Opinion
No. 01-CV-5229 (NGG)
December 5, 2002
MEMORANDUM AND ORDER
Defendants bring before this court a motion to dismiss Plaintiff's complaint for failure to state a claim, pursuant to FED. R. Civ. P. 12(b)(6). Plaintiff moves for a preliminary injunction enjoining Defendants from continuing to test Plaintiff's blood alcohol level. Plaintiff also seeks leave to amend her complaint to add a First Amendment claim based on Defendants' alleged retaliation against her constitutionally protected speech.
For the following reasons, Defendants' motion is granted, Plaintiff's motion to amend her complaint is denied, and Plaintiff's motion for a preliminary injunction is denied as being moot.
I. Factual Background and Procedural History
A. The Initial Violation and the Employee Assistance Program
Since July 1980, Plaintiff Marianne Kreuter ("Plaintiff" or "Kreuter") has been an employee of the New York City Transit Authority ("NYCTA" or "Transit"). (Pl.'s Mem. of Law in Support of Mot. for Prelim. Inj. ("PMOL, Prelim. Inj.") at 2.) Since March 1985, she has been a signal tower operator, a position defined as a "safety-sensitive function" by 49 C.F.R. § 654.7. On October 8, 1997, NYCTA subjected Plaintiff to a random drug and alcohol test. (Id.) Plaintiff's breath alcohol test revealed a breath alcohol concentration ("BAC") of .042%, a positive result under 49 C.F.R. § 654.21. Plaintiff was removed from her position and was referred to NYCTA's Employee Assistance Program ("EAP"), which is responsible for enforcing the Federal Transit Administration's ("FTA") drug and alcohol policies. (Aff. of Ronnie Sue Jaffe, Clinical Director of EAP ("Jaffe Aff.") ¶ 4.) In order to be eligible to return to work, Plaintiff agreed to participate in the EAP and fulfill its requirements. (Id., Ex. A.) Among others. the EAP requirements include regular meetings with an EAP counselor; group and individual therapy sessions; treatment at an independent facility; and attendance at the appropriate self-help group, such as Alcoholics Anonymous ("AA"). (Id.) On October 15, 1997, EAP counselor Robert Finch ("Finch") evaluated Plaintiff. Thereafter, Plaintiff signed a document agreeing to comply with the EAP requirements. (Id.) Pursuant to the EAP requirements, Plaintiff agreed to undergo nine months of treatment at the Gracie Square Hospital ("GSH"), in an outpatient substance abuse program. (PMOL, Prelim. Inj. at 2; Jaffe Aff., ¶ 4.)
The Complaint and the various memoranda of law refer to 49 C.F.R. § 654. Effective August 1, 2001. the Federal Transit Administration revised these regulations at 49 C.F.R. § 655. For purposes of this motion, the court will refer to the prior regulations relied on by the parties.
A subsequent blood test resulted in a .0340% BAC reading. Based on this blood test, Plaintiff continues to challenge that she reported to work with a BAC of .04%. (PMOL, Prelim. Inj. at 2, n. 1.)
49 C.F.R. § 654.21 provides:
Each employer shall prohibit a covered employee from reporting for duty or remaining on duty requiring the performance of safety-sensitive functions while having an alcohol concentration of 0.04 or greater. No employer having actual knowledge that a covered employee has an alcohol concentration of 0.04 or greater shall permit the employee to perform or continue to perform safety-sensitive functions.
On May 24, 1998, Plaintiff was permitted to return to work. (PMOL, Prelim. Inj. at 2.) In July 1998, Plaintiff completed her treatment at GSH. (Jaffe Aff., ¶ 7.) On September 28, 1998, Plaintiff completed the EAP, subject to the re-check program. (PMOL, Prelim. Inj., Ex. C.)
While Plaintiff was attending the outpatient program at GSH, she was forced to attend group therapy that was based upon the Twelve Steps of the AA. (PMOL, Prelim. Inj., Ex. V at ¶ 13.) Plaintiff complained that the Twelve Steps were contrary to her religious beliefs. (Id. at ¶ 14). Additionally, she found the entire EAP program to be "demeaning and degrading." (Id. at ¶ 19.) In February of 1998, Plaintiff filed suit against Transit, alleging that by forcing her to remain in a program based on the Twelve Steps of the AA, Transit has violated her First Amendment right of freedom of religion. (Id. at ¶ 21.) On June 1, 1999, Transit and Plaintiff settled their dispute and the parties signed a release agreement ("Release Agreement" or "Agreement"). (Id. at Ex. B.) Pursuant to the terms of the Release Agreement, Transit agreed to offer all employees who are required to attend or participate in any self-help substance abuse program the option of attending programs that are not based on the Twelve Step program. (Id.) Additionally, Transit agreed that its EAP counselors would use standard diagnostic evaluation methods in determining if employees are in need of treatment. (Id.) Plaintiff agreed to discharge Transit and its employees from all claims, "whether known or unknown," which may have occurred up to the date of execution of the Release Agreement. (Id.)
B. Re-Check Testing
FTA regulations require any employee who has tested positive for drugs or alcohol to undergo re-check testing for at least one year, but no more than five years, from the day the employee returns to active duty. Determining the number and frequency of the tests is left to the discretion of the EAP. The regulations provide, in relevant part:
(b) Each covered employee who engages in conduct prohibited under subpart B shall be evaluated by a substance abuse professional who shall determine what assistance, if any, the employee needs in resolving problems associated with alcohol misuse.
