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LEE-PATTERSON v. NEW JERSEY TRANSIT BUS OPERATIONS

February 20, 1997

FRANCES LEE-PATTERSON, Plaintiff,
v.
NEW JERSEY TRANSIT BUS OPERATIONS, INC., et al., Defendants.



The opinion of the court was delivered by: LECHNER

 LECHNER, District Judge

 This is an action *fn1" by Frances Lee-Patterson ("Patterson") against Frank Wilson ("Wilson"), Shirley DeLebrio ("DeLebrio"), Lou Wassong ("Wassong"), Linda McQuown *fn2" ("McQuown"), Ozetta Goodman ("Goodman"), David Woods ("Woods") and Elizabeth Schneider ("Schneider"), individually and in their official capacities (collectively, the "Individual Defendants"), and New Jersey Transit Bus Operations, Inc. (the "NJT") (collectively, the "Defendants"). *fn3" Federal question jurisdiction is alleged, pursuant to 28 U.S.C. § 1343. Complaint, P 1. Patterson alleges a cause of action, pursuant to 42 U.S.C. §§ 1983, 1985 and 1986, for violations of her rights under the First and Fourteenth Amendments to the United States Constitution. Id. Diversity jurisdiction is not alleged. Patterson additionally alleges a claim arising under State law. See id., P 54.

 Currently pending is a motion for summary judgment filed by Defendants, pursuant to Rule 56(c) of the Federal Rules of Civil Procedure (the "Motion for Summary Judgment"). *fn4" For the reasons set forth below, the Motion for Summary Judgment is granted, in part. Patterson's Federal law claims are dismissed with prejudice and her State law claim is dismissed without prejudice.

 Facts

 A. Parties

 Patterson was formerly employed by NJT as a telephone operator for Bus Operations in NJT's Transit Information Center (the "TIC"). Complaint, P 2. NJT is a division of the New Jersey Transportation Authority Corporation, an agency operated by the State of New Jersey. Id., P 3. At all relevant times, the Individual Defendants were NJT employees. Wilson was the Commissioner of the New Jersey Department of Transportation. Id., P 4. DeLebrio was the Executive Director of NJT. Id., P 6. Wassong was the Managing Director of Customer Service Bus Operations of NJT. Id., P 7. Goodman was Manager of NJT's Bus Customer Service Department. Id., P 15. McQuown and Woods were TIC supervisors. Id., P 8; Amended Complaint, P 9. Schneider was the Director of NJT's Medical Department. Amended Complaint, P 12.

 B. Background

 Patterson was hired by New Jersey Transit as a Telephone Operator in September 1987. Patterson Dep. at 43. At some point between 1988 and 1992, Patterson was fired by NJT for "not coming back after a leave of absence on time." Id. at 128. Patterson was rehired by NJT as a Telephone Operator on 12 August 1992. Id. at 128.

 On or about 19 November 1993, Patterson was fired by NJT for violating a Drug and Alcohol Free Workplace Policy (the "Policy"), promulgated by NJT on 28 November 1989. Defendants 12G Statement, P 1; see Policy, attached as Exh. F to Goodman Aff.; Patterson 12G Statement, P 2. The stated purposes of the Policy were to provide "deterrence, detection, assistance, and enforcement" of drug and alcohol-related issues. Policy at 2. At all relevant times, the Policy prohibited NJT employees from having alcohol in their system while on duty. Id. at 2-3, 6; Defendants 12G Statement, PP 1-2. The Policy provided:

 
As a condition of employment, all NJ Transit employees are prohibited from:
 
a. Being impaired by or under the influence of a drug or alcohol while subject to, reporting for, or on duty, while in the workplace or while in recognizable NJ TRANSIT uniform....
 
d. Drinking alcohol within four hours of reporting for duty or having alcohol in their system while subject to, reporting for or on duty, while in the workplace or while in recognizable NJ TRANSIT uniform.

 Policy at 6 (emphasis added).

 Pursuant to the terms of the Policy, "all employees of [NJT were] required to submit to a urine analysis to detect the presence of controlled substances and/or a breath test to detect alcohol when a supervisory employee had reasonable cause to suspect that an on-duty employee [was] under the influence of, or impaired by the use of alcohol." Policy at 13 (emphasis added). The Policy provided, in pertinent part:

 
Reasonable cause exists when a supervisory employee has a reasonable suspicion that an employee is currently under the influence of or impaired by alcohol ... based on specific, personal observations that the supervisory employee can articulate concerning the appearance, behavior, speech, or body odors of the employee.

