Opinion
99 Civ. 2281 (JSM)
July 20, 2001
For Plaintiff: Lee Nuwesra, Esq., New York, NY.
For Defendants: Daniel Topper, Esq., Brooklyn, NY.; Elizabeth Pilecki, Esq., O'Donnell, Schwartz, Glanstein, Rosen, DiPreta Goldstein, LLP, New York, NY.
OPINION and ORDER
Joseph Kwok ("Plaintiff") brings this action pursuant to 42 U.S.C. § 1983 claiming that the New York City Transit Authority ("NYCTA") violated his property and liberty interests under the Due Process and Equal Protection Clauses of the Fourteenth Amendment by terminating his permanent position and forcing Plaintiff to accept a stipulation reinstating him to a demoted position upon successful completion of a drug treatment program. Plaintiff also claims that these actions were taken in order to discriminate against him because of his race. Plaintiff further brings state law causes of action under Article 14 of the Civil Service Law, N.Y. Civ. Serv. Law § 209-a, claiming that the Transport Workers' Union ("TWU") breached its duty of fair representation and its fiduciary duty to Plaintiff by coercing him into signing the stipulation and by failing to pursue his claim that the stipulation was the result of disparate treatment by NYCTA. Finally, Plaintiff claims that TWU's President, Willie James ("James"), breached his fiduciary duty to Plaintiff by failing to adequately train his employees and by failing to insure that plaintiff was adequately represented.
Defendants NYCTA, TWU, and James move for summary judgment. For the reasons set forth below, Defendants' motions are granted.
I. BACKGROUND
NYCTA is a public benefit corporation created by the State of New York for the purpose of operating transit facilities. See N.Y. Pub. Auth. Law § 1201. In December 1987, Plaintiff began employment with NYCTA as a train conductor. In 1989, Plaintiff was promoted to the permanent position of train operator, which is a safety-sensitive position.
In 1994, TWU, Plaintiff's union, executed the CBA at issue here. The CBA provides that NYCTA employees must submit to biannual and/or annual physicals that include drug screening. (Pilecki Aff. Ex. D.) It further provides that a refusal to be tested for drugs or controlled substances constitutes an admission of improper use of such substances, thereby resulting in dismissal from service.
On January 1, 1995, NYCTA adopted the regulations promulgated in the Federal Omnibus Transportation Employee Testing Act (the "FTA regulations"), 49 U.S.C. § 5331. The FTA regulations set forth detailed drug testing procedures with which all transportation must comply. See 49 C.F.R. § 40.10. As relevant to this action, the FTA regulations provide that 45 milliliters or "cc's" of urine must be collected from an employee under the split sample method, see id. § 40.25(f)(10), which is the method that NYCTA uses, (Genser Aff. ¶ 6.) If the employee fails to provide 45 cc's of urine, the regulations indicate that the specimen shall be discarded and that the administering personnel shall direct the employee "to drink up to 40 ounces of fluid, distributed reasonably through a period of up to three hours, or until the individual has provided the specimen, whichever occurs first." 49 C.F.R. § 40.25(f)(10)(iv)(A)(2). Should the employee fail to produce the requisite sample after three hours have passed, the employer must direct the employee to obtain "as soon as possible" an evaluation from a licensed physician for the purpose of determining whether the employee has a medical condition preventing him from providing the sample. Id. § 40.25(f)(10)(iv)(B). "A medical condition includes an ascertainable physiological condition (e.g., a urinary system dysfunction) or a documented pre-existing psychological disorder, but does not include unsupported assertions of "situational anxiety' or dehydration." Id. § 40.25(f)(10)(iv)(B)(1). If the physician is unable to find an acceptable medical condition, then the "employee's failure to provide an adequate amount of urine shall be regarded as a refusal to take a test." Id. § 40.25(f)(10)(iv)(B)(2). The examining physician is also required to provide the employer with a statement describing his or her medical conclusions. See id.