(c)(1) Before a covered employee returns to duty requiring the performance of a safety-sensitive function after engaging in conduct prohibited by subpart B of this part, the employee shall undergo a return to duty alcohol test with a result indicating an alcohol concentration of less than 0.02. In addition, the substance abuse professional may recommend that the employee be subject to a return to duty drug test, performed in accordance with 49 C.F.R. part 40.
(2) In addition, each covered employee identified as needing assistance in resolving problems associated with alcohol misuse:
(i) Shall be evaluated by a substance abuse professional to determine that the employee has properly followed any rehabilitation program prescribed under paragraph (b) of this section, and
(ii) Shall be subject to unannounced follow-up alcohol testing administered by the employer following the employee's return to duty. The number and frequency of such follow-up testing shall be as directed by the substance abuse professional, and consist of at least six tests in the first 12 months following the employee's return to duty. In addition, follow up testing may include testing for drugs, as directed by the substance abuse professional, to be performed in accordance with 49 C.F.R. part 40. Follow-up testing shall not exceed 60 months from the date of the employee's return to duty. The substance abuse professional may terminate the requirement for follow-up testing at any time after the first six tests have been administered, if the substance abuse professional determines that such testing is no longer necessary.
49 C.F.R. § 654.75 (b)-(c).
Pursuant to these regulations, Transit began randomly testing Plaintiff for alcohol in May of 1998, the point in time she returned to work. By May of 1999, she had been tested 13 times and all tests returned negative. (Id.) Additionally, Transit required Plaintiff to report periodically to her EAP counselor until completion of the re-check program. (Jaffe Aff. at ¶ 4.) In March of 1999, Plaintiff began to question the need for continued testing. (Complaint ("Compl.") at ¶ 34). Additionally, Plaintiff found that many of the concepts discussed at the EAP sessions were still based on Twelve Step ideology. (Id. ) On March 16, 1999, Plaintiff sent a letter to Amy Kass, her EAP counselor, stating that the EAP has not helped her in any way, that she disagrees with their diagnosis of her being an alcoholic, and that she takes offense to being called "powerless" and "diseased." (Defendants' Notice of Motion ("Def. Motion") Ex. C.) Additionally, she questioned Transit's authority to require her to attend the EAP sessions in the absence of positive testing. (Id.) She also questioned why random testing was exceeding the minimum Twelve month requirement. (Id.)
On November 17, 1999, Plaintiff missed a scheduled re-check session with Kass. (Id. at Ex. J.) Plaintiff was subsequently informed that Kass and the EAP had not yet concluded that testing should stop. (Id. at Ex. I.) Additionally, Plaintiff was informed that failure to appear at re-check sessions would prolong the random testing, as the EAP would not be in a position to determine if testing is still necessary. (Id. at Ex. L.)
On March 10, 2000, Plaintiff attended an EAP re-check session with Kass. (Id. at Q.) At that session, Plaintiff denied ever having an alcohol abuse problem and stated that she would no longer attend EAP evaluation sessions. Kass informed Plaintiff that denying abuse of alcohol and being defensive about Substance Abuse Professional ("SAP") evaluations demonstrates alcohol behavioral patterns and Plaintiff was therefore required to remain in the re-check program. (Id.) As of May 9, 2000, Plaintiff's recheck testing was increased from once a month to once a week. (Compl. at ¶ 37.)
In March of 2001, Plaintiff requested that she be allowed to record the EAP re-check sessions. (Id. at ¶ 39.) Defendants informed her that employees were not permitted to record clinical evaluations with EAP counselors. (Id.) On March 9, 2001, Plaintiff appeared at an EAP re-check session with Ronnie Sue Jaffe, Robert Finch and Amy Kass. Upon arriving at the session, Plaintiff attempted to record the session. Robert Finch asked her to turn off the recorder and she refused. The session was terminated and no EAP re-check sessions have been held since that point in time. (Id. at ¶ 40.) Thereafter, Plaintiff brought this action.
C. Plaintiff's Causes of Action and Motions Pending Before This Court
Plaintiff claims that the Defendants are requiring her to remain in the EAP re-check program because she refuses to accept their philosophy and views of alcoholism. Her first two causes of action are brought pursuant to 42 U.S.C. § 1983. Plaintiff claims that by forcing her to acknowledge that she is an alcoholic, Transit is violating her Fourteenth Amendment right to "self determination." Plaintiffs second cause of action alleges that by forcing her to admit that she lacks control over alcohol, Defendants are violating her First Amendment right to freedom of religion. Plaintiff's Third cause of action alleges violation of her civil rights under New York's Constitution. Plaintiff's final Cause of Action alleges intentional infliction of emotional distress under New York common law.
Plaintiff also moves for a preliminary injunction to enjoin Defendants from taking various actions pending the outcome of this litigation. Additionally, Plaintiff has moved to amend her complaint to add a violation of her First Amendment right to freedom of speech. The Defendants have moved to dismiss all claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Both parties have submitted materials that go far beyond the allegations of the complaint. I have considered those materials in deciding this motion. Consequently, I am treating this as a motion for summary judgment as authorized by Rule 12(b).
D. Jurisdiction
This Court has jurisdiction over the 42 U.S.C. § 1983 claims pursuant to 28 U.S.C. § 1331. The Causes of Action arising under New York law are within this Court's pendent jurisdiction. See generally, United Mine Workers of America v. Gibbs, 383 U.S. 715 (1966).
