Matter of Jennings v Leon

[*1] Matter of Jennings v Leon 2004 NY Slip Op 50858(U) Decided on August 5, 2004 Supreme Court, Kings County Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 5, 2004
Supreme Court, Kings County

ALEXANDER JENNINGS, Petitioner, For a judgment pursuant to Article 78 of the CPLR

against

JEAN LEON, as Executive Director of Kings County Hospital Center, and NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Respondent.



21323/03

Yvonne Lewis, J.

The petitioner seeks an order of this court annulling and rescinding the respondent's determination not to hire him; directing the removal of all references from his employment file concerning said refusal; and requiring that he be employed with back pay, vacation, personal and sick leave credit, and all other benefits to which he would have been entitled. In support of his request, the petitioner highlights the following salient points: 1. he was employed as a staff assistant in the Department of psychiatry by the State University of New York Health Science Center in Brooklyn [more commonly known as Downstate] since 1973; 2. During his thirty year tenure, he was assigned to work at the outpatient clinic of the Department of psychiatry at Kings County Hospital Center [Kings County] pursuant to a contract between Downstate and Health and Hospitals Corporation [HHC]; 3. as of January 1, 2003, his employment was scheduled to be transferred from the payroll of Downstate directly to the payroll of Kings County since the aforementioned contract had expired and not been renewed; 4. as per an agreement between Downstate and Kings County, all rollover employees would retain the same conditions of employment vis-a-vis, supervision (below and above), salary, work hours, and duties, save for the employer's name on paychecks; 5. on or about December 1, 2002, Mike Higgins, the director of the clinic, advised him that his ". . .many years of service had placed him in too high a salary level compared to his position. . .[and] recommended that he contact his union to ask if it would be possible for [him] to remain in a position at Downstate;" 6. on December 20, 2002, he was required to submit to a pre-employment physical examination at the Kings County employee health center where he was subjected to a tuberculosis test, complete blood work up, and a urine analysis/drug test; 7. after being advised on December 30, 2002 that he had tested positive for cocaine, he informed the respondent that the manufacturer of his high dosage of prescribed blood pressure medication labetol had advised that it could not be ruled out as the source of a "false positive" for cocaine; and, 8. on December 31, 2002, he again underwent blood and urine [*2]analyses, and on February 11, 2003 was advised of having again failed the drug test, as a result of which Kings County would not employ him.

The petitioner contends that the refusal to transfer him to the Kings County payroll was arbitrary, capricious, and an abuse of discretion given that his forced drug screening clearly constituted a violation of his constitutional rights under the Fourth Amendment and Article 1, section 12, respectively, of the Federal and New York State Constitutions, in that ". . .any public safety considerations in the job [security guard and supervisor/coordinating manager] petitioner was appointed to were not serious enough to make a pre-employment urine test for drugs a reasonable search for Fourth Amendment purposes." Counsel for the petitioner provided a series of cases detailing instances when pre-employment drug testing was and was not permissible; to wit, probationary teachers; non-uniformed narcotics personnel and members of the scientific investigations bureau [not permissible] (citing, Patchogue-Medford Congress of Teachers v. Board of Education, 70 NY2d 57, and Delaraba v. Nassau County Police Dept., 192 AD2d 655, respectively); Police officers assigned to enforce laws prohibiting drug use and trafficking; subway conductor [permissible] (citing, Caruso v. Ward, 72 NY2d 432 and Dozier v. New York City, 130 AD2d 128, respectively).

In substantiation of Mr. Jenning's competency [to do his job], petitioner's counsel provided a letter of recommendation on behalf of Mr. Jennings from the coordinating manager of Kings County Hospital Center, who advised that Mr. Jennings ". . .is responsible for assuring that

. . .patients do not cause unnecessary disruption to the community by loitering in the vicinity of the clinic or acting in a manner that would constitute disorderly conduct or harassment. In addition, Mr. Jennings has responsibility for supervising and evaluating the work of at least four other staff members. He also intervenes in crisis situations." The coordinating manager also noted that his recommendation was unqualified inasmuch as he has known Mr. Jennings for over twenty-six years; has had ample opportunity to observe him at work; and that he is a top notch professional. In addition, the petitioner's papers included a letter, dated January 20, 2003, from a Dr. Donald E. Moore to the effect that Mr. Jennings had come to his office ". . .on 1/7/03 in a hypertensive state because he was off his pressure medicine. He was concerned that Labetalol (sic), which is known to cause a false positive blood amphetamine result, could alter his drug-screening test. His labetalol (sic) was discontinued and he was started on Hyzaar. . . .A follow up drug-screen on 1/15/03 was negative for all substances tested."