On October 15, 1997, Plaintiff attended his 8:00 a.m. physical exam, but was unable to provide 45 cc's of urine. On his first attempt, plaintiff provided approximately half of the requisite sample, which the collection employee, Deborah Fitzroy ("Fitzroy"), discarded. Fitzroy then instructed Plaintiff to sit in the waiting room, drink water, and produce the sample when ready. plaintiff alleges that he attempted to provide the sample several more times, but that each time, Fitzroy interrupted him within two to four minutes and told him that his time was up. (Pilecki Aff. Ex. K, at 11.) Fitzroy finally instructed plaintiff to see a physician in order to determine whether he was suffering from a medical condition that prevented him from providing the requisite sample.
Plaintiff offers differing accounts of the timing of the morning's events. In his Amended Complaint, plaintiff states that he urinated at 7:30 a.m. on the morning of his exam, and that that is why he could not produce the first sample in full at 8:00 a.m. (Am. Compl. ¶ 19.) He also alleges in his Amended Complaint that he attempted to give urine three to five additional times over the next three hours. (Am. Compl. ¶ 22.) In his deposition, Plaintiff also stated that he was given up to three hours to provide the sample. (Pilecki Aff. Ex. K, at 11.) However, in his affidavit in opposition to Defendants' motions, Plaintiff claims that he was not asked for his first sample until 10:00 a.m., and that he was given only one-and-a-half hours to provide another sample. (Kwok Aff. ¶ 10.)
As to his subsequent failed attempts to provide urine, Plaintiff alleges that he suffers from a condition known as "shy. bladder" that renders him unable to initiate a stream of urine within three minutes, although he did not know of this condition at the time. (Am. Compl. ¶ 19.) It is not clear when Plaintiff learned of this alleged disorder, although he did apparently inform Dr. Alan Genser ("Dr. Genser"), the NYCTA Medical Review Officer, several days following his exam that it normally takes" him longer than three minutes to urinate. It is worth noting that Plaintiff has successfully provided urine samples for NYCTA drug tests since 1989.
On October 16, 1997, Dr. Avram Nemetz, a non-NYCTA physician, examined Plaintiff and concluded that Plaintiff did not have a medical condition preventing him from providing the urine sample. On October 22, 1997, Dr. Genser met with Plaintiff and advised him to produce medical documentation supporting his medical excuse. Plaintiff did not submit such medical documentation, nor has he provided any in opposition to Defendants' motions. On October 23, 1997, Dr. Genser issued a report to NYCTA indicating that Plaintiff refused to provide urine within the allotted time. That same day, NYCTA issued a Disciplinary Action Notification seeking to dismiss Plaintiff.
Plaintiff's wife submits an affidavit in which she states that Plaintiff normally takes between five and eight minutes to urinate. (K. Kwok Aff. ¶ 5.) Mrs. Kwok equates her husband's shy bladder to "situational anxiety," which the FTA regulations specifically provide will not excuse a failure to produce urine. See 49 C.F.R. § 40.25(f)(10)(iv)(B)(1).
Plaintiff immediately initiated the grievance procedures set forth in the CBA. Accordingly, on October 23, 1997, and October 31, 1997, Step I and Step III hearings took place in which NYCTA sustained Plaintiff's dismissal. TWU agents represented Plaintiff at both hearings and signed Plaintiff's requests to appeal those decisions.
Pursuant to the grievance procedure, Plaintiff was then scheduled for arbitration before a tripartite panel on November 18, 1997. On November 5, 1994, TWU sent plaintiff a letter informing him that failure to appear at the arbitration would result in an abandonment of his appeal, and that it was in his best interest to prepare with his union attorney prior to the arbitration hearing. (Pilecki Aff. Ex. G.) The letter also stated that TWU reserves each Monday from 11 a.m. to 5 p.m. for consultation. Although Plaintiff claims that he was unable to obtain assistance from the union prior to the arbitration, he did not take advantage of these consultation services.
On the day of the arbitration hearing, plaintiff was represented by union representative Christopher Fox ("Fox") and by a union attorney. Prior to the hearing, Fox presented to Plaintiff a one-page negotiated stipulation drafted by NYCTA that reinstated plaintiff to a non-safety-sensitive position upon two conditions: plaintiff must admit that he was a second-time offender testing positive for drugs and must enter a drug rehabilitation program without pay. (NYCTA Not. of Mot. Ex. 12.) The stipulation also included a release by plaintiff and TWU of all claims they had against NYCTA arising out of the disciplinary action.
