unknowing and involuntary. See Oliveira Decl., Exh. 9, at 2-9.
Officer Frazier explained his positive test as the result of the use of "hemp oil" for a legal purpose. Subsequently, he was placed on six months probation, and ordered to submit to up to six randomly scheduled drug tests during that time. See Oliveira Decl., Exh. 8. As a result of Officer Frazier's case, the DCC drug testing policy was in fact modified to prohibit the further use of hemp oil by DOC personnel.
2. Discriminatory Administration of the Drug Test
Plaintiff's remaining § 1983 claim is premised on the alleged failure of the City to consider her request to reschedule her randomly scheduled urine test. The DOC random drug testing policy states that "[n]o requests to be excused or rescheduled shall be granted without the approval of the Legal Department Representative." Directive, at 4. plaintiff reads this policy to mean that when an employee requests a rescheduling of the test, the Legal Department is then required to review the validity of that request. It is DOC practice to routinely reschedule the drug test of an employee who was already marked out of work on sick leave on a day when his name was randomly selected. Consequently, plaintiff asserts that she was treated differently from other employees who were sick on the day of their random drug test (1) because the DCC failed to consult the legal department before refusing her request to reschedule, and (2) because the DCC actually refused the rescheduling in an arbitrary and irrational fashion.
This assumption fails to account for the scenario, not implausibly the case here, in which DCC personnel at the testing site find an employee's request for rescheduling so patently unreasonable that they do not communicate it to the Legal Department because it does not reach a threshold level of credibility.
It is doubtful whether these allegations adequately state claims under 42 U.S.C. § 1983, as we find it untenable to conclude that plaintiff has a constitutional right to reschedule her drug test. Even assuming, arguendo, however, that plaintiff has stated claims of "arbitrary or irrational" discrimination that does not implicate a suspect class or fundamental right, Muller v. Costello, 187 F.3d 298, 309 (2d Cir. 1999). those claims must nonetheless be dismissed because they are barred by the doctrine of collateral estoppel, or issue preclusion. Specifically, the factfinding that took place by the ALJ at the OATH hearing precludes this Court's reconsideration of those claims.
Moreover, the DOC policy here appears entirely rational: in order to prevent manipulation of the drug test results, DOC officials adopted an inflexible rule that required those who showed up at work and were notified that they had been selected for testing to undergo the testing, without exception. This rule appears even less arbitrary given that plaintiff admittedly arrived at work in fine health and only developed symptoms of illness after being asked to produce a urine specimen.
It is well-established that "principles of issue preclusion [apply] to the factfinding of state administrative bodies acting in a judicial capacity." University of Tennessee v. Elliott, 478 U.S. 788, 797 (1986) (citing United States v. Utah Construction Mining Co., 384 U.S. 394 (1966)). In Elliott, the Supreme Court held specifically in the § 1983 context that when a state agency acts in a judicial capacity, and "resolves disputed issues of fact before it which the parties have had an adequate opportunity to litigate, federal courts must give the agency's factfinding the same preclusive effect to which it would be entitled in the State's courts." Id., at 799 (citations omitted). Thus, we must accord the administrative factfinding here preclusive effect if the courts of New York would do so. See DeCintio v. Westchester Co. Medical Ctr., 821 F.2d 111, 116-17 (2d Cir. 1987) (citing Ryan v. New York Telephone Co., 62 N.Y.2d 494 (1984) (outlining New York preclusion rules).
New York courts have established that the proponent of collateral estoppel, here the defendant, bears the burden of "demonstrat[ing] the identicality [sic] and decisiveness of the issue" that is argued to be precluded. Ryan, 62 N.Y.2d at 501. That is, defendant must first show that the issue was material to the prior action, and essential to the decision rendered therein. Id., at 500. Second, defendant must show that an inconsistent judgment in the instant litigation would "destroy or impair rights or interests established by the first." Id. (quoting Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N.Y. 304 (1929)). If a proponent of estoppel makes this showing, the burden then shifts to the party against whom estoppel is asserted to show that the prior hearing was not full and fair. Ryan, 62 N.Y.2d at 501.
There is no assertion here, however, that the OATH hearing was anything but full and fair. Given that plaintiff was represented by counsel, presented witnesses, and cross-examined the City's witnesses in a two-day hearing that yielded a twenty-four page decision by the ALJ, it is evident that the hearing was an adequate opportunity for plaintiff to air her claims.
The facts found by the ALJ are so central to plaintiff's remaining § 1983 claim in this lawsuit that they mandate the dismissal of that claim. Most significantly, the ALJ found that plaintiff deliberately avoided providing a urine sample to DOC despite the clear and unambiguous policy directive requiring her to do so. Judge Christen stated in her decision:
It is clear from the credible evidence in the record before me that throughout the day, respondent declined to provide a urine sample, going so far as to defecate into the collection cup, relieve her bladder into a hospital bed, and finally, relieve herself in a diaper. Her final, verbal refusal simply put into words what her physical conduct had evidenced all day long, a refusal to submit to random drug testing when ordered to do so.
RR, at 22-23.
Thus, the key piece of factfinding by the ALJ — that plaintiff was capable of urinating on January 23, 1998, but refused to do so — eviscerates plaintiff's equal protection claim. That claim is premised on the notion that DOC maintains a policy of granting some leeway from the otherwise inflexible random testing policy to employees who are legitimately out on sick leave. However, because the ALJ found that plaintiff was not legitimately prevented from urinating because of sickness, there is no basis for asserting that she was in any way treated differently from anyone else, or in any arbitrary or irrational fashion.
For the above reasons, summary judgment on plaintiff's equal protection claims is granted in favor of the defendant.
C. Americans With Disabilities Act Claim
Plaintiff also claims that her termination violated the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., because by failing to reschedule her urine test defendants did not reasonably accommodate her disability, namely a urinary tract infection ("UTI"). The ALJ's finding that plaintiff was capable of urinating on the date in question, but declined to do so, precludes this claim as well because that finding necessarily implies that no accommodation was warranted.
Even if plaintiff's ADA claim was not barred by the doctrine of issue preclusion, plaintiff's alleged UTI does not qualify as a "disability" under the terms of the statute. For the purposes of the ADA, a disability must "substantially limit" a "major life activity." 42 U.S.C. § 12102 (2). Here, plaintiff offers no evidence that this condition was of sufficient severity, duration, or long-term impact to qualify her as disabled under the ADA. See 29 C.F.R. § 1630.2 (j)(2) (i)-(iii).
D. Disparate Impact Claim
Finally, plaintiff claims that defendant's alleged policy of not considering requests to reschedule drug tests disparately impacts women because women more frequently contract urinary tract infections. This claim has no merit. First, no such policy has been alleged. Even had such a policy been alleged, plaintiff presents no statistical evidence that a protected class is adversely affected, thereby failing to state a prima facie case of disparate impact discrimination. See Brown v. Coach Stores, Inc., 163 F.3d 706, 712 (2d Cir. 1998).
CONCLUSION
For the above reasons, summary judgment on all claims is entered for the defendant. The Clerk of the Court is respectfully directed to close the case.
IT IS SO ORDERED.