Men of Color Helping All Soc'y, Inc. v. City of Buffalo

MEN OF COLOR HELPING ALL SOCIETY, INC. MICHAEL A. O. BROWN, OTTO BREWER, ROBERT JONES WALTER JONES, WILLIAM RASPBERRY, JOHN TUCKER MAURICE BIRDSONG, WALTER DAVIS, DAVID GRAY ARTHUR HARRIS, EDWARD JOSEY, HARWYN LOUIE, LAWRENCE PIERCE, TERRY SCOTT, MICHAEL SOUTHERN, MICHAEL VARNER, CRANSTON WILSON, Plaintiffs-Appellants, v. CITY OF BUFFALO, CITY OF BUFFALO DEPARTMENT OF FIRE, CORNELIUS KEANE, individually and as Commissioner, Department of Fire, JOHN D. SIXT, individually, and as Deputy Commissioner, Department of Fire, RONALD CASSEL, individually, and as President of Local 282, BUFFALO PROFESSIONAL FIREFIGHTERS ASSOCIATION, LOCAL 282, JOHN DOE, an individual whose identity is presently unknown to Plaintiffs, Defendants-Appellees.^*

No. 12-3067-cv

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Dated: July 1, 2013

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court's Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation "summary order"). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 1st of July, two thousand thirteen.

PRESENT:

JON O. NEWMAN,

AMALYA L. KEARSE,

DEBRA ANN LIVINGSTON,

Circuit Judges.

HARVEY P. SANDERS, Sanders & Sanders, Cheektowaga, New York, for Plaintiffs-Appellants.

JOSEPH S. BROWN, (ADAM W. PERRY, SARAH N. MILLER, on the brief), Hodgson Russ LLP, Buffalo, New York, for Defendants-Appellees City of Buffalo, City of Buffalo, Department of Fire, Cornelius Keane, and John D. Sixt.

JONATHAN G. JOHNSEN, Creighton, Johnsen & Giroux, Buffalo, New York, for Defendants-Appellees Buffalo Professional Firefighters Association, Local 282, and Ronald Cassel.

UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED that the order of the district court be AFFIRMED.

Plaintiffs-Appellants are 17 current or former firefighters for Defendant-Appellee City of Buffalo (with Defendants-Appellees City of Buffalo Department of Fire, Cornelius Keane, and John D. Sixt, collectively the "Buffalo Fire Department") who challenge the Buffalo Fire Department's implementation of its previous Drug Testing Policy. Plaintiffs-Appellants appeal the May 30, 2012 Decision and Order of the District Court for the Western District of New York (Curtin, J.) granting Defendants-Appellees' motions for summary judgment and dismissing the case. We assume the parties' familiarity with the underlying facts and procedural history of the case, and with the issues on appeal.

We review the district court's grant of summary judgment de novo, construing the evidence in the light most favorable to Plaintiffs-Appellants and drawing all reasonable inferences in their favor. See SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009). "Summaryjudgment is appropriate 'if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.'" Ruiz v. Cnty. of Rockland, 609 F.3d 486, 491 (2d Cir. 2010) (quoting Fed. R. Civ. P. 56(c)).

A. Procedural and Substantive Due Process Claims

Plaintiffs-Appellants claim, pursuant to 42 U.S.C. §§ 1981 and 1983, that the Buffalo Fire Department violated their procedural and substantive due process rights under the Fourteenth Amendment. Regarding first the procedural due process claim, we consider (1) whether the Plaintiffs-Appellants possessed a liberty or property interest protected by the Due Process Clause of the Fourteenth Amendment, and if so, (2) whether the Buffalo Fire Department's procedures provided constitutionally adequate protection of that interest. See Kapps v. Wing, 404 F.3d 105, 112 (2d Cir. 2005). "When . . . a public employee is terminated, procedural due process is satisfied if the government provides notice and a limited opportunity to be heard prior to termination, so long as a full adversarial hearing is provided afterward." Locurto v. Safir, 264 F.3d 154, 171 (2d Cir. 2001) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545-46 (1985)).

