Full opinion text
MEMORANDUM DECISION AND ORDER SPATT, District Judge. The plaintiffs rested them case on October 18, 1993, with the exception of certain exhibits, namely a Department of Transportation Report and a summary of the information contained in the Transit Authority drug test computer printout (Plaintiffs Exhibit 10). The defendants New York City Transit Authority (“Transit Authority”) and Robert F. Kiley move, pursuant to Fed.R.Civ.P. 50(a), for a judgment as a matter of law dismissing the ease. On October 19-20, 1993, the Court rendered its decision on the motion for judgment as a matter of law from the bench. The following constitutes a written memorial-The full decision of the Court consists of the transcript of the oral recitation, together with this written memorialization. ization of that decision. BACKGROUND The original complaint in this action was filed on or about July 6,1990. The plaintiffs were originally represented by C. Vernon Mason, Esq. who was relieved as plaintiffs’ counsel on or about June 13, 1991. A second amended complaint was filed on or about July 13, 1991 by the plaintiffs, who were, at that time, appearing pro se. The second amended complaint alleges that the defendants implemented a drug testing policy that caused the Transit Authority to deprive them of their civil rights by discharging them for testing positively on drug tests (Second Amended Complaint, at ¶¶ 2-7). On October 9,1992 the Court denied the plaintiffs motion for class action certification. Presently four of the plaintiffs, Wilder, Jackson, Jones, and Gill, are represented by counsel, Anthony Mazza, Esq. The plaintiffs Laverpool and Browne are proceeding pro se. Since the plaintiff Browne had neither appeared at this trial, nor presented any evidence as of October 18, 1993, the Court granted the motion by the defendants to dismiss the action of the plaintiff Keldric Browne for the failure to prosecute (See Minnette v. Time Warner, 997 F.2d 1023, 1027 [2d Cir.1993] [addressing dismissal for failure to prosecute]) and for failure to prove a prima facie case as to any cause of action. On October 19, 1993, the plaintiff Browne appeared at the trial and requested that the Court vacate the default and permit him to present evidence at the trial. At this point, the Court suspended its oral recitation of the decision on the motion for judgment as a matter of law. Thereafter, Court granted the application of the plaintiff Browne to vacate his default and on October 20, 1993 Browne testified before the jury. After Browne’s testimony, the Court took a recess and then rendered its oral decision on the motion for judgment as a matter of law. In this analysis of the defendants’ motion for a judgment as a matter of law as to the plaintiffs, Laverpool, Wilder, Jackson, Gill, Jones, and Browne, the Court will review the claims asserted by each of the six plaintiffs. The second amended complaint sets forth the following seven federal causes of action, in addition to pendent state law claims: (1) Section 1983 claim and state law claims for the deprivation of his job without procedural due process of law; (2) Section 1983 claim for an unreasonable search and seizure due to the drug testing procedures; (3) Section 1983 claim based on equal protection violations; (4) Section 1985 Civil Rights Conspiracy; (5) Civil RICO; (6) Title VII of the Civil Rights Act of 1964; and (7) Rehabilitation Act of 1973. Section 1983 and 1985 Claims The plaintiffs Laverpool, Wilder, Jackson, Gill, Browne, and Jones originally asserted three claims for Section 1983 violations: (1) Deprivation of their jobs without procedural due process of law; (2) Unreasonable search and seizure due to the drug testing procedures; (3) Equal protection violations. Additionally, these plaintiffs originally asserted claims under 42 U.S.C. § 1985, the civil rights conspiracy statute. On April 30, 1993, the Coui’t granted the defendants’ motion for summary judgment dismissing all the Section 1983 and Section 1985 claims of the plaintiffs Gill and Jones based upon the defense of the statute of limitations. Additionally, on October 19, 1993, counsel for the plaintiffs Wilder, Jackson, Gill, and Jones stated on the record that their Section 1985 cause of action was withdrawn. Accordingly, only the plaintiffs Laverpool, Wilder, Jackson, and Browne have a Section 1983 cause of action, and only the plaintiffs Laverpool and Browne have a Section 1985 cause of action. Civil RICO The plaintiffs Laverpool, Wilder, Jackson, Gill, Browne, and Jones originally asserted a claim under the Civil RICO statute. On October 18, 1993, counsel for the plaintiffs Wilder, Jackson, Jones, and Gill informed the Court that the claims asserted by these plaintiffs under the Civil RICO statute are withdrawn. Accordingly, the only plaintiffs who are still asserting a cause. of action under Civil RICO are Laverpool and Browne. Title VII of the Civil Rights Act The plaintiffs Laverpool, Wilder, Jackson, Gill, Browne, and Jones originally asserted a claim under Title VII of the Civil Rights Act of 1964. On October 18,1993, counsel for the plaintiffs Wilder, Jackson, Jones, and Gill informed the Court that the claims asserted by these plaintiffs under Title VII of the Civil Rights Act of 1964 are withdrawn. Accordingly, the only plaintiffs who are still asserting a cause of action under Title VII of the Civil Rights Act of 1964 are the plaintiffs Laverpool and Browne. Rehabilitation Act The plaintiffs Laverpool, Wilder, Jackson, Gill, Browne, and Jones originally asserted a claim under the Rehabilitation Act of 1973. On October 18,1993, counsel for the plaintiffs Wilder, Jackson, Jones, and Gill informed the Court that the claims asserted by these plaintiffs under the Rehabilitation Act of 1973 are withdrawn. In addition, the Court notes that the claims of the plaintiffs Jones and Gill under this statute are barred by the statute of limitations. The Rehabilitation Act of 1973 is governed by the state statute of limitations for personal injury actions (see Morse v. University of Vermont, 973 F.2d 122, 127 [2d Cir.1992]) which is three years in New York (See N.Y.C.P.L.R. 214[5]). The claim of plaintiff Jones accrued on September 9, 1985, the date his employment application was rejected, and the claim of plaintiff Gill accrued on May 15, 1986, the date he was dismissed as a result of the positive drug test. Since both of these dates are more than three years prior to June 6, 1990, the date this action was commenced, the claims of Jones and Gill are barred by the statute of limitations. Additionally, the plaintiff Laverpool stated, in open Court, that he is not seeking relief pursuant to this statute. Therefore, the only plaintiff with this cause of action is the plaintiff Browne. The Court will now address the claims asserted by the remaining plaintiffs, as to the remaining causes of action. 