A second-time offender is an NYCTA employee who has tested positive for drugs or alcohol on a previous occasion. According to the CBA, a second-time offender shall be dismissed from service and will not be restored to civil service status. However, if an employee tests positive more than one year after he or she has completed NYCTA's drug treatment program for his or her first positive drug or alcohol test, that employee may be restored to a non-safety-sensitive position upon a second completion of NYCTA's drug treatment program. (Pilecki Aff. Ex. D.)
Fox told plaintiff that signing the agreement would allow him to regain employment with NYCTA, and that in his opinion, the arbitrator would be compelled to sustain Plaintiff's dismissal because Plaintiff could not produce the urine sample and was unable to provide medical documentation of his shy bladder. (Pilecki Aff. Ex. L, at 25-27.) Plaintiff attempted to call his wife in order to consult with her, but she was not home. He neither attempted to call anyone else nor expressed to union officials that he wished to place another call or delay the arbitration hearing. (Pilecki Aff. Ex. K, at 34-35.)
After approximately one-half hour, Plaintiff signed the stipulation. He states in his deposition that he did so in order to retain his job and health benefits, especially because he has a son who suffers from congenital heart disease, a condition requiring constant medical attention. (Pilecki Aff. Ex. K, at 35, 74.) Plaintiff states that he was under the impression that the Tripartite Arbitration Board had already decided to dismiss him before the hearing began. (Pilecki Aff. Ex. K, at 33.) He also claims that Fox told him that if he did not sign the stipulation within five minutes, the offer would be withdrawn. (Pilecki Aff. Ex. K, at 37, 80.) Fox claims that he told Plaintiff that he would represent him at arbitration if Plaintiff chose not to execute the stipulation. (Pilecki Aff. Ex. L, at 26.)
Pursuant to the stipulation, plaintiff entered NYCTA's drug treatment program, known as the Employee Assistance Program ("EAP"). While in EAP, Plaintiff allegedly discovered that other safety-sensitive employees who are not of Asian descent and who either refused to take an NYCTA drug test or tested positive for drugs were permitted to maintain their safety-sensitive positions upon completion of EAP. (Kwok Aff. ¶ 20.) As a result, Plaintiff contacted TWU to complain in November 1997 and was allegedly promised "that something will happen." (Kwok Aff. ¶ 21.) In December 1998, two union representatives informed Plaintiff that they would not challenge the stipulation. Plaintiff believes that despite TWU's assurances, the union failed to pursue his claim between November 1997 and December 1998. (Kwok Aff. at ¶ 21.) Plaintiff now holds a permanent nonsafety position with NYCTA as a cleaner at a salary substantially lower than his previous one.
On March 26, 1999, Plaintiff initiated this action against NYCTA and TWU. Plaintiff claims that he signed the stipulation of demotion under duress. Plaintiff further claims that he has a Fourteenth Amendment property interest in the benefits of his permanent position as a train operator and a liberty interest in his reputation(as a drug-free employee. He argues that NYCTA deprived him of these interests on the one hand by improperly subjecting him to the FTA regulations during his drug testing, and on the other hand by misapplying those regulations. He also claims that NYCTA treated him worse than non-Asian employees who have refused drug tests or tested positive for drugs. Finally, Plaintiff claims that TWU failed to adequately represent him, and that TWU and James violated their fiduciary duties toward him.
II. DISCUSSION
A. CLAIMS AGAINST NYCTA
Plaintiff claims that NYCTA and TWU forced him to enter into the stipulation of settlement under economic duress. To prove economic duress, Plaintiff must demonstrate that a wrongful threat precluded the exercise of his free will and caused him to involuntarily accept the terms of the stipulation. See, e.g., DuFort v. Aetna Life Ins. Co., 818 F. Supp. 578, 582 (S.D.N Y 1993); Austin Inst., Inc. v. Local Corp., 272 N.E.2d 533, 536 (N.Y. 1971). As an initial matter, the offer of settlement was not required under the CBA. Therefore, even assuming that NYCTA's offer of the stipulation was valid only for a short period of time before arbitration began, "a threat to do that which one has the right to do does not constitute duress." Dufort, 818 F. Supp. at 582 (citing Gerstein v. 532 Broad Hollow Road Co., 429 N.Y.S.2d 195, 199 (App.Div. 1980)).