The petitioner concedes that his application herein was untimely in that service was not completed within 15 days of the expiration of the statute of limitations as required by CPLR §306-b; however, he asserts that effective January 1, 1998, CPLR §306-b was amended to provide that ". . .the court shall dismiss an action if it has not been timely served, but only upon motion of the defendant or respondent, and not automatically." The petitioner further notes that in addition to not having so moved, the defendant has failed to demonstrate any prejudice because of the delay [less than two months] and, hence, the same should be excused by the court "in the interest of justice" (citing Dubinsky v. D'Amico, 304 AD2d 828 (2d Dept. 20003) and Ruiz v. NYCHA, 216 AD2d 258 (1st Dept. 1995).

The corporation counsel, in its opposition papers, essentially argues that 1. the petitioner acknowledged and consented to the terms of employment with KCHC which fully apprised him of the drug screening to which he was subjected; 2. although Mr. Jennings had indicated that he [*3]was using the drug "trandate" on the two occasions that he was tested, after receipt of his doctor's 1/20/03 letter, and another from a Dr. I.N. Ugowke, ". . .the office of Health Services of the Kings County Hospital Center re-confirmed the results. . . .Our re-evaluation of the results took into consideration the use of the drug you [Mr. Jennings] claimed you were using for medical reasons at the time of your pre-employment tests, as indicated in your doctor's note. The re-evaluation clearly indicated the use of an illegal substance which could not possibly be the result of drug interaction with the drug you stated you used for medical reasons. It also ruled out a flawed testing"; and, 3. Quest Diagnostics, ". . .the laboratory that analyzed petitioner's urine sample advised the presence of trandate or labetol in a person's body, both medications used to treat hypertension, would not give a positive cocaine metabolite result in urine drug screen testing. If anything, it could result in a false positive for amphetamines. The respondent concludes that its decision not to hire the petitioner for his failure to pass the pre-employment drug screen test was rational and proper and should be upheld by this court.

With regards to the issue of timeliness, the respondent notes that given petitioner's February 11, 2003 termination, he had four months; i.e., until June 11, 2003 to bring suit. Under CPLR 306-b he was afforded an additional 15 days (until June 26, 2003) beyond that deadline to effectuate service; however, respondents were served on August 7, 2003. Accordingly, the proceeding is untimely and statutorily barred.

The provisions of CPLR 306-b clearly provide that ". . .if service is not made upon the defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time of service. Contrary to the petitioner's assertion, the respondent has amply raised the issue in its answering papers. However, inasmuch as the petitioner stands to forfeit a thirty year career stemming from the respondent's actions, the action itself was timely commenced, and the respondent has demonstrated no prejudice by the petitioner's de minimus delay in service, this court is compelled in the interest of justice to hereby extend, nunc pro tunc, the petitioner's time to have effectuated service by the additional 43 days it took the petitioner to do so.

