Opinion
No. 99 Civ. 4955 (BSJ).
January 8, 2001.
Order and Opinion
INTRODUCTION
Plaintiff, Evan Davis ("Davis"), alleges that Defendants discriminated against him on the basis of race in violation of 42 U.S.C. § 1983, Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000e et seq., the Thirteenth Amendment to the United States Constitution, and New York State Executive Law § 296, when his application for employment as a police officer with the New York City Police Department ("NYPD") was denied after he tested positive for cocaine. Currently before this Court is Defendants' motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reasons set forth below, Defendants' motion is granted in part and denied in part.
BACKGROUND
The following facts are undisputed or as alleged by Plaintiff. In January, 1998, Davis, an African-American male, applied for a position as an NYPD police officer. Complaint ("Compl.") ¶¶ 9-10. He passed the written examination in April, 1998, and, as a result, became an eligible candidate for employment. Id. ¶ 11. In August, 1998, Davis, as part of the application process, underwent a pre-employment medical examination which included a drug test. Id. ¶ 12. The detective conducting the examination determined that the hair on Davis' head was not of sufficient length for the test and thus obtained the two required samples from Davis' groin area. Id. ¶¶ 13-14. Although Davis had sufficient hair remaining, the detective told him there was not enough hair for a third sample. Id. ¶ 14. The detective also told Davis that he would leave a note in the file stating that Davis did not refuse to give a third sample. Id. ¶¶ 14; 16.
The drug test was a hair sample test whereby candidates were required to provide the NYPD with two hair samples. The samples are sent to a laboratory which conducts the tests for the NYPD. Candidates may opt to give a third hair sample for testing at an independent lab. Defendants' Memorandum of Law in Support of Their Motion for Judgment on the Pleadings at 3.
The hair samples tested positive for cocaine. Based on those results, Davis received a "Notice of Medical Disqualification" which stated that he was medically disqualified from appointment as an NYPD police officer. Compl. ¶ 15; Declaration of Gregory G. Smith ("Smith Dec.") Ex. 1. The Notice also stated that he had declined to give a third hair specimen for independent testing and thus had no appeal process. Compl. ¶ 15; Smith Dec. Ex. 1.
Although not alleged in the Complaint, Davis asserts that at no time has he used, ingested or been in possession of cocaine or any other illegal drug. Declaration of Evan Davis ("Davis Dec.") ¶ 4; Declaration of Gregory G. Smith ("Smith Dec.") ¶¶ 10; 16. Accordingly, he maintains that the test must have been inaccurate. Davis Dec. ¶ 14; Smith Dec. ¶ 16. Davis further notes that in April, 1998, he had abdominal surgery and was on pain medication for approximately two months thereafter. Davis Dec. ¶ 5; Smith Dec. ¶ 12. He argues that this medication may have still been in his system in August when the drug test was performed. Davis Dec. ¶ 6; Smith Dec. ¶ 13. In addition, Davis states that he was taking Sudafed and Claritan for allergies as well as using creatine, glutamine, ginseng golden seal, iron, vitamin c and other multiple vitamins for his health and body building at the time of the drug test. Davis Dec. ¶ 8; Smith Dec. ¶¶ 14-15.
On February 1, 1999, Plaintiff filed a claim with the Equal Employment Opportunity Commission ("EEOC") alleging Title VII violations. Smith Dec. Ex. 3. He was given a right to sue letter on or about April 17, 1999.Id. Ex. 4.
On July 9, 1999, Davis filed the instant action. The Complaint asserts violations of 42 U.S.C. § 1983 based on the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment to the United States Constitution, Title VII, the Thirteenth Amendment, and New York State Executive Law § 296. Specifically, the Complaint alleges that the NYPD's drug testing practices discriminate against black males because their hair is typically short and curled or kinky which prevents the hair from being tested. Compl. ¶ 17. Thus, "otherwise qualified black males have and will be disqualified because of their inability to meet the hair length requirements for drug testing, even though other types of drug testing which are not prone to this biased result are available to the New York City Police Department." Id.
DISCUSSION
On July 11, 2000, Defendants moved for judgment on the pleadings pursuant to Rule 12(c) on grounds that as a matter of law the defendants are entitled to judgment on all of plaintiffs claims. Alternatively, Defendants moved "for summary judgment on the grounds that: (1) the NYPD is not a suable entity; (2) plaintiff is barred from bringing suit by his failure to satisfy the conditions precedent to suit under Title VII; (3) plaintiff has failed to state a claim under which relief can be granted under § 1983; and (4) the Court should decline to exercise supplemental jurisdiction over any remaining state law claims." Defendants' Memorandum of Law in Support of Their Motion for Judgment on the Pleadings ("Def. Mem.") at 1.
Plaintiff concedes, and this Court finds, that the NYPD is not a proper Defendant and accordingly the NYPD is dismissed from the action.See Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Judgment on the Pleadings at 15.