The Buffalo Fire Department does not dispute that Plaintiffs-Appellants had a cognizable property interest in their continued public employment, but assert that the firefighters received adequate procedural protections.¹ The record conclusively shows that the Plaintiffs-Appellants allreceived notice, either by letter or orally, of their possible discipline or termination as well as the opportunity for a pre-termination hearing at which they could present mitigating evidence. Moreover, Plaintiffs-Appellants had the opportunity to challenge their suspensions and terminations through the collective bargaining agreement's grievance and arbitration procedure or by filing an Article 78 petition in state court, see N.Y. C.P.L.R. § 7801, et seq. Twelve of the 17 Plaintiffs-Appellants requested and were provided a pre-termination hearing; eight filed grievances through the Union; one filed a petition in state court; and six reached positive outcomes as a result of their post-termination challenges.

Rather than arguing that they were denied notice or the opportunity to be heard, Plaintiffs-Appellants assert that the Buffalo Fire Department's violation of the procedures in the Drug Testing Policy—including the procedures for mandatory retesting and for review by a Medical Review Officer ("MRO")—meant that the firefighters had no meaningful opportunity to challenge their positive drug test results. Even if a reasonable factfinder could conclude that the Buffalo Fire Department and its agents frequently violated procedures in the Drug Testing Policy, however, there is no indication in the record that Plaintiffs-Appellants were prevented from disputing the fairness or accuracy of their test results and consequent terminations during the pre-termination hearing, the grievance process, or in state court. Consequently, the Buffalo Fire Department's provision of notice, a pre-termination opportunity to be heard, and the availability of the post-termination grievance procedure and Article 78 petition satisfied the requirements of due process, and the Defendants-Appellants were properly granted summary judgment as to the Plaintiffs-Appellants' procedural due process claims. See Costello v. Town of Fairfield, 811 F.2d 782, 784-85 (2d Cir. 1987) (finding that collective bargaining agreement's grievance and arbitration procedure wasadequate post-deprivation process); Locurto, 264 F.3d at 175 ("An Article 78 proceeding . . . constitutes a wholly adequate post-deprivation hearing for due process purposes.").

Plaintiffs-Appellants also argue that the district court erred in dismissing their substantive due process claim. For substantially the reasons stated by the district court, we conclude that no reasonable jury could find that the Buffalo Fire Department's actions were "so egregious, so outrageous, that [they] may fairly be said to shock the contemporary conscience." Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998). Therefore, Plaintiffs-Appellants have failed to establish that the Buffalo Fire Department's implementation of the Drug Testing Policy violated their substantive due process rights.

B. Informational Privacy Claim

Next, and again relying on the Due Process Clause of the Fourteenth Amendment, Plaintiffs-Appellants assert that the Drug Testing Policy violated their privacy rights, subjecting Defendants-Appellants to liability under §§ 1981 and 1983. Plaintiffs-Appellants concede that the Buffalo Fire Department can require firefighters to undergo drug testing. They argue that as applied, however, the Drug Testing Policy violated a constitutional right to informational privacy through the sharing of their private medical information.

The Supreme Court of the United States has explicitly declined to decide whether there is a "constitutional privacy interest in avoiding disclosure of personal matters." Nat'l Aeronautics & Space Admin. v. Nelson, 131 S. Ct. 746, 751, 756 (2011) (internal quotation marks omitted) (assuming without deciding that NASA's employee questionnaire regarding past drug and alcohol abuse and other sensitive information "implicate[d] a privacy interest of constitutional significance"). Nevertheless, assuming arguendo that the Buffalo Fire Department's alleged actionsimplicated a constitutional privacy interest, we agree with the district court that no reasonable jury could find that the Department's actions—in particular, the requirement that firefighters testing positive for drug use sign medical releases upon entering rehabilitation to allow the sharing of rehabilitation-related information with the Buffalo Fire Department—violated privacy rights. Given the compelling safety concerns of the Buffalo Fire Department and the "wide latitude" afforded governments in the management of their employees, Nelson, 131 S. Ct. at 761 (internal quotation marks omitted), the required medical releases, which permitted, inter alia, the sharing of diagnoses and treatment plans with the Buffalo Fire Department, were reasonable. See id. at 760-64 (finding that challenged portions of NASA's employee questionnaire were "reasonable inquiries" that did not violate a constitutional right to informational privacy). This is particularly so because Plaintiffs-Appellants were on notice of the Drug Testing Policy, which required that they sign "any and all releases and/or waivers so as to allow the City to ensure employee participation in the counselling/rehabilitation program,"...