Giaccio v. City of New York

502 F.Supp.2d 380

Peter GIACCIO, Jr., Plaintiff, v. The CITY OF NEW YORK, the New York City Department of Transportation, and Iris Weinshall in her individual and official capacity, Defendants.

No. 04 Civ. 3652(RWS).

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

August 15, 2007.

COPYRIGHT MATERIAL OMITTED

Friedman & James, LLP by Andrew V. Buchsbaum, Esq., Bernard D. Friedman, Esq., New York City, for Plaintiff.

New York City Law Department by Rippi Gill, Esq., New York City, for Defendants.

OPINION

SWEET, District Judge.

Defendants, the City of New York (the "City"), the New York City Department of Transportation ("DOT") and Iris Weinshall ("Weinshall") (collectively, the "Defendants") have moved for summary judgment under Rule 56, Fed, R. Civ. P. to dismiss the Amended Complaint of plaintiff, Peter Giaccio, Jr. ("Giaccio" or the "Plaintiff"). For the reasons set forth below, the motion is granted.

Prior Proceedings

Giaccio filed his complaint on May 13, 2004 alleging violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112(d); 42 U.S.C. § 1983; the New York State Human Rights Law ("NYSHRL"), N.Y. Executive Law §§ 290, et seq.; and the New York City Human Rights Law ("NYCHRL"), New York City Administrative Code §§ 8-101, et seq. arising out of a violation of his rights to privacy due process and equal protection of the laws by failing to maintain the confidentiality of Giaccio's random drug and alcohol test results and by disseminating those results to the media.

By an Opinion dated January 19, 2005, Giaccio v. City of New York, 2005 WL 95733 (S.D.N.Y. Jan. 19, 2005), the Defendants' motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(6) was granted in part and denied in part, with only Plaintiffs section 1983 claim dismissed for failure to allege a custom or policy of the municipality.¹ See id. at *7. The section 1983 claim was dismissed without prejudice and Giaccio was granted leave to replead. See id. at *8.

Giaccio on February 8, 2005, filed an Amended Complaint ("Am.Compl.") alleging, inter alia, that "on at least three (3) occasions prior to the dissemination of the confidential medical information regarding plaintiff as alleged herein, the City and/or DOT disseminated random drug and alcohol test results pertaining to employees other than plaintiff, without the consent of said employees." Am. Compl. ¶ 28.

Discovery proceeded and has been completed.

The instant motion was heard and marked fully submitted on April 18, 2007.

The Facts

The facts are set forth in the parties' Local Civil Rule 56.1 statements and are not in dispute except as noted below.

Giaccio has been employed as a boilermaker by DOT since 2001. As boilermaker, he is involved in burning, welding, creating layouts and fabricating steel at a DOT facility located on Bay Street, Staten Island, opposite the St. George Staten Island Ferry Terminal ("Bay Street DOT Facility").

Although the main DOT personnel department is located at 40 Worth Street in Manhattan, DOT also maintained a personnel coordinator, Lena Marinaro ("Marinaro"), and other personnel records at the Bay Street DOT Facility.

Pursuant to the Omnibus Transportation Employee Testing Act of 1991, Pub.L. No. 102-143, Title V, 105 Stat. 917 (1991), employees such as Giaccio are subject to random drug and alcohol testing. DOT employee testing is conducted via urine sample obtained by a collector employed by a third-party administrator ("TPA") hired by DOT. When a donor such as plaintiff provides a urine sample, a Custody and Control Form ("CCF") is required which consists of five-part carbonless manifold form which allows multiple imprints to be made on each form. Copy one of the CCF, entitled "laboratory," does not contain the donor's name and is provided to the testing lab with specimen bottle seals. Copy two, the "medical review officer copy," contains the donor's name along with a space indicating whether the test was positive and is provided to the medical records officer ("MRO"). Copy three, the "collector copy," also contains the donor's name and test results and is maintained by the collector for at least thirty days. Copy four, the "employer copy," also contains the donor's name and test results and is provided to the designated employer representative. Copy five, the "donor copy," is provided to the donor at the time of collection.