II Summary Judgment Standard
Summary judgment must be granted when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). In determining whether a genuine issue of material fact exists, "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). Summary judgment "is properly granted only where no rational finder of fact could find in favor of the nonmoving party." Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000).
If the moving party demonstrates the absence of a genuine issue of material fact, the burden shifts to the nonmoving party to demonstrate the existence of a factual question that must be resolved at trial. See Legal Aid Society v. City of New York, 114 F. Supp.2d 204, 213 (S.D.N.Y. 2000). The nonmoving party must point to evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993).
III. Discussion
(i) Claims Covered by the Release Agreement
II The Release Agreement
Defendants move to dismiss Plaintiff's causes of action on several grounds. First, as a threshold issue, they allege that the Causes of Action duplicate Plaintiff's claims in her prior law suit. That action was resolved pursuant to the terms of the Release Agreement. Therefore, Defendants argue that the Release Agreement precludes Plaintiff from bringing the present action.
Plaintiff argues that the first law suit was predicated on the fact that she was forced to attend the AA Twelve Step program. On the other hand, the present action is based on the initial diagnosis of Plaintiff as an alcoholic and subsequent treatment in the EAP program. See Plain. Mem. at 15. Additionally, Plaintiff maintains that at the time she signed the Release Agreement, she genuinely believed that she would not remain in the EAP program for longer than one year. Moreover, she did not contemplate having to continuously make concessions to being an alcoholic and that she would be penalized for not doing so. Accordingly, she argues that the Release Agreement does not preclude the present action.
The Release Agreement and the undisputed facts in the record indicate that Plaintiff in fact released Transit from all claims that arose prior to signing the Agreement. The Release Agreement states:
In exchange for the consideration described in paragraph 1 of this Agreement,
plaintiff . . . forever releases and discharges the NYCTA and all of its parents, subsidiaries and affiliates . . . from any and all claims. demands, causes of action. fees and liabilities whatsoever, whether known or unknown, which Releasors ever had, now have, or may have against the Releasees up to and including the date upon which plaintiff executes this agreement, arising out of or related to her employment, including but not limited to any claim under the United States Constitution, common law tort or contract law.
Release Agreement at ¶ 2(a) (emphasis added). The emphasized language clearly indicates that Plaintiff agreed to release Transit from all causes of action she had against it as of the effective date of the Release Agreement. Additionally, Plaintiff admits understanding that under the terms of the Release Agreement "I cannot assert any actions based on events prior to the release date." (PMOL, Prelim. Inj., Ex. V at ¶ 29.) Accordingly, the Release Agreement covered all allegations regarding Defendants' alleged wrongful conduct, including the initial diagnosis and subsequent EAP treatment until the date the agreement was signed.
(ii) Validity of the Release Agreement
The Agreement releases Transit from all causes of action, including those arising under the United States Constitution. However, determining the validity of that waiver requires this Court to conduct another analysis. The Supreme Court has consistently held that constitutional rights may be waived under certain circumstances. See Legal Aid Society v. City of New York, 114 F. Supp.2d 204, 226 (S.D.N.Y. 2000) (citing to the following cases: Town of Newton v. Rumery, 480 U.S. 386, 397-98 (1987) (holding that the right to sue the government may be waived);Faretta v. California, 422 U.S. 806, 835 (1975) (holding that the right to counsel may be waived); D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 184-86 (1972) (holding that due process rights may be waived); Curtis Publ's Co. v. Butts, 338 U.S. 130, 145 (1967) (holding that First Amendment rights may be waived)).
Waiver of a constitutional right will be valid only if it was made "voluntarily, knowingly, and intelligently." United States v. Int'l Longshoremen's Ass'n, 44 F.3d 1091, 1099 n. 4 (2d Cir. 1995). Additionally, the waiver must be demonstrated by "clear and compelling" evidence. Curtis Publ'g, 388 U.S. at 145. "[Clourts must indulge every reasonable presumption against waiver of fundamental constitutional rights." Doe v. Marsh, 105 F.3d 106, 111 (2d Cir. 1997).
Here. Plaintiff's waiver of claims, including waiver of her constitutional claims, was done "voluntarily, knowingly and intelligently." The record clearly indicates that Plaintiff was fully aware of all facts giving rise to the alleged constitutional violations. In October of 1998, long before execution of the Release Agreement, Plaintiff filed a complaint against Finch with the Employee Assistance Certification Commission ("EACC"). In that complaint, Plaintiff raised various inadequacies regarding Finch's initial diagnosis. Among them were the facts that the evaluation session lasted just 25 minutes, that Finch did not look at any of her medical records or conduct any medical tests, and that he ignored her discipline and attendance records. He also asked her about her ethnic background, and when she told him she was Jewish he responded "one of the things you will need to learn in treatment is to let go of your Jewish guilt and accept that you have a disease." Finch also told her that her disease prevents her from making her own choices. (See Jaffe Reply Affidavit Ex. 2.)
Additionally, on March 16, 1999, Kass told Plaintiff that the random testing would continue until Plaintiff attended support groups for people struggling with drinking problems. (Compl. at ¶ 29.) These allegations demonstrate that Plaintiff was aware of the facts giving rise to her current causes of action prior to signing the Release Agreement. Additionally, Plaintiff knew that she was waiving her constitutional rights as the waiver clearly states "including but not limited to any claim under the United States Constitution."