1. Frederick B. Laverpool, Sr.: The plaintiff Frederick Laverpool (“Laverpool”), was a Special Inspector with the Transit Authority and a former president of the Special Inspector’s Benevolent Association. During his time as union president he “began an investigation, questioning irregularities and inconsistencies” in the Transit Authority’s drug testing policies (Second Amended Complaint, at ¶204). Laverpool was tested for drugs on May 4,1988 and was informed that his. test was positive on May 8, 1988. Laverpool was dismissed on June 9, 1988. The second amended complaint alleges a scheme in which the Transit Authority drug tested Laverpool in an attempt to get rid of him. This “scheme” was furthered by the allegation that the Transit Authority “bribed” the arbitrator of the employment disputes by offering him an “$80,000 per annum job” (Second Amended Complaint, at ¶ 211). 2. Andrew Wilder, Jr.: The second amended complaint alleges that the plaintiff Andrew Wilder, Jr. (“Wilder”) was involved in a passenger-train incident on June 25, 1987 and based upon this incident was required to submit to a drug test (Second Amended Complaint, at ¶¶ 218-19). There is the further allegation that the Train Operator, who was a white male, was not given a drug test, but Wilder, who is black was tested and the test was positive (Second Amended Complaint, at ¶ 220). Wilder was then assigned to another job, as a Mail Clerk, and was directed on or about January 5, 1988 to submit to another drug test in which Wilder tested positive (Second Amended Complaint, at ¶¶ 223-24). Wilder was discharged on January 18, 1988 (Second Amended Complaint, at ¶¶ 225). 3. Percy Jackson: The second amended complaint alleges that the plaintiff Percy Jackson (“Jackson”) began his employment with the Manhattan and Bronx Surface Transit Operating Authority (“MaBSTOA”) in 1978 as a bus driver (Second Amended Complaint, at ¶ 230). On or about March 25, 1988, he was required to submit to a drug test during his annual physical examination (Second Amended Complaint, at ¶231). He tested positive and because he feared losing his job participated in the Employee Assistance Program (“EAP”) (Second Amended Complaint, at ¶¶ 235-36). There is the allegation that he submitted to thirty (30) tests, while in the EAP program, and all were negative. He returned to work and pursuant to the requirement for testing employees returning to the job, submitted to a drug test on October 14, 1988, and tested positive (Second Amended Complaint, at ¶ 237). When he challenged his dismissal because of the positive result he determined that his specimen did not bear his “affixed signature or initials” which he alleges were placed on his original specimen (Second Amended Complaint, at ¶238), but this did not prevent his dismissal. 4. Lamont Gill: In the second amended complaint, the plaintiff Lamont Gill (“Gill”) alleges that he was absent from work due to an extended hospitalization and that he was required to submit to a “return to work” physical examination on March 17, 1986. This examination included a drug test. On April 1, 1986, Gill was suspended, pending dismissal, as a result of testing positive for a controlled substance. On May 15, 1986 a “tripartite arbitration hearing” was held, over Gill’s objection that he had inadequate representation (Second Amended Complaint, at ¶ 251). Although the June 2, 1986 decision of the arbitration panel recommended reinstatement, the Transit Authority dismissed the plaintiff Gill on June 9, 1986 (Second Amended Complaint, at ¶ 253). 5. Alton Jones: The plaintiff Alton Jones (“Jones”) is not an employee of the Transit Authority and is suing because certain allegedly discriminatory practices deprived him of the opportunity of obtaining a job with the Transit Authority. Jones alleges that on or about September 9, 1985 his employment application was rejected due to an allegedly positive test of his urine sample (Second Amended Complaint, at ¶ 289). Jones filed numerous appeals of his rejected application, however the determination to reject his application was sustained. This plaintiff attempted to challenge his medical disqualification, but he was denied such an appeal (Second Amended Complaint, at ¶ 291). 6. Keldric C. Browne, Jr.: The plaintiff Keldric Browne, Jr. (“Browne”) was employed by the transit authority as a bus operator. The second amended complaint alleges that during November 1988, Browne voluntarily entered the transit authority’s EAP program. When Browne returned to work on or about March 3, 1989, he was required to submit to a drug test and the result was negative (Second Amended Complaint, at ¶ 262). Thereafter, Browne resumed his duties as a bus operator and was tested for drugs on or about April 6, 1989. On April 12, 1989 he was informed that he had tested positive for a controlled substance and was suspended, pending dismissal (Second Amended Complaint, at ¶¶ 263-64). Browne then reentered the EAP program and after not testing positive during the program he was allegedly informed that he was ineligible for reinstatement (Second Amended Complaint, at ¶¶ 271-72). It is alleged that Browne was discharged in violation of the Rehabilitation Act of 1973 (Second Amended Complaint, at ¶ 272). DISCUSSION Motion for a Judgment as a Matter of Law: A motion for a judgment as a matter of law, formerly known as a judgment notwithstanding the verdict, is governed by Rule 50(a) of the Federal Rules of Civil Procedure which states, in relevant part, that: “[i]f during a trial by jury a party has been fully heard with respect to an issue and there is no legally sufficient evidentiary basis for a reasonable jury to have found for that party with respect to that issue, the court may grant a motion for judgment as a matter of law against that party on any claim ... that cannot under the controlling law be maintained without a favorable finding on that issue” (Fed.R.Civ.P. 50[a][l]). In explaining this standard, the Second Circuit has recently reiterated that: “the district court may grant the motion ‘only when, viewing the evidence most favorably to the party other than the movant, “there can be but one conclusion as to the verdict that reasonable men could have reached.” ’ Diebold v. Moore McCormack Bulk Tramp. Lines, Inc., 805 F.2d 55, 57 (2d Cir.1986) (quoting Mattivi v. South African Marine Corp., “Huguenot”, 618 F.2d 163, 167 (2d Cir.1980)). The nonmovant must be given the benefit of all reasonable inferences, because the trial court ‘cannot assess the weight of the conflicting evidence, pass on the credibility of witnesses, or substitute its judgment for that of the jury.’ Mattivi, 618 F.2d at 167. (Weidy v. Piedmont Airlines, Inc., 985 F.2d 57, 59-60 [2d Cir.1993]; see also Kreppein v. Celotex Corp., 969 F.2d 1424, 1426 [2d Cir.1992]; Michelman v. Clark-Schwebel Fiber Glass Cory., 534 F.2d 1036, 1042 [2d Cir.], cert. denied, 429 U.S. 885, 97 S.Ct. 236, 50 L.Ed.2d 166 [1976]). A federal district court should grant a motion for a judgment as a matter of law, after a jury returns with a verdict, only when “the movant’s evidence is so overwhelming that a reasonable jury could only have reached the opposite result, Baskin v. Hawley, 807 F.2d 1120, 1129 (2d Cir.1986) or ‘ “such a complete absence of evidence supports] the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture,” ’ Newmont Mines Ltd. v. Hanover Ins. Co., 784 F.2d 127, 132 (2d Cir.1986) (quoting Mallis v. Bankers Trust Co., 717 F.2d 683, 688-89 (2d Cir.1983)). A less stringent standard would risk impermissibly substituting our view of the evidence for that of the jury” (County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1311 [2d Cir.1990]). This Court is also mindful that “[t]he jury’s role as the finder of fact does not entitle it to return a verdict based only on confusion, speculation or prejudice; its verdict must be reasonably based on evidence presented at trial” (Michelman, supra, 534 F.2d at p. 1042). When there is the complete absence of evidence to support any finding by the jury in favor of the plaintiffs, then the Court must grant a judgment as a matter of law at the conclusion of the plaintiffs’ case since there is no issue of fact to submit for the jury’s determination (Weldy, supra, 985 F.2d at pp. 59-60). It is based upon these legal principles that the Court examines the defendants’ motion for a judgment as a matter of law at the conclusion of the plaintiffs’ case. In doing so, the Court will address each of the claims asserted by the plaintiffs. Claims Asserted by Plaintiff Jackson: The plaintiff Jackson testified that he was a former employee of the MaBSTOA and was terminated from his employment in September or October, 1988. On cross examination he stated that he never worked for the New York City Transit Authority. Notwithstanding the many common areas of employment and office facilities between the New York City Transit Authority and MaB-STOA, it is clearly established law that MaB-STOA and the Transit Authority “are separate entities” (Reis v. Manhattan and Bronx Suiface Transit Operating Authority, 161 A.D.2d 288, 555 N.Y.S.2d 61, 62 [1st Dep’t], appeal denied, 76 N.Y.2d 707, 561 N.E.2d 889, 560 N.Y.S.2d 989 [1990]). Further, it has been held that the Transit Authority and MaBSTOA are not “united in interest” and service of a notice of claim and complaint upon one entity does not constitute service on the other entity (See Zaiman v. Metropolitan Transit Authority, 186 A.D.2d 555, 588 N.Y.S.2d 402, 404 [2d Dep’t 1992] [citing Adams v. New York City Transit Authority, 140 A.D.2d 572, 573, 528 N.Y.S.2d 638 [2d Dep’t 1988]; Reis, supra, 555 N.Y.S.2d at p. 62]). Accordingly, since the plaintiff Jackson was not an employee of the Transit Authority, was not dismissed by the Transit Authority, and has not introduced any evidence to demonstrate that he was injured as a result of the actions of the defendants Transit Authority or Kiley, the defendants’ motion for a judgment as a matter of law dismissing his federal and state claims is granted. State Law Claims: According to the Public Authorities Law, “[a]n action against the [Transit Authority] founded on tort shall not be commenced more than one year and ninety days after the happening of the event upon which the claim is based, nor unless a notice of claim shall have been served on the authority within the time limited, and in compliance with all the requirements of section fifty-e of the general municipal law” (N.Y.Pub.Auth.Law § 1212[2]). The plaintiffs cannot proceed in this lawsuit as to any defendant, on any state cause of action, unless they first served a notice of claim within ninety days of the incident and second, commenced an action within one year and ninety days. In the present case none of the plaintiffs submitted evidence that they served a notice of claim on the defendants and all of the supplemental state law claims sound in a tortious nature. This morning, at approximately 9:30 AM our chambers received a telephone call from Mr. Laverpool indicating that he has the notice of claim for his state court claims. For the purpose of making a ruling on this Rule 50 motion, the Court will presume that Mr. Laverpool did serve a notice of claim within ninety days from his discharge on June 9,1988. However, this action was commenced on July 6, 1990, more than one year and ninety days from the date of his discharge and accordingly the supplemental state law claims are time barred. Therefore, the motion for judgment as a matter of law dismissing all New York State law claims is granted as to all plaintiffs, except the plaintiff Laverpool, for the failure to serve a notice of claim and as to all of the plaintiffs, except Browne, for the failure to commence an action within one year and ninety days. Since the plaintiffs Gill and Jones only had supplemental state claims remaining, the motion to dismiss the complaint with regard to all causes of action of plaintiffs Gill and Jones is granted. After the above determinations, the remaining plaintiffs for consideration are Laverpool, Wilder, and Browne. However, to complete the record, the Court will also address the merits of the remaining claims by the plaintiff Jackson for Section 1983 violations. Section 1983 Claims: Section 1983 states, in relevant part, that “[ejvery person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress” (42 U.S.C. § 1983). A violation of this statute is proven when “a person or persons acting under color of state law deprived a plaintiff of rights, privileges, or immunities secured by the constitution or laws of the United States (McDarby v. Dinkins, 907 F.2d 1334, 1336 [2d Cir.1990] [citing Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 [1981]). The plaintiffs Laverpool, Wilder, Browne, and Jackson assert that the defendant Transit Authority violated Section 1983 by: (1) depriving the plaintiffs of their jobs without procedural due process of law; (2) improperly drug testing the plaintiffs in violation of their Fourth Amendment search and seizure rights; and (3) depriving the plaintiffs of equal protection under the law. The Court will address each of these claims individually. (1) Section 1983 Procedural Due Process: The Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 [1976], set forth the criteria to be used by a Court in determining whether an administrative procedure comports with the procedural requirements of the due process clause. In Mathews the Supreme Court stated that the Court should consider: “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail” (Mathews, supra, 424 U.S. at p. 335, 96 S.Ct. at 903; see also Patchogue Nursing Center v. Bowen, 797 F.2d 1137, 1145 [2d Cir.1986], cert. denied, 479 U.S. 1030, 107 S.Ct. 873, 93 L.Ed.2d 828 [1987] [discussing medicare participation]). In examining a claimed deprivation of property without due process of law, the Court must ask two questions: (1) Were the plaintiffs deprived of a property interest; and (2) What process is due? (See Kraebel v. New York City Department of Housing Preservation and Development, 959 F.2d 395, 404 [2d Cir.], cert. denied, —- U.S.-, 113 S.Ct. 326, 121 L.Ed.2d 245 [1992]). The plaintiffs Laverpool, Wilder, and Browne established that they were entitled to civil service job protection as civil service employees (See N.Y.Pub.Auth.Law § 1210). The plaintiff Jackson, as an employee of MaBSTOA, is not covered by the civil service law, and thus does not have a property interest in his job (See Collins v. Manhattan & Bronx Surface Transit Operating Authority, 62 N.Y.2d 361, 465 N.E.2d 811, 812-15, 477 N.Y.S.2d 91, 92-95 [1984]). However, even if the Court presumes, for the purpose of this motion, that all of these plaintiffs have a “property” interest in their jobs, the question then becomes “What process is due?” The Court will address the procedures employed in discharging each plaintiff. Laverpool In the present case, the plaintiff Laverpool testified that in 1987 he became ill for five (5) months due to a heart condition. Upon his return to his job as a Special Inspector he was told that he had to take a mandatory drug test on May 4, 1988. On May 8, 1988 Mr. Laverpool was advised that his urine specimen had tested positive for a controlled substance. Thereafter, the plaintiff Laverpool went through all three steps of the grievance procedure prior to his being terminated for the drug test. Mr. Laverpool believed that the arbitrator involved in his initial grievance process, Robert T. Simmelkjaer, was biased due to the Transit Authority having offered him a job as a “hearing officer” during the time between the hearing and the award. He then challenged the arbitration award in the New York State Supreme Court. In a Decision, dated October 20, 1989, Justice Hutcherson of the New York State Supreme Court, Kings County, vacated Robert Simmelkjaer’s arbitration award adjudicating the Laverpool matter, based on the conflict of interest, and a new hearing was ordered before another arbitrator. Thereafter, a second arbitration hearing was scheduled for April 21, 1991 before Arbitrator Martha Cooper, who was selected by the American Arbitration Association. Mr. Laverpool conceded, in his testimony, that he did not appear for this arbitration hearing. In fact, a letter from the plaintiff Laverpool to the American Arbitration Association, dated April 20, 1991 (Defendant’s Exhibit B), stated that Laverpool would not participate in the arbitration. According to the Second Circuit, in a recent opinion, “[d]ue process requires, as a general matter, an ‘opportunity to be heard “at a meaningful time and in a meaningful manner” ’ ” (Calhoun v. New York State Div. of Parole Officers, 999 F.2d 647, 653 [2d Cir.1993]). In the present case, with respect to the plaintiff Laverpool, the Court finds that Mr. Laverpool was provided with numerous opportunities to review the merits of his termination. First, he exhausted the three step procedure available to him by the Transit Authority and the collective bargaining agreement. Second, he appeared before Arbitrator Simmelkjaer. Third, he had Simmelkjaer’s award vacated in an action commenced in New York State Court. Fourth, he was afforded the opportunity to arbitrate the matter before Arbitrator Martha Cooper on April 21, 1991 and by his written letter dated April 21, 1991 and his actions, failed to appear at this opportunity to review the merits of his discharge. He therefore abandoned his appeal and waived his right to challenge the dismissal. The Court finds, as a matter of law, that the plaintiff Laverpool failed to establish that he was denied the opportunity to be heard at a meaningful time and in a meaningful manner. There is no evidence submitted by Laverpool that he was deprived of any due process. On the contrary, the evidence is clear that he was afforded the most meaningful due process, under the circumstances of his employment (See Calhoun, supra, 999 F.2d at p. 653). Accordingly, the motion by the defendants for a judgment as a matter of law dismissing his procedural due process claims under both Section 1983 and New York state law is granted. Wilder The plaintiff Wilder asserts that on June 25, 1987 he was involved in an incident in which a passenger was injured while reaching through the window of the train car in which Wilder was located as it was leaving the station platform. Mr. Wilder testified that he was the person who pulled the emergency cord on the train which stopped the train. The plaintiff Wilder was subjected to a drug test as a result of this incident, although he asserts that the train operator was not tested. Wilder was informed, thereafter, that he had tested positive for marijuana. Nevertheless, he returned to work on the same train and worked three more months as a conductor. Then during September 1987, although he maintained his job title as a “conductor”, by a “pick” he chose to work in a mail clerk’s job. On or about January 8, 1988 he was subjected to a second drug test. He was informed on or about January 18, 1988 that he was being dismissed. Wilder testified that he went to a step one hearing together with his union representative. He was informed that since this was his second positive test, he was being terminated.. Further, Wilder testified that he was informed about his right to appeal this determination of his termination and states that he requested a step two hearing, but never received it, despite his apparent request. The Transit Authority, during its cross-examination, established that the plaintiff Wilder was represented by a union representative at all disciplinary hearings. Further, the Transit Authority introduced evidence (Defendants’ Exhibit AG) which is a March 7, 1988 letter from the Transit Authority to Mr. Andrew Wilder. This letter states, in full: “Dear Mr. Wilder: Pursuant to the Contractual Disciplinary Procedure, the Step II Meeting resulting from the appeal of the Disciplinary Notification dated, January 19, 1988, that you be dismissed from the service has been rescheduled for 9:00 A.M. on March 17,1988, at 370 Jay Street, Brooklyn, New York 11201, Room 308. Your failure to appear for the Step II Meeting as scheduled, will be deemed to constitute an abandonment of the appeal and the above mentioned discipline shall be implemented. Very truly yours, Stanley M. Stern Hearing Officer Labor Relations, RTO” This letter was sent to the plaintiff Andrew Wilder at the address, “410 Eastern Parkway Apt. # 6C, Brooklyn, NY 11233” by Certified Mail, Return Receipt Requested. In response to questioning by the Court, the plaintiff Wilder testified that this is his correct address. The envelope which was admitted as part of Defendants’ Exhibit AG, in evidence, indicates that the postal service attempted delivery on three occasions: March 14, 1988, March 19, 1988, and March 29, 1988. The letter was ultimately returned to the Transit Authority with the marking “Return to Sender—-Unclaimed”. The plaintiff Wilder did nothing further to obtain a Step II Meeting. The Court finds, as a matter of law, that the plaintiff Wilder failed to establish that he was denied the opportunity to be heard at a meaningful time and in a meaningful manner. There was no evidence presented that Wilder was deprived of any due process. On the contrary, the evidence is clear that he, just like the plaintiff Laverpool, was afforded meaningful due process, under the circumstances of his employment (See Calhoun, supra, 999 F.2d at p. 653). Jackson The plaintiff Jackson testified that when he arrived at his job, shortly after his drug test, he was informed to go to the Union Office. In that office he was informed that he tested positive for cocaine. He was informed that he was required to go into a drug program in oi’der to get his job back. Jackson testified that he was not offered the opportunity to consult with counsel, but rather informed that he had to go into the drug program. The next week, Jackson was informed that he would be able to have a confirmation test conducted on the second bottle, but would still have to start the drug program at Day Top. Jackson did nothing to dispute this initial finding. After concluding the Day Top drug program, Jackson returned to work. On or about October 25, 1988, Jackson was retested. Approximately one and a half weeks later, Jackson was informed that he tested positive and was suspended. When Jackson attempted to find out about obtaining a confirmation test, he was informed about three laboratories, however the second bottle was never tested because his signature did not appear on the label. Jackson stated that the second bottle was not his and it would be a waste of money to proceed with the second test. Jackson went to an arbitration hearing before Arbitrator John Zuccotti. According to Jackson, there was supposed to be a second hearing, however he was not informed about the date and does not know the outcome. The Court finds, as a matter of law, that the plaintiff Jackson failed to establish that he was denied the opportunity to be heard at a meaningful time and in a meaningful manner. There was no evidence presented that Jackson was deprived of any due process. On the contrary, the evidence is clear that he, just like the plaintiffs Laverpool and Wilder, was afforded meaningful due process, under the circumstances of his employment (See Calhoun, supra, 999 F.2d at p. 653). Browne The plaintiff Browne testified that on September 10, 1987 he was given a thirty day suspension based upon the fact that he almost had an accident while driving a Transit Authority bus. On September 7, 1988, Browne entered into a settlement agreement with the Transit Authority, which stated, in relevant part, that: “(1) The Authority will reduce the dismissal of Keldric Browne, Pass Number 108062 to a 30 day suspension and final warning. His reinstatement to employment will be without back pay. * * * * * * (3) The Grievant shall fully comply with Employees Assistance Program. His failure to do so shall permit the Authority to discharge him. (4) The Authority may terminate Mr. Browne pursuant to 2 and 3 above at its discretion. Said discharge shall not be Arbitrable” (Settlement Agreement, dated Sept. 7, 1988). Browne testified that he was having problems at work due to personal problems and that he went into the EAP program for some assistance. He further asserts that his suspension in 1987 was not drug related. Thereafter, Browne testified that on or about April 7, 1989, he was informed that a drug test he had taken approximately one week previously was positive. He stated that he was given the opportunity to have the second bottle of urine tested for the presence of cocaine, however it would cost $79.00 to conduct the test. Browne was unable to afford the $79.00 to take the test, and therefore had to go back to the EAP program. The positive test result was on April 7, 1989. Browne testified that after he had attempted to get a “bed” in the rehabilitation program for six months, he refused to continue to attempt to go into the J-Top Program and instead was tested by Project Create in Manhattan, a private drug rehabilitation program. Browne testified that he never formally enrolled in Project Create, but rather was just. tested in that facility. Since Browne failed to complete a drug rehabilitation program, his employment with the Transit Authority was terminated. In a letter, dated May 4, 1990 (Defendant’s Exhibit BB), the plaintiff Browne was notified that: “Our records indicate that one year has elapsed since your dismissal pursuant to contract appendix EH-1 and policy instruction 6.0.2, (Drugs and controlled substance). Pursuant to said contract and policy, you are required to successfully complete Employee Assistance Program, no later than one year following your dismissal. This is to advise you that you are no longer eligible for services under the authority of EAP as of April 6, 1990. Accordingly, your dismissal on April 6, 1989 will be implemented without any further right to restoration. The effective date of your termination will be April 6, 1989.” Mr. Browne did not testify about any denial of a hearing to review his termination, or that he exercised any of his rights to arbitrate his termination. The Court finds, as a matter of law, that the plaintiff Browne failed to establish that he was denied the opportunity to be heard at a meaningful time and in a meaningful manner. In fact, Browne unlike any of the other plaintiffs had entered into a separate agreement with the Transit Authority which permitted the Transit Authority to terminate his employment if he failed to comply with the terms of the agreement. Browne was afforded meaningful due process, under the circumstances of his employment (See Calhoun, supra, 999 F.2d at p. 653). Accordingly, the motion by the defendants for a judgment as a matter of law dismissing his procedural due process claims under both Section 1983 and New York state law is granted. (2) Section 1988 Search and Seizure The testing of urine for drugs, is deemed a Fourth Amendment search and must therefore be reasonable (See Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 616-18, 109 S.Ct. 1402, 1412-14, 103 L.Ed.2d 639 [1989]). According to the Supreme Court, “where a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual’s privacy expectations against the Government’s interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context” (National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665-66, 109 S.Ct. 1384, 1390-91, 103 L.Ed.2d 685 [1989] [citing Skinner, supra, 489 U.S. at pp. 619-20, 109 S.Ct. at 1414-15]). In Skinner, the Supreme Court stated that “[t]he Government’s interest in regulating the conduct of railroad employees to ensure safety ... ‘[present special needs] beyond normal law enforcement that may justify departures from the usual warrant and probable cause requirements’ ” (Skinner, supra, 489 U.S. at p. 620, 109 S.Ct. at p. 1415). The Federal Railroad Administration’s urine testing regulations, were based upon the “governmental interest in ensuring the safety of the traveling public and of the employees themselves” and this “plainly justifies prohibiting covered employees from using alcohol or drugs on duty, or while subject to being called for duty. This interest also ‘require[s] and justifies] the exercise of supervision to assure that the restrictions are in fact observed’ ” (Skinner, supra, 489 U.S. at p. 621, 109 S.Ct. at p. 1415 [quoting Griffin v. Wisconsin, 483 U.S. 868, 875, 107 S.Ct. 3164, 3169, 97 L.Ed.2d 709 (1987) ]). Those people deemed to have “safety sensitive” positions, who would be subject to the drug testing, “discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences” (Skinner, supra, 489 U.S. at p. 628, 109 S.Ct. at p. 1419). In applying the Skinner analysis to the drug testing policy with regal’d to employees of the Transit Authority, in Burka v. New York City Transit Authority, 739 F.Supp. 814 [S.D.N.Y.1990], Judge Patterson in the Southern District of New York held that the Transit Authority “possesses a ‘special need’ to take urine from those employees in safety sensitive positions ... This ‘special need’ outweighs the private interests in having the protection of a warrant” (Burka, supra, 739 F.Supp. at p. 826). Judge Patterson determined that the following Transit Authority jobs would be safety-sensitive: 1) Train Operators—Inattentiveness can result directly in harm to either the public or other workmen. 2) Bus Operators—Same 3) Tower Operators—Same 4) Train Conductor—Same 5) Conductor-Flagman—Same 6) Booth Clerks—Responsible for reporting all emergency situations to the TA command center, including if a person falls onto the tracks. 7) Cleaners—Perform duties of booth clerks during the clerk’s breaks. 8) Collection Agents—They carry firearms and must be prepared to make life or death decisions. 9) Road Car Inspector—Responsible for spot decisions about emergency repairs on trains which are in service and filled with passengers. 10) Track Walker—Inspects for defects on tracks and there are only “spot inspections” by a supervisor. The ability to make an accurate track condition report is critical. 11) Track Equipment Maintainers—Mechanics who repair various tools used by the track maintenance department. They are not closely supervised and the equipment they repair are dangerous pieces of equipment (chain saws). 12) Chauffeur Specialist and Crane Operator—Often drive “cranes, cherry pickers, bull dozers, and tractor trailers” at street level and in the presence of others. 13) Signals Department—The proper operation of the train signals is very important. 14) Surface Department—Quality Control Dispatcher—Checks whether certain essential features of the bus is operating properly. (See Burka, supra, 739 F.Supp. at pp. 821-26). The Court will first address whether the Transit Authority was permitted to require the drug tests on the plaintiffs Laverpool, Wilder, Browne, and Jackson. Then, the Court will address the allegations concerning the accuracy of the testing procedures. Ability to Drug Test Plaintiffs: With respect to the plaintiff Laverpool, the testimony demonstrates that he was employed as a “Special Inspector”. Mr. Laverpool testified that: (1) some special inspectors receive weapons training, (2) they investigate theft of services by employees, (3) he once received a commendation for saving a police officer’s life, (4) the special inspectors were later in uniform; (5) the duties include the prevention of fare abuse, and (6) they drive Transit Authority vehicles in special circumstances. Accordingly, when reviewing the evidence in the case, this Court finds, as a matter of law, that the plaintiff Laverpool’s position as a Special Inspector was a “safety-sensitive” position (See Skinner, supra, 489 U.S. at pp. 616-20, 109 S.Ct. at pp. 1412-15 [general rules]; Burka, supra, 739 F.Supp. at pp. 821-26 [application of Skinner guidelines to Transit Authority]). Therefore, since the Transit Authority had the authority to drug test, this plaintiff would have to establish that it was improper for the Transit Authority to rely on the testing by CompuChem or that the procedures were knowingly improper. The plaintiffs Jackson and Browne were both bus operators, which are clearly safety sensitive positions, therefore, these plaintiffs would also have to establish that it was improper for the Transit Authority to rely on the testing by CompuChem or that the procedures were knowingly improper. The plaintiff Wilder held the job title of “conductor” and worked as a mail clerk at the time of his second drug test. He worked as a conductor at the time of his first drug test. Although the position of conductor is clearly “safety-sensitive”, as is alleged in the complaint (see Second Amended Complaint, at ¶ 217), the plaintiff asserts that his position as a mail clerk is not safety-sensitive. In opposition to this contention, the defendant Transit Authority asserts two- alternative propositions. First, the Transit Authority contends that since the plaintiff Wilder still held the job title of a “conductor” and presumably could resume the safety-sensitive duties of a conductor at any time, the Transit Authority is properly able to test him. Alternatively, the Transit Authority asserts that since the plaintiff Wilder had previously tested positive for a controlled substance, they were entitled under their regulations to conduct random retests. In addressing the assertion that the “job title” of “conductor” entitled the Transit Authority to continue drug testing, despite the actual duties performed by the plaintiff, the Court notes that Judge Patterson in the Burka case made many references to “job title” when articulating his determinations concerning the ability of the Transit Authority to conduct drug tests. For example, Judge Patterson stated that the defendants would be liable to the plaintiffs for “violations of ... the search and seizure rights of those class members who were tested, between January 1, 1984 and April 1987, when they were either employees with non-safety-sensitive job titles, applicants for non-safety-sensitive job titles, or employees (with non-safety-sensitive job titles) seeking promotion to non-safety-sensitive job titles ” (Burka v. New York City Transit Authority, 747 F.Supp. 214, 217 [S.D.N.Y.1990]). Another Burka decision specifically states: “In this case, plaintiffs only concede that five of the positions covered by the TA’s drug testing program are safety sensitive: train operator, bus operator, tower operator, train conductor and conductor-flagman. Inattentiveness by workers with those five titles clearly can result in serious harm to either the public or other workmen” (Burka v. New York City Transit Authority, 739 F.Supp. 814, 821 [S.D.N.Y.1990] [emphasis added]). There is no qualification by Judge Patterson that his statements apply only to employees with these job “titles” while the employees are actively engaged in the safety-sensitive aspects of their duties. The alternative argument by the Transit Authority is that, according to their published regulations, they are entitled to randomly test an employee who previously tested positive for drugs. It is conceded by all that the Transit Authority employees were required to follow the published rules and regulations of the New York City Transit Authority. Plaintiffs exhibit 24 is such a rule and is titled: “Policy Instruction—Drugs and Controlled Substance”. According to the testimony of Ella Hill, this document was in effect at the time CompuChem conducted the drug tests for the Transit Authority, the relevant time period involved in this action. This “Policy Instruction” states, in relevant part, as follows: “It is the policy of the Authorities to operate and maintain its transportation facilities in a safe and efficient manner and to provide a safe work environment for its passengers and employees. Possession or the use of Drugs or Substances that may prevent an employee of the Authority from performing the duties of his/her job safely or in a manner that would constitute a threat to the property or the safety of others is prohibited” (Policy Instruction, “Policy”, § 1.1). Further, this Policy Instruction provides that: “The purpose of this [Transit Authority Policy Instruction] is to set forth policies and procedures concerning employee possession or use of Controlled Substances, as defined in paragraph 4.1, including marijuana, and any Drug or Substance which may impair job performance or pose a hazard to the safety of others” (Policy Instruction, “Purpose”, § 2.1). Specifically with respect to the assertions by the plaintiff Wilder in this case, this Policy Instruction clearly states that: “Employees of the Authority shall submit to Drug screening testing when ordered to do so, and additionally in the following circumstances ... when a Controlled Substances has been identified in a prior test” (Policy Instruction, “Reporting and Testing of Controlled Substances, Drugs and