Justice David Edwards, Jr., Supreme Court, New York County, in the case of Doe v. Roe, Inc., 143 Misc.2d 156, 539 NYS2d 876, rendered an intelligent and thorough decision with regards to the issue of employment related drug screening in noting that "As the use of drug screening tests increased so has the controversy surrounding their use and questions concerning the acceptable bounds of inquiry into an employee's or applicant's personal medical, physical and mental history. Of course, the debate involves a sensitive balancing of the employer's need to hire employees unimpaired by drug or other substance abuse problems, which will adversely affect the employee's job performance and which may pose substantial and unwarranted risks of harm to the employee, his co-workers or the public, as against the employee's (applicant's) need to be protected from discriminatory employment procedures and unnecessary intrusions upon his privacy. With these concerns in mind, the Court of Appeals has recognized that to require a public employee or job applicant to submit to a physical examination to demonstrate fitness is 'acceptable and traditional'; (Matter of Patchoque-Medford Congress v. Board of Educ., 70 NY2d 57, 70, 517 NYS2d 456, 510 N.E.2d 325; See also Dozier v. New York City, 130 AD2d 128, 136, 519 NYS2d 135." Justice Edwards went on to note that ". . .both federal and state constitutional [*4]provisions protect workers in public employment from being deprived of jobs in an unreasonable manner or without a rational (that is job-related) basis mainly, on the ground of illegal search and seizures arising under the Fourth Amendment of the United States Constitution." (See Doe v. Roe, Inc., 143 Misc.2d 156, supra). As illustration, he discussed two interesting opinions issued by the General Counsel of the State Division of Human Rights which the plaintiff in his case had cited. In the Matter of Perez v. State of New York, November 21, 1979, the complainant had been denied employment with the State Department of Civil Service on the ground that he was methadone dependent, whereupon the Appellate Division, 1st Department, "annulled the dismissal and remanded to the Division for further proceedings to determine, among other things, whether methadone dependency is a disability and whether methadone dependency prevented the complainant from performing in a reasonable manner the activities involved in the job sought." In the Matter of Parris Moxley v. Regional Transit Authority, October 28, 1987, "[t]he Division was directed to conduct a public hearing to determine the facts surrounding the employer's drug testing policy, including whether the employer may legally discipline or terminate employees solely on the basis of such tests" after a bus driver was terminated for testing positive for cocaine use during a urine drug screen incident to a back-to-work physical. The court further noted that both the State Division of Human Rights and §§503 and 504 of the Federal Rehabilitation Act extend protection to drug abusers who are in treatment or who are seeking treatment, noting that "Congress amended the Act to provide expressly that for purposes of employment discrimination, the term 'handicapped individual' does not include any individual who is an alcoholic or drug abuser whose current use of alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or the safety of others. [In other words, protection is afforded only to those drug abusers who have been or are being rehabilitated, or are not in need of rehabilitation, not the illegal narcotics abuser who has not sought or is not seeking treatment for his or her condition] (See Burka v. New York City Transit Authority, 680 F. Supp. 590, 596)." Finally, Justice Edwards rested his analysis by making the following ruling; to wit, "The plaintiffcause of action rests on allegations that Roe has engaged in a discriminatory employment practice by (1) unlawfully subjecting him to a urinalysis test as a condition of employment without demonstrating that such a test is job related . . .and, (2) refusing to hire plaintiff on the basis of such test result without evaluating plaintiff's capacity to reasonably perform in the position sought and that plaintiff Doe is a protected disabled person within that definition [the issue of disability is a point, though possibly germane, not raised by the plaintiff herein] this court is compelled to conclude that Roe, even as a private employer, is 'required to evaluate [the] disabled applicant or employee on his merits, hiring or discharging him only if he can or cannot in fact perform the duties of the job in question. The central question is the capacity of the individual.' Board of Educ. v. new York State Division of Human Rights, 42 AD2d 49, 52, 345 NYS2d 93, aff'd. 35 NY2d 673, 360 NYS2d 887, 319 N.E.2d 202; City of New York v. Donnaruma, 70 AD2d 856, 418 NYS2d 45)."