Moreover, Plaintiff's deposition testimony demonstrates that no threats were made in order to force him to sign the stipulation. NYCTA agents were not present when Plaintiff and Fox were discussing the stipulation. Therefore, there is no indication that any agents of NYCTA coerced Plaintiff. Furthermore, Plaintiff indicates that Fox and his union attorney presented Plaintiff with the choice of either signing the stipulation or facing the possibility of dismissal at arbitration. (Pilecki Aff. Ex. K, at 80.) For example, Plaintiff stated, "I elected to have benefits so my family would be protected" and "[I] made the choice" to take the job. (Pilecki Aff. Ex. K, at 37-38.) It is evident that rather than face potential termination for failure to provide a urine sample, Plaintiff exercised his free will and chose a more attractive option, which was to sign an agreement guaranteeing his employment. See Spencer v. New York City Transit Auth., No. 95-CV-4779, 1999 WL 51814, at *12 (E.D.N.Y. Jan. 14, 1999).
And a possible motive for doing so remains unclear.
By signing the stipulation, Plaintiff released "any and all claims, whether at law, in equity or arising by virtue of contract which [Plaintiff] may have or which [Plaintiff] may have had heretofore in connection with underlying disputes in [this disciplinary action]." (Pilecki Aff. Ex. H.) In addition to his duress argument, Plaintiff seeks to challenge the methods by which his drug testing was conducted and he also argues that he was treated differently than similarly situated employees. NYCTA asserts that the release contained in the stipulation bars plaintiff's claims. Plaintiff contends that the release was insufficient to waive his federal constitutional claims.
A waiver of constitutional rights under § 1983 must be knowing and voluntary. Factors to be considered include the plaintiff's education and experience, the amount of time the plaintiff was given to review the release, the plaintiff's role in negotiating the waiver, the clarity of the agreement, whether the plaintiff (was represented by an attorney, and whether the consideration given in exchange for the release exceeds employee benefits to which the plaintiff was already entitled. See, e.g., Zveiter v. Brazilian Nat'l Superintendency of Merchant Marine, 833 F. Supp. 1089, 1096-97 (S.D.N.Y. 1993); Knight v. State of Conn., No. 3:97 Civ. 2114, 2000 WL 306447, at *7 (D. Conn. Feb. 22, 2000). A release of constitutional claims is evaluated according to the totality of the circumstances, and all factors need not be satisfied in order to find a release enforceable. See Bormann v. ATT Communications, Inc., 875 F.2d 399, 403 (2d Cir. 1989).
As noted above, Plaintiff demonstrated in his deposition testimony that he exercised a deliberate choice to enter into the stipulation. (Pilecki Aff. Ex. K, at 80.) It is undisputed that plaintiff was aware that he was settling his grievance in exchange for employment at NYCTA, and that by entering into the stipulation, Plaintiff received more than he was entitled to under the CBA. The language of the stipulation is clear and unambiguous, and the agreement is only one page in length. Plaintiff signed the stipulation after he considered it for one-half hour and after it was explained to him by union counsel. (Pilecki Aff. Ex. L, at 62.) Considering all of the circumstances surrounding the execution of the release, it is evident that Plaintiff knowingly and voluntarily waived any claims he had against NYCTA arising from his demotion. See Prunella v. Carlshire Tenants, Inc., 94 F. Supp.2d 512, 517 (S.D.N.Y. 2000). Therefore, Plaintiff's remaining Due Process and Equal Protection claims are dismissed.