Finally, the Release Agreement was negotiated by Plaintiff's lawyer and there is absolutely no evidence or allegation of unequal bargaining power or overreaching. Accordingly, the waiver is valid.
(iii) Scope of the Release Agreement
While the Release Agreement bars Plaintiff from brining an action relating to events that occurred prior to execution of the Agreement, Plaintiff may nevertheless bring an action for violation of her constitutional rights that occurred after execution of the Agreement. The Release Agreement states that Plaintiff releases Transit from all claims that she has against it "up to and including the date upon which plaintiff executes this Agreement." (Release Agreement at ¶ 2(a).) Accordingly, to the extent Plaintiff alleges sufficient facts demonstrating that her constitutional rights were violated after the date the Agreement was executed, then the Release Agreement, by its own terms, cannot preclude Plaintiff from brining this suit.
(iv) Breach of the Release Agreement
The Release Agreement clearly encompasses the Defendants' alleged acts committed prior to the signing of the Agreement. However, Plaintiff may be able to rely upon those acts if she can demonstrate that Defendants materially breached the Release Agreement. Plaintiff argues that Defendants materially breached the Release Agreement. In the Agreement, Defendants agree that they will "require, at the time a NYCTA employee is referred to an EAP counselor for assessment, that such counselor . . . uses standard diagnostic evaluation methods to determine whether the employee is in need of alcohol and/or substance abuse treatment and, if so, the nature and extent of such treatment." (Release Agreement at ¶ 1(a)(iv).)
The Release Agreement is an ordinary contract governed by New York law. Under New York law, where a contract is materially breached, the injured party may treat the breach as terminating further obligations under the contract. See generally, Apex Pool Equip. Corp. v. Lee, 419 F.2d 556, 561-63 (2d Cir. 1963) (under New York law, "where a contract is broken in the course of performance, the injured party has a choice . . . of continuing the contract or of refusing to go on"). The record indicates that Plaintiff does not view the Release Agreement as terminated. For example, in her Memorandum of Law in Opposition of Defendants' Motion to Dismiss, Plaintiff argues that the current cause of action is not barred by the Release Agreement because the Agreement does not cover these claims. She does not attempt to argue that the Release is no longer in force because of Defendants' breach. Additionally, Plaintiff herself has stated "It was agreed that any breach of the agreement the nonbreaching party is entitled to recovery. I remain fearful of such a finding, and wish to avoid any such breach, and make no claims against actions by the EAP and NYC Transit from before the agreement date of June 1, 1999." (PMOL, Prelim. Inj., Ex. V at ¶ 29.) This clearly indicates that Plaintiff did not regard the Release Agreement as being terminated. Nevertheless, for purposes of this motion, I will assume that Plaintiff now considers the Release Agreement terminated. Therefore, I will determine whether Defendants in fact breached the Release Agreement.
Plaintiff claims that Defendants have failed to use standard diagnostic evaluation methods throughout the entire re-check program. She refers to reports of psychologist Dr. Frederick Rotgers and forensic psychiatrist Dr. Laurie Liskin to support her claim. (See PMOL, Prelim. Inj. at Exs. R I.) In these reports, both Dr. Rotgers and Dr. Liskin determine that Plaintiff is not and was never an alcoholic and they severely criticize the diagnostic methods used by Defendants. Both of these reports create an issue of fact as to whether or not Defendants are using standard diagnostic evaluations in concluding that Plaintiff is still required to remain in the re-check program.
Although the reports create an issue of fact respecting whether Defendants are using standard diagnostic methods in deciding to retain Plaintiff in the re-check program, that alone is not sufficient to conclude that Defendants are breaching the Release Agreement. To establish that Defendants are breaching the Agreement, Plaintiff must demonstrate that the Agreement requires Defendants to use standard diagnostic methods in evaluations that occur subsequent to the initial assessment.
Defendants argue that the Release Agreement does not require them to use standard diagnostic methods throughout the re-check program. Instead, Defendants understand paragraph 1(a)(iv)(1) of the Agreement to obligate Transit to use standard diagnostic evaluations only when an employee is first referred to an EAP counselor for evaluation, for purposes of determining what type of treatment, if any, is necessary. However, it does not require them to use standard diagnostic evaluations throughout the re-check program. Therefore, they argue, even if the EAP is not using standard diagnostic methods in deciding to keep Plaintiff in the re-check program, that does not constitute a breach of the release agreement.
Defendants also argue that FTA regulations prohibit an employee or the EAP from using evaluations other than that of the original substance abuse professional. Therefore, they argue, the EAP cannot use reports of other professionals solicited by Plaintiff in making its determinations. While 49 C.F.R. § 40.295 (a) prohibits the EAP from relying on other evaluations solicited by employees, it does not preclude Plaintiff from presenting such evidence before this Court in proving that Defendants were in breach of the Release Agreement.