In the matter of Beharry v. M.T.A. New York City Transit Authority, et. al., 1999 WL 151671 (E.D.N.Y.), Judge Block of the Eastern District held that "In order to prevail under a procedural due process claim, 'a plaintiff must show that the procedural safeguards. . .established [*5]by the state are insufficient to protect [his] rights.' Moccio, 95 F.3d 200, citing Valmonte v. Bane, 18 F.3d 992, 1002 (2d Cir. 1994). The Second Circuit has held that an Article 78 proceeding in New York provides sufficient constitutional due process safeguards to a state government employee challenging an administrative action taken by his employer against him. See Gudema v. Nassau County, 163 F.3d 717, 724 (2d Cir. 1998). ('A deprivation of liberty or property through the conduct of a state employee whose acts are random and unauthorized. . .does not constitute a procedural due process violation so long as the state provides a meaningful remedy thereafter.') See also Hellenic American Neighborhood Action Committee v. City of New York, 101 F.3d 877, 881-82 (2d Cir. 1996) citing Christ the King Reg. High Sch. V. Culvert, 815 F.2d 219, 224-25 (2d Cir. 1987)." Judge Block went on to note that "The testing of urine for drugs by the Authority, an arm of the state and municipal governments, constitutes a search and, therefore, 'must meet the reasonableness requirement of the Fourth Amendment.' National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665 (1989); see Burka v. New York City Auth. 739 F. Supp. 814, 819 (S.D.N.Y. 1990) (citing Skinner, 489 U.S. at 614). In Von Raab and Skinner, the United States Supreme Court weighed the government-as-employer interest in stopping misuse of drugs by employees in safety-sensitive positions against the intrusion upon personal privacy effected by the requirement of administering a urinalysis test. See also Drake v. Delta Airlines, Inc., 923 F. Supp. 387, 396-97 (E.D.N.Y. 1996), aaf'd in relevant part, Drake v. Delta Airlines, Inc., 147 F.3d 169, 170-71 (2d Cir. 1998); Burka, 739 F. Supp. At 827." As a point of digression, the court also noted that ". . .once the Authority had a reason to suspect that [the plaintiff] used illegal drugs because he refused to comply with the Authority's initial request for a urine sample, it was reasonable for the Authority to request that he provide a follow-up sample. . .[so, too] drug tests could be administered 'when supervision or management has reason to believe that the employee is impaired by virtue of being under the influence of alcohol, Controlled Substances, including marijuana, Drugs or any other substance') Romano v. Canuteson, 11 F.3d 1140, 1141-41 (2d Cir. 1993); Spencer, 1999 WL 51814, 10-11 (E.D.N.Y. Jan 14, 1999)."

This court is ever mindful of the fact that denial of drug dependency is often symptomatic of drug addiction. However, it is also the fact that the parties' moving papers fail to resolve the issue of this petitioner's possible drug dependency inasmuch as the respondent's two tests, on December 20 and 31, 2002 were contradicted by an analysis by the petitioner's doctor, Dr. Donald E. Moore, to the effect that ". . .A follow up drug-screen on 1/15/03 was negative for all substances tested." The admonition from Mike Higgins, the director of the clinic, on December 1, 2002, that petitioner's ". . .many years of service had placed him in too high a salary level compared to his position" only serves to further cloud the objectivity of respondent's test results.

In any event, with regards to respondent's urinalyses, there can be no question that the second test was permissible in light of the results of the first. Since the respondent/employer is a municipal hospital, it is also indisputable that the petitioner is a public employee. Equally resolute is the fact that the petitioner's position is one that is safety-sensitive and for which he has arguably demonstrated an ability to effectuate, as evidenced by his sterling letter of recommendation/job evaluation and his thirty-year tenure. Consequently, the balance to be achieved herein is clearly the Von Raab and Skinner standard, above mentioned; to wit, ". . .the government-as-employer interest in stopping misuse of drugs by employees in safety-sensitive [*6]positions against the intrusion upon personal privacy effected by the requirement of administering a urinalysis test." See National Treasury Employees Union v. Von Raab, 489 U.S. 656, supra, and Skinner, 489 U.S. at 614, supra). Accordingly, the respondent is directed to reopen this matter so as to conduct a hearing to evaluate the petitioner on his capacity. In other words, respondent is to determine whether the petitioner is a disabled applicant/employee; i.e., a drug abuser who has been or is being rehabilitated, or is not in need of rehabilitation, versus an illegal narcotics abuser who has not sought or is not seeking treatment for his condition. In the event that he is determined to be the latter, the respondent's decision not to hire is to stand. In the event that he is found to be the former, then the respondent is to make a finding as to whether not hiring him is solely attributable to the fact that he cannot perform the duties of the job in question, and only in that instance shall its decision remain undisturbed. It would seem prudent for the parties to select an independent third-party to obtain and analyze a new urine sample. The respondent shall have 60 days from the date of notice of entry of this decision to conduct the mentioned hearing and to issue its findings. The failure to do so shall entitle the petitioner to immediate reinstatement at the conclusion of said 60 day period. This constitutes the decision and order of this court.

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