Marijuana”, § 5.3.5). When examining these regulations, the Court notes that the Burka case, on which the present action apparently has been modeled, did not address the issue of plaintiffs who previously tested positive. Specifically, Judge Patterson notes, in a footnote, that “[pjlaintiffs do not challenge testing in circumstances after a positive test or when a supervisor suspects drug impairment. Thus the Court need not decide whether those circumstances constitute reasonable suspicion” (Burka v. New York City Transit Authority, 739 F.Supp. 814, 829 n. 10 [S.D.N.Y. 1990]). A similar regulation was upheld in Washington State after an attack by the Airline Pilots Association. In Airline Pilots Association Int'l v. Alaska Airlines, Inc., 702 F.Supp. 1485 (W.D.Wash.1987), aff'd, 898 F.2d 1393 (9th Cir.1990), the court examined a regulation which included a provision that “[a]ny employee who tests positive on a drug screen and later returns to work under the new rules is thereafter subject to mandatory drug testing without prior notice” (Airline Pilots, supra, 702 F.Supp. at p. 1485). The Court held that not only did the plaintiff fail to establish that it had a basis for an injunction preventing the enforcement of the regulations, including that regulation cited above, but since there were no other issues to resolve in the case, the defendant was entitled to a judgment on the entire action (Airline Pilots, supra, 702 F.Supp. at p. 1488). This Court finds, as a matter of law, that the Transit Authority regulation permitting mandatory drug screening “when a Controlled Substance has been identified in a prior test” (Policy Instruction, at § 5.3.5) satisfies the Fourth Amendment requirement for reasonableness (See Skinner, supra, 489 U.S. 602, 109 S.Ct. 1402). Further, the Court finds that it is also reasonable, within the confines of the Supreme Court authority cited above, to test employees, or prospective employees, in safety-sensitive positions when: (1) they apply for employment; (2) they have their routine physical examination; (3) they are seeking promotion to another safety-sensitive position; (4) they return to work after an extended absence or suspension; and (5) they resume work after an incident while on duty. The plaintiffs Laverpool and Wilder, as employees of the Transit Authority, had to conform to the reasonable drug testing policy of the Transit Authority. Having found a proper basis for the Transit Authority to test the plaintiffs Laverpool, Wilder, Browne, and Jackson, the Court will address whether the Transit Authority properly relied upon the results of the CompuChem laboratory, or whether the CompuChem tests were improperly made, to the knowledge of the Transit Authority. Drug Testing Procedures: A report prepared by the Office of the Inspector General of the Metropolitan Transit Authority, dated December 9, 1991 (Plaintiffs Exhibit 11), addresses the Transit Authority’s drug testing contract with the CompuChem laboratory. This document, was introduced by the plaintiff Laverpool as evidence of the incompetence of the drug testing laboratory. The report states that on one occasion nine of ten urine test samples, which were all originally certified as “drug negative”, were “spiked” with known concentrations of drugs. The tenth sample remained “drug negative”. These ten samples were submitted to CompuChem for analysis. The report states that after testing the ten samples: “CompuChem properly identified and reported the drugs in six of the ten spiked samples. These samples contained cocaine, codeine, meperidine, morphine, methadone, and methaqualone. One sample, though properly identified by CompuChem as containing the spiked drug hydromorphone, was reported as negative to the Transit Authority. CompuChem properly reported the unspiked sample as negative. It is important to note that ive do not attempt to make an overall assessment of CompuChem Laboratory’s competence or performance level either in general or specifically in regard to the testing it conducted for the TA ... One small sample, tested on one day and in one test batch, while not providing the basis for an overall assessment of a particular laboratory’s competence, does point out the need for the TA to monitor, on an ongoing basis, the level of performance and reliability of any lab with which it works” (Report, dated December 9, 1991 [emphasis added]). This proof is insufficient to establish, prima facie, that the tests conducted by CompuChem with regard to the plaintiffs in this case were not properly done. This proof does not concern the particular tests conducted on the plaintiffs in this case, nor in this Court’s view, could a reasonable jury find from this evidence, including this report, that the particular tests involved in this case were improperly conducted, or that the tests were inaccurate, or that the Transit Authority should not have relied upon these tests. Ella Hill, a former plaintiff in this action, testified that the specimens were collected in the medical department and then sent to CompuChem on a daily basis. Someone at CompuChem would then retrieve the aliquot portion from “Bottle A” for testing at the laboratory in North Carolina. The initial test conducted was the EMIT Test, which is an acronym for Enzyme Multiplied Immunoassay Technique. If this test yielded a positive result, a second aliquot portion from “Bottle A” was tested using the GCMS Test, which is an acronym for Gas Chromatography Mass Spectrometry, which is a more accurate test to identify the controlled substance in the urine specimen. Ms. Hill further testified that in May 1987 she observed thousands of bottles of specimens held in the medical department. She further testified that there were unspecified “problems” with the lab regarding the contract with CompuChem. Her testimony also included the assertion that prior to using CompuChem, urine samples for drug testing were kept under lock and key, however after the Transit Authority started using CompuChem, Ms. Hill testified that the urine samples were kept in cardboard boxes in the medical department, near a window. Assuming the truth of the testimony, there is no evidence that even with that method of storage, it affected the analysis of the urine samples in any manner. There is just no evidence that storing the bottles in cardboard boxes was an improper procedure or would affect the results to any extent. The plaintiff Percy Jackson testified about his experience with the urine testing procedures employed by the Transit Authority. Mr. Jackson testified that he went into the mens room and urinated into a cup. Thereafter he took the cup to the “lab” and two technicians in the “lab” asked him for his payroll number. He testified that he poured the urine into two bottles, filled out and signed the urinalysis form, sealed the bottles, signed the labels, placed the urine sample bottles back into the box, and the boxes were shipped out. This testimony does not present any evidence of an improper testing procedure. Lawrence Mobley testified that he tested positive for cocaine on two occasions. He further testified that on the occasion of his May 4, 1990 drug test he “didn’t have to go to the bathroom” and therefore placed “tea water” into the urine sample bottles. He stated that this drug test also yielded