Under New York law, "[i]nterpretation of an unambiguous contract provision is a function for the court, and matters extrinsic to the agreement may not be considered when the intent of the parties can be gleaned from the face of the instrument." Teitelbaum Holdings, Ltd., v. Gold, 48 N.Y.2d 51, 56 (1979). Here, Paragraph 1(a)(iv) of the Release Agreement unambiguously requires Transit to use standard diagnostic evaluations methods "at the time a NYCTA employee is referred to an EAP counselor for assessment." It does not require Transit to use standard diagnostic methods in determining if an employee should remain in the re-check program. Accordingly, even if Transit is not using standard evaluation methods in deciding to retain Plaintiff in the EAP program, that does not constitute a breach of the Release Agreement. Because the Defendants have not breached the Release Agreement, the provision precluding Plaintiff from bringing "any and all claims, demands [and] causes of action" is still fully in force. However, that provision only bars Plaintiff from bringing suit based on events that occurred "up to and including the date upon which plaintiff executes [the] agreement." It does not preclude Plaintiff from bringing suit based upon events that occurred after execution of the Agreement. Here, Plaintiff's causes of action are grounded in events that occurred both prior to and after the signing of the Release Agreement. In deciding the pending motions, I will consider only those facts that occurred subsequent to execution of the Release Agreement.
II Constitutional Violations
For Plaintiff to succeed on her § 1983 claims, she must demonstrate that Defendants deprived her of "rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. Plaintiff alleges that by keeping her in the re-check program until she admits she is powerless over her addiction to alcohol, Defendants are depriving her of her First Amendment right of freedom of religion and infringing upon her right to privacy under the Fourteenth Amendment. (i) Violation of the Fourteenth Amendment
Although her Complaint alleges violation of the First and Fourteenth Amendments as grounds for the § 1983 action, Plaintiff's memoranda of law in support of her various motions indicate that she also brings her § 1983 claim on the ground that Transit violated FTA regulations. (See. e.g., Plaintiff's Reply Memoranda of Law in Support of Preliminary Injunction Motion at 11.) Plaintiff cites Middlesex County Sewerage Auth. v. Nat'l Sea Clammers Ass'n., 453 U.S. 1 (1981) to support her position that a private right of action exists for violation of a federal statute under § 1983. Although it is true that violation of a federal statute generally gives rise to a § 1983 private right of action, that rule does not typically apply to violations of administrative regulations. The Second Circuit has recently held that, as a general matter, violation of federal regulations does not give rise to a private cause of action under § 1983. Instead, it held that "only those regulations that further define the substance of a statutory (or constitutional) provision that itself creates an enforceable right is actionable under § 1983. Ceaser v. Pataki, 2002 U.S. Dist. LEXIS 5098 at *10-11 (Mar. 26, 2002). To the extent Plaintiff seeks recovery under § 1983 based on Transit's violation of FTA regulations, that claim is dismissed as a matter of law.
Defendants cite to Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989) to support their position that their acts are constitutional. However, Defendants' reliance on Skinner is misplaced. InSkinner, the Court held that regulations authorizing random drug tests are constitutional. Here, Plaintiff is not challenging the constitutionality of the FTA regulations. Rather, she is challenging Transit's application of those regulations as being unconstitutional.
Plaintiff's First Cause of Action alleges violation of her Fourteenth Amendment right to privacy. Specifically, she alleges that Defendants are punitively subjecting her to constant testing and keeping her in the EAP program because she is not willing to adopt their view that she is an alcoholic. Therefore, she argues, by compelling her to adopt their view, which is at odds with her personal opinion that she is not an alcoholic, Defendants are violating her right of "self-definition," as protected by the Fourteenth Amendment.
It is axiomatic that government has no legitimate interest in controlling the content of a persons thoughts. See Paris Adult Theater I v. Slaton, 413 U.S. 49, 67 (1973) (quoting Stanley v. Georgia, 394 U.S. 557, 565 (1969)). However, the record does not indicate that Defendants are attempting to alter Plaintiff's self-conception or take control of her thoughts. Plaintiff cites to a progress report signed on March 10, 2000, which states that Amy Kass informed Plaintiff that "as she is denying her abuse of alcohol and is defensive about SAP evaluations, she is presenting alcoholic behavioral problems, and the EAP is now very unsure about her use of alcohol." (PMOL Prelim. Inj. at 27.) Plaintiff concludes that this statement demonstrates that "she is being punished for her unwillingness to adopt the image of herself proffered by the EAP." Id. That is not the case and it takes Finch's report entirely out of context.
The excerpt quoted by Plaintiff simply suggests that the EAP views denial of alcohol abuse as a symptom of alcoholism. To the extent the EAP determines that Plaintiff is still demonstrating symptoms of alcoholism, it has the authority (and probably the obligation) under the FTA regulations to continue testing. Consequently, Defendants are not attempting to alter Plaintiff's self-conception. Instead, they are using her denial of alcohol abuse as a means of diagnosis. That does not infringe upon Plaintiff's zone of privacy.
The same holds true for other statements in the record attributed to Defendants. For example, at a December 31, 1997 return-to-work hearing, Finch told Plaintiff that until she agreed that she has an incurable disease marked by her powerlessness over alcohol, she will need more treatment. (Compl. at ¶ 21.) This again indicates that Defendants view denial of alcohol abuse as a symptom of alcoholism. It in no way demonstrates that Defendants were attempting to alter her thoughts.
I note that Plaintiff and her doctors completely disagree with the initial diagnosis that Plaintiff is an alcoholic and with the continuing EAP determination that her acts of denial indicate alcoholism. Moreover, I am not making any determination regarding which view is correct. If that were at issue, I would leave that to be decided by a finder of fact. At issue here, is whether Defendants are forcing their point of view on Plaintiff, or if they are simply treating her denial of alcohol abuse as a symptom of alcoholism. On that issue, other than Plaintiff's conclusory allegations, the record indicates nothing more than the fact that Defendants view her denial of abuse as a symptom of alcoholism.
(ii) Violation of the Establishment Clause
Plaintiff's Second Cause of Action alleges violation of the Establishment Clause of the First Amendment as applied to the states through the Fourteenth Amendment. Specifically, she alleges that various acts taken by the EAP and its counselors were religious in nature. When Plaintiff was initially evaluated by EAP Clinical Manager Robert Finch, Finch asked Plaintiff about her religious background. When she said she was Jewish, Finch responded "Jews are usually too ashamed to admit they are alcoholics." (Compl. at ¶ 14.) At a return to work hearing, Plaintiff was told that until she admits that alcoholism is an incurable disease she will need more treatment and would not be able to return to work. (Id. at ¶ 21.) Additionally, at an EAP evaluation session, Amy Kass told her that testing would not stop until she begins attending sessions for persons "struggling with a drinking problem." (Id. at ¶ 25.) Plaintiff's overall contention is that even though she is not forced to attend a "Twelve Step" program, Defendants are still forcing her to adopt underlying religious concepts of the Twelve Steps. The concept she specifically identifies as still being forced upon her is that she is "powerless over alcohol or to keep from drinking during the work hours." (Id. at ¶ 34.)
The Establishment Clause "guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which establishes a state religion or religious faith." Lee v. Weisman, 505 U.S. 577, 587 (1992). In support of her Establishment Clause argument, Plaintiff primarily relies on Warner v. Orange County Dep't of Prob., 115 F.3d 1068 (2d Cir. 1997), which concluded that the Twelve Steps of AA are religious in nature for purposes of the Establishment Clause. Accordingly, the court held that it was a violation of the Establishment Clause for a probation officer to require someone to attend AA sessions. However, the court found the Twelve Steps religious in nature because of constant references to God and prayer.
The court held that "The A.A. program to which Warner was exposed had a substantial religious component. Participants were told to pray to God for help in overcoming their affliction. Meetings opened and closed with group prayer. The trial judge reasonably found that it `placed an emphasis on spirituality and prayer, in both conception and in practice.' We have no doubt that the meetings Warner attended were intensely religious events." Warner, 115 F.3d at 1075 (emphasis added).
The Twelve Steps of the A.A. are as follows:
(i) We admitted we were powerless over alcohol and that our lives have become unmanageable.
(ii) Came to believe that a Power greater than ourselves can restore us to sanity.
(iii) Made a decision to turn our lives over to the care of God as we understood him.
(iv) Made a searching and fearless moral inventory of ourselves.
(v) Admitted to God, to ourselves, and to another human being the exact nature of our wrongdoing.
(vi) Were entirely ready to have God remove all these defects of character.
(vii) Humbly asked Him to remove our shortcomings.
(viii) Made a list of all persons we have harmed, and became willing to make amends to them all.
(ix) Made direct amends to such people wherever possible, except when to do so would injure them or others.
(x) Continued to take personal inventory and when we were wrong promptly admitted it.
(xi) Sought through prayer and meditation to improve our conscious contact God (as we understood Him) praying only for knowledge of His will for us and the power to carry it out.
(xii) Having had a spiritual awakening as a result of these steps, we tried to carry this messages to alcoholics and to practice these principles in all our affairs.See Griffin v. Coughlin, 88 N.Y.2d 674, 678 (1996) (quoting Alcoholics Anonymous World Services, Inc., Alcoholics Anonymous, at 59-60 (3d ed. 1976).
Here, Plaintiff does not allege that she was forced to pray to God or to acknowledge a particular God. Instead, she argues that other Twelve Step "concepts" were forced upon her. However, the Second Circuit's holding in Warner is that prayer and reference to God in AA sessions are religious activities for purposes of the Establishment Clause. Plaintiff asks this Court to extend that ruling to statements relating to being addicted and powerless over alcohol. While acknowledging addiction and lack of control over alcohol is one of the Twelve Steps, I find there is nothing religious about these statements. Standing alone, requiring someone to admit addiction does not "prefer one religion over another, or religion to irreligion." See Bd. of Educ. of Kiryas Joel v. Grum 512 U.S. 687, 703 (1994). "Resolving questions as to the reach of the Establishment Clause of necessity [requires] line drawing . . . determining at what point a dissenter's rights of religious freedom are infringed." Warner, 115 F.3d at 1076 (quoting Lee, 505 U.S. at 598. In this case, that Constitutional line was not crossed.
To put this in the context of the three-part test set forth Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), (i) there is a secular purpose of rehabilitation; (ii) the primary effect of the EAP sessions does not advance or inhibit religion because they are not religious in nature, and (iii) it does not foster exessive entanglement with religion again, because it does not touch upon religion. See Id. (setting forth a three-part test in determining if a given government act is in violation of the Establishment Clause).
Although the various memoranda of law submitted by both parties treat Plaintiff's First Amendment freedom of religion claim as being brought solely under the Establishment Clause, the Complaint itself is not so limited. Broadly read, the Complaint sounds in violation of the Establishment Clause as well as the Free Exercise Clause. Plaintiff's Establishment Clause claim fails because Defendants' acts are not religious in nature. However, to succeed in a Free Exercise claim, Plaintiff need not demonstrate religious conduct by the government. The Free Exercise Clause subjects government laws and policies that "substantially burden the exercise of sincerely held religious beliefs . . . to strict scrutiny." See Fifth Ave. Presbyterian Church v. City of New York, 293 F.3d 570, 574 (2d Cir. 2002). Accordingly, in a Free Exercise claim, the government's conduct does not have to be religious in nature. Instead, the conduct must be of a nature that suppresses religion. Here, Plaintiff alleges that by forcing her to admit that she is powerless over alcohol, she is being forced to admit that she lacks free will. This, she argues, substantially burdens the free exercise of her Jewish beliefs that all persons have free will. However, the facts in the record do not support a finding of violation of the Free Exercise Clause. "The Supreme Court has held that it is not a violation of the Free Exercise Clause to enforce a generally applicable rule, policy or statute that burdens a religious practice, provided the burden is not the object of the law, but merely the `incidental effect' of an otherwise valid provision."Kalsi v. New York City Transit Auth., 62 F. Supp.2d 745, 761 (1998) (quoting Employment Div., Dep't of Human Resources of Oregon v. Smith, 494 U.S. 872, 878 (1990)). Accordingly, to succeed in bringing a Free Exercise claim, Plaintiff must offer proof to support an allegation of intentional discrimination. See Kalsi, 62 F. Supp.2d at 761. Here, Plaintiff has not provided proof of intentional discrimination against her Jewish beliefs. Although the comment ascribed to defendant Finch that "Jews are usually too ashamed to admit they are alcoholics" is not sufficient proof of discrimination to survive summary judgment, that remark, if made, demonstrates a level of bigotry, stupidity, and lack of professional responsibility that should not be sanctioned by the other defendants. Accordingly, even though Defendants' method of diagnosing Plaintiff may burden her Jewish beliefs, there is no Free Exercise violation.
Based on the foregoing, the Defendants' motion for summary judgment on Plaintiff's § 1983 claims is granted. Other than making conclusory statements that her constitutional rights were violated, Plaintiff has not pointed to specific evidence in the record that supports her allegations.
C. Jurisdiction Over the Remaining Claims
Plaintiff's remaining claims allege violation of New York State law. At the outset of this action. those claims were within this Court's pendent jurisdiction. Generally, where "federal claims are dismissed before trial . . . the state claims should be dismissed as well." United Mine Workers, 383 U.S. at 726. There are two exceptions to this general rule. "A federal court may exercise pendent jurisdiction in disposing of a state claim prior to trial where it has invested `substantial time and energy' on the state law issues prior to dismissal . . . or where the state claim is so closely tied to questions of federal policy that the argument for exercise of pendent jurisdiction is particularly strong." McClearn v. Cowen, 660 F.2d 845, 848 n. 2 (2d Cir. 1981). Neither of these exceptions applies to the case at hand. Accordingly, I decline to exercise pendent jurisdiction over the remaining state claims and they are dismissed without prejudice.
IV. Plaintiff's Motion to Amend Her Complaint
Plaintiff seeks leave from this Court to amend her Complaint. She seeks to add as a cause of action. violation of her First Amendment right to freedom of speech. Specifically, she alleges that Defendants are punishing her for stating that she is not an alcoholic and for refusing to adopt Defendants' theories on alcoholism.
Under Rule 15(a) of the Federal Rules of Civil Procedure, a party must seek leave of court to amend its pleading after responsive pleadings have been served. Although Rule 15(a) requires the court to grant leave "when justice so requires," a court should not grant leave to amend where the proposed amendment would be deemed futile. See generally, Gallegos v. Brandeis, 1999 U.S. Dist. LEXIS 20490 (E.D.N.Y. Oct. 18, 1999). Here, Plaintiff's proposed amendment is futile as it would fail as a matter of law.
Plaintiff alleges that Defendants are punishing her for expressing views about alcoholism that are contrary to their own. The so-called "punishment" comes by way of constantly testing her and requiring her to attend EAP sessions. "It is well established that a public employer cannot . . . retaliate against an employee for the exercise of his or her First Amendment free speech right." Ezekwo v. N.Y.C. Health Hosp. Corp., 940 F.2d 775, 780 (2d Cir. 1991). To successfully maintain a First Amendment free speech cause of action against Transit, Plaintiff must establish the following: (1) her speech is constitutionally protected; (2) she suffered an adverse employment action; and (3) her speech was a motivating factor in the adverse employment decision. Philips v. Bowen, 278 F.3d 103, 108 (2d Cir. 2002). For purposes of this analysis, speech is deemed "constitutionally protected" if it can "be fairly characterized as constituting speech on a matter of public concern." Connick v. Myers, 461 U.S. 138, 147-48 (1983). "Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement as revealed by the whole record." Id. I conclude that although Plaintiff's statements were of public concern, the content of her speech did not play a role in the adverse employment action. Therefore, her potential freedom of speech action fails as a matter of law.
Plaintiff alleges that Defendants are punishing her for stating views on alcoholism that are contrary to their own views. Plaintiff claims that the reason she refuses to capitulate and pay lip service to what Defendants want to hear is because "her supervisors' values, embodied in a kind of therapy, offended her, and because they sought to impose these views on her and everyone else caught in their maw." (Plaintiff's Reply Memorandum of Law in Support of her Motion to Amend at 5) (emphasis added). I do not doubt that Plaintiff's complaints and statements are in part motivated by concerns for fellow employees. In fact, Plaintiff's strong concern for similarly situated employees is supported by the record.