Federal Rules of Civil Procedure 12(c) provides: "[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." Fed.R.Civ.p. 12(c). The standards that are employed for deciding a Rule 12(c) motion are the same as they are under a Rule 12(b)(6) motion. Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999). In both motions, a court must accept as true the factual allegations in the complaint, and draw all reasonable inferences in favor of the plaintiff. Id. A court should grant a Rule 12(c) motion only if "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Id. (quotingConley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Vega v. State University of New York Board of Trustees, 2000 WL 381430 (S.D.N.Y. 2000) (stating that the court can dismiss the claim only if plaintiff fails to plead the basic elements of a cause of action)
I. Title VII
Defendants assert that Plaintiff is barred from bringing a Title VII claim because he failed to exhaust his administrative remedies before filing this action. Def. Mem. at 7. In particular, Defendants allege that Davis did not file a discrimination charge with the EEOC and receive a right to sue letter prior to initiating this action as required under Title VII Id.; see 42 U.S.C. § 2000e-5(e); (f). Davis, however, filed a claim with the EEOC on February 1, 1999 within 300 days of his disqualification on August 12, 1998, and received a right to sue letter on or about April 17, 1999. Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Judgment on the Pleadings ("Pl. Mem.") at 3; Smith Dec. Exs. 3; 4. Accordingly, Defendants motion with respect to this claim is denied.
II. 1983 Claims
A. Due Process
Plaintiff alleges that the NYPD's drug-testing practices and "misrepresentations by detectives assigned to applicant processing" deprived him of his Fourteenth Amendment Due Process Rights in that they discriminated against him on the basis of race. Compl. ¶ 19. Defendants moved to dismiss this claim on the grounds that Davis does not have a property or liberty interest in being appointed as an NYPD Police Officer.
In order to establish a claim for deprivation of due process, Plaintiff must demonstrate that he was deprived of a constitutionally protected interest in life, liberty or property and that "such deprivation was achieved under color of law." Paul v. Davis, 424 U.S. 693, 696 (1976). It is well-settled that property interests are not created by the Constitution. Board of Regents v. Roth, 408 U.S. 564, 577 (1972). "Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Id. A party claiming a property interest in a benefit must have more than an abstract need, expectation or desire for it. Id. Instead, he must "have a legitimate claim of entitlement to it." Id.
Plaintiff has not alleged a property interest in appointment as an NYPD police officer sufficient to implicate the Due Process Clause. He was only an applicant seeking employment with the NYPD when he was disqualified. As an applicant, his only interest was the expectation of being offered a job. This unilateral expectation, as noted in Roth does not rise to the level of a constitutional interest in property. 408 U.S. at 577; see Teachers United for Fair Treatment v. Anker, 445 F. Supp. 469, 472-73 (E.D.N.Y. 1977) (noting that an interest in employment does not rise to level of a property interest); Coleman v. Darden, 595 F.2d 533 (10th Cir. 1979), cert. denied, 444 U.S. 927 (1979) (holding that an applicant for government job does not have a constitutional property right in expected position). Nor does the fact that he had passed the written exam create a property interest. See Peterson v. City of New York, 1998 WL 247530 *6 (S.D.N.Y. 1998) (citing Andriola v. Ortiz, 82 N.Y.2d 320 (1993)cert. denied, 511 U.S. 1031, (1994) (stating that a person who has passed a Civil Service examination does not acquire a "legally protectable interest" in an appointment to that position))
Similarly, Plaintiff does not allege a constitutionally protected liberty interest. It is well established that a person's liberty interest can be implicated when the government imposes a stigma which restricts that individual's ability to seek and obtain employment. Quinn v. Syracuse Model Neighborhood Corp. 613 F.2d 438, 446 (2d Cir. 1980). "To constitute deprivation of a liberty interest, the stigmatizing information must be both false and made public by the offending governmental entity." Gentile v. Wallen, 562 F.2d 193, 197 (2d Cir. 1977) (internal citations omitted). Nowhere in the Complaint does the Plaintiff allege that false information was made public by the NYPD. Rather, his attorney argues in his memorandum of law that Plaintiff will be unable to obtain employment with another police department because the application process will inevitably lead to the disclosure of the NYPD test results. Even if the Complaint was amended to add these allegations, they are insufficient.
Accordingly, taking all of the allegations contained in his complaint as true, this Court finds that Plaintiff cannot prove any set of facts which support his due process claim. Defendants' motion to dismiss this claim is granted.
B. Equal Protection
Plaintiff also alleges that Defendants' system of drug testing discriminates against African American males and thereby violates the Equal Protection Clause under the Fourteenth Amendment. Compl. ¶ 18. He attempts to support this conclusory assertion with the general and unsupported allegations that "the hair of black males is typically not similar to whites in that it is tightly curled or kinky and because of its nature is typically short." Compl. ¶ 17. Even assuming these allegations support a claim of disparate impact, they do not support an equal protection claim. See Washington v. Davis, 426 U.S. 229, 245-46 (1976) In order for Plaintiff to state an equal protection claim, he must allege that a government actor intentionally discriminated against him on the basis of a protected classification such as race, national origin or gender. See Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir. 1999). No such allegation appears in the Complaint.
Plaintiff's attorney's Declaration contends that Plaintiff was intentionally and purposefully discriminated against because Defendants knew, or should have known, that the "hair test" is not fair in its application to Plaintiff and African American males in general. Smith Dec. ¶ 19. Again, this assertion is not contained in the Complaint, and even if it was, it is a conclusory allegation and insufficient to support an equal protection claim.
Even the most liberal reading of the Complaint provides nothing more than the allegation that a detective promised but failed to note Plaintiff's willingness to provide a third hair. This is not sufficient to demonstrate that the NYPD's use of a drug test, given to all applicants, is intentional discrimination on the basis of race.
CONCLUSION
For the reasons set forth above, Defendants' Rule 12(c) motion is GRANTED as to the Due Process Clause claim and the Equal Protection Clause claim and DENIED as to the' Title VII claim. In addition, Defendants' motion as to the state law claims is DENIED.
SO ORDERED: