Coleman v. Town of Hempstead

30 F.Supp.2d 356

Paul COLEMAN, Plaintiff, v. TOWN OF HEMPSTEAD, Town of Hempstead Dept. of Sanitation, Richard Ronan, personally, Edward Burns, personally, Patrick J. DiPierri, personally, Gregory Lollo, M.D., personally, National Association of Drug-Free Employees, University Services and LabCorp Laboratories, Defendants.

No. CV 96-5352(ADS).

United States District Court, E.D. New York.

January 4, 1999.

Michael E. Duffy, Mineola, NY (Michael E. Duffy, Eric Prusan, of counsel), for Plaintiff Paul Coleman.

Hempstead Town Attorney's Office, Hempstead, NY (Deputy Town Attorneys Susan B. Jacobs and Mary E. Mahon, of counsel), for Defendants Town of Hempstead, Town of Hempstead Dept. of Sanitation, Richard Ronan, Edward Burns, Patrick J. DiPierri, and Gregory Lollo, M.D.

Ahmuty, Demers & McManus, Albertson, NY (Brendan T. Fitzpatrick, of counsel), for Defendant University Services.

Aaronson, Rappaport, Feinstein & Deutsch, New York City (Robert Cecala, Faye Caldwell, Nicholas J. Marotta, of counsel), for Defendant LabCorp Laboratories ("Laboratory Corporation of America").

Neville, Shaver, Hubbard & McLean, Stamford, CT (Seeley Hubbard, of counsel), for Defendant National Association of Drug-Free Employees ("NADE").

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

This action arises out of the plaintiff's 24-day suspension from employment at the Town of Hempstead Department of Sanitation as a result of having failed a random drug test, which he alleges was bungled. The plaintiff raises procedural and substantive due process claims under 42 U.S.C. § 1983, as well as state law claims for negligence and malpractice, against the Town, certain Town officials, the Department of Sanitation, the Town's Medical Review Officers, and the laboratory hired by the Town to interpret the urinalysis test. At issue are the Rule 12(b)(6) motions to dismiss the Amended Complaint (the "Complaint") by one of the Medical Review Officers and the laboratory on the ground that a Section 1983 claim cannot be maintained against them because the they are private entities which did not act under color of state law. In addition, the laboratory argues that it cannot be held liable under a negligence theory, since it owed no duty to the plaintiff.

I. BACKGROUND

The alleged relevant facts of this case, as set forth in the Complaint, are as follows.

In October 1995, the plaintiff, Paul Coleman ("Coleman" or the "plaintiff") was employed by the Town of Hempstead ("Town") as a Sanitation Man II with the Department of Sanitation. The defendant Richard Ronan is the Commissioner of the Sanitation Department.

On October 27, 1995, the Town initiated a random drug-testing policy for employees of the Department of Sanitation. The defendant National Association of Drug Free Employees ("NADE"), trained personnel at the Town and the Sanitation Department with regard to workplace drug-testing, helped write the Town's drug-testing policy, and contracts with and administers the Town's drug-testing program. Dr. Gregory Lollo, M.D., is a physician who originally served as the Medical Review Officer ("MRO") for the Town's drug-testing program. Although not explained in the Complaint, an MRO is a "licensed physician responsible for receiving laboratory results generated by an employer's drug testing program who has knowledge of substance abuse disorders and has appropriate medical training to interpret and evaluate an individual's confirmed positive test result together with his or her medical history." 49 C.F.R. 40.3.

On the second or third day of random drug-testing, either October 26, 1995 or October 27, 1995, the plaintiff was directed to provide a urine sample for analysis. The sample was split into two, separately labeled vials which the plaintiff initialed.

On the evening of October 31, 1995, the plaintiff received a telephone call at his home from an unidentified individual stating that he had tested positive for drugs. Using caller-I.D., the plaintiff returned the call, told the unknown person that there had to have been a mistake, and asked that a second test be performed. Allegedly, the unknown caller informed Coleman that a second such test already had been done.

The next day, November 1, 1995, the plaintiff was summoned to his supervisor's office. In the presence of co-workers, other supervisors and union officials, the defendant Patrick J. DiPierri, an employee of the Department of Sanitation, told Coleman that he had failed the drug test and was being suspended for five days without pay. It is unclear from the Complaint what position DiPierri holds at the Department. Allegedly, DiPierri made this announcement at the direction of Edward Burns, another employee at the Department of Sanitation whose exact title and position are also unclear. DiPierri instructed the plaintiff to sign a disciplinary form acknowledging the suspension without pay.