Many of the letters written by Plaintiff demonstrate that she is equally concerned with other employees having to undergo similar treatment. In fact, in the Release Agreement, Plaintiff uses broad language to protect other employees as well. See. e.g., Release Agreement at ¶ 1(a) ("NYCTA agrees that it will insure that all Authority employees who are required to attend or participate in any self-help substance abuse program are advised in writing of the availability and acceptability of self-help substance abuse programs that are not based on the 12 Steps of Alcoholics Anonymous") (emphasis added).
Defendants argue that Plaintiff's statements were obviously motivated by personal concerns because the relief requested under the proposed amendment makes no provision for other employees. Defendants citeSaulpaugh v. Monroe Comty. Hosp., 4 F.3d 134, 143 (2d Cir. 1993) to support this argument. Defendants' argument is flawed for two reasons. First, the fact that the proposed amended complaint does not seek relief for fellow employees appears to be a scrivener's error. In her Complaint, Plaintiff specifically seeks a permanent injunction preventing Transit from taking acts complained of "or acting in a similar manner towards other employees likewise situated." (Compl. at ¶ 50) (emphasis added). Second, Defendants' argument is grounded in an erroneous understanding of Saulpaugh. Defendants apparently understand Saulpaugh to hold that where relief in a complaint seeks only to redress a plaintiff's personal harm. then it can be inferred that the conduct which gave rise to the free speech claim must not be of public concern. In Saulpaugh, however, the court found that the plaintiff's conduct was private speech based on her complaints to her employer, not the allegations of her complaint.
That Defendants' acts amount to adverse employment action seems to be undisputed. Indeed, Defendants do not mention this factor in their arguments. In Philips, the Second Circuit held that to prove adverse employment action in cases "other than the classic examples of discharge, refusal to hire, refusal to promote, demotion, reduction of pay, and reprimand, plaintiff must show that (1) using an objective standard; (2) the total circumstances of her working environment changed to become unreasonably inferior and adverse, when compared to a typical and normal, not ideal or model, workplace." Philips, 278 F.3d at 109. Here, Plaintiff has presented sufficient facts to allow a jury to determine that the constant testing amounts to adverse employment action. See generally, Figueroa v. City of New York, 198 F. Supp.2d 555, 569 (S.D.N.Y. 2002) ("if [plaintiff] had offered evidence that the drug testing policy was manipulate[d] such that she was disproportionally chosen for testing, such evidence could have established an adverse employment action").
Although Plaintiff has satisfied the first two factors set forth inPhillips, her free speech claim must nevertheless fail. The final factor set forth in Phillips requires Plaintiff to demonstrate that her speech played a motivating factor in the adverse employment action. Here, the record demonstrates that it is not Plaintiff's speech that is causing testing to continue. Instead, testing continues because Defendants are not yet convinced that Plaintiff no longer presents a risk due to alcoholism. Plaintiff maintains that Defendants' true motive in continuing the testing is to punish her for not adopting their point of view. However, she has not pointed to evidence in the record to substantiate these accusations. "Although all inferences must be drawn in favor of the nonmoving party on a motion for summary judgment, mere speculation and conjecture is insufficient to preclude the granting of the motion." Conlon v. Austin, 2002 U.S. App. LEXIS 21311 at *4 (2d Cir. Oct. 10, 2002).
In concluding that Defendants are punishing her for not saying the right words, Plaintiff relies heavily on two exhibits in the record. The first, is an affidavit by Defendant Ronnie Sue Jaffe. In her affidavit, Jaffe states
The SAP guidelines require face-to-face evaluations when assessing an employee for follow up testing. Plaintiffs refusal to participate in these sessions, and when she does appear, her posture, her defiance, her non-verbal cues, and her insistence on bringing a recording device despite a written statement that it would not be permitted, all prohibit the SAP from making a determination that follow up testing should be terminated. This behavior, however, suggests to EAP that Plaintiff is not adhering to any alcohol recovery program and may have an ongoing problem with alcohol.
Affidavit of Ronnie Sue Jaffe at ¶ 16. Plaintiff also relies on Defendant Finch's March 10, 2000 progress report. Neither of these statements can lead a rational fact finder to conclude that Defendants' motivations were to punish Plaintiff.
The record indicates that Defendants' decision to continue testing is based on several factors. These factors include Plaintiff's unwillingness to cooperate while being evaluated, her denial of alcohol abuse, her defensiveness about SAP evaluations, and her defiance and non-verbal cues during EAP sessions. These factors prevent Defendants from concluding that Plaintiff no longer presents a risk due to alcoholism. Because Defendants have determined that Plaintiff still presents such risks, they continue to test her as authorized by FTA regulations. Accordingly, Plaintiff has failed to demonstrate that her speech was a motivating factor in causing the testing to continue.
Because Plaintiff cannot maintain her First Amendment freedom of speech claim, her motion to amend is denied as futile.
Conclusion
While the record indicates that Defendants are perhaps being overly aggressive in their tactics of testing Plaintiff, and they appear to have shown a substantial degree of insensitivity in dealing with Plaintiff, none of the acts alleged amounts to a constitutional violation. Accordingly, Defendants' summary judgment motion is granted with respect to Plaintiff's 42 U.S.C. § 1983 claims, as she fails to demonstrate a constitutional violation. The remaining state law claims are dismissed without prejudice pursuant to 28 U.S.C. § 1367. Plaintiff's motion to amend her complaint is denied as futile. Finally, Plaintiff's motion for a preliminary injunction is denied as moot.
SO ORDERED.