positive results. Even when drawing all reasonable inferences in favor of the plaintiffs, the Court notes that this alleged Mobley “tea incident” occurred on or about May 4, 1990, two years after Mr. Laverpool’s drug test and sixteen months after Mr. Wilder’s drug test. This testimony, taken in its entirety, when viewed with all reasonable inferences in favor of the plaintiffs, still does not present any evidence of an improper testing procedure by CompuChem, or improper reliance by the Transit Authority at the time of the tests given to the plaintiffs in this case. Andrew Wilder testified that when he was requested to' provide a urine sample to the Transit Authority, he filled two bottles and they were sent to CompuChem. He knew that the second bottle was for his use at another laboratory. Mr. Wilder further testified that although he requested a confirmation test, he never heard from the CompuChem lab. He also testified that there were records of drug tests which indicated both a positive drug test result for marijuana and a negative drug test result for marijuana on the same day. However, the documentation in support of this assertion, Defendants’ Exhibit AK, in evidence, shows that although both a positive and negative test result were reported on the same date, February 15, 1988, the date that the samples were received was different and the “Accession Number” was different which indicates that a different test sample was used for each drug test. Further, the evidence consists of receipts from “Clin Path/ Tox, 15 Frederick Place, Hicksville, N.Y. 11801”, which has absolutely nothing to do with the drug tests at issue in this case, or with the CompuChem laboratory. In addition, the Court considered the Department of Transportation Report, which has only been marked for identification, as plaintiffs exhibit 3. Initially, the Court notes that this report summarizes the work of a substance abuse team who was evaluating the Transit Authority drug testing procedures, from August through December 1991 and is described as a “snapshot” of the drug testing procedures (Exhibit 3, at p. 2). The period of time evaluated by the “snapshot” report is over two and one-half years after the period of time relevant to this cause of action. In fact, it is three and one-half years after the drug test for plaintiffs Laverpool, Wilder, and Jackson. Although this voluminous document neither refers to the time period involved in this action, nor was it formally introduced into evidence, the Court reviewed the document, as if it were introduced into evidence and finds that it contains no evidence about the supposed incompetence of the drug testing laboratory CompuChem. In fact, at the time this report was compiled CompuChem did not conduct drug tests, but rather only conducted blood tests. The lab MetPath was used for urine testing (See Report, at p. 46). Further, this report states that the Transit Authority was in compliance with the Burka, supra, decision (See Report, at p. 42). The major problem addressed by this 55 page report is that although the Transit Authority employees received a copy of the drug testing policy and procedures, many employees did not fully understand the procedures involved (See Report, at pp. 50-51, 53). Based upon the foregoing evidence, including the Department of Transportation Report, the Court finds, as a matter of law, that there is a complete absence of any evidence from which a reasonable jury could find that the testing procedures employed by the laboratory CompuChem were flawed and/or that the test results should not have been relied upon by the Transit Authority (See Weldy, supra, 985 F.2d at pp. 59-60). Accordingly, the motion for a judgment as a matter of law dismissing the claims of the plaintiffs Laverpool, Wilder, Browne, and Jackson based upon a Section 1983 search and seizure cause of action is granted. (3) Equal Protection The plaintiffs allege in the second amended complaint that the drug testing policy of the Transit Authority was being applied in a manner that discriminated against the plaintiffs, who are black and therefore violated the Equal Protection Clause (See Second Amended Complaint, at ¶¶ 47, 170, 300). According to the Supreme Court, the Equal Protection Clause “is essentially a direction that all persons similarly situated should be treated alike” (City of Celburne v. Celburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 [1985]; see also Brady v. Colchester, 863 F.2d 205, 216 [2d Cir.1988] [discussing Equal Protection Clause]). Since the Court has already determined, as a matter of law, that the drug testing policy for the plaintiffs was facially valid, in order to establish their claim of a violation of the Equal Protection Clause, the plaintiffs must prove that: “(1) the person, compared with others similarly situated, was selectively treated, and (2) the selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations, such as race ... to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the person” (FSK Dmg Corp. v. Perales, 960 F.2d 6, 10 [2d Cir.1992]). In the present case, the plaintiffs Laverpool, Wilder, Browne, and Jackson, who are black, failed to submit any evidence that there was any selective treatment with regard to any of them. There has been no evidence adduced that white employees were treated in any manner differently than black employees of the Transit Authority. Although Ella Hill testified that ninety-five (95) percent of the disciplinary proceedings involved black persons, she did not testify that this was disproportionate compared with the demographics of the Transit Authority employees, generally or the safety sensitive employees in particular. In addition, even if the Court construes the testimony of Ms. Hill as sufficient to demonstrate prima facie evidence of selective treatment of black employees of the transit authority, there has been no evidence adduced by any witness, or through any document, that this disparate treatment was based upon an intent by the Transit Authority to discriminate against the plaintiffs Laverpool and/or Wilder based upon their race (See FSK Drug Corp., supra, 960 F.2d at p. 10). Further, should the plaintiffs assert the claim that the drug testing policy of the Transit Authority, as a whole, violates the Equal Protection Clause, the plaintiffs must show that the determination to drug test the employees of the Transit Authority is not rationally related to a legitimate governmental interest (See Western & Southern Life Ins. Co. v. State Board of Equalization, 451 U.S. 648, 668, 101 S.Ct. 2070, 2083, 68 L.Ed.2d 514 [1981]). There has been no evidence presented by the plaintiffs that the drug testing policy of the Transit Authority is not rationally related to a legitimate governmental interest. On the contrary, the proof is clear that this policy is rationally related to an important, legitimate governmental interest. The Court finds, as a matter of law, that there is a complete absence of any evidence from which a reasonable jury could find that the plaintiffs were selectively treated. In addition, even if there was evidence of selective treatment, there is no evidence that the selective treatment was due to discrimination on the basis of race. Accordingly, the motion for a judgment as a matter of law dismissing the claims o