B. CLAIMS AGAINST TWU AND JAMES
Plaintiff claims that TWU breached its fiduciary duty and its duty to fairly represent Plaintiff by coercing him into signing the stipulation and by refusing to respond to Plaintiff's complaint relating to his discovery that NYCTA allegedly punished him more severely than non-Asians who refused testing or tested positive for drugs or, alcohol. Plaintiff further claims that James breached his fiduciary duty to Plaintiff by failing to insure that his designees represented Plaintiff fairly and effectively, and by failing to protect Plaintiff's interests against NYCTA.
Under New York law, breach of fiduciary duty and breach of the duty of fair representation are tested under the same standard. See Coleman v. City of New York, No. 99-CV-1159, 1999 WL 1215570, at *2 n. 1 (E.D.N.Y. Dec. 7, 1999); Albert v. City of New York, 431 N.Y.S.2d 240, 242 (Sup.Ct. 1980). Therefore, Plaintiff's breach of fiduciary duty claim will not be addressed individually.
In order to prevail on a claim for breach of the duty of fair representation, Plaintiff must demonstrate that (1) the actions of TWU were arbitrary, discriminatory, or in bad faith, and (2) that these actions "seriously undermined the arbitral process." Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916 (1967); Barr v. United Parcel Serv., Inc., 868 F.2d 36, 43 (2d Cir. 1989). To meet the first prong of this test, Plaintiff must establish that the conduct of Fox and his union attorney amounted to either an intentional breach of the duty of fair representation or was "so egregious, so far short of minimum standards of fairness to [Plaintiff] and so unrelated to the legitimate union interests." NLRB v. Local 282, Intern. Broth. of Teamsters, 740 F.2d 141, 147 (2d Cir. 1984).
First, any claim relating to the execution of the stipulation is barred by the four-month statute of limitations contained in C.P.L.R. 217(2)(a), since Plaintiff signed the stipulation one year and four months before initiating this suit. Even were his claim not barred, Plaintiff has failed to establish that Fox or his union attorney engaged in egregious or bad faith conduct when they offered and recommended the stipulation to Plaintiff. A settlement of a grievance short of arbitration that is made in good faith does not constitute a breach of the duty of fair representation. See Vaca, 386 U.S. at 191, 87 S.Ct. at 918. As noted above, there is no evidence that Fox or the union attorney coerced Plaintiff into executing the stipulation, nor does Plaintiff proffer any evidence to indicate that TWU induced the stipulation in bad faith or to intentionally thwart Plaintiff's rights. On the contrary, the evidence shows that TWU's agents were willing to represent Plaintiff at arbitration, and that Fox properly performed his duty of fair representation by advising plaintiff of his options. As plaintiff concedes, the stipulation was presented as a "way of saving [his] job." (Pilecki Aff. Ex. K, at 32.)
Plaintiff also claims that between November 1997 and December 1998, TWU failed in bad faith to pursue his claim of disparate treatment. A union breaches the duty of fair representation when it "arbitrarily ignore[s] a meritorious grievance or process[es] it in a perfunctory fashion." Vaca, 386 U.S. at 191, 87 S.Ct. at 917. Here, because Plaintiff released all claims against NYCTA when he entered into the stipulation on November 18, 1997, plaintiff possessed no viable claims against NYCTA that TWU or James could pursue. Furthermore, although Plaintiff vaguely alludes to a promise by an un-identified union employee that "something will happen," he offers no other substantive facts indicating bad faith by the union.
Finally, Plaintiff fails to establish that James breached his fiduciary duty under N.Y. Civil Service Law § 209-a, which creates a cause of action for a breach of the duty of fair representation by an employer and employee organization. plaintiff cites no authority demonstrating that a union member may sue a union official in his individual capacity under this provision. Moreover, Plaintiff offers only conclusory allegations that James failed to insure that his designees effectively represented plaintiff, failed to protect Plaintiff's interests against NYCTA, or that James was negligent in exercising his fiduciary duty. In any event, the record establishes that Plaintiff received adequate representation. Therefore, Plaintiff has failed to substantiate his individual claims against James.
III. CONCLUSION
For the foregoing reasons, Defendants' motions for summary judgment are granted. TWU's request for attorneys' fees is denied because it cites no authority in support of its request.
SO ORDERED.