Thereafter, the union representatives advised the plaintiff to immediately enter a drug rehabilitation counseling program in order to keep his job. The plaintiff contacted a certified social worker, Bonnie Weintraub, and arranged to begin counseling sessions. During the ensuing several months, the plaintiff attended the counseling sessions, which he eventually had to pay for himself when his medical coverage for the sessions ended.

On November 2, 1995, the plaintiff went to the SmithKline Beecham Laboratory to have a drug test performed, but was told that he needed to return with a doctor's prescription for the test. The following day, on November 3, 1995, the plaintiff's doctor issued such a prescription. On November 6, 1995, one week after his first drug test, the plaintiff took a second drug test at SmithKline. On November 9, 1995, he was informed that the result of that test was negative.

On November 10, 1995, the plaintiff and his counselor telephoned Scot Spiritis, a Town employee who manages the drug-testing program, to request the positive test results. Although Spiritis told them that a doctor would contact them, that did not happen.

On November 20, 1995, Spiritis directed plaintiff to have another drug test performed and indicated that if it was negative, he could return to work. Four days later, on November 24, 1995, the plaintiff went to Roche CompuChem Laboratories for another drug test, which was negative. He returned to work on November 27, 1995.

After numerous inquiries by the plaintiff and his attorney, in or about March 1996, a deputy town attorney informed them that the original split urine sample had been located and was available for testing. The deputy town attorney directed plaintiff's counsel to contact Spiritis and NADE to discuss the protocol for having the sample tested. Spiritis and NADE, in turn, advised counsel to have the plaintiff select a laboratory from the list of federally approved drug testing laboratories and to send a check for $ 125.00 to the defendant University Services, the new Town MRO. University Services is an organization, located in Pennsylvania, which the Town contracted with as its new MRO for its drug-testing program. In compliance with these instructions, the plaintiff sent a check to University Services requesting that the split sample be forwarded to SmithKline for confirmatory sample testing.

However, in or about May 1996, University Services informed plaintiff's counsel that the wrong specimen had been sent to it, and that the correct one would be sent and tested on an expedited basis. Despite repeated requests, however, the plaintiff was never given the results of the sample's retesting.

The plaintiff filed the original complaint which initiated this action on October 31, 1996.

Several months later, on or about January 25, 1997, the plaintiff's attorney received a letter from University Services stating that the plaintiff's October 27, 1995 positive urine test had been invalidated because, according to the defendant LabCorp Laboratories ("LabCorp"), the seal of the specimen had been broken. According to the Complaint, LabCorp is an organization located in North Carolina which the Town and/or University Services and/or NADE hired to conduct drug testing for the Town.

On February 18, 1997, the plaintiff filed the Amended Complaint at issue, raising the following causes of action:

First Cause of Action (§ 1983/Procedural Due Process)

"By suspending plaintiff for twenty-four (24) days without pay and without a hearing or the ability to contest his positive drug test, [all of the] defendants... violated plaintiff's right to procedural due process of law under the fourteenth amendment ... and further violated 42 U.S.C. § 1983."

Second Cause of Action (§ 1983/Substantive Due Process)

"By suspending plaintiff for twenty-four (24) days without pay and denying him the opportunity for a hearing or other opportunity to challenge the drug test result, [all of the] defendants ... violated plaintiff's right to property under the substantive component of the due process clause of the fourteenth amendment ... and further violated 42 U.S.C. § 1983."

Third Cause of Action (Defamation)

"By publishing the results of plaintiff's drug test to other employees, supervisors and union representatives, defendants Edward Burns and Patrick DiPierri defamed plaintiff in the workplace and in the community."

Fourth (§ 1983/Procedural Due Process) and Fifth (Malpractice) Causes of Action

"By failing to provide plaintiff with his split urine sample for retesting immediately following the positive result, defendant Gregory Lollo, M.D., MRO, substantially departed from minimally accepted professional judgment, practice and standards, thereby depriving plaintiff of due process of law under the fourteenth amendment ... and hence, violated 42 U.S.C. § 1983. Such action further amounted to medical malpractice."

Sixth (§ 1983/Procedural Due Process) and Seventh (Malpractice) Causes of Action

"By failing to provide plaintiff with his split urine sample for...