 Id.

 Pursuant to the Policy, "reasonable cause" testing of employees was limited to situations where two supervisory employees established reasonable suspicion. Policy at 14. Where the "suspected intoxication or impairment appeared to result only from the use of alcohol, breath testing [was] the preferred means of confirmation." Id. at 14. Significantly, the Policy specifically provided "an employee who tests positive for drugs or alcohol on a reasonable cause test will be discharged." Id. at 13 (emphasis added). The Policy further provided that refusal to take an alcohol test was considered insubordination and was a ground for discharge of the recalcitrant employee. Policy at 32-33. *fn5"

 At all relevant times, NJT provided employees experiencing alcohol or drug problems with an in-house Employee Assistance Program ("EAP"). Policy at 27. The EAP offered therapy, rehabilitation and counseling. Id. NJT employees were offered entrance into the EAP on either a voluntary or mandatory basis. Id. at 27-28. Voluntary EAP participation "afforded employees affected by alcohol or drug use problems the opportunity to maintain an employment relationship with the company if, before the employee had engaged in conduct deemed by NJ TRANSIT sufficient to warrant discipline, the employee voluntarily [sought] assistance from the company ... or [was] referred for such assistance by a supervisor, by another employee or by a representative of the employee's collective bargaining unit." Id.

 At all relevant times, mandatory EAP participation was available to NJT employees who tested positive for alcohol or drugs in connection with a pre-employment test, as part of a physical examination, in a post-accident test, in a random or unannounced test, *fn6" in an unannounced follow-up test following a negative retest or in connection with return to duty following voluntary EAP participation. Policy at 28. Significantly, the Policy did not provide for either voluntary or mandatory EAP participation following a "reasonable cause" alcohol test. Id.

 On 19 November 1993, Patterson attended a funeral and repast during which she consumed several glasses of punch containing alcohol. Patterson Aff., P 2; Defendants 12G Statement, P 8. Patterson states she was not aware the punch contained alcohol and that she later learned the punch had been "spiked." Patterson Aff., P 3. Patterson left the repast and reported for work at 3:30 p.m. Id. ; Defendants 12G Statement, P 7. While working at her desk, Patterson was approached by McQuown, who asked her a question concerning NJT's new computer system. Patterson Aff., P 5. Patterson states she did not immediately respond to McQuown's inquiry because she was eating. Id.

 Between ten and fifteen minutes later, Schneider and McQuown approached Patterson. Patterson Aff., P 6; Defendants 12G Statement, P 11. Schneider asked Patterson how many drinks she had consumed. Patterson Aff., P 6. Patterson denied having any drinks. Id. Schneider and McQuown then brought Patterson to NJT's Medical Department and informed her they believed she was under the influence of alcohol. Defendants 12G Statement, P 12. Schneider states it was decided to administer a "reasonable cause" test for alcohol because:

 
a. [Patterson's] speech was rambling and incoherent;
 
b. [Patterson's] demeanor was variously "fighting and excited" and "giddy and inappropriate laughing (sic);"
 
c. [Patterson's] pupils were sluggish in reacting to light (when I held a penlight before her eyes in a darkened room her pupils were slow to contract and only contracted to about 2cm. instead of the normal 1cm.);
 
d. [Patterson] had the smell of alcohol on her breath;
 
e. [Patterson] admitted drinking at a funeral as late as 3:15 p.m. that day, prior to coming to work at 3:35 p.m., and knew the punch she drank "had something in it" (although she changed her story and stated later that day that she didn't know that the punch at the funeral had been "spiked.")

 Schneider, Aff., P 5; see Observer Report (the "Observer Report"), attached to Schneider Aff. as Exh. C; Witness Report (the"Witness Report"), attached to Schneider Aff. as Exh. D.

 In accordance with the Policy, Schneider proceeded to administer two breath alcohol tests to Patterson. *fn7" Defendants 12G Statement, P 16; Schneider Aff., P 4. The initial test yielded a result of .066; the subsequent test yielded a result of .059. *fn8" Schneider Aff., P 4, Exhibits A, B. McQuown then filed a disciplinary charge against Patterson and informed her, pursuant to the NJT contractual grievance procedure, that an ...


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