As a boilermaker employed in a "safety sensitive" position, Giaccio was subject to random drug and alcohol testing by DOT and failed two drug tests based on analysis of his urine: one sample collected on December 13, 2002 and another sample collected on June 24, 2003. Both of these samples tested positive for marijuana. According to the MRO's Final Reports, DOT was notified of these results on December 18, 2002 and June 30, 2003, respectively. DOT has failed to produce its copy of the CCF and cannot account for the whereabouts of this copy of the form.

After each positive test, Giaccio was placed on medical leave without pay. Giaccio was notified of his medical leave status by memorandua, the first dated December 18, 2002 and the second July 8, 2003, from Erica Caraway, DOT's Acting Disciplinary Counsel. Copies of these memoranda were provided to, among others, Marinaro and Giaccio's Supervisor at the Bay Street DOT Facility, Michael King.

In each instance after he was placed on leave, Giaccio obtained treatment for marijuana use. After treatment he was placed back on full duty. Since the June 24, 2003 drug test, Giaccio has never tested positive for drugs or alcohol. He has not challenged his drug test results by way of administrative or judicial appeal.

On November 18, 2003, Giaccio received a telephone call from his brother, John Giaccio, DOT borough commissioner for Staten Island, alerting Giaccio that someone had leaked plaintiffs drug testing results and that an article would be forthcoming in Newsday identifying plaintiff by name and mentioning his positive drug test results for marijuana. John Giaccio had been alerted by Weinshall of the Newsday article. A reporter contacted Giaccio before the Newsday article appeared and Giaccio did not comment.

On November 20, 2003, Giaccio was instructed to place locks on all of the file cabinets in the personnel area.

On November 21, 2003 in the aftermath of the crash of the Staten Island Ferry "Andrew J. Barberi," an article was published in Newsday (the "Article") quoting a DOT spokesman and referring to DOT's extensive investigative efforts regarding hiring practices and work procedures, both before and after the tragedy.

The Article, entitled "Tight-Knit-Ship; S.I. Ferry Awash in Nepotism, Favoritism and TO, Critics Say" stated in part as follows:

In the employees' verbal complaints to DOT, they cite the 2001 hiring of Peter Giaccio, the brother of John Giaccio, who himself served as director of ferries until 1998. Peter Giaccio applied for the overtime-rich job as boilermaker in 2001 after learning he was about to be laid off from his sanitation department job, department sources said. Giaccio, whose father, Peter Giaccio Sr., was himself a longtime ferry maintenance worker, beat out at least one skilled tradesman who had worked at DOT for years.

The younger Giaccio [i.e., Plaintiff] has twice tested positive for marijuana in random testing, according to a city official who had access to his personnel records.

The Summary Judgment Standard

In deciding a motion for summary judgment, a court shall render judgment "forthwith 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 any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000).

The moving party has the initial burden of showing that there are no material facts in dispute, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), and can discharge this burden by demonstrating that there is an absence of evidence to support the non-moving party's case, Celotex, 477 U.S. at 325, 106 S.Ct. 2548. The non-moving party then must come forward with "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e), as to every element "essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

The court "must resolve all ambiguities and draw all reasonable inferences in favor of the party defending against the motion." Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1187 (2d Cir.1987); see also Eastway Constr. Corp. v. New York, 762 F.2d 243, 249 (2d Cir.1985). However, the court must inquire whether "there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If there is not, summary judgment is proper. See id. at 249-50, 106 S.Ct. 2505.

In cases involving disclosure of confidential information from private records, circumstantial evidence may suffice to defeat a motion for summary judgment, since "plaintiffs can rarely produce direct evidence that the government has disclosed confidential information obtained from their private records." Doe v. United States Postal Service, 317 F.3d 339, 343 (D.C.Cir.2003) (citations omitted); see also Teleconnect Co. v. Ensrud, 55 F.3d 357, 360 (8th Cir.1995) ("reject[ing] the notion that only a Smoking gun' will suffice to defeat a motion for summary judgment in suits predicated upon asserted disclosures of confidential information.").

The Regulatory Provisions

Drug and alcohol test results are to be kept confidential: See 49 C.F.R. §§ 40.321-40.351; 29 C.F.R. § 1630.16. Specifically, 49 C.F.R....